LIBRARY OF THE 
 UNIVERSITY OF ILLINOIS 
 AT URBANA-CHAMPAICN 
 
 KD 
 
 C lS c i 
 . GH3 X 
 I c ri3 
 
 LAW 
 
P <rvU 
 
 1 1 YTU^ 1^ 
 
 
 / 
 
 
 
 
Digitized by the Internet Archive 
 
 in 2016 
 
 
 
 https://archive.org/details/gibsonmcleansstuOOgibs 
 
( i ) 
 
 PRIZES won by Pupils of Messrs. Gibson Sf Weldon 
 
 since 1897 . 
 
 Note. — The Clement’s Inn (First) Prizeman also takes the Daniel Reardon Prize. 
 
 Jan. 1897. — ALL the Prizes awarded, namely, The Clement’s Inn and The 
 John Maekrell Prizes. 
 
 April, 1897. — ALL the Prizes awarded, namely, Clement’s Inn and J ohn Maekrell 
 Prizes. Also The Scott Scholarship and The Broderip Gold Medal. 
 
 June, 1897. — Four of the Six Prizes awarded, namely, The Clement’s Inn Prize, 
 The John Maekrell Prize, The Clifford’s Inn Prize, and The New Inn Prize. 
 Also The Stephen Heelis Gold Medal and The Birmingham Bronze Medal. 
 
 Nov. 1897. — No First Class List. The Mellersh Prize. 
 
 Jan. 1898. — Three of the Five Prizes awarded, namely, The Clement’s Inn, 
 Clifford’s Inn, and New Inn Prizes. Also The Scott Scholarship. 
 
 April, 1898. — Three of the Four Prizes awarded, namely, The Clifford’s Inn, 
 The New Inn, and the John Maekrell Prizes. The Stephen Heelis Medal. 
 
 June, 1898. — NINE of the TEN Prizes awarded, namely, Clement’s Inn, Clifford’s 
 Inn, New Inn, John Maekrell and Five Law Society Prizes. 
 
 Nov. 1898 — TWO of the THREE Prizes awarded, namely, The Travers-Smith 
 Scholarship and The John Maekrell Prize. Also The Mellersh Medal and 
 Joint Winner of The Broderip Gold Medal. 
 
 Jan. 1899. — FOUR (the first four) of the FIVE Prizes awarded, namely, The 
 Clement’s Inn, Clifford’s Inn, New Inn, and Law Society Prizes. 
 
 April, 1899. — ALL the Prizes awarded, namely, The Clement’s Inn and John 
 Maekrell Prizes. Also the Mellersh Medal and Birmingham Bronze Medal. 
 
 June, 1899. — SEVEN of the ELEVEN Prizes awarded, namely, The Clement’s 
 Inn, Clifford’s Inn, New Inn, John Maekrell, and Three Law Society 
 Prizes. Also The Scott Scholarship and The Broderip Gold Medal. 
 
 Nov. 1899. — TWO of the THREE Prizes awarded, namely. The Clement’s Inn 
 and The John Maekrell Prizes. Also the Travers-Smith Scholarship. 
 
 Jan. 1900. — SIX out of the SEVEN Prizes awarded, namely. The Clement’s Inn, 
 New Inn, Three Law Society, and the John Maekrell Prizes. 
 
 April, 1900. — FOUR of the SIX Prizes awarded, namely, The Clifford’s Inn, 
 Two Law Society, and the John Maekrell Prizes. 
 
 June, 1900. — ALL the Prizes awarded, namely, The Clement’s Inn, The 
 Clifford’s Inn, The New Inn, and John Maekrell Prizes. 
 
 Nov. 1900. — Two of the Four Prizemen — The Clifford’s Inn and New Inn Prizes. 
 Also the following Special and Local Prizes, viz.. The Scott Scholarship, 
 Timpron Martin, Atkinson and Mellersh Prizes, and Birmingham Bronze 
 Medal. 
 
 Jan. 1901. — The Clement’s Inn Prize. 
 
 April, 1901.- ALL the Prizes awarded, namely, The Clement’s Inn and The 
 John Maekrell Prizes. Also The Birmingham Bronze Medal. 
 
 June, 1901. — SIX out of the EIGHT Prizes, namely, The Cliff ord’ s Inn Prize, The 
 New Inn Prize, The John Maekrell Prize, and Three Law Society Prizes. 
 Also The Atkinson and Stephen Heelis Prizes. 
 
 Nov. 1901. — ALL the Prizes, namely, The Travers-Smith Scholarship, The 
 Clement’s Inn, Clifford’s Inn and John Maekrell Prizes. The first Ten 
 in the Honors List. Also The Broderip Gold Medal. 
 
 a 
 
( ii ) 
 
 Prizes won by Pupils — continued. 
 
 Jan. 1902. — 24 of the 29 Honormen, including ALL the Prizes (except the 
 5th Prize), namely, Clement’s Inn, Clifford’s Inn, 3rd, 4th and 6th 
 (Law Society Prizes), and The John Mackrell Prize. Also The Scott 
 Scholarship, the Broderip Gold Medal, The Clahon Prize, The Timpron 
 Martin, Stephen Heelis, and Atkinson Prizes. 
 
 April, 1902. — The ONLY Prizeman, namely, Clement’s Inn and John Mackrell 
 Prizeman, and 9 of the 10 Honormen. 
 
 June, 1902. — 20 of the 27 Honormen. (The John Mackrell Prizeman was a 
 Postal Pupil.) 
 
 Nov. 1902. — The whole of the Honors List, with the exception of 1 in the Third 
 Class ; including ALL the Prizemen, namely, The Clement’s Inn, 
 Clifford’s Inn and The John Mackrell Prizeman, and The Travers -Smith 
 Scholarship. 
 
 Jan. 1903. — FOUR (the fust 4) of the FIVE Prizemen, namely, The Clement’s 
 Inn, The Clifford’s Inn, The New Inn, Law Society. Also The John 
 Mackrell Prize. 
 
 April, 1903. — ALL the Prizes awarded, namely, The Clement’s Inn, The 
 Clifford’s Inn and The John Mackrell Prizes. 16 of the 19 Honormen. 
 
 June, 1903. — SEVEN of the EIGHT Prizes awarded, namely, The Clement’s 
 Inn, The New Inn, Four Law Society and The John Mackrell Prizes. 
 42 of the 55 Honormen. 
 
 Nov. 1903. — No First Class List. 13 of the 15 Honormen, and in addition the 
 Practical Prize — The John Mackrell. Also ALL THE SPECIAL and 
 LOCAL PRIZES except a Joint Winner of the Clahon Prize. 
 
 Jan. 1904. — 20 of the 25 Honormen, including Two Prizemen, namely, The 
 Clement’s Inn and Law Society. 
 
 April, 1904. — ALL THE PRIZES AWARDED, namely, The Clement’s Inn, 
 The Clifford’s Inn, The New Inn, Two Law Society and The John 
 Mackrell. With the exception of two in the Second Class the WHOLE 
 OF THE LIST were “ Law Notes” Pupils. 
 
 June, 1904. — Again ALL THE PRIZES AWARDED, namely, The Clement’s 
 Inn, The Clifford’s Inn, Five Law Society and the John Mackrell, were 
 secured by Pupils of the Editors of “Law Notes.” 41 of the 47 
 Honormen. 
 
 Nov. 1904.— Still again ALL THE PRIZES AWARDED, namely. The 
 Clement’s Inn, The Clifford’s Inn, The New Inn, Six Law Society Prizes, 
 The John Mackrell and the Travers-Smith Scholarship, were taken by 
 “Law Notes ” Pupils. Also ALL the SPECIAL and LOCAL PRIZES, 
 namely, The Scott Scholarship, The Broderip Gold Medal, The Clabon 
 Prize, The Timpron Martin Prize, The Birmingham Gold Medal, The 
 Stephen Heelis Prize, The Mellersh Prize, and a Joint Winner of the 
 Atkinson Prize. 
 
 Jan. 1905. — And still again ALL THE PRIZES AWARDED, namely, 
 The Clement’s Inn, The Clifford’s Inn, The New Inn and The John 
 Mackrell. The entire Honors List with the exception of six. 
 
 April, 1905. — The only Prize awarded, namely, The John Mackrell. The whole 
 of the Honors List with the exception of three. 
 
 June, 1905. — SEVEN of the EIGHT Prizes awarded, namely, The Clement’s 
 Inn, The Clifford’s Inn, The New Inn, 3 Law Society and The John 
 Mackrell. 
 
 Nov. 1905. — ALL THE PRIZES AWARDED, namely, The Clement’s Inn, 
 The Clifford’s Inn, The New Inn, 3 Law Society, The John Mackrell, 
 and the Travers-Smith Scholarship. The whole Honors List with the 
 exception of 3 in the Third Class. Also ALL THE SPECIAL AND 
 LOCAL PRIZES with the exception of two. The Scott Scholarship, 
 The Broderip Gold Medal, The Clahon Prize, and The Stephen Heelis 
 Gold Medal. 
 
( iii ) 
 
 Prizes won by Pupils — continued. 
 
 Jan. 1906. - Again ALT; THE PRIZES AWARDED, namely, The Clement’s 
 Inn, The Clifford’s Inn, The New Inn, 2 Law Society, and The JohD 
 Mackrell. 
 
 June, 1906. — THE WHOLE HONORS LIST, including two John Mackrell 
 Prizes. 
 
 Oct. 1908. — ALL THE PRIZES, namely, The Travers-Smith Scholarship, 
 The Clement’s Inn, The Clifford’s Inn, The John Mackrell, The New 
 Inn, and the Law Society Prize. Also ALL THE SPECIAL AND 
 LOCAL PRIZES, namely, The Scott Scholarship, The Broderip Prize, 
 The Clabon Prize, The Atkinson Prize, The Timpron Martin Prize, The 
 Stephen Heelis Prize, and The Mellersh Prize. 
 
 Jan. 1907. — Again ALL THE PRIZES, The Clement’s Inn, The Clifford’s 
 Inn, The New Inn, and The John Mackrell. The entire Honors List 
 except one. 
 
 March, 1907. — The John Mackrell Prize (only one awarded). 9 out of 11 
 Honormen. 
 
 June, 1907. — SIXTEEN of the SEVENTEEN Prizes awarded, namely, The 
 Clement’s Inn, The Clifford’s Inn, The New Inn, and Thirteen Law 
 Society Prizes. 55 of the 59 Honormen. 
 
 Oct. 1907. — ALL THE PRIZES AWARDED, namely, The Clement’s Inn, 
 The Clifford’s Inn, The New Inn, and The John Mackrell. 17 of the 20 
 Honormen. Also ALL THE SPECIAL AND LOCAL PRIZES, 
 namely, The Scott Scholarship, The Broderip Prize, The Clabon Prize, 
 The Atkinson Prize, The Timpron Martin Prize, The Stephen Heelis 
 Prize, The Mellersh Prize, The Birmingham Gold Medal, and The 
 Birmingham Bronze Medal. 
 
 Jan. 1908. — ALL THE PRIZES AWARDED, namely, The Clement’s Inn, 
 The Clifford’s Inn, The New Inn, and the Law Society Prize. 26 of the 
 30 Honormen. 
 
 March, 1908. — THE WHOLE HONORS LIST (except the unclassed John 
 Mackrell Prizeman). 
 
 June, 1908. — ALL THE PRIZES AWARDED, namely, The Clement’s Inn 
 Prize, and The John Mackrell Prize. 34 out of the 37 Honormen. 
 
 Oct. 1908. — FOUR out of the SIX Prizes awarded. Also all the Special and 
 Local Prizes except the Birmingham Bronze Medal. 
 
 Jan. 1909. — No First Class List. The only Prize awarded, namely, The John 
 Mackrell. 14 of the 18 Honormen. The whole of the Second Class, and 
 9 out of 12 in the Third Class. 
 
 March, 1909.— THE WHOLE HONORS LIST. 
 
 June, 1909. — TWO of the THREE Prizes awarded, namely. The Clement’s 
 Inn and The John Mackrell Prizes. 39 out of the 43 Honormen. 
 
 Nov. 1909. — ALL THE PRIZES, including The Travers-Smith Scholarship. 
 24 of the 26 Honormen. Also ALL THE SPECIAL AND LOCAL 
 PRIZES, namely, The Scott Scholarship, The Broderip Prize, The 
 Clabon Prize, The Atkinson Prize, The Timpron Martin Prize, The 
 Stephen Heelis Prize, The Mellersh Prize, The Birmingham Gold 
 Medal, and The Birmingham Bronze Medal. 
 
 Jan. 1910. — ALL THE PRIZES, namely, The Clement’s Inn, The Clifford’s 
 Inn, The New Inn, the Law Society, and The John Mackrell Prize. 
 21 out of the 23 Honormen. 
 
 March. 1910.— No First Class LRt, The only Prize awarded, namely, The John 
 Mackrell. 15 of the 19 Honormen, including the whole of the Second 
 Class. 
 
 June, 1910.— ALL THE PRIZES, namely, The Clement’s Inn Prize, The 
 Clifford’s Inn Prize, two New Inn Prizes, The Law Society Prize and 
 The John Mackrell Prize. 27 of the 35 Honormen. 
 
 a 2 
 
( iv ) 
 
 Prizes won by Pupils — continued. 
 
 Nov. 1910. — ALL THE PRIZES awarded, namely, The Clement’s Inn Prize, 
 The John Mackrell Prize, and The Travers- Smith Scholarship. 23 of 
 the 30 Honormen. Also ALL THE SPECIAL AND LOCAL 
 PRIZES, namely, The Scott Scholarship, The Broderip Prize, The 
 Clabon Prize, The Timpron Martin Prize, The Atkinson Prize, The 
 Rupert Bremner Prize, The Birmingham Bronze Medal, The Stephen 
 Heelis Prize, and The Mellersh Prize. 
 
 Jan. 1911. — 21 of the 23 Honormen, including ALL THE PRIZES, namely, 
 The Clement’s Inn Prize, The Clifford’s Inn Prize, The New Inn Prize, 
 and The John Mackrell Prize. 
 
 March, 1911. — No First Class List. — The only Prize awarded, namely, The John 
 Mackrell. The whole of the Second Class, and 5 out of 7 in the Third Class. 
 
 June, 1911. — 18 of the 25 Honormen, including ALL THE PRIZES 
 AWARDED, namely, The Clement’s Inn Prize and The John Mackrell 
 Prize. 
 
 Nov. 1911. — ALL THE PRIZES AWARDED, including The Clement’s Inn 
 Prize and The John Mackrell Prize. Also ALL THE SPECIAL AND 
 LOCAL PRIZES with the exception of two. 17 out of the 20 Honormen. 
 
 Jan. 19 <2. — 16 of the 19 Honormen, including ALL THE PRIZES 
 AWARDED, namely, The Clement’s Inn Prize, The Clifford’s Inn 
 Prize, and The John Mackrell Prize. 
 
 March, 19.2. — No First or Second Class List. 4 of the 5 Honormen, including 
 The John Mackrell Prize. 
 
 June, 1912. — £3 of the 27 Honormen, including The Clement’s Inn Prize, The 
 Clifford's Inn Prize, and The John Mackrell Prize. 
 
 Oct. 1912. — 12 of the 14 Honormen, including The Clement’s Inn Prize. Also 
 ALL THE SPECIAL and all except one of the LOCAL PRIZES for 
 1912. 
 
 Jan. 1913 —THE WHOLE HONORS LIST, and the TWO PRIZES 
 awarded, namely, The Clement’s Inn Prize and The John Mackrell Prize. 
 
 N.O. — During the last thirteen years (1900 — 1912) of 47 First Prizemen no 
 less than 39 were Pupils, of 36 Second Prizemen 30 were Pupils, of 28 
 Third Prizemen 23 were Pupils, 57 of 60 Law Society Prizes were 
 secured, and 48 of 54 John Mackrellmen were also Pupils of Messrs 
 O. & W. Of 13 Scott Scholars 12 were Pupils, as were also 12 of the 
 13 Broderip Medallists- The Travers-Smith Scholarship has been secured 
 11 out of the 13 times awarded since it was founded. 
 
 In 1900 of 96 Honormen 68 were Pupils. 
 
 1901 of 84 Honormen 67 were Pupils. 
 
 1902 of 75 Honormen 61 were Pupils. 
 
 1903 of 121 Honormen 94 were Pupils. 
 
 1904 of 128 Honormen 111 were Pupils. 
 
 1905 of 115 Honormen 88 were Pupils. 
 
 1906 of 99 Honormen 81 were Pupils. 
 
 1907 of 106 Honormen 96 were Pupils. 
 
 1908 of the 109 Honormen 94 were Pupils. 
 
 1909 of the 97 Honormen 87 were Pupils. 
 
 1910 of the 107 Honormen 86 were Pupils. 
 
 1911 of the 69 Honormen 55 were Pupils. 
 
 1912 of the 65 Honormen 55 were Pupils. 
 
 Jan. 1913, of the 5 Honormen ALL were Pupils. 
 
 For further particulars, Fees, &c., address — 
 
 Messrs. GIBSON & WELDON, 
 
 27, Chancery Lane, London, W.C. 
 
 [Telegrams : “ Suasoeius, Holb,” London. Telephone : Holbom 779.] 
 
GIBSON & M C LEAN’S 
 
 TENTH EDITION 
 
 BY 
 
 ALBERT GIBSON. 
 
 LONDON : 
 
 THE “LAW NOTES” PUBLISHING OFFICES, 
 25 & 26, CHANCEBY LANE, W.C. 
 
 1913 
 
•• X ;ur Rotes’’ (Hasses. 
 
 Final & Intermediate Examinations 
 
 OF THE LAW SOCIETY 
 
 AND 
 
 Examinations for the Bar. 
 
 FOR. TERMS and all necessary information, 
 application should be made to — 
 
 Messrs. GIBSON & WELDON, 
 
 Lonsdale Chambers, 
 
 27, CHANCERY LANE, 
 W.C. 
 
 Telegraphic Address-" SUASORIUS, HOLB,” LONDON. 
 Telephone— Holborn 779. 
 
PREFACE. 
 
 W 
 
 )°l)3 
 
 4 
 
 Less than three years have elapsed since the ninth 
 edition of this book was published, and, if an apology is 
 needed for this comparatively early appearance of its 
 successor, it must be found in the passing of the 
 Conveyancing Act, 1911. The provisions of that Act 
 are so important, and affect the text of the book in so 
 many places, that a new edition was inevitable. In 
 addition to the Conveyancing Act, considerable altera- 
 tion in and addition to the text have been rendered 
 necessary by the creation of the new land duties by 
 the Finance (1909-10) Act, 1910, and by the changes in 
 the law of death duties and stamps introduced by that 
 Act. 
 
 While incorporating the new statutes and cases I 
 have taken the opportunity of thoroughly revising the 
 whole work, and, by careful elimination of any matter 
 of purely academical interest or of little practical im- 
 portance, have contrived to avoid any substantial in- 
 crease in the size of the book. The tenth edition will 
 be found to contain only nine more pages than the 
 ninth. 
 
 Gratefully recognising the fact that the Student’s 
 Conveyancing is largely used by practitioners as well 
 as students, I have endeavoured to make the present 
 edition even more practical than its predecessors, and 
 
Vlll 
 
 PREFACE. 
 
 with that end in view have added many practice notes 
 to the text. Practitioners will notice also that, though 
 the title u Student’s Conveyancing” still remains on the 
 front page of the work, the cover hears the name 
 u Gibson’s Conveyancing.” This alteration has been 
 made in deference to the wishes of several practitioners. 
 
 My best thanks are due to my nephew and partner 
 Mr. H. Gibson Rivington and to my partner Mr. A. 
 Clifford Fountaine for much valued assistance in 
 the preparation of the work, and to my friends and 
 colleagues Mr. R. C. Menneer and Mr. F. W. E. Hobson 
 for the trouble they have taken in revising the text and 
 proof-sheets and for many valuable suggestions. 
 
 ALBERT GIBSON. 
 
( is ) 
 
 TABLE OF CONTENTS. 
 
 PAGE 
 
 Table of Cases - xxiii 
 
 Table of Statutes ----- lxxxvii 
 
 INTRODUCTORY ------ 1 
 
 Book 1. 
 
 CONVEYANCING AT COMMON LAW - 5 
 
 Part I. 
 
 SALES, EXCHANGES AND GIFTS 5-200 
 
 CHAPTER I. 
 
 CAPACITY OF PARTIES - - 5 — 32 
 
 I. Infants - - - - - 5 
 
 II. Persons of unsound mind - - - 8 
 
 III. Married women - - - - - 10 
 
 IV. Aliens - - - - - - -16 
 
 V. Traitors and felons - - - - 16 
 
 VI. Corporations - - - - - -17 
 
 VII. Charities - - - - - - 20 
 
 VIII. Persons acting 1 in a fiduciary capacity - - - 26 
 
X 
 
 TABLE OF CONTENTS. 
 
 CHAPTER II. 
 
 PAGE 
 
 CONTRACTS FOR SALE GENERALLY - 33 40 
 
 Wliat is an interest in land within s. 4 of Statute of Frauds - 33 
 
 What the memorandum must contain - - - 35 
 
 What acts of part performance will take a case out of the 
 
 statute - - - - - - -38 
 
 CHAPTER III. 
 
 THE PARTICULARS OF SALE - 41 47 
 
 CHAPTER IV. 
 
 THE CONDITIONS OF SALE - - 48 81 
 
 I. General conditions - - - - 56 
 
 II. Special conditions - - - - 76 
 
 Verbal variation of the conditions at the sale - 80 
 
 CHAPTER V. 
 
 SALE BY PRIVATE CONTRACT, AND THE POSITION OF THE PARTIES 
 
 AFTER THE AGREEMENT FOR SALE - 82 — 95 
 
 (a) The position of the parties after the contract - 82 
 
 (b) The effect of bankruptcy of one of the parties - 84 
 
 (c) The effect of the death of either party - - 85 
 
 (d) The remedies for breach of the contract - 88 
 
 Stamp duty on contract - - 94 
 
 CHAPTER VI. 
 
 THE ABSTRACT OF TITLE AND REQUISITIONS 96 126 
 
 Production of the deeds - - - - - 100 
 
 Proof of the execution, attestation and validity of the deeds 
 
 and documents abstracted - - - - 101 
 
 Proof of other facts - - - - - -105 
 
 Proof of proceedings in Courts of Justice - - - 108 
 
 Presumptions in favour of vendor - - - - 109 
 
 Requisitions and observations on title - - - 111 
 
 Notice of defects in title ----- 120 
 Waiver of objections to title ----- 123. 
 Disputes between vendor and purchaser - - - 124 
 
TABLE OF CONTENTS. 
 
 XI 
 
 CHAPTER VII. 
 
 PAGE 
 
 THE FORM AND CONTENTS OF A PURCHASE DEED 127 153 
 
 The date - - - - - - -127 
 
 The parties - - - - - - -127 
 
 (1) The parties conveying - - - - 127 
 
 (2) The parties to whom the conveyance is made - 130 
 
 Recitals - - - - - - -130 
 
 The consideration - - - - - -132 
 
 Operative words - - - - - -134 
 
 The parcels - - - - - - -134 
 
 General words - - - - - -137 
 
 Exceptions and reservations - - - - - 139 
 
 The habendum - - - - - - 140 
 
 Covenants ------- 141 
 
 Form of purchase deed - - - - -153 
 
 CHAPTER VIII. 
 
 SEARCHES FOR INCUMBRANCES - 154 164 
 
 I. Usual searches - - - - - -154 
 
 II. Special searches - - - - - -161 
 
 Mode of searching - - - - - 163 
 
 CHAPTER IX. 
 
 THE COMPLETION OF THE PURCHASE - 165 187 
 
 The execution of the deed - - - - - 165 
 
 The payment of the purchase-money - - - - 167 
 
 Conveyances of special kinds of property - - - 173 
 
 (1) Copyholds - - - - - -174 
 
 (2) Assignment of leaseholds - - - - 175 
 
 (3) Assignments of choses in action - - - 177 
 
 (4) Assignments of policies of assurance - - 181 
 
 (5) Assignments of goodwill - - - - 182 
 
 Stamps - - - - - - -183 
 
 Legal charges - - - - - -186 
 
Xll 
 
 TABLE OF CONTENTS 
 
 CHAPTER X. 
 
 PAGE 
 
 STEPS TO BE TAKEN SUBSEQUENTLY TO COMPLETION 188 195 
 
 Registration in county registers - - - - 188 
 
 (a) The Middlesex registry - - - - 188 
 
 (b) The Yorkshire registry - - - - 191 
 
 Registration of conveyances to charities - - - 194 
 
 Special cases of registration - - - - - 194 
 
 CHAPTER XI. 
 
 COMPULSORY SALES UNDER THE LANDS CLAUSES CONSOLIDATION 
 
 ACTS ------ 196 — 200 
 
 Part II. 
 
 MORTGAGES - - 201—262 
 
 I. Introductory - - - - - -201 
 
 II. Capacity of Parties ----- 202 
 
 Infants ------ 202 
 
 Persons of unsound mind - - - - 202 
 
 Married women ----- 202 
 
 Aliens, traitors and felons - - - - 203 
 
 Corporations - 203 
 
 Persons in a fiduciary position - - - 203 
 
 III. Contract for a mortgage and title of the mortgagor 207 
 
TABLE OF CONTENTS. 
 
 X11T 
 
 MORTGAGES — continued. page 
 
 IV. The form and contents of an ordinary mortgage - 209 
 Date, parties and recitals - 209 
 
 First testatum. — Covenant for repayment of loan and 
 interest ------ 209 
 
 Second testatum. — Conveyance of mortgaged pro- 
 perty to the mortgagee - - - - 214 
 
 The proviso for redemption - - - - 215 
 
 Covenants by mortgagor - 222 
 
 Powers of mortgagee _ 222 
 
 The power of sale ----- 223 
 
 The power to insure - - - - 229 
 
 The power to appoint a receiver - - - 230 
 
 The power to cut and sell timber - 233 
 
 The power to grant leases - - - - 233 
 
 The attornment clause - - - - 238 
 
 Form of mortgage deed - - - 240 
 
 V. The form of the mortgage in special cases - - 240 
 
 Mortgages of copyholds - 240 
 
 Mortgages of leaseholds - - - - 241 
 
 Mortgages of' choses in action - 243 
 
 Mortgages of life policies - 244 
 
 Statutory mortgages - 245 
 
 Form of statutory mortgage - - - 246 
 
 VI. Second and subsequent mortgages - - - 246 
 
 VII. Equitable mortgages ----- 249 
 
 Legal charges on mortgages - - - 252 
 
 VIII. Transfers of mortgages - - - - 253 
 
 The desirability of the mortgagor’s concurrence in 
 
 the transfer - - - - -253 
 
 (a) Transfer to which the mortgagor is not a party 254 
 
 (b) Transfer to which the mortgagor is a party - 255 
 
 Transfer of mortgages of copyholds - - - 256 
 
 Parties to the transfer after death of the mortgagee- 256 
 Statutory transfers ----- 256 
 Legal charges - - - - -257 
 
 IX. Re-conveyance of mortgages - 257 
 
 Parties to the re -conveyance after death of the mort- 
 gagee - - - - - - 259 
 
 Form of re-conveyance - 260 
 
 Legal charges - - - - -260 
 
 Stamps on mortgages, transfers and re-conveyances- 261 
 
XIV 
 
 TABLE OF CONTENTS. 
 
 Part III. 
 
 PAGE 
 
 BILLS OF SALE - - 263—296 
 
 I. Introductory ------ 263 
 
 II. What is a bill of sale within the acts - - 264 
 
 III. Wiiat are personal chattels within the acts - 269 
 
 IV. The requisites of the act of 1878 as to the execution 
 
 AND ATTESTATION OF ABSOLUTE BILLS OF SALE - 272 
 
 V. The requisites of the act of 1882 as to the contents, 
 
 EXECUTION AND ATTESTATION OF BILLS OF SALE BY 
 WAY OF SECURITY - - - - -274 
 
 Table of cases decided under sect. 9 of the act of 1882 278 
 
 VI. The provisions of the acts as to the consideration, 
 
 REGISTRATION AND RE-REGISTRATION OF A BILL OF 
 
 SALE ------ 283 
 
 The consideration - - - - -283 
 
 Registration - 285 
 
 Re-registration ----- 289 
 
 The result of omission to register and re-register a 
 bill of sale - - - - - 289 
 
 VII. Upon what events the goods can be seized when the 
 
 BILL IS BY WAY OF SECURITY FOR THE PAYMENT OF 
 MONEY ONLY - - - - -291 
 
 VIII. HOW FAR THE ORDER AND DISPOSITION CLAUSE OF THE 
 
 Bankruptcy Act is affected by registration - 292 
 
 IX. Miscellaneous matters - 293 
 
 Entry of satisfaction - - - - 293 
 
 Searches - - - - - -293 
 
 The risks attending a bill of sale - - - 294 
 
 The statutory form of bill of sale - 295 
 
 Stamps, &c. - - - - - 296 
 
 Legal charges - - - - - 296 
 
TABLE OF CONTENTS. XV 
 
 Part IV. 
 
 PAGE 
 
 LEASES - - 297—371 
 
 I. Introductory - - - - - -297 
 
 II. Capacity of parties ----- 297 
 Leases by and to infants - - - - 297 
 
 Leases by and to persons of unsound mind - 299 
 
 Leases by and to married women - - - 299 
 
 Leases by and to corporations - 300 
 
 Leases by trustees - - - - - 301 
 
 Leases by executors and administrators - - 302 
 
 Leases under powers - 302 
 
 Leases Ly limited owners - 303 
 
 Leases by reversioners - - - - 304 
 
 Leases by copyholders - - - - 304 
 
 Leases by tenants for years - 304 
 
 III. Contract for lease and investigation of lessor’s title 305 
 
 IV. The form and contents of a lease - - - 307 
 
 Contents of the lease: date, parties and recitals - 308 
 Testatum ------ 309 
 
 Habendum - - - - - -309 
 
 Reddendum - - - - - -311 
 
 Obligations of the parties in the absence of express 
 covenants - - - - - -311 
 
 How far covenants run with the land or the reversion 316 
 Usual covenants - - - - -319 
 
 Express covenants ----- 320 
 
 The covenant to pay rent - 320 
 
 The covenant to pay taxes, &c. - - - 323 
 
 The covenant to repair - - - - 326 
 
 The covenant for insurance - - - - 330 
 
 The covenant not to assign or underlet - - 331 
 
 Restrictive covenants - - - - 335 
 
 Conditions for re-entry and forfeiture - - 338 
 
 Covenant by the lessor for quiet enjoyment - - 347 
 
 Form of lease of dwelling-house - 349 
 
 V. Statutory provisions affecting agricultural leases - 351 
 
 Compensation for improvements and disturbance - 352 
 Fixtures and buildings - - - - 356 
 
 Notice to quit and other matters - - - 357 
 
 Market gardens - - - - - 358 
 
 Emblements - - - - -359 
 
 Right to kill ground game - - - - 366 
 
XVI 
 
 TABLE OF CONTENTS. 
 
 LEASES — continued. 
 
 TAGE 
 
 VI. Miscellaneous matters ----- 362 
 The surrender of leases - 362 
 
 Notices to quit _____ 364 
 Stamps --____ 367 
 Legal charges _____ 369 
 
 Increment Value and Reversion duties - - 370 
 
 Part V. 
 
 SETTLEMENTS - - 372—456 
 
 I. Introductory ------ 372 
 
 II. Capacity of parties - - - - - 373 
 
 Settlements by infants - - - - 373 
 
 III. Contract for settlement and preparation of settle- 
 
 ments GENERALLY - - - - - 376 
 
 How the trust property is vested in the trustees - 376 
 The covenant to settle after-acquired property - 377 
 Covenants for title - - - - - 379 
 
 IV. Form of settlement of personalty - 380 
 
 Dates, parties and recitals - 380 
 
 The trusts of the settlement - - - - 381 
 
 Trustee clauses - - - - -387 
 
 The investment clause - - - - 387 
 
 The receipt clause ----- 392 
 The power to compound and settle claims - - 393 
 
 The indemnity and re-imbursement clause - - 393 
 
 Appointment of new trustees - 394 
 
 Settlement of a life policy - 399 
 
 V. Form of settlement of realty - 400 
 
 The form of a strict settlement - - - 401 
 
 The Settled Land Acts - - - - 412 
 
 Introduction - - - - - 412 
 
 Definition of settlement and settled land - - 413 
 
 Definition of tenant for life - - - - 414 
 
 Definition of trustees - - - - 415 
 
 Powers conferred on the tenant for life - - 415 
 
 The power of sale - - - - -416 
 
TABLE OF CONTENTS. 
 
 XVII 
 
 SETTLEMENTS — continued. 
 
 PAGE 
 
 V. Form of settlement of realty — continued. 
 
 Tlie power of leasing' - - - - 418 
 
 General powers on sales, leases and other dispositions 422 
 The power of mortgaging - 423 
 
 Power to cut timber ----- 423 
 Power to sell heirlooms - 423 
 
 Power to execute conveyances and deeds - - 424 
 
 Application of capital money - 425 
 
 Improvements with capital money - - - 431 
 
 Power to enter into contracts - 436 
 
 Dealings between tenant for life and estate - - 436 
 
 Trustees’ provisions ----- 437 
 Conditions precedent to the exercise of the powers - 438 
 General provisions - - - - - 441 
 
 Limited owners having powers of tenant for life - 444 
 Tenants for life under disability - 445 
 
 Settlements of land upon trust for sale - - 447 
 
 VI. Voluntary settlements - 449 
 
 - 454 
 
 - 454 
 
 - 456 
 
 Part VI.— WILLS- - 457—512 
 
 I. Introductory ------ 457 
 
 II. Capacity of parties ----- 457 
 Infants - 457 
 
 Persons of unsound mind - 458 
 
 Married women - - - - - 458 
 
 Aliens - - - - - -459 
 
 Traitors and felons ----- 459 
 
 III. Form of a will ------ 460 
 
 Alterations after execution - - - - 463 
 
 IV. Gifts of property by will generally - - - 464 
 
 The various kinds of legacies - - - 464 
 
 g. — c. b 
 
 VII. Miscellaneous matters 
 Stamps - 
 
 Legal charges for settlements 
 
XV111 
 
 TABLE OF CONTENTS. 
 
 WILLS — continued. 
 
 PAGE 
 
 V. The contents of a will ----- 467 
 Clause of revocation - - - - - 467 
 
 Appointment of executors - 467 
 
 Appointment of guardians - - - - 468 
 
 Direction to pay debts - - - - 469 
 
 Charge of debts on the realty - 469 
 
 The bequest of legacies - - - - 470 
 
 Provisions for the benefit of the testator’s family - 471 
 Provisions for carrying on the testator’s trade or 
 business - - - - - -475 
 
 Duties of executor with regard to wasting property - 476 
 Provisions relating to copyhold property - - 477 
 
 Undisposed-of residue - - - - 478 
 
 The date of the will- - - - - 478 
 
 The execution of a will - 479 
 
 Revocation and revival of wills - - - 479 
 
 VI. The construction of a will - - - - 479 
 
 Cardinal rules of construction - - - 480 
 
 Date of operation of will - 483 
 
 Lapsed devise - - - - -485 
 
 Effect of a general devise or bequest - - 485 
 
 The effect of a devise without words of limitation - 487 
 
 The meaning of the words “ die without issue ” - 487 
 
 Construction of devise to trustees - 488 
 
 No lapse of gift in certain cases - - - 489 
 
 The rule in Wild's Case - - - - 491 
 
 Several legacies to the same person - - - 491 
 
 Legacy to creditor of testator - - - 492 
 
 Rules for ascertaining class - 493 
 
 When gift by will vested and when contingent - 494 
 Gifts upon condition - - - - 496 
 
 (a) Where the property given is Land or a 
 
 Charge on Land - - - 496 
 
 (b) Where the property given is Personalty - 497 
 
 (c) As to both Realty and Personalty - - 497 
 
 Meaning of words and phrases - - - 501 
 
TABLE OF CONTENTS. xix 
 
 Part VII. 
 
 PAGE 
 
 Miscellaneous Transactions - 513 — 535 
 
 I. Deeds of disclaimer - - - - -513 
 
 II. Deeds of release - - - - -515 
 
 III. Disentailing assurances - - - - 516 
 
 IV. Enfranchisement of copyholds - 522 
 
 V. Enlargement of leaseholds into freeholds - - 524 
 
 VI. Appointments under powers - 526 
 
 The different sorts of powers - 526 
 
 Who can exercise powers - - - - 527 
 
 Power of revocation and new appointment - - 528 
 
 Power to contingent person - . - - - 528 
 
 Application of Perpetuity Rule to appointments 
 under powers - - - - - 529 
 
 Defective appointments - - - - 531 
 
 Illusory appointments - - - - 532 
 
 Excessive and fraudulent appointments - - 533 
 
 Release and disclaimer of powers - - - 535 
 
 Part VIII. 
 
 Conveyancing Costs - 536 — 554 
 
 Book II. 
 
 Conveyancing under the Land Transfer Acts 555—667 
 
 Introduction - - - - - - -555 
 
 The Land Registry - - - - - -558 
 
 District registries - - - - - -559 
 
 The register ------- 560 
 
 What property may be registered - 562 
 
 Who may apply for registration of freeholds - - - 564 
 
 How to obtain registration of freeholds - 565 
 
 (a) With absolute title - - - - 565 
 
 (b) With possessory title - - - - 572 
 
 (c) Qualified title - - - - - 573 
 
 Evidence of registration of freeholds - - - - 573 
 
 What leaseholds may be registered - - - - 574 
 
 b 2 
 
XX 
 
 TABLE OF CONTENTS. 
 
 PAGE 
 
 Who may apply for registration of leaseholds - - -575 
 
 How to obtain registration of a lease - - - - 575 
 
 (a) With absolute title - - - - 575 
 
 (b) With good leasehold title - 576 
 
 (c) With possessory title - - - - 577 
 
 (d) Qualified title - - - - -577 
 
 (e) Generally - - - - - 578 
 
 Evidence of registration of a lease - - - - 579 
 
 Provisions relating to both freehold and leasehold land - 579 
 
 Liability of registered land to easements, &c. - - - 579 
 
 The effect of adverse possession of registered land - - 583 
 
 Transfers and other dealings with registered land - - 584 
 
 How a transfer of registered freeholds is made - - 586 
 
 Effect of registration of transfer of freeholds - - - 590 
 
 How the transfer of registered leaseholds is made - - 592 
 
 Effect of registration of transfer of leaseholds - 593 
 
 Implied covenants on the transfer of registered leaseholds - 594 
 How a mortgage of registered land is made - 595 
 
 (1) Mortgages by registration of a charge - 596 
 
 Evidence of registration of a mortgage - - 599 
 
 Alteration of registered mortgages - 600 
 
 Implied covenants by the registered mortgagor - 600 
 Rights of the registered mortgagee - - - 601 
 
 Priorities jof registered mortgages - - - 604 
 
 Transfer of registered mortgages - 604 
 
 Discharge of registered mortgages - 605 
 
 (2) Building society mortgages - 606 
 
 (3) Equitable mortgages - - - - -607 
 
 Annuities and land charges ----- 609 
 Transfers and charges before registration - - - 610 
 
 Transmission of land and charges by operation of law - 611 
 
 (1) On death - - - - - 611 
 
 (2) On bankruptcy - - - - - 614 
 
 Effect of registration of transmissions - - -616 
 
 The method of protecting unregistered dealings with regis- 
 tered land - - - - - - 616 
 
 Notice of leases - - - - - 618 
 
 Notice of estates in dower or by the curtesy - - 62 1 
 
 Cautions against registered dealings - - 621 
 
 Inhibition against registered dealings without order 
 of Court ------ 624 
 
 Power of regislered proprietor to impose restrictions 625 
 Cautions, inhibitions and restrictions generally - 627 
 
TABLE OF CONTENTS. Xxi 
 
 PAGE 
 
 Caution against entry of land on register - - - 627 
 
 Crown lands ------- 629 
 
 As to proceedings on and before registration - 630 
 
 Registration of lands of different tenures - - 630 
 
 Powers of trustees for sale to apply for registration - 630 
 
 Registration of part owners - - - - 631 
 
 Instruments, &c. to be disclosed on registration of 
 title - - - - - -631 
 
 Production of deeds on registration of title - - 632 
 
 Doubtful questions arising on title - - - 633 
 
 As to land certificates and certificates of charge - - 634 
 
 Special hereditaments - - - - - 638 
 
 General provisions ------ 640 
 
 Restrictive conditions _____ 542 
 
 Provisions relating to persons subject to disability - - 643 
 
 Married women - - - - - 643 
 
 Infants and lunatics ----- 643 
 
 Incumbents of benefices - - - - 644 
 
 As to notices ------- 644 
 
 Specific performance ------ 645 
 
 Rectification of the register ----- 645 
 
 Effect of fraudulent entries on register - 646 
 
 Right to indemnity for errors in register - - - 647 
 
 Local registries - - - - - -650 
 
 Power to remove land from the register - 650 
 
 Inspection, searches, and copies of register - - - 651 
 
 Compulsory registration - 653 
 
 Solicitors’ remuneration for work clone in the Land Registry - 656 
 Land Transfer Fee Order - - - - -659 
 
 Rules 664 
 
 ✓ 
 
 INDEX 
 
 669 
 
( xxiii ) 
 
 TABLE OF CASES. 
 
 A. 
 
 PAGE 
 
 Abbey v . Gutteries, 59 S. J. 364 148 
 
 Abbot v. Middleton (1858), 7 H. of L. Ca. 68, 114; 28 L. J. Ch. 113... 
 
 480, 482 
 
 Abrahams, Re, (1911) 1 Ch. 108; 80 L. J. Ch. 83; 103 L. T. 532 ... 472 
 
 Adam v . Adam (1777), Cowp. 651; 98 E. R. 1289 528 
 
 Adams v. Taunton (1820), 5 Mad. 435 514 
 
 Agar v. George (1876), 2 Ch. D. 706; 34 L. T. 487; 24 W. R. 636 378 
 
 Agg-Gardner, Re (1884), 25 Ch. D. 600; 53 L. J. Ch. 347; 49 L. T. 
 
 804; 32 W. R. 356 125 
 
 Ailesbury (Marquis of) and Lord Iveagh, Re, (1893) 2 Ch. 345; 62 
 L. J. Ch. 713; 69 L. T. 101; 41 W. R. 644; 9 T. L. R. 324... 413, 424 
 Aldin v. Latimer Clark, Muirhead & Co., (1894) 2 Ch. 457 ; 63 L. J. Ch. 
 
 601; 71 L. T. 119; 42 W. R. 553 349 
 
 Aldridge v. Feme (1886), 17 Q. B. D. 212; 55 L. J. Q. B. 587; 34 
 W. R. 587 324 
 
 Alexander v. Alexander (1755), Tud. L. C. Cony. (4th ed.) 554; 2 
 
 Ves. 640 473, 530 
 
 Alfreton’s Trusts, Re (1883), 52 L. J. Ch. 745 384 
 
 Allcard v. Skinner (1887), 36 Ch. D. 145 31 
 
 Allen and Driscoll’s Contract, Re, (1904) 2 Ch. 226; 73 L. J. Ch. 
 
 614; 91 L. T. 676; 52 W. R. 641; 20 T. L. R. 605; (1904), 
 
 W. N. 134 120 
 
 Allen, In the goods of (1839), 2 Curt. 331 462 
 
 Allen, Re (1887), 34 Ch. D. 433; 56 L. J. Ch. 487; 56 L. T. 6; 
 
 35 W. R. 218 540,549 
 
 Allen v. Allen (2) (1842), 2 D. & W. 307; 21 W. R. 842 6 
 
 Allen v. Jackson (1875), 1 Ch. D. 399; 45 L. J. Ch. 310; 33 L. T. 
 
 713; 24 W. R. 306 496 
 
 Allen v. Taylor (1880), 16 Ch. D. 355; 50 L. J. Ch. 178 29, 140 
 
 Allen v. Thompson (1856), 1 H. & N. 15; 25 L. J. Ex. 249; 2 Jur.45... 286 
 
 Allhusen v. Brooking (1880), 26 Ch. D. 559; 53 L. J. Ch. 520; 51 
 
 L. T. 67 362 
 
 Alsop v. Lord Oxford (1833), 1 M. & K. 564 101 
 
XXIV 
 
 TABLE OF CASES. 
 
 PAGE 
 
 Altree v. Altree, (1898) 2 Q. B. 267; 67 L. J. Q. B. 882; 78 L. T. 
 
 794; 47 W. R. 60; 5 Manson, 235; 14 T. L. R. 460 283 
 
 Ames, Re, Ames v. Taylor (1883), 25 Ch. I). 72 394 
 
 Ames v. Ames, (1893) 2 Ch. 479; 62 L. J. Ch. 685; 68 L. T. 787; 
 
 41 W. R. 505 442 
 
 Ames v. Higdon (1893), 69 L. T. 292 226 
 
 Ancona v. Rogers (1876), 1 Ex. D. 285; 46 L. J. Ex. 121; 35 L. T. 
 
 115; 24 W. R. 1000 273 
 
 Anderson v. Berkley, (1902) 1 Ch. 936; 71 L. J. Ch. 444; 86 L. T. 
 
 443; 50 W. R. 684 501 
 
 Anderson v. Oppenheimer (1880), 5 Q. B. D. 602; 49 L. J. Q. B. 456... 348 
 Anderson v. Vicary, (1899) 2 Q. B. 437; 68 L. J. Q. B. 970; 81 
 
 L. T. 358 362 
 
 Anderton and Milner’s Contract, Re (1890), 45 Ch. D. 476; 59 L. J. 
 
 Ch. 765; 63 L. T. 332; 39 W. R. 44 320 
 
 Andrew v. Andrew (1875), 8 De G. M. & G. 336 494 
 
 Andrew v. Bridgman, (1908) 1 Iv. B. 596; 77 L. J. Iv. B. 272; 98 
 
 L T. 656 332 
 
 Andrew v. Hancock (1819), 1 B. & B. 37 325, 326 
 
 Angel v. Jay, (1911) 1 K. B. 666; 80 L. J. K. B. 458; 103 L. T. 809... 
 
 43, 306 
 
 Anthony v. Anthony, (1893) 3 Ch. 498; 62 L. J. Ch. 1004; 69 L. T. 
 
 300; 41 W. R. 667 467 
 
 Antil v. Godwin (1889), 63 J. P. 441 324, 325 
 
 Appleton, Re (1885), 29 Ch. D. 893; 54 L. J. Ch. 954; 52 L. T. 906; 
 
 49 J. P. 708 506 
 
 Arbib and Class’s Contract, Re, (1891) 1 Ch. 601; 60 L. J. Ch. 263... 69 
 
 Archer v. Kelly (1860), 1 D. & S. 300 378 
 
 Arding v. The Economic Printing and Publishing Co. (1899), 79 
 
 L. T. 622 324 
 
 Armstrong v. Burnett (1855), 20 Beav. 424 467 
 
 Arran v. Crisp (1691), 12 Mod. 55 323 
 
 Ashburner v. MacGuire (1784), 1 Wh. & Tud. L. C. Eq. (7tli ed.) 780... 465 
 
 Ashburner v. Sewell, (1891) 3 Ch. 405; 60 L. J. Q. B. 784 44 
 
 Ashburnham, Re, (1912) W. N. 234 484 
 
 Ashbury Railway Carriage and Iron Co. v. Riche (1875), L. R. 7 
 
 H. L. 653 18 
 
 Aspinalls and Powell, Re (1889), 60 L. T. 595 47 
 
 Attenborough v. Thompson (1857), 2 H. & X. 559; 27 L. J. Ex. 23; 
 
 6 W. R. 135 286 
 
 Att.-Gen v. Day (1749), 1 Ves. Sen. 220 33 
 
 Att.-Gen. v. Ewelme Hospital (1853), 17 Beav. 366 135 
 
 Att.-Gen. v. Jacobs Smith, (1895) 2 Q. B. 341; 64 L. J. Q. B. 605; 
 
 14 R. 531; 72 L. T. 714; 43 W. R. 657; 59 J. P. 468 449 
 
 Att.-Gen. v. Jefferys, (1908) A. C. 411; 77 L. J. Ch. 326; 98 L. T. 
 
 486 478 
 
 Att.-Gen. v. Odell, (1906) 2 Ch. 47; 75 L. J. Ch. 425; 94 L. T. 
 
 659; 54 W. R. 566; 22 T. L. R. 466 649 
 
 Att.-Gen. v. Owen (1805), 10 Ves. p. 560 301 
 
TABLE OF CASES. 
 
 XXV 
 
 PAGE 
 
 Att.-Gen. v. Sitwell (1835), 1 Y. & C. Ex. 559 135 
 
 Attree v. Hawe (1878), 9 Ch. 1). 337; 47 L. J. Ch. 863; 38 L. T. 
 
 733; 26 W. R. 871 510 
 
 Attwater v. Attwater (1853), 18 Beav. 330 498 
 
 Auslerberry v. Corporation of Oldham (1885), 29 Ch. D. 750; 55 
 
 L. J. Ch. 633; 53 L. T. 543; 33 W. R. 807 152 
 
 Austin v. Beddoe (1893), 41 W. R. 619 302 
 
 Auworth v. Johnson (1832), 5 C. & P. 239 313 
 
 Avarne v. Brown (1844), 14 Sim. 303 96 
 
 Aver ill, Re, Salisbury v. Buckle, (1898) 1 Ch. 523; 67 L. J. Ch. 233; 
 
 78 L. T. 320; 46 W. R. 460 387 
 
 Ayles’ Trusts, Re (1875), 1 Ch. D. 282 502 
 
 B. 
 
 Backhouse v. Charlton (1878), 8 Ch. D. 444; 26 W. R. 504 219, 241 
 
 Bacon’s Trusts, Re (1889), 42 Ch. D. 559; 58 L. J. Ch. 823; 61 
 
 L. T. 458 384 
 
 Badcock v. Hunt (1888), 22 Q. B. D. 145; 58 L. J. Q. B. 134; 60 
 
 L. T. 314; 37 W. R. 205 323 
 
 Baggs, Re, (1894) 2 Ch. 416 (n.) ; 38 Sol. Jour. 127 10, 447 
 
 Bagot’s Settlement, Re, (1894) 1 Ch. 177; 63 L. J. Ch. 515; 70 L. T. 
 
 229; 43 W. R, 170; 8 R. 41 447 
 
 Bailey, Re (1879), 1 Curt. 914 469 
 
 Bailey v. Barnes, (1894) 1 Ch. 25; 69 L. T. 542; 42 W. R. 66 122,226 
 
 Baillce & Co., Re (1899), 15 T. L. R. 277 553 
 
 Baily v. De Crespigny (1869), L. R. 4 Q. B. 180; 38 L. J. Q. B. 98... 332 
 Bain v. Fothergill (1873 — 1874), L. R. 7 H. L. 158; 43 L. J. Ex. 
 
 243; 31 L. T. 387 89 
 
 Baker and Selmon’s Contract, (1907) 1 Ch. 238 97 
 
 Baker v. Ambrose, (1896) 2 Q. B. 372; 12 T. L. R. 603 285 
 
 Baker v. Sebright (1879), 13 Ch. D. 179; 41 L. T. 614; 49 L. J. Ch. 
 
 65; 28 W. R. 177 405 
 
 Ballard v. Shutt (1880), 15 Ch. D. 122 71 
 
 Balmanno v. Lumley (1813), 1 V. & B. 224 79 
 
 Bandy v. Cartwright (1853), 8 Ex. 913; 22 L. J. Ex. 285 312 
 
 Banks v. Goodfellow (1870), L. R. 5 Q. B. 549 458 
 
 Barber, Re, Ex parte Stanford (1886), 17 Q. B. D. 259; 55 L. J. Q. B. 
 
 341; 54 L. T. 894; 34 W. R. 507 277, 281 
 
 Barber, In re (1886), 31 Ch. D. 665; 55 L. J. Ch. 373; 54 L. T. 
 
 375; 34 W. R. 395 463 
 
 Bardell v. Daykin (1886), 3 T. L. R. 526 281 
 
 Bargen, Re, Ex parte Hasluck, (1894) 1 Q. B. 444; 63 L. J. Q. B. 
 
 391; 70 L. T. 632; 42 W. R. 424; 1 Manson, 396 271, 280, 289 
 
 Barker v. Illingworth (1908), 77 L. J. Ch. 581; 2 'C'h. 20; 99 L. T. 187... 225 
 
 Barnaby v. Tassel (1870), L. R. 11 Eq. 363 503 
 
 Barnes v. Dowling (1881), 44 L. T. 809 405 
 
XXVI 
 
 TABLE OF CASES. 
 
 PAGE 
 
 Barnett, Ex parte, Re Tamplin (1890), 59 L. J. Q. B. 194; 62 L. T. 
 
 264; 38 W. R. 351 275 
 
 Barnhart v. Greenshields (1853), 9 Moo. P. C. 18 121, 122 
 
 Barr v. Kingsford (1887), 56 L. T. 861 281, 291 
 
 Barrell, Ex parte (1875), 10 Ch. 512 85 
 
 Barrow v. Isaacs, (1891) 1 Q. B. 417; 60 L. J. Q. B. 179; 64 L. T. 
 
 686; 39 W. R. 338; 55 J. P. 517; 7 T. L. R. 175 334, 335, 338,343 
 
 Baskcomb v. Beckwith (1869), L. R. 8 Eq. 100 47 
 
 Baskerville, Re, (1910) 2 Ch. 329 302 
 
 Bastable, Re, Ex parte The Trustee, (1901) 2 K. B. 518; 70 L. J. 
 
 K. B. 784; 84 L. T. 825; 49 W. R. 561; 8 Manson, 239 85 
 
 Batchelor v. Bigger (1889), 60 L. T. 416 324 
 
 Batchelor v. Yates (1888), 38 Ch. D. 112; 57 L. J. Ch. 697; 58 
 
 L. T, 47; 36 W. R. 563 271 
 
 Bateman v. Hunt, (1904) 2 K. B. 530; 73 L. J. K. B. 782; 91 L. T. 
 
 331; 52 W. R. 609 179 
 
 Bates v. Kesterton, (1896) 1 Ch. 159; 65 L. J. Ch. 108; 73 L, T. 
 
 656; 44 W. R. 150 15 
 
 Battison v. Hobson, (1896) 2 Ch. 403; 65 L. J. Ch. 695; 74 L. T. 
 
 689; 44 W. R. 150 193 
 
 Bay ley Worthington, Re, (1908) A. C. 97 518 
 
 Bayley -Worthington and Cohen’s Contract, Re, (1909) 1 Ch. 648; 78 
 
 L. J. Ch. 351; 100 L. T. 650; (1909) W. N. 68 70 
 
 Baylis, Re, (1907) 2 Ch. 54; 76 L. J. Ch. 358; 96 L. T. 812 554 
 
 Baylis v. Jiggens, (1898) 2 Q. B. 315; 67 L. J. Q. B. 793; 79 L.T.78... 324 
 Baynes v. Lloyd, (1895) 2 Q. B. 610; 64 L. J. Q. B. 411; 72 L.‘T. 
 
 505; 43 W. R. 524 311 
 
 Beachey, Re, Pleaton v. Beachey, (1904) 1 Ch. 67; 73 L. J. Ch. 68; 
 
 89 L. T. 685; 52 W. R. 309 257 
 
 Beales v. Tennant (1860), 6 Jur. 628; 29 L. J. Q. B. 188; 1 L. T. 295... 280 
 
 Beavan v. McDonnell (1854), 9 Exch. 309 10 
 
 Bebb v. Bunny (1854), 1 K. & J. 216 70 
 
 Beck, Re, Cartington’s Estate (1882), 24 Ch. D. 608; 52 L. J. Ch. 815; 
 
 49 L. T. 95; 31 W. R. 910 542,543,544,547 
 
 Beckett v. Tower Assets Co., (1891) 1 Q. B. 638; 60 L. J. Q. B. 493; 
 
 64 L. T. 497; 39 W. R. 438 266 
 
 Beere v. Hutchinson-Hoffmister (1856), 23 Beav. 103 534 
 
 Belcher v. Mackintosh (1839), 2 M. & R. 186; 8 C. & P. 720 328 
 
 Belfour v. Weston (1786), 1 Term Rep. 310; 99 E. R. 1112 322 
 
 Bell v. Balls, (1897) 1 Ch. 663; 66 L. J. Ch. 397; 76 L. T. 254 59 
 
 Bell v. Holtby (1873), L. R. 15 Eq. 178; 42 L. J. Ch. 266; 28 
 
 L. T. 9; 21 W. R. 321 518 
 
 Bell v. Phyn (1802), 7 Ves. 459 512 
 
 Bellamy v. Brickenden (1861), 3 J. & H. 137; 70 E. R. 1002 245 
 
 Bellamy v. Debenham, (1891) 1 Ch. 412; 60 L. J. Ch. 166; 63 L. T. 
 
 220; 39 W. R. 257 37^,70 
 
 Bellamy v. Metropolitan Board of Works ,(1882), 24 Ch. D. 387 ; 53 
 
 L. J. Ch. 174; 49 L. T. 708 168 
 
 Benbow v. Townsend (1833), 1 M. & K. 506 & 
 
TABLE OF CASES. 
 
 XXV 11 
 
 PAGE 
 
 Bence v. Gilpin (1868), L. R. 3 Ex. 76; 37 L. J. Ex. 36; 17 L. T. 
 
 655; 16 W. R, 705 175 
 
 Bendy, Re, Wallis v. Bendy, (1895) 1 Ch. 109; 64 L. J. Ch. 170; 71 
 
 L. T. 750; 43 W. R. 345 378 
 
 Bennett v. Stone, (1903) 1 Ch. 509; 72 L. J. Ch. 240; 88 L. T. 35; 
 
 51 W. R. 338; (1903) W. N. 22 71 
 
 Bennett v. Womack (1828), 7 B. & C. 627 313, 319 
 
 Benson v. Lamb (1846), 9 Beav. 502 128 
 
 Benyon v. Benyon (1810), 17 Ves. 34 492 
 
 Bernasconi v. Atkinson (1853), 10 Hare, 345 481 
 
 Berridge v. Ward (1861), 10 0. B. N. S. 400; 30 L. J. C. P. 218; 
 
 7 Jur. 876 136 
 
 Berry v. Berry (1861), 3 Giif. 134 503 
 
 Berwick & Co. v. Price, (1905) 1 Ch. 632; 74 L. J. Ch. 249; 92 
 
 L. T. 110 120 
 
 Bessell v. Landsberg (1845), 7 Q. B. 638; 14 L. J. Q. B. 355 364 
 
 Beyfus and Masters’ Contract, Re (1888), 39 Ch. D. 110 41, 64 
 
 Bianchi v. Offord (1886), 17 Q. B. D. 484; 55 L. J. Q. B. 486 282 
 
 Bickerton v. Walker (1885), 31 Ch. D. 151; 55 L. J. Ch. 227 254 
 
 Bidlake v. Arundel (1636), 1 Ch. R. 50 109 
 
 Biggs v. Hoddinott, (1898) 2 Ch. 307; 67 L. J. Ch. 540; 79 L. T. 
 
 201; 47 W. R. 84; 14 T. L. R. 504 216 
 
 Binning v. Binning (1895), 13 R. 654 503 
 
 Birch v. Wright (1884), 1 T. L. R. 378 234 
 
 Bircham & Co., Re, (1895) 2 Ch. 786; 64 L. J. Ch. 768; 73 L. T. 
 
 829; 43 W. R. 673 552 
 
 Bird v. Baker (1858), 1 El. & El. 12; 28 L. J. Q. B. 7 309 
 
 Bird v. Davey, (1891) 1 Q. B. 29; 60 L. J. Q. B. 8; 39 W. R. 40... 277, 282 
 
 Bird v. Greville (1884), 1 Cab. & Ell. 317 315 
 
 Birmingham District Land Co. and Allday, Re, (1893) 1 Ch. 342; 62 
 
 L. J. Ch. 90; 67 L. T. '850; 41 W. R* 189; 9 T. L. R. 31 151 
 
 Bishop & Sons v. Beale (1884), 1 T. L. R. 140 277, 280 
 
 Bishop v. Taylor & Co. (1891), 60 L. J. Q. B. 556; 64 L. T. 529; 
 
 39 W. R. 542 320 
 
 Bishop of St. Albans v. Battersby (1878), 3 Q. B. D. 359; 47 L. J. 
 
 Q. B. 571 336 
 
 Bishop of Winchester v. Paine (1805), 11 Ves. 194; 32 E. R. 1062 156 
 
 Blacklow v. Laws, 2 Hare, 40 66 
 
 Blackman v. Fysh (1891), 60 L. J. Ch. 666 498 
 
 Blackwell v. Bull (1836), 5 L. J. Ch. 251 505 
 
 Bladon, Re, (1911) 2 Ch. 350; 105 L. T. 367; 28 T. L. R, 57 425 
 
 Blagrave’s Settled Estates, (1903) 1 Ch. 560; (1903) W. N. 45 433 
 
 Blaiberg and Abrahams’ Contract, Re, (1899) 2 Ch. 340; 81 L. T. 75... 213 
 
 Blaiberg v. Beckett (1886), 18 Q. B. D. 96; 56 L. J. Q. B. 35; 55 
 
 L. T. 876; 35 W. R. 34 281 
 
 Blaiberg v. Parsons (1886), 17 Q. B. D. 336 281 
 
 Bland, Re, (1899) 2 Ch. 336 476 
 
 Bland’s Settlement, Re, (1905) 1 Ch. 4; 74 L. J. Ch. 28; 91 L. T. 681... 378 
 Blankenstein v. Robertson (1890), 24 Q. B. D. 543; 59 L. J. Q. B. 
 
 315; 61 L. T. 732 279 
 
XXV111 
 
 TABLE OF CASES. 
 
 PAGE 
 
 Blann v. Bell (1852), 5 De G. & Sm. 658 476 
 
 Blount v. Harris. (1878), 4 Q. B. D. 603; 48 L. J. Q. B. 159; 46 
 
 L. T. 641; 27 W. R. 202 286 
 
 Blower, Re (1871), 6 Ch. App. 351; 42 L. J. Ch. 24; 25 L. T. 181; 
 
 19 W. R. 666 504 
 
 Bloxam v. Favre (1884), 9 P. D. 130 460 
 
 Blyth v. Dennett (1853), 13 0. B. 138; 22 L. J. C. P. 79 366 
 
 Boase v. Jackson (1822), 3 B. & B. 185 368 
 
 Boddington v. Clairat (1883), 22 Ch. D. 597; 25 Ch. D. 685 501 
 
 Bodger v. Bodger (1862), 11 W. R. 160 251 
 
 Bodman v. Bodman, (1891) 3 Ch. 135; 61 L. J. Ch. 31; 40 W. R. 60... 510 
 
 Boehm, In the goods of, (1891) P. 247; 64 L. T. 806; 39 W. R. 576... 
 
 482, 483 
 
 Boles, Re, (1902) 1 Ch. 244; 71 L. J. Ch. 130; 85 L, T. 607; 50 
 
 W. R, 185 30 
 
 Holland, Ex parte, Re Roper (1882), 21 Ch. D. 543; 52 L. J. Ch. 113; 
 
 47 L. T. 488; 31 W. R. 102 273 
 
 Bolton v. London School Board (1878), 7 Ch. D. 766; 47 L. J. Ch. 461; 
 
 38 L. T. 277; 26 W. R. 549 52, 132 
 
 Bonnett v. Sadler (1808), 14 Yes. 526 335 
 
 Bonnewell v. Jenkins (1877), 8 Ch. D. 70 38 
 
 Boraston’s Case (1587), Tud. Con. Cases, 809 (1879 ed.); 3 Co. 19 a 494 
 
 Born v. Turner, (1900) 2 Ch. 211; 69 L. J. Ch. 593; 83 L, T. 
 
 148; 48 W. R. 697 224, 226 
 
 Boswell v. Coaks (1883), 23 Ch. D. 302, affd. H. L. S. N4 29 
 
 Bothamlejr v. Sherson (1875), L. R. 20 Eq. 304; 35 L. J. Ch. 589; 
 
 33 L. T. 150; 23 W. R. 848 464, 466 
 
 Bouchette v. Attenborough (1887), 3 T. L. R. 813 278 
 
 Boughton v. James (1844), 1 Coll. 26; 1 H. L. C. 406 474 
 
 Bourne v. Brandreth (1888), 58 L. T. 437 509 
 
 Bourne v. Salmon and Gluckstein, Ltd., (1909) 1 Ch. 616 323 
 
 Bourne v. Wall (1891), 64 L. T. 530; 39 W. R. 516 281 
 
 Bousfield v. Hodges (1863), 33 Beav. 90 123 
 
 Bovill v. Endle, (1896) 1 Ch. 648; 44 W. R. 525 217 
 
 Bowen, Re, (1893) 2 Ch. 491; 62 L. J. Ch. 681; 61 L. T. 789; 
 
 41 W. R. 535 458 
 
 Bowen v. Anderson, (1894) 1 Q. B. 164; 10 R. 47; 58 J. P. 213; 42 
 
 W. R. 236 314, 367 
 
 Bowker v. Austin, (1894) 1 Ch. 556; 63 L. J. Ch. 205 456 
 
 Bowlby, Re, (1904) 2 Ch. 685; 73 L. J. Ch. 810; 91 L. T. 573; 
 
 53 W. R. 270.... 386 
 
 Bowles v. Round, 3 Yes. 508 44 
 
 Bowman v. Hyland (1878), 8 Ch. D. 588; 47 L. J. Ch. 581; 39 L. T. 
 
 90; 26 W. R. 876 68 
 
 Boydell v. Drummond (1809), 11 East, 142 36 
 
 Boycs v. Cook (1881), 14 Ch. D. 53; 49 L. J. Ch. 350; 42 L. T. 552; 
 
 * 28 W. R. 754 486 
 
 Boyle v. Bishop of Peterborough (1791), 1 Ves. jun. 299 530 
 
 Brace v. Duchess of Marlborough (1728), 2 P. Wms. 491; Moo. 50; 
 
 24 E. R, 829; 25 E. R. 264 247, 248 
 
TABLE OF CASES. 
 
 XXIX 
 
 PAGE 
 
 Bradley v. Carritt, (1903) A. C. 253; (1903) W. N. 92 201, 210 
 
 Bradley v. Peixoto, Tud. Con. Cases (4th ed.), 514; 3 Ves. 324 498 
 
 Bradshaw v. Huish (1889), 43 Ch. D. 260; 59 L. J. Ch. 135; 62 L. T. 
 
 52; 38 W. R. 199 469, 492 
 
 Brail, Re, (1893) 2 Q. B. 381; 62 L. J. Q. B. 457; 69 L. T. 323; 41 
 
 W. R. 623; 10 Morrell, 166 453 
 
 Bramley, In the goods of, (1902) P. 106; 71 L. J. P. 32 508 
 
 Bramwell v. Lucy (1879), 10 Ch. D. 691; 48 L. J. Ch. 339 ; 40 L. T. 
 
 361; 27 W. R. 463 335 
 
 Brandon v. Robinson (1811), 18 Ves. 429 382, 499 
 
 Brandt v. Dunlop Rubber Co., (1905) A. C. 454; 74 L. J. K. B. 898; 
 
 93 L. T. 495; 21 T. L. R. 710 179 
 
 Brantom v. Griffits and others (1877), 2 C. P. D. 212; 46 L. J. C. P v 
 
 408; 41 L. T. 434; 29 W. R. 313 265 
 
 Bray v. Bree (1834), 2 Cl. & F. 453 530 
 
 Brett v. Rogers, (1897) 1 Q. B. 505; 76 L. T. 26; 66 L. J. Q. B. 287... 324 
 
 Brewer and Ilankin’s Contract (1889), 80 L. T. 127 45 
 
 Brewer v. Brown (1884), 28 Ch. D. 309; 54 L. J. Ch. 605 42 
 
 Bridge v. Abbott (1791), 3 B. C. C. 224; 29 E. R. 502 506 
 
 Bridger, Re, Brompton Hospital v. Lewis, (1894) 1 Ch. 297 ; 63 L. J. 
 
 Ch. 186; 70 L. T. 204; 42 W. R. 179; 7 R. 78; 10 T. L. R. 153 25 
 
 Briggs and Spicer, Re, (1891) 2 Ch. 127 ; 64 L. T. 187 ; 60 L. J. Ch. 
 
 514; 39 W. R. 377 118 
 
 Briggs v. Pike (1892), 61 L. J. Q. B. 418; 66 L. T. 637 281 
 
 Bright v. Campbell (1889), 41 Ch. D. 388; 54 L. J. Ch. 1077; 53 
 
 L. T. 428 212 
 
 Bristol’s (Marquis of) Settled Estates, Re, (1893) 3 Ch. 161; 62 L. J. 
 
 Ch. 901; 69 L. T. 304; 42 W. R. 46 433 
 
 Bristowe v. Warde (1794), 2 Ves. 336; 30 E. R. 660 530 
 
 Britain v. Rossiter (1879), 11 Q. B. D. 123 39 
 
 British Investment Co. v. Cobbold (1875), L. R. 19 Eq. 627 ; 42 L. J. 
 
 Ch, 332; 32 L. T. 251; 23 W. R. 687 100 
 
 British S. A. Co. v. De Beers Consolidated Mines, (1910) 1 Ch. 354; 
 
 79 L. J. Ch. 345; 102 L, T. 95; 17 Manson, 190; 26 T. L. R. 285.. 216 
 
 Broderick, Ex parte, In re Beetham (1887^), 18 Q. B. D. 766 34,250 
 
 Brooke, Re, Brooke v. Brooke, (1894) 2 Ch. 647; 64 L. J. Ch. 21; 
 
 71 L. T. 398 270, 271 
 
 Brooke and Fremlin’s Contract, Re, (1898) 1 Ch. 647; 67 L. J. Ch. 
 
 272; 78 L. T. 416; 46 W. R. 442 12 
 
 Brooke v. Pearson (1859), 27 Beav. 181; 54 E. R. 70; 7 W. R. 638 382 
 
 Brookes v. Drysdale (1877), 3 C. P. D. 52; 37 L. T. 47; 26 W. R. 331... 
 
 319, 320 
 
 Broom v. Phillips (1896), 74 L. T. 459 41 
 
 Broun v. Kennedy (1863), 33 Beav. 133 31 
 
 Brown and Sibly’s Contract, Re (1876), 3 Ch. D. 156 125 
 
 Brown v. Cole (1845), 14 Sim. 427 215 
 
 Brown v. London and County Advance Co. (1889), 5 T. L. R. 199 287 
 
 Brown v. Mitchell (1910), S. C. 369 353 
 
 Brown v. Nisbett (1750), 1 Cox, 13 533 
 
XXX 
 
 TABLE OF CASES. 
 
 PAGE 
 
 Brown v. Quilter (1764), Amb. 619; 6 Eden, 210 314 
 
 Brown v. Ryan, (1901) 2 I. R. 653 216 
 
 Brown v. Skirrow, (1902) P. 3 462 
 
 Browne v. Collins (1890), 62 L. T. 566 440 
 
 Browne v. Flower, (1911) 1 Ch. 219; 80 L. J. Ch. 181; 103 L. T. 
 
 557; 55 S. J. 108 349 
 
 Browne v. Lockhart (1840), 10 Sim. 420; 59 E. R. 678; 9 L. J. 
 
 Ch. 167 217 
 
 Browne v. Peto, (1900) 2 Q. B. 653 234 
 
 Bruce, Re, (1905) 2 Ch. 372; 74 L. J. Ch. 578; 93 L, T. 119: 54 
 
 W. R. 60 423 
 
 Bruce v. Marquis of Ailesbury, (1892) A. C. 356; 52 L. J. Ch. 95; 
 
 67 L. T. 490; 41 W. R. 318; 8 T. L. R. 787 413,440 
 
 Brudenell v. Elwes (1801), 1 East, 442; 7 Yes. 382; 102 E. R. 171... 530, 533 
 
 Bruen’s Estate, Re, (1911) 1 Ir. R. 76 441 
 
 Bryant and Barningham’s Contract, Re (1890), 44 Ch. D. 218; 59 
 
 L. J. Ch. 636 97 
 
 Brydone’s Settlement, Re, Cobb v. Blackburne, (1903) 2 Ch. 84 385 
 
 Bubb v. Yelverton (1871), L. R. 13 Eq. 131 507 
 
 Buchner v. Keith, 15 O. B. N. S. 40 166 
 
 Buckland v. Buckland, (1900) 2 Ch. 534; 69 L. J. Ch. 648; 82 L. T. 
 
 759; 48 W. R. 637; 16 T. L. R. 487 375 
 
 Buckle, Re, Williams v. Marson, (1894) 1 Ch. 286; 63 L. J. Ch. 330; 
 
 70 L. T. 115; 42 W. R. 229; 7 R. 72 471 
 
 Buckle v. Fredericks (1890), 44 Ch. D. 244; 62 L. T. 884; 38 
 W. R. 742 337 
 
 Budd-Scott v. Daniel, (1902) 2 K. B. 351; 71 L. J. K. B. 706; 87 
 
 L. T. 392; 51 W. R. 134 312 
 
 Bull v. Hutchins (1863), 32 Beav. 615 156 
 
 Bull v. Pritchard (1846), 5 Hare, 567 494 
 
 Bullmore v. Wynter (1883), 22 Ch. D. 619; 52 L. J. Ch. 456; 48 
 
 L. T. 309 501 
 
 Bullock, Re, Ex parte Ward, (1899) 2 Q. B. 517; 68 L. J. Q. B. 953... 281 
 
 Bullock v. Dommitt (1796), 6 T. R. 650 328 
 
 Bullock v. Downes (1860), 9 H. L. Cas. 1; 11 E. R. 627 506 
 
 Bulmer v. Hunter (1869), L. R. 8 Eq. 46; 38 L. J. Ch. 543; 20 
 
 L. T. 942 450 
 
 Bulwer Lytton’s Will, Re (1888), 38 Ch. D. 20; 57 L. J. Ch. 340; 
 
 36 W. R. 420 426 
 
 Burch el l v. Wilde, (1900) 1 Ch. 551; 69 L. J. Ch. 314; 82 L. T. 576; 
 
 48 W. R. 491; W. N. (1900) 29 183 
 
 Burd v. Burd (1889), 40 Ch. D. 628; 58 L. J. Ch. 170; 37 W. R. 428; 
 
 60 L. T. 228 544, 550 
 
 Burdekin, Re, (1895) 2 Ch. 136; 64 L. J. Ch. 561; 72 L. T. 639; 43 
 
 W. R. 534; 12 R. 243 544, 552 
 
 Burdett, Re, Ex parte Byrne (1888), 20 Q. B. D. 310; 57 L. J. Q. B. 
 
 263; 58 L. T. 708; 36 W. R. 128 239 
 
 Burke, Re, (1908) 2 Ch. 248; 77 L. J. Ch. 597; 99 L. T. 86 387 
 
TABLE OF CASES. 
 
 XXXI 
 
 TAGE 
 
 Burlinson v. Hall (1884), 12 Q. B. D. 347; 53 L. J. Q. B. 222; 50 
 
 L. T. 723; 32 W. E. 492 178 
 
 Burnaby’s Settled Estates, Re (1889), 42 Ch. D. 621; 58 L. J. Ch. 
 
 664; 61 L. T. 22 405 
 
 Burnaby v. Equitable, &c. Society (1885), 54 L. J. Ch. 466 66 
 
 Burroughs, Re, Lynn and Sexton (1877), 5 Ch. D. 601; 46 L. J. Ch. 
 
 528; 36 L. T. 778 125 
 
 Burrow’s Trusts, Re (1864), 10 L. T. 184 501 
 
 Burt v. Gray, (1891) 2 Q. B. 98; 65 L. T. 229; 39 W. R. 420; 60 
 
 L. J. Q. B. 664 341 
 
 Bury v. Thompson, (1895) 1 Q. B. 696; 64 L. J. Q. B. 500; 72 L. T. 
 
 187; 43 W. R. 338 336 
 
 Butcher v. Jackson (1845), 14 Sim. 444 534 
 
 Butler, Re, Le Bas v. Herbert, (1894) 3 Ch. 250; 63 L. J. Ch. 662; 43 
 
 W. R. 190; 8 R. 504 466 
 
 Button v. O’Neil (1879), 4 C. P. D. 354; 48 L. J. C. P. 368; 40 
 
 L. T. 799; 27 W. R. 592 286 
 
 Byrom v. Brandreth (1873), L. R. 16 Eq. 475 508 
 
 C. 
 
 Caballero v. Henty (1874), L. R. 9 Ch. App. 447; 43 L. J. Ch. 635; 
 
 30 L. T. 314; 22 W. R. 416 62 
 
 Cadell v. Palmer (1833), Tud. Con. Cases, 424, 1879 ed.; 1 Clark & 
 
 Finnelly, 372 529 
 
 Cadogan, Re (1883), 25 Ch. D. 154; 53 L. J. Ch. 207; 49 L. T. 666; 
 
 32 W. R. 57 508 
 
 Caine, Re (1883), 10 Q. B. D. 284; 52 L. J. Q. B. 354; 48 L. T. 357... 14 
 
 Calcott and Elvin’s Contract, Re, (1908) 2 Ch. 460; 67 L. J. Ch. 553; 
 
 78 L. T. 826; 46 W. R. 673; 5 Manson, 208 188 
 
 Caledonian Railway Co. v. North British Railway Co. (1881), 6 A. C. 
 
 131; 29 W. R. 685 480 
 
 Callow' v. Callow (1889), 42 Ch. D. 559; 58 L. J. Ch. 698; 38 
 
 W. R. 104 508 
 
 Calverley’s Settled Estates, Re, (1904) 1 Ch. 150; 73 L. J. Ch. 25; 89 
 
 L. T. 500; 52 W. R. 206 433 
 
 Calvert v. Thomas and Lloyd (1887), 19 Q. B. D. 204; 56 L. J. Q. B. 
 
 470; 57 L. T. 441; 35 W. R. 616 280 
 
 Cameron and Wells, Re (1887), 37 Ch. D. 32; 57 L. J. Ch. 69; 
 
 57 L. T. 645; 36 W. R. 5 449 
 
 Camfield v. Gilbert (1803), 3 East, 516 464, 508 
 
 Campbell’s Policies, Re (1877), 6 Ch. D. 686; 46 L. J. Ch. 686; 
 
 25 W. R. 268 379 
 
 Campbell v. Hooper (1855), 3 Sm. & G. 153 8, 202 
 
 Campbell v. Walker (1800), 5 Ves. 678, 682; 13 Ves. 601 29 
 
 Cann, In re (1884), 13 Q. B. D. 36 284 
 
 Cannan v. Hartley (1850), 9 C. B. 634; 19 L. J. C. P. 323 364 
 
 Cannon Brewery v. Nash (1898), 77 L. T. 648 310 
 
XXX11 
 
 TABLE OF CASES. 
 
 PAGE 
 
 Capital and Counties Bank v. Rhodes, (1903) 1 Ch. 631; 73 L. J. Ch. 
 
 336; 88 L. T. 255; 51 W. R. 470 603, 617 
 
 Cardigan v. Curzon-IIowe (1885), (1), 30 Ch. D. 629; 55 L. J. Ch. 71; 
 
 53 L. T. 704; 33 W. R. 836 441 
 
 Carlish v. Salt, (1906) 1 Ch. 335; 75 L. J. Ch. 175; 94 L. T. 58; 
 
 54 W. R, 244 43, 44 
 
 Carne’s Settled Estates, Re, (1899) 1 Ch. 324 414 
 
 Carpenter v. Buller (1841), 8 M. & W. 213 131 
 
 Carpenter v. Deen (1889), 23 Q. B. D. 566; 61 L. T. 860; 5 
 
 T. L. R. 647 275 
 
 Carpenter v. Parker (1857), 3 C. B. N. S. 206 347 
 
 Carr v. Anderson, (1903) 2 Ch. 279; (1903) W. 1ST. 77 17 
 
 Carr v. Lynch, (1906) 1 Ch. 613; 69 L. J. Ch. 345; 82 L. T. 381; 
 
 48 W. R. 616 35 
 
 Carter and Ellis, Re, (1905) 1 Iv. B. 735; 74 L. J. K. B. 442; 92 L. T. 
 
 523; 53 W. R. 433; 12 Manson, 118; 21 T. L. R. 334— C. A 243 
 
 Carter and Ivenderdine’s Contract, Re, (1897) 1 Ch. 776; 66 L. J. Ch. 
 
 40'8 ; 76 L. T. 476; 45 W. R. 484 118, 453 
 
 Carter v. Palmer (1842), 8 Cl. & Fin. 659 31 
 
 Carter v. Wake (1877), 4 Ch. D. 606; 46 L. J. Ch. 841 219 
 
 Cartwright, Re, Avis v. Newman (1889), 41 Ch. D. 532; 58 L. J. Ch. 
 
 590 ; 60 L. T. 891; 37 W. R. 612; 5 T. L. R. 482 405 
 
 Cartwright v. Regan, (1895) 1 Q. B. 900; 64 L. J. Q. B. 507; 43 
 
 W. R. 600 .281, 291 
 
 Casement v. Fulton (1845), 5 Moo. P. C. 139 462 
 
 Casson v. Churchley (1884), 53 L. J. Q. B. 335; 50 L. T. 568 272 
 
 Casson v. Dade (1781), 1 Bro. Ch. 99 462 
 
 Castellain v. Preston (1883), 11 Q. B. D. 380; 52 L. J. Q. B. 366; 
 
 49 L. T. 29; 30 W. R, 597 83 
 
 Castle v. Fox (1871), L. R. 11 Eq. 542; 40 L. J. Ch. 302; 24 L. T. 
 
 536; 19 W. R. 840 484 
 
 Castle v. Wilkinson (1870), L. R. 5 Ch. App. 534 46 
 
 Cater’s Trusts, Re (1858), 25 Beav. 361; 53 E. R. 674 515 
 
 Cathcart v. Chalmers, 80 L. J. P. C. 143; (1911) A. C. 246; 104 
 
 L T. 355 353 
 
 Catling v. King (1877), 5 Ch. D. 660; 46 L. J. Ch. 384; 36 L. T. 
 
 526; 25 W. R. 550 36 
 
 Cato v. Thompson (1882), 9 Q. B. D. 616 46, 61, 148 
 
 Catt v. Tourle (1869), L. R. 4 Ch. App. 654; 38 L. J. Ch. 665; 20 
 
 L. T. 551; 17 W. R. 662 337 
 
 Cattell v. Corral (1840), 4 Y. & C. 228 96, 97 
 
 Cavalier v. Pope, (1906) A. C. 428 314 
 
 Cave v. Cave (1880), 15 Ch. D. 639 123 
 
 Cavendish and Arnold’s Contract, Re (1912), 56 S. J. 468 28 
 
 Central Bank v. Hawkins (1890), 62 L. T. 901 285 
 
 Chamberlain, v. Lee (1840), 10 Sim. 450 96 
 
 Chancellor, Re, Chancellor v. Brown (1884), 26 Ch. D. 42; 53 L. J. Ch. 
 
 443; 51 L. T. 33; 32 W. R. 465 475 
 
 Chancey’s Case (1717), 1 P. W. 208 469, 492 
 
 Chapman and Hobbs, Re (1885), 29 Ch. D. 1007 526 
 
 Chapman v. Browne, (1902) 1 Ch. 785; 71 L. J. Ch. 465; 86 L. T. 
 
 744; 18 T. L. R. 482 205 
 
TABLE OF CASES. XXxiii 
 
 PAGE 
 
 Chapman v. Reynolds (I860), 28 Beav. 221 508 
 
 Chappie, Re, Newton v. Chapman (1884), 27 Ch. D. 584 394 
 
 Charing Cross Bank, Ex parte, Re Parker (1880), 16 Ch. D. 35; 50 
 
 L. J. Ch. 157; 44 L. T. 113; 29 W. R. 204 284 
 
 Charlesworth v. Mills, (1892) A. C. 235 263, 264, 266, 269 
 
 Charter v. Charter (1874), L. R. 7 H. L. 364 481 
 
 Chatfield v. Ruston (1825), 3 B. & C. 863 323 
 
 Chawner’s Settled Estates, Re, (1892) 2 Ch. 192; 61 L. J. Ch. 331; 
 
 66 L. T. 745; 40 W. R. 538; 8 T. L. R. 466 418 
 
 Chaytor, Re, (1900) 2 Ch. 804; 69 L. J. Ch. 837; 49 W. R. 125 421 
 
 Chesham, Re, (1909) 2 Ch. 329; 78 L. J. Ch. 692; 101 L. T. 9; 
 
 25 T. L. R. 657 411 
 
 Chesworth v. Hunt (1880), 5 C. P. D. 266; 49 L. J. C. P. 507; 42 
 
 L. T. 774; 28 W. R. 815 220 
 
 Cholditch v. Jones, (1896) 1 Ch. 42; 65 L. J. Ch. 83; 73 L. T. 528; 
 
 44 W. R. 124; 59 J. P. 793 542, 544, 549, 552 
 
 Cholmeley School v. Sewell, (1894) 2 Q. B. 906; 63 L. J. Q. B. 820; 
 
 71 L. T. 88; 58 J. P. 591; 10 R. 368 341 
 
 Christian v. Devereux (1841), 12 Sim. 264 507 
 
 Church v. Brown (1808), 15 Ves. 258 320 
 
 Church v. Sage (1892), 67 L. T. 800; 41 W. R. 175 269 
 
 Churton v. Douglas (1859), 1 John. 174 182 
 
 Clack v. Carlon (1861), 7 Jur. N. S. 441; 30 L. J. Ch. 639; 4 L. T. 
 
 361; 9 W. R. 568 394 
 
 Clanricarde v. Plenning, 50 L. J. Ch. 865 32 
 
 Clare v. Dobson, (1911) 1 K. B. 35; 80 L. J. K. B. 158; 103 L. T. 
 
 506; 27 T. L. R. 22 329 
 
 Clark v. Balm Hill, (1908) 1 K. B. 667; 77 L. J. K. B. 369; 15 
 
 Manson, 42 268 
 
 Clarke, Re (1864), 3 De G. J. & S. 14 503 
 
 Clarke’s Settlement, Re, (1902) 2 Ch. 327; (1902) W. N. 102 433 
 
 Clarke v. Chamberlain (1880), 16 Ch. D. 176; 29 W. R. 415 518 
 
 Clarke v. Ramuz, (1891) 2 Q. B. 456; 60 L. J. Q. B. 679; 65 L. T. 
 
 657 82, 84 
 
 Clarkson v. Henderson (1880), 14 Ch. D. 348; 49 L. J. Ch. 289; 43 
 
 L. T. 29; 28 W. R. 907 212 
 
 Clarkson v. Robinson, (1900) 2 Ch. 722 394 
 
 Clarkson v. Woodhouse (1783), 5 T. L. R. 412 105 
 
 Clay and Tetley, Re (1880), 16 Ch. D. 3; 50 L. J. Ch. 164; 43 L. T. 
 
 402; 29 W. R. 5 26 
 
 Clay v. Clay (1885), 33 W. R. 516 507 
 
 Clayton’s Case (1585), 1 Mer. 572; 5 Coke, la; 35 E. R. 781 309 
 
 Clayton and Barclay’s Contract, Re, (1895) 2 Ch. 212; 64 L. J. Ch. 
 
 615; 72 L. T. 764; 43 W. R. 549 161 
 
 Clayton v. Blakey (1798), 8 T. L. R. 3; 4 R. R. 57 5 307 
 
 Clayton v. Leech (1889), 41 Ch. D. 103; 61 L. T. 69; 37 W. R. 663... 45, 64 
 Clayton v. Lord Wilton (1817), 3 Madd. 302; 56 E. R. 516; 6 M. & S. 
 
 67; 105 E. R. 1167 449 
 
 G. — C. 
 
 e 
 
XXXIV 
 
 TABLE OF CASES. 
 
 PAGE 
 
 Cleaver, Re, Rawlings, Ex parte (1880), 18 Q. B. D. 489; 56 L. J. 
 
 Q. B. 197; 56 L. T. 593; 35 W. R. 281 280, 281 
 
 Clegg v. Hands (1890), 44 Ch. D. 503; 59 L. J. Ch. 477; 62 L. T s 
 
 502; 38 W. R. 433; 55 J. P. 180; 6 T. L. R. 233 318, 319 
 
 Cleveland’s Settled Estates, Re, (1902) 2 Ch. 350; 71 L. J. Ch. 763; 
 
 86 L. T. 678; 50 W. R. 508; 18 T. L. R. 610 428 
 
 Clifford, Re, Mallam v. McFie, (1912) 1 Ch. 29; 81 L. J. Ch. 220; 
 
 106 L. T. 14; 28 T. L. R. 57 466, 484 
 
 Climpson v. Coles (1889), 23 Q. B. D. 465; 58 L. J. Q. B. 346; 61 
 
 L. T. 116; 38 W. R. 110 221 
 
 Clinan v. Cooke (1802), 1 Sch. & Lef. 40 40 
 
 Clough v. Samuel, (1905) A. C. 442; 74 L. J. K. B. 918; 93 L. T. 
 
 491; 54 W. R. 114; 21 T. L. R. 702; H. L. (E.), affirming 11 
 
 Mans. 229— C. A 452 
 
 Cloutte v. Storey, (1911) 1 Ch. 18; 80 L. J. Ch. 193; 103 L. T. 617... 534 
 
 Clowes, Re, (1893) 1 Ch. 214; 68 L. T. 395; 41 W. R. 69 484 
 
 ' Coaks v. Boswell (1886), 11 App. Cas. 232 30 
 
 Coard v. Holderness (1855), 20 Beav. 147 464, 507 
 
 Coates v. Moore, (1903) 2 Iv. B. 140; 72 L. J. K. B. 539: 89 L. T. 8; 
 
 51 W. R. 648 272, 279, 285 
 
 Coates to Parsons, Re (1886), 34 Ch. D. 370; 56 L. J. Ch. 242; 56 
 
 L. T. 16; 35 W. R. 375 395 
 
 Coatsworth v. Johnson (1886), 55 L. J. Q. B. 220; 54 L. T. 520 342 
 
 Cochrane v. Entwistle (1887), 25 Q. B. D. 116; 59 L. J. Q. B. 418; 
 
 62 L. T. 852; 38 W. R. 587 278 
 
 Cochrane v. Moore (1890), 25 Q. B. D. 57; 59 L. J. Q. B. 377; 63 
 
 L. T. 153; 38 W. R. 588; 54 J. P. 804; 6 T. L. R. 296 3, 263 
 
 Cock, Re, Ex parte Shilson (1887), 57 L. J. Q. B. 169 243 
 
 Cockburn v. Edwards (1881), 18 Ch. D. 449; 51 L. J. Ch. 46; 45 
 
 L. T. 506 228 
 
 Coghlan, Re, (1894) 3 Ch. 76 379 
 
 Cohen v. Mitchell (1890), 25 Q. B. D. 262; 59 L. J. Q. B. 409; 63 
 
 L. T. 206; 38 W. R. 551; 7 Morrell, 207; 6 T. L. R. 326 161 
 
 Cohen v. Tannar, (1900) 2 Q. B. 609; 83 L. T. 64; 48 W. R. 642 347 
 
 Cohen’s Executors, Re, (1902) 1 Ch. 187 87 
 
 Coleman v. Coleman (1898), 79 L. T. 66 102 
 
 Coleridge’s Settlement, Re, (1895) 2 Ch. 704; 73 L. T. 206; 44 
 
 W R. 59 428 
 
 Coles v. Coles, (1901) 1 Ch. 711; 70 L. J. Ch. 324; 34 L. T. 142; 
 
 (1901) W. N. 97 378 
 
 Coles v. Trecothick (1804), 9 Ves. at p. 247 30 
 
 Collinge’s Settled Estates, Re (1887), 36 Ch. D. 516; 57 L. J. Ch. 219... 415 
 
 Collins v. Castle (1887), 36 Ch. D. 243 150 
 
 Co’.lins v. Collins (1871), 2 M. & K. 703; 39 E. R. 1113 508 
 
 Collins v. Elstone, (1893) P. 1; 62 L. J. Ch. 26; 67 L. T. 624; 41 
 
 W. R. 287 467 
 
 Colman, In the goods of (1842), 3 Curt. 118 462 
 
 Colombine v. Penhall (1853), 1 Sm. & G. 228 450 
 
 Comfort v. Betts, (1891) 1 Q. B. 737 178 
 
 Commissioners v. Glasgow & S. W. R. Co. (1887), 5 App. Ca. 315 184 
 
TABLE OF CASES. XXXV 
 
 ' PAGE 
 
 Commissioners of Inland Revenue v. Gribble, (1912) W. N. 301 371 
 
 Compton v. Bagley, (1892) 1 Ch. 313; 61 L. J. Ch. 113; 65 L. T. 706... 67 
 
 Conelly v. Steer (1881), 7 Q. B. D. 520; 50 L. J. Q. B. 326; 29 
 
 W R. 529; 45 L. T. 502 274 
 
 Conquest v. Ebbetts, (1896) App. Ca. 490; 12 T. L. R. 599 329 
 
 Cook v. Taylor (1887), 3 T. L. R. 800 279 
 
 Cooke, Ex parte (1803), 8 Ves. 353 382 
 
 Cooke v. Soltau (1824), 2 Sim. & Stu. 154; 2 L. J. (O. S.) Ch. 30; 
 
 57 E. R. 304 109 
 
 Coombs v . Wilkes, (1891) 3 Ch. 77; 61 L. J. Ch. 42; 65 L. T. 56; 
 
 40 W. R. 77; 7 T. L. R. 592 36 
 
 Cooper and Allen’s Contract, Re (1876), 4 Ch. D. 802; 46 L. J. Ch. 
 
 133; 35 L. T. 890; 25 W. R. 301 125 
 
 Cooper v. Belsey, (1899) 1 Ch. 639; 68 L. J. Ch. 258; 80 L. T. 69; 
 
 47 W. R. 443 415 
 
 Cooper v. Emery (1844), 1 Phill. 388 173 
 
 Cooper v. Huggins (1889), 34 Sol. Jour. 96 279 
 
 Cooper v. Macdonald (1877), 7 Ch. D. 288 12, 519 
 
 Cooper v. Pearse, (1896) 1 Q. B. 562; 65 L. J. M. C. 95; 74 L. T. 
 
 495; 44 W. R. 494 359 
 
 Cooper v. Stephenson (1852), 21 L. J. Q. B. 292 154, 160 
 
 Cooper v. Trevvby (1860), 28 Beav. 194; 8 W. R. 299 147 
 
 Cooper v. Wyatt (1821), 5 Madd. 482 499 
 
 Cope, Re, (1908) 2 Ch. 1; 77 L. J. Ch. 558; 99 L. T. 374— C. A 473 
 
 Coppin v. Fcrnyhough (1788), 2 Bro. C. C. 291 119 
 
 Corder v. Drakeford (1811), 3 Taunton, 382 368 
 
 Corder v. Morgan (1811), 18 Ves. 344 128 
 
 Cordingley v. Cheesborough (1862), 4 D. F. & J. 379 64 
 
 Cornwallisl-West and Munro, Re, (1903) 2 Ch. 150; 72 L. J. Ch. 
 
 499; 88 L. T. 351; 51 W. R. 602; (1903) W. N. 73 414, 437 
 
 Corporation of Bristol v. Westcott (1879), 12 Ch. D. 461; 41 L. T. 
 
 21; 18 W. R. 547 333 
 
 Corsellis, Re, Lawton v. Elwes (1887), 34 Ch. D. 675; 56 L. J. Ch. 
 
 294; 56 L. T. 411; 35 W. R. 309 394 
 
 Cosh’s Contract, Re, (1897) 1 Ch. 9; 66 L. J. Ch. 28; 75 L. T. 365; 
 
 45 W. R. 117 332 
 
 Costigan v. Hastier (1804), 2 Sch. & Lef. 160 128 
 
 Cotesworth v. Spokes (1861), 10 C. B. N. S. 103; 30 L. J. C. P. 
 
 220; 4 L. T. 214; 9 W. R. 436 346 
 
 Cotton, Ex parte (1883), 11 Q. B. D. 301; 49 L. T. 52; 32 W. R. 58... 
 
 264, 291 
 
 Cottrell v. Cottrell (1866) (1), L. R. 2 Eq. 330; 35 L. J. Ch. 466; 
 
 12 Jur. N. S. 285; 14 L. T. 220; 14 W. R. 572 143 
 
 Counsel v. L. & W. Discount Co. (1887), 19 Q. B. D. 512; 56 L. J. 
 
 Q. B. 622; 36 W. R. 53 282 
 
 County of Gloucester Bank v. Rudry Merthyr Steam, &c. Co., (1895) 
 
 1 Ch. 629; 64 L. J. Ch. 451; 72 L. T. 375; 43 W. R. 486 232 
 
 Cousins, Re (1886), 31 Ch. D. 671; 55 L. J. Ch. 662; 54 L. T. 376; 
 34 W. R. 393 
 
 c 2 
 
 123 
 
XXX vi TABLE OF CASES. 
 
 PAGE 
 
 Cove V. Smith (1886), 2 T. L. R. 778 340 
 
 Coventry v. Coventry (1863), 32 Beav. 612; 55 E. R. 240; 2 N. R. 359; 
 
 9 Jar. N. S. 613; 8 L. T. 819; 11 W. R. 868 378 
 
 Cox and Neve, Re, (1891) 2 Ch. 109 122 
 
 Coxen v. Rowland, W. N. (1894) 188 485 
 
 Craddock v. Rogers (1884), 53 L. J. Ch. 968; 51 L. T. 191 228 
 
 Cradock v. Piper (1850), 1 I. & G. 664; 1 Hall & Tw. 617 394 
 
 Cradock v. The Scottish Provident Institution (1894), 63 L. J. Ch. 15; 
 
 69 L. T. 380; W. N. (1893) 146 249 
 
 Cranmer’s Case (1698), 2 Salk. 508 492 
 
 Crawcour, Ex parte, Re Robertson (1878), 9 Ch. D. 419 266 
 
 Crawcour v. Salter (1880), 18 Ch. D. 30; 45 L. T. 62 266 
 
 Crawshay, Re, (1891) 3 Ch. 176; 60 L. J. Ch. 583; 65 L. T. 72; 
 
 39 W. R. 682 498 
 
 Credit Co. v. Pott (1880), 6 Q. B. D. 295; 50 L. J. Ex. 106; 44 
 
 L. T. 506; 29 W. R. 326 284 
 
 Creswell v. Davidson (1887), 56 L. T. 811 342 
 
 Crewe v. Dicken (1798), 4 Ves. 97 514 
 
 Crichton v. Crichton, (1895) 2 Ch. 853 492 
 
 Cripps v. Wolcott (1819), 4 Madd. 11 511 
 
 Croft v. Lumley (1858), 6 H. L. C. 672; 10 E. R. 1459; 27 L. J. 
 
 Q. B. 321; 4 Jur. N. S. 903; 6 W. R. 523 338 
 
 Crosbie-Hill v. Sayer, (1908) 1 Ch. 866 258 
 
 Crosby v. Wadsworth (1805), 6 East, 602 33 
 
 Crosse v. Raw (1874), L. R. 9 Ex. 209 324 
 
 Crosthwaite v. Dean (1868), L. R. 5 Eq. 245 511 
 
 Croxton v. May (1878), 9 Ch. D. 388 Ill 
 
 Crozier v. Crozier (1843), 3 D. & W. 353 533 
 
 Crump v. Temple (1890), 7 T. L. R. 120 307 
 
 Crusoe v. Bugby (1771), 3 Wils. 234 333 
 
 Crutchley, Re, (1912) 2 Ch. 335 512 
 
 Cruywys v. Colman (1804), 9 Ves. 324 505 
 
 Culverhouse, Re, (1896) 2 Ch. 251; 65 L. J. Ch. 484; 74 L. T. 347; 
 
 45 W. R. 10 117 
 
 Cumberlege v. Cumberlege-Ware (1890), 45 Ch. D. 269; 59 L. J. Ch. 
 
 717; 63 L. T. 52; 38 W. R. 767 506 
 
 Gumming v. Bedborough (1846), 15 M. & W. 438 321 
 
 Cummins v. Fletcher (1879), 14 Ch. D. 699; 49 L. J. Ch. 563; 42 
 
 L. T. 859; 28 W. R. 772 220 
 
 Cundiff v. Fitzsimmons, (1911) 1 K. B. 513; 80 L. J. K. B. 422; 
 
 103 L. T. 811 207 
 
 Cunningham & Co., Re (1884), 28 Ch. D. 682; 33 W. R. 387 269 
 
 Cunnyngliam v. Thurlow (1819), 1 R. & M. 436 534 
 
 Curling v. Austin (1862), 2 D.&S. 129; 62 E. R. 570; 10 W. R. 682... 56, 62 
 Curtis v. Wheeler (1830), Moo. M. 493 304 
 
TABLE OF CASES. 
 
 XXXV11 
 
 D. 
 
 PAGE 
 
 Dalison, Re, (1892) 3 Ch. 522 433 
 
 Dalrymple, Re, Bircham v. Springfield, 49 W. R. 627 442 
 
 Dalton, Re (1856), 25 L. J. Ch. 751 374 
 
 Dames and Wood, Re (1885), 29 Ch. D. 626; 54 L. J. Ch. 771; 53 
 
 L. T. 177; 33 W. R. 685 68 
 
 D’Angibau, Re, Andrews v. Andrews (1880), 15 Ch. D. 228; 49 L. J. 
 
 Ch. 756; 43 L. T. 135; 28 W. R. 930 6, 527 
 
 Daniel v. Daniel (1801), 6 Ves. 297 511 
 
 Daniell’s Settled Estates, Re, (1894) 3 Ch. 503; 64 L. J. Ch. 173; 71 
 
 L. T. 563; 43 W. R. 133 419 
 
 Daniels, Re, Weeks v. Daniels, (1912) 2 Ch. 90; 81 L. J. Ch. 509; 
 
 106 L. T. 792 302 
 
 Danily v. Platt (1892), 61 L. J. Ch. 415; 40 W. R. 475 502 
 
 Danson, Re, Bell v. Danson (1895), 13 R. 633 474 
 
 Darley v. Tennant (1885), 53 L. T. 257 322 
 
 Darlow v. Bland, (1897) 1 Q. B. 125 284 
 
 Dashwood v. Magniac, (1891) 3 Ch. 306; 60 L. J. Ch. 809; 65 L. T. 
 
 811; 7 T. L. R. 629 405 
 
 Davenport v. Marshall, (1902) 1 Ch. 82; 71 L. J. Ch. 29; 85 L. T. 
 
 340; 50 W. R. 39; (1901) W. N. 210 378, 379 
 
 David v. Sabin, (1893) 1 Ch. 523; 62 L. J. Ch. 347; 68 L. T. 237; 
 
 41 W. R. 398; 9 T. L. R. 240 143 
 
 Davies and Kent, Re, (1910) 2 Ch. 35; 79 L. J. Ch. 689; 102 L. T. 621.. 424 
 
 Davies v. Davies (1888), 38 Ch. D. 499; 57 L. J. Ch. 1003; 58 L. T. 
 
 514; 36 W. R. 399 314 
 
 Davies v. Fowler (1873), L. R. 16 Eq. 308 465 
 
 Davies v. Hetherington (1890), 62 L. T. 753 482 
 
 Davies v. Jenkins, (1900) 1 Q. B. 133 283, 284 
 
 Davies v. Rees (1886), 17 Q. B. D. 408; 55 L. J. Q. B. 363; 54 L. T. 
 
 813; 34 W. R. 573 276,277 
 
 Davies v. Sear (1869), L. R. 7 Eq. 427; 38 L. J. Ch. 545; 50 L. T. 
 
 56; 77 W. R. 390 140 
 
 Davies v. Thomas, (1900) 2 Ch. 462 92 
 
 Davis, In the goods of (1843), 3 Curt. 748 462 
 
 Davis v. Goodman (1880), 5 C. P. D. 128; 49 L. J. C. P. 344; 42 
 
 L. T. 288; 28 W. R. 559 273, 285 
 
 Davis v. The Leicester Corporation, (1894) 2 Ch. 208; 63 L. J. Ch. 
 
 440; 70 L. T. 599; 42 W. R. 610 151 
 
 Davis v . Tollemache (1856), 2 Jur. N. S. 1181; 28 L. T. O. S. 188... 145 
 
 Davis v. Town Properties Investment Corporation, Limited, (1903) 1 
 
 Ch. 797; 72 L. J. Ch. 389; 88 L. T. 665; 51 W. R, 417; 
 
 (1903) W. N. 62 348 
 
 Davis v. Usher (1884), 12 Q. B. D. 490; 53 L. J. Q. B. 422; 32 
 
 W. R. 832 277 
 
 Davison v. Gent (1857), 1 H. & N. 744 363 
 
 Daw v. Terrel (1883), 33 Beav. 218 250 
 
XXXV111 
 
 TABLE OF CASES. 
 
 PAGE 
 
 Dawes v. Creyke (1885), 30 Ch. D. 500; 54 L. J. Q. B. 1096; 53 
 
 L. T. 292; 33 W. R. 869 379 
 
 Dawson v. Hearn (1830), 1 R. & M. 606 500 
 
 Dawson v. Linton (1822), 5 B. & A. 521 325 
 
 Dawson v. Small (1874), L. R. 18 Eq. 114; 43 L. J. Ch. 406; 30 
 
 L. T. 252; 22 W. R. 514 488 
 
 Day v. Singleton, (1899) 2 Ch. 320; 68 L. J. Ch. 593; 81 L, T. 
 
 306; 48 W. R. 18 89 
 
 Day v. Woolwich Equitable Building Society (1888), 40 Ch. D. 
 
 at p. 493 168 
 
 Deakin, Re, Starkey v. Eyres, (1894) 3 Ch. 565; 63 L. J. Ch. 779; 
 
 71 L. T. 858; 43 W. R. 70 503 
 
 Dean v. Godson (1867), L. R. 3 Eq. 713 510 
 
 Dearie v. Hall (1828), 3 Russ. 148 179 
 
 De Beers v. British South Africa Co., (1912) A. C. 52 216 
 
 Debenham v. Sawbridge (1901), 70 L. J. Ch. 525 43, 64 
 
 De Braam v. Ford, (1900) 1 Ch. 142 277, 280 
 
 Deighton and Harris’s Contract, Re, (1898) 1 Ch. 458; 67 L. J. Ch. 
 
 240; 78 L. T. 430; 46 W. R. 341 68 
 
 De la Warr’s Settled Estates, Re (1911), 27 T. L. R. 534; (1912), 56 
 
 S. J. 650 427, 432 
 
 De Mestre v. West, (1891) A. C. 264 449 
 
 Denby v. Moore (1817), 1 B. & A. 123 325, 326 
 
 Dendy v. Evans, (1909) 2 K. B. 894; 54 S. J. 151 341 
 
 Denne v. Flood, 28 Ch. D. 588 64 
 
 Dennett v. Atherton (1872), L. R. 7 Q. B. 316; 33 L. J. Ch. 134; 41 
 
 L. J. Q. B. 165; 20 W. R. 442 348 
 
 Denny v. Hancock (1870), L. R. 6 Ch. App. 1 47 
 
 Dent v. Clayton (1864), 10 Jur. N. S. 671 131 
 
 Denton v. Donner (1856), 23 Beav. 285 30 
 
 Derby’s (Lord) Contract, In re, Ferguson v. Derby, (1912) 1 Ch. 479... 63 
 
 Derbyshire, In re, (1906) 1 Ch. 135; 73 L. J. Ch. 95 508 
 
 Derry v. Peek (1889), 14 App. Cas. 337 42 
 
 De Tessier’s Settled Estates, (1893) 1 Ch. 153; 62 L. J. Ch. 552; 
 
 68 L. T. 275; 41 W. R. 184; 9 T. L. R. 62 432, 433 
 
 Detmold, Re (1889), 40 Ch. D. 585 382 
 
 Deverges v. Sandeman, Clark & Co., (1902) 1 Ch. 579 244 
 
 Dewar v. Goodman, (1909) A. C. 72 317 
 
 Dewar v. Mintoft, (1912) 2 K. B. 373 37, 38 
 
 Dianah Hubbuck, In the Estate of, (1905) P. 129 481 
 
 Dibble v. Bowater (1853), 2 E. & B. 564 321 
 
 Dickin and Kelsall, Re, (1908) 1 Ch. 213; 77 L. J. Ch. 177; 98 L. T. 
 
 371 424, 441 
 
 Dickin v. Dickin (1882), 30 W. R. 887 79 
 
 Dickinson v. Dillwyn (1869), 8 Eq. 546 379 
 
 Dickson, Re, Hill v. Grant (1885), 29 Ch. D. 331; 54 L. J. Ch. 510; 
 
 52 L. T. 707; 33 W. R. 511 387 
 
 Dingle v. Coppen, (1899) 1 Ch. 726; 79 L. T. 693; 47 W. R. 279 211 
 
 Dixon, Re, Dixon v. Charlesworth, (1903) 2 Ch. 458; (1903) W. N. 122... 498 
 
TABLE OF CASES. XXXIX 
 
 PAGE 
 
 Dixon v. Muckleston (1872), 26 L. T. 752; 20 W. R. 619; L. R. 8 Ch. 
 
 App. 155 250 
 
 Dodd v. Acklom (1843), 6 M. & Gr. 672; 13 L. J. C. P. 11 363, 364 
 
 Dodson v. Downey, (1901) 2 Ch. 620 146 
 
 Doe v. Allen (1810), 3 Taunt. 78 337 
 
 Doe v. Bevan (1815), 3 M. & S. 353; 105 E. R. 644; 2 Rose, 246 332 
 
 Doe v. Bird (1834), 2 A. & E. 161 335 
 
 Doe v. Bousfield (1844), 14 L. J. Q. B. 42 304 
 
 Doe v. Carter (1799), 8 T. R. 300 332 
 
 Doe v. Collins (1788), 2 T. R. 502 135 
 
 Doe v. Day (1811), East, 241 369 
 
 Doe v. Dixon (1807), 9 East, 15 310 
 
 Doe v. Gladwin (1845), 6 Q. B. 953; 14 L. J. Q. B. 189; 9 Jur. 508... 
 
 330, 331 
 
 Doe v. Green (1839), 9 A. & E. 658 310 
 
 Doe v. Hogg (1824), 4 D. & Ry. 226; 1 Car. L P. 160; 2 L. J. (O. S.) 
 
 K. B. 121 332 
 
 Doe v. Howard (1809), 11 East, 498 365 
 
 Doe v. Jackson (1779), 2 Stark. 293 366 
 
 Doe v. Johnson (1806), 6 Esp. 10 365 
 
 Doe v. Keeling (1813), 1 M. & S. 95 335 
 
 Doe v. Kneller (1829), 4 C. & P. 3 312 
 
 Doe v. Laming (1814), 4 Camp. 77 333 
 
 Doe v. Lea (1800), 11 East, 312 365 
 
 Doe v. Lock (1835), 2 A. & E. 705 311 
 
 Doe v. Manning (1807), 2 East, 59 451 
 
 Doe v. Peck (1830), 1 B. & A. 428 346 
 
 Doe v. Rowlands (1841), 9 C. & P. 734 328, 329 
 
 Doe v. Sandham (1787), 7 T. R. 705 319 
 
 Doe v. Stapleton (1828), 3 C. & P. 275 365 
 
 Doe v. Sturges (1816), 7 Taunt. 217 302 
 
 Doe v. Topfield (1809), 11 East, 246 507 
 
 Doo v. Waterton (1819), 3 B. & A. 149 110 
 
 Doe v. Wolley (1828), 8 B. & C. 22 101, 106 
 
 Doo v. Worsley (1807), 1 Camp. 20 333 
 
 Doo v. Wrightman (1801), 4 Esp. 5 365 
 
 Doe d. Pliscocks v. Hiscocks (1839), Tudor’s Con. Cas. 918 (1879 ed.)... 481, 
 
 482, 483 
 
 Doe d. Rigge v. Bell (1793), 2 Sm. L. C. 110 (10th ed.) ; 5 T. R. 471... 307 
 Dolcini v. Dolcini, (1895) 1 Q. B. 898; 64 L. J. Q. B. 427; 43 
 
 W. R. 542 276 
 
 Dommett v. Bedford (1796), 3 Ves. 149; 6 T. L. R. 684 382, 498 
 
 Dorin v. Dorin (1875), L. R. 7 H. L. 568; 43 L. J. Ch. 462; 23 
 
 W. R. 253 501 
 
 Dougan v. Macpherson, (1902) A. C. 107 30 
 
 Dover v. Alexander (1843), 2 Hare, 275 501 
 
 Dowding’s Settled Trusts, (1904) 1 Ch. 441; 73 L. J. Ch. 194; 90 
 
 L. T. 82; 52 W. R. 293 378 
 
xl 
 
 TABLE OF CASES. 
 
 PAGE 
 
 Downs v. Salmon (1888), 20 Q. B. D. 775; 57 L. J. Q. B. 454; 59 
 
 L. T. 374; 36 W. R. 810 285 
 
 Dowse v. Gorton, (1891) A. C. 190; 60 L. J. Ch. 745; 64 L. T. 809; 
 
 40 W. R. 17 475 
 
 Dowson & Jenkins’ Contract, Re, (1904) 2 Ch. 219 102 
 
 Doyle and O’Hara’s Contract, Re, (1899) 1 Ir. R. 113 333 
 
 Drake v. Drake (1860), 8 H. L. Ca. 172; 29 L. J. Ch. 850; 3 L. T. 193.. 483 
 
 Drant v. Vause (1842), 1 Y. & C. C. C. 580 86 
 
 Drielsma v. Manifold, (1894) 3 Ch. 100; 63 L. J. Ch. 653; 71 L. T. 
 
 62; 42 W. R. 578 542, 544, 549, 551 
 
 Drieselinan v. Winstanley (1909), 53 S. J. 631 323 
 
 Driver v. Broad, (1893) 1 Q. B. 744 34 
 
 Driver v. Grant, 5 De G. & Sm. 451 93 
 
 Drummond and Davie, Re, (1891) 1 Ch. 524; 60 L. J. Ch. 258 517 
 
 Drummond v. Tracey (1860), Johns, at p. 612 98 
 
 Duberley v. Day (1852), 16 Beav. 33 14 
 
 Du Cane and Nettlefold’s Contract, (1898) 2 Ch. 96; 67 L. J. Ch. 393... 414, 
 
 424, 437, 442 
 
 Duddell v. Simpson (1866), L. R. 2 Ch. App. 102 69 
 
 Dudley v. Folliott (1790), 3 T. L. R. 584 347 
 
 Dudson, Re (1878), 8 Ch. D. 628; 47 L. J. Ch. 632; 39 L. T. 182; 
 
 27 W. R. 179 518 
 
 Dug-dale v. Meadows (1870), L. R. 6 Ch. App. 501; 40 L. J. Ch. 140; 
 
 24 L. T. 113 116 
 
 Duggan v . Kelly (1847), 10 Ir. Eq. 295 497 
 
 Duke of Marlborough’s Settled Estates (1886), 32 Ch. D. 1; 55 L. J. 
 
 Ch. 339; 54 L. T. 914 426 
 
 Duke of Newcastle’s Estates, Re (1883), 24 Ch. D. 129; 52 L. J. Ch. 
 
 645; 48 L. T. 779; 31 W. R. 782 '... 298 
 
 Duke of Norfolk’s Settled Estates, (1900) 1 Ch. 461 434 
 
 Dummer v. Pitcher (1833), 2 My. & K. 262 466 
 
 Dumpor’s Case (1603), 1 Sm. L. C. 31 (10th ed.) 345 
 
 Duncan v. Dixon (1890), 44 Ch. D. 211; 62 L. T. 319; 59 L. J. Ch. 
 
 437; 38 W. R. 700 7,374 
 
 Dunham Massey’s Settled Estates (1906), 22 T. L. R. 595 433 
 
 Dunn v. Flood (1885), 28 C. D. 586; 54 L. J. Ch. 370; 52 L. T. 
 
 699; 33 W. R, 315 54 
 
 Dunravcn’s (Earl of) Settled Estates, (1907) 2 Ch. 417; 76 L. J. Ch. 
 
 591; 97 L. T. 336; 23 T. L. R. 691 433 
 
 Dunsany’s Settlement, Re, (1906) 1 Ch. 578; 75 L. J. Ch. 356; 94 L. T. 
 
 361— C. A 378 
 
 Duppa v. Mayo (1670), 1 Wins. Saund. 275; 380 (1871 ed.) 339 
 
 Durham Bros. v. Robertson, (1898) 1 Q. B. 765 178 
 
 Durrant v. Friend (1851), 5 De G. & S. 343 501 
 
 Duthy and Jesson’s Contract, Re, (1898) 1 Ch. 419; 67 L. J. Ch. 218; 
 
 46 W. R. 300 54, 169 
 
 Dyson v. Foster, (1909) A. C. 98; 78 L. J. Iv. B. 246; 99 L. T. 942; 
 
 25 T. L. R. 166 130 
 
TABLE OF CASES. 
 
 xli 
 
 E. 
 
 PAGE 
 
 Eads v. Williams, 4 De G. M. & G. 674 91 
 
 Easier v. Furnival (1881), 17 Ch. D. 115; 50 L. J. Ch. 537; 44 L. T. 
 
 464; 29 W. E. 649 489 
 
 Eag’les v. Le Breton (1873), L. E. 15 Eq. 148 505 
 
 Eagleton v. Horner (1887), 57 L. J. Ch. 211 502, 506 
 
 Eales, Ee, Ex parte Steel (1905), 54 W. E. 202 273 
 
 Earl de la Warr, Ee (1911), 27 T. L. E. 534; (1912), 56 S. J. 650 427, 432 
 
 Earl of Dunraven’s Settled Estates, (1907) 2 Ch. 417 ; 76 L. J. Ch. 591; 
 
 97 L. T. 336; 23 T. L, E. 691 433 
 
 Earl of Egmont v. Smith (1877), 6 Ch. D. 469 129 
 
 Earle and Webster, Ee (1883), 24 Ch. D. 144; 52 L. J. Ch. 828; 48 
 
 L. T. 961; 31 W. E. 887 29,448 
 
 Earle v. Maugham (1863), 14 C. B. N. S. 626 325 
 
 Earnshaw Wall, Ee, (1894) 3 Ch. 156; 63 L. J. Ch. 836; 71 L, T. 
 
 173; 42 W. E. 567; 8 E. 558 542, 552 
 
 Eastern Telegraph Co. v. Dent, (1899) 1 Q. B. 835; 68 L. J. Ch. 
 
 564; 78 L. T. 713 334, 335, 343 
 
 Easum v. Appleford (1840), 5 M. & C. 61 510 
 
 Ebbern v. Fowler, (1909) 1 Ch. 578; 78 L. J. Ch. 497; 100 L. T. 
 
 717; 53 S. J. 356 383 
 
 Ebbetts v. Conquest, (1896) A. C. 490; 65 L. J. Ch. 808; 75 L. T. 
 
 36; 45 W. E. 50; 12 T. L. E. 599 329 
 
 Ebsworth and Tidy’s Contract, Ee (1889), 42 Ch. D. 34 99 
 
 Eccles v. Cheyne (1856), 2 K. & J. 676; 69 E. E. 954 491 
 
 Ecclesiastical Commissioners v. Merral (1869), L. E. 4 Ex. 162; 38 
 
 L. J. Ex. 93; 20 L. T. 573; 17 W. E. 676 300 
 
 Ecclesiastical Commissioners v. Parr, (1894) 2 Q. B. 420 109, 174 
 
 Edge v. Boileau (1885), 16 Q. B. D. 117; 53 L. T. 907; 55 L. J. 
 
 Q. B. 90 349 
 
 Edgell v. Day (1865), L. E. 1 C. P. 80; 1 H. & E. 8 58 
 
 Edmondson v. Copland, (1911) 2 Ch. 301; 80 L. J. Ch. 532; 105 
 
 L. T. 8; 55 S. J. 520; 27 T. L. E. 446 217 
 
 Edwards, Ee (1) (1873), L. E. 9 Ch. App. 97; 43 L. J. Ch. 265; 
 
 29 L. T. 712; 22 W. E. 144 379 
 
 Edwards, Ee (2), (1894) 3 Ch. 644; 64 L. J. Ch. 179; 43 W. E. 169... 487 
 
 Edwards v. Carter, (1893) A. C. 360; 63 L. J. Ch. 100; 69 L. T. 153... 6, 7, 
 
 298, 299, 374 
 
 Edwards v. Edwards (1) (1876), 2 Ch. D. 291; 45 L. J. Ch. 391; 34 
 
 L. T. 472; 24 W. E. 713 288 
 
 Edwards v. Marcus, (1894) 1 Q. B. 587; 63 L. J. Q. B. 363; 70 L. T. 
 
 182; 9 E. 357; 1 Manson, 70 279, 287 
 
 Edwards v. Marston, (1891) 1 Q. B. 225; 60 L. J. Q. B. 202; 64 
 
 L. T. 97; 39 W. E. 165 279 
 
 Edwards v. Wickwar (1865), L. E. 1 Eq. 68; 35 L. J. Ch. 48; 13 
 
 L. T. 428; 14 W. E. 79 43, 61 
 
 Edwick v. Hawkes (1881), 18 Ch. D. 199; 50 L. J. Ch. 577; 45 L. T. 
 
 168; 29 W. E. 914 337 
 
xlii 
 
 TABLE OF CASES. 
 
 PAGE 
 
 Egerton v. Earl Brownlow (1853), 4 H. L. C. 210; 23 L. J. Ch. 348... 
 
 481, 482 
 
 Egmont (Earl of) and Smith (1877), 6 Ch. D. 469 129 
 
 Egmont’s (Lord) Settled Estates, Re (1890), 45 Ch. D. 395; 59 
 L. J. Ch. 768; 63 L, T. 508; (1900), 16 T. L. R. 360; (1906) 
 
 2 Ch. 151 426, 43a 
 
 Eley, Re (1887), 37 Ch. D. 40; 56 L. J. Ch. 905; 57 L. T. 253; 36 
 
 W. R. 96 542, 550 
 
 Eley v . Read (1889), 76 L. T. 39 228 
 
 Elliot v. Ince (1857), 7 De G. M. & G. 475 8 
 
 Elliot v. Merryman (1740), 1 White & Tudor, L. C. Eq. 72; Barnard. 
 
 Ch. Rep. 78 392 
 
 Ellis, Ex parte, (1898) 2 Q. B. 79; 67 L. J. Q. B. 734; 78 L. T. 
 
 733; 46 W. R. 531 291, 292 
 
 Ellis, In the goods of (1840), 2 Curt. 395 462 
 
 Ellis v. Goulton, (1893) 1 Q. B. 350; 62 L. J. Q. B. 232; 68 L, T. 
 
 144; 41 W. R. 411 58 
 
 Ellis v. Roger (1888), 29 Ch. D. 661; 53 L. T. 377 149 
 
 Ellis’s Settlement Trusts, Re, Ellis v. Ellis, (1909) 1 Ch. 618; 78 
 
 L. J. Ch. 375; 100 L. T. 511 378 
 
 Ellison v. Ellison (1802), 1 White & Tudor, L. C. Eq. (7th ed.) 291; 
 
 6 Ves. 656 453 
 
 Elliston v. Reacher, (1908) 2 Ch. 374; 77 L. J. Ch. 617; 99 L. T. 346... 150 
 Emanuel and Simmonds, Re (1886), 33 Ch. D. 40; 55 L. J. Ch. 710; 55 
 
 L. T. 79; 34 W. R. 613 370, 545, 549 
 
 Emuss v. Smith (1848), 2 De G. & Sm. 722 86 
 
 Errington v. Birt, 105 L. T. 373 337 
 
 Errington v. Met. Dist. Rail. Co. (1882), 19 Ch. D. 559 137 
 
 Essery v. Cowlard (1884), 26 Ch. D. 191; 53 L. J. Ch. 661; 51 L. T. 
 
 60; 32 W. R. 518 381 
 
 Essex v. Daniell (1875), L. R. 10 C. P. 538 166 
 
 Ethel and Mitchells and Butler’s Contract, Re, (1901) 1 Ch. 945 141 
 
 Evans and Bettell’s Contract, (1910) 2 Ch. 438; 79 L. J. Ch. 669; 
 
 103 L. T. 181 
 
 Evans, In re, (1905) 1 Ch. 290 
 
 Evans, Re, Powell v. Evans, (1909) 1 Ch. 784 
 
 Evans v . Davis (1878), 10 Ch. D. 747; 48 L. J. Ch. 223; 39 L. T. 
 
 391; 27 W. R. 285 
 
 Evans v. Jackson (1836), 8 Sim. 217 
 
 Evans v. Roberts (1826), 8 D. & R. 611 
 
 Evans v. Scott (1847), 1 H. L. C. 43 
 
 Everitt v. Everitt (1870), L. R. 10 Eq. 405; 22 L. T. 507; 18 
 
 W. R. 1020 
 
 80 
 
 540 
 
 484 
 
 338 
 
 301 
 
 33 
 
 409 
 
 453 
 
 Ewart v. Fryer & Co., (1901) 1 Ch. 499; 70 L. J. Ch. 138; 83 L. T. 
 
 551; 49 W. R. 145; 17 T. L. R. 145 341 
 
 Eyre, Re, Eyre v. Eyre, 49 L. T. 259 535 
 
 Eyre v. Shaftesbury (1722), 1 White & Tudor, L. C. Eq. 693 ; 2 
 P. Wms. 103 
 
 469 
 
f 
 
 TABLE OF CASES. 
 
 xliii 
 
 F. 
 
 PAGE 
 
 Fain v. Ayers (1826), 2 Sim. & Stu. 533; 4 L. J. (0. S.) Ch. 166; 57 
 
 E. R. 450 145 
 
 Fairfield v. Morgan (1805), 2 B. & P. N. R. 38 512 
 
 Falcke v. Scottish Imperial Co. (1886), 34 Ch. D. 234; 56 L. T. 220; 
 
 35 W. R. 143 245 
 
 Farlow v. Stevenson, (1900) 1 Ch. 128; 69 L. J. Ch. 106; 48 W. R. 
 
 213 324, 325 
 
 Farmer v. Pitt, (1902) 1 Ch. 954 221 
 
 Farquhar, In the goods of (1846), 4 Notes of Cases, 651 457 
 
 Farrar v. Farrars Limd. (1888), 40 Ch. D. 395; 58 L. J. Ch. 185; 
 
 60 L. T. 121; 37 W. R. 196; 5 T. L. R. 164 32, 228 
 
 Farrer v. Lacey, Hartland & Co. (1883), 25 Ch. D. 636; 31 Ch. D. 42... 58 
 
 Farrington v. Forrester, (1893) 2 Ch. 46; 62 L. J. Ch. 296; 69 
 L. T. 45 145 
 
 Fawcett and Holmes, Re (1889), 42 Ch. D. 150; 58 L. J. Ch. 763; 61 
 
 L. T. 105; 5 T. L. R. 515 45 
 
 Fearnside v. Flint (1882), 22 Ch. D. 579; 52 L. J. Ch. 479; 48 L. T. 
 
 N. S. 154; 31 W. R. 318 210 
 
 Feast v. Robinson, W. N. (1894) 14; 63 L. J. Ch. 321; 70 L. T. 168; 
 
 8 R. 531 286 
 
 Fenton v. Clegg (1854), 9 Ex. 680; 2 C. L. R. 1014; 23 L, J. Ex. 197... 302 
 Field, Re (1885), 54 L. J. Ch. 661; 52 L, T. 480; 33 W. R. 553... 547, 548 
 
 Field v. Hopkins (1890), 44 Ch. D. 524; 62 L. T. 774 253 
 
 Fielden v. Slater (1869), L. R. 7 Eq. 523; 38 L. J. Ch. 379 336 
 
 Filby v. Hounsell, (1896) 2 Ch. 737; 65 L. J. Ch. 852; 75 L. T. 
 
 270; 45 W. R. 232; 12 T. L. R. 612 36 
 
 Filliter v. Phippard (1847), 17 L. J. Q. B. 89; 11 Q. B. 347 314 
 
 Finck v. Tranter, (1905) 1 K. B. 427; 74 L. J. K. B. 345; 92 
 L T. 297 252 
 
 Finlay v. Darling, (1897) 1 Ch. 719; 66 L. J. Ch. 348; 76 L. T. 
 
 461; 45 W. R. 415 378 
 
 Fisher and Grazebrook’s Contract, Re, (1898) 2 Ch. 660; 67 L. J.: 
 
 Ch. 613 428 
 
 Fisher v. Doody, (1893) 1 Ch. 129; 62 L. J. Ch. 14; 68 L. T. 128; 
 
 41 W. R. 49 253 
 
 Fisher v. Shirley (1889), 43 Ch. D. 290 379 
 
 Fitz v. lies, (1893) 1 Ch. 77; 62 L. J. Ch. 258; 68 L. T. 108 336 
 
 Fitzgerald’s Trustee v. Mellersh, (1892) 1 Ch. 385; 61 L. J. Ch. 231; 
 
 66 L. T. 178; 40 W. R. 251; 8 T. L, R. 237 250 
 
 Fitzgerald v. Fauconberge (1731), Fitz. 297 ; 2 Eq. Cas. Abr. 682 (D), 
 
 n. (b) 110 
 
 Fleetwood v. Green, 15 Ves. 59 72 
 
 Fleming v. Hardcastle (1885), 52 L. T. 851; 33 W. R. 776... 547, 548, 549 
 Fletcher and Dyson, Re, (1903) 2 Ch. 688; 72 L. J. Ch. 791; 89 L. T. 
 
 473; 52 W. R. 27; 19 T. L. R. 682; (1903) W. N. 156 308 
 
 Fletcher v. Nokes, (1897) 1 Ch. 271; 66 L. J. Ch. 177; 76 L. T. 107; 
 
 45 W. R. 471 340 
 
xliv TABLE OF CASES. 
 
 PAGE 
 
 Flight v. Bolland (1828), 4 Russ. 298 8, 90 
 
 Flight v. Booth (1834), 1 Bing. N. C. 370 42, 43 
 
 Flower v. Hartopp (1843), 6 Beav. 476; 12 L. J. Ch. 39 56, 62 
 
 Flower v. Metropolitan Board of Works (1884), 27 Ch. D. 592; 53 
 
 L. J. Ch. 955; 51 L. T. 257; 32 W. R. 1011 168 
 
 Flureau v. Thornhill (1776), 2 W. Bl. 1078 89 
 
 Ford and Hill, Re (1879), 10 Ch. D. 365; 48 L. J. Ch. 327; 40 L. T. 
 
 41; 27 W. R. 371 120 
 
 Ford, Re, Patten v. Sparks (1895), 72 L. T. 5 506 
 
 Ford v. Kettle (1882), 9 Q. B. D. 139; 51 L. J. Q. B. 558; 46 L, T. 
 
 N. S. 666; 30 W. R. 741 287 
 
 Formby v. Barker, (1903) 2 Ch. 539; (1903) W. N. 133 149, 150 
 
 Forster v. Baker, (1910) 2 K. B. 636; 79 L. J. K. B. 664; 102 L. T. 
 
 522; 26 T. L. R. 421 178 
 
 Foster v. Patterson (1881), 17 Ch. D. 132; 50 L. J. Ch. 603; 44 L. T. 
 
 N. S. 465; 29 W. R. 463.... 218 
 
 Foster v. Reeves, (1892) 2 Q. B. 255 307 
 
 Foulger v. Arding, (1902) 1 K. B. 700; 71 L. J. K. B. 499; 86 L. T. 
 
 488; 50 W. R. 417; (1902) W. N. 55 325 
 
 Foulkes v. Williams (1889), 42 Ch. D. 93; 58 L. J. Ch. 451; 61 
 
 L. T. 58 486 
 
 Fourth City Benefit Building Society v. Williams (1879), 14 Ch. D. 
 
 140; 49 L. J. Ch. 245; 42 L. T. N. S. 615; 38 W. R. 572 258 
 
 Fowell v. Tranter (1864), 3 H. & C. 458; 34 L. J. Ex. 6; 11 Jur. 
 
 N. S. 64; 11 L. T. N. S. 631; 13 W. R. 145 310 
 
 Fowler v. Cohn (1856), 2 Beav. 360; 20 Jur. 315; 26 L. T. 249; 
 
 4 W. R. 412 533 
 
 Fox v. Barnett (1886), 2 T. L. R. 233 266 
 
 Fox v. Mackreth (1788), 2 Bro. Ch. 400; 2 Cox, 320 29 
 
 Fox v. Swan (1855), Sty. 482; 82 E. R. 881 332 
 
 Francis, In re, Francis v. Francis, (1905) 2 Ch. 295; 74 L. J. Ch. 
 
 487; 93 L. T. 132; 53 W. R. 571 494 
 
 Fraser v. Byas (1895), 11 T. L. R. 481; 13 R. 452 219 
 
 Fraser v. Pendlebury (1861), 31 L. J. C. P. 1; 10 W. R. 104 131 
 
 Freeman v. Laing, (1899) 2 Ch. 355; 68 L. J. Ch. 586; W. N. 
 
 (1899) 97 247 
 
 Freeman v. Pope (1870),' L. R. 5 Ch. App. 538 119, 450 
 
 Freme, Re, Samuel v. Frerne (1912), 56 S. J. 362 442 
 
 Freme’s Contract, Re, Freme v. Ilall, (1895) 2 Ch. 256; 64 L. J. 
 
 Ch. 862; 73 L. T. 366; 44 W. R. 164 79 
 
 Freme v. Wright (1819), 4 Madd. 364 60 
 
 French v. Hope (1887), 56 L. J. Ch. 363; 56 L. T. 57 254 
 
 Frend v. Buckley (1870), L. R. 5 Q. B. 213 49, 50, 306 
 
 Freshfield, Re (1879), 11 Ch. D. 198 244 
 
 Frewen v. James (1888), 38 Ch. D. 383; 57 L. J. Ch. 1052; 59 L. T. 
 
 131; 36 W. R. 840 426 
 
 Frewen v. Law Life Assurance Society, (1896) 2 Ch. 511 513 
 
 Frisby, Re, Allison v. Frisby (1889), 43 Ch. D. 106; 59 L. J. Ch. 94; 
 
 61 L. T. 632; 38 W. R. 65 210 
 
f 
 
 TABLE OF CASES. xlv 
 
 PAGE 
 
 Frith, Ex parte (1882), 19 Ch. D. 419 284 
 
 Frogley, Re, (1905) P. 137; 74 L. J. P. 72; 92 L. T. 429; 54 W. R. 
 
 48; 21 T. L. R. 341 502 
 
 Fry v. Capper (1853), 1 Kay, 170; 2 W. R. 136 530 
 
 Fry v. Tapson (1884), 28 Ch. D. 268 206 
 
 Fryer v. Ewart, (1902) A. C. 187; (1902) W. N. 60 341, 343 
 
 Fullford v. Fullford (1853), 16 Beav. 565 490 
 
 Furneaux v. Aird, (1906) W. N. 215 93 
 
 Furnivall v. Hudson, (1893) 1 Ch. 335; 62 L. J. Ch. 178; 68 L. T. 
 
 37'8; 41 W. R. 358 276, 280 
 
 Furtado v. Lumley (1890), 54 J. P. 407 58 
 
 G. 
 
 G., Re, An Infant, (1892) 1 Ch. 292; 61 L. J. Ch. 490 469 
 
 Gainsford v. Dunn (1874), L. R. 17 Eq. 405 532 
 
 Gaitskell, Re (1889) (2), L. R. 15 Eq. 386; 28 L. T. N. S. 760; 
 
 21 W. R. 768 447 
 
 Gapp v. Bond (1887), 19 Q. B. D. 200; 56 L. J. Q. B. 438; 57L.T. 
 
 437; 35 W. R. 683 268 
 
 Gardner v. Hatton (1833), 6 Sim. 93 465 
 
 Gardner v. Ingram (1890), 61 L. T. 729 366 
 
 Garland, Ex parte (1804), 10 Ves. 110 476 
 
 Gartside v. Silkstone, &c. Co. (1882), 21 Ch. D. 762 110 
 
 Gaskell’s Settled Estates, Re, (1894) 1 Ch. 485; 63 L . J. Ch. 243; 70 
 
 L. T. 554; 42 W. R. 219 433 
 
 Gaskell and Walter’s Contract, (1906) 2 Ch. 1; 75 L. J. Ch. 503; 94 
 
 L. T. 65'8 ; 22 T. L. R. 361 17,520 
 
 Gattward v. Knee, (1902) P. 99 461 
 
 Gaze v. Gaze (1843), 3 Curt. 451 462 
 
 General Assurance Co. v. Worsley (1895), 64 L. J. Q. B. 253; 72 
 
 L. T. 35'8 366 
 
 General Credit and Discount Co. v. Glegg (1883), 22 Ch. D. 549; 52 
 
 L. J. Ch. 297; 4'8 L. T. N. S. 182; 31 W. R. 421 213, 219 
 
 General Finance Co. v. Liberator Building Society (1'878), 10 Ch. D. 
 
 15; 19 L. T. N. S. 600; 27 W. R. 210 131 
 
 Gent and Eason, Re, (1905) 1 Ch. 386 26 
 
 Gentle v. Faulkner, (1900) 2 Q. B. 267; 6'8 L. J. Q. B. 848; 81 
 
 L. T. 294 332 
 
 George v. Coates (1903), '88 L. T. 48 325 
 
 Gerard’s (Lord) Settled Estate, Re, (1893) 3 Ch. 252; 63 L. J. Ch. 
 
 23; 69 L. T. 393; 9 T. L. R. 587 431, 432, 433 
 
 German v. Chapman (1877), 7 Ch. D. 271; 47 L. J. Ch. 250; 37 L. T. 
 
 N. S. 615; 26 W. R. 719 337 
 
 Gibson v. Doeg (1857), 2 H. & N. 615; 27 L. J. Ex. 37 337 
 
 Gibson v. Way (1886), 56 L. J. Ch. 389; 56 L . T. 80 378- 
 
xlvi TABLE OF CASES. 
 
 PAGE 
 
 Gilbert v. Overton (1864), 2 H. & M. 110; 12 W. E. 1141 454 
 
 Giles, Ellen, Ee (1894), 70 L. T. 757; W. N. (1894) 73 14, 519 
 
 Gilliat v. Gilliat (1869), L. E. 9 Eq. 60 57 
 
 Gillingham v. Beddow, (1900) 2 Ch. 242; 69 L. J. Ch. 527; '82 L. T. 
 
 791; 64 J. P. 617 482 
 
 Gilroy v. Bowey (1888), 59 L. T. 223 282, 291 
 
 Ginger, Ee, Ex parte The London and Universal Bank, (1897) 2 Q. B. 
 
 461; 66 L. J. Q. B. 777; 76 L. T. '808 292, 294 
 
 Gittings v. McDermott (1833), 2 M. & K. 69 505 
 
 Gladding v. Yapp (1820), 5 Madd. 56 482 
 
 Gladstone, Ee, Gladstone v. Gladstone, (1900) 2 Ch. 101 ; 69 L. J. Ch. 
 
 455; W. N. (1900) 108 420 
 
 Glenny and Plartley, Ee (1884), 25 Ch. D. 611; 53 L. J. Ch. 417; 50 
 
 L. T. N. S. 79; 32 W. E. 457 395 
 
 Gloag and Miller, Ee (1883), 23 Ch. D. 320; 52 L. J. Ch. 654; 48 L. T. 
 
 N. S. 929; 31 W. E. 611 61,72,124 
 
 Goddard’s Case (1584), 1 Salk. 463 127 
 
 Gold and Norton’s Contract (1885), 52 L. T. 321; 33 W. E. 333; 
 
 W. N. (1885) 6 70 
 
 Goldstrom v. Tallcrman (1886), 18 Q. B. D. 1; 56 L. J. Q. B. 22; 
 
 55 L. T. 856; 35 W. E. 68 279, 280 
 
 Goodall’s Settlement, Ee, Fane v. Goodall, (1909) 1 Ch. 440; 7'8 L. J. 
 
 Ch. 241; 100 L. T. 223 44'8 
 
 Goodenough v. Tremmamondo (1840), 2 Beav. 512 476 
 
 Goodright v. Straphan (1774), Cowp. 201 300 
 
 Gordon, In the goods of (1905), 21 T. L. E. 653 461 
 
 Goreley, Ex parte (1864), 4 D. J. & S. 477 84 
 
 Gorringe, Ee, (1906) 2 Ch. 341; 75 L. J. Ch. 687; 95 L. T. 574 480 
 
 Gorringe v. Mahlstedt, (1907) A. C. 225; 76 L. J. Ch. 527; 97 L. T. 
 
 Ill 473, 480 
 
 Gorton v. Smart (1822), 1 Sim. & S. 66 336 
 
 Gosling v. Woolf, (1893) 1 Q. B. 39; 68 L. T. 89; 41 W. E. 106... 50, 51, 306 
 
 Gossling, Ee, (1903) 1 Ch. 448; 72 L. J. Ch. 433; 88 L, T. 279 495 
 
 Gott v. Gandy (1853), 2 El. & Bl. 885; 2 C. L. E. 392; 23 L. J. 
 
 Q. B. 1; 18 Jar. 310 314 
 
 Gough v. Wood & Co., (1894) 1 Q. B. 713; 63 L. J. Q. B. 564; 70 
 
 L. T. 297; 42 W. E. 469 224 
 
 Gourlay v. Duke of Somerset (1812), 1 V. & B. 68, 72 305 
 
 Grace v. Gard (1889), 6 T. L. E. 74 266 
 
 Gradwell v. Aitchison (1893), 10 T. L. E. 20 253, 550 
 
 Graham v. Lee (1857), 23 B. 388; 53 E. E. 152; 26 L. J. Ch. 395; 
 
 5 W. E. 328 499 
 
 Graham v. Tate (1813), 1 M. & S. 609 325 
 
 Grant v. Ellis (1841), 9 M. & W. 113; 11 L. J. Ex. 228 322 
 
 Grant’s Case (1587), 10 Eep. 50a 494 
 
 Grassi, Ee, (1905) 1 Ch. 584; 44 L. J. Ch. 341; 92 L. T. 455; 53 
 
 W. E. 396; 21 T. L. E. 243 460 
 
 Graves v. Weld (1833), 5 B. & Ad. 105 34 
 
 Gray, Ee (1887), 36 Ch. D. 205 465 
 
f 
 
 TABLE OF CASES. 
 
 xlvii 
 
 PAGE 
 
 Gray, Ee, (1901) 1 Cli. 239; 70 L. J. Ch. 133; 84 L. T. 24; 49 
 
 W. E. 298 370, 545, 552 
 
 Gray, Ee, Akers v. Sears, (1896) 2 Ch. 802; 65 L. J. Ch. 858; 75 
 
 L. T. 407 385 
 
 Gray v. Bonsall, (1904) 1 K. B. 601 341 
 
 Gray v. Siggers (1880), 15 Ch. D. 74; 49 L. J. Ch. 819; 29 W. E. 13... 476 
 Great Northern Eail. Co. v. Sanderson (1884), 25 Ch. D. 788; 58 L. J. 
 
 Ch. 445; 50 L. T. N. S. 87; 32 W. E. 519 79 
 
 Great Northern Eail. Co. v. The Coal Co-operative Society, (1896) 1 Ch. 
 
 187; 73 L. T. 443; 12 T. L. E. 30 268 
 
 Great Torrington, &c. Conservators v. Moore Stevens, (1904) 1 Ch. 
 
 347; 73 L. J. Ch. 124; 89 L. T. 667; 68 J. P. Ill; 2 L. G. E. 397... 136 
 Great Western Eail. Co. v. Fisher, (1905) 1 Ch. 316; 74 L. J. Ch. 
 
 241; 92 L. T. 104; 53 W. E. 279 146 
 
 Great Western Eail. Co. v. Smith (1876), 2 Ch. D. 255; 3 App. Cas. 
 
 165; 47 L. J. Ch. 97; 37 L, T. N. S. 645; 26 W. E. 130 339, 364 
 
 Greaves v. Tofield (1880), 14 Ch. D. 563; 43 L. T. N. S. 100; 28 
 
 W. E. 840 157 
 
 Greaves v. Whitmarsh, (1906) 2 K. B. 340; 75 L. J. K. B. 633; 95 
 
 L. T. 425; 70 J. P. 415; 4 L. G. E. 718 324 
 
 Greaves v. Wilson (1858), 25 Beav. 290; 27 L. J. Ch. 546; 4 Jur. 
 
 N. S. 802 68 
 
 Green v. Dunn (1855), 20 Beav. 6; 3 W. E. 277 510 
 
 Green v. Eales (1841), 2 Q. B. 225 327 
 
 Green v. Green (1849), 2 Mer. 86; 3 De G. & M. 480 488 
 
 Green v. Marsh, (1892) 2 Q. B. 330; 61 L. J. Q. B. 442; 60 L. T. 
 
 480; 40 W. E. 449 239, 265, 267 
 
 Greenaway v. Adams (1806), 12 Ves. 395 333 
 
 Greene v. Kirkwood, (1895) 1 Ir. E. 130 497 
 
 Greenliam v. Child (1889), 24 Q. B. D. 29; 59 L. J. Q. B. 27; 61 
 
 L. T. 563 ; 38 W. E. 94 286 
 
 Greenham v. Gibbeson (1834), 4 Moo. & Sc. 198 528 
 
 Greenhill v. North British, &c. Insurance Co., (1893) 3 Ch. 474; 62 
 
 L. J. Ch. 918; 69 L. T. 526; 42 W. E. 91 375 
 
 Greenslade v. Tapscott (1834), 1 C. M. & E. 55 333 
 
 Greenwell v. Davidson (1888), 58 L. T. 304 508 
 
 Grey v. Curtice, (1899) 1 Ch. 121; 68 L. J. Ch. 60; 79 L, T. 713... 187, 553 
 
 Gre 3 r v. Pearson (1857), 6 H. L. Ca. 61 480 
 
 Grey v. Stamford, (1892) 3 Ch. 88; 61 L. J. Ch. 622; 41 W. E. 60 502 
 
 Grieve v. Grieve (1867), L. E. 4 Eq. 180 491 
 
 Grieves v. Eawley (1852), 10 Hare, 63 504 
 
 Griffin v. Tomkins (1880), 42 L. T. 359 346 
 
 Griffin v. Union Deposit Bank (1887), 3 T. L. E. 608 283 
 
 Griffith v. Pound (1889), 45 Ch. D. 553; 59 L. J. Ch. 522 221 
 
 Griffiths, Ee, (1911) 1 Ch. 246; '80 L. J. Ch. 176; 104 L. T. 125 490 
 
 Griffiths v. Vere (1893), 9 Ves. 127 474 
 
 Grigg v. National Guardian Assurance Co., (1891) 3 Ch. 206; 64 
 
 L. T. 787; 39 W. E. 684 264 
 
 Groos, Ee, (1904) P. 269 461 
 
xlviii 
 
 TABLE OF CASES. 
 
 PAGE 
 
 Grosvenor Hotel Co. v. Hamilton, (1894) 2 Q. B. 836; 63 L. J. Q. B. 
 
 661; 71 L. T. 362; 42 W. B. 626; 9 B. 819 349 
 
 Guest and Worth, Be (not reported) 173 
 
 Guthrie v. Walrond (1883), 22 Ch. D. 573 513 
 
 Gutteridge v. Munyard (1834), 7 C. & P. 129 327 
 
 H. 
 
 Haddington Co. v. Huson, (1911) A. C. 722; 105 L. T. 467 228 
 
 Hadgett v. Commissioners of Inland Bevenue (1877), 3 Ex. D. 46; 37 
 
 L. T. B. 612 456 
 
 Hadley v. Baxendale (1854), 9 Ex. 341; 23 L. J. Ex. 179; 18 Jur. 358... 89 
 
 Hadley v. Beedom, (1895) 1 Q. B. 646; 64 L. J. Q. B. 240; 72 L. T. 
 
 493; 43 W. B. 218 267 
 
 Haedicke and Lipski’s Contract, (1901) 2 Ch. 666; 70 L. J. Ch. 811; 
 
 85 L. T. 402; 50 W. B. 20; 17 T. L. B. 772 44, 123 
 
 Hagan’s Estate, Be, (1894) 1 Ir. B. 503 552 
 
 Haines v. Guthrie (1884), 13 Q. B. D. 818; 53 L. J. Q. B. 521; 51 
 
 L. T. 645; 33 W. B. 99 106 
 
 Haldane v. Johnson (1853), 8 Ex. 689; 22 L. J. Ex. 264; 17 Jur. 937... 321 
 
 Hale, Be, Lilley v. Foad (1898), 79 L. T. 468 231 
 
 Halifax Commercial Banking Co. and Wood, Be (1898), 79 L. T. 
 
 183, 536; 47 W. B. 194; 15 T. L. B. 106 49, 103 
 
 Halifax Joint Stock Banking Co. v. Gledhill, (1891) 1 Ch. 31 119 
 
 Ilalkett v. Earl Dudley, (1907) 1 Ch. 590; 76 L. J. Ch. 330; 96 
 
 L. T. 539 72 
 
 Hall, Be, Ex parte Close (1884), 14 Q. B. D. 386; 54 L. J. Q. B. 43; 
 
 51 L. T. 645; 33 W. B. 99 269 
 
 Hall v. Burnell, (1911) 2 Ch. 551; 105 L. T. 409; 55 S. J. 737 58,75 
 
 Hall v. Ewin and M‘Neff (1887), 37 Ch. D. 74; 57 L. J. Ch. 95; 57 
 
 L. T. 831; 36 W. B. 84 148, 152, 318 
 
 Hall v. Hall, (1892) 8 Ch. D. 430; 47 L. J. Ch. 680 510 
 
 Hall v. Hall, (1892) 1 Ch. 361 464 
 
 Hall v. Heward (1886), 32 Ch. D. 430; 55 L. J. Ch. 604; 54 L. T. 
 
 810; 34 W. B. 571 253 
 
 Hall v. Warren (1805), 9 Ves. 605 8, 9 
 
 Hall v. Whiteman, (1912) 1 K. B. 683; 81 L. J. K. B. 660; 105 
 
 L. T. 854; 19 Manson, 143; 28 T. L. B. 161 278, 283, 287 
 
 Hallett v. Middleton (1826), 1 Buss. 243 145 
 
 Halton v. Foster (1868), L. B. 3 Ch. App. 505 385 
 
 Hamilton, Be, Ex parte Carter, (1905) 2 K. B. 772; 74 L. J. K. B. 
 
 905; 93 L. T. 591; 21 T. L. B. 757 267 
 
 Hamilton v. Vaughan Sherrin Electrical, &c. Co., (1894) 3 Ch. 589 8 
 
 Hammcrton v. Stead (1824), 3 B. & C. 478; 5 D. & B. 206 363 
 
 Hammond v. Hammond (1854), 19 Beav. 29 131 
 
TABLE OF CASES. xlix 
 
 PAGE 
 
 Hammond v. Hocking (1’884) , 12 Q. B. D. 291; 53 L. J. Q. B. 205; 
 
 50 L. T. 267 281, 291 
 
 Hampden v. Earl of Buckinghamshire, (1893) 2 Ch. 531; 62 L. J. 
 
 Cli 643; 68 L. T. 695; 41 W. R. 516 423, 443 
 
 Hampshire v. Wickens (1878), 7 Ch. D. 555; 47 L. J. Ch. 243; 38 
 
 L. T. 408; 26 W. R. 491 319, 320 
 
 Hanson, Ex parte (1806), 12 Ves. 149 93 
 
 Hanson v. Graham (1881), 6 Ves. 239 495 
 
 Harbin v. Darby (1860), 28 Beav. 325; 54 E. R. 391 ; 29 L. J. Ch. 622; 
 
 2 L. T. 531; 8 W. R. 512 394 
 
 Harcourt’s Trusts, Re, White v. Harcourt (1911), 105 L. T. 747; 56 
 
 S. J. 72 377 
 
 Harding, Re, Rogers v. Harding* (1894) 3 Ch. 315; 63 L. J. Ch. 725; 
 
 71 L. T. 269; 42 W. R. 677 528 
 
 Harding’s Estate, Re, (1891) 1 Ch. 60; 60 L. J. Ch. 277; 63 L. T. 
 
 539; 39 W. R. 118 447 
 
 Hardman v. Child (1885), 28 Ch. D. 712; 54 L. J. Ch. 695; 52 L. T. 
 
 465; 33 W. R. 544 68 
 
 Hare v. Elms, (1893) 1 Q. B. 604; 62 L. J. Q. B. 187; 68 L. T. 
 
 223; 41 W. R. 297 344 
 
 Harford v. Browning (1787), 1 Cox, 302 507 
 
 Harford v. Purrier (1816), 1 Madd. 532 82 
 
 Hargreaves and Thompson’s Contract, Re (1886), 32 Ch. D. 454; 55 
 
 L. T. 239; 34 W. R. 708 59, 125 
 
 Harkness and Allsopp’s Contract, Re, (1896) 2 Ch. 358; 65 L. J. Ch. 
 
 726; 74 L. T. 652; 44 W. R. 683 12 
 
 Harley v. King (1835), 2 C. M. & R. 18 176, 315 
 
 Harman v. Ainslie, (1904) 1 K. B. 698; 73 L. J. K. B. 539; 90 L. T. 
 
 624; 52 W. R. 615; 20 T. L. R. 356 338, 339 
 
 Harnett v. Maitland (1847), 16 M. & W. 257 314 
 
 Harpham v. Shaddock (1880), 19 Ch. D. 207; 45 L. T. 569; 30 
 
 W. R. 49 248 
 
 Harrington’s Settled Estates, Re (1906), 75 L. J. Ch. 460; 94 
 
 L. T. 623 431, 433 
 
 Harris v. Hickman, (1904) 1 K. B. 13; (1903) W. N. 188 324 
 
 Harrison, Re, Harrison v. Higson, (1894) 1 Ch. 561; 63 L. J. Ch. 385; 
 
 70 L. T. 868 502 
 
 Harrison v. Good (1871), L. R. 11 Eq. 388; 40 L. J. Ch. 71; “24 
 
 L. T. 263; 19 W. R. 346 150, 336 
 
 Plarrison v. Jackson (1877), 1 R. & M. 71; 7 Ch. D. 339 466 
 
 Harrop’s Trusts, Re (1883), 24 Ch. D. 717; 53 L. J. Ch. 137; 48 
 
 L. T. 937 437 
 
 Hart, Re, Ex parte Green, (1912) 3 K. B. 6; 81 L. J. K. B.743; 
 
 107 L. T. 368; 19 Manson, 130 119, 453 
 
 Hart v. Hart (1841), 1 Hare, 1 110 
 
 Hart v. Windsor (1843), 12 M. & M. 68; 13 L. J. Ex. 129 314 
 
 Harter v. Colman (1882), 19 Ch. D. 630; 51 L. J. Ch. 681 220 
 
 Harvey v. Gillow, (1893) 1 Ch. 567; 62 L. J. Ch. 323; 68 L. T. 
 
 562; 41 W. R. 593 490 
 
 G— C. d 
 
1 
 
 TABLE OF CASES. 
 
 f PAGE 
 
 Haslewood v. Consolidated Co. (1890), 63 L. T. 71; 39 W. It. 55; 6 
 T. L. R. 315 280 
 
 Hastie’s Trusts, Re (1887), 35 Ch. D. 728; 56 L. J. Ch. 974; 56 L. T. 
 
 168; 35 W. R. 692 502 
 
 Hatch v. Hatch (1804), 9 Ves. 292; 32 E. R. 615; 1 Smith, 226 30 
 
 Hatzfelt-Wildenburg v. Alexander, (1912) 1 Ch. 284 38 
 
 Havens v. Middleton (1853), 10 Ha. 641; 22 L. J. Ch. 746; 17 
 
 Jur. 271 330 
 
 Hayes, Re, Turnbull v. Hayes, (1900) 2 Ch. 332; 69 L. J. Ch. 691; 
 
 83 L. T. 152 486 
 
 Haynes, Re, Kemp v. Haynes (1887), 37 Ch. D. 306 442 
 
 Haynes v. Haynes (1861), 1 D. & S. 426; 62 E. R. 442; 30 L. J. C. 
 
 578; 7 Jur. 1ST. S. 595; 4 L. T. 199; 9 W. R. 497 200 
 
 Haywood v. Brunswick Building Society (1881), 8 Q. B. D. 403; 51 
 
 L. J. Q. B. 73; 45 L. T. 699; 30 W. R. 299 152 
 
 Hazle’s Settled Estates, Re (1884), 29 Ch. D. 428; 53 L. J. Ch. 574; 
 
 50 L. T. 530; 32 W. R. 701 444 
 
 Hearle v. Greenbank (1749), 3 Atk. 695 6 
 
 Heath v. Crealock (1874), E. R. 10 Ch. App. 30 131 
 
 Hele v. Bond (1713), Rr. Ch. 474 528 
 
 Hellier v. Casbard (1666), 1 Sid. 266 312 
 
 Helps v. Clayton (1864), 17 C. B. N. S. 533 376 
 
 Henderson v. Hay (1792), 3 Bro. C. C. 632 320 
 
 Henderson v. Thorn, (1893) 2 Q. B. 164; 62 L. J. Q. B. 586; 69 L. T. 
 
 430; 41 W. R. 509; 5 R. 404 329 
 
 Henry v. Armstrong (1881), 18 Ch. D. 668; 44 L. T. 918; 30 W. R. 472.. 453 
 
 Hensler, Re, Jones v. Hensler (1881), 19 Ch. D. 612 490 
 
 Henty v. Wrey (1882), 19 Ch. D. 492; 45 L. T. 275; 30 W. R. 715... 534 
 Herbage Rents Charity, Re, (1896) 2 Ch. 811; 65 L. J. Ch. 871; 
 
 75 L. T. 148; 45 W. R. 74; 12 T. L. R. 621 207 
 
 Herne v. Bembow (1813), 4 Taunt. 764 313 
 
 Herring, Re, (1908) 2 Ch. 493; 77 L. J. Ch. 665; 99 L. T. 144; 
 
 24 T. L. R. 747 510 
 
 Herron v. Martin (1911), 27 T. L. R. 431 365 
 
 Heseldine, Re (1886), 31 Ch. D. 511 503 
 
 Heseltine v. Simmons, (1892) 2 Q. B. 547; 62 L. J. Q. B. 5; 67 
 
 L. T. 611; 41 W. R. 67 276, 285 
 
 Hester v. Hester (1887), 34 Ch. D. 607; 56 L. J. Ch. 247; 55 L. T. 
 
 669, 862; 35 W. R. 233 540, 550 
 
 Hetherington v. Groome (1884), 13 Q. B. D. 789; 53 L. J. Q. B. 
 
 576; 51 L. T. 412; 33 W. R. 103 277, 280 
 
 Hetling and Merton’s Contract, Re, (1893) 3 Ch. 269; 62 L. J. Ch. 
 
 783; 69 L. T. 266; 42 W. R. 19; 9 T. L. R. 553 71, 168 
 
 Hewer v. Cox (1860), 3 E. & E. 428; 30 L. J. Q. B. 73; 6 Jur. 1339; 
 
 3 L. T. 508; 9 W. R. 143 286 
 
 Hickman v. Isaacs (1861), 4 L. T. 285 336 
 
 Hicks v. Sallitt (1853), 3 De G. M. & G. 782 135 
 
 Hickson v. Darlow (1883), 23 Ch. D. 690; 52 L. J. Ch. 453; 48 L. T. 
 
 449; 31 W. R. 417 264, 274, 293 
 
TABLE OF CASES. H 
 
 i PAGE 
 
 Higgins and Percival’s Contract, Re (1888), 57 L. J. Ch. 807 ; 59 
 
 L. T. 213 53 
 
 Higginson v. Clowes (1808), 15 Ves. 516 80 
 
 Highett and Bird’s Contract, Re, (1903) 1 Ch. 287 53, 78 
 
 Higinbotham v. Holme (1811), 19 Ves. 88 382 
 
 Hill, Re, Official Receiver v. Ellis (1895), 2 Manson, 208 280 
 
 Hill v. Crook (1873), L. R. 6 H. L. 265 501, 502 
 
 Hill v. Edward (1885), 1 Times L. R. 253 324 
 
 Hill v. Kirkwood (1880), 42 L. T. 105; 28 W. R. 358 273 
 
 Hill v. Schwarz, (1892) 3 Ch. 510; 62 L. J. Ch. 55; 67 L. T. 77; 
 
 41 W. R. 120 378, 379 
 
 Hillary v. Waller (1805), 12 Ves. 239; 33 E. R. 92 109 
 
 Hinchinbrooke (Lord) v. Seymour (1784), 1 Bro. Ch. Ca. 395; 28 
 
 E. R. 1200 534 
 
 Hiscocks, In the goods of, (1901) P. 78 461 
 
 Hobbs v. Tuthill (1895), 1 Ir. R. 115 382 
 
 Hobson v. Bell, 2 Beav. 17 62, 64 
 
 Hobson v. Gorringe, (1897) 1 Ch. 182 224 
 
 Hobson v. Tulloch, (1898) 1 Ch. 424; 67 L. J. Ch. 205; 78 L. T. 224; 
 
 46 W. R. 331; 14 T. L. R. 241 336 
 
 Hodgens v. Keen (1894), 2 Ir. L. R. 157 58 
 
 Plodges v. Earl of Lichfield (1835), 1 Bing. N. C. 492 59 
 
 Hodges v. Hodges (1882), 20 Ch. D. 749 12 
 
 Hodgkinson v. Cooper (1846), 9 Beav. 304; 15 L. J. Ch. 160; 50 
 
 E. R. 361; 10 Jur. 39 119 
 
 Hodgkinson v. Crowe (1875), L. R. 19 Eq. 591; L. R. 10 Ch. App. 
 
 622; 44 L. J. Ch. 239; 33 L. T. 388; 23 W. R. 885 320 
 
 Hodgson’s Settled Estates, Re, Altamont v. Forsyth, (1912) 1 Ch. 784; 
 
 81 L. J. Ch. 376; 106 L. T. 456 426 
 
 Hodgson v. Clark (1860), 1 De G. F. & J. 394 483 
 
 Hodgson v. Dean (1825), 2 S. & S. 221; 57 E. R. 330; 3 L. J. (O. S.) 
 
 Ch. 95 161 
 
 Hodgson v. Halford (1879), 11 Ch. D. 959 497 
 
 Ilodson and Howe’s Contract, Re (1887), 35 Ch. D. 668; 56 L. J. Ch. 
 
 755; 56 L. T. 837; 35 W. R. 553 226, 250 
 
 Hodson v. Ball (1845), 14 Sim. 547 473 
 
 Holder v. Preston (1769), 2 Wils. 400 477 
 
 Holford, Re, Holford v. Holford, (1894) 3 Ch. 30; 63 L. J. Ch. 638... 387 
 
 Holland, Re, (1902) 2 Ch. 360 38 
 
 Holland, Re, Gregg v. Holland, (1902) W. N. 90 376, 449 
 
 Holloway Bros., Ltd. v. Hill, (1902) 2 Ch. 612; (1902) W. N. 149... 148, 
 
 318, 319, 338 
 
 Holloway v. York (1877), 25 W. R. 627 85 
 
 Holme v. Brunskill (1878), 3 Q. B. D. 495; 47 L. J. C. P. 610; 
 
 38 L. T. 838 363 
 
 Holmes v. Penney (1857), 26 L. J. Eq. 181 450 
 
 Holyland v. Lewin (1883), 26 Ch. D. 266; 53 L. J. Ch. 530; 51 L. T. 
 
 14; 32 W. R. 443 491 
 
 Homan, Ex parte, Re Broadbent (1871), L. R. 12 Eq. 598; 19 W. R. 
 
 1058 273, 286 
 
lii 
 
 TABLE OF CASES. 
 
 PAGE 
 
 Hood, Re (1893), 68 L. T. 591; 42 W. R. 23 264, 266 
 
 Hoole v. Smith (1881), 17 Ch. D. 434 226 
 
 Hooley v. Hatton (1772), 1 Bro. C. C. C i9, n 492 
 
 Hopcraft v. Iiopcraft (1897), 76 L. T. 341 46 
 
 Hope’s Settled Estates, Re (1910), 26 T. L. R. 413 424, 440 
 
 Hope’s Settled Estates, Re, De Cetto v. Hope, (1899) 2 Ch. 679 440 
 
 Hope’s Settlement, (1899) 2 Ch. 679; 68 L. J. Ch. 625; 81 L. T. 141; 
 
 47 W. R. 641 424, 440 
 
 Hopkinson v. Chamberlain, (1908) 1 Ch. 853; 77 L. J. Ch. 567; 98 
 
 L. T. 835 112 
 
 Hopkinson v. Rolt (1861), 9 H. L. C. 514; 34 L. J. Ch. 468 247 
 
 Horlock, Re, Calham v. Smith, (1895) 1 Ch. 516; 64 L. J. Ch. 325; 
 
 72 L. T. 223; 43 W. R. 410 492 
 
 Horn v. Beard, (1912) 3 K. B. 181; 81 L. J. K. B. 935; 107 
 
 L. T. 87 317 
 
 Horsefall v. Mather (1815), Holt, N. P. 7 313 
 
 Horsey Estate, Limited v. Steiger, (1899) 2 Q. B. 79; 68 L. J. Q. B. 
 
 743; 80 L. T. 857 343 
 
 Horsley v. Style (1893), 69 L. T. 222; 4 R. 574 290 
 
 Hotham, Re, Hotham v. Doughty, (1901) 2 Ch. 790; (1902) 2 Ch. 
 
 575; (1902) W. N. 148 428 
 
 Houghton Estate, Re (1885), 30 Ch. D. 102; 55 L. J. Ch. 37; 53 
 
 L. T. 196; 33 W. R. 869 440, 443 
 
 Howard v. Fanshawe, (1895) 2 Ch. 581; 64 L. J. Ch. 666; 73 L. T. 
 
 77; 43 W. R. 645 344, 34a 
 
 Howard v. Harris (1683), 1 Vern. 192; 2 Wh. &, Tud. L. C. Eq. 
 
 (7th ed.) 11 215 
 
 Howard v. Maitland (1883), 11 Q. B. D. 695; 53 L. J. Q. B. 42 144 
 
 Howe, Re, (1908) W. N. 223 509 
 
 Howe v. Dartmouth (1802), 7 Ves. 137 476 
 
 Howe v. Smith (1884), 27 Ch. D. 89; 50 L. T. 573; 32 W. R. 802... 58, 
 
 75, 89 
 
 Ilowgate and Osborn’s Contract, Re, (1902) 1 Ch. 451; 71 L. J. Ch. 
 
 279; 86 L. T. 180 12 
 
 Hubert v. Treherne (1842), 3 M. & G. 743 37 
 
 Hucklesby and Atkinson’s Contract, In re, 102 L. T. 214 59 
 
 Huddlestone, Re, Bruno v. Eyston, (1894) 3 Ch. 595; 64 L. J. Ch. 
 
 157; 43 W. R. 139 486 
 
 Huffell v. Armitstead (1835), 7 C. & P. 56 367 
 
 Hugall v. APLean (1885), 53 L. T. 94 327 
 
 Hughes and Ashley’s Contract, Re, (1900) 2 Ch. 595; 69 L. J. Ch. 741; 
 
 83 L. T. 390; 49 W. R, 67 138 
 
 Hughes v. Little (1886), 18 Q. B. D. 32; 56 L. J. Q. B. 96; 55 L. T. 
 
 476; 35 W. R. 36 279 
 
 Hughes v. Pump House Hotel Co., (1902) 2 Iv. B. 190; (1902) W. N. 
 
 124 178 
 
 Hughes v. Wynne (1836), 8 Sim. 85 101 
 
 Hugucnin v. Baseley (1807), 1 Wh. Tud. L. C. Eq. (7th ed. vol. 1), 
 247 
 
 30 
 
TABLE OF CASES. 
 
 liii 
 
 PAGE 
 
 Humber v. Richards (1890), 45 Ch. D. 589; 59 L. J. Ch. 728 180 
 
 Humble v. Shore (1847), 7 Hare, 247 478 
 
 Hume, Re, Forbes v. Hume, (1895) 1 Ch. 422; 64 L. J. Ch. 267; 72 
 
 L. T. 68; 43 W. R. 291 25 
 
 Hume v. Lopes, (1892) A. C. 112; 61 L. J. Ch. 423; 66 L. T. 425; 
 
 40 W. R. 593 392 
 
 Humphrey v. Humphrey (1851), 1 Sim. N. S. 536; 20 L. J. Ch. 425... 508 
 Humphreys, Re, Humphreys v. Levett, (1893) 3 Ch. 1; 62 L. J. Ch. 
 
 498; 68 L. T. 780; 41 W. R. 390; 9 T. 138, 454 386 
 
 Humphreys v. Morton, (1905) 1 Ch. 739; 74 L. J. Ch. 370; 92 L. T. 
 
 834; 53 W. R. 552 344 
 
 Hunt, Ex parte, Re Cann (1884), 13 Q. B. D. 36 .- 284 
 
 Hunt, Re, (1906) 2 Ch. 11; 75 L. J. Ch. 496; 94 L. T. 747 428, 443 
 
 Hunt v. Luck, (1902) 1 Ch. 428 12 
 
 Hunt v. White (1868), 37 L. J. Ch. 326 145 
 
 Hunter and Hewlett, Re, (1907) 1 Ch. 46; 76 L. J. Ch. 26; 95 
 
 L. T. 674 414 
 
 Hunter v. Nock olds (1850), 19 L. J. Ch. 177; 1 Mac. & G. 640; 41 
 
 E. R. 1413 322 
 
 Ilurlbalt and Chaytor, Re (1888), 57 L. J. Ch. 421 41 
 
 Hurlbatt, In re, Hurlbatt v. Hurlbatt, (1910) 2 Ch. 553; 80 L. J. Ch. 
 
 29; 103 L. T. 585 474 
 
 Hunst v. Hurst (1882), 21 Ch. D. 278; 51 L. J. Ch. 729; 46 L. T. 899... 513 
 
 Hussey v. Horne Payne (1879), 4 App. Cas. 311 37, 38 
 
 Huxham v. Llewellyn (1873), 21 W. R. 570 91 
 
 Hyde v. Warden (1877), 3 Ex. D. 72; 47 L. J. Ex. 121; 37 L. T. 567; 
 
 26 W. R. 201 123, 320, 334, 335, 338 
 
 Hyman v. Rose (1912), 81 L. J. K. B. 1062; 106 L. T. 907; 28 
 T L. R. 432; (1912) W. N. 146 340 
 
 I. 
 
 Imperial Loan Co. v. Stone, (1892) 1 Q. B. 599; 61 L. J. Q. B.449; 
 
 66 E. T. 556; 8 T. L. R. 408 8, 10, 299 
 
 Imray v. Oakshette, (1897) 2 Q. B. 218; 66 L . J. Q. B. 545; 76 
 
 L. T. 632 341 
 
 Inderwick v. Leech (1884), 1 C. & E. 412; 1 T. L. R. 484 328 
 
 Inderwick v. Tatchell, (1903) A. C. 120; (1903) W. N. 52 511 
 
 Ingall, Re, (1904) 1 Ch. 120 497 
 
 Ingham v. Rayner, (1894) 2 Ch. 83; 63 L. J. Ch. 437; 70 L. T. 
 
 825; 42 W. R. 520 481, 504 
 
 Ingle v. Richards (1860), 28 Beav. 366 468 
 
 Inman v. Stamp (1815), 1 Starkie, 12 34 
 
 Innes v. Sayer (1831), 3 Mac. & G. 606 486 
 
 Isaacs v. Towell, (1898) 2 Ch. 285; 67 L. J. Ch. 508; 78 L. T. 619 69 
 
liv 
 
 TABLE OF CASES. 
 
 PAGE 
 
 Isaacson, Re, Ex parte Mason, (1895) 1 Q. B. 333; 64 L. J. Q. B. 191; 
 
 71 L. T. *812 ; 43 W. R. 278; 11 T. L. R. 416 266 
 
 Isherwood v. Oldknow (1815), 3 M. & S. 382 303 
 
 Izard, Ex parte, Re Chappie (1883), 23 Ch. D. 409; 52 L. J. Ch. 802; 
 
 49 L. T. 230; 32 W. R. 218 272 
 
 J. 
 
 Jackson and Haden’s Contract, Re, (1906) 1 Ch. 412; 75 L. J. Ch. 
 
 226; 94 L. T. 418; 54 W. R. 434 68 
 
 Jackson and Oakshott, Re (1880), 14 Ch. D. 851; 49 L. J. Ch. 253; 
 
 28 W. R. 794 68 
 
 Jackson and Woodburn’s Contract, Re (1887), 37 Ch. D. 44 125 
 
 Jackson, Re, (1902) 1 Ch. 315 415 
 
 Jackson, Re (1887), 34 Ch. D. 732 214 
 
 Jacobs v. Revell, (1900) 2 Ch. 858 59, 64 
 
 Jacomb v. Harwood (1751), 2 Ves. sen. 265 302 
 
 Jacques v. Harrison (1884), 12 Q. B. D. 165 341 
 
 Jago v. Jago (1893), 68 L. T. 654 514 
 
 Janies v. Janies (1873), L. R. 16 Eq. 153; 42 L. J. Ch. 386; 21 W. R. 
 
 522 219, 251 
 
 Janies v. Shore (1876), 1 Stark. N. P. C. -426; 55 L. T. 727; 35 
 
 W. R. 132 94 
 
 Jameson, In re, King v. Winn, (1908) 2 Ch. Ill; 77 L. J. Ch. 729; 
 
 98 L. T. 745 466 
 
 Jared v. Clements, (1903) 1 Ch. 428; 72 L. J. Ch. 291; 88 L. T. 
 
 97; 51 W. R. 401 122 
 
 Jarrett v. Hunter (1886), 34 Ch. D. 182; 56 L. J. Ch. 141 36 
 
 Jarvis v. Jarvis (1893), 63 L. J. Ch. 10; 69 L. T. 412; W. N. 
 
 (1893) 138 35, 267 
 
 Jeans, Re (1895), 72 L. T. 835 503 
 
 Jefferys v. Jefferys (1841), 1 C. & P. 138 454 
 
 Jenkins and Randall’s Contract, Re, (1903) 2 Ch. 362 26 
 
 Jenkins v. Price, (1907) 2 Ch. 229; 76 L. J. Ch. 507; 23 T. L. R. 
 
 608; (1908) 1 Ch. 10 332 
 
 Jenner v. Jenner (1866), L. R. 1 Eq. 361; 35 L. J. Ch. 329; 12 Jur. 
 
 138; 14 W. R. 305 131 
 
 Jenner v. Turner (1880), 50 L. J. Ch. 161 497 
 
 Jennings v. Jordan (1881), 6 App. Cas. 698 219 
 
 Jobson, Re, Jobson v. Richardson (1890), 44 Ch. D. 154; 59 L. J. 
 
 Ch. 245; 62 L. T. 148 494 
 
 John Bros. Abergarw Brewery Co. v. Holmes, (1900) 1 Ch. 188; 69 
 
 L. J. Ch. 149; 81 L. T. 771; 48 W. R. 236; 64 J. P. 153 236 
 
 John Griffith Cycle Co. v. Humber, (1899) 2 Q. B. 418 37 
 
 Johns v. Ware, (1899) 1 Ch. 359; 68 L. J. Ch. 155; 80 L. T. 112 270 
 
 Johnson, Re (1881), 20 Ch. I). 389 450 
 
TABLE OF CASES. 
 
 iv 
 
 PAGE 
 
 Johnson and Tustin, Re (1885), 30 Ch. D. 42; 54 L. J. Ch. 889; 53 
 
 L. T. 281; 33 W. R. 737 54, 100 
 
 Johnson v. Diprose, (1893) 1 Q. B. 512; 62 L. J. Q. B. 291; 68 L. T. 
 
 485; 41 W. R. 371 292 
 
 Johnson v. Evans (1860), 61 L. T. 18 217 
 
 Johnson v. Johnson (1843), 3 Hare, 157; 67 E. R. 336; 13 L. J. Ch. 
 
 79; 8 Jar. 77 489 
 
 Johnson v. Legard (1817), 3 Madd. 283; 6 M. & S. 60 449 
 
 Johnston v. Boyes, (1899) 2 Ch. 73 58 
 
 Joliffe v. Baker (1883), 11 Q. B. D. 255; 52 L. J. Q. B. 609; 48 
 
 L. T. 966; 32 W. R. 59 45 
 
 Jones v. Barnett, (1900) 1 Ch. 370 129 
 
 Jones v. Carter (1846), 15 M. & W. 718 339 
 
 Jones v. Frost (Re Fiddey) (1872), L. R. 7 Ch. App. 773 131 
 
 Jones v. Gardiner, (1902) 1 Ch. 191; 71 L. J. Ch. 93; 86 L. T. 
 
 74; 50 W. R. 265 89 
 
 Jones v. Harris (1871), L. R. 7 Q. B. 157; 47 L. J. Q. B. 6 287 
 
 Jones v. Humphreys, (1902) 1 K. B. 10; 71 L. J. K. B. 23; 85 
 
 L. T. 488; 50 W. R. 191 178 
 
 Jones v. Jones (1806) (1), 12 Ves. 186 305 
 
 Jones v. Jones (1876) (2), 1 Q. B. D. 279 496 
 
 Jones v. Lavington, (1903) 1 K. B. 253; 72 L. J. K. B. 98; 88 L. T. 
 
 223; 51 W. R. 161 312 
 
 Jones v. Manchester (Lady) (1673), Ventr. 197 528 
 
 Jones v. Mills (1861), 10 C. B. 788; 31 L. J. C. P. 66; 8 Jur. 387 367 
 
 Jones v. Rimmer (1880), 14 Ch. D. 588; 49 L. J. Ch. 775; 43 L. T. 
 
 Ill; 29 W. R. 165 41 
 
 Jones v. Roberts (1890), 9 Law Notes, 78; 34 Sol. Jour. 254 275 
 
 Jones v . Watts (1890), 43 C. D. 574; 62 L. T. 471; 38 W. R. 725; 
 
 6 T. L. R. 168 49, 50 
 
 Joyner v. Weeks, (1891) 2 Q. B. 31; 60 L. J. Q. B. 510; 65 L. T. 
 
 16; 39 W. R. 538 328, 329 
 
 Judd and Poland and Skelcher’s Contract, Re, (1906) 1 Ch. 684; 75 
 
 L. J. Ch. 403; 94 L. T. 595; 54 W. R. 513 301 
 
 K. 
 
 Kearsley v. Woodcock (1843), 3 Ha. 185 499 
 
 Keates v. Lyon (1869), L. R. 4 Ch. App. 218 150 
 
 Keck and Hart, Re, (1898) 1 Ch. 617 414, 424, 437, 442 
 
 Kedwell and Flint, In re, (1911) 1 Iv. B. 797; 80 L. J. Iv. B. 707; 
 
 104 L. T. 151; 55 S. J. 311 358 
 
 Keeble and Stillwell’s Fletton Brick Co. (1898), 78 L. T. 383 70, 71 
 
 Keech v. Hall (1779), 1 Smith, L. C. 494 (10th ed.); 1 Doug. 21 233 
 
 Keiley v. Monk (1795), 3 Ridge. 205 498 
 
 Keith, Prowse & Co. v. National Telephone Co., (1894) 2 Ch. 147; 
 
 63 L. J. Ch. 373; 70 L. T. 276; 42 W. R. 280 366 
 
lvi 
 
 TABLE OF OASES. 
 
 PAGE 
 
 Kekewich v. Manning (1'851), 1 De G. M. & G. 176; 42 E. R. 519; 
 
 21 L. J. Ch. 577; 18 L. T. 0. S. 263; 16 Jur. 625 454 
 
 Kelly v. Rogers, (1892) 1 Q, B. 910; 61 L. J. Q. B. 604; 36 L,. T. 
 
 582; 40 W. R. 516 347 
 
 Kemeys-Tynte, Re, (1892) 2 Ch. 211 421 
 
 Kemp v. Bird (1877), 5 Ch. D. 974 338 
 
 Kemp v. Derrett (1814), 3 Camp. 510 309 
 
 Kemp v. Lester, (1896) 2 Q. B. 162; 65 L. J. Q. B. 532; 74 L. T. 
 
 268; 44 W. R. 453; 12 T. L. R. 292 239 
 
 Kemp v. Sober (1851), 1 Sim. N. S. 517 335 
 
 Kempson v. Ashbee (1874), L. R. 10 Ch. App. 15; 44 L. J. Ch. 195; 
 
 31 L. T. 525; 23 W. R. 38 516 
 
 Kempster, Re, (1906) 1 Ch. 446; 75 L. J. Ch. 286; 94 L, T. 248; 
 
 54 W. R. 385 470 
 
 Kennard v. Futvoye (1860), 2 Giif. 81 ; 29 L. J. Ch. 553; 2 L. T. 30 218 
 
 Kennedy v. De Trafford, (1896) 1 Ch. 762; 44 W. R. 454; W. N". 
 
 (1896) 31 228 
 
 Kensington, Ex parte (1813), 2 V. & B. 79; G. Cooper, 66; 2 Rose, 
 
 138; 35 E. R. 249 251 
 
 Kent County Gas Light and Coke Co., Re, (1909) 2 Ch. 195; 78 
 
 L. J. Ch. 625; 100 L. T. 983; (1909) W. N. 128 161 
 
 Keppell v. Bailey (1834), 2 M. & K. 517 148 
 
 Kerford v. Seacombe, &c. Rail. Co. (1888), 57 L. J. Ch. 270 135 
 
 Kermode v. Macdonald (1868), L. R. 1 Eq. 459; 3 Ch. App. 584; 35 
 
 L. J. Ch. 358; 14 W. R. 415 465 
 
 Kerr v. Pawson (1858), 25 Beav. 394; 27 L. J. Ch. 594 51 
 
 Kershaw, Re, Drake v. Kershaw (1888), 37 Ch. D. 674; 57 L. J. 
 
 Ch. 599; 58 L. T. 512; 36 W. R. 413 88 
 
 Ketsey’s Case (1614), Cro. Jac. 320 299 
 
 Kidd, Re, Brooman v. Withall, (1894) 3 Ch. 558; 63 L. J. Ch. 855; 
 
 71 L. T. 481; 43 W. R. 51; 13 R. 101 467 
 
 Kidd and Gibbon’s Contract, Re, (1893) 1 Ch. 695 125 
 
 Kilpin v. Kilpin (1834), 1 M. & K. 520 3 
 
 King v. Cleveland (1859), 4 De G. & J. 477 ; 28 L. J. Ch. 835 506 
 
 King v. Jones (1814), 5 Taunt. 418 145 
 
 King v. Mullins (1852), 1 Drew. 308 515 
 
 King v. Smith, (1900) 2 Ch. 425; 69 L. J. Ch. 598; 82 L. T. 815... 168 
 
 King v. Smith, 2 Hare, 239 233 
 
 Kingsbury Collieries, Limited, and Moore’s Contract, In re, (1907) 2 
 Ch. 259; 76 L. J. Ch. 469; 96 L. T. 829; 14 Manson, 212; 23 
 
 T. L. R. 497 18 
 
 Kinsman v. Rouse (1881), 50 L. J. Ch. 486 218 
 
 Kirby v. Potter (1799), 4 Ves. 748 465 
 
 Kirby v. School Board for Harrogate, (1896) 1 Ch. 437; 65 L. J. Ch. 
 
 376; 74 L. T. 6; 12 T. L. R. 175 149 
 
 Kirkland v . Briancourt (1890), 6 T. L. R. 441 346 
 
 Kirkland v. Peatfield, (1903) 1 K. B. 756; 74 L. J. K. B. 355; 88 
 
 L. T. 472; 51 W. R. 544; 19 T. L. R. 362 210 
 
 Kirkman v. Booth (1848), 11 Beav. 273 475 
 
TABLE OF CASES. 
 
 lvii 
 
 PAGE 
 
 Kitchin v. Myers, W. N. (1886) 64 504 
 
 Hatton v Hewitt, (1904) W. N. 21 93 
 
 Knight v. Browne (1861), 30 L. J. Ch. 649; 4 Li. T. 206; 9 W. R. 515... 382 
 
 Knight v. Marjoribanks (1849), 2 M. & G. 10 32 
 
 Knight v. Williams, (1901) 1 Ch. 256; 70 L. J. Ch. 92; 83 L. T. 
 
 730; 49 W. R. 427 363, 364 
 
 Knott, Re (1877), 7 Ch. D. 549, n 290 
 
 L. 
 
 Labouchere v. Dawson (1872), L. R. 13 Eq. 322; 41 L. J. Ch. 427; 
 
 25 L. T 894; 20 W. R. 309 ! 182 
 
 Lacey, Re (1883), 25 Ch. D. 301; 53 L. J. Ch. 287; 49 L. T. 1ST. S. 
 
 755; 32 W. R. 233 547, 549 
 
 Lacon, Re, (1911) 2 Ch. 17; 80 L. J. Ch. 610; 104 L. T. 840; 55 
 
 S. J. 551; 27 T. L. R. 485 426 
 
 Lacon v. Allen (1856), 3 Drew. 579; 26 L. J. Ch. 18; 61 E. R. 1024; 
 
 4 W. R. 693 250 
 
 Lacon v. Mertins (1743), 3 Atk. 4 242 
 
 Lamb v. Brewster (1879), 4 Q. B. D. 220, 607; 48 L. J. Q. B. 421; 
 
 40 L. T. 537; 27 W. R. 478 325 
 
 Lambert, Re, (1908) 2 Ch. 117; 77 L. J. Ch. 553; 98 L. T. 851 473 
 
 Lancefield v. Iggulden (1874), L. R. 10 Ch. App. 136; 44 L. J. Ch. 
 
 203; 31 L. T. 813; 23 W. R. 223 465 
 
 Lander and Bagley’s Contract, Re, (1892) 3 Ch. 41; 61 L. J. Ch. 707; 
 
 67 L. T. 521 125, 305, 306, 320 
 
 Lane v. Cox, (1897) 1 Q. B. 415 314 
 
 Lane v. Tyler (1887), 56 L. J. Q. B. 461 292 
 
 Langham and The Langham Hotel Co., Re (1890), 60 L. J. Ch. 110; 
 
 39 W. R. 156; W. N. (1900) 213 145, 147 
 
 Langston, Ex parte (1810), 17 Yes. 227 251 
 
 Langton v. Henson (1905), 92 L. T. 805 333 
 
 Lantsburry v. Collier (1856), 2 K. & J. 709; 25 L. J. Ch. 672 531 
 
 Laverv v. Pursell (1888), 39 Ch. D. 508 35, 36, 39 
 
 Law Guarantee and Trust Society v. Bank of England (1890), 24 
 
 Q. B. D. 406 20 
 
 Lawrence, Re, Bowker v. Austin, (1894) 1 Ch. 556; 63 L. J. Ch. 205... 376 
 
 Leach v. Thomas (1835), 7 C. & P. 327 313 
 
 Lear v. Edmonds (1817), 1 B. & A. 157 322 
 
 Lear v. Leggett (1830), 1 Russ. & M. 690 499 
 
 Learoyd v. Whiteley (1887), 12 App. Cas. 727 205 
 
 Leconfield's (Lord) Settled Estates, (1907) 2 Ch. 340; 76 L. J. Ch. 
 
 562; 97 L. T. 163; 23 T. L. R. 573 431 
 
 Lee v. Gaskell (1876), 1 Q. B. D. 700 34 
 
 Lee v. Howiett (1856), 2 Kay & J. 531 180 
 
 Lee v. Turner (1888), 20 Q. B. D. 773; 59 L. T. 320 285 
 
lviii 
 
 TABLE OF CASES. 
 
 PAGE 
 
 Leeds and Hanley Theatre of Varieties v. Broadbent, (1898) 1 Ch. 343; 
 
 77 L. T. 665; 67 L. J. Ch. 135; 46 W. R. 260 211 
 
 Leeds v. Cheetham (1827), 1 Sim. 146; 57 E. R. 533; 5 L. J. (0. S.) 
 
 Ch. 105 328 
 
 Leeming, In re, Turner v. Leeming, (1912) 1 Ch. 828; 81 L. J. Ch. 
 
 453; 106 L. T. 793 466 
 
 Lees v. Whitely (1866), L. R. 2 Eq. 143; 35 L. J. Ch. 412; 14 L. T. 
 
 472; 14 W. R. 539 330 
 
 Le Farrant v. Spencer (1748), 7 Ves. sen. 97 509 
 
 Legh’s Settled Estates, (1902) 2 Ch. 274 433 
 
 Leggott v. Barrett (1880), 15 Ch. D. 306; 43 L, T. 641; 28 W. R. 962... 182 
 Lehain v. Philpott (1875), L. R. 10 Ex. 242; 44 L. J. Ex. 225; 33 
 
 L. T. 98; 23 W. R. 876 322 
 
 Lehmann and Walker’s Contract, Re, (1906) 2 Ch. 640; 75 L. J. Ch. 
 
 708; 95 L. T. 259 55 
 
 Leigh v. Jack (1879), 5 Ex. D. 264 136 
 
 Leigh v. Leigh (1884), 40 Ch. D. 290; 56 L. J. Ch. 125; 55 L. T. 634... 374 
 
 Le Lievre and Dennes v. Gould, (1893) 1 Q. B. 491; 62 L. J. Q. B. 
 
 353; 68 L. T. 626; 41 W. R. 468 207 
 
 Le Neve v. Le Neve (1747), 3 Atk. 646; 26 E. R. 1172; Ambler, 436; 
 
 27 E. R. 291; 1 Ves. sen. 64; 2 White & Tudor’s L. C. Eq. 
 
 8th ed. 187 161 
 
 Leng and White, Re, 32 Ch. D. 34 66 
 
 Leslie, Re, Leslie v. French (1883), 23 Ch. D. 552; 52 L. J. Ch. 662; 
 
 48 L. T. 564; 31 W. R. 561 245 
 
 Leslie’s Hassop Estates, In re, (1911) 1 Ch. 611; 80 L. J. Ch. 486; 
 
 104 L. T. 563; 55 S. J. 384; 27 T. L. R. 352 437, 439 
 
 Lester v. Foxcroft (1701), Colles, P. C. 108; 1 E. R. 205; 2 White & 
 
 Tudor’s L. C. 8th ed. 464 39 
 
 Lester v. Garland (1832), 5 Sim. 205 382 
 
 Letchford, Re (1876), 2 Ch. D. 719 298 
 
 Lever v. Koffler, (1901) 1 Ch. 543; 70 L. J. Ch. 395; 84 L. T. 584; 
 
 49 W. R. 506 305 
 
 Leveson-Gower’s Settled Estates, Re, (1905) 2 Ch. 95; 92 L. T. 836; 
 
 53 W. R. 524 433 
 
 Levy and The Debenture Corporation, Re (1894), 42 W. R. 533 17 
 
 Levy v. Stogdon, (1898) 1 Ch. 478; 68 L. J. Ch. 19; 79 L. T. 364... 91 
 Levy v. Walker (1879), 10 Ch. D. 436; 48 L. J. Ch. 273; 39 L. T. 
 
 654; 27 W. R. 370 182 
 
 Lewin v. Guest (1828), 1 Russ. 325 96 
 
 Lewis v. Brass (1878), 3 Q. B. D. 667 37 
 
 Lewis v. Graham (1886), 80 Law Times Jour. 66 322 
 
 Lickorish, Ex parte (1890), 25 Q. B. D. 176; 59 L. J. Q. B. 500; 
 
 38 W. R. 482 253 
 
 Lidiard and Jackson’s Contract, Re (1889), 42 Ch. D. 254; 58 L. J. 
 
 Ch. 785; 37 W. R. 793 109 
 
 Life Interest and Reversionary Securities Corp. v. Hand in Hand Insur- 
 ance Co., (1898) 2 Ch. 230; 67 L. J. Ch. 548; 78 L. T. 708; 
 
 46 W. R 668 226 
 
TABLE OF CASES. lix 
 
 PAGE 
 
 Liles v. Terry and Wife, (r895) 2 Q. B. 679; 65 L. J. Q. B. 34; 73 
 
 L. T. 438; 44 W. R. 114 31 
 
 Lillie v. Legh (1858), 3 De G. & J. 204 305 
 
 Lindsay and Forder’s Contract, Re (1895), 12 L. T. 832 47 
 
 Linfoot v. Pockett, (1895) 2 Ch. 835; 64 L. J. Ch. 752; 73 L. T. 197; 
 
 44 W. R. 66; 11 T. L. R. 590 280 
 
 Lister v. Lane, (1893) 2 Q. B. 212; 62 L. J. Q. B. 583; 69 L. T. 
 
 176; 41 W. R. 626; 9 T. L. R. 503 327 
 
 Liverpool Commercial, &c. Soc. v. Richardson (1886), 55 L. J. Q. B. 
 
 455, n.; 2 T. L. R. 602 281 
 
 Llewellyn, Re, (1911) 1 Ch. 451; 80 L. J. Ch. 259; 104 L. T. 
 
 279; 55 S. J. 254 445 
 
 Lloyd, Re, Lloyd v. Lloyd, (1903) 1 Ch. 385 211 
 
 Lloyd v. Prichard, (1908) 1 Ch. 265; 77 L. J. Ch. 183; 97 L. T. 904... 378 
 Lloyds Bank and Lillington, Re, (1912) 1 Ch. 601; 81 L. J. Ch. 
 
 386; 106 L. T. 561 41 
 
 Lloyds Bank v. Pearson, (1901) 1 Ch. 865 180 
 
 Lock v. Pearce, (1893) 2 Ch. 271; 62 L. J. Ch. 582; 68 L. T. 589; 
 
 41 W. R. 369 340 
 
 Lockhart v. Hardy (1846), 9 Beav. 349; 50 E. R. 378; 15 L. J. Ch. 
 
 347; 10 Jur. 532 214 
 
 Loftus-Otway, Re, Otway v. Otway, (1895) 2 Ch. 235; 64 L. J. Ch. 
 
 529: 72 L. T. 656; 43 W. R. 501 498, 499 
 
 London and County Bank v. Nixon, (1901) 2 Ch. 231 252 
 
 London and County Banking Co. v. Goddard, (1897) 1 Ch. 642; 66 
 
 L. J. Ch. 261; 76 L. T. 277; 45 W. R. 310; 13 T. L. R. 223.. .242, 251 
 London and County Contracts v. Tallack (1903), 51 W. R. 408; 19 
 
 T. L. R. 156 160 
 
 London and Eastern Counties Loan and Discount Co. v. Creasy, (1897) 
 
 1 Q. B. 768; 66 L. J. Q. B. 503; 76 L. T. 612 271 
 
 London & N. W. Rail. Co. v. Garnett (1869), L. R. 9 Eq. 26 336 
 
 London & N. W. Rail. Co. v. MacMichael (1850), 5 Ex. 128 299 
 
 London & S. W. Rail. Co. v. Fowler (1875), 1 C. P. D. 77; 45 
 
 L. J. C. P. 54 327 
 
 London & S. W. Rail. Co. v. Gomm (1882), 20 Ch. D. 562; 51 L. J. 
 
 Ch. 530; 46 L. T. 549; 30 W. R. 620 149, 200 
 
 London and Suburban Land and Building Company v. Field (1881), 
 
 16 Ch. D. 645; 50 L. J. Ch. 549; 44 L. T. 444 336 
 
 London Bridge Acts, The, Re (1842), 13 Sim. 176 143 
 
 London (Mayor of) and Tubbs’ Contract, (1894) 2 Ch. 524 71 
 
 Long v. Millar (1878), 4 C. P. D. 450 36 
 
 Longbotham & Sons, Re, (1904) 2 Ch. 152 209 
 
 Lord and Fullerton’s Contract, Re, (1896) 1 Ch. 228; 65 L. J. Ch. 
 
 184; 73 L. T. 689; 44 W. R. 195 515 
 
 Lord Wimborne and Browne, Re, (1904) 1 Ch. 537 414, 437, 442 
 
 Loring v. Thomas (1861), 1 Dr. & Sm. 497 473 
 
 Love v. Love (1881), 7 L. R. Ir. 306 494 
 
 Lovejoy v. Carter (1815), 35 Beav. 149 502 
 
 Loveland, Re, (1906) 1 Ch. 542; 75 L. J. Ch. 314; 94 L. T. 336; 22 
 T. L R. 321 ,502 
 
lx 
 
 TABLE OF CASES. 
 
 PAGE 
 
 Low v. Bouverie, (1891) 3 Ch. 82; 60 L. J. Ch. 594 179 
 
 Lucas v. Williams (1861), 3 Giff. 150; 8 Jur. N. S. 207 475 
 
 Luker Dennis (1887), 7 Ch. D. 227; 47 L, J. Ch. 174; 37 L. T. 
 
 827; 28 W. R. 167 318, 337 
 
 Lumby v. Faupel (1903), '88 L. T. 564; 90 L. T. 140; 2 L. G. R. 
 
 605; 68 J. P. 265; 20 T. L. R. 237 324,325 
 
 Lumley v. Simmons (1886), 34 Ch. D. 698; 56 L. J. Ch. 329; 56 L. T. 
 
 134; 35 W. R. 422 279, 281 
 
 Lurcott v Wakeley, (1911) 1 K. B. 905; 80 L. J. K. B. 713; 104 
 
 L. T. 290; 55 S. J. 290 328 
 
 Lusty, Re (1889), 60 L. T. 160; 37 W. R. 304 270, 271 
 
 Lyon v. Greenhow (1892), 8 T. L. R. 457 324 
 
 Lyon v. Reed (1844), 13 M. & W. 285; 13 L. J. Ex. 377; 8 Jur. 762... 
 
 109, 863 
 
 Lyons v. Tucker (1881), 7 Q. B. D. 523 274 
 
 Lysaght v. Edwards (1876), 2 Ch. D. 506 82, 84 
 
 M. 
 
 Maas v. Pepper, (1905) A. C. 102; 74 L. J. K. B. 452; 92 L. T. 
 
 371; 53 W. R. 513; 12 Manson, 107; 21 T. L. R, 304 266 
 
 Maberley v. Strode (1797), 3 Ves. 450 512 
 
 Macey v. Gilbert (1888), 57 L. J. Q. B. 461 282 
 
 Macdonald v. Bryce (1838), 2 Keene, 276 474 
 
 Macdonald v. Irvine (1878), 8 Ch. D. 101 476 
 
 McEntire v. Crossley, (1895) A. C. 457; 64 L. J. P. C. 129; 72 
 
 L. T. 721 266 
 
 McFadden v. Jenkyns (1842), 1 Hare, 458 3 
 
 McGarel, Re, (1897) 1 Ch. 400; 76 L. T. 70 545, 553 
 
 MacGowan, Re, (1891) 1 Ch. 105 542, 544 
 
 McGruther v. Pilcher, (1902) 2 Ch. 306 152 
 
 McHattie, Ex parte, Re Wood (1878), 10 Ch. D. 398; 48 L. J. Bky. 
 
 26; 39 L. T. 373; 27 W. R. 327 285 
 
 Machu, Re (1882), 21 Ch. D. 838 498 
 
 Mackay v. Douglas (1872), L. R. 14 Eq. 106; 41 L. J. Ch. 539; 26 
 
 L. T. 721; 20 W. R. 652 450 
 
 McKenzie v. Childers (1889), 43 Ch. D. 265; 59 L. J. Ch. 188; 62 
 
 L. T. 98 150, 153 
 
 Mackreth v. Symmons (1808), 15 Ves. 329; 1 White & Tudor, L. C. 
 
 Eq. 355 92, 93 
 
 Macleay, Re (1875), L. R. 20 Eq. 186 498 
 
 McManus v. Cooke (1887), 35 Ch. D. 681 34, 39 
 
 McPherson v. Watt (1877), 3 App. Cas. 254 31 
 
 McQuater v. Fergusson (1911), S. C. 640 352 
 
 Maddison v. Alderson (1883), 8 App. Cas. 467 39 
 
 Maddy, Re, Maddy v. Maddy, (1901) 2 Ch. 820; 71 L. J. Ch. 18; 
 
 85 L. T. 341 379 
 
TABLE OF CASES. 
 
 lxi 
 
 PAGE 
 
 Madell v. Thomas & Co., (1891) 1 Q. B. 230; 60 L. J. Q. B. 227; 
 
 64 L. T. 9; 39 W. R. 280 266 
 
 Mahon and Sayer, Re, (1893) 1 Ch. 507; 62 L. J. Ch. 448; 68 L. T. 
 
 189; 41 W. R. 257 546, 551 
 
 Maitland v. Irving (1846), 15 Sim. 437 30 
 
 Makin v. Watkinson (1870), L. R. 6 Ex. 25 327 
 
 Malcolm v. Martin (1789), 3 Bro. C. C. 501 503 
 
 Mallot v. Wilson, (1903) 2 Ch. 494 514 
 
 Manchester Bonded Warehouse Co. v. Carr (1880), 5 C. P. D. 507; 49 
 
 L. J. C. P. 809; 43 L. T. 476; 29 W. R. 354 314 
 
 Manchester (Duke of), Re, (1910) 1 Ch. 106; 79 L. J. Ch. 408; 101 
 
 L. T. 892; 26 T. L. R. 5 426 
 
 M. S. & L. Ry. Co. v. Anderson, (1898) 2 Ch. 394 349 
 
 M. S. & L. Ry. Co. v. The North Central Waggon Co. (1888), 13 App. 
 
 Cas. 554; 58 L. J. Ch. 219; 59 L, T. 730; 37 W. R. 305... 263, 264,266 
 
 Mander v. Falcke, (1891) 2 Ch. 554 148 
 
 Manfield v, Dugard, 1 Eq. Ca. Abr. 194, pi. 4 494 
 
 Manning v. Gill (1872), L. R. 13 Eq. 485 8 
 
 Mannox v. Greener (1872), L. R. 14 Eq. 456; 27 L. T. 408 487, 509 
 
 Mansel’s Settled Estates, Re, W. N. (1884) 209 441 
 
 Manser v. Back (1848), 6 Hare, 443 46 
 
 Mansfield v. Relf, (1908) 1 K. B. 71; 71 J. P. 556; 24 T. L. R. 79 326 
 
 Mare, Re, Mare v. Howey, (1902) 2 Ch. 112; (1902) W. N. 9 385 
 
 Margravine of Anspach v. Noel (1816), 1 Mad. 310 123 
 
 Markham v. Paget, (1908) 1 Ch. 697; 77 L. J. Ch. 451; 98 L. T. 605; 
 
 24 T. L. R. 426 312, 348 
 
 M'arks v Derrick (1899), 80 L. T. 60 287 
 
 Marlborough’s Settlement, Re (1886), 32 Ch. 1). 1; 55 L. J. Ch. 339; 
 
 54 L. T. 914 426 
 
 Marples v. Hartley (1861), 3 E. & E. 610; 30 L. J. Q. B. 92; 3 L. T. 
 
 774; 9 W. R. 334 288 
 
 Marquis of Ailesbury and Lord Iveagh, Re, (1893) 2 Ch. 345 ; 62 L. J. 
 
 Ch. 713; 69 L. T. 101; 41 W. R. 644; 9 T. L. R. 324 413, 424 
 
 Marquis of Antrim v. Duke of Buckingham (1663), 1 Ab. Eq. 242 527 
 
 Marquis of Bristol’s Settled Estates, Re, (1893) 3 Ch. 161 ; 62 L. J. 
 
 Ch. 901; 69 L. T. 304; 42 W. R. 46 433 
 
 Marsden v. Meadows (1881), 7 Q. B. D. 80; 50 L. J. Q. B. 536; 29 
 
 W. R 816 266 
 
 Marsh v. Curteys (1595), Cro. Eliz. 528 346 
 
 Marsh v. Lee (1670), 1 White & Tudor’s L. C. Eq. 696 (1886 ed.) ; 2 
 
 Ventris, 337 247, 248 
 
 Marsh and Earl Granville, Re (1883), 24 Ch. D. 11 ; 53 L. J. Ch. 81 ; 
 
 48 L. T. 947 60, 125 
 
 Marshall and Salt’s Contract, Re, (1900) 2 Ch. 202; 69 L. J. Ch. 429... 334 
 Marshall v. Berridge (1881), 19 Ch. D. 233; 51 L. J. Ch. 329; 45 L. T. 
 
 595; 30 W. R. 94 305 
 
 Marshall v. Green (1875), 1 C. P. D. 35 34 
 
 Marshall v. Robertson (1905), Sol. J. Vol. 1, 75 649 
 
 Marshall v. Taylor, (1895) 1 Ch. 641; 64 L. J. Ch. 416; 72 L. T. 670... 137 
 
lxii 
 
 TABLE OF CASES. 
 
 PAGE 
 
 Marshall’s Settlement, Be, (1905) 2 Ch. 325; 74 L. J. Ch. 588; 93 
 
 L. T. 246; 54 W. E. 75; 21 T. L. K. 678 413 
 
 Marshfield, Be, Marshfield v. Hutchings (1887), 34 Ch. D. 721; 56 
 
 L. J. Ch. 599; 56 L. T. 694; 35 W. B. 491 211 
 
 Marten, Be, (1902) 1 Ch. 314; (1902) W. N. 2 485 
 
 Martin, Be (1889), 41 Ch. D. 381; 58 L. J. Ch. 478; 60 L. T. 555; 
 
 37 W. B. 497 550 
 
 Maskell and Goldfinch’s Contract, Be, (1895) 2 Ch. 525; 64 L. J. Ch. 
 
 678; 72 L. T. 836; 43 W. B. 620 6 
 
 Mason v. Mason (1889), 61 L. T. 304 474 
 
 Mason’s Orphanage, &c., Be, (1896) 1 Ch. 596; 65 L. J. Ch. 439; 74 
 
 L. T. 161; 44 W. B. 339; 12 T. L, B. 236 20 
 
 Master v. Hansard (1876), 4 Ch. D. 718; 46 L. J. Ch. 505; 36 L. T. 
 
 535; 25 W. B. 570 150 
 
 Masters and Beyfus, Be (1888), 39 Ch. D. 110 41, 64 
 
 Masters, In re, (1911) 1 Ch. 321; 80 L. J. Ch. 190; 103 L. T. 899; 
 
 55 S. J. 170 382 
 
 Matthews v. Buchanan (1888), 5 T. L. B. 373 286 
 
 Matthews v. Buggies Brise, (1911) 1 Ch. 194; 80 L. J. Ch. 42; 103 
 L. T. 491 393 
 
 Matthews v. Usher, (1900) 2 Q. B. 535; 69 L. J. Q. B. 856; 83 L. T. 
 
 353; 49 W. B. 40 ; 16 T. L. B. 493 341 
 
 May v. Belville, (1905) 2 Ch. 605 139 
 
 May v. Platt, (1900) 1 Ch. 616; 69 L. J. Ch. 357; 83 L, T. 123; 48 
 
 W. B. 617 81, 144 
 
 May v. Waters, (1910) 1 K. B. 431; 79 L. J. Q. B. 250; 102 L, T. 
 
 180; 74 J. P. 125; 26 T. L. B. 239 362 
 
 Mayer and Fulda v. Mindlevich (1888), 59 L. T. 400 284 
 
 Mayor of London, Ex parte (1887), 34 Ch. D. 452; 56 L. J. Ch. 308; 
 
 56 L. T. 13; 35 W. B. 210 542, 550 
 
 Mayor of London and Tubbs’ Contract, Be, (1894) 2 Ch. 524 71 
 
 Meade’s Settled Estates, Be (1897), 1 Ir. B. 121 437, 442 
 
 Mcars v. Callender, (1901) 2 Ch. 388; 70 L. J. Ch. 621; 84 L. T. 
 
 618; 49 W. B. 584; 65 J. P. 615 357 
 
 Mellersh v. Brown (1890), 45 C. H. 225; 60 L. J. Ch. 43; 38 
 
 W. B. 732 211 
 
 Mellor’s Trustee v. Maas, (1905) A. C. 102; (1905) W. N. 40 266 
 
 Melville v. Stringer (1884), 13 Q. B. D. 392; 53 L. J. Ch. 178; 50 
 
 L. T. 531; 32 W. B. 890 278,280 
 
 Melwich v. Luter (1588), 4 Bep. 26a 304 
 
 Mercantile Bank of London v. Evans', (1899) 2 |Q. B. 613; 81 L. T. 376... 178 
 
 Mercer, Ex parte, Be Wise (1886), 17 Q. B. D. 290 451 
 
 Merchant Taylors’ Co., Be (1885), 30 Ch. D. 28; 54 L. J. Ch. 867; 
 
 52 L. T. 775; 33 W. B. 693 544,549 
 
 Metcalfe, Be, (1909) 1 Ch. 424 473 
 
 Metcalfe, Be (1887), 57 L. J. Ch. 82; 57 L. T. 925; 36 W. B. 137... 540, 550 
 Metcalfe v. Metcalfe, (1891) 3 Ch. 1; 60 L. J. Ch. 647 500 
 
 Micklethwait v. Newlay Bridge Co. (1886), 33 Ch. D. 133; 55 L. T. 
 
 336; 51 J. P. 132 136 
 
 Middlemas v. Stevens, (1901) 1 Ch. 574; (1901) W. N. 24 443 
 
TABLE OF CASES. lxiii 
 
 PAGE 
 
 Middleton v. Magnay (1864), 2 H. & M. 233 93 
 
 Milch v. Coburn, 27 T. L. R. 372 336 
 
 Miles v. Knight (1848), 17 L. J. Ch. 458 110 
 
 Millard’s Settled Estates, Re, (1893) 3 Ch. 116; 62 L. J. Ch. 761 433 
 
 Millbank v. Vane, (1893) 3 Ch. 79; 62 L. J. Ch. 629; 68 L. T. 735 517 
 
 Miller, Re, Daniel v. Daniel (1889), 61 L. T. 365 509 
 
 Miller v. Hancock, (1893) 2 Q. B. 177; 69 L. T. 214; 41 W. R. 578; 
 
 4 R. 478 314 
 
 Miller v. Miller (1872), L. R. 13 Eq. 263 476 
 
 Miller v. Sharp, (1899) 1 Ch. 622 39 
 
 Mills, Re (1886), 34 Ch. D. 186 486 
 
 Mills’ Trusts, Re (1887), 40 Ch. D. 14; 60 L. T. 442; 37 W. R. 81 259 
 
 Mills v. Haywood (1877), 6 Ch. D. 106 91, 92 
 
 Mills v. United Counties Bank, (1912) 1 Ch. 231 147 
 
 Milne v. Gilbart (1854), 5 De G. M. & G. 510; 42 E, R. 1052; 23 
 
 L. J. Ch. 828; 2 W. R. 611 506 
 
 Milner’s Estate, Re (1872), L. R. 14 Eq. 245; 42 L. J. Ch. 44; 26 
 
 L. T. 825; 20 W. R. 823 Ill 
 
 Milnes, Re, 1 Ch. D. 28; 34 L. T. 46; 24 W. R. 98; W. N. (1899) 27... 486 
 
 Minter v. Carr, (1894) 3 Ch. 398; 63 L. J. Ch. 705; 71 L. T. 526 220 
 
 Mitchell’s Trusts, Re (1878), 9 Ch. D. 5 378 
 
 Mitchell v. Gard (1862), 3 S. & T. 80 481 
 
 Mitchell v. Homfray (1881), 8 Q. B. D. 587; 50 L. J. Q. B. 460; 
 
 45 L. T. 694; 29 W. R. 558 31 
 
 Mogridge v. Clapp, (1892) 3 Ch. 382; 67 L. T. 150; 61 L. J. Ch. 
 
 534; 40 W. R. 663 436 
 
 Molton v. Camroux (1848), 2 Exch. 487 ; 4 Exch. 17 8, 10, 299 
 
 Molyneux v. Hawtrey, (1903) 2 K. B. 487; 50 L. J. K. B. 460; 45 
 
 L. T. 694; 29 W. R. 558 44 
 
 Monckton and Gilzean, Re (1884), 27 Ch. D. 555; 51 L. T. 320; 32 
 
 W. R. 973 68 
 
 Monetary Advance Co. v. Cater (1888), 20 Q. B. D. 785; 57 L. J. 
 
 Q. B. 463 282 
 
 Monro v. Taylor (1848), 8 Hare, 60 83 
 
 Monson’s (Lord) Settled Estates, Re, (1898) 1 Ch. 427; 67 L. J. Ch. 
 
 176; 78 L. T. R. 225 423 
 
 Montague, Scott and Baker, Re, W. N. (1889) 40 551 
 
 Montague’s (The Lady) Case (1613), Cro. Jac. 301 304 
 
 Montefiore v. Guedalla, (1903) 2 Ch. 26; 72 L. J. Ch. 442; 88 L. T. 
 
 496; 19 T. L. R. 390; (1903) W. N. 184 397 
 
 Moody and Yate’s Contract, Re (1885), 30 Ch. D. 314; 54 L. J. Ch. 
 
 886; 53 L. T. 845; 33 W. R. 785 53, 54, 77 
 
 Moore and Hulme’s Contract, Re, (1912) 2 Ch. 105; 81 L. J. Ch. 503; 
 
 106 L. T. 330 258 
 
 Moore, Re, Ex parte Official Receiver (1897), 4 Mans. 51 282 
 
 Moore v. Frowd (1837), 3 M. & C. 45 394 
 
 Moore v. Johnson, (1891) 3 Ch. 48; 60 L. J. Ch. 499; 64 L. T. 696; 
 
 39 W. R. 509 374 
 
 Morewood v. South Yorkshire Co. (1858), 28 L. J. Ex. 114 286 
 
lxiv TABLE OF CASES. 
 
 PAGE 
 
 Morgan v. Britten (1871), L. R. 13 Eq. 18 503 
 
 Morgan v. Gronow (1873), L. R. 16 Eq. 1; 42 L. J. Ex. 152; 128 
 
 L. T. 434 531 
 
 Morgan v. Jeffreys, (1910) 1 Ch. 620 216 
 
 Morgan v. Minett (1877), 6 Ch. D. 645 31 
 
 Morgan v. Russell, (1909) 1 K. B. 357; 78 L. J. K. B. 187; 100 
 
 L. T. 118; 25 T. L. R. 120 89 
 
 Morley v. Bird (1798), Tud. Con. Cas. 876 (1879 ed.) 503 
 
 Morley v. Loughnan, (1893) 1 Ch. 736 31 
 
 Morley v. Rennoldson (1843), 2 Ha. 570 497 
 
 Morrice v. Aylmer (1875), L. R. 7 H. L. 717; 24 W. R. 587 510 
 
 Morris v. Delobbel-Flipo, (1892) 2 Ch. 352; 61 L. J. Ch. 518; 66 L. T. 
 
 320; 40 W. R. 492 269 
 
 Morris v. Morris (1853), 15 Sim. 505 488 
 
 Morrison v. Chadwick, 7 C. B. 266; 18 L. J. C. P. 189 349 
 
 Morritt, Re (1886), 18 Q. B. D. 222; 56 L. J. Q. B. 139; 56 L. T. 
 
 42; 35 W. R. 277 223, 280 
 
 Mortlock v. Buller (1804), 10 Vesey, 305 46 
 
 Morton v. Woods (1869), L. R. 4 Q. B. 293; 38 L. J. Q. B. 81 239 
 
 Moss v. James (1877), 47 L. J. Q. B. 160; 38 L. T. 595 364 
 
 Moule v. Garrett (1872), L. R. 7 Ex. 101; 41 L. J. Ex. 62; 26 L. T. 
 
 376; 20 W. R. 416 147, 176 
 
 Mourmand and Others v. Le Clair, (1903) 2 K. B. 216 280 
 
 Mumford v. Collier (1890), 25 Q. B. D. 279; 59 L. J. Q. B. 552; 
 
 38 W. R. 716 239, 267 
 
 Mundy and Roper, Re, (1899) 1 Ch. 275; 79 L. T. 583; 68 L. J. Ch. 
 
 135 414, 424, 437, 442 
 
 Mundy ’s Settled Estates, Re, (1891) 1 Ch. 399; 60 L. J. Ch. 273; 
 
 64 L. T. 29; 39 W. R. 209 413, 432 
 
 Municipal, Ac. Building Society v. Smith (1888), 22 Q. B. D. 70; 58 
 
 L. J. Q. B. 61; 37 W. R. 42 236 
 
 Murfett v. Smith (1887), 12 P. D. 116 458 
 
 Murphy v. Deichler, (1909) A. C. 446; 77 L. J. P. C. 159; 101 L. T. 
 
 143; 25 T. L. R. 719 460 
 
 Murray v. McKenzie (1857), L. R. 10 C. P. 625; 44 L. J. C. P. 313; 
 
 32 L. T. 777; 23 W. R. 595 286, 287 
 
 Mutual Life Assurance Co. v. Langley (1884), 26 Ch. D. 686; 53 
 
 L. J. Ch. 996; 51 L. T. 284; 32 W. R. 292 181 
 
 Myers v. Elliott (1886), 16 Q. B. D. 526; 55 L. J. Q. B. 233; 54 
 
 L. T. 553; 34 W. R. 338 279 
 
 N. 
 
 Nash, Re, Ball v. Bevan (1894), 71 L. T. 5 506 
 
 National Bank v. Kenney, (1898) 1 Ir. R. 197 232 
 
 National Mercantile Bank, Ex parte, Re Haynes (1880), 15 Ch. D. 
 
 42; 49 L. J. Bkcy. 62; 43 L. T. 36; 28 W. R. 848 273, 28& 
 
TABLE OF CASES. 
 
 lxY 
 
 PAGE 
 
 National Provincial Bank and Marsh, Re, (1895) 1 Ch. 190; 64 L. J. 
 
 Cli. 255; 71 L. T. 629; 43 W. R. 186 52, 61 
 
 National Society, &c. v. Gibbs, (1900) 2 Ch. 280 144 
 
 Neale v. Neale (1899), 79 L. T. 629 381 
 
 Neathway v. Reed (1853), 3 De G. M. & G. 18 511 
 
 Needham to Johnson (1867), 8 B. & S. 190; 15 T. 467; 15 W. R. 346... 288 
 
 Negus, Re, (1895) 1 Ch. 73; 64 L. J. Ch. 79; 71 L. T. 716; 43 
 
 W. R. 68 308, 369, 370, 545, 552 
 
 Nepean v. Doe (1837), 4 M. & W. 894 110 
 
 Nesbitt v. Mayer (1818), 1 Sw. 226 305 
 
 Neverson v. Seymour (1908), 97 L. T. 788 286 
 
 Nevile and Newell, Re, (1900) 1 Ch. 90; 81 L. T. 581 (overruled) 420 
 
 New Land Development Association and Gray, Re, (1892) 2 Ch. 138; 
 
 61 L. J. Ch. 495; 66 L. T. 694; 40 W. R. 551 160 
 
 Newbould v. Bailward (1888), 14 App. Cas. 1; 58 L. J. Q. B. 209; 59 
 
 L. T. 906; 37 W. R. 401 550 
 
 Newboult v. Bingham (1895), 72 L. T. 852 344 
 
 Newen, Re, Newen v. Barnes, (1894) 2 Ch. 297; 63 L. J. Ch. 763; 70 
 
 L. T. 653; 43 W. R. 58; 58 J. P. 767 397, 405 
 
 Newitt, Ex parte, Re Garrud (1880), 16 Ch. D. 522; 51 L. J. Ch. 381; 
 
 44 L. T. 5; 29 W. R. 344 267 
 
 Newlove v. Shrewsbury (1888), 21 Q. B. D. 41; 57 L. J. Q. B. 476; 
 
 36 W. R. 835 266 
 
 Newman v. Newman (1885), 28 Ch. D. 674 244 
 
 Nicholls v. Hawkes (1853), 10 Hare, 342; 22 L. J. Ch. 255 487 
 
 Nichols and Von Joel’s Contract, (1910) 1 Ch. 43; 79 L. J. Ch. 32; 101 
 
 L. T. 839 125 
 
 Nicholson, Re, Eade v. Nicholson, (1909) 2 Ch. Ill; 78 L. J. Ch. 516; 
 
 100 L. T. 877 476 
 
 Nicholson v. Field, (1893) 2 Ch. 511; 62 L. J. Ch. 1015; 69 L. T. 
 
 299; 42 W. R. 48 396 
 
 Nickells v. Atherstone (1847), 10 Q. B. 744; 16 L. J. Q. B. 371 364 
 
 Nind v. The Nineteenth Century Building Society, (1894) 2 Q. B. 226; 
 
 63 L. J. Q. B. 636; 70 L. T. 831; 42 W. R. 481; 58 J. P. 732... 342, 343 
 Nisbet and Pott’s Contract, Re, (1906) 1 Ch. 386; 22 T. L. R. 233... 122, 148 
 
 Nives v. Nives (1888), 15 Ch. D. 649 92 
 
 Noakes & Co. v. Rice, (1902) A. C. 24; 69 L. J. Ch. 43; 48 W. R. 
 
 110; 81 L. T. 482; 16 T. L. R. 36; (1901) W. N. 247 216 
 
 Nordenfelt v. Maxim-Nordenfelt Guns and Ammunition Co., (1894) 
 
 A. C. 535; 63 L. J. Ch. 908; 71 L. T. 489 183 
 
 Norfolk’s (Duke of) Settled Estates, (1900) 1 Ch. 461; 69 L. J. Ch. 
 
 236; (1900) W. N. 14 434 
 
 Norris, Re, (1902) 1 Ch. 741; (1902) W. N. 20 253, 542, 554 
 
 Norris, Re (1884), 27 Ch. D- 333 395 
 
 North v. Percival, (1898) 2 Ch. 128 70 
 
 Northey v. Paxton (1889), 60 L. T. 30 509 
 
 Northumberland v. Att.-Gen., (1905) A. C. 406 114 
 
 Norton and Las Casas’ Contract, Re, (1909) 2 Ch. 59; 78 L. J. Ch. 
 
 489 428 
 
 Nottage, Re, Jone3 v. Palmer, (1895) 2 Ch. 657; 64 L. J. Ch. 695; 73 
 
 L. T. 265; 44 W. R. 22; 12 R. 571 465 
 
 G. — C. e 
 
lxvi 
 
 TABLE OF CASES. 
 
 PAGE 
 
 Nottingham Patent Brick Co. v. Butler (1886), 16 Q. B. D. 778; 
 
 54 L. J. Q. B. 545 150 
 
 Nottingham Permanent Benefit Building Soc. v. Thurstan, (1903) 
 
 A. C. 6 202 
 
 Nutt Easton, (1899) 1 Ch. 873; 80 L. T. 353; 68 L. J. Ch. 367 228 
 
 0 . 
 
 Oakdeii v. Pike (1865), 11 Jur. N. S. 666 66, 67 
 
 Oakes v. Oakes (1851), 9 Hare,_666 466 
 
 Qastler v. Henderson (1879), 2 Q. B. D. 575; 46 L. J. Q. B. 607; 37 
 L. T. 22 364 
 
 Oates v. Frith (1615), Hob. 130 311 
 
 Occleston v. Fullalove (1873), L. R. 9 Ch. App. 147 ; 43 L. J. Ch. 297; 
 
 29 L. T. 785; 22 W. R. 305 502 
 
 Oceanic Steam Navigation Go. v. Sutherland (1880), 16 Ch. D. 236... 302 
 
 Odell. Ex parte (1878), 10 Ch. D. 76; 48 L. J. Bkcy. 1; 39 L. T. 333; 
 
 27 W. R. 274 265 
 
 Official Receiver v. Cooke, (1906) 2 Ch. 661 160 
 
 Ofner, Re, Samuel v. Ofner, (1909) 1 Ch. 60; 78 L. J. Ch. 50; 99 
 
 L. T. 813 481 
 
 Ogle v. Knipe (1869), L. R. 8 Eq. 434 508 
 
 Oldham v. Stringer (1885), 51 L. T. 895; 33 W. R. 251 219, 251 
 
 Oliver v. Hunting (1890), 44 Ch. D. 205 36 
 
 Olney v. Bates (1855), 3 Drew. 319 490 
 
 Onn v. Fisher (1889), 5 T. L. R. 504 283 
 
 Onward Building Society v. Smithson, (1893) 1 Ch. 1; 62 L. J. Ch. 
 
 138; 68 L. T. 125 ; 41 W. R. 53 131 
 
 Ormrod’s Settled Estate, Re, (1892) 2 Ch. 318; 61 L. J. Ch. 651; 66 
 
 L. T. 845; 40 W. R. 490 433 
 
 Osborne v. Bradley, (1903) 2 Ch. 446; 73 L. J. Ch. 49; 89 L. T. 11... 149 
 
 Otter v. Melvill (1848), 2 De G. & Sm. 257 378 
 
 Owen, Re (1892), 66 L. T. 718 475 
 
 Oxley v. James (1844), 13 M. & W. 209 304 
 
 P. 
 
 Page v. Midland Rail. Co., (1894) 1 Ch. 11; 63 L. J. Ch. 126; 7 
 
 R. 24; 70 L. T. 14; 42 W. R. 116 132, 144, 145 
 
 Paget’s Settled Estates, Re (1885), 30 Ch. D. 161; 55 L. J. Ch. 42; 
 
 53 L. T. 90; 33 W. R. C98 442, 445 
 
 Paget v. Foley (1836), 2 Bing. N. C. 679 322 
 
 Paine v. Meller (1801), 6 Ves. 349 83 
 
 Palin v. Hills (1833), 1 M. A K. 470 506, 507 
 
 Palmer, Re, (1900) W. N. 9 117 
 
 Palmer, Re (1890), 45 Ch. 13 . 291; 59 L. J. Ch. 575; 62 L. T. 778; 
 
 38 W. R. 673 
 
 551 
 
TABLE OF CASES. 
 
 lxvii 
 
 PAGE 
 
 Palmer v. Answorth, (1893) 3 Ch. 369; 62 L. J. Ch. 988; 69 L. T. 477; 
 
 42 W. E. 151 478 
 
 Palmer v. Bramley, (1895) 2 Q. B. 405; 65 L. J. Q. B. 42; 73 
 
 L. T. 329 821 
 
 Palmer v. Earith (1845), 14 M. & W. 428; 14 L. J. Ex. 256 313, 323 
 
 Palmer v. Emerson, (1911) 1 Ch. 758; 80 L. J. Ch. 418; 104 L. T. 
 
 557; 55 S. J. 365; 27 T. L. E. 320 205, 206 
 
 Palmer v. Hendrie (1860), 27 Beav. 349 214 
 
 Palmer v. Johnson (1884), 13 Q. B. D. 351; 53 L. J. Q. B. 548; 51 
 
 L. T. 211; 33 W. E. 36 45, 64 
 
 Palmer v. Locke (1881), 18 Ch. D. 381 180 
 
 Pape v. Westacott, (1894) 1 Q. B. 298 167 
 
 Pappillon v. Brunton (1860), 5 H. & N. 518; 29 L. J. Ex. 265 366 
 
 Pares, Ee, (1901) 1 Ch. 708; 70 L. J. Ch. 426; 84 L. T. 385 520 
 
 Parfitt v. Jepson (1877), 46 L. J. N. S. C. P. 522 57 
 
 Parish v. Sleeman (1860), 1 De G. F. & J. 326; 29 L. J. Ch. 96 313 
 
 Parker, Ee, (1910) 1 Ch. 581; 79 L. J. Ch. 161; 101 L. T. 943 411 
 
 Parker, Ee (2) (1860), 1 Swab. & Trist. 523 489 
 
 Parker v. Clarke, 30 Beav. 54 254 
 
 Parker v. Staniland (1809), 11 East, 362 33 
 
 Parker v. Taswell (1858), 27 L. J. Ch. 812; 31 L. T. 226; 6 W. E. 608... 307 
 Parnell, In the goods of (1872), L. E. 2 P. & D. 379; 41 L. J. Prob. 
 
 35; 26 L. T. 744; 20 W. E. 494 468 
 
 Parsons, Ee, Ex parte Furber, (1893) 2 Q. B. 122; 62 L. J. Q. B. 
 
 365; 68 L. T. 767, 777; 41 W. E. 468 290 
 
 Parsons v. Brand (1890), 25 Q. B. B. 110; 62 L. T. 479; 38 jW. E. 388... 276 
 
 Pass v. Dundas (1880), 29 W. E. 332 394 
 
 Patman v. Harland (1881), 17 Ch. D. 353; 50 L. J. Ch. 642; 44 L. T. 
 
 728; 29 W. E. 707 148, 318 
 
 Pattle v. Anstruther (1893), 69 L. T. 175; 41 W. E. 625; 4 E. 470... 34, 
 
 36, 207 
 
 Paul v. Paul (1882), 20 Ch. D. 742 453 
 
 Pawlett v. Pawlett (1685), Tudor’s Con. Cases, 816 (1879 ed.) 409, 495 
 
 Pawley, Ee, and London & Provincial Bank, Ee, (1900) 1 Ch. 58 ; 69 
 
 L. J. Ch. 6 ..87, 302 
 
 Payler v. Homersham (1815), 4 M. & S. 423 516 
 
 Payne, Ex parte, Ee Coton (1887), 56 L. T. 571; 35 W. E. 476 281 
 
 Payne v. Cave (1789), 3 T. E. 148 57 
 
 Payne v. Haine (1847), 16 M. & W. 541; 16 L. J. Ex. 130 327 
 
 Payne v. Stamford, (1896) 1 Ch. 288 397 
 
 Peace v. Brooks, (1895) 2 Q. B. 451 ; 64 L. J. Q. B. 747 ; 72 L. T. 798. . . 278 
 Peacock v. Frigout, (1893) 1 Ch. 54; 62 L. J. Ch. 46; 67 L. T. 794; 
 
 41 W. E. 154; 3 E. 72 531 
 
 Peake’s Settled Estates, Ee (1), (1894) 3 Ch. 520; 71 L. T. 371; 42 
 W. E. 687 437 
 
 Pearce v. Bastable’s Trustee in Bankruptcy, (1901) 2 Ch. 122; (1901) 
 W. N. 70 
 
 Pearce v. Gardner, (1897) 1 Q. B. 688; 66 L. J. Q. B. 457; 76 L. T. 
 441; 44 W. E. 518 
 
 Pearce v. Morris (1869), L. E. 5 Ch. App. 227 
 
 Pearks v. Moseley (1880), 5 App. Cas. 723 
 
 6 2 
 
 85 
 
 36 
 
 217 
 
 493 
 
lxviii 
 
 TABLE OF CASES. 
 
 PAGE 
 
 Pearse’s Settlement, In re, (1909) 1 Ch. 304; 78 L. J. Ch. 73; 100 
 
 L. T. 48 378 
 
 Pearson v. Pearson (1) (1884), 27 Ch. D. 145 182 
 
 Peck and The School Board for London, Be, (1893) 2 Ch. 315; 62 
 
 L. J. Ch. 598; 68 L. T. 847; 41 W. B. 388 138 
 
 Peel’s Settled Estates, Be, (1910) 1 Ch. 389; 79 L. J. Ch. 233; 102 
 
 L. T. 67; 26 T. L, B. 227 427 
 
 Pelly and Jacobs’ Contract, Be (1899), 80 L. T. 45 71 
 
 Pember v. Mathers (1779), 1 Bro. C. C. 52 176 
 
 Penley and The London Provincial Bank, Be, (1900) 1 Ch. 58 87 
 
 Penniall v. Harborne (1848), 11 Q. B. 368; 17 L. J. Q. B. 94 330 
 
 Pennington, Be, Ex parte Cooper ( 1'8 89), 59 L. T. 774 450 
 
 Penrose v. Manning (1890), 63 L. T. 159 501 
 
 Penton v. Barnett, (1898) 1 Q. B. 276; 67 L. J. Q. B. 11; 77 L. T. 
 
 645; 46 W. B. 33; 14 T. L. B. 11 340 
 
 Penwarden v. Boberts (1882), 9 Q. B. D. 137; 51 L. J. Q. B. 312; 16 
 L. T. 361; 30 W. B. 427 274 
 
 Pepin v. Bruyere, (1900) 2 Ch. 504; 69 L. J. Ch. 730; 83 L. T. 100; 
 
 48 W. B. 671 460, 461 
 
 Perkins’ Settlement, In re (1912), 56 S. J. 412 382, 498 
 
 Perrin v. Lyon (1807), 9 East, 170 497 
 
 Petitt v. Lodge, (1908) 1 K. B. 744; 77 L. J. K. B. 413; 98 L. T. 
 
 771; 15 Mans. 136; 24 T. L. B. 329 283 
 
 Phillimore, Be, (1904) 2 Ch. 460 413 
 
 Phillips, Be (1887), 34 Ch. D. 467; 56 L. J. Ch. 337; 56 L. T. 144; 
 
 35 W. B. 284 374 
 
 Phillips, Be, (1903) 1 Ch. 183 180 
 
 Phillips v. Beal (1858), 25 Beav. 25 464, 508 
 
 Phillips v. Cayley (1889), 43 Ch. D. 222; 59 L. J. Ch. 177; 61 
 
 L. T. 195 
 
 486, 532 
 
 Phillips v. Low, (1892) 1 Oh. 47; 61 L. J. Ch. 44; 65 L. T. 552; 8 
 T. L. B. 23 
 
 140 
 
 Phillips v. Mullings (1871), L. B. 7 Ch. App. 244; 41 L. J. Ch. 211; 
 
 20 W. B. 129 453 
 
 Phillips v. Probyn, (1899) 1 Ch. 811; 68 L. J. Ch. 401; 80 L. T. 513... 381 
 
 Phillips v. Silvester (1872), L. B. 8 Ch. App. 173 82, 84 
 
 Phipps v. Ackers (1842), 9 C. & F. 583 494, 495 
 
 Phipson v. Turner (1838), 9 Sim. 227 531 
 
 Pickard v. Marriage (1876), 1 Ex. D. 364; 45 L. J. Ex. 594; 24 
 
 W. B. 886 287 
 
 Pidgely v. Pidgely (1844), 1 Cole, 255 486 
 
 Pigg v. Clarke (1876), 3 Ch. D. 672 505 
 
 Pigott v. The Great Western Bail. Co. (1881), 18 Ch. D. 146 70 
 
 Pike v. Eyre (1829), 9 B. & C. 909 304 
 
 Pilkington v. Gray, (1909) A. C. 401 458 
 
 rindar v. Ainsley (1767), 1 T. B. 312 322 
 
 Pinnington v. Galland (1853), 9 Exch. 1 140 
 
 Pitcairn, Be, Brandreth v. Colvin (1896), 65 L. J. Ch. 120; 73 L. T. 
 
 430; 44 W. B. 200 476 
 
 Pledge v. White, (1896) A. C. 187; 65 L. J. Ch. 449; 74 L. T. 323; 
 
 44 W. B,. 389 219 
 
TABLE OF CASES. 
 
 lxix 
 
 PAGE 
 
 Plews v. Samuel, (1904) 1 Ch. 464 84 
 
 Plumptre’s Settlement, Re, (1910) 1 Ch. 609; 79 L. J. Ch. 340; 102 
 
 L. T. 315; 26 T. L. R. 321 378, 454 
 
 Pocock and Prankerd’s Contract, Re, (1896) 1 Ch. 302; 65 L. J. Ch. 
 
 211; 73 L. T. 708; 44 W. R. 247 414 
 
 Pocock v. Carter, (1912) 1 Ch. 663; 81 L. J. Ch. 391; 106 L. T. 423 311 
 
 Pomfret v. Ricroft (1668), 1 Wms. Saund. 321; 557 (1871 ed.) 348 
 
 Poole and Clarke’s Contract, Re, (1904) 2 Ch. 173; 73 L. J. Ch. 612; 
 
 91 L. T. 275; 53 W. R. 122; 20 T. L. R. 604 146 
 
 Poole v. Hill (1844), 6 M. & W. 835 90 
 
 Pooley, In re (1888), 40 Ch. D. 1; 58 L. J. Ch. 1; 60 L. T. 73; 37 
 
 W. R. 17; 5 T. L. R. 21 463 
 
 Pope and Easte’s Contract, Re, (1911) 2 Ch. 442; 80 L. J. Ch. 692; 
 
 105 L. T. 370 26, 29, 443 
 
 Poppleton v. Buchanan (1858), 4 C. B. N. S. 20 107 
 
 Portal and Lamb, Re (1885), 30 Ch. D. 50; 54 L. J. Ch. 1013; 51 
 
 L. T. 514; 34 W. R. 65 484 
 
 Porter, Re, (1892) 3 Ch. 481 ; 61 L. J. Ch. 688 498 
 
 Porter v. Baddeley (1877), 5 Ch. D. 592 476 
 
 Potter, Re (1869), L. R. 7 Eq. 484; 20 L. T. 355; 17 W. R. 347 374 
 
 Potter v. Commissioners of Inland Revenue (1854), 10 Ex. R. 147 ; 
 
 23 L. J. Ex. 345 184 
 
 Potter v. Duffield (1874), L. R. 18 Eq. 4 36 
 
 Poulett (Earl) v. Hood (1868), L. R. 5 Eq. 115 143 
 
 Powell, Re (1858), 4 X. C. 391; Johns. 49 508 
 
 Powell v. Boggis (1866), 35 Beav. 535 505 
 
 Powell v. Hemsley, (1909) 1 Ch. 680; 2 Ch. 252; 78 L. J. Ch. 741; 
 
 101 L. T. 262; 25 T. L. R. 649 338 
 
 Powell v. Marshall, Parkes & Co., (1899) 1 Q. B. 710; 68 L. J. Q. B. 
 
 477; 80 L. T. 509; 47 W. R. 419; 6 Manson, 157 85 
 
 Powell v. Powell, (1900) 1 Ch. 243; 69 L. J. Ch. 164; 82 L. T. 84 30 
 
 Powers, Re, Lindsell v. Phillips (1885), 30 Ch. D. 291; 53 L. T. 647 210 
 
 Pratt, Ex parte, Re Field (1890), 63 L. T. 289 275 
 
 Pratt, Re, Pratt v. Pratt, (1894) 1 Ch. 491; 63 L. J. Ch. 484; 70 
 
 L. T. 489; 8 R. 601 465 
 
 Prescott v. Phipps (1883), 23 Ch. D. 372 217 
 
 Price, Re, (1900) 1 Ch. 442 460 
 
 Price, Re, Stafford v. Stafford (1885), 28 Ch. D. 707 ; 25 L. T. 
 
 X. S. 572 459 
 
 Price v. Page (1799), 4 Ves. 680 483 
 
 Price v. Worwood (1859), 4 H. & X. 512; 28 L. J. Ex. 329 346 
 
 Propert v. Parker (1832), 3 My. & K. 280 320 
 
 Proudfoot v. Hart (1890), 25 Q. B. D. 42; 59 L. J. Q. B. 389; 63 
 
 L. T. 171; 38 W. R. 730 328 
 
 Prout v. Cock, (1896) 1 Ch. 808; 66 L. J. Ch. 24; 75 L. T. 407; 
 
 45 W. R. 157 217 
 
 Pryor v. Petre (1894), 69 L. T. 795 136 
 
 Prythercli v. Williams (1889), 42 Ch. D. 590, 602 232 
 
 Public Trustee v. Lawrence, (1912) 1 Ch. 789 225, 235 
 
 Puckett and Smith’s Contract, Re, (1902) 2 Ch. 258; 71 L. J. Ch. 
 
 666; 87 L. T. 189; 50 W. R. 532 44 
 
lxx 
 
 TABLE OF CASES. 
 
 PAGE 
 
 Pugh v. Leeds (Duke of) (1777), Cowp. 714 309 
 
 Pulbrook v. Ashby (1887), 56 L. J. Q. B. 376; 35 W. B, 779 239, 265, 
 
 267, 330 
 
 Pulsford v. Eiehards (1853), 17 Beav. 96 42 
 
 Punnett, Ex parte (1880), 16 Ch. D. 226; 50 L. J. Ch. 212; 44 L. T. 
 
 226; 29 W. E. 124 239 
 
 Pursell and Deakin’s Contract, Ee, (1893) W. X. 152 172, 306 
 
 Pyle, Ee, Pyle v. Pyle, (1895) 1 Ch. 724; 64 L. J. Ch. 477; 72 L. T. 
 
 327; 43 W. E. 420 86 
 
 Q. 
 
 Quicke’s Trusts, Ee, (1908) 1 Ch. 887; 77 L. J. Ch. 523; 98 L. T. 
 
 610; 24 T. L. E. 23 .• 84 
 
 Quinion v. Horne, (1906) 1 Ch. 596; 74 L. J. Ch. 293; 54 W. E. 344... 68 
 
 E. 
 
 Eadcliffe, Ee, 22 Beav. 201; 52 E. E. 1085; 2 Jur. N. S. 387 254 
 
 Eadcliffe v. Bewes, (1892) 1 Ch. 227; 61 L. J. Ch. 186; 66 L. T. 
 
 363; 40 W. E. 323 534 
 
 Eadnor (Earl of), Ee (1880), 45 Ch. D. 402; 59 L. J. Ch. 782 440 
 
 Baggett, Ee, Ex parte Williams (1880), 16 Ch. D. 117; 50 L. J. Ch. 
 
 " 187; 44 L. T. 4; 29 W. E. 314 220 
 
 Eakestraw v. Brewer (1728), 2 P. W. 511 242 
 
 Eamsay v. Margrett, (1894) 2 Q. B. 18; 63 L. J. Q. B. 513; 70 L. T. 
 
 778; 9 E. 407; 1 Manson, 184 266, 268 
 
 Eamsden v. Hylton (1751), 2 Ves. 305; 28 E. E. 196 516 
 
 Eamsden v. Lupton (1873), L. E. 9 Q. B. 17; 43 L. J. Q. B. 17; 
 
 29 L. T. 510; 22 W. E, 129 288 
 
 Eanken v. Hunt (1894), 10 E. 249 336 
 
 Eattenbury, Ee, (1906) 1 Ch. 667; 75 L. J. Ch. 304; 94 L. T. 475; 
 
 54 W. E. 311; 22 T. L. E. 249 492 
 
 Eavald v. Eussell (1830), Younge, 9 217 
 
 Eawlings, Ex parte, Ee Davis (1888), 22 Q. B. D. 193; 37 W. E. 203: 
 
 60 L. T. 157; 56 L. J. Q. B. 197 266 
 
 Eawlins v. Briggs (1878), 3 C, P. D. 368; 27 W. E. 138 325 
 
 Eay, Ee, (1896) 1 Ch. 468; 65 L. J. Ch. 316; 73 L. T. 723; 44 
 
 ‘ W. E. 353 10, 141, 447 
 
 Eay v. Hazeldine, (1904) 2 Ch. 17; 73 L. J. Ch. 537; 90 L. T. 703 140 
 
 Eay v. Walker, (1892) 2 Q. B. 88; 61 L. J. Q. B. 718 200 
 
 Bay’s Settled Estates, Be (1884), 25 Ch. D. 464; 53 L. J. Ch. 1051; 
 
 51 L. T. 80; 32 W. E. 458 439 
 
 Bayner v. Preston (1881), 18 Ch. D. 1; 50 L. J. Ch. 472; 44 L. T. 
 
 787; 29 W. E. 547 82, 83 
 
 Bead, Ee, (1894) 3 Ch. 238; 63 L. J. Ch. 831; 71 L. T. 189; 42 
 W. E. 601 540, 552 
 
TABLE OF CASES. 
 
 lxxi 
 
 PAGE 
 
 Read v. Joannon (1890), 25 Q. B. D. 300; 63 L. T. 387; 38 W. R. 734... 268 
 Real, &c. Advance Co. v. Clears (1887), 20 Q. B. D. 304; 57 L. J. 
 
 Q. B. 164; 58 L. T. 610; 36 W. R. 256 282 
 
 Rede v. Farr (1817), 6 M. & S. 121 339 
 
 Redgrave v. Hurd (1881), 20 Ch. D. 1 42 
 
 Reeves v. Barlow (1884), 12 Q. B. D. 436; 53 L. J. Q. B. 192; 50 
 
 L. T. 782; 32 W. R. 672 269 
 
 Regent’s Canal Co. v. London County Council, (1912) 1 Ch. 583; 81 
 L. J. Ch. 387; 106 L, T. 745; 76 J. P. 353; 10 L. G. R. 358; 
 
 28 T. L. R. 248 199 
 
 Regent’s Canal Co. v. Ware (1857), 23 Beav. 575; 26 L. J. Ch. 566 70 
 
 R. v. Ilungerford Market Co. (1832), 4 B. & Ad. 327 200 
 
 Reg. v. Hale (1838), 9 A. & E, 339 304 
 
 Reg. v. Registrar of Deeds for Middlesex (1888), 21 Q. B. D. 555... 189, 524 
 
 Reg. v. Vice-Registrar of Land Registry (1889), 24 Q. B. D. 178 159 
 
 Reid v. Bickerstaff, (1909) 2 Ch. 305 150 
 
 Reid v. Reid (1886), 31 Ch. D. 402; 55 L. J. Ch. 294; 54 L. T. 100... 11 
 
 Reilly v. Booth (1890), 44 Ch. D. 12; 62 L. T. 378; 38 W. R. 484 136 
 
 Reis, Re, Ex parte Clough, (1904) 2 K. B. 769; 20 T. L. R. 167... 268, 452 
 Renals v. Cowlishaw (1879), 11 Ch. D. 866; 48 L. J. Ch. 830; 41 
 
 L. T, 116; 28 W. R. 9 150 
 
 Renner v. Tolley (1893), 68 L. T. 815; (1893) W. N. 90 56, 78 
 
 Reynolds, Re (1876), 3 Ch. D. 61 ; 24 W. R. 991 521 
 
 Reynolds v. Ashby & Son, (1904) A. C. 466 224 
 
 Rhodes v. Bate (1866), L. R. 1 Ch. App. 252; 35 L. J. Ch. 267; 
 
 12 Jur. 178; 13 L. T. 778; 14 W. R. 292 516 
 
 Rhodes v. Muswell Hill Land Co. (1861), 29 Beav. 560; 30 L. J. Ch. 
 
 509; 7 Jar. 178; 4 L. T. 229; 9 W. R. 472 500 
 
 Rice v. Rice (1853), 2 Drew. 73; 23 L. J. Ch. 289; 22 L. T. 208; 
 
 2 W. R. 139 93 
 
 Richards v. Revitt (1877), 7 Ch. D. 224; 47 L. J. Ch. 472 337 
 
 Richards v. Rose (1853), 9 Ex. 218; 23 L. J. Ex. 3 140 
 
 Ricketts v. Enfield Churchwardens, (1909) 1 Ch. 544; 78 L. J. Ch. 
 
 294; 100 L. T. 362 317 
 
 Ridgeway v. Wharton (1857), 6 H. L. Ca. 238; 27 L. J. Ch. 46; 
 
 Ridley’s Agreement, In re, Ridley v. Ridley (1911), 55 S. J. 838 379 
 
 Riggs, Re, (1901) 2 K. B. 16; 70 L. J. K. B. 541; 84 L. T. 428; 
 
 49 W. R. 624 332, 340 
 
 Riley to Streatfield, Re (1886), 34 Ch. D. 388; 56 L. J. Ch. 442; 56 
 
 L. T. 48; 35 W. R. 470 70 
 
 Riley v. Hall (1898), 79 L. T. 244 220 
 
 Rippingall v. Lloyd (1833), 2 N. & M. 410 101 
 
 Rippon v. Norton (1839), 2 Beav. 63 499 
 
 Robbins, Re, (1906) 2 Ch. 648; 75 L. J. Ch. 751; (1907) 2 Ch. 8 500 
 
 Robbins v. Whyte, (1906) 1 K. B. 125 237 
 
 Roberts, Re (1889), 43 Ch. D. 52; 62 L. T. 33; 38 W. R. 225 209, 253 
 
 Roberts, Re, (1902) 2 Ch. 834 470 
 
 Roberts v. Roberts (1884), 13 Q. B. D. 794; 53 L. J. Ch. 313; 50 
 
 L T. 351; 32 W. R. 605 275 
 
 Robertson, Re (1887), 19 Q. B. D. 1; 56 L. T. 859; 35 W. R. 833 550 
 
lxxii 
 
 TABLE OF CASES. 
 
 PAGE 
 
 Robson, Re (1890), 45 Ch. D. 71; 59 L. J. Ch. 627; 63 L. T. 372; 
 
 38 W. R. 556 546, 551 
 
 Rochford v. Hackman (1852), 9 Hare, 495 498 
 
 Rodes, Re, (1909) 1 Ch. 815 421 
 
 Rodger v. Harrison and Others, (1893) 1 Q. B. 161 94 
 
 Rodwell v. Phillips (1842), 9 M. & W. 501 34 
 
 Roe v. Archbishop of York (1805), 6 East, 86 363 
 
 Roe Doe (1830), 6 Bing. 574; 4 M. & P. 391; 8 L. J. (O. S.) C. P. 
 
 227 365 
 
 Roe v. Harrison (1788), 2 T. R. 425; 100 E. R. 229 331 
 
 Rogers v. Challis (1859), 27 Beav. 175 208 
 
 Rogers v. Hosegood, (1900) 2 Ch. 388; 69 L. J. Ch. 652; 83 L. T. 
 
 186; 48 W. R. 659; (1899) W. N. 223 149, 150 
 
 Rogers v. Rice, (1892) 2 Ch. 170; 61 L. J. Ch. 573; 66 L. T. 640; 
 
 40 W. R. 489; 8 T. L. R. 511 341 
 
 Rolls v. Miller (1884), 27 Ch. D. 71; 53 L. J. Ch. 682; 50 L. T. 597; 
 
 32 W. R. 886 
 
 335 
 
 Rolph, Ex parte, Re Spindler (1881), 19 Ch. D. 98; 51 L. J. Ch. 88; 
 
 45 L. T. 412; 30 W. R. 52 284 
 
 Romain, Re, (1903) 1 Ch. 702 542,554 
 
 Roose v. Chalk (1886), 49 L. J. Ch. 625 478 
 
 Roots v. Dormer (1832), 4 B. & Add. 77 94 
 
 Rose v. Watson (1864), 10 H. L. Cas. 671 92 
 
 Rosefield v. Provincial Union Bank, (1910) 2 K. B. 781; 79 L. J. 
 
 K. B. 150; 103 L. T. 378 280 
 
 Rosenbaum v. Belson, (1900) 2 Ch. 267; 69 L. J. Ch. 569; 82 L. T. 
 
 658; 48 W. R. 522 37 
 
 Rosher, Re, Rosher v. Rosher (1884), 26 Ch. D. 71; 51 L. T. 117; 53 
 
 L. J. Ch. 722; 32 W. R. 821 498 
 
 Rossiter v. Miller (1878), 3 App. Cas. 1124 36, 38 
 
 Roundwood Colliery Co., Re, Lee v. Roundwood Colliery Co. (1897), 
 
 13 T. L. R. 75 265, 267 
 
 Rourke v. Robinson, (1911) 1 Ch. 480; 80 L. J. Ch. 295; 103 L. T. 
 
 895 257, 261 
 
 Rouse v. Ginsberg, 55 S. J. 632 38 
 
 Routledge v. Dorrell (1794), 3 Ves. jun. 347 530, 533 
 
 Row v. Dawson (1749), 2 White & Tudor, L. C. Eq. 731 177 
 
 Rowland v. Edwards (1890), 63 L. T. 481 484 
 
 Rowles v. Mason (1612), 2 Brownlow, 197 301 
 
 Rudd v. Lascelles, (1900) 1 Ch. 815; 69 L. J. Ch. 396; 82 L. T. 
 
 256; 48 W. R. 586 46 
 
 Rumney and Smith’s Contract, Re, (1897) 2 Ch. 351; 76 L. T. 800; 
 
 45 W. R. 678 255 
 
 Russel v. Russel (1783), 1 Bro. C. C. 269 250 
 
 Russell, Ex parte (1882), 19 Ch. D. 588; 51 L. J. Ch. 521; 46 L. T. 
 
 113; 30 W. R. 584 450 
 
 Ryall v. Rowles (1750), 2 White & Tudor, L. C. Eq. 734 177 
 
TABLE OF CASES. 
 
 lxxiii 
 
 s. 
 
 PAGE 
 
 S. E. Rail. Co. v. Warton (1861), 6 II. & N. 520 131 
 
 S. S. B., Re, (1906) 1 Ch. 712; 75 L. J. Ch. 522; 94 L. T. 599; 54 
 
 W. R. 429; 22 T. L, R. 461 447 
 
 Saffery, Ex parte (1881), 16 Ch. D. 668; 44 L. T. 324; 29 W. R. 749... 273 
 Saffron Walden Building Co. v. Rayner (1880), 14 Ch. D. 406; 49 
 
 L. J. Ch. 465; 43 L. T. 3; 28 W. R. 681 122 
 
 Salaman v. Holford, (1909) 2 Ch. 602; 78 L. J. Ch. 536; 100 L. T. 
 
 729; (1909) W. N. 110 326 
 
 Sale v. Lambert (1874), L. R. 18 Eq. 1 36 
 
 Salisbury v. Ridley (1890), 62 L. T. 789 511 
 
 Salt, Catherine, Re, (1896) 1 Ch. 117; 65 L. J. Ch. 152; 73 L. T. 
 
 599; 44 W. R. 146 10, 299, 447 
 
 Salt, Re, Brothwood v. Keeling, (1895) 2 Ch. 203; 64 L. J. Ch. 494; 
 
 43 W. R. 500 466, 469 
 
 Salt v. Marquis of Northampton, (1892) A. C. 1; 61 L. J. Ch. 49; 65 
 
 L. T. 765; 40 W. R. 529 215 
 
 Salthouse v. Reade, (1889) W. N. 26; 33 Sol. Jour. 219 551 
 
 Sampson, Re, (1906) 1 Ch. 435; 75 L. J. Ch. 302; 94 L. T. 241; 54 
 
 W. R. 342 397 
 
 Sampson and Wall, Re (1884), 25 Ch. D. 482; 53 L. J. Ch. 457; 50 
 
 L. T. 309; 32 W. R. 617 374 
 
 Samuel v. Jarrah Timber and Wood Paving Corporation, (1904) 
 
 A. 0. 323 .' 201, 216 
 
 Samuel v. Samuel (1879), 12 Ch. D. 152 500 
 
 Sandbach and Edmondson’s Contract, Re, (1891) 1 Ch. 99; 60 L. J. 
 
 Ch. 60; 63 L. T. 797; 39 W. R. 193 125, 126 
 
 Sander and Walford’s Contract, Re (1900), 83 L. T. 316 73 
 
 Sander’s Settlement, Re, (1896) 1 Ch. 480; 65 L. J. Ch. 428; 74 L. T. 
 
 261; 44 W. R. 385; 12 T. L. R. 232 553 
 
 Sander’s Trusts, Re (1866), L. R. 1 Eq. 675 512 
 
 Sanders v. Davis (1885), 15 Q. B. D. 218 224 
 
 Sandford v. Clarke (1888), 21 Q. B. D. 398; 57 L. J. Q. B. 507; 59 
 
 L. T. 26; 37 W. R. 28 314 
 
 Sands to Thompson, Re (1883), 22 Ch. D. 614; 52 L. J. Ch. 406; 48 
 
 L. T. 210 258 
 
 Saner v. Bilton (1878), 7 Ch. D. 815; 47 L. J. Ch. 267; 26 W. R. 
 
 394 315, 326 
 
 Sansom and Narbeth’s Contract, Re, (1910) 1 Ch. 741 ; 79 L. J. Ch. 
 
 374; 102 L. T. 677 73 
 
 Sanson v. Rhodes (1840), 6 Bing. N. C. 261 70 
 
 Santley v. Wilde (No. 1), (1899) 1 Ch. 747; (No. 2), (1899) 2 Ch. 
 
 474 201, 216, 226 
 
 Sari, Re, Ex parte Williams, (1892) 2 Q. B. 591; 67 L. T. 597 275 
 
 Sanson v. Roberts, (1895) 2 Q. B. 395; 73 L. T. 174 315 
 
 Sartoris v. Sartoris, (1892) 1 Ch. 11; 61 L. J. Ch. 1; 65 L. T. 544. .. 498 
 Satterthwaite, Re, Ex parte The Trustee (1895), 2 Manson, 52; 15 
 
 R. 242 268 
 
 Saunders v. Pitfield, 58 L. T. 108 362 
 
 Saunders v. Vautier (1841), Cr. & Ph. 240 474 
 
 Saunders v. White, (1901) 1 Q. B. 70 283 
 
lxxiv 
 
 TABLE OF CASES. 
 
 PAGE. 
 
 Saunderson v. Jackson (1800), 2 B. & P. 238 37 
 
 Savill Bros., Ltd. v. Bethell, (1902) 2 Ch. 523 139 
 
 Savory v. Underwood (1854), 23 L. T. 141 96 
 
 Sawyer and Baring’s Contract, Re (1884), 53 L. J. Ch. 1104 143 
 
 Saxton v. Saxton (1879), 13 Ch. D. 359 484 
 
 Scale v. Rawlins, (1892) A. C. 342; 61 L. J. Ch. 421; 66 L. T. 542; 
 
 8 T. L. R. 558 480 
 
 Scholes v. Brook (1891), 64 L. T. 674; (1891) W. N. 16, 101; 7 
 T. L. R. 214 207 
 
 Scott and Alvarez’s Contract, Re, (1895) 2 Ch. 603; 64 L. J. Ch. 821; 
 
 73 L. T. 43; 43 W. R. 694 53, 61 
 
 Scott, John, Re, (1901) 1 K. B. 228; 70 L. J. K. B. 66; 83L.T. 613; 
 
 49 W. R. 178; 17 T. L. R. 148 490 
 
 Scott v. Hanbury, (1891) 1 Ch. 298; 60 L. J. Ch. 238; 63 L. T. 800... 373 
 
 Scott v. Jones (1838), 4 O. & F. 382 470 
 
 Scott v. Tyler (1788), 1 White & Tudor, L. C. Eq. (7th ed.) 535 496, 497 
 
 Scriven v. Sandon (1862), 2 J. & H. 743 486 
 
 Seal v. Claridge (1881), 7 Q. B. D. 516; 50 L. J. Q. B. 316; 44 L. T. 
 
 501; 29 W. R. 598 166, 274 
 
 Seale-Hayne v. Jodrell, (1891) A. C. 304 505 
 
 Sear v. House Property, &c. Soc. (1880), 16 Ch. D. 387; 50 L. J. Ch. 
 
 77; 43 L. T. 531; 29 W. R. 192 334 
 
 Searle, Re, Brooke v. Searle, (1912) 1 Ch. 610; 81 L. J. Ch. 375; 
 
 106 L. T. 458 310 
 
 Seaton v. Seaton (1888), 13 App. Cas. 61; 57 L. J. Ch. 661; 58 L. T. 
 
 565; 36 W. R. 865 374 
 
 Sebright, Re, Sebright v. Brownlow (1912), 28 T. L. R. 191 424, 440 
 
 Seed v. Bradley, (1894) 1 Q. B. 319; 63 L. J. Q. B. 387; 70L.T. 214; 
 
 42 W. R. 257; 9 R. 171; 1 Manson, 157 272, 275, 278, 279, 294 
 
 Seers v. Hind (1791), 1 Yes. 294 331 
 
 Selwyn v. Garfit (1888), 38 Ch. D. 273; 56 L. T. 233; 36 W. R. 513... 226 
 Serle, Re, Gregory v. Serle, (1898) 1 Ch. 652; 67 L. J. Ch. 344; 78 
 
 L. T. 384 340 
 
 Seton v. Slade (1802), 7 Ves. 265; White & Tudor, L. C. Eq. (7th ed.) 
 
 vol. ii. 475 35, 92 
 
 Sewell’s Estate, Re (1870), L. R. 11 Eq. 80 476 
 
 Shafto’s Trusts, Re (1885), 29 Ch. 1). 247; 54 L. J. Ch. 885; 53 L. T. 
 
 261; 33 W. R. 728 395 
 
 Sharman, Re, (1901) 2 Ch. 280 117 
 
 Sharp v. Milligan (1857), 23 Beav. 419 320 
 
 Sharp t;. Rickards, (1909) 1 Ch. 109; 78 L. J. Ch. 29; 99 L. T. 916... 220 
 
 Sharpe v. Birch (1881), 8 Q. B. D. Ill; 51 L. J. Q. B. 74; 45 L. T. 
 
 760; 30 W. R. 428 287 
 
 Shaw, Re, Robinson v. Shaw, (1894) 2 Ch. 573; 63 L. J. Ch. 770; 71 
 
 L. T. 79; 43 W. R. 43 383 
 
 Shaw v. Cates, (1909) 1 Ch. 396 206 
 
 Shaw v. Foster (1872), L. R. 5 II. L. C. 338 82 
 
 Shaw v. Kay (1847), 1 Ex. 412; 17 L. J. Ex. 17 309 
 
 Shaw v. Stenton (1858), 2 11. & N. 858; 27 L. J. Ex. 253 348 
 
 Shelley’s Case (1581), Tudor L. C. Conv. (4tli ed.) 332 505 
 
 Shepherd v. Berger, (1891) 1 Q. B. 597; 60 L. J. Q. B. 395; 64 L. T. 
 
 435; 39 W. R, 330 338 
 
TABLE OF CASES. IxXN 
 
 PAGE 
 
 Shepherd v. Croft (1911), 80 L. J. Ch. 170; 103 L. T. 874 43 
 
 Shepherd v. Gilmore (1887), 57 L. J. Ch. 6 150 
 
 Sheppard v. Wilson, 4 Ha. 392 150 
 
 Sherrard v. Gascoigne (1900), 69 L. J. Q. B. 363; 80 L. T. 128; (1900) 
 
 W. N. 129 r. 362 
 
 Shields v. Rice (1839), 3 Jur. 950 112 
 
 Shrubb, Re, (1910) W. N. 143 488 
 
 Shuttleworth v. Clews, (1909) W. N. 254; (1910) 1 Ch. 176 59, 75, 89 
 
 Sichel v. Mosenthal (1862), 30 Beav. 371 208 
 
 Sidebotham v. Holland, (1895) 1 Q. B. 378; 64 L. J. Q. B. 200; 72 
 
 L. T. 62; 43 W. R. 228 365 
 
 Sidebottom, Re, (1902) 2 Ch. 389; 71 L. J. Ch. 662; 87 L. T. 57; 
 
 50 W. R. 611 25 
 
 Silkstone, &c. Co. v. Edey, (1900) 1 Ch. 167; 67 L. J. Ch. 73; 48 
 
 W. R. 137 32 
 
 Simmons’ Contract, Re, (1908) 1 Ch. 452; 77 L. J. Ch. 215; 98 L. T. 
 
 185 554 
 
 Simmons v. Underwood, (1897) 76 L. T. 777 365 
 
 Simmons v. Woodward, (1892) A. C. 100; 61 L. J. Ch. 252; 66 L. T. 
 
 534; 40 W. R. 641 276 
 
 Simpson, Re, (1904) 1 Ch. 1 377 
 
 Simpson, Re, (1897) 1 Ch. 256 437 
 
 Simpson v. Lamb (1857), 7 El. & Bl. 84; 26 L. J. Q. B. 121; 3 Jur. 
 
 N. S. 412; 5 W. R. 227 21 
 
 Simpson v. Sadd (1855), 24 L. J. Ch. 562; 1 Jur. N. S. 736 124 
 
 Sims v. Landray, (1894) 2 Ch. 318; 63 L. J. Ch. 535; 70 L. T.530; 
 
 42 W. R. 621 59 
 
 Sims v. Trollope, (1897) 1 Q. B. 24 276, 282 
 
 Sinclair v. Fell, (1912) W. N. 277 379 
 
 Sinnott v. Bowden (1912), 28 T. L. R. 594 84, 222, 230 
 
 Skeat’s Settlement, Re (1889), 42 Ch. D. 522 397 
 
 Skillbeck v. Hilton (1866), L. R. 2 Eq. 587; 14 W. R. 1017 516 
 
 Skinners’ Co. v. Knight, (1891) 2 Q. B. 542; 60 L. J. Q. B. 629; 66 
 
 L. T. 698; 65 L. T. 240; 50 W. R. 57; 7 T. L. R. 712 342 
 
 Skipper v. Holloway (1909), 44 L. J. Notes of Cases, 695; 2 K. B. 
 
 630 178 
 
 Slaney v. Watney (1866), L. R. 2 Eq. 418 506 
 
 Slater, In re, (1907) 1 Ch. 665; 76 L. J. Ch. 472; 97 L. T. 74 466,484 
 
 Small v. National Provincial Bank of England, (1894) 1 Ch. 686; 63 
 
 L. J. Ch. 270; 70 L. T. 492; 42 W. R. 378; 8 R. 163 269,270 
 
 Smee v. Smee (1879), 5 P. D. 84 458 
 
 Smethurst v. Hastings (1885), 30 Ch. D. 490; 55 L. J. Ch. 173; 52 
 
 L. T. 567; 33 W. R. 496 206 
 
 Smith’s Settled Estates, Re, (1891) 3 Ch. 65; 60 L. J. Ch. 613; 64 
 
 L. T. 821; 39 W. R. 590; 7 T. L. R. 517 427 
 
 Smith, Re, Grose Smith v. Bridger, (1899) 1 Ch. 331 442 
 
 Smith, In the goods of (1889), 15 P. D. 2 463 
 
 Smith v. Cheese (1875), 1 C. P. D. 60; 45 L. J. C. P. 156; 33 L. T. 
 
 670; 24 W. R. 368 286 
 
 Smith v. Chichester (1842), 1 C. & L. 486 242 
 
 Smith v. Clegg (1858), 27 L. J. Ex. 300 308 
 
lxxvi 
 
 TABLE OF CASES. 
 
 PAGE 
 
 Smith v. Egginton (1874), L. R. 9 C. P. 145 316 
 
 Smith v. Gue (1892), 61 L. J. Ch. 510; 67 L. T. 823; (1892) W. N., 
 
 132 504 
 
 Smith v. Hancock, (1894) 2 Ch. 377; 63 L. J. Ch. 477; 70 L. T. 578; 
 
 42 W. R. 465 183 
 
 Smith v. Humble (1854), 15 C. B. 321 326 
 
 Smith v. Hunt (1886), 54 L. T. 422 362 
 
 Smith v. Lancaster, (1894) 3 Ch. 439; 63 L. J. Ch. 842; 71 L. T. 511; 
 
 43 W. R. 17 427 
 
 Smith v. Marrable (1843), 11 M. & W. 5; 12 L. J. Ex. 223 315 
 
 Smith v. Robinson (1), 13 Ch. D. 148; 49 L. J. Ch. 20; 41 L. T. 405; 
 
 28 W. R. 37 61 
 
 Smith v. Robinson (2), (1893) 2 Q. B. 53; 62 L. J. Q. B. 509; 69 
 
 L. T. 434; 41 W. R. 588; 5 R. 469 325 
 
 Smith v. Smith, (1891) 3 Ch. 550; 60 L. J. Ch. 694; 65 L. T. 334 217 
 
 Smith and Stott, Re (1883), 29 C. D. 1009, n 526 
 
 Smith v. Surman (1829), 9 B. & C. 829 34 
 
 Smith v. Wall (1868), 18 L. T. 182 273 
 
 Smith v. Wallace, (1895) 1 Ch. 385; 64 L. J. Ch. 240; 71 L. T. 814; 
 
 43 W. R. 539 68 
 
 Smith v. Webster (1876), 3 Ch. D. 49 37, 59 
 
 Smith v. Whiteman, (1909) 2 K. B. 437; 100 L. T. 770; 78 L. J. 
 
 Iv. B. 1073 278, 283, 287 
 
 Smith, Pinsent & Co., Re (1890), 44 Ch. D. 303; 59 L. J. Ch. 590; 
 
 38 W. R. 685 543, 551 
 
 Snook v. Watts (1848), 11 Beav. 105 9 
 
 Solomon, Re, Nore v. Meyer, (1912) 1 Ch. 261; 105 L. T. 95; 28 
 
 T. L. R. 84 205, 206 
 
 Solomon and Meagher’s Contract, Re (1889), 40 Ch. D. 508; 58 L. J. 
 
 Ch. 339; 60 L. T. 487; 37 W. R. 331 226 
 
 Solomon v. Attenborough, (1912) 1 Ch. 451; 81 L. J. Ch. 242; 106 
 
 L. T. 87; 28 T. L. R. 225 302 
 
 Soltau’s Settled Estates, Re, 79 L. T. R. 335; (1898) 2 Ch. 629 425 
 
 Somerville and Turner’s Contract, Re, (1903) 2 Ch. 583 87 
 
 Somes, Re, Smith v. Somes, (1896) 1 Ch. 250; 74 L. T. 49; 44 W. R. 
 
 236; 12 T. L. R. 152 
 
 534 
 
 Soper v. Arnold (1887), 37 Ch. D. 96; 57 L. J. Ch. 145; 57 L. T. 
 
 747; 35 W. R. 451; 14 App. Cas. 429; 59 L. J. Ch. 214 59 
 
 South African Territories, Limited v. Wallington, (1898) A. O. 309; 
 
 67 L. J. Q. B. 470; 78 L. T. 426 208 
 
 Southby v. Hutt (1837), 2 M. A C. 207 123 
 
 Southcombe v. The Bishop of Exeter, 6 Hare, 213 91 
 
 Spanish Telegraph Co. v. Shepherd (1884), 13 Q. B. D. 202 323 
 
 Spark v. Massey, (1904) 1 Ch. 451 11 
 
 Sparrow and James’ Contract, Re, (1910) 2 Ch. 60; 79 L. J. Ch. 
 
 491, n 73 
 
 Sparrow’s Settled Estates, 66 L. T. 276 7 
 
 Sparrow v. O. W. & W. Rail. Co. (1852), 21 L. J. Ch. 731 200 
 
 Spearman’s Settled Estates, Re, (1906) 2 Ch. 502; 75 L. J. Ch. 829; 
 
 95 L. T. 605 437 
 
 Spears v. Hartley (1800), 3 Esp. 81 93 
 
 Spencer’s Case (1583), 1 Smith, L. Ca. 52 (10th ed.) 176, 318 
 
TABLE OF CASES. 
 
 lxxvii 
 
 PAGE 
 
 Spencer’s, Hammond, Settled Estates, Re, (1903) 1 Ch. 75; 72 L. J. Ch. 
 
 59; 88 L. T. 158; 51 W. R. 262; (1902) W. N. 200 437 
 
 Spencer v. Clarke (1878), 9 Ch. D. 137; 47 L. J. Ch. 692; 27 W. R. 
 
 133 181 
 
 Spencer Bell v. L. & S. W. Ry. Co. (1885), 33 L. J. Ch. 771; 33 
 
 W. R. 771 70, 71 
 
 Spicer v. Martin (1888), 14 App Cas. 12; 58 L. J. Ch. 309; 60 L. T. 
 
 546; 37 W. R. 689; 53 J. P. 516 150 
 
 Spindler and Mears’ Contract, Re, (1901) 1 Ch. 908; 70 L. J. Ch. 420; 
 
 49 W. R. 410; 84 L. T. 295; (1901) W. N. 71 69 
 
 Spradbery’s Mortgage, Re (1880), 14 Ch. E). 514 259 
 
 Spurrell v. Spurred (1853), 11 Hare, 54 511 
 
 Stacey v. Elph (1833), 1 My. & K. 195 513 
 
 Stackpoole v. Beaumont (1796), 3 Ves. 89 497 
 
 Stait v. Fenner (1912), 107 L. T. 120; (1912) W. N. 195 310 
 
 Stamford, &c. Banking Co. and Knight’s Contract, (1900) 1 Ch. 287 ; 
 
 69 L. J. Ch. 126; 81 L. T. 708; 48 W. R. 244 99 
 
 Stammers v. Margrett (1905), 21 T. L. R. 342 266 
 
 Standard Manufacturing Co., Re, (1891) 1 Ch. 627; 60 L. J. Ch. 292; 
 
 64 L. T. 487; 39 W. R. 369 268 
 
 Stanford, Ex parte, Re Barber (1886), 17 Q. B. D. 259; 55 L. J. Q. B. 
 
 341; 54 L. T. 894; 34 W. R. 507 277, 281 
 
 Stanford, Re, Stanford v. Roberts, (1901) 1 Ch. 440; (1901) W. N. 16... 433 
 Stanford v. Roberts (1884), 53 L. J. Ch. 338; 50 L. T. 147; 26 
 
 C. D. 155 547, 549 
 
 Stanley v. Hayes (1842), 3 Q. B. 105; 11 L. J. Q. B. 176 347 
 
 Stapleton v. Cheales (1711), Tudor’s Con. Cases, 830 (1879 ed.) 495 
 
 Starr-Bowkett Building Society and Sibun’s Contract, Re (1889), 42 
 
 Ch. D. 375; 58 L. J. Ch. 651; 61 L. T. 346; 38 W. R. 1 68 
 
 Stead v. Liddard, 1 Bing. 196 94 
 
 Steele, In the goods of (1868), L. R. 1 P. & D. 578; 38 L. J. Prob. 
 
 68; 17 W. R. 15 481 
 
 Steele v. Mart (1825), 4 B. & C. 272 309 
 
 Steele v. Wader (1860), 28 Beav. 446 454 
 
 Stephens, Re, Kilby v. Betts (1903), 73 L. J. Ch. 3 474, 493 
 
 Stephenson and Cox’s Contract, Re (1892), 36 Sol. Jour. 287 306 
 
 Stevens v. Guppy (1826), 3 Russ. 171 72 
 
 Stevens v. Marston (1890), 60 L. J. Q. B. 192; 64 L. T. 274; 39 
 
 W. R. 129 265, 237, 330 
 
 Stevens v. Theatres, Ltd., (1903) 1 Ch. 857 228 
 
 Stevens v. Trevor-Garrick, (1893) 2 Ch. 307; 62 L. J. Ch. 660; 69 
 
 L. T. 11; 41 W. R. 412 374, 375 
 
 Stevenson v. Abington (1863), 31 Beav. 305 500, 504 
 
 Stevenson v. Gullan (1854), 18 Beav. 590 511 
 
 Stewart, Re (1889), 41 Ch. D. 494; 60 L. T. 737; 37 W. R. 484... 540, 550 
 Stewart v. Williamson, (1910) A. C. 455; 80 L. J. P. C. 29; 102 
 
 L. T. 551 354 
 
 Still v. Webb, (1897) 1 Ch. 144 553 
 
 Stillman v. Weedon (1848), 16 Sim. 26; 60 E. R. 782; 18 L, J. Ch. 
 
 46; 12 Jur. 992 486 
 
 Stockdale v. Ascherberg, (1903) 1 K. B. 873; (1904) 1 K. B. 447 324 
 
 Stocker v. Planet Budding Society (1879), 27 W. R. 877 326 
 
Ixxviii TABLE OF CASES. 
 
 PAGE 
 
 Stoddart v. Nelson (1856), 25 L. J. Ch. 116 504 
 
 Stoddart v. Savile, (1894) 1 Ch. 480; 63 L. J. Ch. 467; 70 L. T. 552; 
 
 42 W. R. 361; 8 R. 372 385 
 
 Stokes, Re (1892), 67 L. T. 223 469 
 
 Stokes v. Cheek (1869), 28 Beav. 320 500 
 
 Stokes v. Solomons (1851), 9 Ha. 75 507 
 
 Stokes v. Spencer, (1900) 2 Q. B. 483 285 
 
 Stone, Re, Baker v. Stone, (1895) 2 Ch. 196; 64 L. J. Ch. 637; 72 
 L. T. 815 503 
 
 Stone v. Commercial Rail. Co. (1839), 4 My. & Cr. 122 197 
 
 Stone’s Will, Re, (1893) W. N. 50 180 
 
 Strong 1 v. Stringer (1889), 61 L. T. 470 342 
 
 Stroughill v. Buck, 14 Q. B. 781 131 
 
 Stuart and Olivant and Seadon’s Contract, Re, (1896) 2 Ch. 328; 65 
 
 L. J. Ch. 576; 74 L. T. 450; 44 W. R. 610; 12 T. L. R. 382 54 
 
 Stucley, Re, Stucley v. Kekewich, (1906) 1 Ch. 67; 75 L. J. Ch. 58; 
 
 93 L. T. 718; 54 W. R. 256; 22 T. L. R. 33 92 
 
 Stucley’s Settlement, Re (1870), L. R. 5 Ex. 85 456 
 
 Sturmey Motors, Limited, Re, (1913) 1 Ch. 16 321, 326 
 
 Styles v. Wardle (1825), 4 B. & C. 908 309 
 
 Sudbury and Poynton’s Estates, Re (1893), 62 L. J. Ch. 539 443 
 
 Sudeley and Baines’ Contract, Re, (1894) 1 Ch. 334; 63 L. J. Ch. 
 
 194; 42 W. R. 231 531 
 
 Sumner, Re, (1911) 1 Ch. 315; 80 L. J. Ch. 257; 103 L. T. 897; 
 
 55 S. J. 155; 27 T. L. R. 173 445 
 
 Surplice v. Farnsworth (1844), 7 M. & G. * 327 
 
 Sutherland v. Sutherland, (1893) 3 Ch. 169; 62 L. J. Ch. 946; 69 
 L. T. 186; 42 W. R. 12 419, 443 
 
 Sutton v. Sutton (1882), 22 C. H. 511 210 
 
 Swain v. Ayres and Luck (1888), 21 Q. B. D. 289; 57 L. J. Q. B. 258; 
 
 36 W. R. 798 342 
 
 Swanley Coal Co. v. Denton, (1906) 2 K. B. 873; 75 L. J. Iv. B. 1009... 279 
 
 Swayne v. Inland Revenue Commissioners, T. L. R. (1900) 67; (1900) 
 
 \ Q. B. 172 185 
 
 Sweet v. Meredith (1862), 3 Giff. 610; 32 L. J. Ch. 147; 8 Jur. 
 
 N S. 637 124 
 
 Swift v. Pannell (1883), 24 Ch. D. 210; 48 L. T. 351 264, 272,274,293 
 
 T. 
 
 Taddy & Co. v. Sterious & Co., (1904) 1 Ch. 354; 73 L. J. Ch. 191; 
 
 89 L. T. 628; 52 W. R. 152; 20 T. L. R. 102 152 
 
 Talbot v. Shrewsbury (1714), 2 Wh. & Tud. L. C. Eq. (7th ed.) 375... 492 
 Tamplin, Re, Ex parte Barnett (1890), 59 L. J. Q. B. 194; 62 L. T. 
 
 264; 38 W. R. 351 275 
 
 Tamplin v. James (1879), 15 Ch. D. 215; 43 L. T. 50; 29 W. R. 311... 90 
 
 Tamplin v-. Miller (1882), 30 W. R. 422 12 
 
 Tancred v. Delagoa Bay Rail. Co. (1889), 23 Q. B. D. 239; 58 L. J. 
 
 Q. B. 459; 61 L. T. 229; 38 W. R. 15 178 
 
TABLE OF CASES. 
 
 lxxix 
 
 PAGE 
 
 Tankard, Re, Ex parte The Official Receiver, (1899) 2 Q. B. 57 453 
 
 Tanner v. Smith (1840), 10 Sim. 410 68 
 
 Tanqueray-Willaume v. Landau, 20 Ch. D. 465; 51 L. J. Ch. 434; 46 
 
 L. T. 592 26,469 
 
 Tarn v. Turner (1888), 39 Ch. D. 456; 57 L. J. Ch. 452, 1085; 58 
 
 Taunton and West of England Perpetual Benefit Building Soc. and 
 
 Roberts’ Contract, Re, (1912) 2 Ch. 381; 81 L. J. Ch. 690 53 
 
 Taylor v. Beal (1501), 1 Croke, 222 327 
 
 Taylor v. Coenen (1876), 1 Ch. D. 636; 34 L. T. 18 451 
 
 Taylor v. Debar (1675), 1 Ch. Ca. 274; 2 Ch. Ca. 212 145 
 
 Taylor v. London & County Banking Co., (1901) 2 Ch. 231; (1901) 
 
 W. N. 79 248 
 
 Taylor v. Meads (1865), 4 De G. J. & S. 597 11 
 
 Taylor v. Poncia (1884), 25 Ch. D. 646; 53 L. J. Ch. 469; 50 L. T. 
 
 20; 32 W. R. 335 29 
 
 Taylor v. Shum (1797), 1 B. & P. 21 315 
 
 Tebb v. Cave, (1900) 1 Ch. 642; 69 L. J. Ch. 282; 82 L. T. 115: 
 
 48 W. R. 318 348 
 
 Teevan v. Smith (1882), 20 Ch. D. 729 216 
 
 Tennant v. Trenchard (1869), L. R. 4 Ch. App. 537 29 
 
 Terry and White’s Contract, Re (1886), 32 Ch. D. 14 64 
 
 Tessyman’s Trust, Re (1897), 77 L. T. 484 425 
 
 Thackwray and Young’s Contract, Re (1888), 40 Ch. D. 34; 58 L. J. 
 
 Ch. 72; 59 L. T. 815; 37 W. R. 74; 5 T. L. R. 18 200 
 
 Thellusson v. Rendlesham (1858), 7 H. L. C. 519 480 
 
 Theobald, Re (1903), 19 T. L. R. 536 428 
 
 Thomas, Re, Evans v. Griffiths, (1900) 1 Cli. 454 544, 553 
 
 Thomas, Re, Weatherall v. Thomas, (1900) 1 Ch. 317 433 
 
 Thomas v. Kelly (1888), 13 App. Cas. 506; 58 L. J. Q. B. 66; 37 
 
 W. R. 353 271. 275, 278 
 
 Thomas v. Lulham, (1895) 2 Q. B. 400; 64 L. J. Q. B. 720; 73 
 
 L. T. 146; 43 W. R. 689 346 
 
 Thomas v. McKcchnie (1893), 68 L. T. 816; (1893) W. N. 90 485, 486 
 
 Thomas v. Roberts, (1898) 1 Q. B. 657 285 
 
 Thomas v. Searles, (1891) 2 Q. B. 408; 65 L. T. 39; 39 W. R. 692... 275, 282 
 
 Thompson and Holt, Re (1890), 44 Ch. D. 492; 59 L. J. Ch. 651 97 
 
 Thompson, Re, (1905) 1 Ch. 229; 74 L. J. Ch. 133 20 
 
 Thompson, Re, Thompson v. Thompson, (1906) 2 Ch. 199; 75 L. J. Ch. 
 
 599; 95 L. T. 97; 54 W. R. 613 529 
 
 Thompson v. Hickman, (1907) 1 Ch. 550; 76 L. J. Ch. 254; 96 L. T. 
 
 454; 23 T. L. R. 3li 136 
 
 Thompson v. Lapworth (1868), L. R. 3 C. P. 149; 37 L. J. C. P. 74; 
 
 17 L. T. 507; 16 W. R. 312 324 
 
 Thompson v. Simpson (1841), 1 D. & W. 459 530 
 
 Thorne v. Heard, (1895) A. C. 495; 64 L. J. Ch. 452; 73 L. T. 291; 
 
 44 W. R. 155 228 
 
 Thornton v. Bright (1836), 2 My. & Cr. 230 533 
 
 Thorpe v. Bestwick (1881), 6 Q. B. D. 311 463 
 
 Three Towns Banking Co. v. Maddever (1883), 27 Ch. D. 523; 53 
 
 L. J. Ch. 998; 52 L. T. 35; 33 W. R. 286 451 
 
 Throssell v. Marsh (1885), 53 L. T. 321 286 
 
Ixxx 
 
 TABLE OF CASES. 
 
 PAGE 
 
 Thursby v. Plant (1670), 1 Wins. Saund. 237; 277 (1871 ed.) 176 
 
 Thursby v. Thursby (1875), L. R. 19 Eq. 395 476 
 
 Thynne, Re, (1911) 1 Ch. 282; 80 L. J. Ch. 205; 104 L. T. 19; 
 
 18 Manson, 34 269 
 
 Thynne v. Shove (1890), 45 Ch. D. 577; 59 L. J. Ch. 509; 62 L. T. 
 
 803; 38 W. R. 667 183 
 
 Tibbatts v. Boulter (1895), 73 L. T. 534 43 
 
 Tibbits’ Settled Estates, Re, (1897) 2 Ch. 149; 66 L. J. Ch. 660; 77 
 
 L. T. R. 88; 46 W. R. 3 437, 442 
 
 Tidswell v. Whitworth (1867), L. R. 2 C. P. 326 325 
 
 Tiffin v. Longman (1852), 15 Beav. 275 505 
 
 Timson v. Ramsbotham (1837), 2 Keen, 35 180 
 
 Tippetts and Newbould’s Contract, Re (1887), 37 Ch. D. 444 126 
 
 Todd v. Flight (1860), 9 C, B. N. S. 377; 30 L. J. C. P. 21 314 
 
 Todheatly v. Benhani (1888), 40 Ch. D. 80 336 
 
 Toft v. Stephenson (1848), 7 Hare, 1 93 
 
 Toker v. Toker (1863), 3 De G. J. & S. 487 453 
 
 Toler v. Slater (1867), L. R. 3 Q. B. 42; 37 L. J. Q. B. 33; 17 L. T. 
 
 168; 16 W. R. 124 300 
 
 Tollett v. Tollett, Wh. & Tudor, L. 0. Eq. (8th ed.) Vol. II. 296 532 
 
 Tomlin v. Luce (1889), 43 Ch. D. 191; 59 L. J. Ch. 164; 62 L. T. 
 
 18; 38 W. R. 323 228 
 
 Tomlinson v. Consolidated Credit Co. (1889), 24 Q. B. I). 135; 38 
 
 W. R. 118 292 
 
 Tomson v. Judge (1855), 3 Drew. 306 31 
 
 Topham v. Greenside Glazed Firebrick Co. (1887), 37 Ch. D. 281; 36 
 
 W. R. 465 270 
 
 Topley v. Corsbie (1888), 20 Q. B. D. 350 278 
 
 Torkington v. Magee, (1903) 1 K. B. 644; (1903) W. N. 60 178, 179 
 
 Torrance v. Bolton (1872), L. R. 8 Ch. App. 118 42 
 
 Torrens v. Walker, (1906) 2 Ch. 166 327 
 
 Towne v. Campbell (1847), 3 C. B. 921 367 
 
 Townsend, Re, Ex parte Parsons (1886), 16 Q. B. D. 532; 55 L. J. 
 
 Q. B. 137; 53 L. T. 897; 34 W. R. 329 264 
 
 Townsend v. Martin (1849), 7 Ha. 471 465 
 
 Tozer v. Buxton (1888), 5 T. L. R. 7 226 
 
 Trappes v. Meredith (1869), L. R. 9 Eq. 229; 10 Eq. 604; 7 Ch. 
 
 App. 248 500 
 
 Trego v. Hunt, (1896) A. C. 7; 65 L. J. Ch. 1; 73 L. T. 514; 12 
 T L. R. 80 182 
 
 Treloar v. Bigge (1874), L. R. 9 Ex. 151; 43 L. J. Ex. 95; 
 
 22 W. R. 843 333 
 
 Tremayne v. Rashleigh, (1908) 1 Ch. 681; 77 L. J. Ch. 292; 98 
 
 L. T. 615 377, 378 
 
 Trent v. Hunt (1853), 9 Ex. 14; 22 L. J. Ex. 318 321 
 
 Truro Corporation v. Rowe, (1901) 2 K. B. 870 301 
 
 Tuck v. Southern Counties Deposit Bank (1889), 42 Ch. D. 471; 61 
 
 L T. 348; 37 W. R. 769 274, 275 
 
 Tucker’s Settled Estates, Re, (1895) 2 Ch. 468; 64 L. J. Ch. 413; 
 
 72 L. T. 615; 43 W. R. 581., 433 
 
 Tucker v. Vowles, (1893) 1 Ch. 195; 62 L. J. Ch. 172; 67 L. T. 
 
 763; 41 W. R. 156 15(1 
 
TABLE OF CASES. lxxxi 
 
 PAGE 
 
 Tuff v. Masters, &c. City of London Guild of Drapers, 29 T. L. R. 36; 
 
 (1912) W. N. 249 313 
 
 Tulk v. Moxhay (1'848), 2 Ph. 774; 41 E. R. 1143; 18 L. J. Ch. 83; 
 
 1 H. & T. 105; 13 Jur. 89 148, 152, 176, 318 
 
 Tullett v. Armstrong (1838), 1 Beav. 1 11 
 
 Turean, Re (1888), 40 Ch. D. 5; 58 L. J. Ch. 101; 59 L. T. 712; 
 
 37 W. R. 70 379 
 
 Turner and Skelton, Re (1879), 13 Ch. D. 130 45 
 
 Turner v. Collings (1871), L. R. 7 Ch. App. 329 516 
 
 Turner v. Green, (1895) 2 Ch. 208 44 
 
 Turner v. Smith, (1901) 1 Ch. 213; 70 L. J. Ch. 144; 83 L. T. 704; 
 
 49 W. R. 186. 254 
 
 Turpin v. Chambers (1861), 29 Beav. 104 68 
 
 Tussaud’s Estate, In re (1878), 9 Ch. D. 363 482 
 
 Tuton v. Sanoner (1858), 27 L. J. Ex. 293 286 
 
 Tvars v. Alsop (1889), 61 L. T. 8; 37 W. R. 339; 53 J. P. 212: 
 
 5 T. L. R. 242 31 
 
 Tyndall v. Castle (1893), 62 L. J. Ch. 555; (1893) W. N. 40 150 
 
 U. 
 
 Underwood v. Barker, (1899) 1 Ch. 300 183 
 
 Union Bank of London v. Ingram (1880), 20 Ch. D. 463; 51 L. J. Ch. 
 
 508; 46 L. T. 507; 30 W. R. 375; 45 J. P. 255 212 
 
 Union Lighterage Co. v. London Graving Dock Co., (1902) 2 Ch. 557... 140 
 Upperton v. Nicholson (1871), L. R. 6 Ch. App. 436; 40 L. J. Ch. 
 
 401; 25 L. T. 4; 19 W. R. 733 67 
 
 Upton v. Brown (1879), 12 Ch. D. 872 385 
 
 V. 
 
 Valentini v. Canali (1889), 24 Q. B. D. 166; 69 L. J. Q. B. 74; 61 
 
 L. T. 734; 38 W. R. 331 299 
 
 Van Grutten v. Foxwell, (1897) A. C. 658 505 
 
 Vansittart, Re, (1893) 1 Q. B. 181; 2 Q. B. 377; 62 L. J. Q. B. 277, 
 
 279; 67 L. T. 592; 68 L. T. 233 452 
 
 Vardon’s Trusts, Re (1885), 31 Ch. D. 275 375 
 
 Varley v. Goppard (1872), L. R. 7 C. P. 505 333 
 
 Vaughton v. Noble (1861), 30 Beav. at p. 39 30 
 
 Venn and Furze’s Contract, Re, (1894) 2 Ch. 101; 63 L. J. Ch. 303... 27 
 
 Verney’s Settled Estates, Re, (1898) 1 Ch. 508 ; 67 L. J. Ch. 243... 427, 
 
 431, 432 
 
 Vernon v. Cooke (1880), 49 L. J. C. P. 767 274 
 
 Vernon v. Hallam (1886), 34 Ch. D. 748; 56 L. J. Ch. 115; 55 L. T. 
 
 676; 35 W. R. 156 182 
 
 Verrell’s Contract, Re, (1903) 1 Ch. 65 27 
 
 Vestry of Mile End Old Town v. Whitby (1898), 78 L. T. 80 324 
 
 Vickery v. Evans (1863), 3 New Reps. 286 205, 388 
 
 Villiers v. Oldcorn (1903), 20 T. L. R. 11 331 
 
 Vine v. Raleigh (2), (1891) 2 Ch. 13; 63 L. T. 573; (1896) 1 Ch. 
 
 37 .....414, 474 
 
 Viner v. Francis (1789), 2 Cox, 190 493 
 
 Viney v . Chaplin (1858), 2 De G. k J. 468; 27 L. ,T. Ch. 434 166, 167 
 
 G. — C. / 
 
Ixxxii 
 
 TABLE OF CASES. 
 
 PAGE 
 
 Vint v. Padgett (1858), 1 Gift’. 446; 28 L. J. Ch. 21 219 
 
 Voss and Saunders’ Contract, Re, (1911) 1 Ch. 42; 80 L. J« Ch. 33; 
 
 103 L. T. 493; 55 S. J. 12 585 
 
 w. 
 
 Waddington v. Bristow (1801), 2 Bos. & P. 452 34 
 
 Wadmore v. Toller (1889), 6 T. L. R. 58 41 
 
 Wagstaff’s Settled Estates, Re, (1909) 2 Ch. 201; 100 L. T. 955; 78 
 
 L. J. Ch. 513 448 
 
 Wagstaff v. Wagstaff (1869), L. R. 8 Eq. 229; 38 L. J. Ch. 528 484 
 
 Wainewright v. Elwell (1816), 1 Madd. 632 174 
 
 Wake v. Varah (1876), 2 Ch. D. 348 510 
 
 Wales v. Carr, (1902) 1 Ch. 860 209, 253 
 
 Walker, In the Estate of, Watson v. Treasury Solor. (1912), 28 
 
 T. L. R. 466 9, 458 
 
 Walker, Re, (1905) 1 Ch. 160; 74 L. J. Ch. 86; 91 L. T. 713; 53 
 
 W. R. 177 9 
 
 Walker and Oakshott’s Contract, Re, (1901) 2 Ch. 383; (1902) W. N. 
 
 147 125, 302 
 
 Walker v. Mot-tram (1881), 19 Ch. D. 355; 51 L. J. Ch. 108; 45 L. T. 
 
 659; 30 W. R. 165 182 
 
 Walker v. Reeve (1781), 3 Doug. 19 176 
 
 Walker’s Settled Estates, Re, (1894) 1 Ch. 189; 63 L. J. Ch. 314; 70 
 
 L. T. 259 418, 433 
 
 Walker’s Trusts, Re (1883), 48 L. T. N. S. 632; 31 W. R. 716 437 
 
 Walkley, In the goods of (1893), 69 L. T. 419; (1893) W. N. 62 482 
 
 Wallace v. Cook, 5 Esp. 117 166 
 
 Wallis and Barnard, Re, (1899) 2 Ch. 515 124 
 
 Wallis and Grout’s Contract, Re, (1906) 2 Ch. 206 52, 132 
 
 Wallis v. Hands, (1893) 2 Ch. 75; 62 L. J. Ch. 586; 68 L. T. 428; 
 
 41 W. R. 471 ; 3 R. 351 363 
 
 Walls v. Atcheson (1826), 3 Bing. 462 364 
 
 Walmsley’s Settled Estates, Re (1911), 105 L. T. 332; 55 S. J. 600... 444 
 
 Walrond v. Hawkins (1875), L. R. 10 C. P. 342 346 
 
 Walsh v. Browne (1890), 62 L. T. 899 502 
 
 Walsh v. Lonsdale (1882), 21 Cli. D. 9; 52 L. J. Ch. 2; 46 L. T. 
 
 858; 31 W. R. 106 307 
 
 Walton, Ex parte, Re Levy (1881), 17 Ch. D. 746; 50 L. J. Ch. 657; 
 
 45 L. T. N. S. 1; 30 W. R. 395 243 
 
 Want v. Campain (1893), 9 T. L. R. 254 205 
 
 Want v. Stallibrass (1873), L. R. 8 Ex. 178 67 
 
 Ward v. Duncombe, (1893) A. C. 369; 62 L. J. Ch. 881; 69 L. T. 
 
 121; 42 W. R. 59 179, 180 
 
 Ward v. Holmes (1886), 32 Ch. D. 209; 55 L. J. Ch. 420; 54 L. T. 
 
 266 543, 549 
 
 Warden, In the goods of (1839), 2 Curt. 334 462 
 
 Ware v. Gardner (1869), L. R. 7 Eq. 317; 38 L. J. Ch. 348; 20 L. T. 
 
 71; 17 W. R. 439 451 
 
 Waring v. Lee (1845), 8 Beav. 247 530 
 
 Waring v. Scotland (1888), 57 L. J. Ch. 1016 41 
 
 Waring v. Ward (1802), 7 Ves. 332 146 
 
 Warner v. Jacob (1882), 20 Ch. D. 220; 51 L. J. Ch. 642; 46 L. T. 
 
 656; 30 W. R. 721; 46 J. P. 436 228 
 
TABLE OF CASES. 
 
 Ixxxiii 
 
 PAGE 
 
 'Warner’s Settled Estates, Re (1881), 17 C. E. 711 116 
 
 Warren’s Settlement, Re (1883), 52 L. J. Ch. 928; 49 L. T. 696 12 
 
 Warriner, Re, (1903) 2 Ch. 367; 72 L. J. Ch. 701; 88 L. T. 766; 67 
 
 J. P. 351; 1 L. G. R. 765 325 
 
 Wasdale, Re, Britten v. Partridge, (1899) 1 Ch. 163; 79 L. T. 520; 
 
 47 W. R. 169; 15 T. L. R. 97 180 
 
 Waters v. Phillips, (1910) 2 K. B. 465; 79 L. J. Iv. B. 1062; 103 L. T. 
 
 288; 74 J. P. 343; 26 T. L. R. 564 362 
 
 Waters v. Weigall (1795), 2 Anst. 575 327 
 
 Watkins v. Nash (1875), L. R. 20 Eq. 262 166 
 
 Watson, Re (1890), 25 Q. B. D. 27; 59 L. J. Q. B. 394; 63L.T.209; 
 
 38 W. R. 567 266 
 
 Watson v. Home (1827), 7 B. & C. 285 325, 326 
 
 Watson v. Strickland (1887), 19 Q. B. D. 391; 56 L. J. Q. B. 594; 35 
 
 W. R. 769 280 
 
 Wanton v. Coppard, (1899) 1 Ch. 92 336 
 
 Weardale Coal and Iron Co. v. Hodson, (1894) 1 Q. B. 598; 63 L. J. 
 
 Q. B. 391; 70 L. T. 632; 42 W. R. 424 279, 281 
 
 Webb v. Jonas (1888), 39 Ch. I). 660 205 
 
 Webb v. Ledsam (1855), 1 Iv. A J. 398 205 
 
 Webber v. Corbett (1873), L. R. 16 Eq. 515 481 
 
 Webster and Jones’ Contract, Re, (1902) 2 Ch. 551 542, 554 
 
 Webster, Re, Ex parte Morris (1882), 22 Ch. D. 136; 52 L. J. Ch. 375; 
 
 48 L. T. 295; 31 W. R. Ill 289 
 
 Weddall, Rc, Parker v. Parker (1884), 29 S. J. 85 542, 548 
 
 Weigall v. Waters (1795), 6 T. R. 488 327 
 
 Wellesley v. Mornington (1855), 2 Iv. & J. 143 534 
 
 Wellesley v. Withers (1855), 4 E. A B. 750 514 
 
 Wells v. Wells (1862), 2 S. A T. 607 504 
 
 Wenman v. Lyon, (1891) 2 Q. B. 192; 60 L. J. Q. B. 223; 65 L. T. 
 
 136; 39 W. R. 301 268 
 
 West and Hardy’s Contract, Re, (1903) W. N. 210; (1904) 1 Ch. 145... 12 
 
 West v. Burney (1819), 1 R. & M. 434 535 
 
 West v. Dobb (1869), L. R. 5 Q. B. 460; 39 L. J. Q. B. 190; 18 
 
 W. R. 1167 317, 331 
 
 West v. Gwynne, (1911) 2 Ch. 1; 80 L. J. Ch. 578; 104 L. T. 759; 
 
 West v. Williams, (1899) 1 Ch. 132 247 
 
 West v. Wythes, (1893) 2 Ch. 369; 62 L. J. Ch. 665; 68 L. T. 520; 
 
 41 W. R. 375 405 
 
 West London Commercial Bank v. Reliance Permanent Building Society 
 
 (1885), 29 Ch. D. 954 228 
 
 Westall v. Hall (1883), W. N. 158 94 
 
 Westminster Eire Office v. Glasgow Provident, Ac. Society (1888), 13 
 
 App. Ca. at p. 716 84 
 
 Weston and Thomas’ Contract, Re, (1907) 1 Ch. 244 ; 76 L. J. Ch. 179 ; 
 
 96 L. T. 324 68, 79 
 
 Weston v. Savage (1879), 10 Ch. D. 736 41 
 
 Weymouth v. Davis, (1908) 2 Ch. 169; 77 L. J. Ch. 585; 99 L. T. 333... 645 
 
 Wharton, Re, Wharton v. Barmby (1910), 102 L. T. 531 379 
 
 Wharton v. Masterman, (1895) A. C. 186; 64 L. J. Ch. 369; 72 L. T. 
 
 431; 43 W. R. 449 475 
 
lxxxiv 
 
 TABLE OF CASES. 
 
 PAG II 
 
 Wheeldon v. Burrows (1899), 12 Ch. D. 31; 48 L. J. Ch. 853; 41 L. T. 
 
 327; 28 W. R. 196 139, 140 
 
 Wheelwright v. Walker (1883), 23 Ch. D. 152; 52 L. J. Ch. 274; 48 
 
 L. T. 867; 31 W. R. 363 440 
 
 Whitbread v. Watt, (1902) 1 Ch. 835; (1902) W. N. 64 92 
 
 White and Smith’s Contract, Re, (1896) 1 Ch. 637 44 
 
 White to Rubery, (1894) 2 Q. B. 923; 64 L. J. Q. B. 137 293 
 
 White v. Bass (1862), 31 L. J. Ex. 283 140 
 
 White v. Boby (1877), 26 W. R. 133 90 
 
 White v. Cudden, 8 Cl. & Fin. 766, 787 64 
 
 White v. Hay (1895), 72 L. T. 281 36 
 
 White v. Metcalf, (1903) 2 Ch. 567; 72 L. J. Ch. 712; 89 L. T. 164... 232 
 
 White’s Charities, Re (1898), 78 L . T. 550 136 
 
 White’s Mortgage, Re (1881), 29 W. R. 820 259 
 
 Whiteacre v. Symonds (1808), 10 East, 13 366- 
 
 Whitelocke v. Baker (1807), 13 Ves. 514 106 
 
 Whiting’s Settlement, Re, (1905) 1 Ch. 96; 74 L. J. Ch. 207; 91 L. T. 
 
 821; 53 W. R. 293; 21 T. L. R. 83 497 
 
 Whitlock’s Case (1609), 8 Rep. 69 b 311 
 
 Whitmore-Searle v. Whitmore-Searle, (1907) 2 Ch. 332; 76 L. J. Ch. 
 
 576; 97 L. T. 160 519 
 
 Whittemore v. Wliittemore (1869), L. R. 8 Eq. 603 64 
 
 Whittingham v. Murdy (1889), 60 L. T. 956 78 
 
 Wickenden v. Webster (1856), 6 E. & B. 387; 25 L. J. Q. B. 264; 2 
 
 Jur. 590 337 
 
 Wickens, Ex parte, (1898) 1 Q. B. 543; 67 L. J. Ch. 397; 78 L. T. 
 
 213 291, 292 
 
 Wickham v. Hawker (1840), 7 M. & W. 63 139 
 
 Widdow’s Trusts, Re (1871), L. R. 11 Eq. 408 110 
 
 Wight v. Bucknell, 9 L. J. K. B. 304 131 
 
 Wigram v. Buckley, (1894) 3 Ch. 483; 63 L. J. Ch. 689; 71 L. T. 287; 
 
 43 W. R. 147 150 
 
 Wild v. Woolwich Borough Council, (1909) 2 Ch. 287 ; 78 L. J. Ch. 633; 
 
 73 J. P. 634; 7 L. G. R. 733; 101 L. T. 580; 26 T. L. R. 67 200 
 
 Wild’s Case (1599), 6 Co. 16 b; Tudor, L. C. Conv. (4th ed.) 361... 491 
 
 Wilde v. Gibson (1848), 1 H. L. C. 632, 638 43 
 
 Wilkes v. Spooner, (1911) 2 Iv. B. 473; 80 L. J. K. B. 1107; 104 
 
 L. T. 911; 55 S. J. 479; 27 T. L. R. 426 148 
 
 Wilkins v. Hogg (1861), 8 Jur. 25; 3 Giff. 116 394 
 
 Wilkinson v. Girard Freres (1891), 7 T. L. R. 266 266 
 
 Wilkinson v. Grant (1856), 25 L. J. C. P. 233 209 
 
 Wilkinson v. Jougliin (1872), 41 L. J. Ch. 234 501 
 
 Wilkinson v. Rogers (1863), 12 W. R. 119 337 
 
 Wilks v. Bannister (1885), 30 Ch. D. 512 504 
 
 Wille v. St. John, (1910) 1 Ch. 325; 79 L. J. Ch. 239; 102 L. T. 383; 
 
 26 T. L. R. 405 153, 642 
 
 Willett and Argenti, Re (1889), 60 L. T. 735; (1889) W. N. 66; 5 
 
 T. L. R. 476 54, 73 
 
 William Brandt’s Sons & Co. v. Dunlop Rubber Co., (1905) A. C. 
 
 p. 454; 74 L. J. K. B. 898; 93 L. T. 495; 21 T. L. R. 710 179 
 
 Williams and the Duchess of Newcastle’s Contract, Re, (1897) 2 Ch. 144; 
 
 66 L. J. Ch. 543; 76 L. T. 646; 45 W. R. 627; 13 T. L. R. 412... 55 
 
TABLE OF CASES. 
 
 Ixxxv 
 
 PAGE 
 
 Williams, Re (1883), 49 L. T. 475; 25 C. D. 656; 53 L. J. Ch. 500; 
 
 32 W. R. 187 280 
 
 Williams 5 Settlement, In re, (1911) 1 Ch. 441; 80 L. J. Ch. 249; 104 
 
 L. T. 310; 55 S. J. 236 378 
 
 Williams v. Aylesbury Rail. Co. (1873), 21 W. R. 819 92 
 
 Williams v. Earle (1868), L. R. 3 Q. B. 739; 37 L. J. Q. B.231; 16 
 W. R. 1041 317, 331 
 
 Williams v. Evans (1866), L. R. 1 Q. B. 352 58 
 
 Williams v. Gabriel, (1906) 1 K. B. 155; 75 L. J. K. B. 149; 94 
 
 L. T. 17; 54 W. R. 379; 22 T. L. R. 217 347 
 
 Williams v. Spargo (1893), W. N. 100 49, 50, 306 
 
 Williams v. Williams (1851), 20 L. J. Ch. 280 505 
 
 Williamson v. Williamson (1874), L. R. 9 Ch. 729 331 
 
 Willis, Re, Ex parte Kennedy (1888), :21 Q. B. D. 384; 57 L. J. 
 
 Q. B. 634; 53 L. T. 749; 35 W. R. 793 238, 265, 267 
 
 Willis, Re, Spencer v. Willis, (1911) 2 Ch. 563; 81 L. J. Ch. 8; 105 
 
 L. T. 295; 55 S. J. 598 484 
 
 Willis v. Barron, (1902) A. C. 271; 71 L. J. Ch. 609; 86 L. T. 805; 
 
 18 T. L. R. 602 31 
 
 Willock v. Noble (1837), L. R. 7 Ch. App. 708; L. R. 7 II. L. 580 458 
 
 Wills v. Stradling (1797), 3 Ves. jun. 378 39 
 
 Wilmott v. London Road Car Co., (1910) 2 Ch. 525; 80 L. J. Ch. 1; 
 
 103 L. T. 447; 27 T. L. R. 4; (1910) W. N. 200 334 
 
 Wilson and Stevens’ Contract, Re, (1894) 3 Ch. 546; (1894) W. N. 162... 71 
 
 Wilson, Ike (1885), 29 Ch. D. 790; 55 L. J. Ch. 627; 53 L. T. 406 542, 
 
 544, 648 
 
 Wilson v. Atkinson (1864), 4 De G. J. & S. 455 385 
 
 Wilson v. Eden (1850), 5 Ex. 752 485 
 
 Wilson v. Finch-IIatton (1877), 2 Ex. D. 336; 46 L. J. Ex. 489; 36 
 
 L. T. 473; 25 W. R. 537 315 
 
 Wilson v. Hart (1866), L. R. 1 Ch. App. 463; 35 L. J. Ch. 369; 12 
 
 L. T. 798; 13 W. R. 983 148, 318 
 
 Wilson v. Kearse (1800), Peake, Add. Cas. 196 8 
 
 Wiltshire, Re, Ex parte Eynon, (1900) 1 Q. B. 96 285 
 
 Wiltshire v. Rabbits (1844), 14 Sim. 76 180 
 
 Wimborne (Lord) and Browne, Re, (1904) 1 Ch. 537 ; 73 L. J. Ch. 
 
 270; 90 L. T. 540; 52 W. R. 334 414, 437, 442 
 
 Windham’s Settled Estates, Re, (1912) 2 Ch. 75; 81 L. J. Ch. 574; 
 
 106 L. T. 832 433 
 
 Winn v. Bull (1877), 7 Ch. D. 29 38 
 
 Winterbottom v. Ingham (1845), 7 Q. B. 611; 14 L. J. Q. B. 298 72 
 
 Wise, Re, Smith v. Waller, (1912) W. N. 235 408 
 
 Withall, Re, (1891) 3 Ch. 8 542, 544 
 
 Witt v. Banner (1887), 20 Q. B. D. 114; 56 L. J. Q. B. 550; 57 L. T. 
 
 307; 36 W. R. 115 279 
 
 Wix v. Rut-son, (1899) 1 Q. B. 474; 68 L. J. Ch. 298; 80 L. T. R. 168... 324 
 
 Wollaston v. King (1869), L. R. 8 Eq. 165 • 531 
 
 Wolverton v. Att.-Gen., (1898) A. C. 535 114 
 
 Wood, Re, Tullett v. Colville, (1894) 3 Ch. 381; 63 L. J. Ch. 790; 71 
 
 L. T. 413 503 
 
 Wood, Re, Ex parte Woolf e, (1894) 1 Q. B. 605; 63 L. J. Q. B. 352; 
 
 70 L. T. 282; 10 R. 157; 1 Manson, 87 281, 291, 292 
 
Ixxxvi 
 
 TABLE OF CASES. 
 
 PAGE' 
 
 Wood v. Calvert (1886), 55 L. T. 53; 34 W. R. 732 548 
 
 Wood v. Cooper, (1894) 3 Cli. 671; 63 L. J. Ch. 845; 71 L. T. 222; 
 
 43 W. R. 201; 8 R. 517 337 
 
 Woodhouse v. Walker (1880), 5 Q. B. D. 404; 49 L. J. Q. B. 609; 
 
 42 L. T. 770; 28 W. R. 765 405 
 
 Woodmeston v. Walker (1831), 2 Russ. & M. 606 500 
 
 Woods and Lewis’s Contract, (1898) 2 Ch. 211 70, 71 
 
 Woollam v. Hearn (1802), 7 Ves. 211; 2 Wh. & Tudor, L. C. Eq. 
 
 (7th ed.) 513 80 
 
 Woollam v. Kenworthy (1803), 9 Ves. 142 482 
 
 Woolston v. Ross, (1900) 1 Ch. 788; 69 L. J. Ch. 363; 82 L. T. 21 ; 
 
 48 W. R, 556; 64 J. P. 264 231, 232 
 
 Worley v. Frampton (1846), 5 Ha. 560 141 
 
 Worrall v. Jacob (1817), 3 Mer. 256 528 
 
 Worsley v. Earl of Scarborough (1746), 3 Atk. 391 156 
 
 Worthington v. Warrington (1848), 5 C. B. 635 368 
 
 Wride v. Dyer, (1900) 1 Q. B. 23; 81 T. L. R. 453; 69 L. J. Q. B. 17... 365 
 
 Wright’s Settled Estate, Re (1900), 83 L. T. 159 433 
 
 Wright v. Callender (1852), 2 D. M. & G. 652 500 
 
 Wright v. Carter, (1903) 1 Ch. 27; 72 L. J. Ch. 138; 87 L. T. 624; 
 
 51 W. R. 196; 19 T. L. R. 29 30, 31 
 
 Wright v. Marsom, (1896) W. N. 148 512 
 
 Wright v. Stavert (1860), 2 El. & El. 721 34, 35 
 
 Wright v. Vanderplank (1856), 8 D. M. & G. 136 30 
 
 Wrigley v. Gill, (1906) 1 Ch. 165; 75 L. J. Ch. 210; 94 L. T. 179; 
 
 54 W. R. 274 212 
 
 Wrottesley’s Settlement, In re, Wrottesley v. Fowler, (1911) 1 Ch. 
 
 708; 80 L. J. Ch. 457; 104 L. T. 281 408 
 
 Wyatt v. Berry, (1893) P. 5; 62 L. J. P. 28; 68 L. T. 416 462 
 
 Wylie, Re, Wylie v. Moffat, (1895) 2 Ch. 116; 64 L. J. Ch. 613; 
 
 43 W. R. 475 459 
 
 X. 
 
 X., Re, (1894) 2 Ch. 415; 63 L. J. Ch. 613; 71 L. T. 139; 42 W. R. 
 
 157 447 
 
 Y. 
 
 Yellowly v. Gower (1855), 11 Exch. 274; 24 L. J. Ex. 289 303, 314 
 
 Yielding and Westbrook, Re (1886), 31 Ch. D. 344; 55 L. J. Ch. 496; 
 
 54 L. T. 531 126 
 
 York Union Banking Co. v. Artley (1899), 11 Ch. D. 205; 27 W. R. 
 
 704 251 
 
 Young and Harston’s Contract, Re (1885), 31 Ch. D. 168 70, 71 
 
 Young v. Ashley Gardens Properties, Ltd., (1903) 2 Ch. 112; 72 L. J. 
 
 Ch. 520; 88 L. T. 541; (1903) W. N. 93 333, 334 
 
 Z. 
 
 Zimbler v. Abrahams, (1903) 1 K. B. 577; 72 L. J. K. B. 103; 88 
 L. T. 46; 51 W. R, 343 
 
 307 
 
( lxxxvii ) 
 
 TABLE OF STATUTES. 
 
 PAGE 
 
 52 lien. 3, c. 23 (Marlbridge, 1268) 
 
 314, 405 
 
 6 Edw. l,c. 5 (Statute of Glouces- 
 ter) '314 
 
 27 lien. 8, c. 16 (Enrollment, 1535) 195 
 
 32 lien. 8, c. 34 (Reversions, 1540) 
 
 316, 317 
 
 34 & 35 Hen. 8, c. 20 (Recoveries, 
 1542) 517 
 
 13 Eliz. c. 5 (Creditors, 1571)... 
 
 119, 449 
 
 27 Eliz. c. 4 (Purchasers, 1585)... 
 
 451, 452 
 
 21 Jae. 1, c. 16 (Limitations, 1623) 93 
 
 s. 3 90 
 
 PAGE 
 
 s. 7 
 
 91 
 
 12 Car. 2, c. 24 (Military Tenures, 
 1660) 102, 468 
 
 29 Car. 2, c. 3 (Statute of Frauds, 
 1677), 
 
 s. 1 
 
 
 9 
 
 307 
 
 s. 2 
 
 
 
 307 
 
 s. 3 
 
 
 175, 
 
 362 
 
 s. 4 
 
 
 15, 249, 305, 
 
 376 
 
 s. 5 
 
 
 102 
 
 s. 7 
 
 
 
 2 
 
 4 & 5 \V. & M. c. 16 (Mortgages, 
 1693) 218 
 
 1 Anne, c. 1, s. 5 (Taxation, 1702) 300 
 
 4 & 5 Anne, c. 16 (Limitations, 
 1706), s. 19 91 
 
 7 Anne, c. 20 (Middlesex Registry, 
 1708) 161, 162, 188, 189, 190, 191 
 
 9 Geo. 2, c. 36 (Mortmain, 1736)... 21 
 
 13 Geo. 2, c. 29 (Foundling Hos- 
 pital) 
 
 26 Geo. 2, c. 22 (British Museum)... 
 
 12 Geo. 3, c. 67 (Marine Society)... 24 
 
 14 Geo. 3, c. 78 (Fires Prevention 
 
 (Metropolis), 1774), 
 
 s. 83 83, 222, 229, 328 
 
 s. 86 314 
 
 23 Geo. 3, c. 58 (Stamp, 1783) ... 34 
 
 36 Geo. 3, c. 52 (Legacy Duty, 
 1796) 112 
 
 38 Geo. 3, c. 5 (Land Tax, 1797)... 313 
 
 39 & 40 Geo. 3, 
 
 c. 88 (Crown Private Estates, 
 
 1800), s. 10 461 
 
 c. 98 (Accumulations, 1800)... 474 
 
 42 Geo. 3, c. 116 (Land Tax Re- 
 demption, 1802) 107 
 
 43 Geo. 3, c. 107 (Queen Anne’s 
 
 Bounty, 1803) 24 
 
 5 Geo. 4, e. 39 (British Museum, 
 1824) 23 
 
 9 Geo. 4, c. 14 (Statute of Frauds 
 
 Amendment, 1828) 91 
 
 10 Geo. 4, c. 50 (Crown Lands, 
 
 1829) 300 
 
 11 Geo. 4, c. 65 (Infants Property, 
 
 1830), 
 
 s. 12 298, 299 
 
 s. 17 298 
 
 1 Will. 4, c. 46 (Illusory Appoint- 
 ments, 1830) 532 
 
 3 & 4 Will. 4, 
 
 c. 9 (Seamen’s Hospital Society, 
 
 1833) 24 
 
 c. 27 (Real Property Limita- 
 tion, 1833) 112, 322 
 
 s. 40 94 
 
 s. 42 210 
 
 c. 42 (Civil Procedure, 1833)... 
 
 144, 322 
 
 
 c. 74 
 
 (Fines and 
 
 Recoveries, 
 
 
 21 
 
 s. 
 
 1833), 
 
 1 to 13 
 
 517 
 
 
 23 
 
 s. 
 
 18 
 
 
 517 
 
 s. 
 
 19 
 
 
 517 
 
 23 
 
 s. 
 
 22 
 
 
 517 
 
 24 
 
 s. 
 
 23 
 
 517, 
 
 518 
 
 s. 
 
 24 
 
 517, 
 
 518 
 
 
 s. 
 
 25 
 
 517 
 
 
 s. 
 
 26 
 
 
 517 
 
 328 
 
 s. 
 
 27 
 
 517, 
 
 518 
 
 314 
 
 s. 
 
 28 
 
 
 517 
 
lxxxviii 
 
 TABLE OF STATUTES 
 
 3 A 4 Will. 4, PAGE 
 
 c. 74 (Fines and Recoveries, 
 1833), 
 
 s. 29 517 
 
 s. 30 517 
 
 s. 31 517 
 
 s. 32 517, 518 
 
 s. 33 517, 519 
 
 s. 34 517 
 
 s. 35 517 
 
 s. 36 517, 519 
 
 s. 37 517 
 
 s. 39 517 
 
 s. 40 163 
 
 s. 41 163 
 
 s. 42 519 
 
 s. 43 519 
 
 s. 44 519 
 
 s. 45 519 
 
 s. 46 519 
 
 s. 50 520 
 
 s. 51 520 
 
 s. 52 520 
 
 s. 53 175, 520 
 
 s. 54 520 
 
 s. 71 520 
 
 s. 74 195 
 
 s. 91 13,519 
 
 6 & 7 Will. 4, 
 
 c. 32 (Building Societies, 1836) 
 
 262, 607 
 
 c. 86 (Births and Deaths Regis- 
 tration, 1836), 
 
 s. 35 . 106 
 
 s. 38 106 
 
 7 Will. 4 A 1 Viet. c. 26 (Wills, 
 
 PACK 
 
 1 & 2 Viet. c. 20 (Queen Anne'a 
 
 Bounty, 1838) 146 
 
 2 & 3 Viet. c. 11 (Judgments, 1839), 
 
 s. 4 
 s. 7 
 
 156 
 
 156 
 
 1837), 
 
 s. 3 
 
 
 
 457 
 
 s. 123 
 
 s. 127 
 
 s. 7 
 
 
 .... 6 , 
 
 457 
 
 s. 128 
 
 s. 8 
 
 
 
 458 
 
 s. 129 
 
 s. 9 
 
 
 
 461 
 
 s. 130 
 
 s. 10 
 
 
 .461, 
 
 532 
 
 s. 131 
 
 s. 11 
 
 
 .457, 
 
 461 
 
 s. 132 
 
 s . 12 
 
 
 
 457 
 
 s. 133 
 
 s. 15 
 
 
 
 463 
 
 c. 20 (Railway Clauses, 1845)... 
 
 s. 16 
 
 
 
 463 
 
 144, 
 
 s. 17 
 
 
 
 463 
 
 s. 77 
 
 s. 18 
 
 
 
 479 
 
 s. 132 
 
 s. 20 
 
 
 
 479 
 
 c. 43 (Proof of Proceedings, 
 
 s. 21 
 
 
 
 463 
 
 1845) 
 
 s. 22 
 
 
 
 479 
 
 c. 106 (Real Property, 1845), 
 
 s. 24 
 
 459, 
 
 483, 
 
 484 
 
 s. 2 2, 
 
 s. 25 
 
 
 
 485 
 
 s. 3 2, 6, 175, 307, 
 
 s. 26 
 
 
 
 485 
 
 s. 4 
 
 s. 27 
 
 
 .485, 
 
 531 
 
 s. 5 
 
 s. 28 
 
 
 
 487 
 
 s. 7 
 
 s. 29 
 
 
 
 487 
 
 s. 8 
 
 s. 31 
 
 
 
 488 
 
 c. 113 (Evidence, 1845), s. 3.. 
 
 s. 32 
 
 
 .488, 
 
 489 
 
 c. 118 (Inclosure, 1845), 
 
 s. 33 
 
 472, 
 
 489, 
 
 490 
 
 s. 147 
 
 3 & 4 Viet. c. 92 (Non-Parochial 
 Registers, 1840), 
 
 s. 9 106 
 
 s. 17 106 
 
 5 A 6 Viet. c. 35 (Income Tax, 
 
 1842) 312, 321, 326 
 
 6 A 7 Viet. c. 35 (Income Tax, 
 
 1843) , s. 40 326 
 
 8 A 9 Viet. 
 
 c. 18 (Lands Clauses Consolida- 
 tion, 1845) 149, 349 
 
 s. 6 196 
 
 s. 7 10, 15, 197 
 
 s. 15 197 
 
 s. 18 197 
 
 ss. 23—68 197 
 
 s. 69 198 
 
 s. 71 198 
 
 s. 72 198 
 
 s. 75 198 
 
 s. 76 199 
 
 s. 77 199 
 
 s. 78 199 
 
 s. 79 199 
 
 s. 80 199 
 
 s. 81 199 
 
 s. 82 199, 552 
 
 s. 92 199, 200 
 
 ss. 108—118 199 
 
 199 
 
 199 
 
 200 
 200 
 200 
 200 
 200 
 200 
 
 349 
 137 
 146 
 
 108 
 
 134 
 363 
 146 
 130 
 14 
 410 
 104 
 
 76 
 
TABLE OF STATUTES. 
 
 lxxxix 
 
 PAGE 
 
 12 & 13 Viet. c. 26 (Leases, 1849), 
 
 s. 7 303 
 
 13 & 14 Viet. c. 17 (Leases, 1850) ... 303 
 
 14 & 15 Viet. 
 
 c. 25 (Landlord and Tenant, 
 
 1851) 360 
 
 c. 97 (Ecclesiastical Commis- 
 sioners, 1851) 24 
 
 15 & 16 Viet. 
 
 c. 24 (Wills Amendment, 1852) 462 
 c. 76 (Common Law Procedure, 
 
 1852) , ss. 210—212 339, 344 
 
 c. 79 (Copyhold, 1852) 3, 51 
 
 16 & 17 Viet. 
 
 c. 71 (Succession Duty, 1853)... 112 
 
 s. 
 
 1 
 
 
 
 116 
 
 s. 
 
 10 
 
 
 
 113 
 
 s. 
 
 11 
 
 
 
 113 
 
 s. 
 
 16 
 
 
 
 113 
 
 s. 
 
 18 
 
 
 
 114 
 
 s. 
 
 20 
 
 
 
 115 
 
 s. 
 
 21 
 
 
 
 115 
 
 s. 
 
 22 
 
 
 
 115 
 
 s. 
 
 42 
 
 
 
 116 
 
 s. 
 
 52 
 
 
 
 116 
 
 c. 137 
 
 (Charitable Trusts, 1853) 
 
 
 
 
 
 18 
 
 , 21 
 
 17 & 18 V 
 
 ict. 
 
 
 
 
 c. 34 
 
 (Bills of 
 
 Sale, 
 
 1854) ... 
 
 264 
 
 c. 90 
 
 (Usury, 
 
 1854) 
 
 
 212 
 
 o. 113 
 
 (Real Estates 
 
 Charges, 
 
 
 1854) 
 
 
 88, 
 
 467 
 
 18 & 19 Viet. 
 
 c. 15 (Judgments, 1855) ...157, 194 
 c. 43 (Infant Settlements, 1855) 
 
 6, 373 
 
 c. 120 (Metropolis Manage- 
 ment, 1855) 324 
 
 c. 124 (Charitable Trusts, 1855) 20 
 
 19 & 20 Viet, 
 
 c. 97 (Mercantile Law Amend- 
 ment, 1856), 
 
 s. 10 91 
 
 s. 13 91 
 
 c. 120 (Settled Land, 1856) ... 412 
 
 20 & 21 Viet. 
 
 c. 57 (Married Women’s Re- 
 versionary Interests, 1857), 
 g> i 12 14 
 
 c. 77 (Court of Probate, 1857).. 104 
 c. 85 (Matrimonial Causes, 
 
 1857) 11 
 
 21 & 22 Viet. 
 
 c. 27 (Cairns Damages, 1858, 
 
 repealed) 90 
 
 c. 108 (Matrimonial Causes, 
 
 1858) 
 
 ; 23 Viet. 
 
 PAGE 
 
 c. 35 (Law of 
 
 Property 
 
 Amendment, 
 
 1859), 
 
 s. 1 
 
 346 
 
 s. 3 
 
 345 
 
 s. 12 
 
 532 
 
 s. 14 
 
 26, 203 
 
 s. 15 
 
 26, 203 
 
 s. 16 
 
 26, 203, 470 
 
 s. 17 
 
 26, 203 
 
 s. 24 
 
 99 
 
 c. 145 (Lord Cranworth, 1859) 223 
 
 23 & 24 Viet. 
 
 c. 38 (Law of Property 
 Amendment, 1860), s. 6 ... 346 
 c. 106 (Lands Clauses Consoli- 
 dation Amendment, 1860) 196 
 
 c. 115 (Crown Debts, &c., 1860) 111 
 c. 126 (Common Law Proce- 
 dure, 1860), s. 1 344 
 
 c. 145 (Lord Cranworth’s, 1860) 
 
 29, 386 
 
 24 & 25 Viet. 
 
 c. 87 (Industrial and Provident 
 
 Societies, 1862) 268 
 
 c. 114 (Wills, 1861) 460, 461 
 
 c. 133 (Land Drainage, 1861)... 159 
 
 25 & 26 Viet. 
 
 c. 53 (Proof of Titles and Con- 
 veyance of Real Estate, 
 
 1862) 539, 556 
 
 c. 67 (Declaration of Title, 
 1862) 539 
 
 26 & 27 Viet. c. 106 (Charitable 
 
 Lands, 1863) 22 
 
 27 & 28 Viet. 
 
 c. 18 (Revenue (No. 1), 1864), 
 
 s. 15 326 
 
 c. 114 (Improvement of Land, 
 1864) 159 
 
 28 & 29 Viet. 
 
 c. 72 (Navy and Marines 
 (Wills), 1865) 457, 461 
 
 30 & 31 Viet. 
 
 c. 48 (Sales of Land by Auc- 
 tion, 1867) 57 
 
 c. 69 (Real Estates Charges, 
 
 1867) . 88, 467 
 
 c. 144 (Policies of Assurance, 
 1867), s. 3 3, 181 
 
 32 & 33 Viet, 
 
 c. 18 (Lands Clauses Consoli- 
 dation, 1869) 196 
 
 c. 41 (Poor Rate Assessment, 
 1869), s. 1 
 
 11 
 
 313 
 
xc 
 
 TABLE OF STATUTES 
 
 33 & 34 Viet. page 
 
 c. 14 (Naturalization, 1870), 
 
 s. 2 16, 459 
 
 s. 14 16 
 
 c. 23 (Forfeiture, 1870) 16, 
 
 459, 460 
 
 c. 34 (Charitable Funds Invest- 
 ment, 1870) 19 
 
 c. 35 (Apportionment, 1870) ... 403 
 
 c. 75 (Elementary Education, 
 1870) 149 
 
 35 & 36 Viet. 
 
 c. 24 (Charitable Trusts Incor- 
 poration, 1872) 19 
 
 36 & 37 Viet. 
 
 c. 50 (Places of Worship Sites, 
 
 1873) 17 
 
 c. 66 (Judicature, 1873), 
 
 s. 16 195 
 
 s. 24 81 
 
 s. 25 3, 177, 401, 404 
 
 37 & 38 Viet. 
 
 c. 37 (Powers of Appointment, 
 
 1874) 532 
 
 c. 42 (Building Societies, 1874) 
 
 258, 262, 607 
 
 c. 57 (Real Property Limita- 
 tion, 1874) ....'..112, 160, 322 
 
 s. 6 517 
 
 s. 7 218 
 
 s. 8 93, 210 
 
 s. 10 112, 470 
 
 c. 62 (Infants’ Relief, 1874)... 7, 202 
 c. 78 (Vendor and Purchaser, 
 1874), 
 
 s. 1 48, 208 
 
 s. 2 50, 51, 54, 55, 106, 132, 
 
 169, 306, 576 
 
 s. 4 259 
 
 s. 7 248 
 
 s. 8 189 
 
 si. 9 93, 124, 306 
 
 c. 88 (Births and Deaths 
 Registration, 1874), 
 
 s. 30 106 
 
 s. 32 106 
 
 s. 38 106 
 
 38 & 39 Viet. 
 
 c. 55 (Public Health, 1875)... 
 
 159 324 
 
 c. 60 (Friendly Societies, 1875) 258 
 c. 77 (Judicature, 1875), s. 10.. 290 
 
 c. 83 (Local Loans, 1875) 391 
 
 c. 87 (Land Transfer, 1875)... 153, 
 
 193, 539, 557 
 
 s. 2 563 
 
 s. 5 558, 564, 565 
 
 s. 7 571 
 
 s. 8 573 
 
 s. 9 573 
 
 38 & 39 Viet. page 
 
 c. 87 (Land Transfer, 1875), 
 
 s. 
 
 10 .. 
 
 
 s. 
 
 11 .. 
 
 563, 574, 575 
 
 s. 
 
 13 
 
 576 
 
 s. 
 
 17 
 
 579 
 
 s. 
 
 18... 
 
 ...560, 571, 576, 579, 618 
 
 s. 
 
 19 
 
 583 
 
 s. 
 
 20 
 
 583 
 
 s. 
 
 22 .. 
 
 596, 599 
 
 s. 
 
 23 .. 
 
 597, 600, 610 
 
 s. 
 
 24 .. 
 
 597, 600, 610 
 
 s. 
 
 25 .. 
 
 597, 600, 610 
 
 s. 
 
 26 .. 
 
 597, 610 
 
 s. 
 
 27 .. 
 
 597, 602, 610 
 
 s. 
 
 28 .. 
 
 248, 597, 604, 605 
 
 s. 
 
 29 
 
 589 
 
 s. 
 
 30 .. 
 
 
 s. 
 
 31 
 
 591 
 
 s. 
 
 32 
 
 591 
 
 s. 
 
 33 
 
 592 
 
 s. 
 
 34 
 
 592 
 
 s. 
 
 35 .. 
 
 593, 594, 618 
 
 s. 
 
 38 
 
 594 
 
 s. 
 
 39 .. 
 
 
 s. 
 
 40 .. 
 
 604, 605 
 
 s. 
 
 41 
 
 611 
 
 s. 
 
 42 
 
 611 
 
 s. 
 
 43 
 
 615 
 
 s. 
 
 46 
 
 616 
 
 s. 
 
 49 .. 
 
 617, 618 
 
 s. 
 
 50 .. 
 
 578, 618, 619 
 
 s. 
 
 51 .. 
 
 578, 619 
 
 s. 
 
 52 
 
 621 
 
 s. 
 
 53 .. 
 
 608, 617, 622 
 
 s. 
 
 54 .. 
 
 617, 623 
 
 s. 
 
 55 .. 
 
 617, 624 
 
 s. 
 
 56 .. 
 
 617, 624 
 
 617, 625 
 
 s. 
 
 57 .. 
 
 s. 
 
 58 .. 
 
 617, 626 
 
 s. 
 
 59 .. 
 
 617, 626 
 
 s. 
 
 60 
 
 627 
 
 s. 
 
 61 
 
 628 
 
 s. 
 
 62 
 
 628 
 
 s. 
 
 63 
 
 629 
 
 s. 
 
 64 
 
 629 
 
 s. 
 
 65 
 
 629 
 
 s. 
 
 66 
 
 630 
 
 s. 
 
 67 .. 
 
 563, 630 
 
 s. 
 
 68 .. 
 
 564, 631 
 
 s. 
 
 69 .. 
 
 565, 631 
 
 s. 
 
 70 .. 
 
 570, 571, 631 
 
 s. 
 
 71 .. 
 
 568, 632 
 
 s. 
 
 72 .. 
 
 571, 572, 632 
 
 s. 
 
 73 
 
 656 
 
 s. 
 
 74 .. 
 
 568, 633 
 
 s. 
 
 75 .. 
 
 568, 633 
 
 s. 
 
 76 .. 
 
 568, 633 
 
 s. 
 
 77 .. 
 
 568, 634 
 
 s. 
 
 79 
 
 636 
 
 s. 
 
 80 
 
 635 
 
 s. 
 
 82 .. 
 
 563, 564, 638, 640 
 
TABLE OF STATUTES 
 
 XC1 
 
 & 39 Viet. PAGE 
 
 c. 87 (Land Transfer, 1875), 
 
 s. 83 588, 617, 640, 641, 642 
 
 s. 84 567, 642 
 
 s. 86 559 
 
 ' s. 87 . 
 
 643 
 
 s. 88 . 
 
 644 
 
 s. 89 . 
 
 644 
 
 s. 90 . 
 
 644 
 
 s. 91 . 
 
 644 
 
 s. 92 . 
 
 645 
 
 s. 93 . 
 
 645 
 
 s. 94 . 
 
 645 
 
 s. 95 .. 
 
 583, 603,645 
 
 s. 96 . 
 
 646 
 
 s. 97 . 
 
 646 
 
 s. 98 .. 
 
 591, 646 
 
 s. 99 . 
 
 646 
 
 s. 100 . 
 
 647 
 
 s. 101 . 
 
 647 
 
 s. 102 . 
 
 647 
 
 s. 103 . 
 
 647 
 
 s. 104 . 
 
 651 
 
 s. 106 . 
 
 558 
 
 s. 107 . 
 
 558 
 
 s. 108 . 
 
 558 
 
 s. 109 
 
 558, 568, 636 
 
 s. 110 
 
 559, 636 
 
 s. Ill . 
 
 559 
 
 s. 112 . 
 
 559 
 
 s. 118 . 
 
 559 
 
 s. 119 . 
 
 559 
 
 s. 120 . 
 
 559 
 
 s. 121 . 
 
 559 
 
 s. 122 . 
 
 559 
 
 s. 127 
 
 193, 650 
 
 s. 129 . 
 
 248 
 
 & 41 Viet. 
 
 
 c. 18 (Settled Estates, 1877)... 298, 
 
 
 300, 303, 412 
 
 s. 4 .... 
 
 298 
 
 s. 16 . 
 
 7 
 
 s. 22 . 
 
 7 
 
 c. 33 (Contingent Remainders, 
 
 1877) .... 
 
 410 
 
 c. 34 (Real Estates Charges, 
 
 1877) .. 
 
 88, 467 
 
 c. 59 (Colonial Stock, 1877) ... 388 
 
 & 42 Viet. 
 
 
 c. 31 (Bills of Sale, 1878) 239 
 
 si. 4 ... 
 
 264, 267, 269 
 
 s. 5 .... 
 
 270 
 
 s. 6 .., 
 
 239, 265 
 
 s. 7 .... 
 
 270 
 
 s. 8 .., 
 
 272, 290 
 
 s. 9 .... 
 
 289 
 
 s. 10 . 
 
 102, 272, 276, 285, 
 
 
 287, 289 
 
 s. 11 . 
 
 289 
 
 s. 14 . 
 
 288 
 
 s. 15 . 
 
 293 
 
 s. 17 . 
 
 285 
 
 41 & 42 Viet. page 
 
 c. 31 (Bills of Sale, 1878), 
 
 s. 20 272,292, 293 
 
 s. 22 288 
 
 42 & 43 Viet. 
 
 c. 58 (Public Offices Fees, 1879) 664 
 
 c. 59 (Outlawry, 1879) 17 
 
 43 & 44 Viet. 
 
 c. 19 (Isle of Man Loans, 
 1880) 391 
 
 c. 47 (Ground Game, 1880) ... 360 
 44 & 45 Viet. 
 
 c. 12 (Customs and Inland 
 
 Revenue, 1881), s. 41 113 
 
 c. 41 (Conveyancing, 1881), 
 
 s. 2 175,223,225,255,343 
 
 s. 3 50, 51, 52, 53, 55, 77, 
 
 98, 100, 132, 208 
 
 a. 4 51, 86 
 
 s. 5 79 
 
 s. 6 138 
 
 s. 7 142, 175, 176, 222, 245, 
 
 255, 386, 585, 598 
 
 s. 8 166, 283, 588 
 
 a. 9 170, 171, 172 
 
 s. 10 316, 345 
 
 s. 11 316, 525 
 
 s. 12 345 
 
 s. 13 50,51,306 
 
 s. 14 241, 290, 308, 335, 340, 
 
 341, 342, 343, 344 
 
 s. 15 221 
 
 s. 17 220, 221 
 
 s. 18 233, 234, 236, 237, 364, 
 
 602, 603 
 
 s. 19 29, 223, 229, 233, 244, 
 
 245, 250, 251, 602 
 
 s. 20 244,245,280, 602 
 
 s. 21 221, 226, 227, 245, 602 
 
 s. 22 227, 245, 602 
 
 s. 23 229, 245, 602 
 
 s. 24 230, 245, 602 
 
 s. 25 219,251 
 
 s. 26 245 
 
 s. 30 ...28, 87, 259, 260, '477, 514 
 
 s. 39 12 
 
 s. 41 298 
 
 s. 42 411 
 
 s. 43 386, 472 
 
 s. 44 403, 406 
 
 s. 46 103, 298 
 
 s. 49 134, 298 
 
 s. 51 140 
 
 s. 52 535 
 
 s. 54 133 
 
 s. 55 55, 78 
 
 s. 56 133,167, 168, 588 
 
 s. 61 213 
 
 s. 63 138 
 
 s. 65 524 
 
 s. 67 225 
 
 s. 70 129 
 
XC11 
 
 TABLE OF STATUTES 
 
 44 & 45 Viet. page 
 
 c. 44 (Solicitors’ Remuneration, 
 1881) 186, 257, 536—541 
 
 45 Viet. c. 9 (Documentary Evi- 
 dence, 1882) 104 
 
 45 & 46 Viet. 
 
 c. 21 (Places of Worship Sites 
 
 Amendment, 1882) 17 
 
 c. 38 (Settled Land, 1882)... 299, 413 
 
 s. 2 413,414,415,425 
 
 s. 3 7, 415, 416, 425, 523 
 
 s. 4 416 
 
 s. 5 415 
 
 s. 6 415, 418 
 
 s. 7 418 
 
 s. 8 78, 419 
 
 s. 9 78, 419 
 
 s. 10 419 
 
 s. 11 416,419,425 
 
 s. 12 421 
 
 s. 13 415,421 
 
 s. 14 304, 416, 422 
 
 s. 16 415, 416, 422 
 
 s> 17 422 
 
 s. 18 203, 416, 423, 425 
 
 s. 19 414, 418 
 
 s. 20 . 424 
 
 s. 21 416, 426 
 
 s. 22 428, 429 
 
 s. 23 429 
 
 s. 24 429, 431 
 
 s. 25 ;. . .416, 420—431 
 
 s. 26 433, 434 
 
 s. 27 434 
 
 s. 28 434, 435 
 
 s. 30 435 
 
 s. 31 416, 425, 436 
 
 s. 32 198 
 
 s. 33 425 
 
 s. 34 428 
 
 s. 35 416, 423, 425, 440 
 
 s. 37 416, 423, 425, 440 
 
 s. 38 437 
 
 s. 39 437 
 
 s. 40 437, 438 
 
 s. 41 437, 438 
 
 s. 42 437, 438 
 
 s. 43 437, 438 
 
 s. 45 438 
 
 s. 47 416, 423 
 
 s. 50 441, 442 
 
 s. 51 442 
 
 s. 52 442 
 
 s. 53 443 
 
 s. 54 443 
 
 s. 55 443 
 
 s. 56 28, 443 
 
 s. 57 444 
 
 s. 58 415, 444 
 
 s. 59 7,298,445 
 
 45 & 46 Viet. 
 
 PAGE 
 
 c. 38 (Settled Land, 1882), 
 
 s. 60 7, 27,204,446 
 
 s. 61 12, 446 
 
 s. 62 446 
 
 s. 63 29, 400, 447, 448 
 
 c. 39 (Conveyancing, 1882), 
 
 s. 2 163 
 
 s. 3 121 
 
 s. 4 51 
 
 s. 6 514, 535 
 
 s. 7 13 
 
 s. 8 78, 102, 166, 289 
 
 s. 9 78, 103, 166 
 
 s. 10 488 
 
 s. 11 525 
 
 s. 12 221 
 
 c. 43 (Bills of Sale, 1882), 
 
 s. 4 271, 275 
 
 su 5 271, 274, 275 
 
 s. 6 271 
 
 s. 7 264, 281, 291 
 
 si. 8 102, 283, 288 
 
 s|. 9 239, 271, 275, 277, 278 
 
 s. 10 276 
 
 s. 11 294 
 
 s. 12 277 
 
 s. 13 264, 292 
 
 s. 15 292 
 
 s. 16 293 
 
 s. 17 268 
 
 e. 50 (Municipal Corporations, 
 
 1882) 17, 19, 301 
 
 c. 75 (Married Women’s Pro- 
 perty, 1882) 300, 372 
 
 s. 1 458 
 
 s. 2 10 
 
 s. 5 11 
 
 s. 18 12 
 
 s. 19 13, 373, 375 
 
 s. 24 468 
 
 46 & 47 Viet. 
 
 c. 15 (Lands Clauses (Um- 
 
 pire), 1883) 
 
 196 
 
 c. 49 (Statute Law 
 
 Revision, 
 
 1883), s. 3 
 
 90 
 
 c. 52 (Bankruptcy, 
 
 1883), 
 
 s. 44 
 
 292 
 
 s. 47 
 
 118, 452 
 
 s. 55 
 
 ....85, 242, 243 
 
 s. 125 
 
 614 
 
 s. 134 
 
 108 
 
 s, 138 
 
 108 
 
 s. 140 
 
 108 
 
 c. 61 (Agricultural 
 
 Holdings, 
 
 1883), s. 33 
 
 357 
 
 47 & 48 Viet. 
 
 c. 18 (Settled Land, 1884), 
 
 s, 4 418, 425 
 
 s. 5 439 
 
TABLE OF STATUTES. 
 
 XClll 
 
 47 A 48 Viet. page 
 
 c. 18 (Settled Land, 1884), 
 
 s. 6 28, 29, 414, 444, 448 
 
 s. 7 447 
 
 c. 54 (Yorkshire Registry, 
 
 1884), 
 
 s. 3 191 
 
 s. 4 191 
 
 s. 5 191 
 
 s. 6 102, 191 
 
 s. 7 94, 192 
 
 s, 8 192 
 
 s. 11 192 
 
 s. 14 193 
 
 s, 15 162, 193 
 
 s. 16 162, 193,248 
 
 s. 20 164 
 
 s. 21 164 
 
 s. 22 164 
 
 s. 23 164 
 
 s. 28 193 
 
 s. 30 193 
 
 s. 31 193 
 
 s. 38 193 
 
 s. 51 162 
 
 c. 71 (Intestates’ Estates, 1884) 478 
 
 48 & 49 Viet. 
 
 c. 4 (Yorkshire Registry 
 
 Amending, 1885) 191, 193 
 
 c. 26 (Yorkshire Registry, 
 
 1885) 162, 191, 192 
 
 49 & 50 Viet. 
 
 c. 27 (Guardianship of Infants, 
 
 1886) 468 
 
 c. 54 (Extraordinary Tithe Re- 
 demption, 1886), s’. 7 313 
 
 50 & 51 Viet. 
 
 c. 16 (National Debt and Local 
 
 Loans, 1887) 390 
 
 c. 26 (Allotments and Cottage 
 Gardens Compensation for 
 
 Crops, 1887) 356, 359 
 
 c. 30 (Settled Lands Amend- 
 ment, 1887) 427, 435 
 
 c. 73 (Copyhold, 1887) 260 
 
 51 & 52 Viet. 
 
 c. 8 (Customs and Inland 
 
 Revenue, 1888), s. 21 113 
 
 c. 10 (Local Government, 
 
 1888), s. 72 .....17, 19 
 
 c. 42 (Mortmain and Charitable 
 
 Uses, 1888) 18, 19, 21, 
 
 194, 556 
 
 s. 1 301 
 
 s. 2 25 
 
 s. 4 2 1,22, 25;, 102 
 
 s. 5 22 
 
 s. 6 19, 23 
 
 s. 7 23, 25 
 
 s. 8 23 
 
 s. 10 22 
 
 s. 14 301 
 
 51 & 52 Viet. page 
 
 c. 51 (Land Charges Registra- 
 tion and Searches, 1888) 
 
 190, 356 
 
 s. 4 158 
 
 s. 5 155, 158 
 
 s. 6 158 
 
 s. 8 158 
 
 s. 9 158 
 
 s. 10 159 
 
 s. 12 159 
 
 s. 13 159 
 
 s. 17 164 
 
 52 Viet. c. 7 (Customs and Inland 
 
 Revenue, 1889) 116, 583 
 
 52 & 53 Viet. 
 
 c. 36 (Settled Land, 1889), 
 
 s. 2 420 
 
 c. 63 (Interpretation, 1889) ... 49 
 
 s. 9 104 
 
 s. 31 62 
 
 53 & 54 Viet. 
 
 c. 5 (Lunacy, 1890), 
 
 s. 116 9, 10, 202, 299 
 
 s. 117 9 
 
 s. 120 9, 202, 299 
 
 s. 124 9,202 
 
 s. 135 202 
 
 s. 144 109 
 
 c. 16 (Working Classes Dwell- 
 ings, 1890) 19, 24, 194 
 
 c. 53 (Bills of Sale, 1890), s. 2.. 293 
 c. 57 (Tenants’ Compensation, 
 
 1890) 356 
 
 c. 69 (Settled Land, 1890), 
 
 s. 4 441 
 
 s. 5 417 
 
 s. 7 418,419,439 
 
 s. 8 420 
 
 s. 10 440 
 
 s. 11 203, 423 
 
 s. 12 437 
 
 s. 13 432 
 
 s. 14 429 
 
 s. 15 433 
 
 s. 16 415 
 
 c. 70 (Housing of the Working 
 
 Classes, 1890) 315, 428 
 
 c. 71 (Bankruptcy, 1890), 
 
 s. 13 85,242,243 
 
 54 Viet. c. 8 (Tithe, 1891)... 312, 313, 323 
 
 54 & 55 Viet. 
 
 c. 33 (Public Health (London), 
 
 1891) 324, 325 
 
 c. 39 (Stamp, 1891) ...94, 252, 261, 
 
 367, 588 
 
 s. 5 133 
 
 s. 8 94 
 
 s. 15 94 
 
XC1V 
 
 TABLE OF STATUTES 
 
 54 & 55 Viet. page 
 
 c. 39 (Stamp, 1891), 
 
 s. 22 94 
 
 s. 54 184 
 
 s. 55 185 
 
 s. 56 185 
 
 s. 57 185 
 
 s. 58 128, 185 
 
 s. 59 95, 186 
 
 s. 61 186 
 
 s. 62 535 
 
 s. 75 368 
 
 s. 76 368 
 
 s. 77 368 
 
 s. 78 368, 369 
 
 s. 86 262 
 
 s. 87 262 
 
 s. 88 262 
 
 s. 89 262 
 
 s. 104 455 
 
 s. 105 455 
 
 s. 106 455 
 
 s. 117 65 
 
 Sched. (Memorial) 191, 193 
 
 c. 48 391 
 
 c. 64 (Land Registry (Middle- 
 sex) Deeds, 1891)... 102, 161, 164, 
 188, 189, 190 
 c. 73 (Mortmain, 1891) 24 
 
 -55 & 56 Viet. 
 
 c. 11 (Mortmain, 1892) 19, 25 
 
 c. 13 (Conveyancing, 1892), 
 
 s. 2 ......339, 342, 343 
 
 s. 3 331 
 
 s. 4 241, 341 
 
 s. 5 308, 342 
 
 c. 29 (Technical and Industrial 
 
 Institutions, 1892) 19, 25 
 
 c. 58 (Accumulations, 1892)... 474 
 
 56 & 57 Viet. 
 
 c. 21 (Voluntary Conveyances, 
 
 1893) 451 
 
 s. 2 452 
 
 s. 3 452 
 
 s. 4 452 
 
 c. 39 (Industrial and Provi- 
 dent Societies, 1893) 607 
 
 c. 53 (Trustee, 1893), 
 
 s. 1 205,387, 426 
 
 s. 2 391,426 
 
 s. 3 391,426 
 
 s. 4 391,426 
 
 s. 5 205,388, 391,426 
 
 s. 6 426 
 
 s. 7 426 
 
 s. 8 204 
 
 s. 9 206 
 
 s. 10 394, 395, 396, 398 
 
 s. 11 397, 398, 456 
 
 s. 12 242,251, 398 
 
 s. 13 28 
 
 56 & 57 Viet. page 
 
 c. 53 (Trustee, 1893), 
 
 s. 14 28 
 
 s. 16 12 
 
 s. 17 133, 168 
 
 s. 18 470 
 
 s. 19 204 
 
 s. 20 392, 438 
 
 s. 21 393 
 
 s. 24 393 
 
 s. 26 241 
 
 s. 44 28,224 
 
 s. 47 438 
 
 s. 48 17 
 
 c. 63 (Married Women’s Pro- 
 perty, 1893), 
 
 s. 1 16 
 
 s 3 459 
 
 c. 71 (Sale of Goods, 1893), 
 
 s. 4 35 
 
 s. 12 48 
 
 s. 17 3, 263 
 
 s. 18 3, 263 
 
 s. 48 75 
 
 s. 58 57 
 
 s. 62 34, 35 
 
 57 & 58 Viet. 
 
 c. 10 (Trustee, 1894), s. 3.. .28, 224 
 
 c. 30 (Finance, 1894) 113 
 
 s. 1 113, 114 
 
 s. 2 113 
 
 s. 3 113 
 
 s. 4 113 
 
 s. 5 113, 117 
 
 s. 6 115 
 
 s. 7 113 
 
 s. 8 113, 117, 147,583 
 
 s. 9 117 
 
 s. 11 117 
 
 s. 14 114 
 
 s. 15 115 
 
 s. 16 114 
 
 s. 18 114, 115 
 
 s. 20 115 
 
 s. 22 115 
 
 c. 35 (Charitable Trusts, 1894) 21 
 
 .c. 46 (Copyhold, 1894) 260 
 
 s. 1 523 
 
 s. 3 523 
 
 s. 5 523 
 
 s. 8 523 
 
 s. 10 523 
 
 s. 14 522 
 
 s. 15 522 
 
 s. 16 522 
 
 i 
 
 s. 21 
 
 523 
 
 s. 22 
 
 523 
 
 s. 23 
 
 137, 523 
 
 s. 26 
 
 522 
 
 s. 30 
 
 523 
 
 s. 34 
 
 522, 524 
 
 s. 42 
 
 524 
 
TABLE OF STATUTES 
 
 XCV 
 
 57 & 58 Viet. page 
 
 c. 40 (Copyhold, 1894), 
 
 s. 45 523 
 
 s. 49 524 
 
 s. 66 524 
 
 s. 79 524 
 
 s. 84 174 
 
 s. 88 87, 477 
 
 c. 60 (Merchant Shipping, 
 1894), 
 
 ss. 24 — 46 3 
 
 s. 177 457, 462 
 
 58 & 59 Viet. 
 
 c. 11 (Lands Clauses (Taxation 
 
 of Costs), 1895) 196 
 
 c. 25 (Mortgagees’ Legal 
 
 Costs, 1895) 253, 257, 261 
 
 c. 39 (Summary Jurisdiction 
 (Married Women), 1895) 11 
 
 59 & 60 Viet. 
 
 c. 25 (Friendly Societies, 
 1896) 258, 607 
 
 60 & 61 Viet. 
 
 c. 15 (Navy and Marines’ 
 
 Wills, 1897) 457, 461 
 
 c. 65 (Land Transfer, 1897)... 153, 
 193, 203, 217, 469, 
 
 470, 477, 557 
 
 s. 1 41,86,87 
 
 s. 2 302, 611 
 
 s. 3 611 
 
 s. 4 611 
 
 s. 5 611 
 
 s. 6 564, 565, 587, 612, 613 
 
 s. 7 646,647 
 
 s. 8 559,574,579,592,599, 
 
 602, 605, 607, 609, 
 635, 636, 637 
 
 s. 9 588, 590, 600, 602, 606, 
 
 609, 611, 616 
 
 s. 12 580, 583, 603 
 
 s. 13 582 
 
 s. 14 565, 631, 641 
 
 s. 15 644 
 
 s. 16 584, 585, 588, 595 
 
 s. 17 650 
 
 s. 18 590 
 
 s. 20 557,653, 654, 655 
 
 s. 21 649 
 
 s. 22 559 
 
 61 & 62 Viet. 
 
 c. 10 (Finance, 1898), s. 6 184 
 
 62 & 63 Viet. 
 
 c. 20 (Bodies Corporate (Joint 
 
 Tenancy), 1899) 20 
 
 c. 46 (Improvement of Land, 
 1899) 159 
 
 63 & 64 Viet. 
 
 PAGE 
 
 c. 7 (Finance, 1900), s. 10 185 
 
 c. 26 (Land Charges, 1900), 
 
 s. 1 111,154,194 
 
 s. 2 155 
 
 s. 3 158 
 
 s. 6 164 
 
 c. 50 (Agricultural Holdings, 
 
 1900) 352 
 
 c. 62 (Colonial Stock, 1900)... 387, 
 
 388, 391 
 
 2 Edw. 7, c. 41 (Metropolis Water, 
 1902) 387, 390 
 
 3 Edw. 7, 
 
 c. 37 391 
 
 c. 39 (Housing of the Working 
 
 Classes, 1903), s. 12 315 
 
 c. 46 (Revenue, 1903), s. 7 261 
 
 6 Edw. 7, 
 
 e. 21 (Ground Game, 1906)... 360, 
 
 361, 362 
 
 c. 41 (Marine Insurance, 1906), 
 
 s. 50 3 
 
 s. 51 3 
 
 e. 56 (Agricultural Holdings, 
 
 1906) 352, 353 
 
 c. 55 (Public Trustee, 1906)... 396 
 
 s. 5 398,439 
 
 7 Edw. 7, 
 
 c. 18 (Married Women’s Pro- 
 
 perty, 1907) 518 
 
 s. 1 13 
 
 s. 2 375 
 
 s. 3 518 
 
 8 Edw. 7, 
 
 28 
 
 (Agricultural 
 
 Holdings, 
 
 
 1908) 
 
 63, 351 
 
 s. 
 
 1 
 
 352,353 
 
 s. 
 
 2 
 
 353 
 
 s. 
 
 3 
 
 353 
 
 s. 
 
 4 
 
 353 
 
 s. 
 
 5 
 
 353 
 
 s. 
 
 6 
 
 
 s. 
 
 7 
 
 354 
 
 s. 
 
 8 
 
 354 
 
 s. 
 
 9 
 
 354 
 
 s. 
 
 10 
 
 354 
 
 s. 
 
 11 
 
 355 
 
 s. 
 
 12 
 
 356 
 
 s. 
 
 13 
 
 354, 356 
 
 s. 
 
 14 
 
 354 
 
 s. 
 
 15 
 
 159, 357 
 
 s. 
 
 16 
 
 159, 357 
 
 s. 
 
 17 
 
 159,357 
 
 s. 
 
 18 
 
 159, 357 
 
 s. 
 
 19 
 
 159,356 
 
 s. 
 
 20 
 
 356 
 
 s. 
 
 21 
 
 357 
 
 s. 
 
 22 
 
 357 
 
 s. 
 
 23 
 
 357 
 
XCV1 
 
 TABLE OF STATUTES 
 
 8 Edw. 7. page 
 
 c. 28 (Agricultural Holdings, 
 1908), 
 
 s. 24 315, 357 
 
 s. 25 358 
 
 s. 26 358 
 
 s. 27 358 
 
 s. 28 358 
 
 s. 29 358 
 
 s. 30 358 
 
 s. 31 358 
 
 s. 35 356 
 
 s. 42 352, 358 
 
 s. 48 359 
 
 c. 36 (Small Holdings and 
 Allotments, 1908) 255 
 
 c. 47 (Lunacy, 1908), s. 1 ...10, 447 
 
 c. 53 (Law of Distress 
 
 Amendment, 1908) 295 
 
 c. 69 (Companies Consolidation, 
 
 1908) 19, 129, 263 
 
 s. 105 208 
 
 9 Edw. 7, 
 
 c. 43 (Revenue, 1909),. s. 7 95 
 
 c. 44 (Housing, Town Plan- 
 ning, &e., 1909) 315, 326 
 
 10 Edw. 7 & 1 Geo. 5, 
 
 c. 8 (Finance (1909-10), 1910), 
 
 s. 1 74, 118, 370 
 
 s. 3 , 371 
 
 s. 4 74, 118, 167, 370 
 
 s. 5 74, 118 
 
 s. 6 74 
 
 s. 13 371 
 
 s. 14 371 
 
 s. 15 371 
 
 s. 22 371 
 
 s. 35 371 
 
 s. 36 371 
 
 s. 37 371 
 
 s. 38 371 
 
 10 Edw. 7 & 1 Geo. 5. page 
 
 c. 8 (Finance 
 
 (1909-10), 1910), 
 
 s. 54 
 
 183 
 
 s. 55 .... 
 
 183 
 
 s. 56 .... 
 
 183 
 
 s. 57 .... 
 
 183 
 
 s. 58 
 
 115, 183 
 
 s. 59 
 
 183 
 
 s. 60 
 
 116, 183 
 
 s. 61 
 
 116, 183 
 
 s. 73 
 
 183, 184 
 
 s. 74 
 
 183,184, 454, 456 
 
 s. 75 
 
 367 
 
 c. 34 (Small 
 
 Holdings and 
 
 Allotments, 
 
 1910) 355 
 
 1 & 2 Geo. 5, 
 
 
 c. 2 (Revenue 
 
 , 1911) 391 
 
 s. 1 
 
 74,370 
 
 s. 2 
 
 74 
 
 s. 3 
 
 74,371 
 
 s. 4 
 
 74 
 
 s. 5 
 
 74 
 
 s. 6 
 
 74 
 
 s. 7 
 
 74 
 
 c. 6 (Perjury, 
 
 1911) 285 
 
 c. 37 (Conveyancing, 1911)... 
 
 
 152, 233 
 
 s. 1 
 
 79 
 
 s. 2 
 
 225, 316, 345 
 
 s. 3 
 
 233, 234,237 
 
 s. 4 
 
 29, 224,234, 236 
 
 s. 5 
 
 226, 227 
 
 s. 6 
 
 403 
 
 s. 7 
 
 11, 14 
 
 s. 8 
 
 397, 438, 514 
 
 s. 9 
 
 27, 431 
 
 s. 10 
 
 26, 447, 448 
 
 s. 12 
 
 87, 302 
 
 s. 15 .... 
 
 246 
 
 c. 40 (Lunacy, 1911), s. 1... 202, 299 
 
 ‘2 & 3 Geo. 5, 
 
 c. 8 (Finance, 1912), s. 10 74 
 
 ERR A TUM. 
 
 On page 242, read “ Trustee Act, 1893,” instead of “Trustee Act, 1897.” 
 
THE 
 
 fitkttl’s 
 
 INTRODUCTORY. 
 
 The subject-matter of conveyancing may be said to be the 
 law relating to the transfer of property and rights in the nature 
 of property by act of the party, where any document is used for 
 the purpose. 
 
 The art of conveyancing consists in the preparation of the 
 documents used for transferring these rights. 
 
 A transfer of proprietary rights by act of the party may 
 take any one of various forms. It may, for instance, be by 
 way of sale, or exchange, or gift, or mortgage, or lease, or 
 settlement, or donatio mortis causa, or testamentary disposi- 
 tion; or it may be by way of disclaimer, or release of an in- 
 terest, or by way of enlarging a smaller interest into a greater, 
 as when an estate tail or a term of years is enlarged into a fee 
 simple; or it may be by way of the exercise of a mere right 
 of alienation, as in the case of an appointment under a power. 
 
 In the case of a transfer inter vivos of the legal property in 
 land, there are now two entirely distinct systems of convey- 
 ancing in England. The old system, which in one form or 
 another has existed for generations past, may, for the sake of 
 distinguishing it from the new, be called common law con- 
 veyancing. Under this system a legal estate in possession in 
 freehold corporeal hereditaments may be transferred (1) by 
 delivery, or in technical language, feoffment with livery of 
 
 G. — C. 
 
 B 
 
2 
 
 INTRODUCTORY. 
 
 seisin (a ) — a method of conveyance now almost obsolete (5);, 
 or (2) since 1845 by deed of grant or conveyance (c); and 
 future legal estates in corporeal hereditaments and incorporeal 
 hereditaments of all kinds, may be transferred by deed of 
 grant; a legal estate in copyhold hereditaments may be 
 transferred by surrender and admittance entered on the court 
 rolls of the manor in which they are situate; and a legal estate 
 in a leasehold may be transferred by deed of assignment ( a ) . 
 In all these cases the transferor — when the transfer is by way 
 of sale or mortgage, and sometimes also when it is by way of 
 lease or settlement— is bound to prove his right to make the 
 conveyance on each successive dealing with the land, or what- 
 ever interest in it is the subject of the conveyance, the proceed- 
 ings following a regular course, originally adopted by convey- 
 ancers as a matter of convenience, and long since recognized 
 by the courts. There is also, in the case of freehold and lease- 
 hold interests in land, the system of registration of title estab- 
 lished by the Land Transfer Acts and Rules, under which 
 the land is transferred by the substitution of the transferee’s 
 name for that of the transferor on a public register, kept by 
 a government department, no proof of the transferor’s right 
 to make the transfer being (in theory) necessary. 
 
 The equitable property in land, the creation of which must he 
 evidenced by declaration of trust in writing under s. 7 of the 
 Statute of Frauds, when once created is, in practice, subse- 
 quently transferred inter vivos in the same way as a legal 
 estate. 
 
 The methods of transferring proprietary lights in pure 
 personal property have always been simpler than those required 
 for the transfer of rights in land. 
 
 In the case of most kinds of personal chattels in possession 
 the legal property can be transferred inter vivos , (1) by de- 
 
 (a) Generally required to be evi- (6) See below, p. 6. 
 denced by deed. Statute of Frauds, (c) Real Property Act, 1845, 
 s. 1, and Real Property Act, 1845. s. 2. 
 s. 3. 
 
INTRODUCTORY. 
 
 3 
 
 livery; (2) by a deed of assignment; or (3) by a contract of 
 sale; the equitable property can be created by declaration 
 of trust, which may be verbal (d), or in writing, or by deed, 
 and when created can be transferred by writing or by deed (e). 
 [Transfers of personal chattels by way of security for the loan 
 of money, however, have been made the subject of minute statu- 
 tory provisions by the Bills of Sale Acts, 1878 to 1891, and 
 a few kinds of such property, like ships, are transferable in 
 special ways established by statute law (/). 
 
 In the case of such choses in action as stocks or shares, the 
 legal property is transferable inter vivos by substitution of 
 the transferee’s name for that of the transferor in the books 
 of the corporation or company issuing them, and (subject to 
 exceptional cases) such choses in action as policies of assur- 
 ance and debts, whether legal or equitable, by a written as- 
 signment, of which notice is given to the debtor or other person 
 from whom the assignor would have been entitled to recover 
 them, in accordance with the provisions of s. 25 (6) of the 
 Judicature Act, 1873, or other statute in point (g), or the 
 doctrines of equity. Incorporeal interests in pure personal 
 property such as patent rights and copyrights are assignable 
 by deed or writing in manner for the most part regulated by 
 statute . 
 
 In none of these cases is it, as a rule, usual or necessary for 
 the transferor to prove his title to the property transferred. 
 Occasionally, however, it is necessary to do so, as where a policy 
 of assurance or stocks or shares are standing in the name of a 
 person who is dead, or who has assigned them; and in such cases 
 
 (d) See Benbow v. Townsend 
 (1833), 1 M. & K. 506; Kiljpin v. 
 Kilpin (1834), 1 M. & K. 520; 
 McFadden v. Jenhyns (1842), 1 
 Hare, 458. 
 
 (e) See Cochrane v. Moore 
 (1890), 25 Q. B. D. 57; the Sale 
 of Goods Act, 1893, ss. 17 and 18; 
 and Statute of Frauds, s. 9. 
 
 (/) See the Merchant Shipping 
 Act, 1894, ss. 24 — 48. 
 
 ( g ) See as to policies of life 
 assurance, the Policies of Assur- 
 ance Act, 1867, s. 3; and as to 
 policies of marine insurance, the 
 Marine Insurance Act, 1906, ss. 50 
 and 51. 
 
4 
 
 INTRODUCTORY. 
 
 the course of procedure is similar to that in the case of 
 land . 
 
 A. donatio mortis causa , though it involves a transfer of 
 proprietary rights, does not fall within the scope of a book on 
 conveyancing, since no document is required for its validity. 
 
 The law relating to the transfer of proprietary rights by 
 will is substantially the same for both land and other species 
 of property in this country; the only complication arising 
 from the conflict of laws. 
 
 In this book, therefore, the subject of conveyancing' will be 
 treated upon the assumption that the subject of the -transfer 
 is land, and the rules of conveyancing relating to personal 
 property will only be dealt with incidentally. 
 
 The law and practice of conveyancing will accordingly be 
 discussed under the following heads: — 
 
 Bk. I. Conveyancing at Common Law. 
 
 I. Sales, including incidentally exchanges and gifts. 
 
 II. Mortgages. 
 
 III. Bills of Sale. 
 
 IV Leases. 
 
 V. Settlements. 
 
 VI. Wills. 
 
 VII. Miscellaneous Transactions, including: — 
 
 i. Deeds of Disclaimer. 
 
 ii. Deeds of Release. 
 
 iii. Disentailing Assurances. 
 
 iv. Enfranchisement of Copyholds. 
 
 v. Enlargement of Terms of Years into the Fee 
 Simple. 
 
 vi. Appointments under Powers. 
 
 VIII. Convevancing Costs. 
 
 v O 
 
 Bk. II. Conveyancing under the Land Transfer Acts. 
 
5 
 
 Book I. 
 
 CONVEYANCING AT COMMON LAW. 
 
 CHAPTER I. 
 
 CAPACITY OF PARTIES. 
 
 It is not everyone who possesses the full legal capacity to ac- 
 quire or dispose of property, and consequently the first point 
 for consideration when a disposition of any property is con- 
 templated is whether the parties respectively have legal capacity 
 to enter into the transaction. 
 
 The persons who are disqualified, wholly or partially, are 
 infants, persons of unsound mind, married women, aliens, 
 traitors and felons, corporations, charities, and trustees and 
 others having a fiduciary character. Of these, therefore, in 
 their order. 
 
 I. Infants. 
 
 Sales by Infants. 
 
 At common law a disposition of either real or personal pro- 
 perty by an infant, whether by way of sale or gift, is void- 
 able, i.e., when he comes of' age he can avoid it, or, if he dies 
 under age, his representatives may avoid it; and it seems 
 that, in the absence of fraud, he cannot be compelled to refund 
 the purchase-money. But a disposition so made is binding 
 
 Persons 
 
 under 
 
 disability — 
 
 Classification 
 
 of. 
 
 Conveyances 
 by infants : 
 
6 
 
 (a) Of gavel- 
 kind land. 
 
 (b) Under 
 powers of 
 appointment. 
 
 (c) Under 
 the Infant 
 Settlements 
 Act, 1855. 
 
 (d) Under the 
 Conveyancing 
 Act, 1881. 
 
 BK. I., PT. I. — SALES, EXCHANGES AND GIFTS. 
 
 unless repudiated, and the repudiation must take place on 
 attaining full age or within a reasonable time afterwards (a) . 
 
 To this rule an exception exists in the case of land subject 
 to the custom of gavelkind, which may be alienated on a sale 
 by a minor of fifteen years of age or upwards by a feoffment. 
 Livery of seisin must be made by him in person, and, though 
 no deed is required, as is necessary in feoffments by other 
 people, the feoffment must be evidenced by writing signed 
 by the infant (6). In order that the feoffment may be valid, 
 the infant must receive the full value of the property or his 
 share of it, and in the case of Re Maslcell and Goldfinch’ s Con- 
 tract (c), the feoffment was held uot binding because it ap- 
 peared that the infant had not received his full share of the 
 purchase-money . 
 
 Further, although an infant cannot exercise a power of ap- 
 pointment over real property if the power is appendant or in 
 gross, he may exercise it if purely collateral ( d ) ; and it seems 
 that when he has arrived at years of discretion he can exercise 
 a power of appointment over personal property if the power 
 is a power collateral or a power in gross, and possibly even if 
 it is a power appendant (e). 
 
 The common law rule is also subject to the provisions of 
 various statutes, by which binding dispositions of an infant’s 
 property can be made. Thus, by the Infant Settlements Act, 
 1855, which will be discussed fully under the head of settle- 
 ments, an infant of a certain age can, with the leave of the 
 court, make a binding settlement on marriage. 
 
 And by s. 41 of' the Conveyancing Act, 1881, when an infant 
 is, in his own right, seised of or entitled to land in fee simple, 
 or for any leasehold interest at a rent, the land is to be deemed 
 a settled estate within the Settled Estates Act, 1877, and so 
 
 (a) Allen v. Allen (1842), 2 D. 
 & W. 307; Edwards v. Carter, 
 (1893) A. C. 380; Williams, Ven- 
 dor and Purchaser, 2nd ed. pp. 870 
 et seq. 
 
 (5) Statute of Frauds, s. 1; Peal 
 Property Act, 1845, s. 3. 
 
 (c) (1895) 2 Cli. 525. 
 
 (<2) See Ilearle v. Greenbank 
 (1749), 3 Atk. 695. 
 
 (e) See Re D' Angibau, Andrews 
 v. Andrews (1880), 15 Cli. D. 228. 
 This applies only to the exercise 
 of a power by deed inter vivos. 
 He cannot exercise a power by 
 will: Wills Act, 1837, s. 7. 
 
CAPACITY OF PARTIES. 
 
 7 
 
 under s. 16 of the latter act the court can authorize a sale of 
 the land, and under s. 22 direct what person shall execute the 
 deed of conveyance. This enactment, though for most purposes 
 superseded by the provision contained in the Settled Land Act, 
 
 1882, as below mentioned, is still useful where the infant is 
 entitled to a contingent interest only, as the act of' 1882 does 
 not apply in that case (/') . 
 
 Lastly, by s. 59 of the Settled Land Act, 1882, where ,a (e) Under the 
 
 i . . i . • i , "IT ? 1 j • j i i • • Settled Land 
 
 person who is m his own right seised oi or entitled m possession Act 1882 
 
 to land is an infant, then for the purposes of the act the land is 
 
 settled land, and the infant is to be deemed tenant for life 
 
 thereof. The act empowers a tenant for life to sell settled land 
 
 under certain conditions (g), and, if he be an infant, enables 
 
 the trustees of the settlement, or, if there are none, then some 
 
 one appointed by the court, to exercise all the powers which 
 
 the tenant for life could exercise were he of full age (A). 
 
 A contract to sell or dispose of 1 property made by an infant, Contracts to 
 as distinguished from a conveyance, is also voidable; that is 
 to say, it is binding unless repudiated by the infant on attaining 
 his majority, or within a reasonable time afterwards (z) . The 
 Infants Relief Act, 1874, seems not to apply to this class of 
 contracts at all (;). 
 
 It is always well where an infant has disposed of property Practice note, 
 or exercised a power over property, that on majority the dis- 
 position or appointment should be confirmed, even though a 
 confirmation may not be strictly necessary. 
 
 Sales to Infants. 
 
 An infant may purchase property; hut here too the trans- Conveyances 
 action is voidable, and he may repudiate it on attaining full to m dn s ' 
 ago or within a reasonable time afterwards, but if he docs not 
 do so it is binding (A); if he dies under age, his representa- 
 tives may repudiate it. Whether on repudiation the price paid 
 
 (/) See Re Sparrow's Settled 
 Estates (1892), 68 L. T. 276. 
 
 (. g ) s - 3 - 
 
 ( h ) s. 60. 
 
 (t) See Edwaids v. Carter, 
 
 (1893) A. C. 360. 
 
 (/) Duncan v. Dixon (1890), 
 44 Cli. D. 211. 
 
 ( k ) JVkittinghani v. Murdy 
 
 (1889), 60 L. T. 956. 
 
8 
 
 Contracts to 
 purchase by 
 infants. 
 
 Conveyances 
 by a lunatic 
 not so found. 
 
 BK. I., PT. I. SALES, EXCHANGES AND GIFTS. 
 
 can be recovered is exceedingly doubtful (7). So also as re- 
 gards a mere contract to buy (m) ; but in this case it seems 
 that an infant who, after contracting to purchase and paying 
 a deposit, refuses to complete on attaining majority, can re- 
 cover the deposit when he has derived no advantage under the 
 contract (w). The contract being binding on the other party, 
 the infant can sue him for damages for its breach, but he cannot 
 enforce specific performance of it, for. as it could not be enforced 
 against him, the remedy is not mutual (o) . 
 
 II. Persons of Unsound Mind. 
 
 Sales by Persons of Unsound Mind. 
 
 A disposition of property made by a person of unsound mind 
 but not so found by inquisition is valid if made during a lucid 
 interval (p) . A disposition for valuable consideration made 
 by such a person while of unsound mind is valid unless it can 
 be shown that the person in whose f avour it was made was aware 
 of the insanity, in which case it is voidable. This applies to 
 sales (q), to mortgages (r), to contracts (s), and no doubt to 
 dispositions of property of all kinds. But if a disposition of 
 property by a person of unsound mind is gratuitous, it is not 
 merely voidable, but void (t). It seems that when a disposi- 
 tion, which is voidable owing to the other party having had 
 notice of the insanity, is avoided, the property thereby assured 
 can be recovered without refunding any purchase-money or 
 other consideration received for making the conveyance, just 
 
 (l) See Williams, Vendor and 
 Purchaser, 2nd ed.pp. 884 et seq. 
 
 (m) Whittingham v. Murdy 
 (1889), 60 L. T. 956. 
 
 (n) Hamilton v. Vaughan Sher- 
 rin Electrical , &c. Co., (1894) 3 
 Ch. 589; but see Wilson v. Kearse 
 (1800), Peake, Add. Cas. 196. 
 
 (o) Flight v. Bolland, 4 Russ. 
 298. 
 
 (p) Hall v. Warren (1805), 9 
 
 Ves. 605. 
 
 ( q ) Molton v. Camroux (1848), 
 
 2 Exch. 487; 4 Exch. 17; Elliot v. 
 Ince (1857), 7 De G. M. & G. 475. 
 
 (r) Campbell v. Hooper (1855), 
 
 3 Sm. & G. 153. 
 
 (s) Imperial Loan Co. v. Stone , 
 (1892) 1 Q. B. 599. 
 
 ( t ) Elliot v. Ince, supra; Man- 
 ning v. Gill (1872), L. R. 13 Eq. 
 485. 
 
CAPACITY OF PARTIES. 
 
 9 
 
 as an infant, on avoiding a sale made by him, can apparently 
 recover the land without refunding the purchase-money (u ) . 
 
 If, however, a lunatic has been so found, unless the inquisi- 
 tion has been superseded, an y disposition of property by deed 
 made by him after the inquisition is absolutely void, even 
 though made during a lucid interval, since upon the inquisition 
 the property of the lunatic passes out of his control and comes 
 under that of the crown, and any disposition by the lunatic is 
 inconsistent with that control (x ) . And it may be that the 
 same thing applies to a lunatic not so found if an order has 
 been made under s. 116 of the Lunacy Act, 1890, for the 
 management and administration of his property (y). 
 
 In the case of 1 persons who have been found by inquisition 
 to be of unsound mind, it is provided by the Lunacy Act, 1890, 
 s. 117, that the judge in lunacy may order that any property 
 of a lunatic may be sold, charged, mortgaged, dealt with or 
 otherwise disposed of, for payment of his debts, to discharge 
 his estate from incumbrances, or for his maintenance past and 
 future. 
 
 Further, by s. 120 of' the act, the judge may authorize the 
 committee to sell, make exchange or partition of, or grant 
 leases of any property of the lunatic for building, agricultural, 
 or other purposes, or grant leases of minerals forming part of 
 his property, or make and accept surrenders of leases and per- 
 form other similar acts. And by s. 116 the above powers are 
 to be exercised in the case of certain lunatics not so found by 
 such person as the judge may direct. Such a person is usually 
 called a “ receiver.” The committee or such person as the judge 
 approves must, in the name and on behalf of the lunatic, execute 
 and do all such assurances and things for giving effect to any 
 order under the act as the judge directs ( z ). 
 
 There are certain other cases in which a committee may 
 execute a conveyance of a lunatic’s property; thus, he can, by 
 
 (u) See Williams, Vendor and 
 Purchaser, 2nd ed. p. 892, and 
 ante, p. 5. 
 
 (a?) Re Walker, (1905) 1 Ch. 
 160. He may, however, make a 
 will during a lucid interval ( In 
 
 the Estate of Walker (1912), 28 
 T. L. R. 466). 
 
 (y) See per Vaughan Williams, 
 L. J., in Re Walker, supra, at 
 p. 171 of the report. 
 
 ( z ) Lunacy Act, 1890, s. 124. 
 
 Conveyances 
 by a lunatic 
 so foundr 
 
 Sales by com 
 mittee of 
 lunatic for 
 payment of 
 debts. 
 
 53 Viet. c. 5. 
 
 Sales, &c. 
 by committee 
 generally. 
 
 Other powers 
 of committee. 
 
10 
 
 BK. I., PT. I. SALES, EXCHANGES AND GIFTS. 
 
 Powers 
 exercisable 
 in case of 
 lunatic not 
 so fouud. 
 
 leave of the judge in lunacy, make conveyances when the luna- 
 tic’s property is taken under the Lands Clauses Consolidation 
 Act, 1845, s. 7; and can, with similar leave, exercise on the 
 lunatic’s behalf the powers given to limited owners who are 
 sane persons by the Settled Land Acts, 1882 and 1890 (a). 
 
 Until 1908 the court could not authorize these powers to be 
 exercised in the case of a lunatic not so found (5). However, 
 it is now provided by s. 1 of the Lunacy Act, 1908, in the case 
 of any of the persons mentioned in sub-s. (1) of s. 116 of the 
 Lunacy Act, 1890, not being a lunatic so found by inquisition, 
 any powers which, if such person were a lunatic so found by 
 inquisition, could be exercised by the committee of the estate, 
 may be exercised by such person in such manner as the judge 
 in lunacy or, subject to the rules in lunacy, a master may direct. 
 
 Sales to a Person of Unsound Mind. 
 
 Conveyances A purchase of property by a person of unsound mind is 
 binding unless the fact of his insanity be known to the 
 vendor (c ) ; and so too is a contract to purchase property (d) . 
 If the vendor was aware of the insanity, the conveyance or 
 contract is voidable. 
 
 III. Married Women. 
 
 Sales by a Married Woman. 
 
 Statutory 
 separate 
 property 
 may be 
 disposed of 
 without 
 special 
 formalities ; 
 45 & 4G Viet, 
 c. 75 ; 
 
 Any property which by virtue of statutory enactment 
 belongs to a married woman for her separate use can be dis- 
 posed of by her as if she were unmarried, unless it is subject 
 to a restraint upon anticipation. The most important enact- 
 ment on the subject is contained in the Married Women’s 
 Property Act, 1882, s. 2 of which provides that every woman 
 
 (а) See s. 62 of the Act of 1882, 
 and the cases of Be Cathe/ine Salt, 
 (1896) 1 Ch. 117; and Be Bay, 
 (1896) 1 Ch. 468, below, under 
 “ Settlements.” 
 
 (б) Be Martha Baggs, (1894) 2 
 
 Ch. 416, n.; and Be S. S. B., 
 (1906) 1 Ch. 712. 
 
 (c) Molton v. Camroux (1848), 
 2 Exch. 487; 4 Exch. 17; Beavan 
 v. McDonnell (1854), 9 Exch. 309. 
 
 ( d ) Imperial Loan Co. v. Stone,. 
 (1892) 1 Q. B. 599. 
 
CAPACITY OF PARTIES. 
 
 11 
 
 married after 1882 shall be entitled to hold as her separate 
 property all real and personal property belonging to her at 
 the time of marriage, or acquired by or devolving upon her 
 after marriage, while s. 5 enables every woman married before 
 1883 to hold as her separate property all real and personal 
 property her title to which, whether vested or contingent, and 
 whether in possession, reversion or remainder, accrues after 
 1882. On this latter section it has been held that a rever- 
 sionary interest, whether vested or contingent, to which a 
 married woman was entitled before 1883, is not separate 
 property, although it falls into possession after 1882 (e). 
 Further, under the Matrimonial Causes Acts, 1857 and 1858, 
 and the Summary Jurisdiction (Married Women) Act, 1895, 
 a married woman who has obtained a judicial separation or 
 a protection order, or an order in the nature of a judicial 
 separation, may dispose as a feme sole of any property which 
 may devolve on or be acquired by her during the separation, 
 including property to which she is entitled in remainder or 
 reversion at the date of the decree; and, even if she cohabits 
 with her husband again, all property which she may be en- 
 titled to when such cohabitation takes place will be hers for 
 her separate use, unless she and her husband have, whilst still 
 separate, made some agreement in writing to the contrary (/.) 
 
 So, too, where property is settled upon her for her separate 
 use, she may by the rules of equity convey her equitable in- 
 terest as if she were unmarried, unless, again, it is subject 
 to a restraint on anticipation (g ) . 
 
 Where the separate property, whether statutory or equitable, 
 is subject to a restraint upon anticipation, she has no power 
 to dispose of it during coverture (h), unless the court permits 
 the alienation of it, as it may under s. 7 of the Conveyancing 
 Act, 1911, where it appears to be for her benefit and she con- 
 
 (e) Reid v. Reid (1886), 31 
 
 Oh. D. 402. 
 
 (/) Matrimonial Causes Act, 
 1857, ss. 25 and 26; Matrimonial 
 Causes Act, 1858, ss. 7 and 8; 
 Summary Jurisdiction (Married 
 Women) Act, 1895, s. 5; and see 
 
 Spark v. Massey, (1904) 1 Ch. 451, 
 where the separation deed was in 
 the nature of a settlement. 
 
 (g) Taylor v. Meads (1865), 4 
 De Gr. J. & S. 597. 
 
 (h) Tullett v. Armstrong (1838), 
 1 Beav. 1. 
 
 20 & 21 Viot. 
 c. 85 ; 
 
 21 & 22 Viet, 
 c. 108 ; 
 
 58 & 59 Viet, 
 c. 39 ; 
 
 and so may 
 equitable 
 separate 
 property ; 
 
 unless either 
 is subject to 
 restraint on 
 anticipation. 
 
12 
 
 20 & 21 Viet, 
 c. 57. 
 
 She may 
 exercise a 
 power of 
 appointment 
 as if a feme 
 sole , 
 
 and similarly 
 dispose of 
 trust pro- 
 perty. 
 
 45 & 46 Viet, 
 c. 75. 
 
 56 & 57 Viet, 
 c. 53. 
 
 BK. I., PT. I. — SALES, EXCHANGES AND GIFTS. 
 
 sents (i ) — a provision which applies also to any property which 
 she is restrained from alienating or is by law unable to dis- 
 pose of or bind, including a reversionary interest arising under 
 her marriage settlement, which, being excepted from the 
 Married Women’s (Reversionary Interests) Act, 1857 (7c), 
 could not be disposed of formerly unless it was her separate 
 property. The restraint does not, however, prevent her from 
 barring an estate tail (7), nor from exercising the powers given 
 to tenants for life under the Settled Land Acts, 1882— 
 1890 (m). 
 
 There are two other cases in which a married woman can 
 dispose of property as if she were a feme sole. She has always 
 been able to exercise a power of appointment, whether special 
 or general, without her husband’s concurrence and without 
 any special formalities, and she can now dispose in the same 
 manner of' any property vested in her as trustee or personal 
 representative. But ,this result has only gradually been 
 reached. S. 18 of the Married Women s Property Act, 1882, 
 enabled a married woman who is an executrix, administra- 
 trix, or trustee, to transfer any annuity, bank deposit, shares 
 or stocks without her husband, as if she were a feme sole, 
 and s. 16 of the Trustee Act, 1893 (w), gave her power, when 
 any freehold or copyhold hereditament is vested in her as a 
 bare trustee, to convey or surrender it as a feme sole. But it 
 was decided that a married woman trustee (other than a bare 
 trustee) could not convey the legal estate in freehold land 
 except by means of a deed acknowledged (o), and it seemed 
 
 (i) This section repeals and re- 
 enacts in an extended form s. 39 
 of the Conveyancing Act, 1881. 
 See Tamplin v. Miller (1882), 30 
 W. R. 422; Hodges v. Hodges 
 (1882), 20 Ch. D. 749; Be War- 
 ren's Settlement (1883), 52 L. J. 
 Ch. 928. 
 
 (k) See infra, p. 14. 
 
 ( l ) Cooper v. Macdonald, 7 
 Ch. D. 288. 
 
 (m) Settled Land Act, 1882, 
 s. 61 (5). 
 
 (n) Re-enacting s. 6 of the 
 Vendor and Purchaser Act, 1874. 
 
 (o) Re Harkness and Allsopp's 
 Contract, (1896) 2 Ch. 358. Com- 
 pare Re Brooke and Fremlin's 
 Contract, (1898) 1 Ch. 647; Re 
 Ilowgate and Osborn's Contract, 
 (1902) 1 Ch. 451; and Re West 
 and Hardy's Contract, (1904) 1 
 Ch. 145. 
 
CAPACITY OF PARTIES. 
 
 13 
 
 to follow that copyhold and leasehold land vested in her as 
 trustee could only he disposed of according to the ancient 
 forms. This decision caused much inconvenience, and was 
 removed by the Married Women’s Property Act, 1907, s. 1, 
 which provides that “ a married woman is able, without her 
 husband, to dispose of, or join in disposing of, real or personal 
 property held by her solely or jointly with any other person 
 as trustee or personal representative in like manner as if she 
 were a feme sole .” The section is retrospective, and makes 
 valid all such dispositions made after 1882, except that any 
 title or right acquired through or with the concurrence of the 
 husband before the section came into force is to prevail over 
 any title or right which would otherwise be rendered valid 
 by the section ( 00 ). 
 
 It is clear, then, that generally a married woman may sell 
 and convey property vested in her just as if she were unmarried. 
 But there are still a few cases in which she cannot do so . Where 
 the property is not her separate property, because the acquisi- 
 tion of it and her marriage both occurred before the Married 
 Women’s Property Act, 1882, came into operation, and it is 
 not vested in her as trustee or personal representative, it must 
 still be conveyed in the old manner. A few words, therefore, 
 are necessary concerning the old methods of conveying a married 
 woman’s property, esjDecially as they must be borne in mind 
 on an investigation of title. The methods vary according to 
 the nature of the property. 
 
 If the property is freehold land or any interest in freehold 
 land, or money subject to be invested in the purchase of land, 
 it must be conveyed by a deed in which the husband concurs, 
 and the deed must be acknowledged by the married woman in 
 the manner directed in the Fines and Recoveries Act, 1833, as 
 amended by s. 7 of the Conveyancing Act, 1882. The court 
 has, however, power under s. 91 of the former act to dispense 
 with the husband’s concurrence when he is of unsound mind, 
 or from any other cause is incapable of executing a deed, or 
 
 (oo) The doubt, expressed in band’s concurrence is not still 
 Williams, Vendor and Purchaser, necessary is thought to be un- 
 2nd ed. p. 922, and Prideaux, 20th founded. > 
 
 ed. vol. i. p. 878, whether the hus- 
 
 7 Edw. 7, 
 c. 18. 
 
 Where the 
 property is 
 not separate 
 property, 
 special for- 
 malities still 
 necessary. 
 
 45 & 4G Viet, 
 c. 75. 
 
 Freehold 
 
 land. 
 
 3 & 4 Will. 4, 
 c. 74, ss. 77 — 
 91. 
 
14 
 
 BK. I.j PT. I. — SALES, EXCHANGES AND GIFTS. 
 
 Copyhold 
 
 land. 
 
 Leasehold 
 
 land. 
 
 Chattels 
 personal . 
 
 Reversionary 
 interests in 
 personalty. 
 
 20 & 21 Viet, 
 c. 57. 
 
 Disclaimer 
 by married 
 woman. 
 
 if his residence is not known, or he is in prison, or living apart 
 from his wife, but without prejudice to his rights. Such an 
 order was made in a case where the husband was living apart 
 from his wife, and refused to execute the deed unless he first 
 received 50 l. (p). 
 
 A legal interest in copyhold land must be conveyed by ^ 
 surrender by the married woman and her husband, the wife 
 being separately examined as to her free consent by the steward 
 of the manor. Equitable interests in copyholds may be con- 
 veyed in the same way or by a deed in which the husband 
 concurs, and which is duly acknowledged by her before the 
 steward (q). 
 
 If the property is leasehold, the married woman has no power 
 to deal with it; it can be disposed of by the husband alone, 
 except that he cannot bequeath it by his will if the wife survives 
 him, and that he cannot alone dispose of it if it is reversionary 
 and incapable of falling into possession during coverture (r). 
 Nor can she dispose of chattels personal, since they vest at 
 common law in the husband absolutely, and he alone can dis- 
 pose of them, provided that, in the case of choses in action, he 
 first reduce them into possession. Reversionary choses in action, 
 however, can only be assigned under the provisions of the 
 Married Women’s (Reversionary Interests) Act, 1857, which 
 requires both husband and wife to join in the deed which must 
 be acknowledged by the wife, and if the reversionary interest 
 arises under her marriage settlement an order of' court authoriz- 
 ing the alienation must be obtained under s. 7 of the Con- 
 veyancing Act, 1911 ( s ). 
 
 A deed acknowledged and executed with the husband’s con- 
 currence may perhaps also be necessary to enable a married 
 
 (p) Re Caine (1883), 10 
 
 Q. B. I). 284. The application 
 for an order dispensing with the 
 husband’s concurrence must be 
 made to the King’s Bench and not 
 to the Chancery Division of the 
 High Court. See Re Ellen Giles 
 (1894), 70 L. T. 757; and Ord. 
 LIV. r. 12b of the Rules of the 
 Supreme Court. 
 
 ( q ) Dines and Recoveries Act, 
 1833, ss. 77—91. 
 
 (r) Duberley v. Day (1852), 16 
 Beav. 33. Such an interest would 
 now be disposed of by deed 
 acknowledged under the Married 
 Women’s (Reversionary Interests) 
 Act, 1857. 
 
 (s) Ante, p. 11. 
 
CAPACITY OF PARTIES. 
 
 15 
 
 woman to disclaim an interest in land of any tenure, since 
 that was the method of 1 disclaimer under the Real Property Act, ® ^o 9 6 VlCt ' 
 1845, s. 7, and the Married Women’s Property Acts, 1882 and 
 1907, contain no mention of disclaimer. 
 
 The result is that a deed acknowledged or an acknowledg- Summary of 
 ment before the steward of the manor, as the case may be, is w ^ich deed 
 now only necessary in the following cases:— led ^(Tis still 
 
 (i) To convey freehold or copyhold land acquired before the nece!5 ‘ sai y- 
 
 1st January, 1883, by a woman married before that 
 date and not settled to her separate use. 
 
 (ii) To dispose of a reversionary interest in pure personalty, 
 
 or of a reversionary interest in leaseholds incapable 
 of falling into possession during coverture, the title to 
 which was acquired by a woman married before the 
 1st January, 1883, under an instrument dated be- 
 tween the 1st January, 1858, and the 31st December, 
 
 1882 (inclusive), and not settled on her for her 
 separate use. 
 
 (iii) Possibly, to disclaim land. 
 
 Statutes which empower persons under disability to alienate 
 their property, such as the Lands Clauses Consolidation Act, 
 
 1845, s. 7, generally confers such powers on married women. 
 
 It is not necessary to take into consideration the husband’s As to the 
 
 . i • . . • t , pi -j • husband’s 
 
 curtesy as an impediment to a married woman s power oi dis- e8tate by 
 posing of her real estate, for her conveyance will defeat his curtes y- 
 right to it, since an estate by curtesy has no existence until the 
 wife’s death (t). 
 
 Sales to a Married Woman. 
 
 At common law a married woman was not absolutely in- Conveyance 
 capacitated from purchasing land, but her husband during her women” 6 
 life, and even herself after his death, and her representatives 
 after her death, might avoid the purchase if not made out of 
 her separate estate. Since the Married Women’s Property Act, 
 
 1882, a married woman may acquire, hold, and dispose of real 
 or personal property like a feme sole ( u ) ; and she may not 
 
 (t) Bates v. Kesterton, (1896) 1 ( u ) s. 1, sub-s. (1). 
 
 Ch. 159. 
 
16 
 
 56 & 57 Viet, 
 c. 63. 
 
 Conveyances 
 by and to 
 aliens. 
 
 33 & 34 Viet, 
 c. 14. 
 
 The old law as 
 to forfeiture. 
 
 The present 
 law. 
 
 33 & 34 Viet, 
 c. 23. 
 
 BK. I., PT. I. — SALES, EXCHANGES AND GIFTS. 
 
 only take a conveyance of any property, but enter into any 
 contract for its purchase. By the Married Women’s Property 
 Act, 1893, s. 1, every such contract made after the 5th Decem- 
 ber, 1893, otherwise than as agent, is deemed to be entered into 
 by her with respect to and to bind her separate property, 
 whether she is possessed of any at the time or not, and binds 
 all separate property which she may then or thereafter be pos- 
 sessed of or entitled to, provided that it is not subject to a 
 restraint against anticipation. 
 
 IV. Aliens. 
 
 Subject as stated below, aliens are no longer under any dis- 
 ability in respect of 1 conveyances of property. For, by the 
 Naturalization Act, 1870, s. 2, real and personal property of 
 every description may be taken, held, acquired, and disposed of 
 by an alien in the same manner as by a natural-born British 
 subject, and a title to such property may be derived through, 
 from, or in succession to an alien, just as through, from, or 
 in succession to a natural-born British subject. But s. 14 pro- 
 vides that nothing in the act shall qualify an alien to be owner 
 of a British ship, or of any share therein. 
 
 V. Traitors and Felons. 
 
 Before the 4th July, 1870, if a man was attainted of treason, 
 ho forfeited his land and goods to the crown for ever; and if 
 ho was attainted of felony — i.e., sentenced to death or judged 
 outlaw on a capital offence — his land was forfeited to the crown 
 for a year and a day, and his goods absolutely: at the end of 
 the year and a day his land escheated to his feudal lord; and 
 the forfeiture in the case of land related back to the time of the 
 offence, so that all intermediate dealings by the attainted person 
 with such property were void. Consequently a purchaser from 
 a man who had committed such a crime would, when the man 
 was attainted, lose his purchase, even if he was without notice. 
 Traitors and felons could, however, aliene their chattels, real 
 and personal, provided they did so before conviction. 
 
 Since the Forfeiture Act, 1870, however, no confession, 
 verdict, inquest, conviction, or judgment of or for any treason 
 or felony will now cause any attainder or corruption of blood 
 
CAPACITY OF PARTIES. 
 
 17 
 
 or any forfeiture or escheat. This act does not affect the for- 
 feiture consequent on outlawry ( x ), though outlawry in civil 
 actions has been since abolished by the Civil Procedure Acts 
 Repeal Act, 1879, and is hardly ever resorted to in criminal 
 proceedings. 
 
 The Forfeiture Act provides, however, that a convict, as de- 
 fined by the act, cannot during the period of his sentence aliene 
 or charge any property or make any contract (y ) ; but provi- 
 sion is made for the appointment of an administrator in whom 
 will vest all the property the convict had at the time of convic- 
 tion, or which he afterwards acquires, and who has absolute 
 power to let, sell, mortgage, convey, and transfer any part of 
 such property as he thinks fit (z ) ; where an administrator has 
 not been appointed, an interim curator may be appointed by 
 justices, who, on appointment, has power to sell the convict’s 
 personal property with the leave of the justices or the court (zz ) . 
 These provisions, however, do not apply to property vested in 
 the convict as trustee or mortgagee, which remains vested in 
 him (a ) . 
 
 VI. Corporations. 
 
 Sales by Corporations . 
 
 A common law corporation has generally the same capacity 
 of alienation as an individual. Restrictions, however, have been 
 imposed on municipal corporations by the Municipal Cor- 
 porations Act, 1882, ss. 108 — 110; under the provisions of 
 which they cannot sell, mortgage or alienate their land except 
 with the approval of the Local Government Board (6), or in 
 the case of a site for a place of worship under the Places of 
 Worship Sites Act, 1873, of the Treasury (c); they may, how- 
 
 (x) s. 1. 
 
 \y) s. 8. 
 
 (z) ss. 9, 10, 12. As to the 
 administrator’s powers and duties, 
 see Carr v. Anderson, (1903) 2 
 Ch. 279. He lias no power to bar 
 an estate tail vested in the convict, 
 but the convict himself can exe- 
 cute the disentailing deed, and the 
 administrator can then sell the 
 G. — C. 
 
 fee: Re Gaskell and Walters' Con- 
 tract, (1906) 2 Ch. 1. 
 
 (zz) ss. 21 — 26. 
 
 (а) Re Levy and the Debenture 
 Corporation (1894), 42 W. R. 533; 
 Trustee Act, 1893, s. 48. 
 
 (б) See Local Government Act, 
 1888, s. 72. 
 
 (c) Places of Worship Sites 
 Amendment Act, 1882, s. 1. 
 
 c 
 
 42 & 43 Viet, 
 c. 59. 
 
 Conveyances 
 f>y convicts. 
 
 Capacity of 
 common law 
 corporation. 
 45 & 46 Viet 
 c. 50. 
 
 36 & 37 Viet, 
 c. 50. 
 
18 
 
 Capacity of 
 
 statutory 
 
 corporation. 
 
 Conveyances 
 to corpora- 
 tions cause 
 a forfeiture 
 unless under 
 licence or 
 statute. 
 
 51 & 52 Viet, 
 c. 42. 
 
 Exceptions : 
 
 (a) Incor- 
 porated 
 charities ; 
 
 (b) Public 
 and charitable 
 corporations ; 
 
 BK. I., PT. I. SALES, EXCHANGES AND GIFTS. 
 
 ever, make leases for not exceeding thirty-one years without 
 such approval. Restrictions have also been imposed on eccle- 
 siastical corporations by a great number of statutes; and on 
 the principal universities and some colleges and other institu- 
 tions (d) . 
 
 A statutory corporation cannot do anything which its consti- 
 tution, as defined by the act of parliament or memorandum 
 of association which incorporates it, does not expressly or im- 
 pliedly Warrant (e). Anything outside it is said to be ultra 
 vires. A power of 1 sale of its property may, however, be im- 
 pliedly warranted from its constitution without any words in 
 the act or memorandum of 1 association, as, for instance, in the 
 case of a commercial corporation (/). 
 
 Sales to Corporations . 
 
 From very early times it has been the policy of the law to 
 prevent the acquisition of land by a corporation in perpetuity. 
 The law on the subject is now contained in the Mortmain and 
 Charitable Uses Act, 1888, Part I. of which provides that land 
 shall not be assured to, or for the benefit of, or acquired by or 
 on behalf of, any corporation in mortmain, otherwise than 
 under the authority of a licence from the king, or of a statute 
 for the time being in force. If this provision be infringed, 
 the land is forfeited to His Majesty from the date of the assur- 
 ance, subject to this, that if the land is held of a mesne lord 
 the mesne lord may enter on and hold the land at any time 
 
 (t/ O 
 
 within twelve months of the assurance. 
 
 But the following exceptions have been made to the opera- 
 tion of the mortmain law: — Incorporated charities may, in 
 certain circumstances, with the consent of the Charity Com- 
 missioners, hold land without a licence under the Charitable 
 Trusts Act, 1853; and so may corporations formed for public 
 or charitable purposes under the Charitable Funds Investment 
 
 (d) For fuller information, see riage and Iron Co. v. Biche 
 Dart, Vendors and Purchasers, (1875), L. E. 7 H. L. 653. 
 
 7th ed. 24. (/) In re Kingsbury Collieries, 
 
 (e) Sec Ashbury Bailway Car- Ltd., and Moore's Contract, 
 
 (1907) 2 Ck. 259. 
 
CAPACITY OF PARTIES. 
 
 19 
 
 Act, 1870. The Charitable Trustees Incorporation Act, 1872, 
 also enables trustees of certain charities to be incorporated, and 
 yet hold and convey land in the same manner as trustees might 
 do without such incorporation. Companies registered under 
 the Companies (Consolidation) Act, 1908, may hold land, ex- 
 cept that no company whose objects do not involve the acquisi- 
 tion of gain can, without the sanction of the Board of Trade, 
 hold more than two acres of land (< 7 ); and by s. 275 of that 
 act companies incorporated in a British possession may hold 
 land if they file certain particulars with the registrar of joint 
 stock companies. By the custom of London, churchwardens 
 are a corporation for the purpose of purchasing land; and 
 churchwardens generally can by statute purchase lands for 
 specified purposes — e.g., for poor law and educational purposes. 
 Municipal corporations may, under the Municipal Corporations 
 Act, 1882 (A), purchase and hold land to the extent of five acres 
 for buildings for borough purposes, and the Local Government 
 Board (i) may authorize them to acquire further land. Fur- 
 ther, by Part III. of the Mortmain Act, 1888, a licence to hold 
 land in mortmain is not required for an assurance to a corpora- 
 tion for the purposes only of a public park, a school-house, or a 
 museum, provided that if the assurance is by will the quantity 
 of land must not exceed twenty acres in the case of a park, two 
 acres in the case of a museum, and one acre in the case of a 
 school-house, and both voluntary deeds and wills must be en- 
 rolled with the Charity Commissioners (j). Again, no licence 
 in mortmain is required for a conveyance to a corporation under 
 the Working Classes Dwellings Act, 1890, or under the Mort- 
 main and Charitable Uses Act, 1892. The provisions of' these 
 acts are set out later (1c) . Lastly, no licence is required for 
 a conveyance to a technical or industrial institute under the 
 Technical and Industrial Institutions Act, 1892 (l). 
 
 It may be mentioned here that the lord of a manor cannot be 
 compelled to admit a corporation as tenant on the court rolls of 
 
 (, g ) Companies (Consolidation) Act, 1888, s. 72. 
 
 Act, 1908, s. 16. (j) s. 6. 
 
 ( h ) s. 105 et seq. (Jc) pp. 26, 27. 
 
 (i) See the Local Government ( l ) s. 10. 
 
 c 2 
 
 (0) Charitable 
 trustees ; 
 
 (d) Registered 
 companies ; 
 
 (e) Church • 
 wardens ; 
 
 (f) Municipal 
 corporations ; 
 
 (g) Public 
 park, school- 
 house, or 
 museum ; 
 
 (h) Working 
 classes’ 
 dwellings ; 
 
 (i) Technical 
 and industrial 
 institutes. 
 
 Conveyances 
 of copyholds 
 to corpora- 
 tions. 
 
20 
 
 Corporations 
 may now hold 
 property as 
 joint tenants. 
 62 & 63 Viet, 
 c. 20. 
 
 Restrictions 
 on convey- 
 ances by 
 charities. 
 
 BK. I., PT. I. — SALES, EXCHANGES AND GIFTS. 
 
 the manor; and therefore, where a purchaser of copyholds is a 
 corporation, they must be surrendered to some nominee of the 
 corporation, the nominee executing a declaration of trust in 
 favour of the corporation. 
 
 Corporations were formerly subject to another disability in 
 that they were incapable of' holding property in joint tenancy 
 either with another corporation or an individual (ra). This, 
 however, has been altered by the Bodies Corporate (Joint 
 Tenancy) Act, 1899, which provides that a body corporate shall 
 be capable of acquiring and holding any real or personal pro- 
 perty in joint tenancy in the same manner as if it were an in- 
 dividual; and that where a body corporate and an individual 
 or two or more bodies corporate become entitled to any such 
 property under circumstances or by virtue of an instrument 
 which would, if the body corporate had been an individual, 
 have created a joint tenancy, they shall be entitled to the pro- 
 perty as joint tenants. 
 
 The act enables corporations to hold land jointly not only 
 with individuals, but also as co-trustees (n ) . 
 
 VII. Charities. 
 
 Sales by Charities. 
 
 Charities also are subject to restrictions against making dis- 
 positions of their property. By s. 29 of the Charitable Trusts 
 Act, 1855, it is made unlawful for the trustees or persons acting- 
 in the administration of any charity to make or grant otherwise 
 than with the express authority of 1 an act of parliament or of a 
 court or judge of competent jurisdiction, or according to a 
 scheme legally established, or with the approval of the Charity 
 Commissioners, any sale, mortgage or charge of the charity 
 estate, or any lease thereof in reversion after more than three 
 years of 1 any existing term, or for any berm of life, or in con- 
 sideration wholly or in part of any fine, or for any term of 
 years exceeding twenty-one years (o) . 
 
 (ra) See Law Guarantee and 
 Trust Society v. Bank of England 
 (1890), 24 Q. B. D. 406. 
 
 {n) See Be Thompson , (1905) 
 
 1 Ch. 229; 74 L. J. Oh. 133. 
 
 (o) See as to the meaning of 
 this section, Be Mason's Orphan- 
 age, &c., (1896) 1 Ch. 596. The 
 
CAPACITY OF PARTIES. 
 
 21 
 
 But the act has to be construed as one with the Charitable 
 Trusts Act, 1853, and since s. 62 of the act of 1853, as 
 extended by the Charitable Trusts Act, 1894, s. 4, exempts 
 numerous specified charities (including any charity wholly 
 maintained by voluntary contributions), such charities are 
 exempted also from the act of 1855 (p). 
 
 Sales to Charities. 
 
 Conveyances to charities have also been subjected to restric- 
 tions by the legislature, and are now for the most part governed 
 by the Mortmain and Charitable Uses Act, 1888, which repeals 
 9 Geo. 2, c. 3,6, the main statute on the subject prior to 1888. 
 Part II. of the act of 1888 imposes the conditions to be complied 
 with in order to render valid a disposition of land or personal 
 estate to be laid out in land for charitable purposes. 
 
 The requirements of the act vary according as the assurance 
 is (a) a free gift, or (b) a sale for valuable consideration. These 
 cases, therefore, require separate consideration. 
 
 First, as to gifts . — If the assurance is of land, or personal 
 estate to be laid out in land, it must, under the act of 1888, 
 conform to the following requirements: — 
 
 (1 ) The conveyance must be, except in the case of copyholds, 
 
 by deed (q). 
 
 (2) It must be executed in the presence of at least two wit- 
 
 nesses (r) . 
 
 (3) It must be executed twelve months before the donor’s 
 
 death, inclusive of the days of making the assurance 
 and of the death (s) . 
 
 (4) It must be enrolled within six months of execution in 
 
 the Central Office of the Supreme Court of Judica- 
 ture (i t). 
 
 section prevents the exercise of 
 even an express power of sale in 
 the trust deed. 
 
 (p) See Tudor, Charitable 
 Trusts, 4th ed. 558. 
 
 ( 2 ) s - 4 ( 6 ). 
 ( r ) Ibid. 
 
 0) s. 4 (7). 
 (<) s. 4 (9). 
 
 Exceptions to 
 general rule. 
 
 Conveyances 
 to charities. 
 
 9 G-eo. 2, 
 c. 36. 
 
 Requirements 
 of the act. 
 
 Requisites to 
 a valid gift 
 of land to a 
 charity. 
 
22 
 
 Requisites for 
 a valid gift of 
 stock to a 
 charity. 
 
 Requisites to 
 a valid sale 
 of land to 
 a charity. 
 
 Exceptions : 
 
 Parks, 
 
 museums, 
 
 BK. I., PT. I. — SALES, EXCHANGES AND GIFTS. 
 
 (5) It must take effect in possession immediately from the 
 
 making thereof (u). 
 
 (6) It must be without any power of revocation, reservation, 
 
 condition, or provision for the benefit of the donor or 
 of any person claiming under him ( x ) . 
 
 With regard to the last condition, however, the act allows the 
 reservation of a nominal rent, of minerals, of gn easement, of 
 covenants as to buildings, streets, or nuisances, or similar pro- 
 visions for the enjoyment as well of the premises conveyed as 
 of adjacent premises, or of a right of entry on non-payment 
 of rent or breach of covenant, or similar stipulations for the 
 donor’s benefit (y). 
 
 If 1 the assurance is of stock in the public funds, unless it is 
 made in good faith and for full and valuable consideration, it 
 must be made by transfer thereof in the public books kept for 
 the transfer of stock at least six months before the death of the 
 assuror, including the days of transfer and of death (z) . 
 
 Secondly , as to sales for valuable consideration. — If these are 
 made in good faith and for full and valuable consideration, the 
 deed need not he executed twelve months before the vendor s 
 death (a), hut all the other formalities set forth above are to he 
 observed. “Valuable consideration” may consist wholly or in 
 part of a rent, rent-charge or other annual payment in per- 
 petuity or for any term of years, or other period, with or with- 
 out a right of re-entry for non-payment, or it may consist of 
 a sum part paid in a lump and part reserved as above (6). The 
 deed in this case also must be attested by two witnesses and 
 enrolled, but the omission to enrol it may in a proper case 
 be cured by an order of the High Court (c ) . 
 
 These provisions as to gifts and sales to charities are, however, 
 like those relating to conveyances to corporations, subject to 
 numerous exceptions. These are as follows: — 
 
 (1) By Part III. of the 1888 act (just as in the case of 
 
 (u) s. 4 (2). See, however, the (a) s. 4 (7). 
 
 Charity Lands Act, 1863. (5) s. 10 (iv). 
 
 ( x ) s. 4 (3). (c) s. 5. This only applies 
 
 ( y ) s. 4 (4). where value has been given. 
 
 M B. 4 (8). 
 
CAPACITY OF PARTIES. 
 
 23 
 
 conveyances to corporations), it is provided that land 
 may be given by deed or will, without complying with 
 the usual formalities, for the purpose of a public park, 
 museum, or school-house; but the deed, or will, when 
 not supported by value, must be executed twelve 
 months before the donor’s death, and the document 
 must be enrolled with the Charity Commissioners 
 within six months of execution in the case of a deed, 
 and within six months of the testator’s death in the 
 case of a will. Moreover, in cases of gifts by will, 
 the acreage given must not, for a public park exceed 
 twenty acres, for a museum two acres, and for a 
 school-house one acre (d). 
 
 (2) By the same part of the act, no formalities are required 
 
 in the case of conveyances to or for the Universities of 
 Oxford and Cambridge, London, Durham, and the 
 Victoria University, and any of their colleges; and 
 the colleges of Eton, Winchester, Westminster, and 
 Keble College (e). 
 
 (3) By the same part of the act, none of the provisions of 
 
 the act apply to an assurance (otherwise than by will) 
 to trustees of societies formed for religious purposes or 
 for the promotion of education, art, literature, science 
 or other like purpose, of land not exceeding two acres, 
 to be used for the erection of a building for the pur- 
 poses of such societies, provided the assurance be made 
 in good faith and for full and valuable consideration. 
 So that two acres of land may be conveyed to institu- 
 tions of this sort without any formalities. The trus- 
 tees may, if they think lit, enrol the deed, but are 
 not bound to do so (/). 
 
 (4) By Part III. of the 1888 act, s. 8, and the undermen- 
 
 tioned statutes, the provisions above mentioned are 
 either wholly or partially inapplicable to the Found- 
 ling Hospital (g), the British Museum (h), the Marine 
 
 (g) 13 Geo. 2, c. 29. 
 
 ( h ) 26 Geo. 2, c. 22; 5 Geo. 4, 
 c. 39. 
 
 and school - 
 houses. 
 
 Universities 
 and colleges. 
 
 Sales to 
 
 religious 
 
 bodies. 
 
 Institutions 
 exempted 
 by special 
 statutes. 
 
 ( d ) s. 6. 
 
 (e) s. 7. 
 (/) s. 7. 
 
24 
 
 BK. I., FT. I. SALES, EXCHANGES AND GIFTS. 
 
 Working 
 Classes 
 Dwellings 
 Act, 1890. 
 
 53 & 54 Viet, 
 c. 16. 
 
 The amending 
 act of 1891. 
 
 54 & 55 Viet, 
 c. 73. 
 
 Society (£), Queen Anne’s Bounty (Jc) y the Seamen’s 
 Hospital Society (Z), the Ecclesiastical Commissioners 
 (in respect of gifts, &c. for endowment of clergy, or 
 building or repairing churches (m)), and some other 
 objects for which reference must be made to the Index 
 of Statutes Revised. 
 
 (5) By the Working Classes Dwellings Act, 1890, lands may 
 
 be conveyed by deed or will without compliance with 
 the provisions of the act of 1888, if the object of the 
 conveyance is to provide dwellings for the working 
 classes of populous places, provided that no more than 
 five acres be given by will , and that the deed or will 
 be enrolled with the Charity Commissioners; the time 
 for enrolment being, in the case of a deed, within six 
 months of its execution, and, in the case of a will, 
 within si,x months after probate thereof. 
 
 (6) By the Mortmain and Charitable Uses Act, 1891, it is 
 
 provided that “land” in the act of 1888 shall not 
 include money secured on land, nor other personal 
 estate arising from or connected with land (w), which 
 therefore can now be given by will to a charitable 
 use; and that land may be assured by will to or for 
 a charitable use; but that the land so given is to be 
 sold within a year after the testator’s death (o), unless 
 a judge of the High Court, or the Charity Commis- 
 sioners, being satisfied that the land is required for 
 actual occupation for the purposes of the charity, and 
 not as an investment, order the retention of the 
 land (p). If the land remains unsold at the end of 
 a year without any such order having been obtained, 
 it will vest in the official trustee of charity lands, and 
 the Charity Commissioners will see to its being 
 sold (g) . The act, however, does not apply where land 
 is devised on trust for sale, and only the proceeds of 
 
 (i) 12 Geo. 3, c. 67. ( n ) s. 3. 
 
 (k) 43 Geo. 3, c. 107. (o) s. 5. 
 
 (Z) 3 & 4 Will. 4, c. 9. (p) s. 8. 
 
 (m) 14 & 15 Afict. c. 97. (q) s. 6. 
 
CAPACITY OF PARTIES. 
 
 25 
 
 sale are given to the charity; in such a case the trustees 
 need not sell within a year, though they must sell 
 within a reasonable time (r). With regard to money 
 directed by will to be laid out in land for the benefit 
 of any charitable use, the statute provides that, unless 
 an order is made by the judge or Charity Commis- 
 sioners that the land is required for actual occupation 
 for the purposes of the charity, the money shall not 
 be so laid out, but shall be held for the charitable use 
 as if no such direction to lay it out iji land had been 
 given (s). This act applies to the will of a testator 
 dying after 5th August, 1891, even though the will 
 was made prior to that date (t). The restrictions im- 
 posed on assurances by s. 4 of the 1888 act do not 
 apply to gifts by will under this act, so that a gift 
 of land in remainder will be good, but the reversionary 
 interest must be sold within a year of the testator’s 
 death ( u ) . 
 
 (7) Further, by the Mortmain and Charitable Uses Act 
 
 Amendment Act, 1892, land may be assured by deed 
 to any local authority (as defined in the act) for any 
 purpose for which such local authority is empowered 
 by statute to acquire land without any of the formali- 
 ties specified in the act of 1888, except that the deed if 
 made otherwise than in good faith and for valuable 
 consideration must be enrolled with the Charity Com- 
 missioners within six months of execution. 
 
 (8) Lastly, by the Technical and Industrial Institutions Act, 
 
 1892, the formalities prescribed by Part II. of the act 
 of 1888 are not required for assurances made to an 
 institution to which the act applies ( x ), nor does the 
 provision of the act of 1891 that land assured by will 
 shall be sold within a year from the death of the 
 testator apply; but every such conveyance or assur- 
 
 (r) Re Bidebottom, (1902) 2 pital v. Lewis, (1894) 1 Oil. 297. 
 
 Ch. 380. ( u ) Re Hume, Forbes v. Hume, 
 
 (s) s. 7. (1895) 1 Ch. 422. 
 
 (£) Re Bridger, Brompton Hos- ( x ) Sec s. 2. 
 
 55 & 56 Viet, 
 c. 11. 
 
 55 & 56 Yict. 
 g. 29. 
 
26 
 
 Trustees’ 
 power to sell 
 usually de- 
 pends on 
 trust instru- 
 ment. 
 
 Statutory 
 power of sale 
 where testator 
 charges his 
 land with 
 debts and 
 legacies. 
 
 22 & 23 Viet, 
 c. 35. 
 
 BK. I.j PT. I. — SALES, EXCHANGES AND GIFTS. 
 
 ance must be enrolled as soon as may be in the books 
 of the Charity Commissioners. 
 
 VIII. Persons acting in a Fiduciary Capacity. 
 
 Sales by persons aclmg\ in a fiduciary capacity . 
 
 When property is being purchased from a trustee, the pur- 
 chaser must ascertain that the trust instrument confers a power 
 to sell, either expressly or impliedly by giving a power to vary 
 investments («/), or that he has a power to sell by virtue of 
 some statute, or that the property was purchased by the trustee 
 in breach of trust, and the beneficiaries have not all elected to 
 take the property in specie. In the last-mentioned case, it is 
 the duty of the trustees to sell unless all the beneficiaries, being 
 all sui juris , wish the property retained; so that the purchaser 
 must complete on the trustee securing the concurrence of one 
 of the beneficiaries, or proving that they are not all sui juris (z) . 
 
 The following are cases in which a trustee has a statutory 
 power to sell: — Ss. 14 — 17 of 1 the Law of Property Amendment 
 Act, 1859, provide that where a testator has charged his real 
 estate with the payment of debts or legacies, and has devised 
 the estate so charged to a trustee for the whole of his interest, 
 and has not made any express provision for raising the debts, 
 &c. out of the estate, the trustee may raise the same by sale or 
 mortgage of the land; if he has not vested the estate in a 
 trustee for his whole estate and interest, then the executor 
 may sell. And purchasers or mortgagees are not required to 
 inquire whether the powers given by the act have been duly 
 exercised by tire person to whom they are given. It was decided 
 in Re Clay \ and Tetley (a) that this act does not apply to 
 administrators even with the will annexed. In Tanqueray- 
 Willaume V. Landau (&■), it was held that a purchaser from 
 
 (; y ) Re Pope, (1911) 2 Ch. 442; 
 Re Gent and Eason , (1905) 1 Ch. 
 386. 
 
 (z) Re Jenkins and Randall's 
 Contract, (1903) 2 Ch. 362. Pos- 
 sibly, since the Conveyancing Act, 
 
 1911, s. 10 (3), the concurrence 
 of a beneficiary is not necessary 
 even though they aie all sui juris, 
 (a) (1880), 16 Ch. D. 3. 
 
 (&) (1881), 20 Ch. D. 465. 
 
CAPACITY OF PARTIES. 
 
 27 
 
 executors who are selling realty under this act is neither bound 
 nor entitled to inquire whether any debts remain unpaid, pro- 
 vided the sale takes place within twenty years of the testator & 
 death; but after that time a presumption would arise that the 
 debts had been paid, and a purchaser would not be safe in 
 completing without inquiry. This time limit, however, does 
 not apply to a sale of 1 property vested in an executor or adminis- 
 trator by virtue of his office, so that it has no application to a 
 sale of freeholds by an executor or administrator under the 
 Land Transfer Act, 1897, Part I. ( 0 ), nor does it apply to a 
 sale of leaseholds, a purchaser of which from an executor is 
 safe, even if more than twenty years have elapsed from the 
 testator’s death (d ) ; unless the executor-vendor admits that no 
 debts remain unpaid, and furnishes no other reason for 
 selling (e). 
 
 Again, by the Settled Land Act, 1882, s. 60, where a tenant 
 for life or a person having the powers of a tenant for life 
 under the act, is an infant, or an infant would, if he were of 
 full age, be a tenant for life, or have the powers of a tenant 
 for life under the act, the powers of a tenant for life under the 
 act may be exercised on his behalf 1 by the trustees of the settle- 
 ment . 
 
 Further, by s. 9 of the Conveyancing Act, 1911, where any 
 property, vested in trustees by way of security, becomes, by 
 virtue of the statutes of limitation, or of an order for fore- 
 closure or otherwise, discharged from the right of redemption, 
 the trustees are to hold the property on trust for sale, with 
 power to postpone the sale for such a period as they may think 
 proper. And by s. 10 of the same act, where a settlement, 
 within the meaning of s. 63 of the Settled Land Act, 1882, 
 or other settlement of property as personal estate, contains a 
 power to invest money in the purchase of land, such land, 
 unless the settlement otherwise provides, is to be held by the 
 trustees on trust for sale with power to postpone the sale. 
 
 Executors and administrators also may be able to sell realty 
 
 (c) See post, p. 87. (e) Re VerrelVs Contract, 
 
 (c£) Re Venn and Furze's Con- (1903) 1 Ch. 65. 
 tract, (1894) 2 Ch. 101. 
 
 45 & 46 Viet, 
 c. 38. 
 
 1 & 2 Geo. 5, 
 c. 37. 
 
 Executors’ 
 and adminis 
 
28 
 
 BK. I., PT. I. SALES, EXCHANGES AND GIFTS. 
 
 trators’ power 
 of sale under 
 44 & 45 Viet, 
 c. 41, and 
 under 
 
 60 & 61 Viet, 
 c. 65. 
 
 Trustees may 
 sell together 
 or in lots. 
 
 56 & 57 Viet, 
 c. 53, s. 13. 
 
 Aaid subject 
 to any 
 conditions. 
 
 56 & 57 Viet, 
 c. 53, s. 14. 
 
 Trustees may 
 sell land 
 without 
 minerals, and 
 
 vice versa. 
 
 56 & 57 Viet, 
 c. 53, s. 44. 
 
 When consent 
 of tenant for 
 life necessary 
 to sale by 
 trustees. 
 
 under s. 30 of the Conveyancing Act, 1881, and in the case of 
 persons dying since the 31st December, 1897, under the Land 
 Transfer Act, 1897, Part I. The provisions of these statutes 
 will be considered more fully on a subsequent page. 
 
 Where a trust for sale or power of sale is vested in a trustee, 
 he may, by s. 13 of the Trustee Act, 1893, sell or concur in 
 selling all or any part of the property, together or in lots, and 
 by public auction or private contract, and subject to any con- 
 ditions, without responsibility for loss. But this section does 
 not justify the trustee in selling subject to conditions of sale 
 of a more stringent character than the state of the title warrants, 
 and if he does he will be liable in damages to his cestui que 
 trust for breach of trust. It is, however, now provided by s. 14 
 of the Trustee Act, 1893/, that no cestui que trust shall impeach 
 a sale made by his trustee on the ground that the conditions of 
 sale were unnecessarily depreciatory, unless it also appears that 
 the consideration for the sale was thereby rendered inadequate; 
 and no sale made by a trustee can after the execution of the 
 conveyance be impeached on the ground that the conditions were 
 depreciatory, unless it also appears that the purchaser was 
 acting in collusion with the trustee at the time of 1 the contract 
 of sale. And no purchaser is at liberty to make any objection 
 to the title on this ground . 
 
 Trustees and others authorized to dispose of land by way of 
 sale may now sell the surface of the land apart from the 
 minerals, or vice versa, without any special power in that 
 behalf, provided the leave of the court is obtained (/), and exe- 
 cutors or administrators may do so under the Land Transfer 
 Act, 1897, Part I., without obtaining leave (g ) . 
 
 Since the Settled Land Act, 1882, trustees who are merely 
 empowered to sell land the subject of a strict settlement must 
 obtain the consent of the tenant for life (A) ; if there are 
 several persons, forming together the complex tenant for life, 
 then the consent of any one of these persons is sufficient (i ) . 
 
 (/) See the Trustee Act, 1893, 
 s. 44, as extended by s. 3 of the 
 Trustee Act, 1894. 
 
 ( g ) He Cavendish and Arnold's 
 Contract, W. N. (1912) 83. As 
 
 to a mortgagee’s power, see infra, 
 p. 224. 
 
 ( [h ) Settled Land Act, 1882, 
 s. 56. 
 
 (i) Settled Land Act, 1884, 
 s. 6 (2). 
 
CAPACITY OF PARTIES. 
 
 29 
 
 The purchaser is not entitled to insist on the tenant for life 
 joining in the conveyance if there is evidence that he in fact 
 consents to the sale, even though the consent is not in writ- 
 ing (Jc ) . If the land is vested in trustees upon trust to sell , the 
 consent of the tenant for life is not necessary to the sale unless 
 the settlement requires such consent (l) . 
 
 Again, in purchasing from a mortgagee, the mortgage must 
 be referred to in order to ascertain the nature of his power of 
 sale; but even if the mortgage gives no power to sell, the 
 mortgagee will have one by virtue of Lord Cranworth’s Act, 
 if his mortgage deed is dated between the 28th August, 1860, 
 and the 1st January, 1882, and by virtue of the Conveyancing 
 Act, 1881 (s. 19), and the Conveyancing Act, 1911 (s. 4), if 
 the mortgage was executed after the 3ilst December, 1881. 
 But, notwithstanding these statutes, the mortgage itself ought 
 to be referred to; for it is possible that the powers given by 
 the acts may be excluded or modified by the deed. 
 
 Mortgagee’s 
 power of sale. 
 
 23 & 24 Yict. 
 c. 145. 
 
 Sales to Persons in a fiduciary Relation. 
 
 The fact that the grantee of property stands in a fiduciary 
 relation to the grantor has likewise an important bearing on 
 the validity of the transaction. The following is a summary of 
 the rules affecting persons in a fiduciary position: — 
 
 (1) A trustee who is selling property under a trust or power 
 of sale must not either directly or indirectly buy the trust 
 property or any interest in it, or take a mortgage or lease 
 thereof either from himself or a co-trustee (m), unless (i) he is 
 expressly authorized to do so by the trust instrument (n), or (ii) 
 he obtains the leave of the court (o) . But a trustee may buy or 
 otherwise acquire for value the interest of the beneficiary in 
 the trust property provided that he complies with the following 
 
 How a 
 fiduciary 
 relationship 
 affects the 
 validity of 
 the sale. 
 
 (1) Trustee 
 and cestui que 
 trust ; 
 
 (k) Re Pope , (1911) 2 Oh. 442. 
 (Z) Settled Land Act, 1882, 
 s. 63; and Settled Land Act, 1884, 
 s. 6. See Taylor v. Poncia (1884), 
 25 Ch. D. 646; Re Earle and 
 Webster (1883), 24 Ch. D. 144. 
 
 (m) Fox v. Mackreth (1788), 2 
 Bro. Ch. 400; 2 Cox, 320. See 
 
 more fully Hart, Digest of the 
 Law of Trusts, 278 et seq. 
 
 (n) See Allen v. Taylor (1880), 
 16 Ch. D. 355. 
 
 (o) Campbell v. Walker (1800), 
 5 Yes. at p. 682; Tennant v. 
 Trenchard (1869), L. R. 4 Ch. 
 App. 537; Boswell v. Coaks 
 
30 
 
 BK. I., PT. I. — SALES, EXCHANGES AND GIFTS. 
 
 (2) Parent 
 and child ; 
 
 (3) Guardian 
 and ward ; 
 
 (4) Minister 
 and member 
 of congrega- 
 tion ; 
 
 conditions, namely, (a) lie gives a fair price therefor; (b) he 
 makes a full disclosure to the beneficiary of all facts within his 
 knowledge relating to the trust property and the circumstances 
 of the transaction; and (c) the beneficiary has competent and 
 independent advice in respect of the transactions (p ) . And 
 generally it may be stated that, in order that such a purchase 
 may be sustained, the court must be satisfied that the fiduciary 
 relationship had been at the time completely shaken off, and that 
 the cestui que trust was in as favourable a position as regards 
 the transaction as if that relationship had never existed (g). 
 And a trustee cannot generally retain a gift made to him by 
 the beneficiary (r) . 
 
 There is nothing to prevent an ex-trustee purchasing the 
 property of which lie was a trustee, provided some considerable 
 period has elapsed since he ceased to hold office (s) . 
 
 (2) A parent can purchase or take a gift from his child, but 
 if the sale or gift is made within a short period after the child 
 has come of age it is presumed to be made under undue influence 
 and may be impeached within a reasonable time, unless the 
 parent can prove that the child had independent advice (t) . 
 
 (3) A guardian cannot purchase or take a gift from his ward 
 while the relationship of' guardian and ward is still subsisting. 
 And even where the ward has come of age, if but a short time 
 has elapsed since the ward attained his majority, the onus will 
 bo on the guardian to show that he has reaped no advantage 
 from the influence his former position with regard to the ward 
 must be presumed to have given him (u) . 
 
 (4) On the same ground a conveyance or gift inter vivos to 
 a minister of religion from one of his flock is liable to be set 
 aside (x). 
 
 (1883), 23 Oh. D. 302, affd. H. L. 
 s. n. Coahs v. Boswell (1886), 11 
 App. Cas. 232. 
 
 (p) Coles v. Trecothick (1804), 
 9 Yes. at p. 247; Denton v. 
 Donner (1856), 23 Beav. 285; 
 Wright v. Carter, (1903) 1 Ch. 27. 
 
 (a) Douqan v. Macpherson, 
 (1902) A. C. 107. 
 
 (r) See Hatch v. Hatch (1804), 
 
 9 Ves. 292; Vaughton v. Noble 
 (1861), 30 Beav. at p. 39. 
 
 (s) Be Boles, (1902) 1 Ch. 244. 
 
 (t) See Wright v. Vanderplank 
 (1856), 8 D. M. & G. 136; Powell 
 v. Powell, (1900) 1 Ch. 243. 
 
 (it) Hatch v. Hatch (1804), 9 
 Yes. 292; Maitland v. Irving 
 (1846), 15 Sim. 437. 
 
 ( x ) See Huguenin v. Baseley 
 
CAPACITY OP PARTIES. 
 
 '31 
 
 (5) A solicitor may buy property from his client subject to 
 the rule in Simpson v. Lamb («/), that a purchase by a solicitor 
 from a client of the subject-matter of a pending action is void; 
 but, like a trustee, the solicitor must be able to prove (1) that 
 the price given was a fair one; (2) that the client was fully 
 informed; and (3) that he had competent independent ad- 
 vice (z). The same rule applies to a barrister (a). With regard 
 to gifts inter vivos , the rule is far stricter. There is always 
 a presumption that a gift by a client to a solicitor was unduly 
 influenced by the fiduciary relation subsisting between them. 
 This presumption is not irrebuttable, but it is exceedingly 
 difficult to rebut it. The mere fact of the client having em- 
 ployed a separate and independent solicitor is not enough. It 
 must be shown that the influence arising from the relation has 
 ceased to exist before the gift can be supported (<&). The same 
 thing applies to a gift by a client to his solicitor’s wife (e), and 
 possibly to any member of his family (d ) . This rule likewise 
 applies to a barrister (e) . 
 
 It is more difficult to impeach these gifts after the death 
 of the donor than it is in his lifetime. 
 
 (6) A conveyance or gift from a patient to his medical ad- 
 viser is on much the same footing as a conveyance or gift from 
 a client to his solicitor, though it appears to be less difficult to 
 rebut the presumption of undue influence in the case of a gift 
 to a medical adviser (/) . 
 
 (7) A mortgagee with a power of sale, though he is not as 
 regards the exercise of his power a trustee for the mortgagor ( g ), 
 
 (1807), Wli. & Tud. L. C. Eq. 8th 
 ed. vol. i. 259; Allcard v . Skinner 
 (1887), 36 Cli. D. 145; Morley v. 
 Loughnan, (1893) 1 Ch. 736. 
 
 (y) (1857), 7 Ell. & Bl. 84. 
 
 ( 2 ) Wriglit v. Carter, (1903) 1 
 Ch. 27; see also Tomson v. Judge 
 (1855), 3 Drew. 306; McPherson 
 v. Watt (1877), 3 App. Cas. 254. 
 
 (a) Carter v. Palmer (1842), 8 
 01. & Ein. 659. 
 
 (b) Morgan v. Minett (1877), 6 
 Ch. D. 645; Tyarsv. Alsop (1889), 
 
 61 L. T. 8; Wright v. Carter, 
 (1903) 1 Ch. 27; L. Q. R. vol. 
 lxxiv. 123. 
 
 (c) Liles v. Terry and Wife, 
 
 (1895) 2 Q. B. 679. 
 
 (d) Willis v. Barron, (1902) 
 A. C. 271. 
 
 (e) Broun v. Kennedy (1863), 
 33 Beav. 133. 
 
 (/) See Mitchell v. Homfray 
 (1881), 8 Q. B. D. 587. 
 
 ( g ) See below, p. 228. 
 
 (-5) Lawyer 
 and client ; 
 
 ( >) Medical 
 man and 
 patient ; 
 
 (7) Mortgagor 
 and mort- 
 gagee. 
 
32 
 
 BK. I., PT. I. SALES, EXCHANGES AND GIFTS. 
 
 yet cannot buy from himself under the power. He may, how- 
 ever, sell to a company in which he holds shares (h). More- 
 over, he may purchase the equity of redemption in property 
 from the mortgagor (i ) . 
 
 Where a sale is set aside on the ground of confidential 
 relationship existing between the parties, the purchaser is en- 
 titled to have back his purchase-money with interest, and he 
 must account for any profits received without interest (1c) . 
 
 Proceedings to set aside these transactions must be insti- 
 tuted within a reasonable time (l). 
 
 ( h ) Farrar v. Farrars, Limited (k) Silkstone, &c. Co. v. Edey, 
 
 (1888), 40 Ch. D. 395. 
 
 (i) Knight v. Marjorihanks 
 (1849), 2 M. &G. 10. 
 
 (1900) 1 Ch. 167. 
 
 ( l ) Clanricarde v. Henning, 50 
 
 L. J. Ch. 865. 
 
CONTRACTS FOR SALE GENERALLY. 
 
 33 
 
 CHAPTER II. 
 
 CONTRACTS FOR SALE GENERALLY. 
 
 A sale of property may be made either by public auction or Contract for 
 by private treaty; but in whichever way it is carried out, where 
 the subject of the sale is an interest in land, the contract must 
 (unless made by the court (a)) comply with the 4th section 
 of the Statute of Frauds. 
 
 The section provides that “ no action shall be brought where- 29 Car. 2, 
 by to charge .... any person upon any contract or sale of ' ' h ’ 
 lands, tenements, or hereditaments, or any interest in or con- 
 cerning them .... unless the agreement upon which such 
 action shall be brought, or some memorandum or note thereof, 
 shall be in writing, and signed by the party to be charged 
 therewith or some other person thereunto by him lawfully au- 
 thor i zed A 
 
 What is an Interest in Land within the Section. 
 
 Some difficulty has been experienced in determining what Fructus natu- 
 
 e . . rails is ; 
 
 amounts to ,an interest m or concerning land within the 
 
 meaning of this section. In the case of contracts for the sale 
 
 of growing crops a distinction is made between crops which 
 
 are “fructus naturales and those which are “ fructus inclus- 
 
 tricdes A contract for the sale of a “ fructus naturalis, 
 
 such as growing grass, timber, or underwood, is within the 
 
 section, and must be in writing (&); but a contract for the 
 
 sale of a “ fructus industrialist i.e ., a crop produced annually Fructus indus- 
 
 by the labour of man, e.g ., corn, potatoes, or turnips, is not, * n ^ ?slsnot; 
 
 so that writing is not necessary under this section ( c ) . 
 
 (а) Att.-Gren. v. Day, 1 Yes. 
 Sen. 218. 
 
 (б) Crosby v. Wadsworth (1805), 
 8 East, 602. 
 
 (c) Parker v. Staniland (1809), 
 11 East, 362; Evans v. Roberts 
 (1826), 8 D. & R. 611. 
 
 G. — C. 
 
 D 
 
34 
 
 BK. I., PT. I. — SALES, EXCHANGES AND GIFTS. 
 
 Hops and 
 clover ; 
 
 Growing 
 timber ; 
 
 Mortgages 
 and leases ; 
 
 Furnished 
 lodgings ; 
 
 Easements ; 
 
 Tenant's 
 fixtures ; 
 
 Whether a contract for the sale of hops or clover is within 
 the section is doubtful. A sale of hops is probably not a sale 
 of an interest in land, as hops pass, under the head of “ emble- 
 ments,” to a deceased owner’s next of kin(^); while a sale 
 of clover, which is not an emblement, as it does not come to 
 perfection within a year of sowing, is probably a sale of an 
 interest in land within the clause (e). 
 
 A contract for the sale of growing timber is within the 
 statute, unless by the terms of the contract it is to be cut at 
 once either by the vendor or purchaser; in the latter event, 
 the contract is one for the sale of goods (/) . 
 
 A contract for a mortgage of land (g), or for the sale of 
 debentures charged on land (h), is within the section; so is 
 a contract for a lease of land, or the sale or surrender of a lease- 
 hold interest (i ) . 
 
 Contracts for taking or letting furnished lodgings are within 
 the statute, if any specific rooms are let (fc); but a contract to 
 live in a boarding-house is not within it, where there is no inten- 
 tion to give the lodger the right to the exclusive occupation of 
 any particular part of the house (l ) . 
 
 Whether a contract to grant an easement is within the statute 
 seems not quite clear, but probably it is (m) . 
 
 An agreement for the sale of tenant’s fixtures is not within 
 the section (n ) ; although a charge on machinery, so fax as it 
 
 ( d ) See, however, Waddington 
 v. Bristow (1801), 2 Bos. & P. 
 •152; Rodwell v. Phillips (1842), 9 
 M. & W. 501, cases on the Stamp 
 Act, 23 Geo. 3, c. 58, which show 
 that contracts for the sale of hops 
 or fruit are not contracts for the 
 sale of goods, wares and merchan- 
 dizes within that act. 
 
 (e) See Graves v. Weld (1833), 
 5 B. & Ad. 105. 
 
 (/) Marshall v. Green (1875), 1 
 C. P. D. 35; Smith v. Surman 
 (1829), 9 B. & C. 829; Sale of 
 Goods Act, 1893, s. 62, s. v. 
 “ goods,” infra, p. 35. 
 
 (g) Pattle v. Anstruther (1893), 
 69 L. T. 175; Ex parte Broderick, 
 In re Beetham (1887), 18 Q. B. D. 
 766. 
 
 ( h ) Driver v. Broad, (1893) 1 
 
 Q. B. 744. 
 
 (i) Woodfall, Landlord and 
 Tenant, 19th ed. 101. 
 
 ( k ) Inman v. Stamp (1815), 1 
 Starkie, 12. 
 
 (Z) Wright v. Stavert (1860), 2 
 El. & El. 721. 
 
 (m) McManus v. Cooke (1887), 
 35 Ch. D. 681. 
 
 (n) Lee v. Gaskell (1876), 1 
 Q. B. D. 700. 
 
CONTRACTS FOR SALE GENERALLY. 
 
 35 
 
 affects trade fixtures, has been held to be within it (o) ; nor 
 is an agreement to build a house, though implying a licence 
 to go on the land (p 1 ), but a contract for the sale of the building 
 materials of a house to be taken down and cleared away by the 
 purchaser within a given time does require writing and signa- 
 ture within the section (q ) . 
 
 It must be remembered with regard to all kinds of crops 
 and some other of the things mentioned above, that though 
 they may not be an interest in land within the meaning of 
 s. 4 of the Statute of Frauds, they may be goods within the 
 meaning of the Sale of Goods Act, 1893, and in that case the 
 contract for the sale of them must comply with s. 4 of that 
 statute. The term “goods” here includes emblements, in- 
 dustrial growing crops and things attached to or forming part 
 of the land which are agreed to be severed before sale or under 
 the contract of sale (r) . 
 
 An agreement for the sale of land and personal chattels which 
 is not actionable as to the land for want of writing under s. 4 
 of the Statute of Frauds is not binding even as to the goods, 
 unless the agreement forms two distinct contracts (s) . 
 
 What the Memorandum must contain. 
 
 The written memorandum in order to satisfy the statute 
 must show — (a) the names or description of the vendor and pur- 
 chaser; (b) the subject-matter of the sale; (c) the considera- 
 tion; (d) the terms on which the property is to be sold, if any 
 special terms are agreed upon; and must be signed by the party 
 to be charged or his agent (who may be appointed verbally) ; it 
 is not necessary that it should be signed by both parties (t). 
 
 It is not necessary for either buyer’s or seller’s name 
 to appear in the memorandum; a description of them is 
 sullicient, provided it be clear enough to identify them (u). 
 
 ( o ) Jarvis v. Jarvis (1893), 63 
 
 L. J. Oh. 10. 
 
 (p) Per Hill, J., in Wright v. 
 S tavert (1860), 2 El. & El. at 
 p. 728. 
 
 (g) Lavery v. Pur sell (1888), 
 39 Oh. D. 508. 
 
 (r) s. 62. 
 
 (s) See Dart’s Vendor and 
 Purchaser, 7th ed. p. 229. 
 
 (£) Seton v. Slade (1802), 7 
 Ves. 265. 
 
 (u) Carr v. Lynch, (1900) 1 
 Ch. at p. 615. 
 
 Agreement 
 to build. 
 
 Contracts for 
 sale of goods. 
 
 56 & 57 Viet, 
 c. 71, s. 4. 
 
 Meaning of 
 “ goods.” 
 
 Contract for 
 sale of land 
 and chattels 
 together. 
 
 Particulars 
 which must 
 appear in 
 the memo- 
 randum. 
 
 Description 
 of parties. 
 
 D 
 
3H 
 
 BK. I., PT. I. SALES, EXCHANGES AND GIFTS. 
 
 Memorandum 
 may be made 
 out by 
 several 
 documents. 
 
 Position of 
 signature. 
 
 It is not, however, sufficient to describe the vendor as 
 “ vendor ” (%), or as the “landlord” of the property (y ) . 
 On the other hand, “proprietor” has been held suffi- 
 cient (0), as also has “ trustee selling 1 under a trust for 
 sale ” (a); and apparently “mortgagee” will be sufficient (b). 
 If the names of both parties do in fact appear on the memo- 
 randum, it is sufficient to satisfy the statute, notwithstanding' 
 that it subsequently appears that one of the contracting parties 
 was only the agent of an undisclosed vendor (<?) . Where the 
 vendor is not sufficiently described the contract is not rendered 
 enforceable by the fact that the purchaser knows who the 
 vendor is (dJ) . 
 
 Though the memorandum must include all the terms of the 
 contract, it is not necessary that they should all be contained 
 in one document. Two documents maybe read together so as 
 to make out a sufficient memorandum if one refers to the 
 other, or if one is ion the face of it incomplete and can be 
 connected with the other by parol evidence. For instance, 
 in White v. Hay (e), a contract for a lease did not show when 
 the lease was to commence, but the date was mentioned in a 
 subsequent letter; it was held that the statute was complied 
 with (/) . 
 
 As the statute requires “ signing ” only, and not “subscrib- 
 ing,” the signature need not be at the end of the memorandum; 
 it may be at the beginning or in any part, but it must appear 
 
 ( x ) Potter v. Duffield (1874), 
 L. E. 18 Eq. 4; Jarrett v. Hunter 
 (1886), 34 Oh. D. 182; Lavery v. 
 Pursell (1888), 39 Oh. D. at 
 p. 518; Coombs v. Wilkes , (1891) 
 3 Ch. 77. 
 
 (y) Coo?nbs v. Wilkes, (1891) 
 3 Oh. 77. 
 
 ( 2 ) Sale v. Lambert (1874), 
 L. E. 18 Eq. 1; Rossiter v. Miller 
 (1878), 3 App. Oas. 1124. 
 
 (а) Catling v. King (1877), 5 
 Ch. D. 660. 
 
 (б) Jarrett v. Hunter, supra; 
 Pattle v. Anstruther (1893), 69 
 
 L. T. 175. 
 
 (c) Filby v. Hounsell, (1896) 2 
 Oh. 737. 
 
 ( d ) Jarrett v. Hunter (1886), 
 34 Ch. D. 182. 
 
 (e) (1895), 72 L. T. 281. 
 
 (/) See also Ridgway v. Whar- 
 ton (1857), 6 H. L. Ca. 238 ; Long 
 v. Millar (1879), 4 C. P. D. 450; 
 Oliver v. Hunting (1890), 44 
 Ch. D. 205; Pearce v. Gardner, 
 (1897) 1 Q. B. 688; Williams on 
 Vendor and Purchaser, pp. 7, 8. 
 See, however, Boydell v. Drum- 
 mond (1809), 11 East, 142. 
 
CONTRACTS FOR SALE GENERALLY. 
 
 37 
 
 in tho writing somewhere, and be inserted in such a manner 
 as to govern the whole contract (g { ) . Where the signature of 
 an agent, such as a solicitor or estate agent, is relied on it must 
 be shown that he was “thereunto lawfully authorized ” (Ji ) ; 
 but an authority to sell implies an authority to sign a memo- 
 randum (i), and an auctioneer at a sale has an implied au- 
 thority to sign for either vendor or purchaser (7c). A mere 
 entry by the auctioneer of the purchaser’s name in the margin 
 of the particulars is not, however, sufficient (7). 
 
 An agent’s authority to sign may be by parol, and is revo- 
 cable at any time before the agreement is signed (m) . 
 
 It often happens that the only written memorandum of the 
 contract is to be found in a correspondence which has passed 
 between the parties. When this is so it becomes necessary in the 
 first place to determine whether the correspondence shows a 
 contract at all. Where an offer to sell or buy is made by a 
 letter forming part of a correspondence, in order to make an 
 enforceable contract “ there must be an unqualified acceptance 
 of the offer, and no term must be introduced. If a new term is 
 introduced, there is no contract” (w). 
 
 The whole correspondence must be looked at (o); but if once 
 a definite offer has been made, and it has been accepted without 
 qualification, and it appears that the letters of offer and accept- 
 ance contain all the terms agreed on between the parties, the 
 complete contract thus arrived at cannot be affected by subse- 
 quent negotiation (p). 
 
 Sometimes the letter of acceptance shows that the parties 
 contemplated the preparation of a formal contract. The ques- 
 tion then arises whether they are hound if no formal document 
 
 Signature 
 by agent. 
 
 When letters 
 constitute a 
 contract. 
 
 Whole corre- 
 spondence 
 must be 
 looked at. 
 
 When letters 
 do not 
 constitute 
 a contract. 
 
 (g) Saunderson v. Jackson 
 (1800), 2 B. & P. 238, and cases 
 there cited; Hubert v. Treherne 
 (1842), 3 M. & (t. 743. 
 
 (. h ) See Smith v. Webster 
 (1876), 3 Ch. D. 49, as explained 
 in John Griffiths Cycle Co. v. 
 Humber, (1899) 2 Q. B. 418. 
 
 (i) Rosenbaums . Belson, (1900) 
 2 Ch. 267. 
 
 ( k ) See further below, p. 59. 
 
 ( l ) Dewar v. Mintoft, (1912) 
 2 K. B. 373. 
 
 (m) See Dart, 7th ed. pp. 210, 
 211 . ' 
 
 ( n ) Lewis v. Brass (1877), 3 
 Q. B. D. 667, per Cotton, L. J., at 
 p. 672. 
 
 (o) Hussey v. Horne-Payne 
 (1879), 4 App. Cas. 311. 
 
 (p) See Bellamy v. Debenham, 
 (1891) 1 Ch. 412. 
 
88 
 
 BK. I., PT. I. SALES, EXCHANGES AND GIFTS. 
 
 Illustrations. 
 
 Memorandum 
 may be made 
 afterwards 
 and may deny 
 contract. 
 
 has been executed. The rule established by the cases is, that 
 where an offer is accepted without qualification, although the 
 acceptance may be accompanied by a statement indicating the 
 acceptor’s intention that the terms of the contract shall be em- 
 bodied in a more formal document, the addition will not pre- 
 vent the offer and acceptance from constituting a binding 
 contract; but if the acceptance is conditional upon the formal 
 contract being entered into, then the mere offer and acceptance 
 will not form a binding agreement (g). 
 
 Consequently if A. wTites to B. offering to sell Blackacre to 
 B. for a named price, and B. writes back accepting the offer 
 “ subject to the preparation and approval of 1 a formal contract,” 
 B. is not bound until the formal contract has been prepared 
 and approved by him (r). But if A. writes to B. offering to 
 buy his property for a named price and B. writes back, “I 
 accept your offer and have asked my solicitor to prepare a con- 
 tract,” B. is bound even though no formal contract is ever 
 approved (s). 
 
 Lastly, it may be mentioned that the memorandum may be 
 made or signed at any time after the contract is entered into, 
 provided it is made and signed before an action is brought 
 to enforce it (£), and that a letter in which one party repudiates 
 liability under the contract, but in which he sets out all its 
 terms, will be a sufficient memorandum (tt),. 
 
 What acts of Part Performance will take a case out of 
 
 the Statute. 
 
 The equitable 
 doctrine of 
 part perform- 
 ance. 
 
 Before the Judicature Acts if the Statute of Frauds was not 
 complied with, there was no remedy for breach of the contract 
 in a court of law, but courts of equity would decree specific 
 
 (g) See Eossiter v. Miller 
 (1878), 3 App. Cas. 1124; Hussey 
 v. Ilorne-Payne (1879), 4 App. 
 Cas. 811; Hatzfelt-Wildenburg 
 v. Alexander, (1912) 1 Ch. 284; 
 Rouse v. Ginsberg (1911), 55 S. J. 
 632. 
 
 (r) Winn v. Bull (1877), 7 
 
 Cli. D. 29. 
 
 (s) Bonnewell v. Jenkins 
 (1877), 8 Ch. D. 70; Eossiter v. 
 Miller (1878), 3 App. Cas. 1124. 
 
 (t) Ee Holland, (1902) 2 Ch. 
 360. 
 
 {tt) Dewar v. Mintoft, (1912) 2 
 K. B. 373. 
 
CONTRACTS FOR SALE GENERALLY. 
 
 39 
 
 performance of the contract when there had been performance 
 of any obligation which would have arisen had the contract 
 been enforceable (u). Since the Judicature Acts every division 
 of the High Court grants equitable relief, but the ^cts have 
 not altered the principles on which the right to relief is based, 
 and there is therefore still no right to obtain damages if the 
 Statute of Frauds is not complied with (x), except as an alter- 
 native to specific performance; but if there have been suffi- 
 cient acts of' part performance a judgment for specific per- 
 formance can be obtained (y ) . 
 
 In order that any specified act may amount to part perform- 
 ance of a verbal contract sufficient to take it out of the statute, 
 it must comply with the following conditions, viz.: — (1) The 
 act must be exclusively and unequivocally referable to the con- 
 tract alleged. If the act might have been done with any other 
 view than to perform the alleged contract, it will not take the 
 case out of the statute. For example, a tenant in possession 
 suing for the specific performance of an alleged contract for a 
 lease, cannot set up his possession as an act of part performance, 
 because his possession can be accounted for on other grounds 
 than the agreement, viz., his character as a tenant (z). So in 
 Maddison v. Alder son (a), where a master made a verbal pro- 
 mise to his housekeeper that, instead of paying her wages as 
 theretofore, he would leave her by his will a life estate in landed 
 property, it was held that the services rendered by the house- 
 keeper after the promise were not a sufficient part performance 
 of the contract to take the case out of the statute, since they 
 were not exclusively referable to the contract sued upon. 
 (2) The act must not be merely introductory or ancillary to 
 a contract . Consequently delivering an abstract of 1 title, giving 
 directions for conveyances, going to view the estate, making 
 
 ( u ) Lester v. Foxcroft (1701), 
 Colles, P. C. 108, and notes in 
 Wh. & Tud. L. C. Eq. 8th ed. 
 vol. ii. 464. 
 
 (cc) Lavery v. Fur sell (1888), 
 
 39 Ch. D. 508. 
 
 ( y ) See Britain v. Rossiter 
 
 (1879), 11 Q. B. D. 123; McManus 
 v. Cooke (1887), 35 Ch. D. 681. 
 
 (z) See Wills v. Stradling 
 (1797), 3 Ves. Jun. 378; but see 
 Miller v. Sharp, (1899) 1 Ch. 622. 
 ( a ) (1883), 8 App. Cas. 467. 
 
 Tests to apply 
 to ascertain 
 whether any 
 sufficient act 
 of part per- 
 formance : 
 
 (1) The act 
 must be 
 exclusively 
 referable to 
 agreement. 
 
 (2) It must 
 not be merely 
 introductory. 
 
40 
 
 BK. I.j PT. I. SALES, EXCHANGES AND GIFTS. 
 
 (3) Must be 
 such as would 
 render it a 
 fraud to rely 
 on the statute. 
 
 valuations, measuring the land, and other acts of a like pre- 
 liminary nature, are not sufficient part performance. (3) The 
 act must he such as to render it a fraud in the defendant to take 
 advantage of the statute, otherwise it is not a sufficient part 
 performance. So that payment of a part, or even of the whole, 
 of the purchase-money, will not take a case out of the statute, 
 because by repayment the parties may be restored to the 'original 
 position (b). 
 
 (6) Clinan v. Cooke (1802), 1 ject, reference should be made to 
 Sch. & Lef. at pp. 40, 41. For Fry on Specific Performance, 
 
 further information on the sub- Part III. Chap. xi. 
 
THE PARTICULARS OF SALE. 
 
 41 
 
 CHAPTER III. 
 
 THE PARTICULARS OF SALE. 
 
 Where a sale is by public auction, the terms of the contract 
 are to be found in the particulars and the conditions of sale. 
 
 The object of the particulars is to describe what it is pro- 
 posed to sell; that of the conditions is to state the terms on 
 which it is to be sold. 
 
 The particulars must describe the property correctly. But 
 allowance must be made for the natural desire of a vendor to 
 attract purchasers; he may puff his property to any extent, — - 
 simplex commendatio non obliged. For instance, a vendor may 
 assert that the property is worth any sum he chooses to name (a), 
 but there must be no misstatement of a fact, such as to describe 
 property as freehold when in fact it is copyhold or leasehold, 
 or to describe an underlease as a lease (b); though, on the 
 other hand, if A. contracts to buy from B., B.’s “ interest in a 
 lease,” A. cannot refuse to complete on the ground that it 
 turns out that B. has only an underlease (<?). Again, although 
 on a sale of a leasehold it is not necessary to set out the provi- 
 sions of the lease unless they are unusual, if they are mentioned 
 and there is any misrepresentation of them calculated to mislead 
 the purchaser lie will be entitled to rescind (d); but it is not a 
 misdescription to describe land as freehold when it is in fact 
 of burgage tenure, as this is a species of freehold (e). Where 
 
 ( а ) See Be Hurlbalt and Chaytor 
 (1888), 57 L. J. Ch. 421. 
 
 (б) Be Bey f us and Masters' 
 Contract (1888), 39 Ch. D. 110; 
 Broom v. Phillips (1896), 74 L. T. 
 459; and see Be Lloyds Bank and 
 Lillington, (1912) 1 Ch. 601. 
 
 (c) Waring v. Scotland (1888), 
 57 L. J. Ch. 1016. 
 
 ( d ) Weston v. Savage (1879), 
 10 Ch. D. 736; Jones v. Bimmer 
 (1880), 14 Ch. D. 588. 
 
 (e) Wadmore v. Toller (1889), 6 
 Times L. R. 58. 
 
 The parti- 
 culars and 
 conditions 
 of sale. 
 
 Their object. 
 
 The points to 
 be observed in 
 drawing up 
 particulars : 
 
 (a) Matters 
 of opinion ; 
 
 (b) Matters 
 of fact. 
 
42 
 
 BK. I., PT. I. SALES, EXCHANGES AND GIFTS. 
 
 (1) When 
 purchaser 
 entitled to 
 rescind ; 
 
 (a) On the 
 ground of 
 suggestio falsi. 
 
 Misrepresen- 
 tation must be 
 of material 
 fact. 
 
 Must have 
 misled the 
 other side. 
 
 there has been such a misstatement of fact it is no answer to the- 
 purchaser’s claim to rescind the contract that the purchaser had 
 the means of discovering, and might with reasonable diligence 
 have discovered, the truth (/) . 
 
 The kind of misrepresentation which has most frequently 
 been held to entitle the purchaser to rescission is that known 
 as a “ suggestio falsi” i.e ., a statement of fact as true which 
 really is not true. 
 
 If the false statement is made fraudulently it will always 
 enable the party deceived to rescind; and fraud is proved when- 
 ever it is shown that a false representation has been made know- 
 ingly, or without belief in its truth, or recklessly without caring 
 whether it be true or false (g). But in order to get the con- 
 tract rescinded it is not necessary to show fraud in this sense; 
 even an honest misstatement is sufficient to entitle the pur- 
 chaser to relief if the other essentials exist (Ji). 
 
 A misrepresentation, however, in order to justify the rescis- 
 sion of a contract, must be of some material fact. It must be 
 a representation dans locum contractui , i.e., as Sir John 
 Bomilly explained it, “ the assertion of a fact on which the 
 person entering into the contract relied, and in the absence of 
 which it is reasonable to infer that he would not have entered 
 into the contract” (i). An illustration of this is to be found 
 in the case of Brewer v. Brown (k). There the particulars 
 described the property as “ inclosed by a rustic wall, with trades- 
 man’s side entrance.” The wall did not form part of the pro- 
 perty, and the entrance was used on sufferance. In spite of a 
 condition that errors should not annul the sale, but be the 
 subject of compensation, it was held that it was not a case for 
 compensation, and the contract was rescinded. 
 
 Further, to obtain relief on the ground of misrepresentation, 
 the party must have been misled by the representation. If he 
 
 (/) Redgrave v. Hurd (1881), Hurd , supra ; Torrance v. Bolton 
 20 Oh. D. 1. (1872), L. R. 8 Oh. App. 118. 
 
 ( g ) Derry v. Peek (1889), 14 (i) Pulsford v. Richards (1853),. 
 
 App. Cas. 337. 17 Beav. at p. 96. 
 
 (h) Flight v. Booth (1834), 1 (A?) (1884), 28 Oh. D. 309. 
 
 Bing. N. C. 370; Redgrave v. 
 
THE PARTICULARS OF SALE. 
 
 45 
 
 knows it to be false, it should not influence his conduct, and he 
 has only himself to blame. 
 
 Lastly, he must apply with diligence before he has slept on 
 his rights or third parties have acquired rights under the con- 
 tract. He may, however, explain his delay. For instance, in 
 Tibbatts v. Boulter (l), a purchaser discovered that a repre- 
 sentation made to him by the vendor was untrue, but the latter 
 suggested that if time were given him the misrepresentation 
 might be cured; it was held that the purchaser did not, by 
 giving the vendor time, lose his right to rely on the misrepre- 
 sentation and determine the contract if at the end of the time 
 the vendor failed to make good his suggestion. It will 
 generally be too late if the contract has been completed by con- 
 veyance, and the purchaser’s remedy (if any) in that case is 
 limited to his action on the covenant for title. After com- 
 pletion ho can, as a rule, only get the conveyance set aside on 
 the ground of fraud (m) . 
 
 Misrepresentation may also consist in a “suppression veri 
 that is, the concealment or suppression of a fact which one 
 party is bound to disclose to the other. In the case of a con- 
 tract for the sale of land there is a duty on the part of the 
 vendor to disclose all material defects in his title to the pro- 
 perty, and perhaps also latent defects in the physical quality 
 of the land sold so far as they are known to him; so that the 
 mere concealment of such a defect will generally entitle the 
 purchaser to rescind (n), or to obtain compensation if the defect 
 is not so serious as to prevent him from obtaining substantially 
 what he agreed to buy (o) . For example, if there is an case- 
 
 in jured party 
 must be 
 prompt. 
 
 (b) On the 
 ground of 
 suppressio veri. 
 Vendor of 
 property 
 under duty 
 to disclose 
 latent defects ; 
 
 (Z) (1895), 73 L. T. 534. 
 
 ( m ) See Webster, Conditions of 
 Sale, Chap. xx. 3rd ed. 152; 
 Williams, Vendor and Purchaser, 
 731, 732; per Lord Campbell, 
 Wilde v. Gibson (1848), 1 II. L. C. 
 at pp. 632, 638; see also per 
 Byrne, J., Debenham v. Saw- 
 bridge (1901), 70 L. J. Ch. at p. 
 532; and Angel v. Jay, (1911) 1 
 K. B. 666. 
 
 ( n ) Flight v. Booth (1834), 1 
 Bing. N. C. 370; Edwards v. 
 VJickwar (1865), L. R. 1 Eq. 68; 
 Carlish v. Salt, (1906) 1 Ch. 335, 
 see especially at p. 341; see also 
 Fry, Specific Performance, 5tli 
 ed. § 705 et seq. But the autho- 
 rities are somewhat conflicting: 
 see an article in Sol. Jour. vol. 1. 
 611. 
 
 (o) Shepherd v. Croft, (1911) 
 1 Ch. 521. 
 
44 
 
 BK. I., PT. I. — SALES, EXCHANGES AND GIFTS. 
 
 but not 
 
 patent- 
 
 defects. 
 
 ment over the property which is not disclosed (p), or if, on a 
 sale of leaseholds, the purchaser is not informed of the presence 
 of unusual covenants in the lease, nor afforded an opportunity 
 to inspect the lease, he can rescind (g), even though he has 
 agreed to accept the vendor s title (r) . Where there is a 
 physical defect unknown to either party, the purchaser can only 
 avoid the contract if he will thereby be prevented from using 
 the land for the purpose for which it was sold to him. Thus, 
 in Re Puckett and Smith's Contract (s), a purchaser, who bought 
 the land, as the vendors knew, for building purposes, was held 
 entitled to rescind on discovering that there was a watercourse 
 running under the property of which neither he nor the vendors 
 were previously aware. It should he remembered that the 
 vendor’s duty to disclose only applies to latent defects. There 
 is no duty to disclose patent defects — i.e., those which might 
 be discovered by the exercise of reasonable care, e.g., the exist- 
 ence of a footpath over a field (t ) — nor burdens to which land 
 is usually subject, such as land tax, or tithe ront-chargc, nor the 
 incidents of tenure such as the inability of a copyhold tenant 
 to work mines or cut timber (?{.). To these the maxim “ caveat 
 emptor applies. 
 
 The result of the cases may perhaps be summarized as 
 follows : — 
 
 Summary of 
 cases in which 
 purchaser 
 entitled to 
 rescission. 
 
 A purchaser is entitled to rescind a contract for the sale of 
 land if — 
 
 (1) The vendor has made a false statement of fact with 
 reference to the property sold, whether fraudulently 
 or honestly believing it to be true, or has concealed 
 a fact which it was his duty to disclose; provided 
 that — 
 
 (p) Ashburner v. Sewell, (1891) 
 3 Ch. 405. 
 
 ( q ) Re White and Smith's Con- 
 tract, (1896) 1 Ch. 637; Molyncux 
 v. Ilawtrey, (1903) 2 K. B. 487. 
 
 (r) Re Ilaedicke and Lip ski' s 
 Contract, (1901) 2 Ch. 666. 
 
 (s) (1902) 2 Ch. 258. 
 
 (£) Bowles v. Round (1800), 5 
 Ves. 508; Turner v. Green, (1895) 
 2 Ch. at p. 208; Carlish v. Salt, 
 supra, at p. 340. 
 
 (■ u ) Dart, Vendors and Pur- 
 chasers, 7th ed. vol. i. 127, 319; 
 Williams, V. & P. vol. i. 141. 
 
THE PARTICULARS OF SALE. 
 
 (a) The fact was material; 
 
 (b) The purchaser was misled by the misstatement 
 
 or concealment; 
 
 (2) The false statement or concealment is so serious as not to 
 
 be susceptible of compensation; 
 
 (3) The purchaser’s election to rescind is made within a 
 
 reasonable time; and 
 
 (4) No third person has in the meantime acquired rights 
 
 under the contract. 
 
 However, there is a class of cases in which a misrepresenta- 
 tion does not entitle a purchaser to refuse to complete, but 
 only entitles him to compensation. These are cases where the 
 purchaser, though he does not get precisely what he expected, 
 substantially gets what he bargained for. The most usual class 
 of cases of this kind is that where there has been some mis- 
 
 (2) When 
 purchaser 
 entitled 
 to claim 
 compensa- 
 tion only. 
 
 description of the quantity or acreage of the land, but in which 
 the amount as stated does not grossly differ from the amount 
 as it actually exists (?/), but it is not confined to these (zj. 
 In such cases the purchaser must claim his compensation 
 before he takes his conveyance, for he is deemed to waive his 
 implied right to compensation by taking a conveyance without 
 demanding it ( a ), at any rate if the misdescription is on a 
 point as to which the purchaser could have discovered the truth 
 before conveyance ( b ) . Where, however, there is an express 
 stipulation for compensation, although the error is not dis- 
 covered till after completion, compensation may still be re- 
 covered (c). To meet such a case and prevent the purchaser 
 from claiming compensation for an error discovered after com- 
 pletion, the conditions of sale generally provide that compensa- 
 tion shall only be allowed for errors discovered before com- 
 pletion. 
 
 (y) See Re Fawcett and Holmes 
 (1889), 42 Ch. D. 150. Qualifying 
 words such as “ or thereabouts,” 
 “ more or less,” will only cover 
 very slight errors. 
 
 (z) See, for an example, Re 
 Brewer and Hankin' s Contract 
 (1889), 80 L. T. 127. 
 
 (а) Joliffe v. Baker (1883), 11 
 Q. B. D. 255. 
 
 (б) Clayton v. Leech (1889), 41 
 Ch. D. 103. 
 
 (c) Palmer v. Johnson (1884), 
 13 Q. B. D. 351; Re Turner and 
 Skelton (1879), 13 Ch. D. 130. 
 
46 
 
 BK. I., PT. I. SALES, EXCHANGES AND GIFTS. 
 
 Vendor has 
 no right to 
 compensation. 
 
 Purchaser 
 may always 
 take what 
 vendor has to 
 give instead 
 of rescinding. 
 
 Mode of 
 
 assessing 
 
 compensation. 
 
 Where the misdescription is to the prejudice of the vendor, 
 as where the acreage of the property turns out to be greater 
 than that stated in the contract, the vendor apparently has no 
 right under an open contract to compel the purchaser to pay 
 an increased price, though, if the error was serious and was 
 made innocently, the court would not order specific perform- 
 ance against the vendor, but would leave the purchaser to his 
 remedj^ in damages, unless he were willing to take what the 
 vendor really intended to sell (d ) . The conditions of sale 
 should therefore provide for payment of an increased price in 
 such a case. 
 
 It is now well established that a, purchaser of' land, even 
 though he may he entitled to rescind on the ground of material 
 misrepresentation, has the right to insist on the vendor con- 
 veying what he has, with an abatement of the pur chase -money 
 as compensation, if it can be fairly assessed, for the misdescrip- 
 tion. This applies whether the misdescription is as to the 
 quantity of the land or the nature of the vendor’s interest (e). 
 The purchaser, however, has no such right if it is impossible 
 to assess the compensation, as where the property is subject 
 to an undisclosed restrictive covenant (/), nor will he be granted 
 a decree for specific performance if it would entail great hard- 
 ship on the vendor, and the tendency of modern decisions is to 
 restrict the application of the rule (g ) . It has been said to 
 be confined to cases where the vendor knows the title and the 
 purchaser does not, and has no application where both parties 
 are equally cognizant of the title, and both make a bona fide 
 mistake (h). 
 
 The method of assessing the compensation must necessarily 
 depend on the circumstances. Sometimes it can be done by a 
 
 (ri) See Manser v. Bach (1848), 
 6 Hare, 443; and Williams, 'Vendor 
 and Purchaser, 44, 45, 724. 
 
 (e) Mortlock v. Butter (1804), 
 10 Vesey, 305; Castle v. Wilkinson 
 (1870), L. R. 5 Ch. App. 534; see 
 Dart, Vendors and Purchasers, 
 7th cd. 680; Webster, Conditions 
 of Sale, 3rd ed. 99. 
 
 (/) Rudd v. Lascelles, (1900) 1 
 Ch. 815. 
 
 ( g ) See per Jessel, M. R., Cato 
 v. Thompson (1882), 9 Q. B. D. 
 616; Hopcraft v. Hopcraft (1897), 
 76 L. T. 341; Rudd v. Lascelles, 
 supra . 
 
 ( [h ) Hopcraft v. Hopcraft, supra. 
 
THE PARTICULARS OF SALE. 
 
 47 
 
 simple rule of three sum, as in the case where there is a defi- 
 ciency in quantity; sometimes it can be done by an actuarial 
 calculation; and sometimes the court directs an enquiry (i). 
 
 The rules applicable to the particulars of sale apply also to 
 sketches, maps, and plans of 1 the estate. A purchaser who is 
 misled by an inaccuracy in them will be entitled to refuse to 
 complete (1c ) . 
 
 (i) Webster, Conditions of Sale, (k) See Baskcomb v. Beckwith 
 Chap, xviii. 3rd ed. 107 ; Aspi- (1869), L. R. 8 Eq. 100; Denny v. 
 
 nails to Powell (1889), 60 L. T. Hancock (1870), L. R. 6 Ch. App. 
 595. 1; Be Lindsay and F order's Con- 
 
 tract (1895), 12 L. T. 832. 
 
 Misleading 
 maps and 
 plans. 
 
48 
 
 BK. I., PT. I. — SALES, EXCHANGES AND GIFTS. 
 
 The two main 
 objects of 
 conditions 
 of sale : 
 
 (1) To save 
 expense ; 
 
 (2) Not to 
 damp the sale. 
 
 Rights and 
 obligations of 
 parties under 
 an open 
 contract. 
 
 Vendor must 
 make a good 
 title. 
 
 Vendor must 
 show a title 
 for forty 
 years. 
 
 37 & 38 Viet, 
 c. 78. 
 
 CHAPTER IV. 
 
 TIIE CONDITIONS OF SALE. 
 
 The purpose of the conditions of sale is to set out the terms 
 on which the property is to be sold. 
 
 In framing them two objects should be kept in view: (1) To 
 save the vendor from unnecessary expense, and throw the costs 
 of investigations which would fall on him, if not otherwise pro- 
 vided, upon the purchaser; (2) not to make the conditions so 
 stringent as to '‘damp the sale/’ and cause purchasers to offer 
 a less price than they otherwise would. 
 
 In order to attain these objects it is necessary to know what 
 are the rights and obligations of the parties to a contract for 
 the sale of land when the contract is an “ open contract,” or in 
 other words, in the absence of express stipulation. 'The most 
 important of these are: — 
 
 1. Under an open contract of 1 sale of land there is an im- 
 plied condition that the property is the vendor’s to sell, and 
 that lie will make a good title to it free from incumbrances ( a ) . 
 
 2. Subject as hereinafter mentioned, in any contract of sale 
 of land the vendor must show a title for forty years preceding 
 the date of the contract; but earlier title than forty, years 
 may be required in cases in which earlier title than sixty years 
 might have been required before the 7th August, 1874 ( b '). 
 
 The cases excepted are sales of: — 
 
 (1) Advowsons, on the sale of which the vendor must show 
 
 a title for 100 years; 
 
 (2) Tithes , or any other property held under a grant from 
 
 the crown, in which case the original grant from the 
 
 (a) See Fry, Specific Perform- Act, 1893, s. 12. 
 ancc, 5th ed. § 373. See as to the ( b ) Vendor and Purchaser Act, 
 
 sale of goods, the Sale of Goods 1874, s. 1. 
 
THE CONDITIONS OF SALE. 
 
 49 
 
 crown must be shown, together with the assign- 
 ments for forty years preceding the contract; 
 
 (3) Leaseholds , in which case the lease, even though more 
 
 than forty years old, must be produced with the 
 assignments for the forty years preceding the con- 
 tract (c ) ; or 
 
 (4) Reversionary Interests, when the deed or other instru- 
 
 ment creating the interest with the assignments for 
 the forty years preceding the contract must be 
 shown . 
 
 It is also not clear whether the statute applies 
 to the sale of incorporeal hereditaments, though 
 having regard to the definition of the word “ land 
 contained in the Interpretation Act, 1889, it 
 may be contended that it does (d); if it does not, 
 a purchaser of such property can still call for a 
 sixty years’ title. 
 
 3. The vendor must, at his own expense, deliver to the 
 purchaser an abstract of his title, and produce or use his best 
 endeavours to procure production of all deeds and documents 
 contained in it for inspection by the purchaser, and prove their 
 validity, and any other facts on which his title depends; and 
 must hand over to the purchaser on completion all the title 
 deeds and documents in his possession or control relating solely 
 to the property purchased (e) . 
 
 The inability of the vendor, however, to produce the 
 title deeds because they have been lost or mislaid does not 
 release the purchaser from his contract. He can be com- 
 pelled to complete if he is furnished in due time with 
 satisfactory evidence of their loss, of their contents, and 
 that they were duly executed (/) . 
 
 The three foregoing rules are subject to the provisions of 
 
 (c) Frend v. Buckley (1870), 
 L. E. 5 Q. B. 213; Williams v. 
 Spargo, (1893) W. N. 100. 
 
 (i d ) Conf. Jones v. Watts 
 (1890), 43 Oh. D. at pp. 585, 586. 
 G. — C. 
 
 (e) Williams, Vendor and Pur- 
 chaser, vol. i. 28. 
 
 (/) Re Halifax Commercial 
 Banking Co. and. Wood (1898), 
 79 L. T. 536. 
 
 E 
 
 Vendor must 
 deliver 
 abstract and 
 produce 
 deeds. 
 
50 
 
 BK. I., PT. I. SALES, EXCHANGES AND GIFTS. 
 
 On grant or 
 sale of leases 
 and under- 
 leases, rever- 
 sionary title 
 cannot be 
 called for. 
 
 Illustrations : 
 
 (1) Grant of a 
 lease ; 
 
 (2) Sale of a 
 lease ; 
 
 (3) Grant of 
 an under- 
 lease ; 
 
 the Vendor and Purchaser Act, 1874, and of the Convey- 
 ancing Acts, 1881 and 1882, stated below. 
 
 4. By the Vendor and Purchaser Act, 1874, s. 2, r. 1, under 
 a contract to grant or assign a term of years, whether derived 
 or to be derived out of a freehold or leasehold estate, the in- 
 tended lessee or assign is not entitled to call for the title to the 
 freehold . 
 
 By the Conveyancing” Act, 1881, s. 3 (1), under a contract to 
 sell and assign a term of years derived out of a leasehold in- 
 terest, the intended assign cannot call for the title to the lease- 
 hold reversion. 
 
 Bv the Conveyancing Act, 1881, s. 13, on a contract to grant 
 a lease, to be derived out of a leasehold interest with a leasehold 
 reversion, the intended lessee cannot call for the title to that 
 reversion. 
 
 The effect of these enactments will be seen from the 
 following illustrations : — 
 
 Suppose A., the tenant in fee simple of freehold land, 
 agrees under an open contract to lease the land to B. for 
 ninety-nine years. B. cannot, owing to the Vendor and 
 Purchaser Act, 1874, call for any title at all though he 
 takes subject to the defects of A.’s title ( g ). 
 
 Again, if B., in the case supposed, agrees to sell his 
 lease to C., C. is precluded from calling for A.’s title by 
 the Vendor and Purchaser Act, 1874; hut he can call for 
 the lease he is buying (A), and the assignments thereof 
 during the last forty years, though he could not call for or 
 take objection to any mesne assignment made after the 
 lease, but more than forty years ago ( i ). 
 
 Again, if C. agrees to grant an underlease to D., for 
 twenty-one years, D. can call for the production of the 
 lease originally granted to B. ( k ), and the assignment of 
 
 ( g ) The enactment does not pre- 
 vent the court from ordering dis- 
 i overy of the deeds in an action 
 lor specific performance: Jones 
 Watts (1890), 43 Ch. D. 574. 
 
 ( h ) Frend v. Buckley (1870), 
 L. R. 5 Q. B. 213. 
 
 (i) Williams v. Spar go, (1893) 
 W. N. 100; Gosling v. Woolf , 
 (1893) 1 Q. B. 39. 
 
 ( k ) Gosling v. Woolf, supra. 
 
THE CONDITIONS OF SALE. 
 
 51 
 
 it to C., but he cannot call for A.'s title to the freehold, 
 which is protected by the act of 1874 in this as in the pre- 
 ceding cases. 
 
 Again, if D. agrees to sell the underlease to E., E. can 
 only call for the production of the underlease made by C. 
 in favour of D.; he cannot call for the lease from A. to 
 B., and the assignment of it to C., for this is the lease- 
 hold reversion and protected by s. 3 of the Conveyancing 
 Act, 1881; nor can he call for A.'s title to the freehold. 
 
 Once more, if E. agrees to grant an underlease to E. for 
 ten years, F. can call for the underlease made by C. to 
 D., and the assignment of it to E., since, as shown above, 
 no provision has been made to take away this right from 
 F. (7); but he cannot call for the lease from A. to B., 
 or the assignment of it by B . to C . , for this is the leasehold 
 reversion within s. 13 of the Conveyancing Act, 1881. 
 
 5. By the Conveyancing Act, 1882, s. 4, where a lease is 
 made under a power contained in a settlement, will, act of 
 parliament or other instrument, any preliminary contract for or 
 relating to the lease shall not, for the purpose of the deduction 
 of title to an intended assign, form part of the title or evidence 
 of the title to the lease. 
 
 6. By the Conveyancing Act, 1881, s. 3 (2), where land of 
 copyhold or customaryhold tenure has been converted into free- 
 hold by enfranchisement, then under a contract to sell and con- 
 vey the freehold, the purchaser shall not have the right to call 
 for the title to make the enfranchisement. 
 
 Formerly the vendor had to show the freehold title of 
 the lord of the manor down to the enfranchisement, unless 
 the enfranchisement was effected under the Copyhold Act, 
 1852 (m). Under the present enactment the purchaser 
 cannot call for this, but he can call for the copyhold title 
 for a sufficient period to make up the forty years’ title 
 which he can demand under an open contract. 
 
 7. By the Vendor and Purchaser Act, 1874, s. 2, r. 2, 
 recitals, statements and descriptions of facts, matters and 
 
 (m) Kerr v. Pawson (1858), 25 
 Bcav. 394. 
 
 E 2 
 
 (4) Sale of an 
 underlease ; 
 
 (o) Grant of a 
 sub-sub- lease. 
 
 Contract for 
 lease not part 
 of title to 
 
 lease. 
 
 On sale of 
 enfranchised 
 copyholds 
 title of lord of 
 manor cannot 
 be called for. 
 
 Recitals 
 twenty years 
 old to be 
 deemed 
 correct. 
 
 ( l ) Gosling v. Woolf, supra. 
 
BK. I. ; PT. I. SALES, EXCHANGES AND GIFTS. 
 
 Prior title not 
 to be called 
 for, inquired 
 into or 
 objected to. 
 
 parties contained in deeds, instruments, acts of parliament, or 
 statutory declarations twenty years old at the date of the con- 
 tract must, unless and except so far as they are proved to be 
 inaccurate, be taken to be sufficient evidence of the truth of 
 such facts, matters, and descriptions. 
 
 In Bolton v. London School Board(n), Vice-Chancellor 
 Malins held as a result of this provision that a deed twenty 
 years old containing a recital that the grantor was seised 
 in fee simple was a good root of title, and that a forty 
 years’ title could not be required. It is generally con- 
 sidered that this decision was erroneous, but it has been 
 so often acted on by conveyancers that perhaps the Court 
 of Appeal may hesitate to overrule it(o). 
 
 8. By the Conveyancing Act, 1881, s. 3 (3), a purchaser of 
 any property shall not require the production or any abstract 
 or copy of any deed, will, or other document dated or made 
 before the time prescribed by law or stipulated for commence- 
 ment of the title, even though the same creates a power subse- 
 quently exercised by an instrument abstracted in the abstract; 
 nor shall he require any information, or make any requisition, 
 objection, or inquiry with respect to any such deed, &c . , or the 
 title prior to that time, notwithstanding that any such deed, 
 &c., or that prior title is recited, covenanted to be produced or 
 noticed; and he must assume, unless the contrary appears, that 
 the recitals contained in the abstracted instruments of any deed, 
 &c. forming part, of that prior title are correct and give all 
 the material contents of the deed, etc. so recited, and that 
 every document so recited was duly executed by all necessary 
 parties, and perfected if and as required by line, recovery, 
 acknowledgment, inrolment or otherwise. 
 
 This provision will not prevent a purchaser from resist- 
 ing specific performance of the contract on the ground of a 
 defect in the title discovered aliunde, but it will prevent 
 him from recovering his deposit ( p ). 
 
 (?i) (1878), 7 Ch. D. 766. cision in Re Wallis and Grout's 
 
 (o) Swinfen Eady, J., however, Contract , (1906) 2 Ch. at p. 210. 
 
 expressed liis dissent from the de- (p) Rc National Provincial 
 
THE CONDITIONS OF SALE. 
 
 53 
 
 9. By tho Conveyancing Act, 1881, s. 3 (4), where land 
 sold is held by lease (not including underlease) the purchaser 
 must assume, unless the contrary appears, that the lease was 
 duly granted; and on production of the receipt for the last 
 payment due for rent before completion, he must assume, unless 
 the contrary appears, that all the covenants and provisions of 
 tho lease have been duly performed and observed up to com- 
 pletion. 
 
 Validity of 
 lease or 
 underlease to 
 be assumed. 
 
 And by sub-s. (5), where land sold is held by underlease, 
 the purchaser must assume, unless the contrary appears, that 
 the underlease and every superior lease were duly granted; and 
 on production of the receipt for the last payment due for rent 
 under the underlease, lie must assume, unless the contrary 
 appears, that all covenants in the underlease, and the rent and 
 covenants of every superior lease have been paid and duly per- 
 formed and observed up to completion. 
 
 These sub-sections, however, do not apply when the 
 rent reserved is a peppercorn (g), and tiro receipt produced 
 must be the receipt for the last rent due under the lease, 
 which is the subject of the sale. So that on the sale of an 
 underlease the purchaser is not bound to be satisfied with 
 the receipt for the last rent due under the superior lease (r). 
 It should he observed also that the sub-sections only make 
 the receipt evidence “ unless the contrary appears”; if, 
 therefore, the contrary does appear, the cost of performing 
 the broken covenant must be borne by the vendor (s) . 
 
 10. By the Conveyancing Act, 1881, s. 3 (6), on a sale of any Expenses of 
 property the expenses of the production and inspection of all deed^noHn 0 
 acts of parliament, inclosure awards, records, proceeding’s of ven< ? 01, ’ s P os - 
 
 . 1 . . session to be 
 
 courts, court rolls, deeds, wills, probates, letters of administra- paid by pur- 
 tion and other documents not in the vendor's possession, and the chaser ' 
 expenses of all journeys incidental to such production or inspec- 
 
 Banh and Marsh , (1895) 1 Ch. 
 190; Re Scott and Alvarez's Con- 
 tract, (1895) 2 Oh. 603. 
 
 ( q ) Re Moody and Yates' Con- 
 tract (1885), 30 Ch. D. 344. 
 
 (r) See Re Higgins and Per- 
 
 cival (1888), 57 L. J. Oh. 807. 
 
 (s) Re Highett and Bird's Con- 
 tract, (1903) 1 Ch. 287; Re Taun- 
 ton, &c. Building Society and 
 Roberts' Contract, (1912) 2 Ch. 
 381. 
 
54 
 
 Inability of 
 vendor to fur- 
 nish covenant 
 to produce no 
 objection. 
 
 BK. I., PT. I. — SALES, EXCHANGES AND GIFTS. 
 
 tion; and the expenses of' searching for, procuring, making, 
 verifying, and producing all certificates, declarations, evidences 
 and information not in the Vendor’s possession; and all attested, 
 stamped, office or other copies, or abstracts of, or extracts from 
 any documents aforesaid shall be borne by the purchaser who 
 requires the same; and when the vendor retains possession of 
 any document, the expenses of making any copy thereof attested 
 or unattested, which a purchaser requires to be delivered to him, 
 shall be borne by that purchaser. 
 
 The provisions of this section throw on the purchaser 
 every expense connected with the production of deeds and 
 documents not in the vendor’s possession, although, as the 
 case of Re Willett and Ar genii (t) shows, it may be his 
 own fault that he has not got them, as, for instance, when 
 they are in the hands of his mortgagee; and in Re Stuart 
 and- Olivant and Seadons C\ontraot(u) it was held to throw 
 on the jmrchaser even the expense of finding out where 
 the deeds are when they are not in the vendor’s possession. 
 On the other hand, it does not relieve the vendor from the 
 obligation of furnishing a complete abstract of title, or 
 of handing over the deeds to the purchaser on completion; 
 and it was decided in the case of' Re Johnson and 
 Tustin ( x ) that, notwithstanding its provisions, the vendor 
 must pay any expense attending the jjroduction of the 
 deeds to enable him to prepare the abstract; and in Re 
 Duthy and Jessons Contract {y) that he must obtain the 
 deeds at his own expense in order to enable him to hand 
 them over to his purchaser on completion. 
 
 11. By the Vendor and Purchaser Act, 1874, s. 2, r. 3, the 
 inability of the vendor to furnish the purchaser with a legal 
 covenant to produce and furnish copies of documents of title 
 
 (t) (1889), 60 L. T. 735. See 
 also Re Moody and Yates, 30 
 Oh. Div. 344, where the lease of a 
 house was the subject of sale, and 
 it contained a covenant by the 
 lessee to complete the house to the 
 satisfaction of the lessor’s sur- 
 veyor, and it was held that the 
 
 vendor must produce the sur- 
 veyor’s certificate at his own ex- 
 pense, such certificate not being 
 an evidence of title, but part of 
 the title itself. 
 
 O) (1896) 2 Ch. 328. 
 
 (sc) (1885), 30 Ch. D. 42. 
 
 (y) (1898) 1 Ch. 419. 
 
THE CONDITIONS OF SALE. 
 
 shall not 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. It seems that every person who 
 has an interest in the land has an equitable right to production 
 of all deeds which affirmatively prove his title (z ) . 
 
 12. By the Vendor and Purchaser Act, 1874, s. 2, r. 4, such 
 covenants for production as the purchaser can and shall require 
 shall be furnished at his own expense, and the vendor shall 
 bear the expense of perusal and execution on behalf of and by 
 himself, and on behalf of and by necessary parties other than 
 the purchaser. 
 
 13. By the Vendor and Purchaser Act, 1874, s. 2, r. 5, 
 where the vendor retains any part of an estate to which any 
 documents of title relate, he shall be entitled to retain such 
 documents. 
 
 The word “estate’ in this section means an estate in 
 the land sold; so that, unless the vendor retains some part 
 of the land to which the deeds relate, the section does not 
 apply, and he cannot retain the deeds, even though he 
 retain other property included in them (a ) . 
 
 14. By the Conveyancing Act, 1881, s. 3 (7), on a sale of 
 any property in lots, a purchaser of two or more lots held 
 wliollv or partly under the same title shall not have a right to 
 more than one abstract of the common title, except at his own 
 expense. 
 
 15. By the Conveyancing Act, 1881, s. 55, a receipt for 
 consideration money or other consideration in the body of a 
 deed, or indorsed thereon, shall, in favour of a subsequent pur- 
 chaser not having notice that the money or other consideration 
 thereby acknowledged to be received was not in fact paid or 
 given wholly or in part, be sufficient evidence of the payment 
 or giving of the whole amount thereof. But this only applies 
 to deeds executed after the 31st December, 1881. 
 
 ( 2 ) Dart’s Vendor and Pur- (1897) 2 Oh. 144; see also Re 
 
 chaser, 7th ed. 483 et seq. Lehmann and Walker's Contract , 
 
 ( a ) Re Williams and the (1906) 2 Ch. 640. 
 
 Duchess of Newcastle' s Contract , 
 
 Expenses of 
 covenant to 
 produce to be 
 borne by 
 purchaser. 
 
 Right of 
 vendor to 
 retain title 
 deeds. 
 
 One abstract 
 sufficient in 
 case of 
 
 common title. 
 
 Receipt in 
 deed or 
 indorsed 
 evidence of 
 payment of 
 consideration. 
 
BIv. I., PT. I. — SALES, EXCHANGES AND GIFTS. 
 
 There must, to protect the purchaser under this section, 
 he words acknowledging the receipt of the money; a state- 
 ment that it has been expended is not sufficient (&). 
 Before the act the absence of an indorsed receipt would 
 have fixed a purchaser with notice that the consideration 
 had not been paid, so that this receipt must still be looked 
 for in deeds dated before 1882. 
 
 Vendor must 
 get in out- 
 standing’ 
 estate, and 
 prove identity 
 of property, 
 and testator’s 
 seisin. 
 
 lfi. The vendor must bear the expense of getting in any 
 outstanding legal estate, and must make good the want of 
 registration of any deed requiring registration, and he must 
 prove the identity of the land sold with that described in the 
 deeds abstracted (c), and where the abstract of title commences 
 with a general devise in a will, the vendor must prove that the 
 testator was seised in possession of the land at the date of his 
 death, no matter how many years ago the testator died. 
 
 Inconveni- A ii open contract is attended by the inconvenience that there 
 
 contract. 1 will be no time fixed for the delivery of the abstract, or for 
 sending in requisitions on title, or for the completion of the 
 purchase; there will be no arrangement as to taking posses- 
 sion, as to payment of interest on the purchase-money, or as 
 to rescission of the contract or compensation for mistakes in the 
 description of the property. 
 
 The conditions of sale are therefore so framed as to obviate 
 the inconveniences above referred to, and to relieve the vendor 
 wholly or partially from his obligations. 
 
 Common form 
 conditions 
 of sale. 
 
 We will, now shortly consider the clauses which are most 
 commonly to be found in conditions of sale. They are: — 
 
 I. GENERAL CONDITIONS. 
 
 As to Biddings. 
 
 The highest bidder shall be the purchaser; and if 
 any dispute arise as to any bidding, the property shall 
 
 ( b ) Benner v. Tolley (1893), 68 
 L. T. 815. 
 
 (c) Flower v. Ilartopp (1843), 
 6 Beav. 476; Curling v. Austin 
 
 (1862), 2 Dr. & 8m. 129; Wil- 
 liams, Vendor and Purchaser, 
 vol. i. 28, 36. 
 
THE CONDITIONS OF SALE. 
 
 be put up again at the last undisputed bidding. The 
 amount of the advance at each bidding shall be regu- 
 lated by the auctioneer, and no bidding shall be 
 retracted. The sale will be subject to a reserved 
 price, and to a right for the vendor or his agent to bid 
 as often as he may please. 
 
 The stipulation as to retracting biddings in this clause is 
 probably not binding on the purchaser. The purchaser’s bid 
 is an offer, which, like any other, may be withdrawn at any 
 time before acceptance, and until the fall of the auctioneer’s 
 hammer there is no acceptance on the part of the vendor (d ) . 
 The condition is, however, commonly found, and can do no 
 harm . 
 
 The latter part of the condition is rendered necessary by the 
 Sale of Land by Auction Act, 1867, which provides that the 
 particulars or conditions of sale by auction of any land shall 
 state whether such land will be sold without reserve or subject 
 to a reserved price, or whether a right to bid is reserved; and 
 if it is stated that such land will be sold without reserve, or 
 to that effect, then it shall not be lawful for the seller to 
 employ any person to bid at such sale, or for the auctioneer 
 to take knowingly any bidding from any such person (e). 
 Where the sale is declared, in the particulars or conditions 
 of sale, to be subject to a right for the seller to bid, the seller, 
 or any one person on his behalf , may bid at the auction (/) . 
 The act does not say that unless the right to bid is reserved 
 the vendor shall not bid or employ a puffer; but the case of 
 Gilliat v. Gilliat ( g ) shows that if he wishes to do so, the 
 vendor must state that the right to bid is reserved; it is not 
 sufficient to state that the sale is subject to a reserve price. 
 Apparently the vendor may only employ one puffer (/&). 
 
 Similar but better drawn provisions relating to the sale of 
 goods are contained in the Sale of Goods Act, 1893, s. 58. 
 
 {d) See Payne v. Cave (1789), 3 (g) (1869), L. K. 9 Eq. 60. 
 
 T. E. 148. (h) Parfitt v. J epson (1877), 46 
 
 (<?) s. 5. L. J. N. S. 0. P. 522. 
 
 (/) s. 6. 
 
 As to retract- 
 ing- biddings. 
 
 As to vendor’s 
 right to bid. 
 30 & 31 Viet, 
 c. 48. 
 
 Construction 
 of the act. 
 
 56 & 57 Viet, 
 c. 71. 
 
58 
 
 Deposit held 
 by auctioneer 
 as stake- 
 holder. 
 
 Payment of 
 deposit by 
 cheque. 
 
 Object of 
 requiring 
 a deposit. 
 
 BK. I., PT. I. SALES, EXCHANGES AND GIFTS. 
 
 As to Deposit. 
 
 The purchaser shall immediately after the sale pay 
 to the auctioneer (or to the vendor’s solicitors) a de- 
 posit of £ per cent, on the amount of the pur- 
 chase-money, and sign an agreement in a form 
 subjoined to the conditions to complete the purchase 
 according to these conditions. 
 
 When it is provided that the deposit shall be paid to the 
 auctioneer, the latter holds it as stakeholder, and must not pay 
 it over to either party without the consent of the other; even 
 though he signs the conditions of sale as the vendor’s agent (i) . 
 Where, however, it is paid to the vendor’s solicitor, as is some- 
 times the case, the latter is not a stakeholder, unless made 
 one by the conditions of sale, but agent for the vendor, and 
 must pay it over to the latter on demand, and the purchaser 
 has no claim against the solicitor so paying it(jfc). 
 
 An auctioneer may accept a cheque for the deposit if he 
 pleases (l), though not a bill (m) or IOU (n); but he is not 
 hound to accept a cheque, and may insist on cash being 
 paid (o). 
 
 The object of requiring a deposit is not only to secure a part 
 payment of the purchase-money, but to bind the purchaser to 
 complete. Accordingly, should he fail to complete within a 
 reasonable time, he forfeits the deposit, even in the absence of 
 express stipulation to that effect (p); but it is usual and advis- 
 able to state expressly that he shall forfeit it if he fails to com- 
 ply with the conditions (q ) . The purchaser cannot, however, 
 entitle himself to refuse to complete by electing to forfeit the 
 deposit; the vendor can force him to perform the contract 
 
 (i) Furtado v. Lumley (1890), 
 54 J. P. 407; see also Ellis v. 
 Goulton, (1893) 1 Q. B. 350. 
 
 (k) Edgell v. Day (1865), L. R. 
 1 C. P. 80; Ellis v. Goulton , 
 (1893) 1 Q. B. 350. 
 
 (Z) Farrcr v. Lacey, Hartland & 
 Co. (1883), 25 Oh. D. 636; 31 
 Ch. D. 42; Johnston v. Boyes, 
 (1899) 2 Oh. 73. 
 
 (m) Williams v. Evans (1866) r 
 L. R. 1 Q. B. 352. 
 
 ( n ) Hodgens v. Keen, (1894) 2 
 Ir.,L. R. 157. 
 
 (o) Johnston v. Boyes , supra. 
 
 (p) Hoive v. Smith (1884), 27 
 Ch. D. 89; Ilallw. Burnell, (1911) 
 2 Ch. 551. 
 
 (■ q ) See the last condition,, 
 below, p. 75. 
 
THE CONDITIONS OF SALE. 
 
 59 
 
 notwithstanding. Nor if the purchaser is unable to provide 
 the purchase-money at the date fixed for completion, and the 
 vendor consequently rescinds the contract, can the purchaser 
 recover the deposit because it is subsequently discovered that 
 the vendor had no title to the land contracted to be sold (r) . 
 
 If a sale goes off owing to the vendor not being able to make Return of 
 a good title, the deposit will have to be returned to the pur- <ltposlt - 
 chaser, and in the absence of stipulation when a deposit is 
 returnable, interest on it must be paid (s). 
 
 If the purchaser makes default in completing, and the vendor Deposit to be 
 resells, the deposit must be taken into account in connection account on 
 with any deficiency in price there may be (£). resale. 
 
 For the purpose of signing the memorandum of the contract Signature of 
 so as to satisfy the Statute of Frauds, the auctioneer is the 
 agent of the purchaser, and his signature of the highest bidder's 
 name will bind the latter if made at the time of the sale; and 
 it seems that his authority cannot be revoked after the fall of 
 the hammer (u ) ; but it ceases when he leaves the sale-room (x) . 
 
 Neither the vendor’s solicitor (y) nor the auctioneer’s clerk can 
 sign for the purchaser, unless specially authorized (x ) ; but this 
 authority would be implied from the fact that the purchaser 
 directed or allowed the auctioneer’s clerk to fill up the memo- 
 randum annexed to the conditions of sale (z ) . It is scarcely 
 necessary to say that it is advisable to have the purchaser’s own 
 signature if possible . 
 
 (r) Soper v. Arnold (1887), 37 
 Ch. D. 96; affirmed by H. L. 
 (1889), 14 App. Cas. 429. 
 
 (s) Per Cotton, L. J., Soper v. 
 Arnold (1887), 37 Ch. D. at p. 
 100; Hodges v. Earl of Lichfield 
 (1835), 1 Bing. N. C. 492; Re 
 Hargreaves and Thompson' s Con- 
 tract (1886), 32 Ch. D. 454; Jacobs 
 v. Revell, (1900) 2 Ch. 858; see 
 also Re Huchlesby and Atkinson's 
 Contract (1910), 102 L. T. 214. 
 
 {t) Shuttleworth v. Cleius, 
 
 (1910) 1 Ch. 176. 
 
 (u) Per Stirling, J., Bell v. 
 Balls, (1897) 1 Ch. at p. 672; see 
 also p. 667. 
 
 (x) Bell v. Balls , (1897) 1 Ch. 
 663. 
 
 (y) Smith v. Webster (1876), 3 
 
 Ch. D. 49. 
 
 (z) Sims v. Landray, (1894) 2 
 
 Ch. 318. 
 
60 
 
 BK. I., PT. I. SALES, EXCHANGES AND GIFTS. 
 
 As to Commencement of Title. 
 
 Conditions 
 as to title. 
 
 Y oluntary 
 
 settlements, 
 
 wills. 
 
 General 
 
 devise. 
 
 Conditions 
 must not 
 attempt to 
 hide defects 
 in title. 
 
 The title shall commence with an indenture dated 
 the day of 1 , and made between 
 
 and , being a conveyance on sale (or a mortgage 
 or a voluntary settlement, or as the case may be). 
 
 It is common to restrict the length of title to a shorter period 
 than that required by law. Sometimes, Avhen the title is one 
 which is well known in the neighbourhood, it is provided that 
 the purchaser shall not require any further evidence of title than 
 the conveyance to the vendor. Occasionally it is provided that 
 the purchaser shall accept such title as the vendor has; and 
 though this cannot be recommended, it is perfectly legal, so 
 long as it is stated that the title is defective, or a reasonable 
 opportunity of discovering the fact is afforded, and a purchaser 
 buying under such a condition cannot complain if he gets a 
 defective title (a ) . 
 
 If it is intended to show less than forty years’ title the condi- 
 tion must be fair and explicit, so that where a voluntary settle- 
 ment is made the root of title, the nature of the instrument 
 must be clearly shown, so as to give notice that the title may 
 not have been investigated; otherwise the purchaser will be 
 entitled to rescind on the ground of misrepresentation (b ) . 
 And the position is the same where a will is made the root of 
 title. But if the settlement was executed, or the testator died, 
 at least forty years ago, the nature of the instrument need not 
 he stated, unless, in the case of a will, the devise of the pro- 
 perty was general and not specific, in which case the fact should 
 be stated, and the purchaser precluded from calling for evidence 
 of the testator’s seisin of the land now contracted to be sold (c). 
 
 If the Vendor has a defective title he must not attempt to 
 hide it by a condition restricting the title so as to make it 
 commence with some instrument subsequent to the defect. If, 
 for instance, the production of a document dated anterior to 
 the stipulated time would show that the vendor, while pro- 
 fessing to sell the fee, had only a life estate, or that the pro- 
 
 (a) Frame v. Wright 1819), 4 ville (1883), 24 Oh. D. 11. 
 
 Madd. 364. (c) See Williams, Vendor and 
 
 (&) Re Marsh aiid Earl Gran- Purchaser, 2nd ed. p. 109. 
 
THE CONDITIONS OF SALE. 
 
 61 
 
 perty was subject to a mortgage, or to an easement or restrictive 
 covenant, the purchaser would be justified in declining to com- 
 plete should he discover the defect; and even the provision of 
 the Conveyancing Act, 1881 (d), that no objection shall be made 
 to the prior title, or an express stipulation to the same effect, 
 does not imeelude the purchaser from objecting and resisting 
 specific performance if he obtains a knowledge of it, though, 
 in such a case, he cannot obtain a return of his deposit (e). If 
 the title is bad, the nature of the defect must be stated in the 
 conditions, and a provision inserted that the purchaser shall 
 make no objection on account of it. Any attempt to. mislead 
 the purchaser is futile. For example, in Edwards v. Wick- 
 war (/) the conditions provided that no objection should be 
 made in respect of a certain underlease, which was named, or 
 in respect “ of any other underlease prior to ” a certain date. 
 It turned out that there was another underlease known to the 
 vendor, and it was held that he ought to have disclosed it, and 
 that the condition did not relieve him from the necessity of so 
 doing, and of getting it surrendered. It may be added that 
 if the conditions expressly provide that a good title shall be 
 shown, and the title is defective, the fact that the purchaser 
 knew of the defect when he entered into the contract will not 
 prevent him from rescinding it and recovering his deposit if 
 the def ect is not removed (g ) . 
 
 As to Identity. 
 
 The purchaser shall not require any other evidence 
 of the identity of the property as described in the par- 
 ticulars with the property described in the abstracted 
 documents than that afforded by a comparison of the 
 descriptions in the particulars and documents respec- 
 tively, and a statutory declaration by the vendor or 
 some other person, which will be furnished to him if 
 
 (d) s. 3 (3), ante, p. 52. Contract, (1895) 2 Ch. 603. 
 
 (e) Smith v. Robinson (1879), (/) (1865), L. R. 1 Eq. 68. 
 
 13 Ch. D. 148; Re National Pro- ( g ) Re Gloag and Miller (1883), 
 
 vincial Bank and Marsh, (1895) 1 23 Ch. D. 320; Cato v. Thompson 
 
 Ch. 190; Re Scott and Alvarez's (1882), 9 Q. B. D. 616. 
 
62 
 
 BK. I., PT. I. SALES, EXCHANGES AND GIFTS. 
 
 Ccmutruction 
 of condition 
 as to identity. 
 
 Obligation to 
 disclose ease- 
 ments and 
 leases. 
 
 he requires it, at his own expense, that the property 
 has been held consistently with the title shown by 
 the abstract during the last twelve years. 
 
 In the absence of stipulation to the contrary, the vendor 
 is bound to furnish evidence of identity. In Flower v. 
 Hartopp (h), where there was a condition that no further evi- 
 dence of the identity of the parcels should be required than 
 what was afforded by the deeds, and the descriptions in the 
 deeds differed among themselves and from the description in 
 the particulars of sale, it was held that the purchaser was en- 
 titled to have some proof of the identity aliimde. In Curling 
 v. Austin (i), it was held that such a condition amounted to 
 a contract that the deeds should show identity, and that if 
 they did not, a good title was not made out. These decisions 
 seem to be met by the provision in the condition for giving 
 the purchaser a statutory declaration, i.e ., a declaration made 
 under the Statutory Declarations Act, 1835 (lc). 
 
 In practice, the declaration should, where possible, be made 
 by an independent person, but the condition generally provides 
 for the declaration being made by the vendor or some other 
 person, otherwise the purchaser would not be bound to accept 
 the vendor’s declaration (7). 
 
 As to Tenancies and Easements. 
 
 The property is sold subject to all tenancies, land 
 tax and tithe rent-charge, and rights of way, water 
 and other easements (if any) affecting the same. 
 
 This condition does not relieve the vendor from the obligation 
 of disclosing any easements or restrictive covenants or other 
 outstanding interest or burden derogating from the absolute 
 ownership of which he is aware, nor of disclosing particulars 
 of any lease of the property (m). 
 
 Land tax and tithe rent-charge are not regarded as incum- 
 
 ( h ) (1843), 6 Bcav. 476. (1) Hobson v. Bell (1839), 2 
 
 (i) (1862), 2 D. & S. 129. Beav. 17. 
 
 ( h ) See also s. 31 of the Inter- (m) Caballero v. Ilenty (1874), 
 pretation Act, 1889. L. R. 9 Ch. App. 447. 
 
THE CONDITIONS OF SALE. 
 
 63 
 
 brances, so that the purchaser takes subject to them although 
 nothing is said about them (w). 
 
 Under this condition a purchaser is deemed to have notice 
 of a compensation claim under the Agricultural Holdings Act, 
 1908 (o). 
 
 As to Compensation for Misdescription. 
 
 The description of the property in the particulars is 
 believed and shall be deemed to be correct, and no 
 objection shall be made, or compensation claimed, on 
 account of any error in quantity, should such be 
 found. If any other error or omission in the par- 
 ticulars shall be discovered the same shall not annul 
 the sale; but, provided the same be pointed out before 
 completion, compensation shall be allowed in respect 
 thereof to or by the purchaser as the case may require, 
 the amount to be settled in case of difference by two 
 referees, one to be appointed by each party, or by an 
 umpire to be appointed by the two referees before 
 they proceed in the reference. 
 
 This condition is often found in a wider form as follows: — 
 “ The description of the property in the particulars is believed 
 and shall be taken to be correct; and if any error, misstatement 
 or omission shall be found therein, the same shall not annul the 
 sale, nor shall any compensation be allowed to the vendor or 
 purchaser in respect thereof.” 
 
 We have already seen that, even in the absence of any stipu- 
 lation, a purchaser can be compelled to take the property with 
 an abatement in the purchase-money when there is a mis- 
 description which is only slight and unintentional (p ) . On 
 the other hand, there are cases where, notwithstanding a con- 
 dition even in the shorter and wider form given above, the 
 purchaser is entitled to refuse to complete; for the condition 
 does not enable the vendor to force the purchaser to take even 
 
 (n) See ante, p. 44. Ferguson v. Derby, (1912) 1 Ch. 
 
 ( o ) Re Lord Derby's Contract, 479. 
 
 ( p ) Ante, p. 45. 
 
 Effect of 
 condition. 
 
64 
 
 BK. I., PT. I. SALES, EXCHANGES AND GIFTS. 
 
 % 
 
 Duly applies 
 to physical 
 property. 
 
 Errors dis- 
 covered after 
 completion. 
 
 Sale by 
 trustees and 
 mortgagees. 
 
 with compensation a thing substantially different from that 
 which he contracted to buy (g). 
 
 Further, the condition is construed as having reference to a 
 misdescription of the physical property, not to a misdescrip- 
 tion of the title such as the description of an underlease as a 
 lease (r ) . For does it apply to defects of title ( s ) . In fact, 
 the condition is not so formidable as it looks; for it does not 
 preclude a purchaser who is resisting specific performance from 
 claiming compensation or rescinding the contract in cases where 
 he would be entitled to> do so under an open contract; and it 
 is only effective to deprive a purchaser of any right to compen- 
 sation when he is insisting on specific performance with com- 
 pensation: lie is then bound by the condition (/). 
 
 The stipulation that the condition shall only relate to errors 
 discovered before completion is made to meet the decision in 
 Palmer v. Johnson (m), where it was held that, when the con- 
 tract provides that compensation shall be made for errors, the 
 fact that the purchaser does not discover the error till after the 
 conveyance is executed does not prevent him from taking ad- 
 vantage of the condition (pc ) . 
 
 Trustees and mortgagees are allowed to sell subject to a 
 condition as to errors, as such a condition is not considered to 
 be depreciatory (y), though the condition cannot be enforced 
 to the injury of the beneficial owner in a case where the 
 misdescription arose from negligence (z ) . 
 
 (q) Whittemore v. Whittemore 
 (1869), L. E. 8 Eq. 603; Jacobs 
 v. Revell, (1900) 2 Ch. 858. This 
 case shows that the purchaser can 
 also recover his deposit. 
 
 (r) Re Beyfus and Masters 
 (1888), 39 Ch. D. 110. 
 
 (s) Debenham v. Sawbridge 
 (1901), 70 L. J. Ch. 525. 
 
 ( t ) See Cordingley v. Gliees- 
 borough (1862), 4 D. E. & J. 379; 
 and Re Terry and White's Con- 
 tract (1886), 32 Ch. D. 14, per 
 Esher, M. E., at p. 24; and per 
 Lindley, L. J., at p. 30. 
 
 (u) (1884), 13 Q. B. D. 351. 
 (x) Compare Clayton v. Leech 
 (1889), 41 Ch. D. 103, ante, p.45; 
 and see Debenham v. Sawbridge, 
 supra, where the purchaser was 
 refused compensation after con- 
 veyance under the condition on 
 the ground that it did not apply 
 to a defect in the title. 
 
 (?/) See Dunn v. Flood (1885 , 
 28 Ch. D. 586, and Hobson v. Bell 
 (1839), 2 Beav. 17. 
 
 (z) White v. Cudden (1842), 8 
 Cl. & Fin. 766, 787. 
 
THE CONDITIONS OF SALE. 
 
 (>o 
 
 As to Unstamped Documents. 
 
 If any document executed before the 17th day of 
 May, 1888, shall be found to be unstamped or in- 
 sufficiently stamped, no objection or requisition shall 
 be made on that account; and any document which 
 the purchaser requires to be stamped or further 
 stamped shall be so stamped at his expense [but the 
 vendor is not aware of any such document]. 
 
 By the Stamp Act, 1891, s. 117, it is provided that every Expenses of 
 condition framed with the view of precluding objections to title 
 on the ground of absence or insufficiency of stamps on any documents, 
 instrument executed after the 16th May, 1888, and every con- 
 tract, arrangement, or understanding for assuming the liability' 
 on account of the absence or insufficiency of stamps on any such 
 instrument, or indemnifying against such liability, absence, or 
 insufficiency, shall be void. The condition, however, is valid if 
 it be limited to documents executed before the 17th May, 
 
 1888; but as the Inland Revenue authorities refuse, except upon 
 payment of the penalty, to stamp a contract under hand only, 
 after signature, if it contains this condition it should be signed 
 across an adhesive 6d. stamp. 
 
 If the lands sold are in Yorkshire or Middlesex, the condi- 
 tion should be extended to meet the case of any deed or docu- 
 ment not being registered, and in the case of leaseholds it 
 should cover documents not registered with the lessor’s soli- 
 citors as required by the lease. 
 
 As to Time for making Requisitions and Rescission. 
 
 All objections and requisitions in respect of the 
 title, or evidence of title, or the abstract, or the 
 particulars, or these conditions, or anything appear- 
 ing therein, shall be stated in writing and sent to the 
 vendor’s solicitors within days from the delivery 
 of the abstract. Any objection or requisition not 
 stated and not sent within the time aforesaid shall be 
 considered waived, and the vendor’s answer to an ob- 
 jection or requisition shall be considered satisfactory 
 
 G. — C. 
 
 F 
 
BK. I., PT. I. — SALES, EXCHANGES AND GIFTS. 
 
 6*G 
 
 if not replied to in writing within days from the 
 receipt thereof, and in these respects time shall he 
 deemed of the essence of the contract. If the pur- 
 chaser shall make any objection or requisition in 
 respect of any of the matters aforesaid (6), or as to 
 the conveyance, which the vendor shall he unable or 
 unwilling 1 to remove or comply with, and shall not 
 withdraw the same within seven days after being 
 required so to do in writing, the vendor shall be at 
 liberty (notwithstanding any intermediate negotia- 
 tion or litigation on the subject of such objection 
 or requisition, or attempts to remove or comply with 
 the same), by notice in writing, to rescind the sale; 
 in which case the purchaser shall receive back the 
 deposit and shall return to the vendor the abstract 
 of title and any other papers in his possession be- 
 longing to the vendor; hut he shall have no claim 
 for interest, or costs, or otherwise. 
 
 As to Requisitions. 
 
 The words “ delivery of the abstract ” in the condition above 
 mentioned mean the delivery of a perfect abstract — that is to 
 say, an abstract which sets out truly and sufficiently every 
 document which forms a link in the vendor’s title, and states 
 every fact material thereto. Unless such an abstract is fur- 
 nished to the purchaser, there will be no “ delivery of an 
 abstract ” at all for the purpose of estimating the time within 
 which the requisitions are to be sent in (c). For instance, the 
 abstract will be imperfect if it sets out a marriage settlement, 
 but omits the covenant to settle after-acquired property which 
 alone affects the subject of the sale ((2). But the abstract is 
 not imperfect merely because it shows that the vendor’s title 
 is defective. If the vendor does not deliver a perfect abstract 
 
 (5) See hereon Re Leng and Oakden v. Pike (1865), 11 Jur. 
 White (1886), 32 Cli. D. at p. 34. N. S. 666. 
 
 (c) See Blackloiv v. Laws ( d ) Burnaby v. Equitable, &c. 
 (1842), 2 Hare, 40; see also Society (1885), 54 L. J. Ch. 466. 
 
 What 
 amounts to 
 delivery of 
 the abstract. 
 
THE CONDITIONS OF SALE. 
 
 67 
 
 time 
 
 within the time stipulated in the conditions (if any), the pur- 
 chaser will not be bound to send in his requisitions within the 
 time named (e). It is sometimes the practice to guard against 
 this by stipulating that the time shall be computed from the 
 delivery of the abstract, whether it be perfect or not; but such 
 a condition is not to be recommended, as it may deter an astute 
 purchaser. 
 
 In Compton v. Bctgley (/ ! ) no time was fixed for the delivery Right of 
 of the abstract, and it was held that the purchaser could give ^hen^ iioti 
 a reasonable notice (in that case, a fourteen days’ notice was for 
 
 delivery of 
 
 held sufficient) to the vendor to deliver it, and, if he failed to abstract, 
 do so, the purchaser could rescind and obtain a return of' his 
 deposit and the payment of 1 his expenses. 
 
 It is probably not necessary to add that time shall be of the Time the 
 essence of the contract to the condition that requisitions and contract^ ^ 
 objections not made within a specified time are to be taken to 
 be waived (<jr), but it is commonly done. Notwithstanding 
 such a condition the omission to send in requisitions or objec- 
 tions within the stipulated time does not preclude the purchaser 
 from subsequently objecting that the vendor has no title at all, 
 for the condition does not apply to the case of the vendor being 
 unable to make a title, but only where he discloses a defective 
 title, the defects in which might be made good if objection 
 were taken (h) . 
 
 As to Rescission of the Contract. 
 
 The provision authorizing the vendor to rescind the contract Condition 
 does not enable a vendor to get out of his contract whenever he doef t not *f\ ve 
 
 ° vendor arbi- 
 
 does not wish to complete, any more than the forfeiture of trary right 
 the deposit entitles the purchaser to refuse to complete. ITe torescmd ' 
 must not rescind capriciously. He is prima facie bound to do 
 his best to make out a good title, and to do all he can to satisfy 
 objections reasonably raised by the purchaser ; and, having done 
 his best, he must leave it to the purchaser to say whether he will 
 
 (e) TJ'p'perton v. Nicholson Jur. N. S. 666. 
 
 (1871), L. R. 6 Ch. App. 436. (h) Want v. Stallibrass (1873). 
 
 (/) (1892) 1 Ch. 313. L. R. 8 Ex. 175. 
 
 (g) Oakden v. Pike (1865), 13 
 
 F 2 
 
BK. I., PT. I. SALES, EXCHANGES AND GIFTS. 
 
 accept such title a's he can give him (i). The condition can only 
 he taken advantage of' by the vendor when the purchaser insists 
 on some requisition or objection which the vendor has expressed 
 his unwillingness to comply with, if there is reasonable ground 
 for his unwillingness — as, for instance, that to comply would 
 put him to some expense that could not reasonably have been 
 foreseen (7c). Consequently it does not enable him to rescind 
 the contract and escape an action for damages in a case where 
 he has no title a,t all (7), nor where he can only show a title 
 to part of the property sold(m); nor does it enable him to 
 rescind in order to avoid the expense of obtaining the concur- 
 rence of some incumbrancer whose concurrence is necessary to 
 make a clear title (w); but he may take advantage of it in order 
 to avoid the expense of getting in a bare legal estate (o). Nor 
 will the condition allow the vendor to “play fast and loose’’ 
 with the purchaser: if he means to take advantage of it, he must 
 do so definitely and in good faith; and if he fails to say de- 
 finitely whether he intends to exercise his power of rescission 
 after waiting a reasonable time, the purchaser may either say 
 it is too late to rescind, or if he prefers may treat the contract 
 as rescinded, a,nd recover his deposit (p). In the absence of 
 the clause set out in the condition in brackets the vendor will 
 lose his right to rescind if, subsequently to giving notice of 
 rescission, he enters into a correspondence with a view to 
 answering the objection (q). “ Litigation ” in the clause means 
 
 (i) Turpin v. Chambers (1861), 
 29 Beav. 104; Re Jackson and 
 Oakshott (1880), 14 Ch. D. 851; 
 and see Re Monckton and Gilzean 
 (1884), 27 Ch. D. 555; Quinionv. 
 Horne , (1906) 1 Ch. 596. 
 
 ( k ) Hardman v. Child (1885), 
 28 Ch. D. 712; compare Re Dames 
 and Wood (1885), 29 Ch. D. 623; 
 and Re Stirr-Bowkctt Bui' ding 
 Society and Sibun's Contract 
 (1889), 42 Ch. D. 375; Re Jack- 
 son and Haden's Contract , (1906) 
 1 Ch. 412. 
 
 (Z) Bowman v. Hyland (1878), 
 
 8 Ch. D. 588; Re Jackson and 
 Haden's Contract, supra. 
 
 (m) Re Jackson and Haden, 
 (1906) 1 Ch. 412. 
 
 (n) Greaves v. Wilson (1858), 
 25 Beav. 290; and see Re Jackson 
 and Oakshott (1880), 14 Ch. D. 
 851. 
 
 (o) Re Deighton and Harris's 
 Contract, (1898) 1 Ch. 458. 
 
 (p) Smith v. Wallace, (1895) 1 
 Ch. 385; Re Weston and Thomas's 
 Contract, (1907) 1 Ch. 244. 
 
 ( q ) Tanner v. Smith (1840), 10 
 Sim. 410. 
 
THE CONDITIONS OF SALE. 
 
 H9 
 
 litigation pending at the time of the rescission; it is too late 
 to rescind after an adverse judgment (r). But the mere 
 commencement of proceedings will not destroy the right to 
 rescind (s) ; though if it is exercised after litigation has been 
 commenced, the court may order the vendor to pay costs (t). 
 
 When a purchaser has given the vendor a right to rescind Purchaser 
 under the condition, and he has taken advantage of the right, withdraw 
 it is too late for the purchaser to withdraw the objection or requisition 
 
 1 # J alter rescis- 
 
 requisition which led to the rescission by the vendor (u) . Aon. 
 
 As to Completion of the Purchase. 
 
 The remainder of the purchase-money shall be paid, 
 and the purchase shall be completed on the day 
 
 of next, at the office of (the vendor’s 
 
 solicitors); and if, from any cause whatever, other 
 than the wilful default of the vendor, the purchase 
 shall not be completed on that day, the purchaser 
 shall pay to the vendor interest, after the rate of £ 
 per cent, per annum, on the remainder of the pur- 
 chase-money from that day until the completion of 
 the purchase. The purchaser shall be entitled to the 
 possession of the property from the said day of 
 next, all outgoings up to that day being dis- 
 charged by the vendor. Current rent and outgoings 
 (if any) shall be apportioned for the purposes of this 
 condition, and any money payable by or to the pur- 
 chaser on such apportionment shall he paid with or 
 deducted from the purchase-money at the time of 
 completion. 
 
 As to Payment of Balance of Purchase-Money and Interest. 
 
 If no time is fixed for completion the purchase must be com- Time for 
 pleted as soon as the vendor has shown a good title, and he must com i ,letlou * 
 
 (r) Re Arbib and Class's Con- (f) Re Spindler and Hears 
 
 tract, (1891) 1 Ch. 601. Contract, (1901) 1 Oh. 908. 
 
 (0 Isaacs v. Tow ell, (1898) 2 (u) Duddell v. Simpson (1866), 
 
 Ch. 285. L. R. 2 Ch. App. 102. 
 
BK. I. ? PT. I. SALES, EXCHANGES AND GIFTS. 
 
 do so within a reasonable time after the date of the contract (x) t 
 otherwise he will not be able to enforce specific performance. 
 
 Interest on 
 
 purchase- 
 
 money. 
 
 Although the contract does not provide for payment of in- 
 terest, the purchaser is bound by law to pay interest on the pur- 
 chase-money if the sale is not completed when it ought to have 
 been (y) f less property-tax thereon (0), but he can relieve him- 
 self from the necessity of doing so by providing himself with 
 the money and giving the vendor notice that it is lying idle — 
 that is, of course, if the delay is not his fault (a). When, 
 however, the contract provides for payment of interest he cannot 
 avoid the liability by giving notice to the vendor that he is 
 ready to complete, even though the delay is caused by the state 
 of the title (&). But no interest is payable if the delay is due 
 to the wilful default of the vendor, even though the contract 
 makes no exception in that case (c) . 
 
 Meaning’ 
 of term 
 “ wilful 
 default. ’ ’ 
 
 As to the meaning of “ wilful default,” Bowen, L. J., said, 
 in Re Young and Harstons Contract (d), that “default is a 
 purely relative term, just like negligence. It means nothing 
 more, nothing less, than not doing what is reasonable under 
 the circumstances — not doing something which you ought to 
 do, having regard to the relations which you occupy towards 
 the other persons interested in the transaction. The other 
 word . . . . ‘ wilful . . . . implies nothing blameable, but 
 merely that the other person of whose action or default the 
 
 (sc) Sanson v. Rhodes (1840), 6 
 Bing. NT. C. 261; and see Bellamy 
 v. Debenham, (1891) 1 Oh. 412. 
 
 (y) Re Pigott and the G. W. 
 Rail. Co. (1881), 18 Oh. D. 146; 
 Spencer Bell to L. & S. W. Rail. 
 Co. (1885), 33 W. R. 771; Re 
 Keeble and Stillwell's Fletton 
 Brick Co. (1898), 78 L. T. 383; 
 Dart, Vendors and Purchasers, 7th 
 ed. vol. i. 650 et seq. 
 
 (z) Bebb v. Bunny (1854), 1 
 K. & J. 216. 
 
 (а) Regent's Canal Co. v. Ware 
 (1857), 23 Beav. 575. 
 
 (б) Re Riley to Streatfield 
 (1886), 34 Ch. D. 386; dissenting 
 from Re Gold and Norton's Con- 
 tract (1885), 52 L. T. 321. 
 
 (c) See North y. Percival, (1898) 
 2 Oh. 128; Re Wood and Lewis' 
 Contract, (1898) 1 Oh. 433, at p. 
 436. 
 
 (d) (1885), 31 Ch. D. at p. -<74; 
 see also Re Bayley-W orthington 
 and Cohen's Contract, (1909) 1 Ch. 
 648. 
 
THE CONDITIONS OF SALE. 
 
 71 
 
 expression is used is a free agent, and that what has been done 
 arises from the spontaneous action of his will. It amounts to 
 nothing more than this, that he knows what he is doing, and 
 intends to do what he is doing, and is a free agent. This ex- 
 planation has often been cited with approval since. It is wilful 
 default for the vendor to go abroad for a holiday and thus 
 delay completion (e); or not to be in a position to vest the 
 legal estate in the purchaser except through a power of attorney 
 which he knows or ought to know is insufficient for the pur- 
 pose (/); or to neglect to put himself in a position to complete 
 until after the time fixed for completion (g) ; or to refuse to 
 deliver an abstract of title although owing to a misinterpreta- 
 tion of the conditions of sale he may think the purchaser is not 
 entitled to one (Ji ) ; and possibly it is wilful default for the 
 vendor to insist on a form of conveyance to which he is not 
 entitled (i) . But it is not wilful default for him to make an 
 honest (though careless) misstatement of the title in the con- 
 ditions of sale (k ) ; nor to omit to discover and remove a 
 defect in the title which could only be detected by extreme 
 vigilance (Z). 
 
 Where no time is fixed for completion, if the purchaser is in 
 possession of the property at the date of the contract, lie is 
 liable to pay interest from that date. If he is not then in pos- 
 session, interest is payable from the time when he took 
 possession (m), or could prudently have taken it, e.g'., from 
 the time when a good title is shown (n) . In an action for 
 
 (e) Re Young and Hurston's 
 
 Contract (1885), 31 Ok. D. 168. 
 
 (/) Re Hetling and Merton's 
 
 Contract, (1893) 3 Oh. 269. 
 
 (</) Re Wilson and. Steven's 
 
 Contract, (1894) 3 Ch. 546. 
 
 ( h ) Re Felly and Jacob's Con- 
 tract (1899), 80 L. T. 45. 
 
 (i) Bennett v. Stone, (1903) 1 
 
 Ch. 509, per Vaughan Williams 
 and Stirling, L. JJ. ; contra, 
 
 Cozens-Hardy, L. J., and Buck- 
 ley, J. 
 
 ( k ) Re Mayor of London and 
 Tubb's Contract, (1894) 2 Ch. 524. 
 
 (Z) Re Woods and Lewis's Con- 
 tract, (1898) 2 Ch. 211. 
 
 (m) Ballard v. Shutt (1880), 15 
 
 Oh. D. 122. 
 
 (n) Spencer Bell v. L. & S. W . 
 Rail. Co. (1885), 33 W. E. 771; 
 Re Keeble and Stillwell's Fletton 
 Brick Co. (1898), 78 L. T. 383. 
 
 When no 
 time fixed for 
 completion. 
 
72 
 
 BK. I., PT. I. SALES, EXCHANGES AND GIFTS. 
 
 Rate of 
 interest. 
 
 specific performance, interest runs from the date of the 
 master’s certificate (o). 
 
 The rate of interest is 41. per cent, per annum if no other rate 
 is fixed, and it is submitted that it is unfair on a purchaser 
 to reserve a higher rate than this, as delay in completion 
 often arises from causes over which the purchaser has no 
 control, such as the state of the title, slowness on the part of 
 the vendor’s solicitor, &c. 
 
 As to Possession. 
 
 Purchaser 
 may take pos- 
 session from 
 time fixed for 
 completion. 
 
 Consequences 
 of taking 
 possession. 
 
 In the absence of stipulation, the purchaser is entitled to 
 possession and to the rents and profits of the property from the 
 time fixed for completion (pj. 
 
 But he should be careful how he takes advantage of this 
 right. It is true he will not be liable to pay anything for use 
 and occupation of the premises should the sale fall through by 
 reason of the title turning out defective (g); but to take pos- 
 session may amount to a waiver of objections to the title (r). 
 It does not, however, do so if it appears from the terms of the 
 contract that it was the intention of the parties that the pur- 
 chaser should be entitled to go into possession before a good 
 title was shown (s). 
 
 When the conditions of sale are silent as to the purchaser 
 taking possession before completion, and he does so. with 
 knowledge of defects in the title, the taking possession consti- 
 tutes a waiver of all defects which are irremovable, but not of 
 others ( t ). 
 
 Vendor to make Assurances. 
 
 Upon payment of the remainder of the purchase- 
 money at the time and place aforesaid, the vendor 
 and all other necessary parties (if any) shall execute 
 
 (o) Hallett v. Earl Dudley, 
 (1907) 1 Ch. 590. 
 
 ( p ) Fry, Specific Performance, 
 5tli cd. § 1403. 
 
 ( q ) W interbottom v. Ingham 
 (1845), 7 Q. B. 611. 
 
 (r) See, for example, Fleetwood 
 
 v. Green (1809), 15 Ves. 594. 
 
 (s) See Stevens v. Guppy (1826), 
 3 Buss. 171; Fleetwood v. Green 
 (1809), 15 Ves. 594. 
 
 (t) Be Gloag and Miller (1883), 
 23 Ok. 320. 
 
THE CONDITIONS OF SALE. 
 
 73 
 
 to the purchaser a proper assurance of the property, 
 such assurance to be prepared by and at the expense 
 of the purchaser, and the engrossment thereof to be 
 left by him at the office aforesaid not less than seven 
 days before the day of 
 
 This condition will not throw on the purchaser the expense Cost of 
 of obtaining the concurrence of necessary parties (u). In a 
 case (x), however, in which the corresponding clause to this of parties, 
 provided that “ the vendor and all other necessary parties 
 (if any) shall make and execute to the purchaser a proper 
 assurance of the premises, such assurance and every other assur- 
 ance, act, or thing required by the purchaser for perfecting 
 or completing the vendor's title or otherwise, to be prepared, 
 obtained, made, and done by and at the expense of the pur- 
 chaser,” it was held that the latter was liable to pay the cost 
 of obtaining the concurrence of incumbrancers in the convey- 
 ance, even though the property was sold free from incum- 
 brances. If, therefore, the concurrence of any such parties 
 is necessary, the wider form of condition should be used. 
 
 As a purchase of land is entitled to a conveyance by re- 
 ference to a plan, even though no plan was referred to in 
 the particulars or conditions of sale (y), if it is desired to 
 negative this right the condition must so provide. 
 
 As to Increment Value Duty. 
 
 Completion shall not be delayed on account of the 
 non-payment of increment value duty (if any), but 
 the vendor shall before the date fixed for comple- 
 tion produce the conveyance, and all such other docu- 
 ments and information as the Commissioners of 
 Inland Revenue may require, to enable them to ascer- 
 tain whether any duty is j>ayable, and to assess the 
 duty (if any), and, if required, furnish security for 
 the payment of the duty, and on completion shall 
 hand over the conveyance with a stamps thereon in 
 
 ( u ) Re Sander and Watford's ( y ) Re Sansom and Narbcth's 
 
 Contract (19C0), 83 L. T. 316. Contract , (1910) 1 Oh. 741 ; Re 
 
 ( x ) Re Willett and Argenti Sparrow and James, (1910) 2 
 
 (1889), 60 L. T. 735. Ch. 60. 
 
74 
 
 When 
 increment 
 value duty 
 is payable. 
 
 10 Ed. 7, c. 8 
 
 1 Geo. 5, c. 2 
 
 2 & 3 Geo. 5, 
 c. 8. 
 
 BK. I., PT. I. SALES, EXCHANGES AND GIFTS. 
 
 accordance with s. 4 (3) of the Finance ^1909-10) 
 Act, 1910. And after completion the purchaser shall, 
 if required, produce to the Commissioners, free of 
 cost, any documents which may be handed over to 
 him. 
 
 This condition is inserted to prevent the purchaser from 
 repudiating the contract or refusing to pay interest on his 
 purchase-money Owing to delay in completion caused by any 
 difficulties which may arise in connection with the payment of 
 increment value dutyty). This is a duty of 20 per cent., 
 imposed by the Finance (1909-10) Act, 1910, in respect of 
 any increase of site value occurring after the 30th April, 1909. 
 There are three occasions on which it is levied: — (1) On a 
 transfer on sale of land or any interest in it, or the granting 
 of a lease for more than fourteen years; (2) on the death of 
 any person on whose death estate duty has to be paid on the 
 fee simple, or any interest in the land; (3) periodically by 
 bodies corporate or unincorporate which are exempt from death 
 duties (a). The ayt, as amended by the Revenue Act, 1911, 
 ss. 1 — 7, and the Finance Act, 1912, s. 10, contains elaborate 
 provisions for fixing the original site value, and the site value 
 on the occasion on which the duty is collected, and for the 
 collection and recovery of' the duty. The duty is not a charge 
 on the land except where it is payable on death (b), and, 
 perhaps, also where it is payable periodically by bodies cor- 
 porate or unincorporafe (c), and it must be paid by the trans- 
 feror or lessor, notwithstanding any agreement to the con- 
 trary (d). It is the duty of the transferor or lessor to produce 
 to the Commissioners the instrument by means of which the 
 transfer or the lease is effected or agreed to be effected (ei) . 
 The purchaser or lessee, however, should on completion see that 
 the instrument is duly stamped with one of the stamps men- 
 tioned in s. 4 (3) of the act, since otherwise it is not admissible 
 in evidence. The stamps arc — (1) a stamp denoting that the 
 
 ( z ) See Prideaux, Precedents, 
 20tli ed. vol. i. pp. cv, 217. 
 
 ( а ) Finance (1909-10) Act, 
 1910, s. 1. 
 
 (б) lb. s. 5. 
 
 (c) lb. s. 6. 
 
 (d) lb. s. 4 (1); Revenue Act, 
 1911, s. 1. 
 
 (e) Finance (1909-10) Act, 
 1910, s. 4 (2). 
 
THE CONDITIONS OF SALE. 
 
 75 
 
 duty has been assessed and paid; (2) a stamp denoting that all 
 necessary particulars have been delivered to enable the duty to 
 be assessed, and that security has been given, if 1 required, for 
 payment of the duty; (3) a stamp denoting that no increment 
 value duty is payable. The second is the one usually impressed 
 in practice, and security is not, as a rule, required. The pur- 
 chaser or lessee must also remember that it is to his interest 
 that the duty should be assessed as high as possible, since in 
 assessing the amount of the increment value duty payable on 
 a subsequent sale or lease by him or on his death, the amount 
 already paid will be taken into account. 
 
 Power for Vendor to Re-sell on Purchaser’s Default. 
 
 If the purchaser shall neglect or fail to comply with 
 these conditions, his deposit shall be forfeited to tire 
 vendor, who shall be at liberty (without tendering 
 a conveyance to the purchaser) to re-sell the property 
 either by public auction or private contract, with or 
 without notice to the purchaser at the present sale, 
 and the deficiency, if any, arising on the re-sale, and 
 all expenses attending a re-sale or attempted re-sale, 
 shall be recoverable by the vendor from the purchaser 
 at this present sale as liquidated damages. 
 
 Even in the absence of stipulation, if the contract is not ^ e ^ or s 
 completed owing to the purchaser’s default, the deposit is for- default by 
 feited (/), but it appears to be doubtful whether the vendor of P urchaser - 
 land has the right to re-sell and recover any deficiency ( g ) . It 
 is only the deficiency which the vendor is entitled to recover, 
 so that in an action under this condition credit must be given 
 for the deposit (h). It seems doubtful whether a tender of a 
 conveyance is necessary before exercising' the right to re-sell; 
 so it is better to state in the condition that it is unnecessary. 
 
 This condition, though invariably used on sales by auction, 
 is seldom inserted in contracts for sale by private treaty. 
 
 (/) Howe v. Smith (1884), 27 As to the sale of goods, see the 
 Ch. D. 89; Hallv. Burnell, (1911) Sale of Goods Act, 1893, s. 48. 
 
 2 Ch. 551. ( 'll ) Howe v. Smith (1884), 27 
 
 ( g ) See Williams, Vendor and Ch. D. at p. 104; Shuttlewortli v. 
 Purchaser, vol. i. 42, and Webster, Clews, (1910) 1 Ch. 176. 
 
 Conditions of Sale, 3rd ed. 419. 
 
76 
 
 BK. I., PT. T. — SALES , EXCHANGES AND GIFTS. 
 
 Special 
 
 conditions. 
 
 As to titles 
 registered 
 under the 
 Land Transfer 
 Acts. 
 
 As to inclosed 
 land. 
 
 As to land 
 exchanged. 
 
 The above conditions are applicable to almost all sales of 
 land. In addition, the particular circumstances of the title 
 may render it necessary to make special provisions. The more 
 likely instances of this are the following: — 
 
 II. SPECIAL CONDITIONS. 
 
 When the subject of the sale is land the title to which has 
 been registered under the Land Transfer Acts, an owner may 
 be registered with an absolute, a qualified, a good leasehold, 
 or a possessory title. In the case of an absolute or good lease- 
 hold title, it will seldom be necessary to make any special con- 
 ditions; but, as registration with a qualified or a possessory 
 title does not guarantee the title, it may often be necessary to 
 make special provision restricting the purchaser’s rights to have 
 tho title proved — such as that he shall assume that at the date 
 of registration no estate, right, or interest adverse to or in 
 derogation of the vendor’s title was subsisting or capable of 
 arising. 
 
 In the case of lands inclosed or allotted by an award made 
 under the Inclosure Act, 1845, or by any general Inclosure 
 Act, the purchaser, in the absence of stipulation, is entitled to 
 have shown to him the title to the original estates in respect of 
 or in exchange for which they were allotted, as such allotted 
 lands become liable to the uses of the estate in respect of which 
 they were allotted. The purchaser is also entitled to be satis- 
 fied as to the regularity and validity of the award. The vendor 
 should provide against this by a proper condition. 
 
 When property was the subject of a common law exchange 
 before 1845, the vendor had to show the title to the land given 
 in exchange as well as to that taken; but if an exchange has 
 been effected under the Inclosure Act, 1845, s. 147, the title to 
 the land given in exchange is transferred to that taken; so that 
 if the exchange took place less than forty years ago, it will be 
 necessary to show so much of the title to the land given in 
 exchange as is necessary to make up the forty years’ title re- 
 quired by law. A condition may be advisable again here to 
 restrict the purchaser’s rights. 
 
THE CONDITIONS OF SALE. 
 
 77 
 
 In case the title to the property offered for sale is derived As to laud 
 
 1 1 . held under 
 
 from a grant from the crown, which has been lost or cannot g ra nt from 
 be produced, the purchaser’s right to call for the grant should the crown - 
 be negatived. 
 
 In the case of leasehold property, it has been shown (k), Astolease- 
 that the lease which is being sold must be produced with the 
 mesne assignments for the forty years previous to the date of 
 tho sale; and as the provisions of the Vendor and Purchaser 
 Act, 1874, and the Conveyancing Act, 1881, do not pre- 
 vent objections being made to the validity of the lease on 
 grounds appearing on the face of it or discovered aliunde, the 
 vendor should, when he cannot produce the lease, stipulate for 
 its non-production and debar the purchaser from making any 
 objection or requisition as to the lessor’s or the previous title, 
 and require him to assume that the lease was duly granted. 
 
 And when mesne assignments made during the period over 
 which the abstract extends are not produced, he should be 
 further required to assume that such assignments operated to 
 vest in the vendor a good title for the residue of the term. 
 
 Again, if the original lease required a licence to be obtained 
 previously to assigning, it will be advisable, on a sale by an 
 assignee, to require it to be taken for granted that such licence 
 was duly obtained; for the acceptance of rent by the lessor 
 where no licence had been obtained would only amount to a 
 waiver if he had notice of the assignment. Again, if the sub- 
 ject of the sale is a lease which has been renewed, the pur- 
 chaser’s right to call for the surrendered lease ought to be 
 negatived. Having reg-ard to the provisions of the Convey- 
 ancing Act, 1881, s. 3, sub-ss. 4 and 5 (7), it is unnecessary 
 to require the purchaser to assume that the rent has been paid 
 and the covenants and conditions of the lease have been per- 
 formed, unless the rent be a peppercorn or other nominal 
 rent ( m ). Some conveyancers, however, do not think these pro- 
 visions stringent enough, and still use the old common form 
 condition, which makes the last receipt for rent conclusive 
 
 (m) Re Moody and Yates' Con- 
 tract (1885), 30 Ck. D. 314. 
 
 (&) Ante, p. 49. 
 ( l ) Ante, p. 53. 
 
78 
 
 BK. T., PT. I. SALES, EXCHANGES AND GIFTS. 
 
 When the 
 root of title 
 is a devise. 
 
 evidence that the rent has been paid and the covenants and con- 
 ditions performed (n). 
 
 If the title commences with a general devise in a will, the 
 purchaser should he required to assume that the testator was 
 seised in fee at the date of his death, and be precluded from 
 requiring any other evidence of the fact than a statutory 
 declaration, to be furnished at his expense (o). 
 
 When deed 
 has been 
 executed 
 under a 
 power. 
 
 If any deed has been executed under a power of attorney 
 which does not come within ss. 8 or 9 of the Conveyancing Act, 
 1882, and consequently is not irrevocable, a condition should be 
 inserted requiring the purchaser to assume that the donor of the 
 power was alive at the date of the execution of the deed, and 
 had not revoked the power (p). 
 
 Where there 
 is no receipt 
 indorsed on 
 a deed. 
 
 If in any deed dated before 1882 there is no receipt for the 
 purchase-money indorsed and signed by the proper parties, it 
 should be provided that no objection is to be made on that 
 ground, though it may be doubted whether any objection on 
 the score of the absence of an indorsed receipt could be usefully 
 taken after the lapse of time. As to deeds executed after 1881, 
 if there is no such receipt as is specified in s. 55 of the Con- 
 veyancing Act, 1881 (q), even though there may be a statement 
 that the conveyance was made in consideration of £ paid 
 
 by A. to B., a condition should be inserted precluding the 
 purchaser from calling for evidence that the money passed (r). 
 In the absence of a proper receipt, unless a condition has been 
 inserted negativing the purchaser’s right to call for evidence 
 that the money was duly paid, the vendor will have to bear the 
 expense of procuring evidence of the fact. 
 
 When the 
 legal estate is 
 outstanding. 
 
 When there is outstanding a bare legal estate, e.g., where the 
 legal estate is in some trustee whose active duties as such have 
 ended, or in a mortgagee who has been paid off, but who has 
 not executed a reconveyance — if in subsequent dealings with 
 the property the fact that the legal estate is outstanding has 
 
 
 (n) See for an example of the (o) Ante, p. 60. 
 
 advisability of this. Re Highett (p) Post . p. 102. 
 
 and Bird's Contract, (1902) 2 Oh. ( q ) Ante, p. 55. 
 
 214; (1903) 1 Ch. 287. (r) See Renner v. Tolley 
 
 (1893), 68 L. T. 815. 
 
THE CONDITIONS OF SALE. 
 
 79 
 
 been disregarded, or it has been treated as got in, the conditions 
 should provide that it shall be joresumed to have been recon- 
 veyed. 
 
 If the property is sold as free from land tax or tithe rent- 
 charge, and in either case the evidence of their redemption 
 cannot be produced, the conditions should preclude the pur- 
 chaser from making any objection on this ground. Where it 
 is possible to obtain such a declaration it is advisable to stipulate 
 that a declaration of' the land tax collector or by some other 
 person that the land is free, or, at any rate, that no land tax or 
 tithe rent-charge has been paid for twelve years or upwards 
 next before the day of sale, to be furnished at the purchaser’s 
 expense, shall be accepted as conclusive evidence. 
 
 If any of the originals of the deeds appearing on the abstract 
 are missing, the purchaser should be required to accept an 
 attested copy or some other such evidence in proof of thern(s). 
 
 When there are incumbrances on the property which the 
 vendor cannot discharge, careful provision must be made for 
 his protection. The fact and nature of such incumbrance must 
 be clearly stated, and the purchaser required to make no objec- 
 tion on account of it. It is only fair, where the incumbrance 
 is likely to be enforced, to offer to give him an indemnity 
 against any charge, the terms and nature of which should be 
 clearly stated. It should be borne in mind that, in the absence 
 of stipulation, he cannot be forced to complete a contract to 
 buy land which turns out to be subject to irremovable incum- 
 brances, even on being offered an indemnity ( t ). 
 
 To meet cases where an incumbrance cannot be paid off, and 
 an indemnity is refused, the Conveyancing Act, 1881, s. 5, as 
 read with the Conveyancing Act, 1911, s. 1, enables the court 
 on a sale to make an order discharging the land from the incum- 
 brance on payment into court of the amount specified in the 
 section ( n ). 
 
 (s) See ante, p. 49. 
 
 O Per Lord E don, Balmanno 
 v. Lumley (1813), 1 Y. & B. 224, 
 at p. 225; and see Re Weston 
 and Thomas's Contract, (1907) 1 
 >Ch. 244. 
 
 (w) For the construction of this 
 section, see Dichin v. Dichin 
 (1882), 30 W. R. 887; Great 
 Northern Rail. Co. v. Sanderson 
 (1884), 25 Ch. D. 788; and Re 
 Fr erne's Contract, (1895) 2 Ch. 
 
 When 
 evidence of 
 redemption of 
 land tax or 
 tithe lost. 
 
 When 
 
 original deeds 
 are missing. 
 
 When incum- 
 brances exist 
 which cannot 
 be discharged. 
 
 Provisions of 
 the Convey- 
 ancing Acts, 
 1881 , lull, as 
 to discharging- 
 incum- 
 brances. 
 
80 
 
 Condition as 
 to apportion- 
 ment of rent 
 when pro- 
 perty subject 
 to lease is 
 sold in lots. 
 
 Generally, the 
 written condi- 
 tions cannot 
 be verbally 
 altered . 
 
 In actions of 
 specific per- 
 formance : 
 
 (a) Plaintiff 
 may not give 
 verbal evi- 
 dence to vary 
 the condi- 
 tions ; 
 
 (b) Defendant 
 may give 
 verbal 
 evidence. 
 
 BK. I., PT. I. SALES, EXCHANGES AND GIFTS. 
 
 When property subject to a lease at an entire rent is sold in 
 lots, or a part only of it is sold, the conditions should provide 
 for the apportionment of the rent, and the purchaser should be 
 precluded from taking objection in the event of the tenant 
 refusing to concur in the apportionment. 
 
 Verbal Variation of the Conditions at the Sale. 
 
 As a general rule, the written conditions of sale cannot be 
 affected or altered by any verbal amendments made at the time 
 of sale or otherwise, unless the amendments are embodied in the 
 memorandum of the contract signed by the parties. This rule 
 holds good even though the purchaser has agreed in writing to 
 abide b y the supplementary conditions and declarations made at 
 the sale ( 2 c). The reason is that the Statute of Frauds requires 
 the contract to be in writing, and to admit verbal evidence 
 to vary the written memorandum would be to disregard the 
 statute. 
 
 An exception, however, has been admitted in actions for 
 specific performance. In such actions the following rules have 
 been held to apply: — 
 
 (a) The plaintiff, whether vendor or purchaser, cannot set up 
 a parol variation alleged to have been made in the written con- 
 ditions, unless, (1) the variation is in favour of the defendant, 
 or (2) the defendant has been guilty of fraud, or (3) there has 
 been such a part performance of the variation as would justify 
 the court in ordering specific performance had the variation 
 been a new contract. 
 
 (b) But either vendor or purchaser resisting specific per- 
 formance may give parol evidence to show that by fraud or 
 mistake the written contract does not contain the real terms 
 agreed on by the parties, on the ground that the Statute of 
 Frauds does not say that a written contract shall bind the party 
 who has signed it, but that an unwritten one shall not bind 
 him (//) . 
 
 256; lie Evans and Beckett' s Con- ( y ) W oo 7 lam v. Hearn (1802), 
 
 tract, (1910) 2 Oh. 438. Wh. & Tub L. C. Eq. 8th ecL 
 
 (x) Higginson v. Clowes (1808), vol. ii. 517 and notes. 
 
 15 Yes. 516. 
 
THE CONDITIONS OF SALE. 
 
 81 
 
 A discussion of this subject will be found in Fry on Specific 
 Performance (z), where it is suggested (a) that owing to the 
 provisions of the Judicature Act, 1873, s. 24 (7), there is now 
 no difference between the position of a plaintiff and a defen- 
 dant in this respect (b). 
 
 ( z ) 5th ed., §§ 751 — 820. in May v. Platt, (1900) 1 Oh. 616, 
 
 (а) §§ 811, 818. seems, however, to be in conflict 
 
 (б) The decision of Farwell, J., with this view. 
 
 E fleet of 
 Judicature 
 Acts on theae 
 rules. 
 
 G. — C. 
 
 G 
 
82 
 
 BK. I., PT. I. — SALES, EXCHANGES AND GIFTS. 
 
 CHAPTER V. 
 
 SALE By PRIVATE CONTRACT, AND THE POSITION OF THE PARTIES 
 AFTER THE AGREEMENT FOR SALE. 
 
 Private con- 
 tracts for sale. 
 
 Effect of 
 contract for 
 sale. 
 
 In treating of the stipulations which should be inserted in the 
 conditions of sale, we have anticipated all that need be said with 
 regard to the provisions which should be inserted in a private 
 contract for sale. For, with the exception of the conditions 
 relating to the auction, nearly the same stipulations should be 
 included in a private contract. 
 
 We have still, however, to consider the effect of the contract, 
 whether it be by public auction or private treaty, on the position 
 of the parties, and the remedies for its breach. 
 
 (a) The Position of the Parties after the Contract. 
 
 Contract 
 makes vendor 
 of property 
 trustee for 
 purchaser. 
 
 Purchaser 
 entitled to 
 gains, 
 
 The result of a valid contract for the sale of property is that 
 the beneficial ownership passes to the purchaser, and the vendor 
 becomes a trustee of the property for him, the vendor having 
 a right to the purchase-money, a lien on the property to secure 
 it, and a right to retain possession of the property until it is 
 paid ( a ). 
 
 The purchaser being in equity the owner of the property, is 
 entitled to any benefits that may accrue to the estate between 
 the contract and the conveyance — such as an increase or im- 
 provement in the value of the land (&), even though it arise 
 
 ( a ) Per Selborne, L. C., in 
 Phillips v. Silvester (1872), L. R. 
 8 Ch. App. at p. 176; per Jessel, 
 M. R., in Lysaght v. Echvards 
 (1876), 2 Ch. D. at p. 506; see 
 also Shaw v. Foster (1872), L. R. 
 5 H. L. 0. 338; Clarke v. Ramuz, 
 
 (1891) 2 Q. B. at p. 462. He is, 
 however, a trustee in only a quali- 
 fied sense: see Rayner v. Preston 
 (1881), 18 Ch. D. 1. 
 
 (6) Harford v. Furrier (1816), 
 1 Madd. 532, see especially at 
 p. 539. 
 
SALE BY PRIVATE CONTRACT, ETC. 
 
 83 
 
 through the expenditure of the vendor (c); and, subject to and must 
 
 • "bostr losses 
 
 what is said below, will have to sustain any loss or deteriora- 
 tion which results to the property between contract and con- 
 veyance (S). 
 
 So that if a man contracts to buy a house, and before the -destruction 
 
 .... .by fire of 
 
 conveyance of it to him it is accidentally burnt down, he will property sold. 
 
 still have to perform his contract (e). Further, even where 
 the house has been insured, and the vendor has received the 
 insurance money, he is entitled to retain it as against the pur- 
 chaser, for he is not a trustee of' it for the purchaser (/'); and 
 though, since a contract of lire insurance is one of indemnity 
 and the assured can recover no more than the amount of his 
 loss, after payment of the purchase-money, the insurance com- 
 pany are entitled to recover from the vendor a sum equal to the 
 insurance money (g), yet the purchaser has no claim to it 
 against them. The purchaser’s proper course is, therefore, to 
 get his name entered in the books of' the insurance company as 
 being interested in the premises insured; or, if this is not 
 practicable, or not desirable owing to the existing policy of in- 
 surance having nearly expired, to effect a new policy in his own 
 name. It is not unusual for the vendor to agree to hold the 
 policy, and any money he may receive in respect of' it, as trus- 
 tee for the purchaser; but, in the interests of the vendor, this 
 is not to be recommended unless the consent of the insurance 
 company is obtained, as otherwise it may put him in the position 
 of being obliged to hand the policy money to the purchaser, 
 and after completion to hand an equivalent amount out of the 
 purchase-money to the insurance company, and so perhaps get 
 little or nothing for the property. 
 
 Where a purchaser has neglected to take some such step, and u Geo. 3, 
 the property bought is destroyed by fire after the contract, and c * 78 ’ 
 before completion, possibly he may be able to procure the benefit 
 of an existing policy effected by the vendor by giving notice to 
 the insurance company, as a person interested in the premises 
 
 (c) Per Wigram, V.-O., Monro 
 v. Taylor (1848), 8 Hare, atp. 60. 
 
 (d) See note (6), p. 82. 
 
 (e) Paine v. Metier (1801), 6 
 Ves. 349. 
 
 (/) Rayner v. Preston (1881), 
 
 18 Ch. D. 1. 
 
 (q) Castellainv. Preston (1883), 
 
 11 Q. B. D. 380. 
 
84 
 
 BK. I., PT. I. — SALES, EXCHANGES AND GIFTS. 
 
 Duty of 
 vendor as 
 trustee. 
 
 Cannot deduct 
 arrears of 
 rent. 
 
 within the meaning of s. 83, of the Fires Prevention (Metro- 
 polis) Act, 1774, to lay out the money in rebuilding the de- 
 stroyed premises, instead of' paying it over to the vendor. It 
 is not clear, however, whether the statute applies to such a case, 
 and even if it does, whether it applies outside the metropolitan 
 area (li ) . On a sale of a leasehold house where the lease contains 
 a covenant to insure and rebuild, the purchaser indirectly gets 
 the benefit of the insurance (i ) . 
 
 What is said above is, however, subject to the purchaser’s 
 right to compensation from the vendor for loss or deterioration 
 which the latter ought to have prevented. The vendor being a 
 trustee of the property for the purchaser is bound to take reason- 
 able care of it (j) . The purchaser will therefore be entitled to 
 compensation if the vendor wantonly lets buildings on the land 
 go to ruin (A:), or if' it has been damaged by a trespasser though 
 without the consent or knowledge of the vendor (Z). 
 
 It is a further consequence of the vendor’s trusteeship that if 
 lie remains in possession after the day fixed for completion 
 and receives rent he is not entitled as against the purchaser to 
 retain thereout arrears of rent whether due before the date of 
 the contract or subsequently (m ) . 
 
 Trustee iu 
 bankruptcy 
 will stand in 
 place of 
 vendor or 
 purchaser ; 
 
 (b) The Effect of Bankruptcy of one of the Parties. 
 
 When a man becomes bankrupt all his property (which 
 includes the benefit of any contract he may have entered into) 
 passes to his trustee. The result is, that the trustee in bank- 
 ruptcy of an insolvent vendor will stand in his place, and can 
 compel the purchaser to pay the purchase-money and take a 
 conveyance of the estate; except that where a day is fixed for 
 
 ( h ) There is a decision that it 
 applies generally in Ex parte 
 Goreley (1864), 4 D. J. & S. 477. 
 This was doubted by Lord Watson 
 in Westminster Fire Office v. 
 Glasgow Provident, &c. Soc. 
 (1888), 13 App. Cas. at p. 716, but 
 followed by Swinfen Eady, -J., in 
 Re Quiche's Trusts, (1908) 1 Oh. 
 887, see at p. 893, and by Par- 
 ker, J., in Sinnott v. Bowden 
 (1912), 28 T. L. E. 594. 
 
 (i) Westminster, &c. Office v. 
 
 Glasgow, &c. Society (1888), 13 
 A. C. 699. 
 
 ( j ) Per Jessel, M. E .,Lysaght 
 v. Edwards (1876), 2 Ch. D. 507; 
 Kay, L. J., Clarke v. Ramuz, 
 (1891) 2 Q. B. at p. 462. 
 
 (7r) Phillips v. Silvester (1872), 
 L. E. 8 Ch. App. 173. 
 
 ( l ) Clarke v. Ramuz, (1891) 2 
 Q. B. 456. 
 
 (m) Plews v. Samuel, (1904) 1 
 Ch. 464. 
 
SALE BY PRIVATE CONTRACT, ETC. 
 
 completion, and time is of the essence of the contract, the pur- 
 chaser can rescind and recover his deposit if' the vendor has 
 committed an available act of bankruptcy, and there is no trus- 
 tee in a position to execute a conveyance at the date fixed (w). 
 
 And conversely (subject to the trustee’s right of disclaimer), 
 the purchaser, on tendering the purchase-money, can require the 
 trustee to complete the contract (o). On the other hand, where 
 the purchaser becomes bankrupt, the vendor cannot enforce 
 specific performance against his trustee owing to his right of 
 disclaimer (p), although, apparently, the purchaser’s trustee, 
 on paying the purchase-money in full, can require the vendor 
 to convey to him. The vendor, however, has a lien on the estate, 
 and is not bound to relinquish it unless he gets payment in 
 full, and if the trustee disclaims the vendor can retain any 
 deposit which has been paid, even in the absence of stipulation 
 as to forfeiture (q). 
 
 The trustee in bankruptcy has power to disclaim an unpro- but has a 
 fitable contract (r) . A disclaimer will, in effect, put an end to disclaimer, 
 the contract, and any person injured by the disclaimer will be 
 deemed a creditor to the extent of the injury, and may prove 
 the same as a debt under the bankruptcy. But, as a bankrupt’s 
 property Vests in his trustee subject to all equities affecting it, 
 the vendor’s trustee in bankruptcy cannot escape the obligation 
 of carrying out the contract for sale by disclaiming it, unless 
 he also disclaims the property, as he might in the case of lease- 
 holds. Even then the purchaser’s equitable interest would be 
 unaffected, and he might apply to the Bankruptcy Court for a 
 vesting order ($) . 
 
 (c) The Effect of the Death of either Party. 
 
 As to the death of the vendor . — When the vendor dies his On death of 
 representatives will be entitled to the purchase-money in personal re- 
 
 ( n ) Powell v. Marshall, Parkes 
 & Co., (1899) 1 Q. B. 710. 
 
 (o) Pearce v. Bastable's Trustee, 
 (1901) 2 Ch. 122. 
 
 (p) Holloway v. York (1877), 25 
 W. R, 627. 
 
 (q) Ex parte Barrell (1875), 10 
 
 Ch. 512. 
 
 (r) Bankruptcy Act, 1883, s. 55 ; 
 Bankruptcy Act, 1890, s. 13. 
 
 (s) Be Bastable, Ex parte The 
 Trustee, (1901) 2 K. B. 518; 
 Bankruptcy Act, 1883, s. 55 (6). 
 
8 <> 
 
 presentatives 
 have right to 
 purchase- 
 money. 
 
 Who conveys, 
 
 (a) lease- 
 holds ; 
 
 (b) freeholds ; 
 
 44 Sc 45 Viet, 
 c. 41, s. 4. 
 
 60 & 61 Viet, 
 c. 65. 
 
 BK. I., PT. I. SALES, EXCHANGES AND GIFTS. 
 
 trust for the next of kin, or the residuary legatee under his 
 will, unless he has, subsequently to the contract, specifically 
 devised the land sold (£), or, having so devised it previously to 
 the contract, has subsequently confirmed the devise by a 
 codicil (m) . 
 
 As to the person to execute the conveyance there is more diffi- 
 culty. Leasehold property has always vested in the personal 
 representatives, and the purchaser must therefore take his 
 assignment from them, or one of them, their authority over 
 personalty being several as well as joint. But freehold pro- 
 perty vested at common law in the devisee under the vendor’s 
 will, or, if he died intestate, in his heir. The heir or devisee, 
 therefore, was the only person who could convey freehold j^ro- 
 perty to the purchaser, and difficulties often arose owing to 
 his disability or absence or unwillingness to execute a convey- 
 ance from which he could derive no benefit. 
 
 A partial remedy for this difficulty was provided by s. 4 of 
 the Conveyancing Act, 1881, which gave the personal repre- 
 sentatives of a vendor dying after 1881 power to convey 
 the land to the purchaser, though they could not he compelled 
 to do so, and the conveyance might still have been executed by 
 the heir or devisee. Now, however, in the case of persons 
 dying after 1897, the legal estate is vested in the personal 
 representatives by virtue of the Land Transfer Act, 1897, s. 1, 
 notwithstanding any testamentary disposition, and they may 
 be compelled to convey, and are in fact the only persons who can 
 convey, the land to the purchaser, unless they have assented to 
 any devise contained in the will, or conveyed the land to the 
 devisee or to the heir, as they may under s. 3 of the act, in which 
 case the purchaser must take his conveyance from the heir or 
 devisee as before the statute. The act provides (x) that some 
 or one only of several joint representatives cannot sell or 
 transfer realty without the authority of the court, and on this 
 provision it was held that even an executor who had not proved 
 must join in the conveyance unless he had formally re- 
 
 (t) Brant v. Vause (1842), 1 De G. & 8m. 722; Re Pyle , Pyle 
 Y. & C. C. 0. 580. v. Pyle, (1895) 1 Oh. 724. 
 
 («) Emuss v. Smith (1848), 2 ( x ) s. 2 (2). 
 
87 
 
 SALE BY PRIVATE CONTRACT, ETC. 
 
 nounced (y). But this decision has now been reversed by the 
 Conveyancing Act, 1911, s. 12, and at the present time the l & 2 Geo. 5, 
 proving executor or all the proving executors can dispose of c ‘ 
 the property. This enactment applies to all probates when- 
 ever granted, but only to dispositions made after 1911 . Special 
 executors appointed for foreign property need not be joined ( 2 ). 
 
 When the property sold is copyhold, the conveyance must (c) copyholds; 
 usually be taken from the customary heir or devisee, since 
 s. 1 (4) of the Land Transfer Act, 1897, expressly excludes 
 from its operation land of copyhold tenure or customary free- 
 hold in any case in which an admission or any act of the lord 
 of the manor is necessary to perfect the title of a purchaser 
 from a customary tenant, and s. 4 of the Conveyancing Act, 
 
 1881, seems not to apply to copyholds, as it speaks of “ a con- 
 tract for the sale of the fee simple or other freehold interest.’’ 
 
 If, however, the vendor’s interest was equitable only, his per- 
 sonal representatives are the proper persons to convey, as the 
 Land Transfer Act, 1897, applies to equitable estates in copy- 
 hold (a) . 
 
 If the vendor is selling as trustee or mortgagee, and the (d) Trust and 
 property is leasehold or freehold, the assignment or conveyance estates^ 
 must he taken from his personal representatives, leaseholds 
 having always, and freeholds being now, vested in them by 
 virtue of s. 30 of the Conveyancing Act, 1881. If there are 
 several personal representatives, they need not all join, for the 
 section gives them the same several authority over freeholds 
 as they have always had over leaseholds, and the provisions 
 of the Land Transfer Act, 1897, apparently have no application 
 to trust or mortg'age estates. Where the trust or mortgage 
 property is of copyhold or customary tenure, and the deceased 
 had been admitted as tenant on the court rolls, his customary 
 heir or devisee must complete the purchase, since owing to s. 88 
 of the Copyhold Act, 1894, s. 30 of the Conveyancing Act, 
 
 1881, does not apply in that case. But, if lie had not been 
 
 (y) Re Pawley and the London ( z ) Re Cohen's Executors, 
 and Provincial Bank , (1900) 1 Ch. (1902) 1 Ch. 187. 
 
 58. (a) Re Somerville and Turner's 
 
 Contract , (1903) 2 Ch. 583. 
 
88 
 
 On death of 
 purchaser, 
 heir or devisee 
 becomes 
 entitled to 
 land ; 
 
 but takes it 
 cum onere. 
 
 17 & 18 Viet, 
 c. 113; 
 
 30 & 31 Viet, 
 o. 69 ; and 
 40 & 41 Viet, 
 e. 34. 
 
 (i) As to the 
 remedy in 
 damages. 
 
 BK. I., PT. I. — SALES, EXCHANGES AND GIFTS. 
 
 admitted, his personal representatives would be the persons to 
 complete. 
 
 As to the death of the purchaser . — If the purchaser dies 
 intestate the right to the land passes (subject to the Land 
 Transfer Act) to his heir; if he makes a will, the land, even if 
 the contract for purchase be after the date of the will, passes, 
 with a similar qualification, to the devisee. Formerly the heir or 
 devisee was entitled to require the purchase-money to be paid out 
 of the personal estate of the deceased by his executor or adminis- 
 trator; but the effect of the Real Estate Charges Acts, 1854, 
 1867, and 1877, is that the heir or next of kin or devisee will 
 take the land (whether it be freehold, copyhold or leasehold (6)) 
 subject to and charged with the unpaid purchase-money, unless 
 in case of a devise a contrary intention is expressed by the 
 testator. A general direction that the testator’s debts shall be 
 paid out of his residuary real or personal estate, or out of his 
 residuary real estate, does not amount to the expression of a 
 “contrary intention.” These acts do not, however, affect the 
 right of the vendor to compel payment by the personal repre- 
 sentatives in the first instance; they only throw the burden 
 ultimately on the heir, next of kin, or devisee. xAnd the acts, 
 though they apply to leaseholds, have no application to pure 
 personal property, so that a specific legatee, say, of shares which 
 are subject to a mortgage or charge is still entitled to have the 
 same paid out of the residuary estate. 
 
 (d) The Remedies for Breach of the Contract. 
 
 Upon breach of a contract for the sale of land the injured 
 party will in general be entitled to either — (i) damages; or 
 (ii) specific performance; we have therefore to consider shortly 
 each of these remedies, and in connection with them, (iii) the 
 time within which such remedies must be enforced; and (iv) the 
 lien of the parties on the estate. 
 
 When the contract is broken by one party, the other may 
 recover as damages all loss which may be fairly and reasonably 
 
 ( b ) Re Kershaw , Brahe v. Kershaw (1888), 37 Cli. D. 674. 
 
89 
 
 SALE BY PRIVATE CONTRACT, ETC. 
 
 considered ns arising in the natural course of things from the 
 breach, or such as may be reasonably supposed to have been in 
 the contemplation of both parties at the time of making the 
 contract, as the probable result of the breach (c). Therefore, in action by 
 
 . . , , /i\ii the purchaser; 
 
 ordinary cases, a purchaser is entitled to recover (1 ) the deposit 
 he has paid, if any, and, in the absence of stipulation, interest 
 thereon; (2) interest on the purchase-money, if it has been kept 
 lying idle awaiting the completion, and the vendor has notice 
 of the fact; and ,(3) expenses incurred in investigating the 
 title; but he cannot recover damages for the loss of his bargain 
 if the vendor has acted in good faith (d) . The vendor, how- 
 ever, is liable to pay damages if he can make a good title and 
 will not, or will not do what he can and ought to do in order 
 to obtain one(e). 
 
 If' the purchaser is the defaulter the vendor can, it would actl °-Jor 7 
 seem, recover the difference, if any, between the price he would 
 have obtained had the contract been carried out and the market 
 price of the property, as ascertained by ,a re-sale within a 
 reasonable time, and the expenses he has incurred; or he can 
 keep the deposit which was paid on signing the contract; 
 indeed, he can keep this even if he has suffered no loss at 
 all (/) . But he cannot apparently both sue for damages and 
 keep the deposit, so that if he brings an action for damages he 
 must give credit for any deposit that has been paid him (g 1 ) . 
 
 Besides his remedy in damages the injured party has the 
 alternative remedy of specific performance. Specific perform- specific per - 
 ance of a contract to sell land will be enforced a,t the suit of formance: 
 the purchaser almost as a matter of course, for in the case 
 of these contracts damages are generally insufficient to com- 
 pensate the disappointed party; and as the court acts on the 
 
 (c) See Hadley v. Baxend.ale 
 (1854), 9 Ex. 341. 
 
 ( d ) Bain v. Fothergill (1873 — 
 1874), L. R. 7 II. L. 0. 158, 
 affirming Flureau v. Thornhill 
 (1776), 2 W. Bl. 1078; and see 
 Morgan v. Russell, (1909) 1 K. B. 
 357. 
 
 (e) Day v. Singleton, (1899) 2 
 
 Ch. 320; and see Jones v. Gar- 
 diner, (1902) 1 Oh. 191. 
 
 (/) Howe v. Smith (1884), 27 
 Ch. D. 89. See ante, p. 75. 
 
 (g) See Webster, Conditions of 
 Sale, 3rd ed. 421; Howe v. Smith 
 (1884), 27 Ch. D. at p. 104; Shut- 
 tleworth v. Clews, (1910) 1 Ch. 
 176. 
 
BK. I., PT. I. — SALES, EXCHANGES AND GIFTS. 
 
 90 
 
 it must be 
 mutual. 
 
 Court has 
 discretion 
 to grant. 
 
 21 & 22 Viet, 
 c. 27. 
 
 Before action 
 purchaser 
 must tender 
 conveyance. 
 
 (iii) As to the 
 time within 
 which the 
 remedies must 
 be sought. 
 
 principle that the remedy should be mutual, it will specifi- 
 cally enforce the contract at the instance of the vendor though 
 his claim is only to obtain payment of the purchase-money. 
 For the reason that the remedy must be mutual, the court will 
 not decree specific performance at the suit of an infant, because 
 it would not decree such performance against him (li). There 
 are, however, many grounds on which cause may be shown why 
 a decree should not be granted (i), and as the remedy of specific 
 performance is discretionary, the court is not bound to grant 
 it, even where the plaintiff makes out his right to it. The 
 court was empowered by Lord Cairns’ Act to award damages 
 in an action, either in addition to or in lieu of specific per- 
 formance, and though this act is repealed by the Statute Law 
 Revision Act, 1883, s. 3, there is a still wider jurisdiction 
 to 'grant damages under the provisions of the Judicature 
 Acts (1c). 
 
 In any action on a contract for the sale of land, whether the 
 action be for specific performance or for damages only, the 
 purchaser must be able to show that there is a valid contract, 
 and, in most cases, that he has tendered a conveyance to the 
 vendor, who has refused to execute it (7); but he need not 
 tender a conveyance when the vendor fails to deduce a good 
 title, or wrongfully resells the property. In the same way the 
 vendor must prove that he has shown, or offered to show, a 
 good title, and has been always willing and ready to execute a 
 conveyance to the purchaser in the terms of the contract. It 
 is not necessary for the vendor to tender a conveyance, unless 
 the contract provided that he was to prepare it (7). 
 
 An action on a simple contract must be brought within six 
 years next after the cause of action has arisen, but if at the 
 time the right to bring the action accrues the plaintiff is an 
 infant or of unsound mind, or the defendant is beyond the seas, 
 the action may be brought within six years after the removal 
 of the plaintiff’s disability or the return of the defendant (m). 
 
 ( h ) Flight v. Holland (1828), 4 15 Ch. D. 215; White v. Bohy 
 
 Russ. 298. (1877), 26 W. R. 133. 
 
 (i) See Fry, Specific Perform- (Z) Poole v. Hill (1844), 6 M. 
 
 ance, 5th ed. Part III. & W. 835. 
 
 ( k ) Tamplin v. James (1879), (m) Limitation Act, 1623, ss. 3 
 
SALE BY PRIVATE CONTRACT, ETC. 
 
 91 
 
 The statute begins to run immediately upon the breach of 
 the contract. When a time is fixed for completion, the breach 
 will occur on default in conveying, or paying the purchase- 
 money at that time, so that the statute will commence to run 
 from the date fixed for completion. Where no time is fixed 
 for completion, the time will run as against the purchaser from 
 a distinct refusal by the vendor to convey, or from some act or 
 occurrence which renders it impossible for him to convey; and 
 as against the Vendor time runs from the purchaser’s refusal to 
 complete. 
 
 The operation of the statute may be prevented by a sufficient 
 acknowledgment in writing signed by the party to be charged 
 or his agent duly authorized ( n ). 
 
 The statutes do not apply to actions for specific performance, 
 but the rule in equity is that the party seeking relief must be 
 prompt in claiming the remedy; so that an application for 
 specific performance must be made at the earliest opportunity, 
 and lapse of time is one of the grounds on which the court will 
 refuse a decree (o). Generally, more than a year’s delay is 
 fatal to the plaintiff’s suit; and where one party gives the other 
 notice that he does not intend to perform the contract, a very 
 brief delay by the other in bringing an action for specific per- 
 formance will cause the court to refuse to make the decree (p ) . 
 But in order to bar the plaintiff’s right the delay must arise 
 from his culpable or unwarrantable laches; so that where the 
 purchaser is in possession of the property and lias got the 
 equitable estate, and the only object of the action is to obtain 
 the legal estate, the vendor will not be allowed to set up the 
 defence of laches; for in such a case the plaintiff has not been 
 sleeping on his rights, but relying on his equitable title without 
 thinking it necessary to have his legal right perfected (g); and 
 
 and 7; 4 & 5 Anne, c. 16, s. 19; 
 Mercantile Law Amendment Act, 
 1856, s. 10. 
 
 ( n ) Statute of Frauds Amend- 
 ment Act, 1828, s. 1; and Mer- 
 cantile Law Amendment Act, 1856, 
 s. 13. 
 
 (o) Eads v. Williams (1854), 4 
 
 De G. M. & G. 674; Southcomb 
 v. Bishop of Exeter (1847), 6 
 Hare, 213; Mills v. Haywood 
 (1877), 6 Ch. D. 196; Levy v. 
 Stogdon, (1898) 1 Ch. 478. 
 
 (p) Huxham v. Lleiuellyn 
 (1873), 21 W. R. 570. 
 
 (■ q ) Fry, Specific Performance, 
 
 When time 
 begins to run. 
 
 Statute 6aved 
 by acknow- 
 ledgment ; 
 
 and does not 
 apply to 
 specific 
 performance ; 
 
 but this 
 remedy is 
 lost by laches. 
 
92 
 
 BK. I., PT. I. — SALES, EXCHANGES AND GIFTS. 
 
 likewise when the delay is caused by the defendant, he cannot 
 
 set it up as a defence (r) . Again, the defendant may deprive 
 
 himself of the right to allege the plaintiff’s delay by continuing 
 
 to act as if he meant to carry out the contract (s) . 
 
 (iv) As to the j n addition to the remedy by action, each party may have 
 lien of the . J J 1 J 
 
 parties on the an equitable lien on the property. 
 
 estate. 
 
 The vendor’s The Vendor's Lien. — When the vendor of land has conveyed 
 1 • 
 
 it to the purchaser before having received the whole of the pur- 
 chase-money he has a lien on the land for the amount remaining 
 unpaid (£), which he retains even after delivery of posses- 
 sion to the purchaser, and which he may enforce by applying 
 to the court either for a sale of the property, or even for an 
 order restoring the possession of it to him (?«) . And a vendor 
 of personal property has a similar lien (x ) . 
 
 The pur- The Fur chaser's Lien . — When the purchaser has paid the 
 
 chaser b hen. _ 1 # t A 
 
 whole of his purchase-money, or a jiart of it — as in the case of 
 a deposit (y ) — before the conveyance of the property to him, 
 he has a lien on the land for the amount so paid. As Lord 
 Cranworth said in Rosev. Watson(z), he acquires a lien exactly 
 in the same way as if, upon payment of part of the purchase- 
 money, the vendor had executed a mortgage to him of the estate 
 to that extent. This lien extends to all instalments of the pur- 
 chase-money paid, with interest thereon, to sums paid under 
 
 5th ed. § 1111 ; see, however, 
 Mills v. Haywood, supra, where 
 possession was held not sufficient 
 explanation since it was not by 
 virtue of the contract. 
 
 (r) Per Lord St. Leonards, 
 Ridgeway v. Wharton (1857), 6 
 H. L. C. at p. 292. Lord St. 
 Leonards was in a minority in this 
 case, and the decision of the House 
 was not in accordance with his 
 opinion, but probably he was right 
 on this point. 
 
 (s) Seton v. Slade (1802), 7 Yes. 
 265; Wh. & Tud. L. C. Eq. 
 8th ed. vol. ii. 478. 
 
 ( t ) Mackreth v. Symmons 
 (1808), 15 Ves. 329; Wh. & Tud. 
 L. C. Eq. 8th ed. vol. ii. 946. 
 
 ( u ) Williams v. Aylesbury Rail. 
 Co. (1873), 21 W. ft. 819. As to 
 the vendor’s lien when the pur- 
 chase-money is to be paid by in- 
 stalments, see Nives v. Nives 
 (1888), 15 Ch. D. 649. 
 
 ( x ) Davies v. Thomas, (1900) 2 
 Oh. 462; Re Stucley, Stucley v. 
 Kekewich, (1906) 1 Ch. 67. 
 
 (y) Whitbread v. Watt, (1902) 1 
 Oh. 835. 
 
 (z) (1864), 10 H. L. 0. 671, at 
 p. 684 
 
SALE BY PRIVATE CONTRACT, ETC. 
 
 the contract as interest on the unpaid purchase-money, and tho 
 costs of an unsuccessful action for specific performance (if any) 
 by the vendor against him. Similarly, an intended lessee, who 
 has entered under the contract to grant him a lease and ex- 
 pended money on the land, has a lien on it for the money so 
 expended in the event of the lessor failing to grant a lease(a). 
 
 When the contract is abandoned by reason of a defect of 
 title, the purchaser’s lien extends not merely to the deposit and 
 interest, but also to the costs of investigating the vendor’s title 
 and the costs of any proceedings in court to enforce specific 
 performance, and the costs of a summons under s. 9 of the 
 Vendor and Purchaser Act, 1874 (b). 
 
 A lien may be enforced against the land in the hands not Against what 
 only of the vendor or purchaser, as the case may be, and his Ken" will 
 heirs, and volunteers claiming through him, but also in the P reval1 - 
 hands of purchasers for value who have notice of the lien; and 
 even against the trustee of a bankrupt, although he has no 
 notice, for he takes subject to all equities (c). The lien may 
 be lost by negligence (d) or abandonment. The mere taking 
 of a security for the payment of the purchase-money will not 
 amount to abandonment by the vendor, unless it can be con- 
 strued into an expression of an intention to rely no longer on 
 the estate, but on the purchaser’s personal credit (e). 
 
 When the purchase goes off through the purchaser’s fault 
 the lien is gone (/) . 
 
 It should be remembered that although the possessory lien is Etfeot of 
 not barred by the Limitation Act, 1623, which merely extin- Limitation 
 guishes the remedy and not the obligation (g), an equitable 
 lien on land is barred by the provisions of s. 8 of the Peal 
 Property Limitation Act, 1874 (h). 
 
 (a) Middleton v. Magnay (1864), 
 2H.&M. 233. 
 
 (5) Kitton v. Hewitt , (1904) 
 W. N. 21; Furneaux v. Aird, 
 (1906) W. N. 215. 
 
 (c) Ex parte Hanson (1806), 12 
 Ves. at p. 349. 
 
 ( d ) Rice v. Rice (1853), 2 Drew. 
 73. 
 
 (e) Mackreth v. Symmons 
 (1808), Wh. & Tud. L. 0. Eq. 
 8tli ed. vol. ii. 946. 
 
 (/) Driver v. Grant (1852), 5 
 De G. & Sm. 451. 
 
 (g) Spears v. Hartley (1800), 3 
 Esp. 81. 
 
 (Ji) See Toft v. Stephenson 
 (1848), 7 Hare, 1, a decision on the 
 
94 
 
 BK. I., FT. I. — SALES, EXCHANGES AND GIFTS. 
 
 Registration 
 of contract 
 not necessary. 
 
 Stamps. 
 
 54 & 55 Viet, 
 c. 39. 
 
 Separate 
 contracts on 
 sale in lots. 
 
 Contract 
 under seal. 
 
 When pro- 
 perty vests 
 by contract 
 
 A contract for the sale and purchase of land in a register 
 county cannot be registered, as it is not a “ conveyance ” within 
 the Local Registry Acts ( i ). But in Yorkshire a lien must be 
 registered under s. 7 of the Yorkshire Registry Act, 1884 v 
 
 Stamp Duty on Contract. 
 
 Lastly, it must be remembered that a contract for the sale of 
 land above 51. in value if under hand only requires to be 
 stamped with a 67. stamp, in the usual ease where the contract 
 is intended to be carried into effect by a subsequent conveyance. 
 An adhesive stamp of' that value may be affixed to the contract, 
 but it must be so affixed before the contract is signed, and must 
 be cancelled by the person who first executes the contract (fc); 
 if not, the stamp is allowed, by grace but not as of right, to be 
 impressed at any time within fourteen days of the date of the 
 signing of the contract, but afterwards only on the payment 
 of the penalties imposed by the Stamp Act, 1891 . If the agree- 
 ment consists of several letters it is sufficient to stamp one of 
 them (7). 
 
 If several lots are sold by distinct contracts to one purchaser, 
 the agreement must bear as many 67. stamps as there are lots 
 over the value of 51. sold to him (m)\ but if the lots are com- 
 bined in one written contract and the purchase-money is aggre- 
 gated only one stamp is required. 
 
 If the contract is under seal, the stamp will be 10s., which, 
 if not impressed at the time of contract, can be impressed at 
 any time within thirty days after execution (w). 
 
 When the property sold is of such a character that it will 
 vest in the purchaser simply by the contract, without a formal 
 conveyance or assignment, e.g., an equitable interest in pro- 
 perty, the contract requires an act valorem duty as a conveyance 
 on sale; and if a formal conveyance or assignment is afterwards 
 
 equivalent provision in s. 40 of 
 the Real Property Limitation Act, 
 1833. 
 
 (i) Rodger v. Harrison and 
 others , (1893) 1 Q. B. 161. 
 
 ( h ) Stamp Act, 1891, ss. 8, 22. 
 ( l ) Stead v. Liddard (1834), 1 
 
 Bing. 196. 
 
 (m) See James v. Shore (1876), 
 1 Stark. N. P. C. 426; Roots v. 
 Dormer (1832), 4 B. & Ad. 77; 
 Westall v. Hall (1883), W. N. 
 158. 
 
 (n) Stamp Act, 1891, s. 15. 
 
SALE BY PRIVATE CONTRACT, ETC. 
 
 made, it is stamped with a denoting stamp; but since for the 
 purposes of obtaining specific performance of the contract, or 
 damages for breach thereof, this provision does not apply, and 
 the ordinary stamp duty of 1 6d., or 10s. if the contract is under 
 seal, will suffice; to stamp the contract with an ad valorem duty 
 is usually neither necessary nor desirable (a) . 
 
 When the contract bears a 6d. stamp (or 10s. stamp, if under 
 seal) only, care should be taken to get the conveyance executed 
 within six months of the contract if possible, as, if this cannot 
 be done, the purchaser must be prepared to satisfy the Commis- 
 sioners that there has been no unreasonable delay in comple- 
 tion. 
 
 The question of affixing ad valorem duty to the contract, 
 as apart from the conveyance, as a rule arises in connection with 
 the sale of a business to a company. It should be remembered 
 that the stamp duty is not payable in respect of assets which 
 pass by delivery, and therefore the value of such assets should 
 be ascertained and deducted from the amount of the purchase 
 consideration, and ad valorem duty will only be payable on 
 the balance. Care should be taken, when drawing the assur- 
 ance of the property, not to convey the articles passing by 
 delivery, as, if the conveyance purports to convey such articles, 
 the authorities insist on stamp' duty being paid on the value of 
 such articles, as they contend that the articles are not transferred 
 by delivery, but by a deed. 
 
 (o) See Stamp Act, 1891, s. 59, as amended by the Revenue Act, 
 1909, s. 7. 
 

 BK. I., PT. I. — SALES, EXCHANGES AND GIFTS. 
 
 CHAPTER VI. 
 
 THE ABSTRACT OF TITLE AND REQUISITIONS. 
 
 Vendor 
 must deliver 
 a perfect 
 abstract. 
 
 Outstanding- 
 mortgages do 
 not make 
 abstract 
 imperfect. 
 
 On a sale of land the vendor is bound, unless otherwise agreed, 
 to prove his title to the purchaser. For this purpose he must 
 deliver to the purchaser an abstract of his title, i.e., an epitome 
 of the documents and facts which constitute his title. Unless 
 the contract otherwise provides, the abstract must show a per- 
 fect title, i.e., it must show that the vendor can either himself 
 convey to, or can procure to be vested in, the purchaser the 
 legal and equitable estates of the property sold free from incum- 
 brances (a). It is not necessary to show that he has this power 
 at the date of the delivery of the abstract, if it appears that he 
 will be in a position to do so at the time fixed for comple- 
 tion (b); but if the abstract shows that there are any incum- 
 brancers whose concurrence he cannot insist upon, the title is 
 imperfect (c) . 
 
 The fact that the abstract discloses the existence of mort- 
 gages and other incumbrances to which the sale has not been 
 made subject do,es not render the title imperfect, because these 
 are regarded as matters of conveyance only; they still leave 
 the vendor the power to procure the legal estate if he uses the 
 necessary means ( d ) . So that even in a case where the incum- 
 brances were not mentioned in the contract, and no notice had 
 been given of intention to pay them off, it was held that they 
 did not constitute a defect in the title (e). If the vendor will 
 
 (a) Dart, Vendors and Pur- 
 chasers, 7th ed. 315 — 317. 
 
 (5) Cattell v. Corral (1840), 4 
 Y. & C. 228; Chamberlain v. Lee 
 (1840), 10 Sim. at p. 450. 
 
 (c) See Lewin v. Guest (1828), 
 1 Russ. 325. 
 
 ( d ) Avarne v. Brown (1844), 
 14 Sim. 303. 
 
 ( e ) Savory v. Underwood 
 (1854), 23 L. T. 141. 
 
THE ABSTRACT OF TITLE AND REQUISITIONS. 
 
 97 
 
 be able to acquire a clear right to the legal and equitable estates 
 before completion, it seems not to be a defect in the title that 
 the conveyance may be delayed by the fact that he has not 
 those estates legally vested in himself and ready to be trans- 
 ferred to a purchaser. Thus in Cattell v. Corral (/) a good 
 title was held to be deduced where it appeared by the abstract 
 that the vendor was a tenant in tail in possession and therefore 
 able to convey the estate in fee according to his contract by a 
 deed enrolled . It seems to have been thought unnecessary that 
 he should disentail the property before the time fixed for com- 
 pletion, so as to put himself in possession of an estate in fee 
 simple ready to be conveyed to the purchaser when the time 
 arrived; yet if the vendor died before the disentailing assur- 
 ance had been executed it is evident that the purchaser would 
 lose the property; for the issue of a tenant in tail is not bound 
 by the contract of his ancestor (g ) . 
 
 The vendor must, however, show that he has the power to Purchaser 
 vest the property in the purchaser, or, at any rate, that persons take^iSe^rom 
 whose concurrence he has the right to compel can do so. This any one but 
 is illustrated by Re Bryant and Barninghams Contract (h), ' en or ’ 
 where trustees contracted to sell the trust property, but the 
 purchaser discovered that they had no power of sale, and re- 
 fused to complete. Thereupon the tenant for life of the land 
 offered to assist them by conveying the land to the purchaser 
 under the powers conferred upon him by the Settled Land 
 Acts. The purchaser refused to accept a conveyance from the 
 tenant for life; and the court refused to decree specific perform- 
 ance against him on the ground that to do so would be to force 
 the purchaser to enter into a new contract with the tenant for 
 life(i). But in Re Baker and Selmons Contract (k), where 
 trustees, in whom the legal estate was vested, but who had no 
 power of sale, entered into the contract with the consent of all 
 the beneficiaries, the court held that the vendors had shown 
 
 (/) (1840), 4 Y. & C. 228. 
 
 ( g ) He might contract to sell 
 now, however, as a person having 
 the powers of a tenant for life 
 under the Settled Land Acts, and 
 
 this contract would be binding on 
 his successors in title. 
 
 (70 (1890), 44 Ch. D. 218. 
 
 (0 Compare Re Thompson and 
 Holt (1890), 44 Ch. D. 492. 
 
 (7b) (1907) 1 Ch. 238. 
 
 G. — C. 
 
 II 
 
98 
 
 BK. I., PT. I. SALES, EXCHANGES AND GIFTS. 
 
 a good title, since they could compel the beneficiaries to join 
 in the conveyance, and thereby vest both legal and equitable 
 estates in the purchaser. 
 
 Root of title. 
 
 Lord 
 
 St. Leonards’ 
 rule. 
 
 Legal mort- 
 gages must be 
 abstracted. 
 
 Expired 
 
 leases. 
 
 Equitable 
 
 mortgages. 
 
 Criminal 
 liability for 
 
 The abstract must commence with some instrument which 
 deals by way of conveyance with both the legal and the equit- 
 able estate. A mortgage deed or purchase deed is the best root of 
 
 title, as such a document indicates that at the time of its execu- 
 
 / 
 
 tion the title must have been investigated; and the former is 
 perhaps the better of the two . A general devise in a will should 
 not be made the root of title since it does not identify the pro- 
 perty, and it would be necessary to show that the testator was 
 in possession at the time of his death, or else to run the risk of 
 damping the sale with a condition that the purchaser shall not 
 require such evidence, nor should an appointment under a 
 power since its validity depends on the instrument creating the 
 power ( l ). 
 
 Lord St. Leonards, in his book on Vendors and Pur- 
 chasers (m), says, that “wherever the vendor’s solicitor begins 
 the root of the title he ought to abstract every subsequent 
 deed.” So, a legal mortgage which has been discharged should 
 be abstracted although there has been a re-conveyance, for it is 
 not for the vendor to assume that the title has been re-vested by 
 the re-conveyance; this is a matter upon which the purchaser is 
 entitled to satisfy himself. But expired leases may be excepted 
 from the rule, since their provisions cannot affect the purchaser. 
 Whether a memorandum of an equitable mortgage by deposit 
 of deeds which has been discharged, or which is intended to be 
 discharged before completion, should be abstracted does not 
 appear to be settled; the general practice appears to be to keep 
 such a charge off the abstract if it be under hand only, and so 
 framed that it cannot affect the legal estate (w). 
 
 In this connection it must be remembered that, by the Law 
 
 (?) This is so notwithstanding 
 s. 3 (3) of the Conveyancing Act, 
 1881, ante, p. 52; see Williams, 
 Vendor and Purchaser, vol. i. 88. 
 (m) 14th ed. 407. 
 
 (n) See Williams, Vendor and 
 Purchaser, vol. i. 91, 92; see, how- 
 ever, the remarks of Page Wood, 
 V.-O., in Drummond v. Tracey 
 (1860), Johns, at p. 612; 1 
 Prideaux, 20th ed. vol. i. p. 61. 
 
THE ABSTRACT OF TITLE AND REQUISITIONS. 
 
 99 
 
 of Property Amendment Act, 1859, s. 24, a seller or mortgagor 
 or his solicitor who conceals any instrument material to the title 
 or any incumbrance from the purchaser or mortgagee, or who 
 falsifies any pedigree on which the title may or does depend, 
 with intent to defraud, is guilty of a misdemeanour, and also 
 liable to an action for damages. 
 
 Every document which forms a link in the vendor’s title 
 ought to be abstracted in chief. If a document forms a link in 
 the title it is insufficient to abstract an instrument containing 
 a recital of it, however full(o). The instruments should be 
 abstracted in chronological order, except in the case of a will, 
 which should be placed immediately before the date of the 
 testator’s death; while statements of marriages, births, deaths, 
 heirships and other facts on which the title depends should be 
 inserted in their proper order of time. The abstract should give 
 tracings of the plan on any deed or document abstracted (p), 
 otherwise the abstract may be considered imperfect, at any 
 rate in a case where the parcels are not clearly identified by 
 the description in the body of the deed. The abstract should 
 also refer to any endorsements there may be on the docu- 
 ments abstracted. Where the land sold is in Yorkshire or 
 Middlesex, the abstract should state at the foot of each docu- 
 ment the memorandum of registration with reference to the 
 year, book, and number. Where the title is registered under 
 the Land Transfer Acts, a note of registration will be found 
 indorsed on the last purchase deed. 
 
 The vendor must bear the expense of the abstract, although, 
 in order to prepare it, he may require the production of docu- 
 
 (o) Re Ebsworth and Tidy's 
 Contract (1889), 42 Oh. D. 34; 
 Re Stamford, &c. Banking Co. 
 and Knight's Contract, (1900) 1 
 Oh. 287. 
 
 (p) The abstract is usually 
 written on brief paper with three 
 inner margins. The outer margin 
 is left clear for the person in- 
 vestigating the title to insert his 
 notes. The abstract commences 
 with a heading written from the 
 
 third margin which states the 
 name of the vendor or other per- 
 son, and a description of the pro- 
 perty. Then follow the instru- 
 ments and facts on which the 
 title depends. Recitals are written 
 from the first inner margin, the 
 testatum from the outer margin, 
 and the habendum from the 
 second inner margin; powers, 
 provisoes and declarations from 
 the outer margin. 
 
 2 
 
 non-dis- 
 
 closure. 
 
 22 & 23 Viet, 
 c. 35. 
 
 Manner of 
 
 preparing 
 
 abstract. 
 
 Abstract is 
 at vendor’s 
 expense. 
 
loo 
 
 Only oue 
 
 abstract 
 
 necessary. 
 
 Purchaser’s 
 rights as to 
 abstract. 
 
 Duty of 
 purchaser’s 
 solicitor on 
 receipt of 
 abstract. 
 
 Two objects 
 of examina- 
 tion of title. 
 
 Vendor’s 
 obligation to 
 produce 
 deeds. 
 
 BK. I., PT. I. — SALES, EXCHANGES AND GIFTS. 
 
 ments not in his possession; s. 3 (6) of the Conveyancing Act, 
 1881, does not relieve him from the obligation to deliver a 
 proper abstract (g). 
 
 Formerly, when property was sold in lots, the purchaser was 
 entitled to as many copies of the abstract as there were lots, 
 but the Conveyancing Act, 1881, s. 3 (7), provides that, when 
 the lots are held wholly or partially under the same title the 
 purchaser shall not have a right to more than one abstract of 
 the common title, except at his own expense. 
 
 A purchaser is entitled to be f urnished with an abstract, even 
 though he has agreed to accept the title; if' the sale is com- 
 pleted it becomes his absolutely; but if the sale goes off he 
 must return it to the vendor, and must not even take a copy 
 of it (r ) . 
 
 The purchaser’s solicitor is bound carefully to examine the 
 vendor’s title; and if through his failure to perform his duty 
 his client acquires a defective title he will be liable in damages 
 for negligence. The law does not, however, compel the solicitor 
 to take the property off his client’s hands (s). In practice it 
 is usual for the purchaser’s solicitor on receipt of the abstract 
 to indorse it with the date of delivery as a memorandum of the 
 time for the delivery of the requisitions on title. 
 
 The examination of the title involves the inquiry (1) whether 
 the abstract shows that the vendor has a good title, or rather 
 the title he has contracted to sell; and (2) assuming that the 
 abstract shows a good title, whether the vendor can prove the 
 title as abstracted. For the latter purpose it must be compared 
 with the deeds and documents abstracted to see that it states 
 their effect accurately. 
 
 Production of the Deeds. 
 
 Subject to the provisions of s. 3 (6) of the Conveyancing' 
 Act, 1881 (£),and of the contract the vendor must, at his own 
 
 (g) Re Johnson and Tustin (s) British Investment Co. v. 
 (1885), 30 Oh. D. 42. Cobbold (1875), L. E. 19 Eq. 627. 
 
 (r) Dart, Vendors and Pur- (t) Ante, p. 53. 
 chasers, 7th ed. vol. i. 315. 
 
THE ABSTRACT OF TITLE AND REQUISITIONS. 
 
 101 
 
 expense, produce the deeds and documents abstracted for inspec- 
 tion and examination by the purchaser. 
 
 The vendor may produce the deeds at his own residence, 
 or upon or near the land sold, or at the office of his solicitor, 
 or of the solicitor’s London agent (w); if he produces them 
 at any of these places, the purchaser has to pay for the neces- 
 sary journeys of his solicitor to inspect them. If, however, 
 the deeds are in London, and the office of the purchaser's 
 solicitor is in the country, the purchaser’s solicitor should in- 
 struct his London agents to make the examination; he cannot 
 charge the cost of a journey against the purchaser (%). If the 
 deeds are at some other country town, he may go himself, or 
 send a clerk, to examine them (;?/). 
 
 If the deeds are not in the possession of the vendor, as 
 prima facie they ought to be, their possession by the person 
 who has them must be satisfactorily accounted for; and if the 
 vendor has a covenant or acknowledgment for their production, 
 he must give the necessary authority to enable the purchaser 
 to obtain their production (2). 
 
 Proof of the Execution, A ttestation , and Validity of the Deeds 
 
 and Documents abstracted. 
 
 The mere production of the abstracted deeds and documents, 
 however recent they may be, is generally deemed sufficient 
 proof of them. In strictness the purchaser is entitled to have 
 the due execution of every document proved, but this is seldom 
 insisted on unless there are suspicious circumstances attending 
 the execution. His right of proof is also subject to the rule 
 that deeds and documents thirty years old prove themselves, 
 provided they come from the proper custody, and possession has 
 been held consistently with their provisions ( a ) . 
 
 Attestation is unnecessary unless it is required by an instru- 
 
 ( u ) See Sugden, V. & P. 14th 
 ed. 429; Dart, V. & P. 7th ed. 
 481. The common practice now is 
 to produce them at the vendor’s 
 solicitor’s office. 
 
 (a?) Alsop v. Lord Oxford 
 (1833), 1 M. & K. 564. 
 
 ( y ) See Hughes v. Wynne 
 (1836), 8 Sim. 85. 
 
 (z) JUpvinqall v. Lloyd (1833), 
 2 N. & M. at p. 419. 
 
 ( a ) Doe v. Wolley (1828), 8 
 E. & C. 22. 
 
 As to place 
 and expenses 
 of production. 
 
 Where not in 
 vendor’s 
 possession . 
 
 As to proof 
 of — 
 
 (a) ordinary- 
 deeds ; 
 
 (i) execution ; 
 
 (ii) attesta- 
 tion ; 
 
102 
 
 BK. I., PT. I. SALES, EXCHANGES AND GIFTS. 
 
 (iii) registry 
 tion : 
 
 (iv) stamps ; 
 
 (v) deeds 
 executed 
 under a 
 power of 
 attorney. 
 
 45 & 46 Yict. 
 c. 39. 
 
 ment creating a power or by some statute (&). Many instru- 
 ments are required by statute to be attested. Thus, bills of 
 sale must be attested (c) ; conveyances within the Mortmain 
 Acts require two witnesses (d) ; appointments by deed of 
 guardians to infants by their fathers require two witnesses (e); 
 memorials for registration of instruments in the Middlesex and 
 Yorkshire Registries require to be witnessed (/) ; and wills of 
 real property, executed before 1838, require three (g), and wills 
 of any property, executed since 1837, two, witnesses (h). 
 
 When a deed requires registration in Middlesex or York- 
 shire, a memorandum signed by the registrar indorsed on the 
 deed is evidence of its due registration. 
 
 The documents must be duly stamped. If they are not, the 
 purchaser can require the vendor to stamp them properly, unless 
 the expense as to documents dated even before 16th May, 1888, 
 be thrown on the purchaser by the contract (i) . This applies 
 not only to the documents of title, but also to a lease or agree- 
 ment subject to which the property is sold (1c) . 
 
 If a deed has been executed under a power of attorney, the 
 purchaser can require the power (which must be under seal) 
 to be produced in order to see that the exercise of the power is 
 in accordance with its terms (?), and proof that the donor was 
 alive at the time it was acted upon. The production of a cer- 
 tificate of the death of the donor, showing him to have died 
 subsequently to the execution of the deed, will generally 
 suffice. There will be a presumption that the power was not 
 expressly revoked until the contrary be shown. The necessity 
 for requiring evidence of the non-revocation of a power has, 
 however, been to a certain extent removed by the provisions 
 of the Conveyancing Act, 1882, which by s. 8 provides, that if 
 
 (6) Per Lord Selborne, Seal v. 
 Claridge (1881), 7 Q. B. D. at 
 
 p. 519. 
 
 (c) Bills of Sale Act, 1878, 
 s. 10; Bills of Sale Act, 1882, s. 8. 
 
 ( d ) Mortmain and Charitable 
 Uses Act, 1888, s. 4 (6). 
 
 (e) 12 Car. 2, c. 24, s. 8. 
 
 (/) Land Registry (Middlesex 
 Deeds) Act, 1891, Schcd., rr. (2) 
 
 and (3) ; Yorkshire Registries 
 Act, 1884, s. 6. 
 
 ( g ) Statute of Frauds, s. 5. 
 
 (h) Wills Act, 1837, s. 9. 
 
 (i) Ante, p. 65. 
 
 (7r) Coleman v. Coleman (1898), 
 79 L. T. 66. 
 
 (1) For an instance of the ne- 
 cessity of this, see Re Dowson and 
 Jenkins's Contract, (1904) 2 Ch. 
 219. 
 
THE ABSTRACT OF TITLE AND REQUISITIONS. 
 
 1 
 
 o: 
 
 a power of attorney is given for valuable consideration, and is 
 in the instrument creating it expressed to be irrevocable, then, 
 m favour of a purchaser, the power cannot be revoked expressly, Irrevocable 
 without the donee’s concurrence, or by the donor’s death, mar- attorney, 
 riage, lunacy, unsoundness of mind, or bankruptcy, but the 
 donee may act in spite of such occurrences. And further, 
 neither the donee nor the purchaser is to be prejudicially 
 affected by notice of an express revocation, or of facts which 
 would otherwise constitute an implied one. Sect. 9 of the same 
 act provides, that if a power of attorney, whether given for 
 valuable consideration or not, is by the instrument creating it 
 expressed to be irrevocable for a fixed time not exceeding a year 
 from the making thereof, then in favour of a purchaser the 
 power cannot be revoked expressly, without the donee’s con- 
 currence, or impliedly, during that fixed time, and the donee 
 may do any act under it during that fixed time, notwith- 
 standing anything amounting to revocation; nor will notice 
 of express revocation or of the donor s death, marriage, lunacy, 
 unsoundness of mind, or bankruptcy prejudice the purchaser 
 or the donee. The act only applies to powers created after 
 1882. The donee of a power of attorney ought to exercise it Mode of 
 not in his own, but in the donor’s name; and formerly, if be 0 
 
 used his own name only, he, and not his principal, would be 
 bound. But by s. 46 of* the Conveyancing Act, 1881 (which 
 applies to powers created by instruments dated either before 
 or after the commencement of the act), the donee may execute 
 any assurance or instrument in his own name if he thinks fit. 
 and the instrument so executed will be binding on the donor. 
 
 When a deed is not produced, and its loss is set up as the (vi) lost deed 
 reason for non-production, the purchaser is entitled to evidence 
 of the alleged loss, or that diligent search for the lost deed has 
 been made without success. He is also entitled to evidence of 
 the contents and execution of the deed. If a copy is tendered as 
 evidence, it must be a copy of the original; a copy of a copy is 
 not evidence ( m ) . 
 
 A private act of parliament which is directed to be noticed (b) Private 
 
 acts ; 
 
 (m) Re Halifax Commercial Banking Co. and Wood (1898), 79 
 L. T. 536. 
 
104 
 
 (c) Awards. 
 
 (d) Copyhold 
 assurances. 
 
 (e) Acknow- 
 ledged deeds. 
 
 (f) Enrolled 
 deeds. 
 
 ( g ) Crown 
 grants. 
 
 (h) Wills. 
 
 BK. I., PT. I. — SALES, EXCHANGES AND GIFTS. 
 
 as a public one is proved by production of a king’s printers’ 
 copy(w). In other cases the act must be proved by a copy 
 examined with the parliament roll. Every act passed since 
 1850 is a public act, and is judicially noticed as such unless 
 the contrary is expressly provided by the act (a). 
 
 Awards under an Inclosure act are proved by a copy or 
 extract signed (1) by a proper officer of the court, if the enrol- 
 ment has been made in the High Court; (2) by the clerk of the 
 peace of’ the county or his deputy, if it has been made with the 
 clerk of the peace. 
 
 Copyhold assurances are proved by copies of the court roll 
 signed by the steward; as a rule, evidence of his handwriting 
 is not insisted on. 
 
 In the case of deeds acknowledged by married women before 
 the 1st January, 1883, under the Fines and Recoveries Act, the 
 purchaser should see that the certificate of acknowledgment has 
 been properly completed, and require proof that it has been 
 duly filed. With regard to deeds acknowledged since 1882, it 
 must be seen that the proper memorandum, signed by the com- 
 missioner who took the acknowledgment, is indorsed as required 
 by s. 7 of the Conveyancing Act, 1882. 
 
 Disentailing assurances and other deeds enrolled in Chancery 
 are proved by certificates of enrolment, signed by the proper 
 officer, and such certificates are sufficient primd facie evidence 
 of due enrolment. Office copies of enrolments, stamped with 
 the seal of the Enrolment Office, are, by a number of statutes, 
 made as good evidence as the original enrolments (p) . 
 
 A grant from the crown is proved by an exemplification or 
 certified copy. 
 
 A will of real estate is proved by the production of the pro- 
 bate or letters of administration with the will annexed, or an 
 office copy thereof, notwithstanding the same has not been 
 proved in solemn form, or declared valid in a contentious cause 
 or matter (q). If probate of the will has not been obtained 
 
 (ft) Evidence Act, 1845, s. 3; (p) See Phipson, Evidence, 5th 
 
 Documentary Evidence Act, 1882, ed. 504. 
 
 s. 2. ( q ) Court of Probate Act, 
 
 (o) Interpretation Act, 1889, 1857, s. 64. 
 
 s. 9. 
 
THE ABSTRACT OF TITLE AND REQUISITIONS. 
 
 105 
 
 and the testator died before the 1st January, 1898, a purchaser 
 of real property devised by it must be satisfied with production 
 of the will itself and evidence of its due execution in accordance 
 with the Wills Act, 183,7; for, as far as regards real property, 
 probate was formerly unnecessary. If the testator died since 
 the 31st December, 1897, probably the point will not arise 
 having regard to the provisions of Part I. of the Land Transfer 
 Act, 1897. But since s. 1 (3) of the act merely makes it per- 
 missible to grant probate or letters of administration in respect 
 of a will of real estate only, it may be that the production 
 of the original will is still sufficient, even where the executor 
 is the vendor . 
 
 If' copyholds have been voluntarily enfranchised either under 
 the now repealed acts of 1841, 1843/, and 1844, or under the 
 existing Copyhold Act of 1894, the enfranchisement must have 
 been carried out by deed, and the deed will be proved in the 
 ordinary way. If it has been compulsorily effected under the 
 repealed acts of 1852, 1858, and 1887, or under the act of 
 1894, there will be simply an award of the Board of Agricul- 
 ture, which must have been duly confirmed (r) . 
 
 Proof of other Facts. 
 
 Evidence that the parcels as described in the deeds are 
 identical with those contracted to be sold, if 1 the purchaser 
 is entitled to require it ($), may be given by means of old 
 plans, leases, parish assessments, declarations of old persons as 
 to the identity of the property, and as to the uninterrupted 
 enjoyment of it by the vendor and his ancestors, or the person 
 from whom he bought it. 
 
 Seisin may be proved by circumstances showing that the 
 person whose seisin has to be proved dealt with the land in 
 the character of a man who had taken legal possession of it; 
 thus, the production of leases granted by him, which have been 
 followed by possession or the payment of rent (£), assessment 
 
 (r) See more fully p. 523 (£) See Clarkson v. Woodhouse 
 
 et seq., below. (1783), 5 T. E. 412, n. 
 
 (•s) See above, p. 62. 
 
 (i) Enfran- 
 chisements of 
 copyhold*. 
 
 Evidence 
 of other 
 facts. 
 
 (a) Identity 
 of parcels. 
 
 (b) Seisin. 
 
106 
 
 BK. I., PT. I. SALES, EXCHANGES AND GIFTS. 
 
 (c) Births, 
 deaths and 
 marriages. 
 
 (d) Pedigree. 
 
 to the poor rates, land tax, and other evidence of this nature, 
 will be deemed sufficient. 
 
 Births, deaths and marriages may be proved by recitals in 
 deeds, or other documents twenty years old under s. 2 of the 
 Vendor and Purchaser Act, 1874 (w), or by certificates obtained 
 from the proper registrars ( x ), or certified extracts from non- 
 parochial registers deposited with the Registrar-General (y). 
 When certificates cannot be obtained, declarations by members 
 of the family, and entries in family bibles and other books, if 
 made by a member of the family, are receivable as evidence. 
 These may be corroborated by statutory declarations of mem- 
 bers of the family or relations. The reason for requiring the 
 entries in books, and declarations to be made by a member of 
 the family, is that the law presumes that not only are they 
 the persons most likely to know the truth, but at the same 
 time they are the least subject to the temptation to exceed or 
 fall short of it (z) . But as between vendor and purchaser, 
 declarations of persons not actually members of the family, 
 but well acquainted with them, may be accepted. 
 
 The proof of a pedigree includes the births, marriages, and 
 deaths of the persons who, from the pedigree, appear to have 
 been born, married, or died. It may also involve the negative 
 proof that a person died without having been married or without 
 having had issue. The first thing to be proved is that the 
 person from whom the descent is traced was a “purchaser” in 
 the legal sense of the word. Next, the death and intestacy of 
 the ancestor must be shown ; then the relationship of the person 
 alleged to be the heir must be proved by declarations and other 
 such secondary evidence. It seems that there is a presumption 
 that a person shown to be dead died unmarried and without 
 issue (a ) ; and the presumption may be corroborated by a 
 statutory declaration. Then the legitimacy of an heir may he 
 
 ( u ) Above, p. 51. 
 
 (cc) See the Births and Deaths 
 Registration Act, 1836, ss. 35, 38, 
 amended by the Births and Deaths 
 Registration Act, 1874, ss. 30, 32, 
 38. 
 
 (y) The Non-parochial Registers 
 
 Act, 1840, ss. 9, 17. 
 
 (z) See per Lord Eldon, White- 
 loche v. Baher (1807), 13 Yes. 514; 
 see also Haines v. Guthrie (1884), 
 13 Q. B. D. 818. 
 
 (a) Doe v. Wolley (1828). 8 
 B. & C. 22. 
 
THE ABSTRACT OF TITLE AND REQUISITIONS. 
 
 107 
 
 required to be established. There is a presumption that a 
 marriage proved to have taken place was valid and that a child 
 born in wedlock is legitimate even though born the day after 
 marriage, and the presumption may be strengthened by cer- 
 tificates of birth, declarations, or other similar evidence. Some- 
 times the register of a baptism states the fact of illegitimacy ; 
 such a statement, however, does not seem entitled to much 
 weight. Nor are the declarations of the parents themselves 
 after the birth evidence that can be relied on to prove legiti- 
 macy (&■). Strict proof' of a pedigree is not frequently insisted 
 on, in consequence of the difficulty of procuring it. 
 
 Redemption of the land tax is proved by the production of 
 the certificate of the commissioners, with the receipt of the 
 cashier of the Bank of England, and memorandum of registra- 
 tion, or a copy of the register (c). 
 
 The certificate of the steward of the manor is generally 
 received as evidence of the existence and nature of the custom 
 of the manor, but strictly the presentment of the homage and 
 proof from the rolls ought to be furnished. Evidence of repu- 
 tation is also admissible. 
 
 The production of letters of administration to a deceased 
 person’s estate is generally accepted as evidence that he died 
 intestate. If letters of administration are not produced, a 
 declaration that deceased did not make a will should be re- 
 quired. Search for a will may also be made in the probate 
 registry . 
 
 The award of the Tithe Commissioners, or Board of Agri- 
 culture, will be evidence of the freedom of the land from tithes 
 or tithe rent-charge {d ) . 
 
 Payment of succession duty may be proved by production of 
 the receipt for the duty, but the proper evidence of payment of 
 estate duty is a certificate of discharge under s. 11 (1) of the 
 Finance Act, 1894, and not the certificate of payment or 
 receipt for the duty (e) . 
 
 (b) Phipson, Evidence, 5th ed. 
 184. 
 
 (c) Land Tax Redemption Act, 
 1802, s. 38; see Poppleton v. 
 Buchanan (1858), 4 0. B. N. S. 20. 
 
 ( d ) See Jackson and Gosset, In- 
 vestigation of Title, 3rd ed. p. 383. 
 
 (e) Williams, Vendor and Pur- 
 chaser, pp. 1284, 1322. See post, 
 
 p. 116. 
 
 (e) Redemp- 
 tion of land 
 tax. 
 
 (f) Custom in 
 copyholds. 
 
 (g) Of intes- 
 tacy. 
 
 (h) Of freedom 
 from tithes. 
 
 (i) Of pay- 
 ment of 
 death 
 duties. 
 
108 
 
 (j) Of the non- 
 barring of an 
 estate tail. 
 
 Proceedings 
 in the High 
 Court. 
 
 Proceedings 
 in bank- 
 ruptcy. 
 
 Appointment 
 of trustee. 
 
 BK. I., PT. I. — SALES, EXCHANGES AND GIFTS. 
 
 In cases where it is necessary to prove that an estate tail has 
 not been barred— for instance, where the title is traced through 
 a person who took as heir to a tenant in tail — the fact that the 
 ancestor did not bar the entail can be ascertained by a search 
 in the Central Office of the High Court for a disentailing deed. 
 
 Proof of Proceedings in Courts of Justice. 
 
 Proceedings affecting the estate may have taken place in the 
 old courts of law or equity or in the High Court, or in lunacy. 
 Proceedings in the old courts of law and equity are proved by 
 exemplifications under the seal of the court, or authenticated by 
 the signature of the judge if the court had no seal. Proof of 
 the seal or signature is rendered unnecessary by 8 & 9 Viet, 
 c. 43. By the Ilules of the Supreme Court, 1883, office copies 
 of all records, pleadings, and documents filed in the High 
 Court are admissible in evidence in all causes and matters, and 
 between all persons or parties, to the same extent as the original 
 would be admissible (/). 
 
 The Bankruptcy Act of 1883, s. 134, provides that any peti- 
 tion, or copy of a petition, any order or certificate or copy 
 thereof, any instrument or copy of any instrument, affidavit, or 
 document made or used in the course of any bankruptcy pro- 
 ceedings, or other proceedings had under that act, shall, if it 
 appears to be sealed with the seal of any court having jurisdic- 
 tion in bankruptcy, or purports to be signed by any judge 
 thereof, or is certified as a true copy by any registrar thereof, 
 be receivable in evidence in all legal proceedings whatever. 
 
 The appointment of a trustee in bankruptcy is conclusively 
 proved by the certificate of the Board of Trade that he has been 
 appointed (g ) ; and all documents purporting to be orders or 
 certificates made or issued by the Board, and to be sealed by 
 the Board or signed by any person authorized by the President 
 of the Board, are to be received in evidence, and deemed to be 
 such orders or certificates without further proof, unless the con- 
 trary is shown (h). 
 
 (/) Ord. XXXVII. r. 4. 138. 
 
 (g) Bankruptcy Act, 1883, s. ( h ) Ibid. s. 140. 
 
THE ABSTRACT OF TITLE AND REQUISITIONS. 
 
 109 
 
 In lunacy proceedings also every office copy of the whole 
 of an order, or report confirmed by fiat, purporting to be signed 
 by a master, and sealed or stamped with the seal of the Master’s 
 Office, and every office copy of a certificate in lunacy is evidence 
 of the order, report, or certificate of which it purports to be a 
 copy, without further proof thereof (i). 
 
 Presumptions in favour of Vendor. 
 
 In many cases in whicli the vendor has been unable to supply 
 strict legal proof the court has required the purchaser to be 
 content with inferior species of proof, or has insisted on his pre- 
 suming a condition of affairs which is favourable to the title. 
 Thus, when a right which must have had its origin by virtue 
 of a deed has been long enjoyed, it may be presumed that the 
 necessary deed was executed, unless there is something to nega- 
 tive the presumption ( k ). As an instance of this, in Killary v. 
 Waller (7), a re-conveyance of the legal estate was presumed 
 from trustees in a case where the property had been dealt with 
 for 110 years without reference to the fact that it was outstand- 
 ing. Again, in Cooke v. Soltau (m), payment of a mortgage 
 debt and re-conveyance of the legal estate were presumed, an 
 interval of eighty years having elapsed, and the mortgage not 
 having been mentioned subsequently in the title deeds, and the 
 deeds having been in the vendor’s possession for twenty-five 
 years without any claim for interest or principal; and in 
 Bidlake v. Arundel (n) payment of the purchase-money was 
 presumed after the lapse of forty years. Again, an enfran- 
 chisement of copyholds will be presumed where for a great 
 length of time the lord of the manor has not claimed any of his 
 manorial rights (o). It will also be presumed that the form- 
 alities requisite to a deed have been duly observed; thus, if a 
 deed with the attestation in the usual form and showing the 
 
 (i) Lunacy Act, 1890, s. 144. 
 (&) Lyon v. Reed (1844), 13 
 M. & W. 285, per Parke, B., at p. 
 303. 
 
 (Z) (1805), 12 Ves. 239. 
 
 (m) (1824), 2 Sim. & Stu. 154. 
 
 (n) (1636), 1 Ch. R. 50. 
 
 ( o ) Re Lidiard and Jackson's 
 Contract (1889), 42 Ch. D. 254; 
 and see Ecclesiastical Commis- 
 sioners v. Parr , (1894) 2 Q. B. 
 420. 
 
 Proceedings 
 in lunacy. 
 
 Presumptions 
 limiting 
 purchaser’s 
 rights : 
 
 (a) as to 
 existence and 
 execution of 
 deeds ; 
 
no 
 
 BK. I., FT. I. — SALES, EXCHANGES AND GIFTS. 
 
 (b) as to 
 seisin of 
 testator ; 
 
 (c) as to 
 death ; 
 
 (d) as to 
 woman being 
 past child- 
 bearing. 
 
 signature of the person conveying is produced, the sealing and 
 delivery of it will be presumed (p ) . Again, where a document 
 hears a date, it is presumed to have been executed on the day 
 of such date, and if two or more deeds of a series are dated the 
 same day, they are presumed to have been executed in the order 
 necessary to effect the object to be attained (g); and there will 
 he a presumption that an instrument duly executed, which is 
 lost, was also duly stamped (r ) . This is subject to the quali- 
 fication that there will be no presumption that prescribed 
 formalities have been complied with, when the law has specially 
 prescribed them on the grounds of general policy. Conse- 
 quently, no presumption will arise as to the due enrolment of 
 a deed specially required by statute to be enrolled (s) . F urther, 
 where alterations, erasures, or interlineations are found in a deed, 
 the presumption is that they were made before execution, 
 though in the case of a will they are deemed to have been made 
 after execution (t). Again, when the actual seisin of a testator 
 cannot be proved it will be presumed from facts which show 
 that he acted as owner of the property, e.g., by the production 
 of leases granted by him. Further, a presumption arises under 
 the rule, laid down in Nepean v. Doe, that a person who has 
 been unheard of for seven years is dead, but there is no pre- 
 sumption as to the time of death (u), and the particular circum- 
 stances of each case must be considered (aj) . In spite of the 
 generally recognized rule that a woman is not, however old, 
 to be considered past child-bearing, as between vendor and 
 purchaser, a presumption will sometimes be raised that a female 
 of an advanced age is past the age of child-bearing. It has been 
 presumed, for instance, that a woman of sixty-eight and un- 
 married was one who was not likely to have any issue (//) ; and 
 
 ( p ) Taylor, Evidence, 10th ed. 
 p. 149. 
 
 ( q ) Gartside v. Silkstone, &c. 
 Co. (1882), 21 Ch. D. 762. 
 
 (r) JI art v. Hart (1811), 1 
 Hare, 1. 
 
 (s) Doe v. Waterton (1819), 3 
 B. & Aid. 149. 
 
 (t) Fitzgerald v. Fauconberge 
 
 (1731), Fitzgibbon, at p. 214. 
 
 (u) (1837), 2 M. &W. 894. 
 
 (cc) See Rhodes v. Rhodes 
 (1887), 36 Ch. D. 586. 
 
 ( y ) Miles v. Knight (1848), 17 
 L. J. Ch. 458; and see Re Wi- 
 dow's Trusts (1871), L. R. 11 Eq. 
 408. 
 
THE ABSTRACT OF TITLE AND REQUISITIONS. 
 
 Ill 
 
 that a woman of nearly fifty, who had been married for twenty- 
 six years without having had children, would not have any ( z ), 
 but the court has refused to make the presumption in the case 
 of a woman married only three years, though she was more than 
 fifty-four years of age ( a ) . 
 
 Requisitions and Observations on Title. 
 
 A purchaser is entitled, subject to the provisions of the con- 
 tract, to deliver to the vendor written requisitions and objec- 
 tions with reference to any defect in the title which may appear 
 upon the abstract, or be disclosed by examination of the deeds, 
 and the vendor is bound to comply therewith. 
 
 Requisitions must be framed with a regard to the nature 
 of the particular title in respect of which they are made, and 
 also to the restrictions under which the purchaser is placed by 
 the contract, or by law, although in practice unenforceable 
 requisitions are often made in the hope of obtaining some in- 
 formation. In stating the evidence to which a purchaser is 
 entitled in proof of the vendor’s title, the points upon which 
 requisitions and objections should be made have been indi- 
 cated. The following may be mentioned in addition as matters 
 upon one or more of which it is necessary to make requisitions 
 in the case of most titles: — 
 
 When it is found that the land has been charged with pay- 
 ment of an annuity or rent-charge, inquiry should be made 
 whether the annuitant is alive, and the production of receipts, 
 to show that the annuity has been duly paid, required. If any 
 annuitant is living, he should, unless the property has been 
 sold subject to the annuity, be required to join in the convey- 
 ance and release the estate; if alleged to be dead, proof of his 
 death, and of due payment of the annuity up to the date of 
 death, should be required (h). Satisfaction of any registered 
 annuity may be entered up at the Land Registry, and certifi- 
 cates of such entry issued (c ) . 
 
 (z) Be Milner's Estate (1872), (5) Jackson and Gosset, Inves- 
 
 L. R. 14 Eq. 245. tigation of Title, 3rd ed. p. 34. 
 
 (a) Croxton v. May (1878), 9 (c) Crown Debts and Judg- 
 
 Ch. D. 388. ments Act, 1860, s. 2; Land 
 
 Charges Act, 1900, s. 1. 
 
 Right of 
 purchaser to 
 make requi- 
 sitions. 
 
 Requisitions 
 
 generally. 
 
 As to 
 
 charges for 
 annuities, &o. 
 
112 
 
 As to legacies. 
 
 As to pay- 
 ment of death 
 duties. 
 
 (a) Succession 
 
 duty. 
 
 16 & 17 Viet, 
 c. 71. 
 
 When 
 payable ; 
 
 BK. I., PT. I. — SALES, EXCHANGES AND GIFTS. 
 
 When any legacy lias been charged on the land, the vendor 
 should be required to produce a stamped receipt, signed by the 
 legatee or other person entitled. The conditions of sale often 
 preclude the purchaser from requiring evidence of the pay- 
 ment of any legacy or sum of money charged on the land 
 which became payable twelve years or more before the date 
 of the contract (d ) ; but in the absence of such a condition 
 the purchaser should require a receipt for the legacy, even 
 though more than twelve years have elapsed since it became 
 payable, because, although after that time it will as a rule be 
 barred by the Ideal Property Limitation Acts of 1833 and 1874, 
 yet it might still be subsisting by reason of the legatee or other 
 person being under some disability, such as infancy, and so 
 entitled to an extension of time, or by reason of an acknowledg- 
 ment given by the executor (e) . The receipt must be duly 
 stamped, for, by s. 28 of the Legacy Duty Act, 1796, no written 
 receipt or discharge for any legacy, on which duty is payable, 
 shall be received in evidence unless duly stamped. After 
 thirty years it may be assumed that the legacy or other sum 
 has been discharged, for this is the maximum period allowed 
 for bringing an action to recover a legacy, whether there is 
 disability or not, and even though the legacy is charged on 
 the land so as to create an express trust in favour of the 
 legatee (/). 
 
 Subject to what is stated below, in every case in which it is 
 found that there has been a devolution of property on death, 
 on or after the 19th May, 1853, proof must be required that 
 succession duty has been paid, and also if the death occurred 
 on or after the 1st August, 1894, that estate duty has been 
 paid . 
 
 The liability to pay succession duty arises under the Succes- 
 sion Duty Act, 1853, the general effect of which is to impose 
 the duty on any beneficial interest in property accruing to one 
 person on the death of another in all cases except those in which 
 legacy duty is payable. Legacy duty is payable only on pure 
 personalty passing under a will or intestacy, or as a donatio 
 
 ( d ) Sec, c.g., Ilopkinson v. 3 Jur. 950. 
 
 Chamberlain, (1908) 1 Cli. 853. (/) Beal Property Limitation 
 
 (e) See Shields v. Rice (1839), Act, 1874, s. 10. 
 
TIIE ABSTRACT OF TITLE AND REQUISITIONS. 
 
 11:3 
 
 mortis causa , so that succession duty is payable on realty and 
 leaseholds, whether settled or not, and upon pure personalty 
 if it passes on death under a settlement made otherwise than by 
 
 will. 
 
 To carry out this general idea, the act provides that duty 
 shall be paid by anyone who succeeds to property or the income 
 thereof on the death of another, whether he succeeds by the 
 effect of some instrument or by operation of law(^r); that a joint tenants ; 
 surviving joint tenant must pay duty on the beneficial interest 
 accruing to him by survivorship (h ) ; that anyone who has a powers of 
 general power of appointment under a disposition taking effect d PP ollltment • 
 on death must pay duty if he exercises the power, and that 
 anyone to whom property is appointed under a limited power 
 under such a disposition must pay duty (i ) ; that duty must be of 
 
 paid on the extinction or determination on death of any charge, 
 estate or interest in property (7c), or of any interest reserved 
 to the grantor or any other person on a disposition which is not 
 a bond fide sale (7); and provision is made to prevent evasion 
 of the duty (m ) . 
 
 The rate of duty depends upon the relationship of the “ sue- Rates of 
 cessor ” to the “predecessor,” and varies from 1 to 10 per cent. 
 
 In the case of deaths occurring on or after the 30th April, 
 
 1909, the following are the rates: — A husband or wife, or 
 lineal ancestor or descendant, pays 1 per cent.; a brother or 
 sister, or descendant of a brother or sister, pays 5 per cent.; 
 any other person or a charity pays 10 per cent. (w). 
 
 Where there has been a transmitted succession, that is, where transmitted 
 the successor before becoming entitled in possession has died, succe ^ 10ns ’ 
 
 (9) s. 2. 
 
 ( h ) s. 3. 
 
 ( i ) s. 4. 
 
 (7c) s. 5. 
 
 (7) s. 7. 
 
 (m) s. 8. 
 
 ( n ) Finance (1909-10) Act, 
 1910, s. 58; Succession Duty Act, 
 
 1853, ss. 10, 11, 16. For the rates 
 formerly payable, see Succession 
 Duty Act, 1853, ss. 10, 11, 16; 
 Customs and Inland Revenue Act, 
 1881, s. 41; Customs and Inland 
 Revenue Act, 1888, s. 21 (1); 
 Finance Act, 1894, s. 1. 
 
 G. — C. 
 
 I 
 
114 
 
 transferred 
 successions ; 
 
 exemptions ; 
 
 BK. I., PT. I. SALES, EXCHANGES AND GIFTS. 
 
 and the property has thus passed to some one else, the trans- 
 mittee — the new successor — if the property the subject of the 
 succession is personal property (not including leaseholds), will 
 pay only one duty, but the crown can claim the higher rate of 
 duty — that is to say, if the original successor would have paid 
 at the rate of 5 per cent, on the value of his succession, and the 
 transmittee would have to pay 10 per cent, on the value, the 
 crown could claim the latter rate of duty, and so vice versa (o). 
 If the property consists of realty or leaseholds, s. 14 doeis 
 not apply, and it would seem that both duties would be 
 payable (p). 
 
 Where a succession, before falling into possession, has be- 
 come vested, by alienation, or any title not conferring a new 
 succession, in any other person, that is to say, where there is a 
 transferred succession, the duty is payable just the same as 
 if no such alienation had been made; such, also, will be the 
 case where the title to any succession has been accelerated by 
 the extinction or surrender of any prior interest (q). 
 
 No succession duty is payable where the whole successions 
 derived from the same predecessor are not of the value of 100Z., 
 or where the property has j;>aid legacy duty (r), or where the 
 net value of the property, real and personal, in respect of which 
 estate duty is payable, exclusive of property settled otherwise 
 than by the will of the deceased, does not exceed 1,000Z. (s). 
 Formerly, no duty was payable where the successor was the 
 husband or wife of the predecessor (t), or was a lineal ancestor 
 or descendant succeeding to property chargeable with estate 
 duty (u) ; but such successors now pay duty where the death 
 occurred on or after the diOtli April, 1909, except where the 
 principal value of the property passing on the death of the 
 deceased, in respect of which estate duty is payable, does not 
 exceed 15,000L, or where the total value of the benefits derived 
 by the successor from the predecessor do not exceed 1,000£., or, 
 
 (o) s. 14. 
 
 (p) See Wolverton v. A.-G., 
 (1898) A. C. 535; Northumber- 
 land v. A.-G., (1905) A. C. 406. 
 
 (?) s - 15 - 
 
 (r) s. 18. 
 
 (s) Finance Act, 1894, s. 16 (3). 
 (£) Succession Duty Act, 1853, 
 
 s. 18. 
 
 ( u ) Finance Act, 1894, s. 1. 
 
THE ABSTRACT OF TITLE AND REQUISITIONS. 
 
 115 
 
 if the successor is the widow or infant child of the predecessor, 
 2,000/. (x). 
 
 The duty becomes due (subject to s. 20) on the successor 
 becoming entitled in possession. The Succession Duty Act, 
 1853 (s. 21), provided that the interest of the successor in real 
 property (with a few exceptions) was to be considered to be 
 the value of an annuity equal to the annual value of the pro- 
 perty after making certain allowances and valued according 
 to the tables in the schedule to the act; and the duty was to be 
 paid in eight equal half-yearly instalments, the first of which 
 was to be paid at the expiration of twelve months next after 
 the successor has become entitled, provided that if he died before 
 aJl the instalments had become due any instalment not due at 
 his death ceased to be payable, except in the case of a successor 
 competent to dispose by will of a continuing interest in such 
 property. Since the Finance Act, 1894, where the successor 
 is competent to dispose of the property, the value is the princi- 
 pal value of' the property after deducting estate duty and the 
 expenses properly incurred in raising and paying the same, 
 and it may be paid either (1) in a lump sum; or (2) by eight 
 yearly instalments or sixteen equal half-yearly instalments, 
 the first being paid at the end of the year from the time of the 
 successor becoming entitled in possession. When the payment 
 is made by instalments, the unpaid instalments carry interest 
 at 3' per cent. (y). 
 
 A person is to be deemed competent to dispose of property 
 if he has such an estate or interest therein, or such general 
 power as would, if he were sui juris, enable him to dispose of 
 the property, including a tenant in tail, whether in possession 
 or not (z). The principal value of the property is usually the 
 price which, in the opinion of the Inland Revenue Commis- 
 sioners, the property would fetch if sold in the open market 
 at the death of the predecessor after making certain de- 
 ductions (a ) . 
 
 ( x ) Finance (1909-10) Act, and 18. 
 
 1910, s. 58. (z) Finance Act, 1894, s. 22 (2). 
 
 ( y ) Finance Act, 1894, ss. 6 (8) (a) See Succession Duty Act, 
 
 i 2 
 
 duty when 
 payable ; 
 how it should 
 be paid. 
 
 Who is 
 “ competent 
 to dispose.” 
 
116 
 
 BK. I., PT. I.— SALES, EXCHANGES AND GIFTS. 
 
 duty is a 
 charge on the 
 property ; 
 
 except where 
 land is sold 
 under a trust 
 for or power 
 of sale ; 
 
 effect of 
 receipt ; 
 
 when barred. 
 
 Succession duty is a first charge on the interest of the suc- 
 cessor, and of all persons claiming in his right in all the real 
 property ( b ) in respect whereof such duty is assessed, and also 
 on the interest of the successor in personal property (b) on which 
 it is assessed while the property remains in the ownership or 
 control of the successor or his trustee, or of the husband of any 
 wife who shall be successor (c) ; it will have priority over all 
 charges and interests created by the successor, but will not affect 
 or charge any of his real property other than that comprised in 
 the succession. But where settled real property comprised in a 
 succession is subject to any power of sale exerciseable with the 
 consent of the successor or by the successor with the consent 
 of another, he is not disqualified by the charge of the duty on 
 his succession from authorizing the exercise of the power or 
 exercising the power with consent, the duty being then charged 
 on the substituted property (d ) . As the duty is charged on 
 the successor’s interest, a purchaser from trustees who are 
 selling under a trust for sale, whether contained in a deed or 
 in a will, is not concerned to see to the payment of succession 
 duty; and the position is the same when the sale takes place 
 under an express power of sale or under the powers conferred 
 by the Settled Estates Act, 1877, or the Settled Land Act, 
 1882, the duty in all these cases being charged on the proceeds 
 of sale (e). 
 
 Sect. 52 of the act of 1853 provides that the receipt for the 
 duty and a certificate of payment shall exonerate a bond fide 
 purchaser from such duty, notwithstanding any suppression or 
 misstatement in the account. 
 
 By the Customs Act, 1889, s. 12, property ceases as against 
 a purchaser or mortgagee to be charged with succession duty 
 
 1853, s. 22, and Finance Act, 1894, 
 ss. 7 (5), 18; Finance (1909-10) 
 Act, 1910, ss. 60, 61. 
 
 (6) “Real property” here in- 
 cludes leaseholds, “ personal pro- 
 perty ” does not. Succession Duty 
 Act, 1853, s. 1. 
 
 (c) The duty is also made a 
 
 charge on real property by the 
 Finance Act, 1894, s. 18 (1). 
 
 (d) Act of 1853, s. 42. 
 
 (e) Dugdale v. Meadows (1870), 
 L. R. 6 Ch. App. 501 ; Re Warner's 
 S. E. (1881), 17 C. D. 711; and 
 see Williams, Vendor and Pur- 
 chaser, 2nd ed. pp. 1286 et seq. 
 
THE ABSTRACT OF TITLE AND REQUISITIONS. 
 
 117 
 
 after the expiration of six years from the date of notice to the 
 Commissioners of Inland Revenue of the fact of the succession 
 or from the first payment by the successor of any instalment 
 of the duty, or in the absence of any such notice or payment 
 after the expiration of twelve years from the happening of 
 the event which gave rise to an immediate claim to such 
 duty (/). 
 
 In addition to succession duty, all property, real or personal, 
 settled or unsettled, which passes, or is deemed to pass, on the 
 death of anyone dying after the 1st August, 1894, is liable to 
 “ estate duty ” by virtue of the provisions of the Finance Acts, 
 1894 — 1912, the rates of duty varying from 1 to 15 per cent, 
 -according to the net aggregate value of the property. If the 
 property is settled, an additional 2 per cent, estate duty, called 
 “ settlement estate duty,” has also to be paid in certain cases (g ) . 
 By s. 9 (1) of the act estate duty is made a charge on the pro- 
 perty if, and if only, it does not pass to the executor as such. A 
 purchaser, therefore, of leaseholds which have passed under a 
 will or intestacy need not concern himself with the question 
 whether the duty has been paid, since they pass to the executor 
 or administrator as such (h ) . But it is otherwise in the case 
 of realty, which, even since the Land Transfer Act, 1897, is 
 not property passing to the executor as such for this purpose (i). 
 Where the property does not pass to the executor as such, the 
 liability of the purchaser to see that the duty has been paid 
 exists whether the vendor is a beneficial owner, a trustee selling 
 under a trust for or a power of sale, or an executor or 
 administrator (fc), and the provisions of the act exempting a 
 bond fide purchaser for valuable consideration without notice 
 from liability to pay the duty should not be relied upon, as it 
 is not clear whether the notice referred to is notice of the death 
 or notice of the non-payment of the duty (7). If, however, 
 
 (/) As to the notice referred to, 
 see s. 15 of the act. 
 
 ( g ) Finance Act, 1894, s. 5. 
 
 ( [h ) See ss. 6, 8, and 9 of the 
 Finance Act, 1894; and Re Cul- 
 verhouse, (1898) 2 Ch. 251. 
 
 ( i ) Re Palmer, (1900) W. N. 9 : 
 In re Sharman, (1901) 2 Ch. 280. 
 
 (A) See Law Notes, vol. xvii. 
 pp. 176 and 219, and vol. xviii. 
 p. 332. 
 
 (Z) Finance Act, 1894, ss. 
 8 (18), 9 (1), 11 (4). 
 
 (b) Estate 
 duty. 
 
 When a 
 charge on the 
 property. 
 
118 
 
 BK. I., PT. I. — SALES, EXCHANGES AND GIFTS. 
 
 When barred. 
 
 Increment 
 value duty. 
 
 As to volun 
 tary settle- 
 ments. 
 
 twelve years have elapsed since the death, the purchaser is pro- 
 tected, since by the Finance Act, 1894, s. 8 (2), the provision 
 of the Customs and Inland Revenue Act, 1889, s. 12, above, 
 by which succession duty is barred, applies also to estate 
 duty. 
 
 Increment value duty, which was imposed by the Finance 
 (1909-10) Act, 1910, appears not to be a charge on the land 
 where it is payable on the occasion of a transfer on sale (m), 
 though, as we have seen, the purchaser must see that the con- 
 veyance to him is duly stamped with one of the stamps men- 
 tioned in s. 4 (3) of the act (w). But where the duty is pay- 
 able by reason of the land passing on death, the duty is to be 
 assessed, collected and recovered as if it were estate duty, 
 except that the duty is to be payable out of the land even if it 
 passes to the personal representative as such, so that in all 
 cases it will be a charge on the land, and the purchaser must 
 see that it has been duly paid (o) . Whether the duty payable 
 periodically by bodies corporate or unincorporate is charged 
 on the laud or not is not clear from the act (p). 
 
 If a voluntary settlement were found on the title, and the 
 deed were less than ten years old, it used to be thought that 
 the purchaser ought to decline to complete, even though evi- 
 dence was produced to him that the vendor was solvent at the 
 time (g). For by s. 47 of the Bankruptcy Act, 1883, a volun- 
 tary settlement is void against the trustee in bankruptcy if the 
 settlor becomes bankrupt within two years of its date, and is 
 void against the trustee if he becomes bankrupt within ten years 
 thereafter, unless the parties claiming under it can prove that he 
 was able to pay all his debts without the aid of the property 
 comprised in the settlement, and that the property passed to the 
 trustee of the settlement on its execution. But in the ease of 
 Re Carter and Render dine' s Contract (r), the Court of Appeal 
 held that the section does not render a voluntary settlement 
 
 (m) See s. 1 and s. 4 (4) of 
 the act. 
 
 in) Ante, p. 74. 
 
 (o) See s. 1 (b); s. 5. 
 
 (p) See s. 1 (c); s. 6, and 
 
 Napier’s New Land Taxes, 2nd ed. 
 p. 125. 
 
 ( q ) Be Briggs and Spider,. 
 
 (1891) 2 Oh. 127. 
 
 (r) (1897) 1 Oh. 776. 
 
THE ABSTRACT OF TITLE AND REQUISITIONS. 
 
 119 
 
 void ab initio, but only voidable, so that if the property com- 
 prised in the settlement has been sold to a purchaser before it 
 has been avoided, the latter will have a good title, even though 
 he bought after the commencement of the bankruptcy (s). 
 Further, a conveyance made with intent to defeat, hinder or 
 delay creditors is void under 13 Eliz. c. 5; and, in the absence 
 of any evidence to the contrary, a voluntary deed will be pre- 
 sumed to be made with intent to defraud within the meaning 
 of the act if its effect is to deprive the settlor of the means of 
 paying his debts (£). But it has been decided that s. 5 of the 
 act protects a purchaser of any interest under the deed, whether 
 legal or equitable, if he is without notice, and prevents the deed 
 being void against him (u ) . Since these decisions, therefore, 
 a purchaser cannot refuse to complete on the ground of the 
 existence of a voluntary settlement, unless he has notice that 
 the settlor has committed an act of bankruptcy. 
 
 When the property sold is a renewable lease, and the ab- 
 stract shows it to have been surrendered and renewed, pro- 
 duction of the surrendered lease, and evidence that no beneficial 
 interest in it "which would attach to the new lease is outstanding 1 , 
 and that the surrenderor was the legal as well as the equitable 
 owner, must be required. For the reference to the old lease 
 is constructive notice of its contents (x ) ; and when a trustee 
 renews a lease, it enures to the advantage of all who were 
 beneficially interested in the old lease, so that it is necessary to 
 see that there are no such persons. 
 
 A general inquiry should be made whether roads and foot- 
 paths abutting on the property have been taken over by the 
 local authorities; and evidence required that all charges (if 
 any) for making, repairing, and draining the same have been 
 fully satisfied ( y ) . 
 
 (s) Be Hart , Ex parte Green, 
 (1912) 3 K. B. 6. 
 
 (£) Freeman v. Pope (1870), 
 L. R. 5 Ch. App. 538; see also 
 below, Part V., p. 450. 
 
 (u) Halifax Joint Stock Bank- 
 ing Co. v. Gledhill, (1891) 1 Ch. 
 31. 
 
 (as) Coppin v. Fernyhough 
 (1788), 2 Bro. C. C. 291; Hodg- 
 kinson v. Cooper (1846), 9 Beav. 
 304. 
 
 {y) See Dickens, Requisitions on 
 Title, 2nd ed. 5, 7, 16, and 61; 
 Jackson and G osset, Investigation 
 of Title, 3rd ed. 372; see also Be 
 
 As to sur- 
 rendered 
 leases. 
 
 As to roads 
 abutting* on 
 property. 
 
120 
 
 As to ease- 
 ments. 
 
 As to notices 
 by local 
 authorities. 
 
 As to incum- 
 brances 
 generally. 
 
 Notice 
 
 generally. 
 
 BK. I., PT. I. — SALES, EXCHANGES AND GIFTS. 
 
 A general inquiry should be made whether there are any 
 rights of way, water, or other easements affecting the property 
 sold. Strict proof that there are none cannot, of course, be 
 insisted on, for the presumption is that they do not exist, and 
 the vendor cannot be expected to prove a negative ( z ) . 
 
 A general inquiry should also be made, where the subject- 
 matter of the purchase consists of house property, whether any 
 parochial or other notices under the Public Health Acts, or 
 otherwise, have been served on the vendor or the tenant of the 
 property (z). 
 
 At one time it was the practice to conclude the requisitions 
 with a general inquiry if there were any annuities, lis pen- 
 dens, or any lease, mortgage, writ of execution, bankruptcy, 
 or insolvency, or deed or document, or any charge or incum- 
 brance affecting the property sold, known to the vendor or 
 his solicitor, and not disclosed by the abstract. But, in Re 
 Ford and Hill ( a ), it was held that this was a requisition that 
 neither the vendor nor his solicitor was obliged to answer . - 
 To require an answer to such a searching inquiry would only 
 tend to increase the expense and delay in the investigation of 
 titles . 
 
 Notice of Defects in Title. 
 
 The purchaser and his solicitor must not, however, rely solely 
 on the abstract of title furnished by the vendor, and the in- 
 formation disclosed by the deeds and documents produced in 
 verification of it, and the answers to his requisitions on title. 
 If the purchaser or his agent ought to have discovered an in- 
 cumbrance or any other fact adversely affecting the title by 
 making such inquiries as a prudent man would have made, he 
 is deemed to have notice of it, and he cannot avoid being 
 affected by it merely because the vendor has not expressly dis- 
 closed it (b). 
 
 Allen and Driscoll's Contract, 
 (1904) 1 Ch. 493, as to when the 
 charge for paving, &c. under the 
 Public Health Act, 1875, arises. 
 
 ( 2 ) See Dickens, Bequisitions on 
 Title, 2nd ed. 5, 7, 16, and 61; 
 
 Jackson and Gosset, Investigation 
 of Title, 3rd ed. 132, 372, 391. 
 
 (а) (1879), 10 Ch. D. 335. 
 
 (б) See Berwick & Co. v. Price, 
 (1905) 1 Ch. 632. 
 
THE ABSTRACT OF TITLE AND REQUISITIONS. 
 
 121 
 
 Notice may be either actual, constructive, or imputed. 
 
 The subject of notice as between vendor and purchaser (which 
 term includes mortgagee and lessee) is now codified by s. 3 of 
 the Conveyancing Act, 1882, which is as follows: — 
 
 (1 .) A purchaser shall not be prejudicially affected by notice 
 of any instrument, fact, or thing, unless — 
 
 (i) It is within his own knowledge, or would have 
 come to his knowledge if such inquiries and inspec- 
 tions had been made as ought reasonably to have been 
 made by him; or 
 
 (ii) In the same transaction, with respect to which 
 a question of notice to the purchaser arises, it has 
 come to the knowledge of his counsel as such, or of his 
 solicitor or other agent as such, or would have come to 
 the knowledge of his solicitor or other agent as such, 
 if such inquiries and inspections had been made as 
 ought reasonably to have been made by the solicitor 
 or other agent. 
 
 (2.) This section shall not exempt a purchaser from any 
 liability under or any obligation to perf orm or observe 
 any covenant, condition, provision or restriction con- 
 tained in any instrument under which his title is 
 derived, mediately or immediately; and such liability 
 or obligation may be enf orced in the same manner and 
 to the same extent as if this section had not been 
 enacted. 
 
 (3;.) A purchaser shall not by reason of anything in this 
 section be affected by notice in any case where he 
 would not have been so affected if this section had not 
 been enacted. 
 
 Par. (i) of the first sub-section contains the law of actual and 
 constructive notice strictly so called; par. (ii) that of imputed 
 notice. With regard to actual notice , it is sufficient to say that 
 (1) it must be given by a person interested in the property and 
 in the course of the negotiations (c); (2) it must be given to 
 a person authorized to receive it. Notice to the solicitor of 
 
 Notice actual, 
 constructive, 
 or imputed. 
 
 45 & 46 Viet, 
 c. 39, s. 3. 
 
 Effect of the 
 
 statutory 
 
 provision. 
 
 (c) Barnhart v. Greenshields (1853), 9 Moo. P. C. 18. 
 
122 
 
 BK. I., PT. I. SALES, EXCHANGES AND GIFTS. 
 
 trustees, for instance, is not necessarily notice to the trustees, 
 there being no such relation between a man and his solicitor 
 as to make the latter his agent for all purposes (><#) . And 
 (3) the notice must he clear and distinct; mere vague reports 
 from persons not interested in the property will not affect the 
 purchaser (e). If' he has notice of an outstanding equitable 
 mortgage, he must see that it is discharged, and ought not to 
 rely on an assurance from the vendor or the vendor’s solicitor 
 that it has been discharged (/) . With regard to constructive 
 notice , a purchaser of real property “ought reasonably” to- 
 make such inquiries as are usually made. “Ought” does not 
 imply a legal duty. “ The expression bought reasonably ’ must 
 mean ought as a matter of prudence, having regard to what is 
 usually done by men of business in similar circumstances” (g). 
 He ought to inquire into the vendor’s title, and is affected with 
 notice of what appears on the title if he does not inquire, and 
 apparently he will have notice of everything which appears on 
 the vendor's title during the last forty years, even though the 
 contract under which he buys jorovides for a shorter title only 
 being shown (Jo ) . He ought also to inquire into circumstances 
 which he knows of affecting the property which may adversely 
 affect his interest. For example, if he finds the property in 
 the possession of a tenant, he ought to inquire into the terms 
 of' the tenancy, for he will have constructive notice of the rights 
 of the tenant, but he is not bound to inquire with reference to 
 any other thing than the right of the tenant (i). He need not 
 inquire, for instance, to whom the tenant pays rent, so that the 
 omission to do so does not fix him with constructive notice of 
 the right of the payee (k). With regard to imputed notice, it 
 should he remembered that notice to a solicitor will not be notice 
 
 ( d ) Saffron Walden Building 
 Co. v. Rayner (1880), 14 Ch. D. 
 406. 
 
 (e) Barnhart v. Greenshields 
 (1853), 9 Moo. P. 0. 18. 
 
 (/) Jared v. Clements, (1903) 
 
 1 Oh. 428. 
 
 ( g ) Per Lindley, L. J., in Bailey 
 v. Barnes, (1894) 1 Oh. at p. 35. 
 
 ( [h ) Be Cox and Neve, (1891) 
 2 Oh. 109; Re Nisbet and Potts , 
 (1906) 1 Ch. 386. 
 
 (y) See note (e), supra. 
 
 (k) Hunt v. Luck, (1902) 1 Ch. 
 428. 
 
THE ABSTRACT OF TITLE AND REQUISITIONS. 
 
 123 
 
 to the client if the solicitor is a party to a fraud (7), and the 
 section has narrowed the law by confining the liability for 
 knowledge received by a solicitor or agent to knowledge re- 
 ceived in the same transaction as that in which the question 
 of notice arises (m) . 
 
 Waiver of Objections to the Title. 
 
 Any objections made to the title, or the right to have a good 
 title shown, may be waived, either expressly or impliedly, 
 before the conveyance of the property. 
 
 First, as to express waiver. A purchaser who accepts a title 
 of course waives all objections (A); but an acceptance of the 
 title as abstracted does not amount to a waiver of the right of 
 having the abstract properly verified (nj. For does his accept- 
 ance of the title bind him if the vendor keeps back any material 
 fact (oj. 
 
 Secondly, a waiver may he inferred from the acts of the pur- 
 chaser. If he takes possession primd facie he waives all objec- 
 tions appearing on the abstract; but it depends on the circum- 
 stances. If 1 possession be taken in accordance with the terms 
 of the contract or by the vendor’s consent, it will of itself not 
 amount to waiver (p). On the other hand, where the purchaser 
 took possession under agreement, retained the abstract for a 
 long time, altered and let the premises, and apologised to the 
 vendor for his delay in paying the purchase-money, his conduct 
 was held to amount to an admission that the title was ap- 
 proved (g) . But even when a presumption of waiver does arise 
 from the taking of possession, it may be rebutted by other 
 evidence (r). Further, possession taken with a knowledge of 
 
 Waiver may 
 be express or 
 implied. 
 
 (i) As to ex- 
 press waiver. 
 
 (ii) As to 
 implied 
 waiver — 
 (a) taking- 
 possession ; 
 
 (Z) Cave v. Cave (1880), 15 
 
 Oh. D. 639. 
 
 (m) See Re Cousins (1886), 31 
 
 Oh. D. 203. 
 
 {n) Southby v. Hutt (1837), 2 
 My. & Or. 207. 
 
 (o) Bousfield v. Hodges (1863), 
 33 Beav. 90; see especially p. 94; 
 
 Re Haedicke and Lipski, (1901) 
 2 Ch. 666. 
 
 (p) Dart, Vendors and Pur- 
 chasers, 7th ed. 515. 
 
 ( q ) Margravine of Anspach v. 
 Noel (1816), 1 Madd. 310. 
 
 (r) Hyde v. Warden (1877), 3 
 Ex. D. 72. 
 
124 
 
 (b) tendering 
 draft con- 
 veyance ; 
 
 (c) attempt to 
 resell. 
 
 Provisions of 
 Vendor and 
 Purchaser 
 Act, 1874, as 
 to disputes on 
 requisitions. 
 
 BK. I., PT. I. SALES, EXCHANGES AND GIFTS. 
 
 defects in the title is not a waiver of the right to have those 
 defects removed by the vendor if he can remove them (s) . 
 
 The preparation and tender to the vendor of' the draft con- 
 veyance does not necessarily amount to a waiver of objections 
 to title, but it may help to prove it. For instance, where after 
 the requisitions had been sent in and answered, and a draft 
 conveyance tendered to the vendor without prejudice to the 
 requisitions, the purchaser had taken no objection to the 
 replies to requisitions, and the only negotiation pending 
 between the parties was as to the payment of the purchase- 
 money, it was held that the title must be deemed to have been 
 accepted (t). An attempt by the purchaser to resell is not 
 conclusive that he has accepted the title; but in conjunction 
 with other facts it may lead to that inference (■ u ) . 
 
 Disputes between Vendor and Purchaser. 
 
 If any dispute arise in respect of any of the requisitions or 
 objections, or any claim for compensation, or upon any other 
 question arising out of or connected with the contract (not 
 being a question affecting the existence or validity of the con- 
 tract), a summary method of obtaining a decision is provided 
 by s. 9 of the Vendor and Purchaser Act, 1874, which enables 
 the vendor or purchaser, whether the property is real or lease- 
 hold estate, to apply to a judge in chambers in the Chancery 
 Division, and the judge may make such order as to him shall 
 appear just and direct how and by whom the costs of the appli- 
 cation shall be borne. 
 
 The section is intended to enable a decision to be obtained on 
 distinct isolated points arising out of or connected with the 
 contract, and not a general declaration as to the soundness of 
 the vendor’s title (a;). Where the vendor’s title depends upon 
 a question of construction involving real difficulty, the proper 
 mode of procedure is to issue an originating summons for con- 
 
 (s) Re Gloag and Miller (1883), 
 23 Oh. D. 320. 
 
 (t) Sweet v. Meredith (1862), 8 
 Jur. N. S. 637. 
 
 (• u ) Simpson v. Sadd (1855), 24 
 L. J. Oh. 562. 
 
 (cc) Re Wallis and Barnard , 
 (1899) 2 Oh. 515. 
 
THE ABSTRACT OF TITLE AND REQUISITIONS. 
 
 125 
 
 struction, since an order made on such a summons will be bind- 
 ing on all the parties interested; if in such a case the vendor 
 insists on proceeding by summons under this section the court 
 may declare the title too doubtful to be forced on the pur- 
 chaser^). The court has power under the section to decide 
 disputed questions of fact(z); and may direct such things to 
 be done as are the natural consequences of its decision (a) . 
 Applications have been made under it to decide whether an 
 attempted limitation was void for remoteness (6); whether suc- 
 cession duty was payable, and upon what events (c); whether 
 a condition of sale was misleading as distinct from fraudu- 
 lent (d ) ; whether a vendor had shown a title to the soil or only 
 to rights of pasturage (e); whether the vendor was entitled to 
 rescind the contract (/) ; whether the vendor, failing to show 
 a good title, ought to return and pay interest on the deposit (g); 
 and to settle the form and contents of the conveyance (h ) . And 
 the court may order the rescission of the contract and deposit 
 to be returned even on a summons taken out by the vendor (i ) . 
 The costs will generally follow the event, but they are in the 
 discretion of the court (1c ) ; and even a successful applicant 
 may be ordered to pay costs (7); and there is jurisdiction to 
 order the vendor to pay the purchaser’s costs of investigating 
 the title, and to charge them on the vendor’s interest in the 
 
 (y) Be Nichols and Von Joel's 
 Contract, (1910) 1 Ch. 43. 
 
 ( z ) Be Burroughs, Lynn and 
 Sexton (1877), 5 Ch. D. 601. 
 
 (а) Be Hargreaves and Thomp- 
 son's Contract (1886), 32 Ch. D. 
 454. 
 
 (б) Be Brown and Sihly's Con- 
 tract (1876), 3 Ch. D. 156. 
 
 (c) Be Cooper and Allen's Con- 
 tract (1876), 4 Ch. D. 802; Be 
 Kidd and Gibbon's Contract, 
 (1893) 1 Ch. 695. 
 
 (d) Be Marsh and Earl Gran- 
 ville (1883), 24 Ch. D. 11; com- 
 pare Be Sandbach and Edmond- 
 son's Contract, infra. 
 
 (e) Be Burroughs, Lynn and 
 Sexton, supra. 
 
 (/) Be Jackson and Woodburn's 
 Contract (1887), 37 Ch. D. 44. 
 
 ( g ) Be Hargreaves and Thomp- 
 son's Contract (1886), 32 Ch. D. 
 454. 
 
 ( h ) Be Agg-Gardner (1884), 25 
 Ch. D. 6C0; Be Lander and 
 Bagley's Contract, (1892) 3 Ch. 41. 
 
 (t) Be Walker aid Oakshoit's 
 Contract, (1901) 2 Ch. 383. 
 
 ( k ) Be Hargreaves a id Thomp- 
 son's Contract (1886), 32 Ch. D. 
 454. 
 
 (l) Be Cooper and Allen's Con- 
 tract (1876), 4 Ch. D. 802. 
 
 
126 BK. I., PT. I. — SALES, EXCHANGES AND GIFTS. 
 
 property (m) . But the court cannot decide whether the vendor 
 is hound as to the disposition of the purchase-money by ,a 
 clause in restraint of anticipation, since the question does not 
 concern the purchaser (w). Nor will the court entertain the 
 question whether a condition of sale is fraudulent, as this is 
 a matter involving the validity of the contract (o) . 
 
 (o) Re Sandbach and Edmond- 
 son's Contract , (1891) 1 Oh. at p. 
 102 . 
 
 (m) Re Yielding and Westbrook 
 (1886), 31 Oh. D. 344. 
 
 (ft) Re Tippetts and Newbould’s 
 Contract (1887), 37 Oh. 444. 
 
FORM AND CONTENTS OF A PURCHASE DEED. 
 
 127 
 
 CHAPTER VII. 
 
 THE FORM AND CONTENTS OF A PURCHASE DEED. 
 
 After having examined the abstract of title with the deeds, 
 and obtained satisfactory replies to his requisitions, the pur- 
 chaser or his solicitor prepares a draft of the conveyance and 
 submits it to the vendor or his solicitor for his approval. 
 
 The preparation of the draft conveyance involves a con- 
 sideration of the following points: — 
 
 The Date. 
 
 The date of a deed is not an essential part of it, so that even 
 if it is undated, or the date is an impossible one — the 30th of 
 February, for example — the deed is good, and takes effect from 
 its delivery; as it does also where it is dated, but the date 
 stated in the deed is not the date on which delivery was 
 made (a). But the date stated is presumed to be correct until 
 the contrary be shown, so care should always be taken to state 
 it correctly. 
 
 The Parties. 
 
 1. The Portias conveying. 
 
 Who are the proper parties to the conveyance must depend 
 on the circumstances of the case. Every person whose con- 
 currence is necessary to vest in the purchaser the estate or 
 interest contracted to be sold must be made a party. When 
 the vendor is the sole legal and beneficial owner of the pro- 
 perty free from incumbrances, he alone will be the conveying 
 
 (a) Goddard's Case (1584), 2 Rep. fo. 5; see generally Norton, 
 Deeds, 173. 
 
 Preparation of 
 conveyance. 
 
 Immateriality 
 of date. 
 
 The vendor is 
 generally the 
 only convey- 
 ing party. 
 
128 
 
 On sale by 
 
 mortgagee, 
 
 mortgagor’s 
 
 concurrence 
 
 cannot be 
 
 required. 
 
 Concurrence 
 of trustees 
 may be 
 compelled. 
 
 Conveyance 
 by direction 
 of purchaser 
 to sub- 
 purchaser. 
 
 BK. I., PT. I. SALES, EXCHANGES AND GIFTS. 
 
 party. When the vendor is under any of the disabilities men- 
 tioned in the first chapter he must convey through his proper 
 substitutes, or with the proper concurrence. 
 
 The vendor cannot be required to obtain the concurrence of 
 parties who are unnecessary, even though he has the power to 
 do so (&), unless he has expressly contracted that he w T ill(c). 
 Thus, on a sale by a mortgagee under a power of' sale, the pur- 
 chase]' cannot require the Vendor to obtain the concurrence of 
 the mortgagor, notwithstanding that the mortgagor has in the 
 mortgage deed agreed to join in any sale if required (b). The 
 express power of sale ordinarily inserted in mortgages, as well 
 as that conferred by the Conveyancing Acts, 1881 and 1911, 
 exonerates the purchaser from inquiring whether a case has 
 arisen to authorize a sale, and makes the mortgagee’s receipt 
 for the purchase-money a sufficient discharge, so that there is 
 no necessity, and therefore no right to insist on the concurrence 
 of the mortgagor. 
 
 On the other hand, it is scarcely necessary to say that, sub- 
 ject to the terms of the contract, the vendor may be compelled 
 to obtain the concurrence of parties who are necessary and are 
 bound to convey at his request, such as trustees of the legal 
 estate (d). 
 
 Sometimes one party may convey by the direction of another 
 party, as, for example, in the common case where the vendor 
 has sold before he has obtained a conveyance of the land to 
 himself from the person from whom he bought. Here, instead 
 of getting his vendor to convey to him, and then conveying to 
 the sub-purchaser, he often requests his vendor to convey direct 
 to the sub-purchaser, while he himself joins in the deed to 
 pass his equitable interest and to give covenants for title as 
 regards his own acts(e). It appears that the purchaser may 
 require the property to be conveyed in any number of lots, 
 and to any number of persons, and the vendor has no ground of 
 
 (6) Corder v. Morgan (1811), 
 18 Ves. 314. 
 
 (c) Benson v. Lamb (1846), 9 
 Beav. 502. 
 
 (d) See Costigan v. Hastier 
 (1804), 2 Sell. & Lef. 160. 
 
 (e) The stamp duty on the con- 
 veyance in this case is reckoned 
 on the consideration for the sub- 
 purchase, and not on the original 
 purchase-money. See Stamp Act,. 
 1891, s. 58 (5). 
 
FORM AND CONTENTS OF A PURCHASE DEED. 
 
 129 
 
 objection so long as lie is paid any additional expense occa- 
 sioned by his providing several conveyances instead of one 
 only (/). 
 
 Sometimes it may be found of advantage to join persons 
 as parties for the purpose of giving covenants for title. For 
 instance, where the trustee of' a will is selling it will be desir- 
 able, if possible, to obtain covenants for title from the bene- 
 ficiaries entitled to the proceeds of the sale (g ) . Similarly, 
 where a sale is made under a power in a settlement exerciseable 
 with the consent or by the direction of the tenant for life, the 
 purchaser should make the tenant for life a party so as to 
 obtain covenants for title from him limited to his interest (g ) . 
 On a sale by a trustee in bankruptcy the bankrupt need not be 
 made a party, and no advantage is gained by joining him, 
 since his covenants are of' little or no value, but when the 
 liquidator of a company conveys under ss. 151, 186 of the 
 Companies (Consolidation) Act, 1908, the company must 
 always be made a party, since the property is not vested in the 
 liquidator. 
 
 When a sale takes place by order of the court all persons 
 having a legal interest in the property, whether parties to 
 the action or not, concur in the conveyance, but the purchaser 
 is not entitled to the concurrence of any persons being parties 
 to the suit or otherwise, and to the proceedings therein, whose 
 interests are merely equitable (h). 
 
 Parties are not often joined for the mere purpose of giving 
 them notice of the deed, since the cost thereby occasioned is 
 generally out of proportion to the advantage derived, and direct 
 notice by a separate instrument is more usually given. How- 
 ever, if the persons to whom notice of the assurance ought to 
 be given will join in the deed and thus acknowledge receipt of 
 notice, it is useful, as enabling the purchaser on a subsequent 
 sale to dispense with the necessity of proving the service of 
 notice. 
 
 Parties joined 
 for the pur- 
 pose of giving 
 covenants for 
 title : 
 
 (a) benefi- 
 ciaries under 
 a will ; 
 
 (b) tenant for 
 life ; 
 
 (c) sale by 
 trustee in 
 bankruptcy or 
 liquidator 
 
 (d) sale under 
 order of 
 court. 
 
 Parties joined 
 in order to 
 affect them 
 with notice. 
 
 (/) Earl of Egmont v. Smith 
 (1877), 6 Oh. D. 469. 
 
 ( g ) See further on this point, 
 infra, p. 143. 
 
 ( h ) Dart, 7th ed. 1182 et seq. 
 See also s. 70 ol the Conveyancing 
 Act, 1881, and Jones v. Barnett, 
 (1900) 1 Oh. 370. 
 
 G. — C. 
 
 K 
 
ISO 
 
 B K. I., PT. I. SALES, EXCHANGES AND GIFTS. 
 
 Conveyanoe 
 to partners. 
 
 Conveyance 
 for the benefit 
 of persons 
 not parties. 
 
 8 & 9 Viet, 
 c. 106. 
 
 Recitals 
 should be 
 cautiously 
 used : 
 
 (1) because 
 they may 
 control the 
 operative 
 part ; and 
 
 2. The Parties to whom the Conveyance is made. 
 
 When the purchasers are partners, purchasing property for 
 partnership purposes, it may be advisable, with a view to 
 keeping the fact of the partnership off the title deeds, to convey 
 to them as tenants in common; but there is an objection to this 
 course, viz., that should they wish to sell, in case of the death 
 of a partner, it would be necessary to obtain the concurrence 
 of his representatives. The more usual form of conveyance 
 now is to the partners as joint tenants, as part of the 
 partnership estate, with a proviso that the survivors or sur- 
 vivor of them shall have full power to convey and give effectual 
 receipts. An alternative is to make the conveyance to trustees 
 on behalf of the partners, the deed subsequently declaring that 
 the trustees are to hold the property for the partners as part 
 of the capital or joint stock of their partnership business, in 
 proportion to their several shares in the same. This method 
 may have advantages if there is a likelihood of changes taking 
 place in the constitution of the firm (i). 
 
 In former times no person could take an interest under an 
 indenture who was not named as a party therein. But now, by 
 s. 5 of the Beal Property Act, 1845, under an indenture an 
 immediate estate or interest in any tenements or hereditaments, 
 and the benefit of a condition or covenant respecting the same, 
 may be taken, although the taker is not named as a party (k). 
 
 Recitals. 
 
 Recitals are of two kinds — narrative recitals, and introduc- 
 tory recitals. Narrative recitals relate the past history of the 
 property conveyed; while introductory recitals indicate the 
 purpose of the deed in which they are contained. Recitals 
 should be inserted with caution, because they may control the 
 operative part of the deed, and because the doctrine of estoppel 
 applies to them. As to the first point, if there is a discrepancy, 
 between the recitals and the operative words, the latter will 
 
 (i) See Sol. Jour. vol. xxxiii. ( h ) See e.g. Dyson v. Foster, 
 
 103. (1909) A. C. 98. 
 
FORM AND CONTENTS OF A PURCHASE DEED. 
 
 131 
 
 prevail if they are clear and unambiguous; but where the 
 operative part of a deed is ambiguous it may be controlled by 
 clear and unambiguous recitals (l). 
 
 As to the second point, a recital in a deed will estop the ( 2 ) because of 
 
 x . P the doctrine 
 
 parties to the deed and persons claiming through them from 0 f estoppel. 
 
 showing the existence of a different state of things from that 
 
 stated in the recital. But to have this effect the recital must be 
 
 precise and unambiguous (m ) ; thus, while a recital that the 
 
 grantor “is legally seised” will create an estoppel, a recital 
 
 that “ he is seised or entitled at law or in equity ” does not create 
 
 one (w), and it must appear on the face of the deed that the 
 
 parties against whom the estoppel is set up intended to bind 
 
 themselves by the recital (o). Further, there is no estoppel 
 
 when the element of fraud or duress enters, or where the party 
 
 executing the deed is under disability, e.g., is an infant (p). 
 
 And a person is not estopped from denying a statement in a 
 
 deed executed by him in a subsequent action between the parties 
 
 not founded on the deed but wholly collateral to it (q ) ; nor 
 
 by a recital or statement of a fact wholly immaterial to the 
 
 purpose of the deed (r) . 
 
 Recitals are often necessary to show the state of the title, and Recitals used 
 . p . . . , p l . for various 
 
 may be usefully employed lor various purposes. purposes: 
 
 Thus, having regard to the provision of the Vendor and Pur- (a) as evi- 
 dence ; 
 
 (l) Elphinstone, Norton & 
 Clark, Interpretation of Deeds, 
 rules 36 and 37; Norton, Deeds, 
 181 et seq.; Jenner v. J enner 
 (1866), L. R. 1 Eq. 361; see also 
 Hammond v. Hammond (1854), 19 
 Beav. 29; Dent v. Clayton (1864), 
 10 Jur. N. S. 671. 
 
 (m) See per Lord Cairns, L. C., 
 in Heath v. Crealock (1874), L. R. 
 10 Ch. App. at p. 30; per Sir G. 
 Jessel, M. R., General Finance 
 Co. v. Liberator Building Society 
 (1878), 10 Ch. D. at p. 21 et seq.; 
 per Bowen, L. J., Onward Build- 
 ing Society v. Smithson, (1893) 1 
 Ch. at p. 14. 
 
 (ft) Wight v. Bucknell , 9 L. J. 
 K. B. 304. 
 
 (o) See S. E. Rail. Co. v. 
 Warton (1861), 6 H, & N, 520; 
 Stroughill v. Buck (1850), 14 
 
 Q. B. 781. 
 
 ( p ) Taylor, Evidence, 10th ed. 
 vol. i. 97, § 93. Coverture is 
 apparently not a disability for this 
 purpose. See Re Fiddey, Jones v. 
 Frost (1872), L. R. 7 Ch. App. 
 773. 
 
 ( q ) See. Fraser v. Pendlebury 
 (1861), 31 L. J. C. P. 1. 
 
 (r) Per Parke, B., in Carpenter 
 v. Butler (1841), 8 M. & W. at 
 p. 213. 
 
 K 2 
 
132 
 
 (b) for ex- 
 plaining the 
 purposes of 
 the deed ; 
 
 (c) to connect 
 with earlier 
 deeds. 
 
 Reasons for 
 stating the 
 consideration. 
 
 BK. I., PT. I. SALES, EXCHANGES AND GIFTS. 
 
 chaser Act, 1874, s. 2 (2), that recitals of facts in documents 
 twenty years old must be taken to be sufficient evidence of the 
 truth of such facts, and also the provision of s. 3 (3) of the 
 Conveyancing Act, 1881, that recitals contained in any 
 abstracted instruments of any documents prior to the root of 
 title are correct, they may be inserted with a view to being 
 used as evidence on subsequent sales of the property; and in 
 order to get the advantage of the decision in Bolton v. The 
 London School Board (s), in case the law of it may eventually 
 be held sound, that a recital in a deed twenty years old, that the 
 then vendor was seised in fee simple, precluded the purchaser 
 from requiring the vendor to carry the title further back, it 
 lias become common for a purchaser’s solicitor to insert such a 
 recital in a conveyance of the fee. 
 
 Again, recitals may be used to explain the purposes which the 
 parties intend to effect by the deed, and to explain the operative 
 part of the deed, by stating all circumstances necessary to 
 render its effect intelligible (t). 
 
 Lastly, recitals are used, when the deed in which they occur 
 is effectual only by virtue of its complying with the terms 
 of some other deed, to show that the terms have been duly 
 complied with. Thus, where the deed is executed in pursuance 
 of a power given by some previous deed, that previous deed' 
 should be recited, so as to show what formalities, if any, are 
 required to be observed in the execution of the power; and by 
 comparing the recital of the power with the terms of the deed, 
 it may at once be seen whether or no the requisite formalities, 
 have been duly observed (u ) . 
 
 The Consideration. 
 
 A deed is not void for want of a consideration, but there 
 are several reasons why the consideration, if there be one, should 
 be stated either in the recitals or in the body of the deed. The 
 
 (s) (1878), 7 Ch.D. 766; but see Midland Rail . Co., (1894) 1 Oh. 
 Re Wallis and Grout's Contract, 11; below, p. 144. 
 
 (1906) 2 Ch. 206; ante , p. 52. ( u ) See as to rentals generally, 
 
 ( t ) As to the effect of recitals Williams, Vendor and Purchaser, 
 on covenants for title, see Page v. vol. i. 555. 
 
FORM AND CONTENTS OF A PURCHASE DEED. 
 
 133 
 
 first reason is that on a grant of a freehold without considera- 
 tion, a presumption of a resulting use arises. If before the 
 Statute of Uses came into operation, A. enfeoffed B. of land 
 without any consideration passing, in equity B. held the land 
 to the use of A., and since the statute, A., who has the use, 
 becomes immediately clothed with the legal estate; so the result 
 is that the conveyance is inoperative and passes nothing, or at 
 most is useful to ‘‘break the descent.” But where either a 
 consideration is expressed, or a use is expressed, the equitable 
 doctrine of a resulting use does not apply, and in practice not 
 only is the consideration set forth, but the habendum is gene- 
 rally made “ unto and to the use of ” the grantee and his heirs, 
 whether the deed be for value or not (x ) . By these means all 
 chance of a resulting use is avoided . 
 
 Another reason for stating the consideration is, that by the 
 Stamp Act, 1891, s. 5, a penalty of 1(U. is imposed on any 
 person who, with intent to defraud, does not fully and truly set 
 forth all facts and circumstances affecting the liability of the 
 instrument to or the amount of ad valorem duty chargeable. 
 
 Again, by s. 54 of the Conveyancing Act, 1881, a receipt for 
 consideration money in the body of a deed will, in deeds 
 executed after the 31st December, 1881, operate as a sufficient 
 discharge to a purchaser, the payer thereof, without any further 
 receipt being indorsed. And again, by s. 55 of the same act, 
 the receipt in the body of the deed will (equally with the 
 indorsed receipt), in deeds executed after the same date, be 
 sufficient evidence of such payment in favour of a subsequent 
 purchaser who has no notice that the money has not been paid. 
 And, moreover, we shall see hereafter (?/), that by s. 56 of 
 the same act, as read with s. 17 of the Trustee Act, 1893, the 
 receipt, whether in the body of or indorsed on the deed, will 
 operate as an authority to the purchaser to pay the money to 
 the solicitor who produces such deed. 
 
 ( x ) See form of conveyance, 
 infra, p. 153. 
 
 (a) to prevent 
 a resulting 
 use ; 
 
 (b) to avoid 
 penalties 
 under the 
 Stamp Act ; 
 
 (c) to avoid 
 the necessity 
 of the 
 indorsed 
 receipt. 
 
 (y) Below, p. 167. 
 
184 
 
 Lavish use 
 of operative 
 words in old 
 conveyances. 
 
 ‘ ‘ G-rant ’ ’ is 
 the proper 
 operative 
 word, 
 
 8 & 9 Viet, 
 c. 106 ; 
 
 but is not 
 indispensable. 
 
 When new, 
 description of 
 parcels should 
 be framed. 
 
 BK. I., PT. I. SALES, EXCHANGES AND GIFTS. 
 
 Operative Words. 
 
 In perusing old deeds it will be found that the conveyancers 
 of former days, who were almost always extravagantly verbose, 
 were specially lavish in the case of operative words. Generally 
 the conveying party was not content with merely “ granting 
 and conveying' 7 the property, but would “grant, bargain, sell, 
 alien, convey, release and confirm 77 it to the purchaser, and 
 sometimes would say both that he had done so, and that he “ by 
 these presents doth 7 ' do so. The reason for the employment of 
 so many words was no doubt partly due to the idea that, if the 
 nature of the assurance or of the property was such that some 
 special words of conveyance might be Accessary to pass the, 
 property, the draftsman, by using all the operative words 
 known, might be sure of including the one applicable to the 
 circumstances of the case; and since the conveyancer was then 
 paid by the length of the document he drew, it is not surprising 
 that he was rather inclined to verbiage than otherwise. All 
 the above words have their proper significance, and each of them 
 is appropriate to some special kind of assurances; but since 
 the Real Property Act, 1845, the word “grant” has been the 
 appropriate word to pass all hereditaments, corporeal and in- 
 corporeal ( 2 ), though it is not, and never has been, indispens- 
 able (a ) ; any words indicating an intention to grant being 
 sufficient. In the forms in the schedule to the Conveyancing 
 Act, 1881, the word “convey” is used throughout, and this 
 word is commonly used in modern deeds. 
 
 The Parcels. 
 
 Too great care in describing the property to be conveyed 
 cannot be taken, and it is not always advisable to take the 
 description of the parcels from that in the abstract ; if, 
 owing to that description being an old one, it is difficult to 
 verify the admeasurements there given, it is very advisable to 
 frame a new description founded on a new survey of the land. 
 
 (a) Conveyancing Act, 1881, s. 
 49. 
 
 ( z ) See s. 2. 
 
FORM AND CONTENTS OF A PURCHASE DEED. 
 
 135 
 
 In such a case the draftsman should incorporate in the deed not 
 only the new but the old description, and refer to the fact that 
 the property was lately held under the old description; other- 
 wise trouble in identifying the premises to the satisfaction of 
 a purchaser on a future sale may arise. Schedules describing 
 the property conveyed are often extremely useful, and in 
 the conveyance of land plans should be resorted to, but only as 
 an adjunct to the description of the property in the body of 
 the deed or in the schedule. 
 
 With reference to erroneous descriptions of the parcels, we Defective de- 
 may remind the reader of the maxim, “Falsa demonstrate non p C a r r iP eis n8 ° f 
 nocet ,” i.e., where the description of 1 the property is sufficiently 
 clear and certain to put it beyond a doubt what is intended 
 to be passed by the deed, a subsequent erroneous addition to 
 this description will have no prejudicial effect. For example, 
 if A. grants the farm of Blackacre to B., and subsequently 
 describes it (contrary to the fact) as in the occupation of X., 
 this false addition will be considered as mere surplusage. 
 
 Again, if A. conveys to B. all his meadow Blackacre, described 
 as containing ten acres, whereas in fact it contains twenty 
 acres, the whole twenty acres will pass to B. 
 
 If technical words are used, the draftsman must take care that The meaning 
 
 , • n of certain 
 
 he employs them m their proper signihcance. technical 
 
 Manor will pass all the demesne lands of the manor, and words: 
 the freehold of the copyholds as well as the seigniory; and the anor ’ 
 grant of a manor with the appurtenances will pass an advow- 
 son appendant, except when the conveyance is by the crown (b). 
 
 Messuage will pass a dwelling-house with the curtilage and Messuage ; 
 garden attached (c) . 
 
 House will include the curtilage and buildings forming part House; 
 of or appurtenant to it, and also a garden attached to it, but 
 probably not a detached garden belonging to it ( d ) . 
 
 (6) Att.-Gen. v. Sitwell (1835), 
 1 Y. & 0. Ex. 559; Att.-Gen. v. 
 Ewelme Hospital (1853), 17 Beav. 
 366; Hicks v. Sallitt (1853), 3 
 De Or. M. & Gr. 782. 
 
 (c) Encyc. Eng. Law, s. v. 
 “ Messuage,” 
 
 ( d ) Stroud, Jud. Diet. s. v. 
 “House”; Kerjord v. Seacombe, 
 &c. Bail. Co. (1888), 57 L. J. Ch. 
 270. “ House ” and “ Messuage ” 
 
 appear to have the same meaning. 
 See per Ashurst, J., Doe\. Collins 
 (1788), 2 T. R. at p. 502. 
 
136 
 
 Farm ; 
 Land ; 
 Tenement ; 
 
 Water ; 
 
 Gateway. 
 
 Ownership of 
 highways and 
 river beds. 
 
 Ownership 
 of ditches. 
 
 BK. I., PT. I. SALES, EXCHANGES AND GIFTS. 
 
 Farm will pass the farmhouse and the land held there- 
 with (e). 
 
 Land includes not only the surface of the earth, but every- 
 thing under it or over it, such as mines, woods and houses (/). 
 
 Tenement includes lands and everything- which may be the 
 subject of tenure, whether corporeal or incorporeal, real, per- 
 sonal, or mixed (g ) . 
 
 Water will only pass the right to the water and a right 
 of fishing, and not the land it covers. The proper word to use, 
 if it is wished to pass the land as well as the water, is the word 
 “ pool,” or the land may be conveyed and described as “ covered 
 with water ” (h) . 
 
 Gateway has been held in a conveyance of 1 land with the 
 exclusive use of a gateway to pass the land covered by the gate- 
 way («). 
 
 A conveyance of land which abuts on a highway, in the 
 absence of evidence to the contrary, passes the soil over which 
 the highway runs up to the centre line of the highway, 
 although the land is described by reference to a plan or by 
 quantity which does not comprise the road or any part of it (1c) . 
 This rule applies to streets in a town as well as to country 
 roads (Z), but it is thought not to apply to a road where 
 there has been no sort of' dedication to the public (m). Simi- 
 larly, a conveyance of land which abuts on a non-tidal river 
 or stream passes the adjoining bed of the river or stream to the 
 centre line (n) . 
 
 Where two plots of land are separated by a hedge and an 
 
 (e) Stroud, Jud. Diet. s. v. 
 “ Farm.” 
 
 (/) 2 Black. Com. 18. 
 
 (g) Ibid. 17. 
 
 ( h ) Encyc. Eng. Law, s. v. 
 “Water”; Stroud, Jud. Diet, 
 s. v. “Pool.” 
 
 ( i ) Reilly v. Booth (1890), 44 
 
 Oh. D. 12. 
 
 ( k ) Berridge v. Ward (1861), 
 
 10 C. B. N. S. 400; Pryor v. 
 Petre (1894), 69 L. T. 795. 
 
 (?) Re White's Charities (1898), 
 78 L. T. 550. 
 
 (m) Leigh v. Jack (1879), 5 
 Ex. D. 264; and see Thompson v. 
 Hickman , (1907) 1 Ch. 550. 
 
 (ft) Micklethwait v. Newlay 
 Bridge Co. (1886), 33 Ch. D. 133; 
 Great Torrington v. Moore 
 Stevens , (1904) 1 Ch. 347. 
 
FORM AND CONTENTS OF A PURCHASE DEED. 
 
 137 
 
 artificial ditch, there is a presumption that the hedge and ditch 
 belong to the owner of 1 the land on that side of the ditch on 
 which the hedge is (a). 
 
 If after a particular description general words are introduced, 
 what is often called the ejusdem generis rule applies. The rule 
 is shortly as follows: — If a particular description sufficiently 
 clear to render certain what is intended is followed by general 
 words, the general words will not be construed to signify any- 
 thing of a higher nature or of more importance than, or of a 
 different description from, what is before expressed. For ex- 
 ample, if A. grants to B. the premises comprised in a specified 
 deed “ being real estate in the county of M., and all other his 
 lands, tenements and hereditaments (if any) in the county of 
 M.” of which he was seised, real estate in M. not comprised in 
 the deed will not pass to B. (p). 
 
 Fixtures, and growing timber, will pass with the freehold 
 without mention; as will mines and minerals; and if mines 
 are to be excepted from the grant, an express reservation of 
 them must be made. There are, however, exceptions to this 
 rule; for instance, the mines do not pass unless they are ex- 
 pressly mentioned in purchases by railway or canal companies 
 under their statutory powers (g); nor do they pass under an 
 enfranchisement of copyholds effected under the Copyhold 
 Act, 1894, without the express consent of the lord (r). 
 
 General Words. 
 
 A grant of land passes not only the land itself, but all the 
 means of enjoying it, and all its incidents and accessories; 
 so that all easements and privileges legally appurtenant to the 
 land will pass without being expressly mentioned. Ease- 
 ments and privileges are said to be legally appurtenant when 
 they have been annexed to the land or made part of the means 
 
 (o) See Marshall v. Taylor, 
 (1895) 1 Oh. 641. 
 
 ( p ) See Elphinstone, Norton 
 and Clark, Interpretation of Deeds, 
 r. 46, p. 173 et seq.; Norton, 
 Deeds, 227. 
 
 ( q ) See the Railways Clauses 
 Act, 1845, s. 77 ; and Errington 
 v. Met. District Rail. Co. (1882), 
 
 19 Ch. D. 559. 
 
 (r) Copyhold Act, 1894, s. 23. 
 
 Ejusdem 
 generis rule. 
 
 Fixtures and 
 mines, &c. 
 pass wiihout 
 mention. 
 
 Exceptions. 
 
 Legal appur- 
 tenances pass 
 under a grant 
 of land. 
 
 What are 
 legal appur- 
 tenances. 
 
138 
 
 Quasi ease- 
 ments do not 
 pass without 
 mention ; 
 except in 
 deeds exe- 
 cuted since 
 44 & 45 Viet, 
 c. 41, s. 6. 
 
 Sale ‘ ‘ with 
 the appur- 
 tenances. ’ ’ 
 
 The “ all 
 the estate ” 
 clause now 
 implied. 
 
 BK. I., PT. I. SALES, EXCHANGES AND GIFTS. 
 
 by which enjoyment of the lands is obtained, either by express 
 grant or by prescription, or by long user. But sometimes 
 there are quasi profits a prendre or quasi easements which 
 have been enjoyed with or reputed or known as part and 
 parcel of the land, though not legally appurtenant to it. These 
 used not to pass without being expressly mentioned, and it was 
 to pass them that general words were formerly inserted after 
 the parcels. The necessity, however, of using any general 
 words is now in most cases removed by s. 6 of the Convey- 
 ancing Act, 1881, which implies in a conveyance of land, 
 buildings and a manor respectively a list of general words 
 sufficiently comprehensive to pass all kinds of appurtenances, 
 legal or otherwise. 
 
 It should be observed in connection with this section, how- 
 ever, that in Be Peck and The School Board for London (s), 
 where there was a sale of lands “ with the appurtenances,” it 
 was held that the purchaser was only entitled to have inserted 
 in the conveyance such general words as he would have been 
 entitled to before the Conveyancing Act, 1881; and as far as 
 the general words implied by s. 6 of 'that act are more ex- 
 tensive than the contract, the vendor is entitled to have them 
 limited accordingly; thus, in the case last cited, it was held 
 that the general words must be restricted in order not to pass 
 to the purchaser a way which did not exist as of right, but 
 which was enjoyed de facto (t). 
 
 Formerly in every conveyance after the general words there 
 was inserted the “All the estate” clause, by which all the 
 estate, right, title, interest, claim and demand whatsoever of the 
 grantor in the premises was expressed to be conveyed. There 
 never was any need for it, however, and now by the Conveyanc- 
 ing Act, 1881, s. 63, it is implied in every conveyance made 
 after the 31st December, 1881. 
 
 0) (1893) 2 Oh. 315. Ashley's Contract , (1900) 2 Oh. 
 
 (t) See also Be Hughes and 595. 
 
FORM AND CONTENTS OF A PURCHASE DEED. 
 
 139 
 
 Exceptions and Reservations. 
 
 If the grantor intends to except or reserve any right or in- 
 terest over property granted, he must do it expressly (u ) . 
 Technically there is a distinction between an exception and a 
 reservation: an exception is a subtraction from what has pre- 
 viously been expressed to be granted, of a part of the thing 
 granted, so that the thing excepted must be in esse at the time 
 of the grant. The exception must be of a part only, and not of 
 the wdiole, of the thing granted; and, moreover, the exception 
 must not be repugnant to the grant, so that in the case of a 
 convej-ance of a house and shops, excepting the shops, the excep- 
 tion would be void as being repugnant. 
 
 A reservation , on the other hand, can only be of something 
 new out of the thing granted; a rent or right of way, for 
 instance, may be properly reserved. Strictly speaking, a man 
 cannot “reserve” to himself anything that forms part of the 
 land itself, such as a right of common, he can only “except” 
 it; but this is not material, since in practice both words “ ex- 
 cepting and reserving” are invariably used. Nor can a mere 
 privilege, like a right of sporting over the land, be either 
 “ excepted ” or “ reserved ”; but this again is of small moment, 
 since if the purchaser executes the deed the purported reserva- 
 tion is allowed to operate as a re-grant by him ( x ) . As a 
 reservation operates as a new grant by the grantee to the 
 grantor, the conveyance should be executed by the purchaser, 
 otherwise no legal easement is created, but only an equitable 
 right ( y ). 
 
 Both an exception and a reservation must be defined with 
 certainty, otherwise they will be void (z ) . 
 
 Reservations are, however, in some cases, implied by law: 
 thus, where a vendor retains a portion of the property and sells 
 the rest, the law will presume, in the absence of anything in 
 the conveyance to negative the presumption, a reservation of all 
 
 (u) Wheeldon v. Burrows ( y ) May v. Belville, (1905) 2 
 
 (1879), 12 Ck. D. 31. Oh. 605. 
 
 (#) See Wickham v. Hawker (z) Savill Bros. Ld. v. Bethell, 
 (1840), 7 M. & W. 63. (1902) 2 Ch. 523. 
 
 The distinc- 
 tion between 
 exceptions 
 
 and reser- 
 vations. 
 
 Certainty. 
 
 Implied 
 
 reservations. 
 
140 
 
 BK. I., PT. I. SALES, EXCHANGES AND GIFTS. 
 
 such rights and easements over the part conveyed as are essen- 
 tial to the due enjoyment of the part which is retained, such as 
 rights of way and support (a) ; but where the owner of a house 
 and land adjoining sells the land and retains the house, there 
 is no implied easement of light granted to him over the land 
 sold (6); though if he sold the house and retained the land, 
 the purchaser would ; obtain a right of light over the land 
 retained by the vendor. 
 
 The Habendum. 
 
 The function 
 of the 
 habendum. 
 
 Words of 
 limitation. 
 
 44 & 45 Viet, 
 c. 41, s. 51. 
 
 Construction 
 of the section. 
 
 The purpose of the habendum is to define the estate, i.e., 
 the amount of interest, taken by the grantee. 
 
 Formerly, if it was intended to confer an estate in fee simple 
 on the grantee it was necessary to limit the property to him 
 “ and his heirs,” or in the case of a corporation sole (other than 
 the crown) to him “and his successors”; and if it was in- 
 tended to confer an estate tail it was necessary to use the words 
 “heirs of his body” for an estate tail general, or “heirs male 
 of his body ” and “ heirs female of his body ” for an estate in 
 tail male or an estate in tail female respectively. But now, 
 by s. 51 of the Conveyancing Act, 1881, in a deed it is suffi- 
 cient to use the words “in fee simple,” “in tail,” “in tail 
 male” or “in tail female,” as the case requires. The section 
 applies only to deeds executed after the commencement of the 
 act. 
 
 The section does not seem to apply to a grant to a corpora- 
 tion, and apparently it is still necessary to use the word “ suc- 
 cessors ” when limiting property to a corporation sole other 
 
 (a) See Pinnington v. Galland 
 (1853), 9 Exch. 1; Richards v. 
 Rose (1853), 9 Ex. 218; and 
 Davies v. Bear (1869), L. R. 7 Eq. 
 427 ; compare Union Lighterage 
 Co. v. London Graving Dock Co., 
 (1902) 2 Oh. 557. 
 
 (5) See White v. Bass (1862), 
 31 L. J. Ex. 283; Wheeldon v. 
 Burrows (1879), 12 Ch. D. 31; 
 Ray v. Hazeldine, (1904) 2 Ch. 
 
 17; and compare Allen v. Taylor 
 (1880), 16 Ch. D. 355 (a case of 
 contemporaneous grants of the 
 house to one, and the land to 
 another) ; and Phillips v. Low, 
 (1892) 1 Ch. 47 (a case of con- 
 temporaneous devise), in both of 
 which it was held that the grantee 
 of land was not entitled to 
 obstruct the access of light to the 
 house. 
 
FORM AND CONTENTS OF A PURCHASE DEED. 
 
 141 
 
 than the crown; and whenever it is intended to rely on the 
 section the actual words of limitation used in it must be em- 
 ployed; a limitation unto and to the use of the grantee “ in fee/’ 
 for example, has been held to confer only a life estate (c) . 
 
 Covenants. 
 
 Following the habendum come the covenants. 
 
 A. — Vendor's Covenants. 
 
 When the vendor is the beneficial owner of the land, and the Covenant* 
 land is freehold or copyhold, he is usually bound to enter into w h 0 i 8 a 
 four covenants for title; these are: — beneficial 
 
 7 owner. 
 
 1 . That he has a good right to convey. 
 
 2. That the purchaser shall have quiet possession. 
 
 3. That the property is free from incumbrances. 
 
 4. For further assurance. 
 
 If the subject-matter of the conveyance be leasehold property, 
 the vendor further covenants that the lease is a valid and sub- 
 
 On convey 
 ance of 
 leaseholds. 
 
 sisting one, and that the rent has been paid, and the covenants 
 and conditions have been performed up to the date of the con- 
 veyance ( d ) . 
 
 If the vendor is merely a trustee, a mortgagee, the personal 
 representative of a deceased person, or the committee of a 
 lunatic so found, the only covenant for title entered into is, 
 that he personally has done nothing to incumber the estate. A 
 trustee cannot be compelled to enter into any other covenant, 
 not even a covenant for further assurance (e), provided, at any 
 rate, the purchaser was aware of the capacity in which he sold. 
 But where a committee of a lunatic sells the land of the lunatic, 
 
 Covenant 
 when vendor 
 a trustee, 
 mortgagee, 
 personal 
 representative 
 or committee 
 of a lunatic. 
 
 he can, with the sanction of the judge having jurisdiction in 
 lunacy, give the usual covenants for title on behalf of and so as 
 to bind the lunatic (/) . 
 
 (c) Be Ethel and Mitchells and 
 Butler's Contract , (1901) 1 Ch. 
 945. 
 
 (d) Williams, Vendor and Pur- 
 chaser, vol. i. 575. 
 
 (e) Worley v. Frampton (1846), 
 5 Ha. 560. As to covenants by the 
 beneficiaries, see infra, p. 143. 
 (/) Re Bay, (1896) 1 Ch. 468. 
 
J 42 
 
 EK. I., PT. I. SALES, EXCHANGES AND GIFTS. 
 
 Usual cove- 
 nants implied 
 under 44 & 45 
 Viet. c. 41, 
 
 8. 7. 
 
 Statutory- 
 covenants are 
 qualified, not 
 absolute. 
 
 On whom 
 
 they are 
 binding. 
 
 With whom 
 deemed made. 
 
 Formerly, these covenants for title were set out in extenso 
 in the conveyance, but since the Conveyancing Act, 1881, they 
 may now be omitted altogether if certain specified phrases are 
 used in the operative part of the conveyance. For by s. 7 (1) 
 of that act, in a conveyance for valuable consideration, the 
 usual covenants for title are implied, when the party conveys 
 and is expressed to convey as beneficial owner, or conveys and 
 is expressed to convey as trustee, mortgagee, personal repre- 
 sentative of a deceased person, or committee of a lunatic 
 so found, or under an order of the court as the case may be. 
 And by sub-s. (2) where a person is expressed to direct as 
 beneficial owner another person to convey, he is deemed to 
 convey and to be expressed to convey as beneficial owner, 
 and the covenants on his part will be implied accord- 
 ingly. Further, by sub-s. (3) of this section, where a 
 husband and wife both convey, and are both expressed to 
 convey as benelicial owners, the wife is placed in the same 
 position as a person expressed to be conveying by the direction 
 of the husband, so that there will be — (1) (as the wife expressly 
 conveys as beneficial owner) a set of covenants for title by her 
 binding her separate estate; (2) (as the husband expressly con- 
 veys as beneficial owner) a set of covenants for title by him; 
 (3) a set of covenants on his part in the same terms as the 
 covenants implied on the part of the wife. 
 
 The covenants implied by the act are not absolute, but are 
 qualified and only extend to the acts or omissions of the vendor 
 or those claiming by, through, under, or in trust for him, and 
 of persons through whom the vendor derives title otherwise than 
 by purchase for value, a purchase here not including a convey- 
 ance in consideration of marriage. 
 
 The covenant will be by the person or by each person who 
 conveys as far as regards the subject-matter, or share of 
 subject-matter, expressed to be conveyed by him, and will be 
 impliedly entered into with the person (if one) to whom the 
 conveyance is made, or with the persons (if more than one) to 
 whom the conveyance is made jointly as joint tenants, or with 
 each of the persons (if more than one) to whom the conveyance 
 is made as tenants in common (g). Moreover, the benefit of 
 
 ( 9 ) s. 7 (1). 
 
FORM AND CONTENTS OF A PURCHASE DEED. 
 
 143 
 
 these covenants will be annexed and incident to and will go 
 with the estate or interest of the implied covenantee, and be 
 capable of being enforced by every person in whom that estate 
 or interest is for the whole or any part thereof from time to 
 time vested (h); that is to say, they will run with the land. 
 If, for example, A. conveys land to B. “as beneficial owner,” 
 thus giving him covenants for title, and B. sells the land to C., 
 and C. is disturbed by reason of A.’s title being defective, C. 
 can sue A. for breach of the covenant for quiet enjoyment 
 given by A. to B. (i). 
 
 These implied covenants may be varied or extended by deed, 
 and as so varied or extended will, as far as may be, operate in 
 the like manner and with the like incidents, effects, and con- 
 sequences as if such variations or extensions were directed in 
 the section to be implied (/c); but the implied covenants are 
 so comprehensive that it is seldom necessary to vary them. 
 
 There are some special cases of covenants for title which 
 should be noticed. Thus, when trustees are selling it used to 
 be the practice of conveyancers to insist on covenants for title 
 being given by the beneficiaries to the extent of their bene- 
 ficial interests, but this practice was never adopted by the court 
 in sales under its order, and it is now usual on a sale by trustees 
 to stipulate expressly that the purchaser shall not be entitled 
 to such covenants, and it seems that he would have no right to 
 them even in the absence of such a stipulation (l). When 
 trustees are selling by the direction of the tenant for life the 
 latter must give the usual covenants for title (m), and would 
 do so impliedly by “ directing as beneficial owner.” The tenant 
 for life must do this, even though the contract may have ex- 
 pressly provided that the vendors being trustees would only 
 covenant against incumbrances (n). When an incumbrancer 
 
 (A) s. 7 (6). 
 
 (i) See David v. Sabin, (1893) 
 1 Ch. 523. 
 
 W s. 7 (7). 
 
 (Z) Cot'.rell v. Cottrell (1868), 
 L. R. 2 Eq. 330; Prideaux, Prec. 
 20th ed. vol. i. 114; Williams, 
 
 Vendor and Purchaser, 2nd ed. 
 p. 656. 
 
 (m) Re The London Bridge 
 Acts (1842), 13 Sim. 176; Earl 
 Poulett v. Hood (1868), L. R. 5 
 Eq. 115. 
 
 (n) In re Sawyer and Baring's 
 Contract (1884), 53 L. J. Ch. 1104. 
 
 Implied cove- 
 nants may be 
 varied. 
 
 Covenants in 
 special cases : 
 (a) when 
 trustees sell ; 
 
 (b) on release 
 of incum- 
 brance ; 
 
144 
 
 BK. I., PT. I. SALES, EXCHANGES AND GIFTS. 
 
 (e) when co- 
 owners sell : 
 
 (d) when 
 crown sells ; 
 
 (e) 'when 
 tenant for 
 life sells. 
 
 Construction 
 of covenants 
 for title : 
 
 (a) of cove- 
 nant for good 
 right to 
 convey ; 
 
 3 & 4 Will. 4, 
 c. 42. 
 
 (b) of cove- 
 nant for quiet 
 enjoyment ; 
 
 releases the estate from his charge he will merely covenant that}, 
 he has done no act to incumber. When the vendors are tenants 
 in common, the covenants are limited to their several shares;, 
 but if they are joint tenants they must, apparently, in the 
 absence of agreement give joint and several covenants (o) . 
 When the vendor is the crown or a person selling under compul- 
 sion by the Lands Clauses Consolidation Act, 1845, there will 
 be no covenants for title by the vendor at all. 
 
 When a tenant for life conveys under a statutory power,. 
 e.c?., under the Settled Land Acts, he must give the usual 
 covenants for title, but limited, it would appear, as regards the 
 remainder expectant on his life estate to his own acts and the 
 acts of persons claiming under him (p). 
 
 The following rights and obligations are conferred by the 
 usual covenants for title: — 
 
 A. covenant for good right to convey is broken if 1 the 
 covenantor has not a good right to convey, even though the 
 defect in title which constitutes the breach appears on the face 
 of the deed (g). The breach occurs immediately upon the exe- 
 cution of the deed of conveyance, so that the time for suing on 
 the covenant, which by s. 3‘ of the Civil Procedure Act, 1833, 
 is limited to twenty years, begins to run against the purchaser 
 from the date of the conveyance (r). 
 
 A covenant for quiet enjoyment is not broken unless there is 
 some disturbance of the covenantee’s enjoyment, although 
 actual eviction is not necessary. So, where after the sale a 
 decree was made in a suit in chancery that the land sold was 
 subject to a right of common, it was held that the decree alone, 
 without any entry or actual disturbance of' the purchaser, did 
 not amount to a breach of the vendor’s covenant for quiet en- 
 joyment (s). Nor is the covenant broken by a wrongful evic- 
 tion by a stranger, but it is broken by such an eviction by the 
 
 (o) National Society, &c. v. 
 Gibbs, (1900) 2 Ch. 230. 
 
 (p) Dart, Vendor and Purchaser, 
 571; but see Be Tyrell (1900), 82 
 L. T. 675. 
 
 ( q ) Page v. Midland Bail. Co., 
 (1894) 1 Ch. 11; and see May v. 
 
 Platt, (1900) 1 Ch. 616. 
 
 (r) Darby and Bosanquet, 
 Statutes of Limitations, 2nd ed. 
 147; Hewitt, Statutes of Limita- 
 tions, 19. 
 
 (s) Howard v. Maitland (1883), 
 11 Q. B. D. 695. 
 
FORM AND CONTENTS OF A PURCHASE DEED. 
 
 1 45 
 
 vendor or anyone claiming through him. The twenty years 
 within which an action for breach of this covenant must he 
 brought runs from the time of the disturbance, and not from 
 the execution of the deed (t ) — which furnishes a reason why 
 this covenant is required, as well as the covenant for good 
 right to convey, which of course implies that the purchaser will 
 not be disturbed. 
 
 Under a covenant against incumbrances by an heir-at-law 
 selling his expectancy, no indemnity against succession duty 
 can be required (u) . 
 
 Under the covenant for further assurance, a vendor who has 
 sold a defective title can be called upon to convey such title as 
 he afterwards acquires, even though he acquires it by purchase 
 for valuable consideration (cc) ; and can be required to com- 
 plete the title, or to discharge an incumbrance (;/). Under this 
 covenant, too, the covenantor may he compelled to produce title 
 deeds, and perhaps may be compelled to give a covenant or 
 acknowledgment for their production (z), though this is 
 doubtful (a). 
 
 The Court of Appeal has ruled that covenants for title must 
 be construed literally and without importing into them any 
 exception which the parties themselves have not introduced by 
 express words contained in the covenants themselves, even 
 though the exception may be gathered from the recitals (b). 
 
 The mere fact that defects of title appear on the face 
 of the conveyance, or are known to the purchaser, does not 
 
 (c) of cove- 
 nant for free- 
 dom from in- 
 cumbrances ; 
 
 (d) of cove- 
 nant for 
 
 f urth er 
 assurance. 
 
 The cove- 
 nants con- 
 strued 
 literally. 
 
 (t) Hewitt, Statutes of Limita- 
 tions, 19. 
 
 ( u ) Re Langliam and the Lang- 
 ham Hotel Co. (1890), 60 L. J. 
 
 Ch. 110. 
 
 (cc) Taylor v. Debar (1675), 1 
 Ch. Ca. 274; 2 Ch. Ca. 212. 
 
 ( y ) King v. Jones (1814), 5 
 Taunt. 418; Farrington v. For- 
 rester, (1893) 2 Ch. 461, atp. 471; 
 compare Davis v. Tollemache 
 (1856), 2 Jur. N. S. 1181, where 
 it was held that a mortgagee of an 
 
 estate tail in remainder was not 
 entitled to have a disentailing deed 
 executed under the covenant. 
 
 ( 2 ) Fain v. Ayers (1826), 2 Sim. 
 & Stu. 533. 
 
 (а) See note to Hallett v. Mid- 
 dleton (1826), 1 Russ. 243, at p. 
 259. 
 
 (б) Page v. The Midland Rail. 
 Co., (1894) 1 Ch. 11, overruling 
 Hunt v. White (1868), 37 L. J. 
 Ch. 326. 
 
 G. — C. 
 
 L 
 
146 
 
 BK. I.. PT. I. SALES, EXCHANGES AND GIFTS. 
 
 8 & 9 Viet, 
 c. 106, s. 4. 
 
 No covenant 
 implied by 
 the word 
 “ grant.” 
 
 Exceptions. 
 
 prevent them coming within the ordinary Covenants for title, 
 unless the property is conveyed subject to them (c). 
 
 Before the Beal Property Act, 1845, exchanges and par- 
 titions at common law implied conditions or warranties of 
 title; and the words “give” or “ grant” in other convey- 
 ances implied similar warranties; but by s. 4 of this statute 
 those assurances are not in future to imply any condition in 
 law, and. those words are not to imply any covenant except 
 so far as they may do so by virtue of some act of parliament. 
 As a result of this exception, covenants for title are still implied 
 by the use of the word “ grant ” in conveyances of land by pro- 
 moters under s. 132 of the Lands Clauses Consolidation Act, 
 1845. Further, by s. 22 of the Queen Anne’s Bounty Act, 
 1838, the word “grant” implies covenants for title in con- 
 veyances to the governors of Queen Anne’s Bounty. 
 
 B . — Pur chaser' s Covenants . 
 
 Purchaser 
 bound to 
 enter into 
 covenants : 
 
 (a) property 
 subject to 
 liabilities ; 
 
 (b) sale of an 
 equity of 
 redemption ; 
 
 In certain cases the purchaser of land must enter into cove- 
 nants with the vendor: thus, if the property is subject to restric- 
 tive covenants, and the purchaser had notice of the fact when 
 he bought, he must covenant with the vendor to observe the 
 restrictions if the vendor will still remain liable after convey- 
 ance. The covenant should be prefaced by some such words as 
 “with the object and intention of affording the vendor, his 
 heirs, executors and administrators, a full and sufficient in- 
 demnity in respect of [the restrictive covenan's[ but not further 
 or otherwise ” (J). And on the sale of an equity of redemption, 
 as the vendor remains liable on the covenant to pay the mort- 
 gage debt and interest, the purchaser always expressly covenants 
 to indemnify the vendor therefrom (e), though such a covenant 
 is implied (/). If an express limited covenant to indemnify is 
 
 (c) G. W. By. Co. v. Fisher, 
 (1905) 1 Ch. 316. 
 
 ( d ) Be Boole and Clark's Con- 
 tract, (1904) 2 Ch. 173; see Wil- 
 liams, Vendor and Purchaser, 2nd 
 ed. p. 670. 
 
 (e) See Key and Elph instone, 
 Precedents, 8th ed. vol. i. 522; 
 Dodson v. Downey, (1901) 2 Ch. 
 620. 
 
 (/) Waring v. Ward (1802), 7 
 Ves. 332. 
 
FORM AND CONTENTS OF A PURCHASE DEED. 
 
 147 
 
 inserted in the conveyance, no absolute covenant to indemnify 
 will be implied (g). 
 
 Again, on the assignment of leaseholds by the original lessee, 
 the assignor remains liable to pay the rent and to perform the 
 covenants and conditions of the original lease, so that the 
 assignee must indemnify him against breaches of covenants in 
 the lease committed during the continuance of the term (h ) . 
 
 Where a reversion, which the vendor derives through the 
 death .of some person dying after 19th May, 1853, and so 
 subject, when the reversion falls in, to succession duty, is sold, 
 if the arrangement is that the purchaser is to bear the duty he 
 must covenant to indemnify the vendor, since succession duty is 
 a debt due from the successor as well as a charge on the lands. 
 In practice the obligation is generally thrown on the purchaser, 
 and even in the absence of agreement it would fall upon 
 him (i ) . If, therefore, the vendor is to pay the duty he must 
 covenant to do so and indemnify the purchaser. It is un- 
 necessary for the purchaser to covenant to indemnify the vendor 
 against estate duty since by s. 8 (4) of the Finance Act, 1894, 
 the vendor in such a case is under no liability to pay it. 
 
 Where a vendor of land sells only part of his property and 
 retains land adjoining the part sold, and desires to protect the 
 latter from being depreciated by acts of the purchaser, the 
 purchaser may be required to enter into covenants restricting 
 his right to use the land in any manner he thinks fit. 
 
 Three different questions arise in connection with restrictive 
 covenants of this kind. First, are assignees of the covenantor 
 bound by them; secondly, can assignees of the covenantee en- 
 force them; and, thirdly, if several purchasers from the same 
 
 ( g ) Mills v. United Counties 
 Bank, (1912) 1 Ch. 231. In that 
 case Eve, J., held ( (1911) 1 Ch. 
 669) that no covenant to indem- 
 nify could be implied on a sale 
 of a contingent reversionary in- 
 terest until the interest fell into 
 possession, but the Court of 
 Appeal, without deciding the point, 
 
 L 
 
 were not disposed to agree with 
 his decision. 
 
 (Ji) Moule v. Garrett (1872), 
 L. R. 7 Ex. 101; and see below, 
 p. 176. 
 
 (i) See Cooper v. Trewby 
 (1860), 28 Beav. 194; Re Lang- 
 ham and the Langham Hotel Co. 
 (1890), 60 L. J. Ch. 110. 
 o 
 
 /O 
 
 (c) tale of 
 a lease ; 
 
 (d) sale of a 
 reversion 
 subject to 
 succession 
 duty ; 
 
 (e) restrictive 
 covenants. 
 
 Operation of 
 
 restrictive 
 
 covenants. 
 
14K 
 
 BK. I., PT. I. — SALES, EXCHANGES AND GIFTS. 
 
 Do not run 
 with the 
 land at law ; 
 
 but bind 
 subsequent 
 purchasers in 
 equity. 
 
 vendor have entered into similar restrictive covenants with him, 
 < an they enforce them against each other? 
 
 First, it is settled that restrictive covenants do not run with 
 the land at common law (k). But such a covenant will be 
 enforced in equity by injunction against all persons who sub- 
 sequently take the land, independently of the question whether 
 it runs with the land, unless they obtain the legal estate for 
 value without notice, actual or constructive. This was estab- 
 lished by the case of Tulk v. Moxhay (Z), as exjidained in Re 
 Nisbet and Pott's Contract (m). A lessee, therefore, is bound 
 by such a covenant (w), and so of course is a volunteer. In 
 fact, the rule applies to every one in possession (o). And a 
 purchaser cannot claim exemption on the ground that, not 
 having investigated the title, he has not had notice of the cove- 
 nant, when a proper investigation would have disclosed it (p) . 
 The principle on which Tulk v. Moxhay proceeded was that the 
 purchaser gave a smaller price for the land by reason of the 
 restrictive covenant, and it would be unconscientious for him or 
 any one deriving title under him with notice of the covenant to 
 attempt to make use of the land except subject to the obliga- 
 tion of the covenant (q). But the true principle is that such 
 covenants impose an equitable charge on the property in respect 
 of which they are entered into, in the nature of a negative 
 easement which runs with the land in equity. Consequently 
 an assign of the covenantor who has not the legal estate is 
 bound by the restriction, even though he may have acquired 
 the land without notice of it; in short, every assign is bound, 
 except a purchaser without notice who has the legal estate (r), 
 
 (k) Keppell v. Bailey (1834), 2 
 M. & K. 517. 
 
 {1) (1848), 2 Ph. 774. 
 
 (m) (1906) 1 Ch. 386. 
 
 (n) Wilson v. Hart (1866), 
 L. E. 1 Ch. App. 463; Patman v. 
 Harland (1881), 17 Ch. D. 353; 
 JIall v. Ewin (1887), 37 Ch. D. 
 74; Holloway Bros. v. Ilill, (1902) 
 2 Ch. 612. 
 
 (o) See Mander v. Falcke, 
 
 (1891) 2 Ch. 554; Abbey v. 
 
 Gutteres (1910), 55 S. J. 364 ; 
 Wilkes v. Spooner, (1911) 2 K. B. 
 473. 
 
 ( p ) Wilson v. Hart (1866), 
 L. E. 1 Ch. App. 463; Patman v. 
 Harland (1881), 17 Ch. D. 353. 
 
 (q) See per Lord Cottenham, in 
 
 Tulk v. Moxhay (1848), 2 Ph. at 
 p. 778; and per Jessel, M. E., in 
 Cato v. Thompson (1882), 9 
 
 Q. B. D. at p. 618. 
 
 (r) Be Nisbet and PotVs Con- 
 
FORM AND CONTENTS OF A PURCHASE DEED. 
 
 140 
 
 and except certain public bodies, such as a school board pur- 
 chasing, under the L. C. C. Act, 1845, for the purposes of the 
 Elementary Education Act, 1870, which take free from restric- 
 tive covenants, even though they have notice (s) . In such a 
 case, however, the restriction is not extinguished, but revives 
 on a re-sale to an ordinary individual (£), unless compensation 
 is paid to the covenantee under s. 68 of the act referred to. 
 
 Secondly, whether or not the benefit of such a covenant runs when assigns 
 with the land of the covenantee so as to be enforceable by an ^ enforce 6e 
 assignee of the land depends on whether it appears upon the restrictive 
 construction of the covenant that it was intended to run with 
 the land. When the benefit of the restrictive covenant has once 
 been clearly annexed to a piece of land, it passes on an assign- 
 ment of that land without express assignment, and even though 
 the assign was not aware of its existence at the time of the 
 
 covenants. 
 
 assignment. In any other case an assign can only enforce the 
 covenant if the benefit of it has been expressly assigned to him, 
 or if, having regard to the circumstances under which he took 
 his assignment, it appears to have been the intention that he 
 should have the benefit of it, which cannot be the case where he 
 did not know of its existence (u). Accordingly where the 
 owners of land conveyed a plot of it to a purchaser, who cove- 
 nanted that not more than one dwelling-house should be 
 
 erected on it, and it was stated that the covenant was entered 
 into with the intent that it might so far as possible bind the 
 premises thereby conveyed, and every part thereof, into whose- 
 soever hands the same might come, and might enure for the 
 benefit of the covenantees, their heirs and assigns, and others 
 claiming under them, all or any of their lands adjoining or 
 near to the said premises; an assignee from the covenantees of 
 another plot was granted an injunction restraining the erection 
 
 tract, (1906) 1 Ch. 386; following 
 dicta of Jessel, M. R., in L. & 
 S. W. Bail. Co. v. Gomm (1882), 
 20 Ch. D. atp. 583; Collins, L. J., 
 in Rogers v. Ilosegood, (19C0) 2 
 Ch. at p. 404; Farwell, J., in 
 Osborne v. Bradleij, (1903) 2 Ch. 
 at pp. 451, 452; and Vaughan 
 Williams, L. J., in Formby v. 
 
 Barker, (1903) 2 Ch. at p. 552; 
 contra, Rigby, L. J., (1900) 2 Ch. 
 at p. 401. 
 
 (s) Ellis v. Rogers (1884), 29 
 
 Ch. D. 661. 
 
 ( t ) Kirby v. The Harrogate 
 School Board, (1896) 1 Ch. 437. 
 
 {u) Rogers v. Ilosegood, (1900) 
 2 Ch. 388. 
 
160 
 
 BK. I., PT. I. SALES, EXCHANGES AND GIFTS. 
 
 When pur- 
 chasers can 
 enforce 
 
 of a block of flats on the first plot (v). But where the owners 
 of an estate sold part of it to the defendant, who covenanted 
 with them, their heirs and assigns, restricting his right to build, 
 and the owners then sold part of the remainder of the estate 
 to the plaintiff, there being nothing in the original conveyance 
 to show that the benefit of the restrictive covenants was in- 
 tended to enure to each portion of the land retained, and there 
 being no reference in the latter conveyance to the restrictive 
 covenants, it was held that the plaintiff was not entitled to re- 
 strain the defendant from building in contravention of the 
 covenant (x). In another case, A., the owner of two adjoining 
 plots of land, leased one plot to B., who covenanted not to 
 build in a certain way, and afterwards leased the other plot to 
 C., who entered into similar covenants with A. B. afterwards, 
 with A.’s approval, built so as to contravene the covenant and 
 darken C.’s windows. C. then brought an action to restrain 
 B. from committing a breach of the covenant with A., but it 
 was held that the covenant, not being mentioned in the lease to 
 him, did not enure for his benefit, and consequently he could 
 not enforce it (?/). It may be added that when the vendor 
 retains no land to which the benefit of a restrictive covenant 
 can be incident, any such covenant entered into by the pur- 
 chaser is purely personal to the vendor, and cannot be enforced 
 by injunction at the instance of anyone claiming under him 
 like his personal representative (z ) . 
 
 Thirdly, it was laid down by Parker, J., in Elliston v. 
 Readier (a), that restrictive covenants may be enforced by one 
 
 ( v ) Rogers v. Hosegood, (1900) 
 2 Ch. 388. 
 
 (a?) Renals v. Cowlishaw (1879), 
 11 Ch. D. 866. 
 
 ( : y ) Master v. Hansard (1876), 
 4 Ch. D. 718; see also Ideates v. 
 Lyon (1869), L. R. 4 Oh. App. 
 218. 
 
 (z) Formby v. Barker , (1903) 
 2 Ch. 539. 
 
 (a) (1908) 2 Ch. 374; approved 
 by Court of Appeal, (1908) 2 Ch. 
 665; and see Renals v. Cowlishaw 
 (1878), 9 Ch. D. 125; 11 Ch. D. 
 
 866; Nottingham Patent Brick Co. 
 v. Butler (1886), 16 Q. B. D. 778; 
 Collins v. Castle (1887), 36 Ch. D. 
 243; Shepherd v. Gilmore (1887), 
 57 L. J. Ch. 6; Spicer v. Martin 
 (1888), 14 App.Cas.12; MacKenzie 
 v. Childers (1889), 43 Ch. D. 265; 
 Tyndall v. Castle (1893), 62 L. J. 
 Ch. 555; Reid v. Bickerstaff, 
 (1909) 2 Ch. 305; and see Harri- 
 son v. Good (1871), L. R. 11 Eq. 
 338; Tucker v. Vowles, (1893) 1 
 Ch. 195. 
 
FORM AND CONTENTS OF A PURCHASE DEED. 
 
 purchaser or his successor in title' against another or his successor 
 if (1) both plaintiff and defendant derive title under a common 
 vendor; and (2) before selling the lands now owned by plaintiff 
 and defendant the vendor laid out his estate or a defined portion 
 of it (including the lands of the plaintiff and defendant) for 
 sale in lots subject to restrictions intended to be imposed on 
 all the lots, and which, though varying in details ns to particular 
 lots, are consistent, and consistent only, with a general scheme 
 of development; and (3) if those restrictions were intended by 
 the common vendor to be, and were, for the benefit of all the 
 lots intended to be sold — whether or not for the benefit also of 
 the land retained by the vendor — the vendor’s object in impos- 
 ing the restrictions being in general to be gathered from all 
 the circumstances, including in particular the nature of the 
 restrictions, and it being easily inferred from the fact that a 
 general observance of the restrictions is calculated to enhance 
 the Value of the several lots offered for sale that the vendor 
 intended the restrictions to be for the benefit of all the lots, 
 even though he may retain other lands, the value of which 
 might be similarly enhanced; and (4) both plaintiff and de- 
 fendant, or their predecessors, purchased from the common 
 vendor on the footing that the restrictions were to enure for 
 the benefit of the other lots included in the scheme, whether or 
 not for the benefit of the land retained by the vendor, this 
 fourth point being readily inferred if the first three points be 
 established, provided the purchasers have notice of the facts 
 involved in them, but difficult, if not impossible, to establish if 
 the purchase is made in ignorance of any material part of those 
 facts. The vendor also, if such appears to have been the inten- 
 tion (which is a question of fact to be deduced from all the 
 circumstances of the case), can be restrained from using the 
 land or permitting it to be used contrary to the restrictive 
 covenants (b); and he may be required to enter into an express 
 covenant for that purpose by the purchaser, though he would 
 be bound without it (c) . 
 
 ( b ) Be Birmingham District Leicester, (1894) 2 Oh. 208. 
 
 Land Co. and Allday, (1893) 1 Gh. (c) Be Birmingham District 
 342; Davis v. Corporation of Ljancl Co. and Allday, supra. 
 
 151 
 
 restrictive 
 covenants 
 against each 
 other, 
 
 and against 
 vendor. 
 
162 
 
 BK. I., PT. I, SALES ? EXCHANGES AND GIFTS. 
 
 Practice note. 
 
 Affirmative 
 covenants not 
 enforceable 
 against 
 assigns. 
 
 Restrictive 
 covenants 
 relating to 
 goods. 
 
 Notice of 
 restrictive 
 covenants 
 may be 
 indorsed on 
 vendor’s 
 title deeds. 
 
 So that there may be no doubt in the matter, it is desirable 
 either to have a general deed containing such covenants executed 
 by the vendor and by each purchaser as he completes, or to 
 insert in the conveyance to each purchaser not only covenants 
 by him with the vendor, but also a declaration that he shall be 
 entitled to the benefit of the similar covenants entered into by 
 the other purchasers, and that as regards any lots not already 
 sold and conveyed the same shall be subject to the like restric- 
 tions (d). 
 
 The principle of Talk v. Moxhay only applies to restrictive 
 covenants, and not to positive or affirmative covenants, e.g., a 
 covenant by a purchaser of the fee simple that he will repair 
 buildings on the land; such a covenant is one in gross only, 
 i.e., it is personal to the covenantor, and subsequent purchasers 
 are not bound, even though they may have notice of it(e); 
 and to make such a covenant run with the land the relation- 
 ship of landlord and tenant should be created, that is, a long 
 term of years instead of the fee simple should be granted to 
 the purchaser. 
 
 Further, the rule seems to be confined to restrictive covenants 
 relating to land. The cases seem to show that restrictive con- 
 ditions relating to goods are not enforceable against any except 
 the covenantors (/) . 
 
 By the Conveyancing Act, 1911, s. 11, it has been expressly 
 provided that where land having a common title with other land 
 is disposed of to a purchaser (other than a lessee or a mortgagee) 
 who does not hold or obtain possession of the documents form- 
 ing the common title, such purchaser, notwithstanding any 
 stipulation to the contrary, may require that a memorandum 
 giving notice of any provision contained in the disposition to 
 him restrictive of user of, or giving rights over, any other land 
 comprised in the common title, shall, where practicable, be 
 indorsed on, or, where impracticable, be permanently annexed 
 
 (d) See 1 Prideaux, 2 Otli ed. 
 
 120 . 
 
 (e) Haywood v. Brunswick 
 
 Building Society (1881), 8 
 
 Q. B. D. 403; Austerberry v. 
 Corporation of Oldham (1885), 29 
 
 Oh. D. 750; Hall v. Ewin (1887), 
 37 Oh. D. 74. 
 
 (/) McGruther v. Pilcher, (1902) 
 2 Oh. 306 ; Taddy & Co. v. Sterious 
 & Co., (1904) 1 Oh. 354. 
 
FORM AND CONTENTS OF A PURCHASE DEED. 
 
 153 
 
 to some one document selected by the purchaser but retained 
 in the possession or power of the person who makes the dis- 
 position, and being or forming part of the common title. 
 
 Purchasers will no doubt always take advantage of 1 this en- 
 actment, but should they omit to do so the act provides that 
 the title of any person omitting to require an indorsement to be 
 made or a memorandum to be annexed shall not, by reason only 
 of this enactment, be prejudiced or affected by the omission. 
 
 The enactment does not apply to disjiositions of land regis- 
 tered under the Land Transfer Acts, 1875 and 1897, and it 
 may be here noticed that mere registration of restrictive con- 
 ditions under these Land Transfer Acts does not annex them 
 to the land, so as to make them enforceable against subsequent 
 purchasers or the original vendor, at least in those cases where 
 there is no “building scheme” (g). 
 
 Lastly, it may be mentioned that a restrictive covenant, 
 though it hampers the free alienation of the property, is not 
 obnoxious to the perpetuity rule (Ji) . 
 
 The following is a form of purchase deed as commonly 
 framed in simple cases: — 
 
 This Indenture made the day of 19 between 
 
 A. [ vendor ] of of the one part, and B. [ purchaser ] of 
 
 of the other part. Whereas the said A. is seised of the heredita- 
 ments intended to be hereby conveyed for an estate in fee simple 
 in possession free from incumbrances and has agreed to sell the 
 same to the said B. for the sum of £ . Now this Indenture 
 
 witnesseth that in consideration of the sum of £ now paid 
 
 by the said B. to the said A. (the receipt whereof the said A. 
 hereby acknowledges) the said A. as beneficial owner hereby 
 conveys unto the said B. All that, &c. [parcels ]. To hold unto 
 and to the use of the said B. in fee simple. [Add, if required , 
 And the said A. hereby acknowledges the right of the said B. 
 to production of the documents of title mentioned in the schedule 
 hereto and to delivery of copies thereof and hereby undertakes 
 for the safe custody thereof.] 
 
 In witness, &c. 
 
 [The Schedule above referred to. 
 
 To contain list of documents retained by A .] 
 
 ( g ) Wille v. St. John, (1910) ( h ) Mackenzie v. Childers 
 
 1 Oh. 325. (1889), 43 Ch. D. 265. 
 
 Limitation of 
 the enact- 
 ment. 
 
 Such cove- 
 nants not 
 within per- 
 petuity rule 
 
154 
 
 The necessity 
 for searching. 
 
 Searches 
 when vendor 
 beneficial 
 owner. 
 
 Where made. 
 
 63 & 64 Viet, 
 o. 26. 
 
 BK. I., PT. I. — SALES, EXCHANGES AND GIFTS. 
 
 CHAPTER VIII. 
 
 SEARCHES FOR INCUMBRANCES. 
 
 It is the duty of the purchaser’s solicitor immediately, or as 
 nearly as possible immediately, before the completion of a sale 
 of land, to make a search for such incumbrances affecting the 
 title as are required by law to be registered; and a solicitor 
 is liable for any loss occasioned by his omission to make such 
 searches as are proper in the circumstances of the case, unless 
 his client expressly authorises him not to search (a). 
 
 I. Usual Searches. 
 
 Before the 1st July, 1901, the searches commonly made on 
 a sale of land in fee simple, wherever situate, if the vendor was 
 a beneficial owner, were for: — (a) Judgments; (b) Crown 
 Debts; (c) Lis pendens; (d) Annuities; (e) Writs and Orders 
 affecting Land; (f) Deeds of Arrangement; (g) Statutory 
 Land Charges; and (h) Proceedings in Bankruptcy. 
 
 The first four of these — that is, for judgments, crown debts, 
 Us pendens, and annuities — were formerly made in the central 
 office of the Supreme Court, where the registration of these 
 charges was effected; but by the Land Charges Act, 1900, s. 1, 
 and the order made thereunder, the registers were, as from the 
 1st September, 1900, transferred to the Land Registry, and 
 such of the first four searches as are still made, as well as the 
 searches for writs and orders affecting land, deeds of arrange- 
 ment, and statutory land charges, are now made in the Land 
 Registry in Lincoln’s Inn Fields, London. Searches for pro- 
 
 fa) Sugden, Vendors and Pur- Williams, Vendor and Purchaser, 
 chasers, 14th ed. 547; Elpliin- vol. i. 533; Cooper v. Stephenson 
 stone and Clark, Searches, 4; (1852), 21 L. L Q. B. 292. 
 
SEARCHES FOR INCUMBRANCES. 
 
 155 
 
 ceedings in bankruptcy are made at the Bankruptcy Court in 
 Carey Street, London. As appears below, searches for judg- 
 ments and crown debts are no longer made. 
 
 If the vendor is a trustee or mortgagee selling under a trust 
 or power of sale the only search made against him is for lis 
 pendens ; but the searches stated above should be made against 
 the settlor or the mortgagor, as the case may be, and a search 
 should be made for statutory land charges against the bene- 
 ficial owner in possession where the vendor is a trustee. 
 
 II. Special Searches. 
 
 In addition to the above, searches may be required: — (1) In 
 County Registers; (2) In Copyhold or Customary Land 
 Court Rolls; (3) For Disentailing Deeds; (4) For Deeds Ac- 
 knowledged; and (5) For Registration of Title. 
 
 I. Usual Searches. 
 
 (a) Judgments. 
 
 It is provided by s. 2 (1) of the Land Charges Act, 1900, 
 that a judgment or recognizance whether obtained or entered 
 into on behalf of the crown or otherwise, and whether obtained 
 or entered into before or after the commencement of the act, 
 shall not operate as a charge on land or any interest in land, or 
 on the unpaid purchase-money for any land, unless or until a 
 writ or order for the purpose of enforcing it is registered under 
 s. 5 of the Land Charges Registration Act, 1888. 
 
 The result is that a purchaser need not search for judgments, 
 but ho should search for writs and orders issued for the purpose 
 of enforcing them registered under the Land Charges Registra- 
 tion Act, 1888 (fr). 
 
 (b) Crown Debts. 
 
 By the Land Charges Act, 1900, s. 2 (2), crown debts, what- 
 ever their date, are not to operate as a charge on land at all 
 unless or until a writ or order for the purpose of enforcing 
 them is registered under s. 5 of the Land Charges Registration 
 
 When vendor 
 a trustee or 
 mortgagee. 
 
 63 & 64 Viet 
 c. 26. 
 
 Search for 
 j udgments 
 not needed. 
 
 63 & 64 Viot 
 c. 26. 
 
 (6) See below, p. 158. 
 
156 
 
 BK. I., PT. I. SALES, EXCHANGES AND GIFTS. 
 
 Search for 
 crown debts 
 not needed. 
 
 A lis pendens 
 
 is not a charge 
 on property, 
 only notice. 
 
 Registration 
 of lis pendens. 
 
 Not applicable 
 to chattels. 
 
 Against whom 
 search for 
 lis pendens 
 should be 
 made. 
 
 Act, 1888. When a writ or order for the purpose of enforcing 
 it is so registered the debt will become a charge on the land 
 immediately on registration. 
 
 It follows that as in the case of judgments it is no longer 
 necessary to search for crown debts. 
 
 (c) Lis Pendens. 
 
 A lis pendens , i.e ., a pending action respecting the property, 
 is not in itself an incumbrance on the property, but if pro- 
 perly registered in the Land Registry it fixes the purchaser with 
 notice of an adverse claim or unsatisfied charge against the 
 property, and a purchaser will he bound by the decree made, 
 whether he has actual notice of the pending proceedings or 
 not (c) . But notice of' the existence of a registered lis 
 pendens creates no charge on the property, and the only effect 
 of the registration is to make it necessary for the purchaser 
 to look into the claims of the plaintiff who registers it. 
 Therefore, if on inquiry the suit turns out to be founded on a 
 claim which is not sustainable, the purchaser cannot refuse 
 to complete (d). The purchaser will not be affected by notice 
 of a pending action which does not directly affect the land 
 itself; for instance, where the action relates to the right to 
 money secured on land, it does not affect the land on which 
 it is secured, and a purchaser from the mortgagor will not be 
 affected by the decree made (e). 
 
 Registration of a lis pendens is required by the Judgments 
 Act, 183.9, s. 7, or a purchaser without notice will not be bound 
 by it; and by the same statute re-registration every five years 
 is made necessary (/) . 
 
 The doctrine of lis pendens only applies to land, including 
 leaseholds, and has no application to chattels personal ( g '). 
 
 The result is, that a search for lis pendens should be made for 
 five years back before the date of completion against the last 
 
 (c) Bishop of Winchester v. (e) Worsley v. Earl of Scar- 
 
 Paine (1805), 11 Ves. 195. borough (1746), 3 Atk. 391. 
 
 ( d ) Bull v. Hutchens (1863), 32 (/) ss. 4 and 7. 
 
 Bcav. 615. (< 7 ) Wig ram v. Buckley , (1894) 
 
 3 Ch. 483. 
 
SEARCHES FOR INCUMBRANCES. 
 
 157 
 
 purchaser for a pecuniary consideration, and every person who 
 has been owner of, or had a power of disposition over, the land 
 sold subsequently to him; if a registered Us pendens is found, 
 the purchaser should require to be satisfied that the pending 
 action or matter is not one which affects the vendor’s power 
 to dispose of the property; if it is, he should decline to 
 complete (Ji ) . 
 
 (d) Annuities. 
 
 Annuities granted after the passing of the Judgments Act, 
 1855, are required by s. 12 of 1 that statute to be registered. 
 The annuities comprehended by this act are “ annuities or 
 rent-charges created otherwise than by marriage settlement or 
 will, for one or more life or lives, or for any term of years or 
 greater estate determinable on a life or lives.'’ If these are not 
 duly registered in the name of the person whose estate is in- 
 tended to be affected, they will not affect any purchaser or 
 mortgagee without notice. But a purchaser who, at the time 
 of completing his purchase, has notice of such an annuity will 
 be bound by it, although it is not registered (i), for there is 
 nothing in the section to exclude the doctrine of equity, that 
 the object of the legislature in requiring registration is to give 
 notice to the purchaser, so that a purchaser who has notice has 
 all that the statute was intended to give him. And an unre- 
 gistered annuity is good against a judgment creditor or a trus- 
 tee in bankruptcy whether he has or has not notice of it. 
 
 The practice is to make the search for annuities against the 
 last purchaser for a pecuniary consideration, and persons claim- 
 ing under him. There is no provision for re-registration of 
 annuities, so that the search must be from the date when the 
 person searched against acquired the property or attained 
 twenty-one, whichever last happened (k) . 
 
 ( h ) Elphinstone and Clark, Cli. D. 563. 
 
 Searches, 93. ( k ) Elphinstone and Clark, 
 
 ( i ) Greaves v. Tofteld (1880), 14 Searches, 108. 
 
 What annui- 
 ties must be 
 registered . 
 
 18 & 19 Viet, 
 c. 15. 
 
 In whose 
 name regis- 
 tered. 
 
 Against 
 whom search 
 for annuities 
 should be 
 made. 
 
158 
 
 What writs 
 and orders 
 must be 
 registered. 
 
 ■51 & 52 Viet, 
 c. 51. 
 
 63 & 64 Viet, 
 c. 26. 
 
 against 
 whom search 
 for writs and 
 orders should 
 be made. 
 
 What deeds of 
 arrangement 
 must be 
 registered. 
 
 Against 
 whom search 
 for deeds of 
 arrangement 
 should be 
 made. 
 
 What a land 
 charge is. 
 
 BK. I., PT. I. SALES, EXCHANGES AND GIFTS. 
 
 (e) Writs and Orders affecting Land. 
 
 Under the Land Charges Registration and Searches Act, 
 1888, ss. 5 and 6, as amended by the Land Charges Act, 1900, 
 s. 3-, every writ or order affecting land issued or made by any 
 court for the purpose of enforcing a judgment, statute, or 
 recognizance, whether obtained on behalf' of the crown or 
 otherwise, and any order appointing a receiver or sequestrator 
 of land, and every delivery in execution or other proceeding 
 thereunder, is void as against a purchaser for value of the land 
 unless the writ or order is registered in pursuance of the act, 
 and re-registered every five years. 
 
 A search should accordingly be made for such writs and 
 orders for five years before completion in the names of the 
 vendor and all other persons mentioned in the abstract as his 
 predecessors in title (or as having any such interest as would 
 be subject to process of execution) back to and including the 
 last purchaser for value (l). 
 
 (f) Deeds of Arrangement . 
 
 The act of 1888 (ss. 8 and 9) also provides that deeds of 
 arrangement affecting land shall be registered, otherwise they 
 are to be void as against a purchaser for value of any land 
 comprised therein. Search for deeds of arrangement should 
 accordingly be made against the vendor and (if he did not 
 acquire the property by purchase for value) his predecessors 
 in title back to and including the last purchaser for value. 
 Since there is no provision for re-registration the search should 
 be carried back to the date when the person searched against 
 acquired the property or attained the age of twenty-one, or back 
 to the 3,1st of December, 1888, whichever period is the shorter. 
 
 (g) Statutory Land Charges. 
 
 A land charge is defined by the Land Charges Registration 
 and Searches Act, 1888 (m), as a rent or annuity or princi- 
 
 (Z) Elpkinstono and Clark, ( m ) 6. 4. 
 
 Searches, App. 18. 
 
SEARCHES FOR INCUMBRANCES. 
 
 159 
 
 pal moneys payable by instalments or otherwise, with or with- 
 out interest, charged ( otherwise than by deed) on land under 
 the provisions of any act of parliament for securing to any 
 person either the moneys spent by him, or the costs, charges 
 and expenses incurred by him, under such act; or the moneys 
 advanced by him for repaying the moneys spent or the costs, 
 charges and expenses incurred by another person under the 
 authority of an act of parliament, and a charge under s. 35 of 
 the Land Drainage Act, 1861, or ss. 15 — 19 of' the Agricultural 
 Holdings Act, 1908, but does not include a rate or scot. The 
 section only applies to charges created on the application of 
 the owner of the land, and therefore does not include a sanitary 
 authority’s charge in respect of paving expenses under s. 257 
 of the Public Health Act (ti). 
 
 Land charges within the act created after 31st December, 
 1888, are now to be registered in the Land Registry, other- 
 wise they will be void as against a purchaser for value of the 
 land charged (o). Moreover, one year after the first assign- 
 ment by act inter vivos occurring after 31st December, 1888, 
 of a land charge created before the commencement of the act, 
 the person entitled to the charge cannot recover it as against a 
 purchaser for value of the land charged unless he registers the 
 charge ( p ). Orders of the Board of Agriculture charging land 
 under the Improvement of Land Act, 1834, were formerly re- 
 quired to be registered at the Land Registry under s. 58 of that 
 act, as well as under s. 12 of the act of 1888; but by the Im- 
 provement of Land Act, 1899, s. 5, the provision requiring 
 registration under the act of 1834 is repealed, but registration 
 under the act of 1888 is still necessary. 
 
 Accordingly, search should be made for land charges against 
 all persons appearing on the abstract as being persons in whose 
 names an entry in the register could be made under s. 10 of the 
 act. The search should be carried back to the date of the last 
 purchase or the 31st of December, 1888, whichever is last, and 
 even this will not fully protect the purchaser from land charges 
 
 (n) It. v. Vice- Registrar of (o) ss. 10 and 12. 
 
 Land Registry (1889), 24 Q. B. D. ( p ) s. 13. 
 
 178. 
 
 Land chargee 
 to be regis- 
 tered . 
 
 Against 
 whom search 
 for land 
 ch ars’es 
 should he 
 made. 
 
160 BK. I., PT. I. — SALES, EXCHANGES AND GIFTS. 
 
 created before the 1st of January, 1889 (g). If any such land 
 charge is registered, the purchaser should refuse to complete 
 until the vendor has removed it or given a satisfactory indem- 
 nity in respect of it. 
 
 (h) Proceedings in Bankruptcy . 
 
 Searches for 
 
 bankruptcy 
 
 proceedings. 
 
 Importance 
 of search in 
 bankruptcy. 
 
 A search should be made in the registers at the Bankruptcy 
 Court, to ascertain whether a petition has been presented or 
 a receiving order or adjudication made against the vendor or 
 (if he did not acquire the property by purchase for value) any 
 of his predecessors in title back to and including the last pur- 
 chaser for value, or whether lie has made a scheme of arrange- 
 ment for the benefit of his creditors (r) . It is usually made 
 for a period of five years back from the date of the search, but 
 it is better to carry it back for twelve years, for the trustee’s 
 title would be barred by the Beal Property Limitation Act, 
 1874, after twelve years from the time when the property vested 
 in him, and if a search for twelve years discloses no bankruptcy 
 the purchaser will generally be safe, though it will not ensure 
 absolute safety. It should be added that the registers at the 
 Bankruptcy Court in London are never quite up to date, and 
 in circumstances of suspicion it may therefore be well to search 
 also in the county court of the district in which the person 
 searched against resides or carries on business. 
 
 The necessity for searching at the Bankruptcy Court is ex- 
 emplified by the case of Re New Land Development Association 
 and Gray (s), where the Court of Appeal expressed the opinion 
 that a purchaser of real estate from a vendor who is an undis- 
 charged bankrupt has no title as against the trustee in bank- 
 ruptcy, even though he had no knowledge of the bankruptcy at 
 the time he completed his purchase; but this decision is not 
 
 ( q ) Elphinstone and Clark, 
 Searches, App. 22, 24. 
 
 (r) See Cooper v. Stephenson 
 (1852), 21 L. J. Q. B. 292. In 
 (his case the court appeared to 
 think that a solicitor need not 
 make this search unless there were 
 
 something to excite suspicion of 
 the solvency of the vendor. 
 
 (s) (1892) 2 Ch. 138; see also 
 The London and County Contracts 
 v. Tallack (1903), 19 T. L. R. 156; 
 Official Receiver v. Cooke, (1908) 
 2 Ch. 661. 
 
SEARCHES FOR INCUMBRANCES. 
 
 161 
 
 applicable to leaseholds acquired by a bankrupt after the com- 
 mencement of his bankruptcy and before the date of his dis- 
 charge, and under the rule in Cohen v. Mitchell (t) a purchaser 
 from a bankrupt of property of this character gets a good title 
 as against the trustee in bankruptcy (u) . 
 
 II. Special Searches. 
 
 (1) Searches in County Registers. 
 
 When the land the subject of the sale is situated in one of 
 the counties which are supplied with local registries, namely, 
 Middlesex and Yorkshire (which includes Kingston-on-Hull), 
 a search should be made in the local register (v) . 
 
 (a) In the Middlesex Registry. 
 
 The effect of the Middlesex Registry Act, 1708, which regu- 
 lates registration of assurances of land in Middlesex, may be 
 summarized as follows: — 
 
 (1) Registration is not of itself notice (a?). 
 
 (2) An unregistered assurance will bind the purchaser if 
 he or his solicitor has actual notice of it (y ) . 
 
 (3) If a search is made in the register, the purchaser is 
 deemed to have notice of all assurances registered during the 
 period over which the search extends, but not of those registered 
 outside that period {z). 
 
 By the Land Registry (Middlesex Deeds) Act, 1891, s. 1, the 
 business of the Middlesex Registry was transferred to the Land 
 Registry, Lincoln’s Inn Fields, where the necessary searches 
 are now made. 
 
 (t) (1890), 25 Q. B. D. 262. 
 
 (w) Re Clayton and Barclay's 
 Contract, (1895) 2 Ch. 212; see 
 also Re Kent County Gas, &c. Co., 
 (1909) 2 Ch. 195. 
 
 (-y) As to what assurances, &c. 
 must be registered, see post, pp. 
 188, 191. 
 
 G. — C. 
 
 (a?) Elphinstone and Clark, 
 Searches, 131, where the authori- 
 ties are cited. 
 
 ( y ) Le Neve v. Le Neve (1747), 
 Wh. & Tud. L. C. Eq. 8th ed. 
 vol. ii. 187. 
 
 ( z ) Hodgson v. Dean (1825), 2 
 Si. & Stu. 221. 
 
 M 
 
 Counties 
 
 having 
 
 registers. 
 
 (a) Effect of 
 Middlesex 
 Registry Act. 
 7 Anne, c. 20. 
 
 54 & 55 Viet, 
 c. 64. 
 
162 
 
 BK. I., FT. I. SALES, EXCHANGES AND GIFTS. 
 
 Against 
 whom search 
 in Middlesex 
 Registry- 
 made. 
 
 Strictly speaking, search ought to be made against every 
 person who is shown by the abstract to have been owner of the 
 land, or to have had power to dispose of it; but in practice 
 search is generally made only against the last purchaser for 
 value and persons claiming under him (a). 
 
 (h) In the Yorkshire Registry. 
 
 (b) Effect of 
 Yorkshire 
 Registry- 
 Acts. 
 
 47 & 48 Viet, 
 c. 54. 
 
 48 & 49 Viet. 
 
 c. 26. 
 
 The early statutes relating to registration in Yorkshire, the 
 effect of which was similar to that of the Middlesex Registry 
 Act, 1708, were repealed by the Yorkshire Registries Act, 
 1884 (5), and the law consolidated and amended. The act of 
 1884 was supplemented by an amending act in 1885. Shortly 
 the effect of the acts, as regards the necessity for searching the 
 register, is as follows: — 
 
 (1) Registration is not of itself notice, s. 15 of the act of 
 1884, which provided that it should be, having been repealed by 
 s. 5 of the act of 1885, but no priority or protection is given 
 or allowed to any estate or interest in land by reason of such 
 estate or interest being protected by or tacked to any legal or 
 other estate even though the person claiming protection is a 
 purchaser for value without notice (c). 
 
 (2) The act provides that conveyances, &c. which are not 
 registered shall not avail even against a purchaser with notice, 
 whether actual or constructive, of them, in the absence of actual 
 fraud on his part. Consequently, if, after contract for sale and 
 purchase of lands in Yorkshire, the purchaser hears of an in- 
 oumbrance on the property, which on searching he discovers is 
 not registered, he can safely complete his purchase, and by 
 registering obtain priority. 
 
 The registry office for the North Riding is at Northallerton, 
 that for the East Riding and Hull at Beverley, that for the 
 West Riding at Wakefield. 
 
 The search should be as in the Middlesex Registry (c?) . 
 
 ( a ) Elphinstone and Clark, peal of s. 15 of the act of 1884 
 
 Searches, 144. seems to be nullified by the omis- 
 
 ( b ) s. 51. sion to repeal s. 16. See Elphin- 
 
 (c) s. 16. The effect of the re- stone and Clark, Searches, 144. 
 
 (d) Elphinstone and Clark, 
 
SEARCHES FOR INCUMBRANCES. 
 
 163 
 
 (2) Searches of Court, Rolls. 
 
 When the land is customary freehold or copyhold, a search 
 should be made on the court rolls of the manor in which it is 
 situate for incumbrances not appearing on the abstract; such 
 search should extend over the whole period covered by the 
 abstract. In practice, however, this search is seldom made. 
 
 (3.) Searches for Disentailing Deeds. 
 
 If the land has been entailed, and there is any reason to 
 suspect that a disentailing deed has been suppressed, a search 
 should be made in the enrolment department of the central 
 office of the Supreme Court for the disentailing deed enrolled 
 under the Fines and Recoveries Act, 183/3, ss. 40, 41. 
 
 (4) Searches for Acknowledged Deeds. 
 
 When the property has belonged to a married woman before 
 the year 1883, a search in the central office for the certificate 
 of the enrolment of the acknowledgment of the married woman 
 may sometimes be necessary. Such a search may appropriately 
 be made when it is suspected that she has conveyed away the 
 property by a deed not disclosed by the abstract. 
 
 (5) Search for Registration of Title. 
 
 If there is any suspicion that the title to the land sold has* 
 been registered the index map of registered land at the Land 
 Registry should be searched. There is no fee for the search (e). 
 If desired an official search can be obtained, for which a fee 
 must be paid (/) . 
 
 Mode of Searching. 
 
 Searches formerly had to be made by the purchaser himself 
 or his solicitor, but an innovation was made by s. 2 of the 
 
 Searches, 144; as to searches for Transfer Acts, 29. 
 wills, however, see ibid. 145. (/) Land Transfer Rules, 1903, 
 
 (e) Brickdale and Sheldon, Land r. 289, 
 
 M 2 
 
 Searches in 
 the court 
 
 rolls. 
 
 Searches for 
 disentailing 
 deeds. 
 
 Searchesfor 
 
 acknowledged 
 
 deeds. 
 
 Searches for 
 registration 
 of title. 
 
 Official 
 searches 
 under 4 5 & 46 
 
 Viet. c. 39. 
 
1G4 
 
 BK. I., PT. I. SALES, EXCHANGES AND GIFTS. 
 
 Official 
 searches in 
 Middlesex . 
 
 Official 
 searches in 
 Yorkshire. 
 
 Conveyancing Act of 1882, which, as extended by s. 17 of 
 the Land Charges Registration and Searches Act, 1888, and 
 s. 6 (3) of the Land Charges Act, 1900, provides for the making 
 of official searches in the Land Registry for writs and orders 
 affecting land, land charges, annuities, lis pendens and deeds 
 of arrangement. The provisions of the acts are not compul- 
 sory, and it is still open to the purchaser or his solicitor to 
 search in person in the old way; but by obtaining an official 
 search, the trouble and responsibility of a personal search are 
 avoided, and at the same time full protection from errors in 
 the official certificate obtained, since it is provided that the 
 certificate shall be conclusive, affirmatively or negatively, as 
 the case may be, in favour of the purchaser. 
 
 It is further provided that where a solicitor obtains an office 
 copy certificate of result of search, he shall not be answerable 
 in respect of any loss that may arise from error in the certi- 
 ficate, and that where be is acting for trustees, executors, agents, 
 or other persons in a fiduciary position, those persons shall not 
 be so answerable, and where such persons obtain such an office 
 copy without a solicitor, they shall also be protected in like 
 manner. 
 
 By the Land Registry (Middlesex Deeds) Act, 1891, s. 2, 
 and No. 11 of the regulations in the schedule thereto, a search 
 in the Middlesex Registry may now be made through the re- 
 gistrar, and his certificate of the result obtained (g). 
 
 The Yorkshire Registry Act, 1884 (ss. 20 — 23.), likewise 
 contains provisions for the making of official searches nearly 
 identical with the provisions for making searches contained 
 in the Conveyancing Act, 1882. 
 
 (g) As to mode of searching and (Middlesex Deeds) Rules and Fee 
 fees payable, see Land Registry Orders, 1892 and 1913. 
 
THE COMPLETION OF THE PURCHASE. 
 
 ‘ 16 
 
 CHAPTEB IX. 
 
 THE COMPLETION OE THE PURCHASE. 
 
 The Execution of the Deed. 
 
 As a rule, a deed ought to be read over to the parties to it 
 before they execute it; at all events, they ought to be made 
 acquainted with its contents or purport, and more particularly 
 is this the case where there is any question of the party exe- 
 cuting the deed being illiterate. 
 
 It is doubtful whether signature is necessary to the validity 
 of a deed; but when the case comes within the Statute of 
 Frauds the better opinion seems to be that the deed should be 
 signed. In practice, deeds are always signed. Sealing is 
 certainly an essential formality; but any kind of seal will do, 
 and the mere touching of a seal already affixed is sufficient, and 
 is the mode of sealing usually adopted in practice. 
 
 Delivery of the deed is also essential; it may be either actual 
 or virtual, or both. Actual delivery consists in handing over 
 the possession of’ the deed by the party executing it to the other 
 party. Virtual delivery consists in a statement by him that he 
 delivers it as his act and deed, which is an effectual delivery 
 even though he retains possession of' the deed. A deed may 
 be delivered as an escrow, i.e., to take effect conditionally only. 
 In this case it should be delivered to some person not a party 
 to the deed, with a statement that it is to be delivered to the 
 grantee or to the party for whose benefit it is made on .the 
 performance of a specified condition or at a specified future 
 time. But even where the deed is delivered to the grantee or his 
 agent, if it is delivered on a condition which suspends its opera- 
 
 Reading of 
 deed to 
 parties. 
 
 Signature. 
 
 Sealing. 
 
 Delivery : 
 
 (a) actual ; 
 
 (b) virtual ; 
 
 (c) as an 
 escrow. 
 
lfifi 
 
 BK. I., PT. I. SALES, EXCHANGES AND GIFTS. 
 
 Witnesses not 
 ordinarily 
 necessary to 
 the validity 
 of a deed. 
 
 Execution of 
 deed in 
 purchaser’s 
 presence. 
 
 44 & 45 Viet, 
 c. 41, s. 8. 
 
 Execution 
 by attorney. 
 
 How payment 
 is made. 
 
 tion to some future time or event, it will operate as an 
 escrow ( a ). 
 
 Often the vendor executes the conveyance and hands it to his 
 solicitor at a time prior to that fixed for completion, and in that 
 case in order to make sure that the legal estate does not jeass at 
 once to the purchaser, care should be taken that he expressly 
 deliver the deed as an escrow to be held by his solicitor until 
 payment of the purchase-money — at any rate, in a case where 
 there is any doubt as to the ability of the purchaser to pay 
 the purchase-money (b). 
 
 It is not necessary that a deed should be executed in the 
 presence of witnesses unless so required by an instrument 
 creating a power in exercise of which the deed is made, or by 
 statute (e). But in practice the conveyance is usually attested 
 by one or two witnesses, so as to facilitate proof of its due 
 execution in future. 
 
 Previously to the Conveyancing Act, 1881, it was an un- 
 settled point whether or not the purchaser was entitled to have 
 the deed executed by the vendor in the presence of the pur- 
 chaser or of his solicitor (d) . The eighth section of the act sets 
 this question at rest, by enacting that the purchaser shall not 
 he entitled to require that the conveyance to him be executed 
 in his presence or in that of his solicitor as such, hut shall be 
 entitled to have, at his own cost, the execution of the convey- 
 ance attested by some person appointed by him, who may, if 
 he thinks fit, be his solicitor. 
 
 In these days it is probable that a purchaser would be obliged 
 to accept an execution under a power of attorney, provided it 
 came within either s. 8 oi s. 9 of the Conveyancing Act, 
 1882 (e). 
 
 The purchaser should attend himself at the time fixed for 
 completion with cash or notes or banker’s drafts for the pur- 
 chase-money, as he cannot expect the vendor’s solicitor to accept 
 
 (a) Watkins v. Nash (1875), 
 L. R. 20 Eq. 262. 
 
 (5) Buchner v. Keith (1863), 15 
 0. B. N. S. 40. 
 
 (c) Seal v. Claridge (1881), 7 
 Q. B. D. at p. 519; ante, p. 102. 
 
 (d) See Viney v. Chaplin (1858), 
 2 De G. & J. 468; Essex v. 
 Daniell (1875), L. R. 10 C. P. 
 538. 
 
 (e) But see Wallace v. Cook 
 (1804), 5 Esp. 117. 
 
THE COMPLETION OE THE PURCHASE. 
 
 167 
 
 a cheque, since should the solicitor do so without the vendor’s 
 express authority, and the cheque be dishonoured after he lias 
 parted with the title deeds and the conveyance, he would be 
 responsible to his client for any loss arising (/) . 
 
 On attending to complete, the purchaser’s solicitor should Increment 
 inspect the purchase deed to see that it is duly stamped with stamp^ust 
 one of the increment value duty stamps mentioned in s. 4 (3) ° u the 
 of the Finance (1909-10) Act, 1910, since otherwise the deed 
 is not admissible in evidence. These stamps are: (i) a stamp 
 denoting that the duty has been assessed and paid; (ii) a stamp 
 denoting that all necessary particulars have been delivered to 
 enable the duty to he assessed, and that security has been given, 
 if required, for its payment; (iii) a stamp denoting that no 
 increment value duty is payable. The second is the one usually 
 impressed in practice. 
 
 The Payment o f the Purchase-Money. 
 
 If, as is often the case, the vendor does not attend at the Payment of 
 
 TI 1 1 T’( • i~l H QP » 
 
 completion, the question arises whether the purchaser is justi- money to 
 fled in paving the purchase-money to the vendor’s solicitor. vei y\ or s 
 
 1 x i/ solicitor : 
 
 Formerly, lie was not, unless the solicitor produced a written 
 authority from the vendor authorizing him to receive it (g) . 
 
 Now, however, in ordinary cases, matters are simplified by the (a) in ordinary 
 Conveyancing Act, 1881, s. 56, which provides that “ where 45 y ict 
 a solicitor produces a deed having in the body thereof or in- c. 41 , s. 56; 
 dorsed thereon a receipt for consideration money or other con- 
 sideration, the deed being executed, or the indorsed receipt 
 being signed by the person entitled to give a receipt for that 
 consideration, the deed shall be sufficient authority to the person 
 liable to jiay or give the same for his paying or giving the 
 same to the solicitor without the solicitor producing any sepa- 
 rate or other direction or authority in that behalf from the 
 person who executed or signed the deed or receipt. ' Appa- 
 rently in the absence of notice that the solicitor producing the 
 deed is unauthorized, the purchaser is not only entitled but 
 
 (/) Pape v. Westacott, (1894) 
 
 1 Q. B. 298. 
 
 (g) Viney v. Chaplin, supra. 
 
108 
 
 BK. I., PT. I. SALES, EXCHANGES AND GIFTS. 
 
 (b) when 
 vendor is 
 trustee. 
 
 56 & 57 Viet, 
 c. 53, s. 17. 
 
 Apportion - 
 ment of 
 income 
 
 bound to assume that lie is retained by the person to whom 
 the consideration is payable (h ) . 
 
 Soon after the section came into force it was held that if’ 
 the Vendors were trustees they had no right to authorize their 
 solicitor or any one else to receive the purchase-money (&) . But 
 by the Trustee Act, 1893, s. 17, a trustee may appoint a soli- 
 citor to be his agent to receive and give a discharge for the 
 purchase-money, by permitting the solicitor to have the custody 
 of and to produce a deed containing any such receipt as is 
 referred to in s. 56 of the Conveyancing Act, 1881, and a 
 trustee will not be chargeable with a breach of' trust by reason 
 only of his having made, or concurred in making, such an 
 appointment; and the producing of any such deed by the 
 solicitor will have the same validity and effect under s. 56 as 
 if the person appointing such solicitor had not been a trustee. 
 But this section does not enable an attorney of a trustee to 
 delegate to a solicitor the duty of' receiving the purchase- 
 money (A:). In Re Flower and Metropolitan Board of 
 Works (/), it was held that where there were several trustee- 
 vendors, the purchaser could insist on all the trustees attending 
 personally, or else on their giving a written and signed direc- 
 tion that the money should be paid to their joint account in 
 some bank, and that he was justified in refusing to pay the 
 money to one trustee authorized by the others to receive it. 
 The decision in this case is not affected by the above provision 
 of the Trustee Act, unless the co-trustee were also a solicitor 
 acting professionally in the matter, when the case seems to fall 
 within the act. 
 
 Before actually paying over the purchase-money there are 
 usually some apportionments of' rent and outgoings to be made. 
 It is comparatively rare, for instance, for a purchase to be com- 
 
 (Ji) Per Farwell, J., in King v. 
 Smith, (1900) 2 Ch. at p. 431; 
 compare remarks of North, J., in 
 Day v. Woolwich Equitable Build- 
 ing Society (1888), 40 Ch. D. at 
 p. 493; and see Lindley, L. J., in 
 Re Hetling and Merton's Con- 
 tract, (1893) 3 Ch. at p. 280. 
 
 (i) Re Bellamy and Metropolitan 
 Board of Works (1882), 24 Ch. D. 
 387. 
 
 (&) Re Hetling and Merton's 
 Contract, (1893) 3 Ch. 269. 
 
 ( [l ) Re Flower and Metropolitan 
 Board of Works (1884), 27 Ch. D. 
 592. 
 
THE COMPLETION OF THE PURCHASE. 
 
 169 
 
 pleted at the date agreed upon, and as a consequence it some- 
 times happens that the vendor has received rent which, or part 
 of which, has accrued due since the date fixed for completion. 
 The purchaser will in such a case be entitled to deduct an 
 equivalent amount from his purchase-money. Conversely, 
 since the vendor is entitled to an apportioned part of any rent 
 accruing at the date fixed for completion, if he has not actually 
 received it before completion he will require an undertaking 
 ffom the purchaser to pay him his proportion when the rent 
 is received. The conditions of sale often provide that the pur- 
 chaser shall pay the vendor his proportion at the time of com- 
 pletion (m). 
 
 Outgoings are not necessarily apportionable, but they are 
 usually expressly made so by the conditions, and where appor- 
 tionable outgoings have been paid in advance by the vendor, as 
 rates and taxes often are, he will require to be repaid the pro- 
 portion due to be paid by the purchaser. As regards apportion- 
 able outgoings not payable in advance, such as ground rent, the 
 purchaser is entitled to deduct from the purchase-money the 
 proportion payable by the vendor ( n ). 
 
 The purchaser, on paying the purchase-money, is entitled to 
 the conveyance executed by the vendor, and to have the title 
 deeds relating to the property handed over to him, unless the 
 vendor has the right to retain them by the terms of the contract 
 or under the provisions of s. 2, r. 5, of the Vendor and Pur- 
 chaser Act, 1874 (o). 
 
 The purchaser is entitled to all the deeds and documents in 
 the vendor’s possession relating to the land sold, and not merely 
 to those set out in the abstract (p) . When the deeds are handed 
 over to the purchaser or his solicitor, his signature should be 
 obtained to a schedule containing a list of the deeds handed 
 over. 
 
 Formerlv, when the vendor was entitled to and did retain the 
 
 aud out- 
 goings. 
 
 Right of 
 purchaser to 
 possession of 
 deeds on 
 completion. 
 
 Extends to 
 all deeds. 
 
 Vendor re- 
 taining deeds 
 
 (m) See ante, p. 69. 
 
 (w) See on the subject gene- 
 rally, Williams, Vendor and Pur- 
 chaser, vol. i. 626 et seq. 
 
 ( o ) As to purchaser’s right to 
 have notice of vendor’s restrictive 
 
 covenant indorsed on deed re- 
 tained, see ante, p. 152. 
 
 (p) Sugden, Vendors and Pur- 
 chasers, 14th ed. 407; Be Duthy 
 and Jesson's Contract, (1898) 1 Ch. 
 419. 
 
170 
 
 BK. I., PT. I. SALES, EXCHANGES AND GIFTS. 
 
 formerly gave 
 covenant to 
 produce and 
 keep safe. 
 
 Acknowledg- 
 ment and 
 undertaking 
 under 44 & 4 5 
 Viet, c 41, 
 s. 9. 
 
 Obligations of 
 acknowledg- 
 ment. 
 
 How 
 
 enforced. 
 
 On whom 
 binding. 
 
 By whom 
 enforceable. 
 
 deeds relating to the estate, he had to enter into a covenant with 
 the purchaser for the production of the deeds when called for, 
 and for their safe custody in the meanwhile. 
 
 For this covenant, however, the Conveyancing Act, 1881, 
 s. 9, substitutes, where a person retains possession of' documents, 
 a form of agreement, called an acknowledgment of the right to 
 production, and an undertaking for the safe custody of the 
 deeds. 
 
 The obligations imposed by an acknowledgment are : — 
 (1) to produce the documents for inspection and comparison 
 with abstracts or copies thereof by the person entitled or any 
 one by him authorized in writing ; (2) to produce the documents 
 at airy trial, &c. in the United Kingdom; (3,) to deliver to him 
 true copies or abstracts of and from the documents (g) . 
 
 The person who requires production or copies as above must 
 pay the expenses (r) . Any person entitled to the benefit of an 
 acknowledgment may apply to the Chancery Division by sum- 
 mons in chambers for production of the documents, or the 
 delivery of copies thereof or extracts therefrom to the person 
 to he benefited or someone on his behalf (s'). The acknowledg- 
 ment when given operates to satisfy any liability to give a 
 covenant for production and delivery of extracts or copies of 
 documents ( t , ). 
 
 The acknowledgment binds the documents in the possession 
 or under the control of the person who retains them, and of 
 every other person having possession or control of them from 
 time to time, but binds each individual possessor so long only 
 as he has possession or control thereof; and every jaerson so 
 having possession or control must specifically perform the 
 obligations imposed by (lie acknowledgment unless prevented 
 by fire or other inevitable accident ( u ) . 
 
 The obligations imposed by the acknowledgment are to be 
 performed at 'the request in writing of — 
 
 1. The person to whom the acknowledgment is given: 
 
 ( q ) Conveyancing Act, 1881, (s) Ibid. s. 9, sub-s. (7). 
 
 s. 9 (4). (£) Ibid, sub-s. (8). 
 
 (r) Ibid, sub-s. (5). (u) Ibid, sub-s. (2). 
 
THE COMPLETION OF THE PURCHASE. 
 
 171 
 
 2. Any person (not being' a lessee at a rent) having or claim- 
 ing any estate, interest, or right through or under 
 that person, or otherwise becoming through that per- 
 son interested in or affected by the terms of any docu- 
 ment to which the acknowledgment relates (x ) . 
 
 The acknowledgment does not give any right of action for 
 loss or destruction of the documents, from whatever cause 
 arising (?/). But sub-s. 9 provides that where a person who 
 retains possession of documents gives to another an undertaking 
 for safe custody of such documents, the undertaking shall oblige 
 the person giving it, and every person having possession or 
 control of the documents from time to time, to keep the docu- 
 ments mentioned in the undertaking safe, whole, uncancelled, 
 and undefaced, unless prevented by fire or other inevitable 
 accident; but each individual possessor is bound as long only 
 as he has possession or control of the documents. 
 
 The section also provides a summary mode of applying in 
 chambers in the Chancery Division for the assessment of 
 damages for the loss, destruction or injury to any documents 
 included in an undertaking, and empowers the court to direct 
 inquiries as to the amount of damages, and to order payment 
 thereof by the person liable (z) . An undertaking for safe 
 custody satisfies any liability to give a covenant for safe custody 
 of documents (a). Lastly, the section only applies if and so 
 far as a contrary intention is not expressed in the acknowledg- 
 ment or undertaking (b). 
 
 The acknowledgment or undertaking is usually incorporated 
 in the conveyance, but may be given by a separate instrument. 
 
 It has become the usual practice for trustees or mortgagees 
 who retain title deeds to give only an acknowledgment for 
 production, and not an undertaking for safe custody, and it 
 maj r bo that it is now too late to question their right to refuse 
 the latter. There is, however, no decision or judicial ex- 
 pression of opinion to support the practice, and as the 
 acknowledgment standing alone gives no right to damages 
 
 Obligations of 
 undertaking. 
 
 Summary 
 application in 
 chambers in 
 case of loss of 
 documents, 
 
 &c. 
 
 May be in 
 
 separate 
 
 document. 
 
 When vendors 
 are trustees or 
 mortgagees. 
 
 ( x ) Ibid, sub-s. (3). 
 
 (y ) Ibid, sub-s. (6). 
 
 ( z ) Ibid, sub-s. (10). 
 
 (а) Ibid, sub-s. (11). 
 
 (б) Ibid, sub-s. (13). 
 
172 
 
 BK. I., PT. I. SALES, EXCHANGES AND GIFTS. 
 
 By whom 
 given when 
 land sold in 
 lots. 
 
 When deeds 
 are in posses 
 sion of third 
 person. 
 
 if the deeds are not produced, the acknowledgment without 
 the undertaking may be of no avail. It is suggested, there- 
 fore, that a purchaser from a trustee or mortgagee ought to be 
 entitled to insist on a qualified undertaking at least, that is to 
 say, an undertaking that if, while the documents are in the 
 trustee’s personal custody, as distinguished from the custody of 
 his solicitor or agent, they are lost or destroyed he will be liable 
 for such loss. It is needless to say, however, that this cannot 
 be required if it has been provided by the conditions of sale, as 
 it often is, that the purchaser shall have an acknowledgment 
 only. 
 
 In a case where an estate is sold in lots, if the conditions are 
 silent, the purchaser who pays the most money will be entitled 
 to the custody of the title deeds; and when the conditions state 
 who is to have the title deeds, they generally give them to the 
 purchaser who pays the most money; but if, as sometimes, they 
 provide that the purchaser of the “largest lot” shall have the 
 deeds, he who buys the lot largest in superficial area will be 
 entitled to the deeds, even as against a purchaser of several 
 lots whose aggregate area is larger than that of the largest 
 lot sold. The purchaser who gets the deeds may be a person 
 “ retaining possession ” of them within s. 9 of the Conveyancing 
 Act, and so able to give to each of the other purchasers the 
 statutory acknowledgment and undertaking, but it must be 
 remembered that when the deeds are not in the possession of 
 the vendor, the section does not apply, and an express covenant 
 must be given (c). If, for instance, a mortgagor sells part 
 of the mortgaged land with the concurrence of the mortgagee, 
 who retains the title deeds, the mortgagee is the only person 
 who can give the statutory acknowledgment and undertaking'. 
 Usually, though willing to give the acknowledgment, the 
 mortgagee objects to give the undertaking, and therefore the 
 mortgagor covenants, and apparently can be compelled to cove- 
 nant, to give the undertaking as soon as the deeds come into his 
 possession, and that in the meantime the person in possession 
 of them shall keep them safe unless prevented by fire or other 
 inevitable accident (d ) . 
 
 (c) Re Pur sell and D cakin' s ( d ) See Williams, Vendor and 
 
 Contract, (189.3) W. N. 152. Purchaser, 2nd ed. p. 690. 
 
THE COMPLETION OF THE PURCHASE. 
 
 17 : 
 
 It is said that where land is conveyed through a “ grantee 
 to uses,” in order that the acknowledgment and undertaking 
 may run with the land for the benefit of subsequent purchasers, 
 they should be given to the grantee and not to the real 
 purchaser (e). 
 
 The purchaser is entitled to have all the documents con- 
 tained in the abstract included in the covenant for production 
 or acknowledgment of the right to production, unless they are 
 not in the vendor’s possession, as in the case of copies of court 
 rolls (/); hut it appears to have been decided in an unreported 
 case (g) that he is not entitled to have any others included, 
 even though the vendor may have others in his possession, nor 
 can the purchaser require a memorandum of the acknowledg- 
 ment to be endorsed on the leading title deeds. 
 
 The acknowledgment should include probates, succession and 
 estate duty receipts, baptismal and marriage certificates, &c., 
 though in practice, it is believed, a vendor generally carries his 
 point in refusing to include these (Ji). 
 
 The completion being effected, if the conveyance is not 
 already stamped the proper stamp duty must be impressed 
 within thirty days from the date of execution. 
 
 Conveyances of Special Kinds of Property. 
 
 Hitherto we have assumed the subject of the conveyance to 
 be a freehold estate in real property. There remain to be 
 discussed a number of other interests in property, real and 
 personal, which require special modes of conveyance; among 
 these are : — 
 
 1. Copyholds. 
 
 2. Leaseholds. 
 
 3.. Choses in Action generally. 
 
 4. Policies of Assurance. 
 
 5. The Goodwill of a Business. 
 
 (e) Wolstenholme, Conveyanc- 
 ing Acts, 8th ed. 47. 
 
 (/) Cooper v. Emery (1844), 1 
 Phill. 388. 
 
 ( g ) lie Guest and Worth, Key 
 
 and Elphinstone, Precedents, 
 9th ed. vol. i. 487, n. 
 
 ( [h ) Dav. 4th ed. vol. ii. Part I. 
 663, n.; Farrer, Conditions of 
 Sale, 212. 
 
 When 
 conveyance 
 to uses. 
 
 To what 
 documents it 
 extends. 
 
 Recorded 
 
 documents. 
 
 Time for 
 stamping 
 conveyance. 
 
174 
 
 BK. I.. PT. I. SALES, EXCHANGES AND GIFTS. 
 
 / 7 
 
 Conveyance 
 of estates in 
 copyholds. 
 
 Surrender, 
 
 admittance. 
 
 Implied 
 
 admittance. 
 
 Payment of 
 fine. 
 
 (1.) Copyholds. 
 
 Copyhold land is assured by surrender of the land by the 
 vendor or grantor into the hands of the lord of the manor, 
 and admittance by the lord of the purchaser or grantee. The 
 surrender and admittance are effected by the symbolical deli- 
 very of a rod, and are usually conducted by the steward of the 
 manor. The surrender may be made either in or out of court. 
 If made in court, it is entered on the court rolls, and a copy 
 of so much of the rolls as relates to the surrender and admit- 
 tance is given to the purchaser, and will form the muniments 
 of his title. If the surrender is made out of court, a memo- 
 randum in writing is made of’ it, and signed by the parties 
 and the steward, and it is then entered on the rolls, and no 
 presentment of the surrender to the court prior to enrolment is 
 now necessary. The effect of' the surrender on the vendor is, 
 that though he remains a tenant of the lord until the surren- 
 deree is admitted, he loses all control over the land, and is 
 unable to surrender to anyone else. But it confers merely an 
 inchoate right on the purchaser, which must be completed by 
 admittance, so that the purchaser cannot surrender till he has 
 been admitted, nor can he enter upon the land without, at 
 Least technically, committing a trespass. He can, liowever, 
 assign this right to be admitted by act inter vivos, or by 
 will (/f), and if he dies before admittance, his widow may he 
 entitled to freebench. The admittance must follow the terms 
 of the surrender, so that the admittance of any other person 
 than the surrenderee or his assign will be void; but by the 
 Copyhold Act, 1894, s. 84, any person may now be admitted by 
 attorney, and the purcliaser’s title upon admittance relates back 
 to the surrender. 
 
 An admittance may be implied, e.g., by the lord of the manor 
 receiving quit rents from a new tenant (/). 
 
 There is usually a fine payable to the lord of the manor on 
 admittance; this may be either fixed or arbitrary; but even in 
 the latter case tlie fine is limited to two years’ improved value 
 
 (7c) See Wainewright v. Elwell (7) Ecclesiastical Commissioners 
 (1816), 1 Madd. at p. 632. v. Parr, (1894) 2 Q. B. 420. 
 
THE COMPLETION OF THE PURCHASE. 
 
 175 
 
 of the land (m). The admission of one of several joint tenants 
 or coparceners is the admission of all; but the amount of the fine 
 payable is the same as if all had been admitted ( n ). Tenants 
 in common must be admitted severally, and a fine is payable in 
 respect of the share of each. Again, the admission of a tenant 
 for life generally amounts to the admission of all persons 
 entitled in remainder, an;d one fine only is payable; this the 
 tenant for life usually pays, and he must look to the remainder- 
 men for the repayment of an amount j^’opoidionate to their 
 interests. But, in some manors, the remaindermen must be 
 admitted, and pay fines upon admittance. Where a copyhold 
 estate falls into the possession of a reversioner, he may enter 
 without readmittance or the payment of a fine. 
 
 The surrender is usually preceded or accompanied by a deed 
 of covenant to surrender by which the vendor covenants to 
 surrender, or cause to be surrendered, the copyhold land to the 
 purchaser at his cost. In this deed the usual covenants for 
 title are incorporated, which may now be done under s. 7 of 
 the Conveyancing Act, 1881, by making the vendor covenant 
 as “beneficial owner,” or as the case may be, the deed being 
 a “conveyance” within that section (o). 
 
 Equitable interests are not the subject of a surrender (except 
 for the purpose of barring an estate tail (p)), but are usually 
 conveyed by deed of assignment. * 
 
 ( 2 .) Assignment of Leaseholds. 
 
 The assignment of leasehold property must, by the joint 
 effect of the Statute of Frauds, s. 3, and the Real Property 
 Act, 1845, s. 3, be by deed, even though the term does not 
 exceed three years. 
 
 The assignment should contain the usual covenants that the 
 lease is valid and subsisting, and that the rent has been paid, 
 and the covenants and conditions observed and performed, that 
 
 (m) 1 Wat. Cop. 508. (o) SeeConv. Act, 1881, ss. 2 (v) 
 
 {n) See Bence v. Gilpin (1868), and 7 (v). 
 
 -L. R. 3 Ex. 76. (p) Fines and Recoveries Act, 
 
 1833, s. 53. 
 
 Joint, tenants. 
 
 Tenants in 
 common. 
 
 Tenant for 
 life. 
 
 Covenant to 
 surrender. 
 
 A deed 
 required. 
 
 Covenants 
 for title. 
 
176 
 
 BK. I., PT. I. BALES, EXCHANGES AND GIFTS. 
 
 Position of 
 lessee after 
 assignment. 
 
 Position of 
 assignee after 
 assignment. 
 
 Covenants by 
 assignee. 
 
 the assignor lias power to assign, for quiet enjoyment, for 
 freedom from incumbrances and for further assurance. These 
 covenants are now implied if the assignor is expressed to assign 
 as beneficial o>vner, under s. 7 of the Conveyancing Act, 1881. 
 
 Notwithstanding an assignment, the lessee remains liable 
 upon the express covenants which he has entered into in the 
 lease, even though the lessor accept rent from the assignee (g) . 
 On the other hand, the assignee, though not bound by the per- 
 sonal covenants of the lessee, is bound to perform all those 
 covenants which run with the land (r), and to observe all 
 restrictive covenants of which he has notice, actual or con- 
 structive (s ) . But the assignee stands in a better position than 
 the original lessee; for should he, in his turn, assign the lease, 
 he gets rid of all liability to the original lessor as from the 
 date of the assignment (t), except as to breaches prior to the 
 assignment by him (u), though under the express covenant of 
 indemnity given to his assignor he may be liable to him for 
 breaches of covenant committed after assignment by him. This 
 difference in the liability of the lessee and of the assignee arises 
 from the fact that, while privity of contract exists between the 
 lessor and lessee, and lasts during the whole of the term, there 
 is only privity of estate between the lessor and assignee, which 
 ceases directly the assignee assigns to someone else. 
 
 The assignee must covenant to pay the rent and perform the 
 covenants in the lease, and to indemnify the assignor against 
 the same (x ) . Even in the absence of an express covenant, 
 there is an implied contract by the assignee to indemnify the 
 assignor, and the original lessee also if he is not the immediate 
 assignor (?/); but this does not bind the assignee after he has 
 assigned, as the express covenant does, and therefore in practice 
 an express covenant can be insisted upon where it is the original 
 lessee who is the vendor, or, though not the original lessee, he 
 
 (g) Thursby v. Plant (1670), 1 
 Wins. Saund. 6th ed. 237. 
 
 (r) Spencer's Case (1583), 
 Smith, L. 0. 11th ed. vol. i. 55. 
 
 (s) Tulk v. Moxhay (1848), 2 
 Ph. 774; ante, p. 148. 
 
 (£) Walker v. Peeve (1781), 3 
 
 Doug. 19. 
 
 (u) Harley v. King (1835), 2 
 C. M. & R. 18. 
 
 (x) Pember v. Mathers (1779), 
 1 Bro. C. C. 52. 
 
 ( y ) Moule v. Garrett (1872), 
 L. R. 7 Ex. 101. 
 
THE COMPLETION OF THE PURCHASE. 
 
 177 
 
 is under the obligation of a covenant entered into by him with 
 a former vendor or otherwise for the payment of the rent and 
 observance of the covenants in the original lease; but in other 
 cases, as- the assignor is not liable after assignment in respect 
 of the rent and covenants, he cannot ask for an indemnity to 
 be inserted in the assignment. 
 
 Sometimes a lease requires that notice of any assignment 
 of it should be given to the lessor, and this must be borne in 
 mind by the practitioner. 
 
 (3.) Assignments of C hoses in Action. 
 
 A chose in action with some exceptions was not assignable at 
 common law, so that to transfer the right to sue for a chose in 
 action in courts of law, it was necessary for the assignor toi 
 give the assignee a power of attorney, enabling him to sue for 
 the chose in his (the assignor’s) name (z). But a chose in 
 action was always assignable in equity, and by the J udicature 
 Act, 1873, s. 25 (6), it is provided that “ any absolute assign- 
 ment by writing under the hand of the assignor (not purport- 
 ing to be by way of charge only), of any debt or other legal 
 chose in action of which express notice in writing shall have 
 been given to the debtor, trustee, or other person from whom 
 the assignor would have been entitled to receive or claim such 
 debt or chose in action, shall be and be deemed to have been 
 effectual in law (subject to all equities which would have been 
 entitled to priority over the right of the assignee if this act 
 had not passed) to pass and transfer the legal right to such debt 
 or chose in action from the date of such notice, and all legal and 
 other remedies for the same, and the power to give a good dis- 
 charge for the same without the concurrence of the assignor. 
 
 . . . . Provided, that if the debtor has had notice that such 
 assignment is disputed by the assignor, he shall have the right 
 to pay the money into court, or to call upon the parties to 
 interplead.” 
 
 The term “ absolute assignment ” used in this enactment has 
 given rise to some difficulty. It has been held that an assign- 
 
 (z) See notes to Row v. Dawson (1750), Wli. & Tud. L. C. Eq. 
 (1749), and Ryall v. Bowles 8th ed. vol. i. 97. 
 
 G. — C. N 
 
 Practice note. 
 
 Choses in 
 action not 
 assignable at 
 law. 
 
 Assignable — 
 
 (1) iu equity ; 
 
 (2) by the 
 Judicature 
 Act. 
 
 '66 & 37 Viet, 
 c. 66, s. 25. 
 
 Meaning of 
 “ absolute 
 assignment.” 
 
178 
 
 Meaning o 
 ‘ ‘ chose in 
 action.” 
 
 BIC. I.j PT. I. SALES j EXCHANGES AND GIFTS. 
 
 rnent by way of mortgage made in the usual form of an absolute 
 conveyance with a proviso for redemption is an “ absolute 
 assignment ’’ (a), as is also an assignment upon trust for the 
 assignee to pay himself a debt due to him from the assignor 
 and pay the surplus to the assignor (&), and an assignment 
 upon trust for the assignor alone (c) . But an assignment 
 which is expressed to be “as security’ for the repayment of 
 a specified sum of money is not an “ absolute assignment ” (d) 
 unless, when the whole instrument is looked at, it appears to 
 be intended to operate as an absolute assignment (e) . It 
 appears that an assignment of a definite part of an entire debt 
 is not within the enactment, and at any rate part of a judgment 
 debt cannot be assigned so as to enable the assignee to issue 
 execution (/), and it has been decided that an assignment of 
 an undefined portion of future debts is not within it (g) . 
 
 The sense in which the term “ chose in action ” is used in the 
 section, has also given rise to difficulty. It is a term that is 
 always difficult to define (h). “It is an expression large 
 enough to include rights which it can hardly have been intended 
 should be assignable by virtue of the sub-section in question, 
 as, for instance, shares, which can only be transferred as pro- 
 vided by the Companies Acts. It is probably necessary, there- 
 fore, to put some limit upon the generality of the words ” (i) . 
 Accordingly, they have been defined to mean a “right which 
 the common law looks on as not assignable by reason of its 
 being a chose in action, but which a court of equity deals with 
 
 (a) Tancred v. Delag oa Bay 
 Rail . Co. (1889), 23 Q. B. I). 239; 
 approved by the C. A. in Durham 
 Bros. v. Robertson, (1898) 1 Q. B. 
 765. 
 
 (5) Burlinson v. Hall (1881), 
 12 Q. B. D. 347. 
 
 (c) Comfort v. Betts, (1891) 1 
 Q. B. 737. 
 
 (d) Mercantile Bank v. Evans, 
 (1899) 2 Q. B. 613. 
 
 (e) Hughes v. Pump .House 
 Hotel Co., (1902) 2 K. B. 190. 
 
 (/) Forster v. Baker, (1910) 2 
 K. B. 636; and see Skipper v. 
 Holloway, (1910) 2 K. B. 630; and 
 Durham Bros. v. Robertson, 
 (1898) 1 Q. B. 765. 
 
 ( g ) Jones sr. Humphreys, (1902) 
 1 K. B. 10. 
 
 (7i) See Warren, Choses in 
 Action, 18. 
 
 (i) Per Channell, J., in Tor- 
 kington v. Magee, (1902) 2 K. B. 
 at p. 403. 
 
THE COMPLETION OF THE PUliCHASE. 
 
 179 
 
 as being assignable ’ ' ; and the term has been held to include 
 a prospective right to sue for damages for breach of a contract 
 to assign a reversionary interest in property (k) . Though the 
 conditions prescribed by the statute are not complied with, 
 however, an assignment may still be good as an equitable assign- 
 ment of the chose in action. “ The statute does not forbid or 
 destroy equitable assignments or impair their efficacy in the 
 slightest degree ” (l). 
 
 As the assignee of a chose in action takes subject to all the 
 equities affecting it, before he completes his purchase the pur- 
 chaser should ascertain that the debt is owing and not statute- 
 barred, that the debtor has no right of set-off or counterclaim, 
 and that the debt has not been previously assigned or charged. 
 For this purpose inquiry must be made of the debtor or holder 
 of the fund, and if he does not answer (and he cannot be 
 compelled to do so (m)) the assignee may be fairly safely ad- 
 vised not to complete (w) . If the fund assigned is in the hands 
 of several trustees, inquiry should be made of and an answer 
 obtained from each trustee, since one may have received notice 
 of a charge of which the others may have no knowledge (o). 
 
 In the case of an assignment of a legal chose in action under 
 the statute, express notice in writing must be given to the 
 debtor to perfect the assignment (p). In the case of an equit- 
 able assignment also, notice must be given, though it need not 
 be in writing. For though the assignee's title is complete 
 against the assignor without notice, if the debtor pays the 
 assignor in ignorance of the assignment the assignee has no 
 ground of complaint against the debtor, and as between two 
 assignees he has priority who first gives notice (q ) . The rule 
 
 Equitable 
 assignments 
 not affected 
 by the 
 statute. 
 
 Assignee 
 takes subject 
 to all equities. 
 
 Notice of 
 assignment 
 must be 
 
 ( k ) Torkingtonv. Magee, (1902) 
 2 K. B. 427. The decision in this 
 case was reversed by the 0. A., 
 hut on the facts alone, (1903) 1 
 K. B. 644. 
 
 ( l ) Per Lord Macnaghten, in 
 William Brandt's Sons & Co. v. 
 Dunlop Rubber Co., (1905) A. 0. 
 at p. 461. 
 
 (m) See Low v. Bouverie, (1891) 
 
 3 Ch. 82. 
 
 ( n ) Ward v. Duncombe, (1893) 
 A. 0. 369, per Lord Herschell, at 
 p. 383. 
 
 (o) Ibid. 
 
 ( p ) The notice may be given 
 after the death of the assignee: 
 Bateman v. Hunt, (1904) 2 I(. B. 
 
 530. 
 
 ( q ) Dearie v. Hall (1828), 3 
 
 N 2 
 
180 
 
 BK. I., PT. I. SALES, EXCHANGES AND GIFTS. 
 
 Should be to 
 all trustees. 
 
 Stop order. 
 
 Distringas. 
 
 requiring notice applies even to an assignment by operation 
 of law such as that in favour of a trustee in bankruptcy 
 when an adjudication is made against a person to whom a chose 
 in action belongs — that is to say, the trustee in bankruptcy 
 must give notice in order that he may preserve his priority (r) . 
 But. the rule does not apply to equitable estates or interests in 
 land (s), unless the land has been impressed with a trust for 
 sale (£). 
 
 Where the money is in the hands of trustees, notice should 
 be given to all the existing trustees, for though notice to one 
 is sufficient, so long as he remains a trustee at the time a later 
 assignment is made (w), yet if at that time the trustee to whom 
 notice has been given is dead, and the second assignee gives 
 notice to all the then existing trustees and they are ignorant of 
 the title of the first, it seems that the second gets priority (x). 
 When, however, an assignee has given notice to all the trustees 
 in existence at the time of his assignment, it is unnecessary, for 
 the purpose of preserving his priority, that he should give any 
 further notice when all the trustees to whom he gave notice 
 have ceased to act and new trustees have taken their place (y) . 
 
 If the chose in action is a fund in court, there being no 
 person to whom notice can be given, a stop order must be 
 obtained restraining the payment of the funds out of court 
 without notice to the purchaser. This may be obtained upon 
 application by summons. 
 
 If the chose is stock of any company not registered in the 
 name of the assignor, a distringas should be served. For this 
 
 Russ. 1, 48; Ward v. Buncombe, 
 ■supra. 
 
 (r) Palmer v. Locke (1881), 18 
 Oh. D. 381; Re Stone's Will 
 (1893), W. N. 50. 
 
 (s) See Wiltshire v. Rabbits 
 (1844), 14 Sim. 76; Lee v. Row- 
 lett (1856), 2 Kay & J. 531; 
 Humber v. Richards (1800), 45 
 Oh. JD. 589; Ward v. Buncombe, 
 (1893) A. C. 369, per Lord Mac- 
 naghten, at p. 390. 
 
 (£) Lloyds Bank v. Pearson , 
 (1901) 1 Ch. 865. 
 
 ( u ) Ward v. Buncombe, supra. 
 (cc) Timson v. Ramsbotbam 
 (1837), 2 Keen, 35. The authority 
 of this case was, however, ques- 
 tioned by Lord Macnaghten in 
 Ward v. Buncombe, supra, at p. 
 394, but it was followed by Kckc- 
 wicli, J., in Re Phillips, (1903) 
 1 Ch. 183. 
 
 (y) Re Wasdcdc, Brittin y. 
 Partridge, (1899) 1 Ch. 163. 
 
THE COMPLETION OF THE PURCHASE. 
 
 1*1 
 
 purpose an affidavit must be made, and a notice prepared in the 
 prescribed form and filed at the Central Office of the High 
 Court. A dujfiicate of each, sealed with the seal of the court, 
 will be given to the applicant, and must be served on the 
 company, and thereupon the funds or stock will stand restricted 
 from being transferred without notice to the assignee or without 
 an order of the court (z). If some part of the chose in action 
 assigned is in the hands of the trustees, and the rest in court, or 
 invested in stocks or shares, notice must be given to the trustees, 
 and in addition a stop order obtained or a distringas notice filed 
 and served, as the case may be (a). 
 
 (4.) Assignments of Policies of Assurance. 
 
 A policy of life assurance being a chose in action, was not 
 assignable at law; but it might be assigned in equity, so as 
 to enable the assignee to sue on it in his own name. And 
 now, by the Policies of Assurance Act, 1867, assignees of 
 such policies can sue at law thereon in their own names; but 
 no assignment will confer on the assignee the right to sue for 
 the amount of the policy until a written notice of the date and 
 purport of the assignment be given to the company liable under 
 the policy at their principal place of business; and the date of 
 the receipt of 1 such notice will regulate the priority of claims 
 under any assignment; and further, if the company bona fide 
 pay the assurance money to some third person before receiving 
 such notice they will not be liable to the assignee. For the 
 purpose of facilitating the giving of this notice, companies are 
 required to give an address for the service of it in every policy 
 which they issue, and they may be required, on payment of a 
 fee not exceeding 5s., on a request by the person giving the 
 notice, to deliver to him a written receipt for it, which will 
 amount to conclusive evidence of the due receipt thereof. 
 Under this act it has been held that a mere agreement to assign 
 a policy is not an assignment of a policy within the act (b). 
 
 In the assignment the vendor generally covenants that the 
 policy is subsisting and valid, that all premiums have been paid 
 
 (z) R. S. 0., Ord. XLVI. Co. v. Langley (1884), 26 Ch. D. 
 rr. 4—8. 686. 
 
 (a) See Mutual Life Assurance (6) Spencer v. Clarke (1878), 9 
 
 Oh. D. 137. 
 
 Stop order 
 and dis- 
 tringas. 
 
 Assignability 
 of life policies. 
 
 30 & 31 Viet, 
 c. 144. 
 
 Notice of 
 assignment. 
 
 Agreement to 
 assign. 
 
 Contents of 
 assignment. 
 
182 
 
 BK. I., PT. I. — SALES. EXCHANGES AND GIFTS. 
 
 Precautions 
 to be taken by 
 purchaser. 
 
 Sales of 
 goodwill. 
 
 Position of 
 vendor : 
 
 (1) as to using 
 old name ; 
 
 (2) as to deal- 
 ing with old 
 customers ; 
 
 (3) as to 
 
 soliciting old 
 customers. 
 Precautions 
 to be taken by 
 purchaser. 
 
 up to date, that he will do nothing whereby it may be avoided 
 or by which the premiums may be increased, and that if he does 
 do so he will pay the advanced premium. 
 
 On behalf of a purchaser of a policy, evidence should be 
 required that the statements upon which the policy was granted 
 were true, and that the premiums have been duly paid, and if 
 the policy is effected on the life of some person other than the 
 assignor, it must be seen that the assurer had an insurable 
 interest at the time the policy was effected, and inquiry should 
 be made at the assurance office whether notice has been received 
 of any charge or incumbrance on the policy. 
 
 (5.) Assignments of Goodwill. 
 
 Where the subject of the sale is the goodwill of a business, 
 regard must be had to the following rules: First, in the absence 
 of stipulation to the contrary, the vendor of the goodwill may 
 set up a precisely similar business to that sold, even next door 
 to the premises where the original business was carried on (c) . 
 But he cannot use the old name under which the business was 
 carried on, even though it happens to be the same as his own, 
 if to do so would interfere with the profits of the business 
 sold (d). And, secondly, he is at liberty to deal with the old 
 customers of the business sold, but he must not represent to 
 them that his is the old business, or that lie has succeeded to 
 that old business (e ) ; and he must not solicit their custom (/). 
 In view of these decisions, some provision should be made in 
 the assignment to protect the rights of the purchaser; for ex- 
 ample, a covenant by the vendor that he will not set up a 
 similar business within a specified distance of the premises 
 where the business the goodwill of which is sold is carried on: 
 in framing such a covenant, the rule that a covenant in restraint 
 of trade is primd facie void must not be forgotten, while at 
 
 (c) Churton v. Douglas (1859), 
 1 John. 174; Laboucliere v. Daiv- 
 sov (1872), L. R. 13 Eq. 322. 
 
 (d) Levy v. Walker (1879), 10 
 Ch. D. 436. 
 
 (e) Leggott v. Barrett (18S0), 
 15 Cli. D. 306. 
 
 (/) Trego v. Hunt, (1896) A. C. 
 
 7 ; overruling Pearson v. Pearson 
 (1884), 27 Ch. D. 145, and Vernon 
 v. Hallam (1886), 34 Ch. D. 748, 
 and restoring Labouchere v. Daw- 
 son (1872), L. R. 13 Eq. 322; see 
 also Walker v. Mottram (1881), 
 19 Ch. D. 355, and Gillingham v. 
 Bedaow, (1900) 2 Ch. 242. 
 
THE COMPLETION OF THE PURCHASE. 
 
 183 
 
 the same time the covenant must be made sufficiently wide to 
 prevent the vendor being in any way interested or concerned 
 or engaged in a similar business (< 7 ) . The true test whether 
 a covenant in restraint of trade is void or not is whether the 
 covenant is reasonably necessary in the interest of the cove- 
 nantee ( h ). The purchaser of a business and goodwill can use 
 the vendor’s name so long as he does not expose the vendor to 
 any liability by holding him out as the real owner of the busi- 
 ness (i). As this is somewhat indefinite, a covenant defining 
 his rights in the matter is useful. 
 
 Stamps. 
 
 The stamp duty on a “ conveyance on sale is now regulated 
 by the Stamp Act, 1891, as amended by ss. 73 and 74 of the 
 Finance (1909-10) Act, 1910. 
 
 The rates of dutv are as follow: — 
 
 CONVEYANCE or TRANSFER on sale, £ *. d. 
 
 Of any property ( except such stock as aforesaid), 
 
 Where the amount or value of the considera- 
 
 tion for the sale does not exceed £5 
 
 0 
 
 1 
 
 0 
 
 Exceeds £5. 
 
 , and does not exceed £10 
 
 0 
 
 9 
 
 0 
 
 33 
 
 £10 
 
 33 
 
 £15 
 
 0 
 
 3 
 
 0 
 
 33 
 
 £15 
 
 33 
 
 £20 
 
 0 
 
 4 
 
 0 
 
 33 
 
 £20 
 
 33 
 
 £25 
 
 0 
 
 5 
 
 0 
 
 33 
 
 £25 
 
 33 
 
 £50 
 
 0 
 
 10 
 
 0 
 
 33 
 
 £50 
 
 33 
 
 £75 
 
 0 
 
 15 
 
 0 
 
 33 
 
 £75 
 
 3 3 
 
 £100 
 
 1 
 
 0 
 
 0 
 
 33 
 
 £100 
 
 
 £125 
 
 1 
 
 5 
 
 0 
 
 33 
 
 £125 
 
 33 
 
 £150 
 
 1 
 
 10 
 
 0 
 
 3? 
 
 £150 
 
 3 3 
 
 £175 
 
 1 
 
 15 
 
 0 
 
 33 
 
 £175 
 
 . . 
 
 £200 
 
 2 
 
 0 
 
 0 
 
 33 
 
 £200 
 
 33 
 
 £225 
 
 2 
 
 5 
 
 0 
 
 33 
 
 £225 
 
 33 
 
 £250 
 
 2 
 
 10 
 
 0 
 
 33 
 
 £250 
 
 3 3 
 
 £275 
 
 2 
 
 15 
 
 0 
 
 33 
 
 33 
 
 £275 
 
 £300 
 
 3 3 
 
 £300 
 
 3 
 
 0 
 
 0 
 
 For every £50, and also for any fractional part 
 
 of £50, of such amount or value 0 10 0 
 
 And see sections 54, 55, 56, 57, 58, 59, 60 and 61. 
 
 ( g ) See for an instance of the 
 necessity of a wide covenant, 
 Smith v. Hancock, (1894) 2 Ch. 
 377. 
 
 ( h ) Nordenfelt v. Maxim Nor- 
 denfelt Guns and Ammunition 
 
 Co., (1894) A. C. 535; Underwood 
 v. Barker, (1899) 1 Ch. 300. 
 
 (7) Thynne v. Shove (1890), 45 
 Ch. D. 577; Burchell v. Wilde, 
 (1900) 1 Ch. 551. 
 
 Rates of 
 stamp duty. 
 
184 
 
 BK. I., PT. I. — SALES, EXCHANGES AND GIFTS. 
 
 Consideration 
 not exceeding 
 
 500 /. 
 
 Stamp duty 
 on voluntary 
 conveyance. 
 
 Meaning of 
 “ conveyance 
 on sale.” 
 
 On compul 
 sory sale. 
 
 If, however, the amount or value of the consideration for the 
 sale does not exceed 500Z., and the instrument contains a state- 
 ment certifying that the transaction thereby effected does not 
 form part of a larger transaction, or of a series of transactions, 
 in respect of which the amount or value, or the aggregate 
 amount or value, of the consideration exceeds 500Z., the stamp 
 duty will be only half the duty stated above ( k ). 
 
 Before the passing of the Finance (1909-10) Act, 1910, a 
 voluntary conveyance was usually stamped with a 10s. stamp 
 only, but it must now be stamped ad valorem , as if it were a 
 conveyance or transfer on sale, with the substitution of the 
 value of the property conveyed for the amount or value of the 
 consideration for the sale, and the duty must be adjudicated. 
 But ad valorem duty need not be paid on a conveyance or 
 transfer made for nominal consideration for securing repay- 
 ment of an advance or loan, or for effectuating the appointment 
 or retirement of a trustee, or under which no beneficial interest 
 passes in the property conveyed or transferred or made to a 
 beneficiary by a trustee or other person in a fiduciary capacity 
 under any trust, or a disentailing assurance not limiting any 
 new estate other than an estate in fee simple in the person dis- 
 entailing the property (l ) . 
 
 The expression “ conveyance on sale ’ includes every instru- 
 ment, and every decree or order of any court, or of any com- 
 missioners, whereby any property, and any estate or interest in 
 any property upon the sale thereof, is transferred to or vested 
 in a purchaser, or any other person on his behalf or by his 
 direction(m). By s. 6 of the Finance Act, 1898, the definition 
 of a conveyance on sale includes a decree or order for or having 
 the effect of' an order for foreclosure. The word “property 
 includes the goodwill of a business ( n ). 
 
 When land is compulsorily taken under the Lands Clauses 
 Acts, compensation for loss of business forms a part of the 
 consideration (o) ; but it seems that compensation for injury 
 to the adjacent lands does not. 
 
 (&) Finance (1909-10) Act, 1910, 
 s. 73. 
 
 (Z) s. 74. 
 
 (m) Stamp Act, 1891, s. 54. 
 
 (a) Potter v. Commissioners of 
 Inland Revenue (1854), 10 Ex. 
 147. 
 
 (o) Commissioners v. Glasgow 
 
THE COMPLETION OF THE PURCHASE. 
 
 185 
 
 Sections 55 and 56 of the Stain}) Act contain special rules 
 for assessment of the duty where the consideration consists of 
 any stock or marketable security, or of periodical payments 
 to be charged in respect of the consideration (p). 
 
 By s. 57, where any property is conveyed to any person in 
 consideration, wholly or in part, of any debt duo to him, or 
 subject either certainly or contingently to the payment or trans- 
 fer of any money or stock, whether being or constituting a 
 charge or incumbrance upon the property or not, the debt, 
 money or stock is to be deemed the whole or part as the case 
 may be of the consideration for stamp duty purposes. 
 
 Consequently, if A. conveys an equity of redemption to B. 
 for 1,000/., and B. takes the property subject to a mortgage 
 debt of 1,000/., the duty will be reckoned on 2,000/., not 
 on 1,000/.; and any interest accruing to the date of the con- 
 veyance must be included as part of the charge if the purchaser 
 is to pay it. 
 
 Section 10 of the Finance Act, 1900, provides that a con- 
 veyance on sale made for any consideration in respect whereof 
 it is chargeable with ad valorem duty, and in further considera- 
 tion of a covenant by the purchaser to make, or of his having 
 previously made, any substantial improvement of or addition to 
 the property conveyed to him, or of any covenant relating to 
 the subject-matter of the conveyance is not chargeable and 
 shall be deemed not to have been chargeable with any duty in 
 respect of such further consideration. 
 
 Where a person purchases property, and before conveyance 
 sells it to another to whom the vendor conveys it, the duty is 
 reckoned on the sub-purchase-money, and not on the original 
 purchase-money, whether it be more or less than the original 
 price (g). 
 
 A contract for the sale of any equitable estate or interest 
 whatsoever, or for the sale of any estate or interest in any 
 property except lands, tenements, or hereditaments, or heri- 
 tages, or property locally situate out of the United Kingdom, 
 
 and 8. W. Rail. Co. (1887), 12 sioners, (1900) 1 Q. B. 172. 
 
 App. Cas. 315. ( q ) See s. 58 (4). 
 
 (p) See Swayne v. Commis- 
 
 Wbere 
 consideration 
 consists of 
 stock. 
 
 Stamp on 
 conveyance of 
 property sub- 
 ject to debt. 
 
 Illustrate m. 
 
 Stamp on 
 conveyance in 
 consideration 
 of covenant. 
 
 Stamp on 
 conveyance 
 to sub- 
 purchaser. 
 
 Stamps on 
 contracts for 
 sale. 
 
186 
 
 Stamps on 
 conveyance of 
 copyholds. 
 
 Stamps on 
 acknowledg- 
 ments and 
 undertakings. 
 
 Solicitor's 
 
 remuneration 
 
 on sales of 
 
 freehold, 
 
 copyhold, and 
 
 leasehold 
 
 property. 
 
 On sales of 
 other pro- 
 perty. 
 
 BK. I., PT. I. SALES, EXCHANGES AND GIFTS. 
 
 or goods, wares, or merchandise, or stock or marketable secu- 
 rities, or any ship or vessel, or part interest, share, or property 
 of or in any share or vessel is to be charged with the same ad 
 valorem duty to be paid by the purchaser as if it were an actual 
 conveyance; and where a contract so stamped is followed by 
 a formal conveyance, the latter requires a denoting stamp 
 only (r) . 
 
 When copyholds are conveyed by deed, no surrender being 
 necessary, the stamp duty is impressed upon the deed, ^nd 
 when by surrender, if made out of court, upon the surrender 
 or memorandum thereof, and upon the copy of court roll of the 
 surrender, if made in court ( s ) . 
 
 When a conveyance to a purchaser contains an acknowledg- 
 ment and undertaking as to deeds, no extra stamp duty is re- 
 quired; but whenever such acknowledgment and undertaking 
 are given in a separate instrument, it is usual to stamp the 
 instrument with a 0>d. stamp if under hand only, and with a 
 10s. stamp if under seal. 
 
 Legal Charges. 
 
 The remuneration of a solicitor in connection with sales and 
 purchases of freehold, copyhold, or leasehold property is 
 governed by the Solicitors’ Remuneration Act, 1881, and the 
 General Order made thereunder; and is in the nature of a 
 commission on the amount of the purchase-money, unless the 
 solicitor, before undertaking any business, by writing commu- 
 nicated to the client, elects to be paid according to the old 
 system (t) . 
 
 In sales and purchases of property, other than freehold, copy- 
 hold, and leasehold property, e.g on a sale and purchase of a 
 life policy or chose in action, a solicitor’s charges will depend 
 on the work done, the folios drawn, the attendances, &c., in 
 accordance with the old system of charging as altered by 
 Schedule II. to the General Order. 
 
 (r) See s. 59, and ante, p. 94. 
 
 (s) See s. 61. 
 
 ( t ) See Gen. Order, Sched. I., 
 Part T. and Part II. (second 
 scale), and rules, post, Part VIII. 
 
THE COMPLETION OF THE PURCHASE. 
 
 18 
 
 In addition to the profit costs, the client must repay his 
 solicitor all costs out of pocket, unless the latter recovers them 
 from the other contracting party. 
 
 As between vendor and purchaser the purchaser must bear 
 the cost of the preparation of the conveyance and of all matters 
 relating thereto; but, unless otherwise agreed, the expenses 
 attending the execution of the deed, by and on account of the 
 conveying parties, must be borne by the vendor, and all ex- 
 penses of getting in the legal estate and clearing the estate of 
 incumbrances, subject to which it has not been sold, must be 
 borne by the vendor. The expenses attending the acknowledg- 
 ment of a conveyance by a married woman must be borne by 
 her, but the expense of registering a conveyance in a register 
 county must be borne by the purchaser, though where the scale 
 charge is applicable, no extra fee is payable to his solicitor for 
 the registration ( u ) . 
 
 Disburse- 
 
 ments. 
 
 As between 
 vendor and 
 purchaser. 
 
 ( u ) Grey v. Curtice, (1899) 1 Cli. 121. 
 
BK. I., PT. I. SALES, EXCHANGES AND GIFTS. 
 
 188 
 
 CHAPTER X. 
 
 STEPS TO BE TAKEN SUBSEQUENTLY TO COMPLETION. 
 
 Steps subse- 
 quent to 
 conveyance : 
 
 Assuming that the conveyance has been duly executed, and 
 that the purchase-money has been paid to the persons entitled 
 to receive it, the next point is to consider what, if anything, 
 needs to be done to perfect the conveyance. As a rule there is 
 nothing more to be done, but there are many cases in which 
 registration or enrolment of a conveyance is necessary, and 
 each of these must be shortly discussed. 
 
 Registration in County Registers. 
 
 When land 
 in register 
 oounty. 
 
 If the subject of the conveyance is land in Middlesex or 
 Yorkshire, including the town of Hull, the conveyance will 
 not be complete until it is registered; since, if not registered, 
 the title of the purchaser is liable to be displaced by the prior 
 registration of some subsequent conveyance or mortgage. 
 
 (a) The Middlesex Registry. 
 
 7 Anne, c. 20. The statutes regulating the registration of assurance of land 
 55 Viet. Middlesex are the Middlesex Registry Act, 1708, and the 
 Land Registry (Middlesex Deeds) Act, 1891. 
 
 Assurances The principal act provides that a memorial of all deeds and 
 registered. conveyances (a) and of all wills and devises of or concerning 
 and whereby any honours, manors, lands, tenements, or here- 
 ditaments in the said county may any way be affected in law 
 or equity, may be registered in such manner as is hereinafter 
 
 (a) An order of adjudication in lie Calcott and Elvin's Contract, 
 bankruptcy is not a conveyance (1908) 2 Ch. 460. 
 within the meaning of the Act: 
 
STEPS SUBSEQUENT TO COMPLETION. 
 
 18f> 
 
 directed; and that every such deed or conveyance that shall 
 he made and executed shall be adjudged fraudulent and void 
 against any subsequent purchaser or mortgagee for valuable 
 consideration unless such memorial thereof be registered as by 
 this act is directed, before the registering of the memorial of the 
 deed or conveyance under which such subsequent purchaser or 
 mortgagee shall claim; and that every such devise by will shall 
 be adjudged fraudulent and void against any subsequent pur- 
 chaser or mortgagee for valuable consideration unless a memo- 
 rial of such will be registered at such times and in such manner 
 
 as is thereinafter directed (6). 
 
 Six months after death are allowed for the registration of a Time for 
 will if the testator dies in the United Kingdom; or three years ^Ug erin ^ 
 after death if he dies on or beyond the seas (c). But by the 
 Vendor and Purchaser Act, 1874, s. 8, though the will has not 37 & 38 Viet, 
 been registered within the proper time, yet an assurance from c - ' 8 - 
 the devisee, if registered before, will nevertheless have priority 
 over any assurance from the heir-at-law. The result of this is 
 that, on purchasing from a devisee, the will need not be regis- 
 tered if there has been no conveyance from the heir, but the 
 registration of the conveyance from the devisee will be suf- 
 ficient. 
 
 The act does not extend to copyhold estates, to leases at a Exemptions, 
 rack-rent, or to any lease not exceeding twenty-one years, 
 where the actual possession and occupation go along with the 
 lease, or to chambers in Serjeants’ Inn, the Inns of Court or 
 Inns of Chancery (d ) ; nor does it extend to land the title 
 to which is registered under the Land Transfer Acts, with a 
 few exceptions (e); nor does it extend to land in the City of 
 London; but it applies to a deed of enfranchisement of copy- 
 holds (/). 
 
 It was provided by the Land Registry (Middlesex Deeds) 54 & 55 Viet. 
 Act, 1891, s. 6, that it should not be necessary, in order to c ‘ 64 ' 
 
 (6) Middlesex Registry Act, 
 1708, s. 1. 
 
 (c) Ibid. s. 8. 
 
 ( d ) Ibid. s. 18. 
 
 (e) See s. 127 of that act as 
 
 amended by the act of 1897, 
 Sclied. I., infra, p. 650. 
 
 (/) Reg. v. Registrar of Deeds 
 for Middlesex (1888), 21 Q. B. II. 
 555. 
 
190 
 
 63 & 64 Viet 
 c. 26. 
 
 Method of 
 registration. 
 
 Stamp duty. 
 
 BK. I.j PT. I. SALES, EXCHANGES AND GIFTS. 
 
 give validity to a judgment, statute or recognizance, to register 
 it in the Middlesex Registry as required by the Middlesex 
 Registry Act, 1708; and by the Land Charges Act, 1900, 
 registration in the local registry is abolished in the case of 
 any instrument made after the passing of that act (30th July, 
 1900) and capable of registration under that act or the Land 
 Charges Registration Act, 1888. By the act of 1891 also the 
 business of the Middlesex Registry, which used to be transacted 
 in Great James Street, Bedford Row, was transferred to the 
 Land Registry, in Lincoln’s Inn Fields (g). 
 
 The preparation and registration of the memorial are regu- 
 lated by the provisions contained in the first schedule tot thei Land 
 Registry (Middlesex Deeds) Act, 1891, and the rules made 
 under s. 2 of that act. In the case of a deed it must be under 
 the hand of some or one of the parties thereto, or in the case of 
 a will under the hand of some or one of the devisees, or in each 
 case of his heirs, executors, administrators, guardians, or trus- 
 tees, and must be attested by one witness, in the case of a 
 conveyance such witness to be a witness or one of the witnesses 
 to the execution of the conveyance. If every witness is dead, 
 or abroad, or cannot be found, or for some other cause no witness 
 can attest the memorial, a statutory declaration must be left 
 with the memorial stating the reason why the memorial is not 
 witnessed as required by the act. It must contain the date of 
 the instrument being registered, the names and additions, &c. 
 of the parties, and, in the case of a will, of the testator, a 
 description of the lands conveyed, and of all the witnesses to 
 the instrument, with, when possible, the places of their abode. 
 Every deed, conveyance and will, or probate of the same, must 
 be produced at the time of registering the memorial. The 
 filing of the memorial is the registration required by the act. 
 
 The stamp duty on a memorial is, where the instrument 
 registered is chargeable with any duty not amounting to 
 2s. 6J., the same duty as the registered instrument; in any 
 other case 2s. 6d. ( h ). The fee for registration of a memorial 
 is 5s. ( i ). 
 
 (g) Land Registry (Middlesex “Memorial.” 
 
 Deeds) Act, 1891, s. 1. (i) Rule as to Fees dated the 
 
 (h) Stamp Act, 1891, Sched., 8th February, 1892. 
 
STEPS SUBSEQUENT TO COMPLETION. 
 
 191 
 
 (b) The Yorkshire Registry. 
 
 The early statutes relating to registration in Yorkshire, the 
 effect of which was similar to that of the Middlesex Registry 
 Act, 1708, were repealed by the Yorkshire Registries Act, 1884, 
 s. 51, and the law consolidated and amended by that act. The 
 act of 1884 was supplemented by amending acts in 1884 and 
 1885. 
 
 The act of 1884 provides that all assurances executed or made 
 after the commencement of the act, and all wills of any testators 
 dying after the commencement of the act by which any lands 
 within the three ridings are affected may be registered (7c) . 
 
 The term “ assurance ” includes any conveyance, enlarge- 
 ment of term into fee simple, memorandum of charge, deed of 
 consent to the discharge of a trustee, statutory receipt, private 
 act of parliament, award or order of the land commissioners, 
 order of a court, certificate of appointment of trustee in bank- 
 ruptcy, or affidavit of vesting under any act of parliament ( l ). 
 
 The term “conveyance” includes any assignment, appoint- 
 ment, lease, or settlement made by deed on a sale, mortgage, 
 demise, or settlement of any land, or appointment of a new 
 trustee in respect thereof, which has been executed by one or 
 more of the piarties by whom any interest in such land is thereby 
 conveyed (7). 
 
 The term “order of a court” means any judgment, decree, 
 writ of execution or sequestration, adjudication in bankruptcy, 
 or other order or process of or issuing from a court of competent 
 jurisdiction, or any order of the Charity Commissioners 
 whereby any interest in any land is or may be affected . 
 
 The “three ridings” means the north, east and west riding 
 of the county of York, the east riding including the town of 
 Kingston-upon-Hull (7). 
 
 The mode of registering is provided for by s. 5, and the 
 memorials of assurances and wills must contain the particulars 
 specified in s. 6. Official forms can be obtained. 
 
 Provision is made for the registration of a memorandum 
 
 (k) Yorkshire Registries Act, (l) Ibid. s. 3. 
 
 1884, s. 4. 
 
 47 & 48 Viet, 
 c. 54. 
 
 48 & 49 Viet, 
 c. 4. 
 
 48 & 49 Viet, 
 c. 26. 
 
 All assurances 
 to be regis- 
 tered. 
 
 Meaning of 
 ‘ ‘ assurance’ ’ ; 
 
 ‘ ‘ convey- 
 ance” ; 
 
 ‘ ‘ order of a 
 court” ; 
 
 “ three 
 ridings.” 
 
 Method of 
 registration. 
 
 Memorandum 
 of lien or 
 charge. 
 
192 
 
 BK. I., PT. I. SALES, EXCHANGES AND GIFTS. 
 
 Originals to 
 be produced. 
 
 Caveats. 
 
 Notices of 
 wills not 
 proved, &c. 
 
 Priority of 
 assurances 
 and wills. 
 
 of a lien or charge in respect of unpaid purchase-money, or by 
 reason of a deposit of title deeds; and no such lien or charge 
 will have any effect or priority as against any assurance for 
 valuable consideration registered under the act, unless a memo- 
 randum has been registered in accordance with this section (m) . 
 
 No deed or document is to be registered unless the original 
 is produced to the registrar at the time of registration ( n ). 
 
 By s. 3 of the act of 1885 a caveat may be given with 
 respect to any lands within any of the three ridings by any 
 person claiming to be entitled to any interest in such lands in 
 favour of any person named therein, and may be registered 
 under the act; and every caveat so registered, unless removed 
 or cancelled in accordance with the rules, will remain in force 
 for such time as may be specified therein. If within that time 
 any assurance executed by the person by whom such caveat was 
 given in favour of the person in whose favour it was given be 
 duly registered under the act, such assurance will have priority 
 as though it had been registered on the date on which the 
 caveat was registered. 
 
 Provision is made for the registration of a notice of a will 
 when the jserson claiming an interest under the will cannot 
 register it within six months after the death of the testator, 
 which is effectual if the will is subsequently registered within 
 two years of the testator’s death (o). 
 
 All assurances entitled to be registered under the act will 
 have priority according to the date of registration, and every 
 will registered (p) will have priority according to the date of 
 the testator’s death, if registered within six months of the tes- 
 tator’s decease; but according to the date of registration, if 
 that takes place after such period of six months. No person is 
 to lose the priority given by registration merely in consequence 
 of his having been affected with actual or constructive notice, 
 except in cases of actual fraud (g); but this is not to confer on 
 
 (m) Yorkshire Begi tries Act, 
 1884, s. 7. 
 
 ( n ) Ibid. s. 8. 
 
 (o) Ibid. s. 11. 
 
 ( p ) The word “ registered ” is 
 substituted for the words “ en- 
 
 titled to be registered ” by the 
 Yorkshire Kcgistries Act, 1885, 
 s. 4. 
 
 ( q ) This means “ fraud in the 
 ordinary popular sense of the term, 
 i.e., fraud carrying with it grave 
 
STEPS SUBSEQUENT TO COMPLETION. 
 
 198 
 
 any person claiming without valuable consideration under any 
 person any further priority or protection than would belong to 
 the person under whom he claims, and any disposition which, if 
 unregistered, would be fraudulent and void will remain so in 
 spite of registration (r) . Registration does not amount to 
 actual notice, the provision of s. 15 of the act of 1884 to that 
 effect having been repealed by the amending act of 1885, s. 5, 
 though the omission to repeal s. 14 and s. 16, which expressly 
 prohibits tacking, seems to make this repeal practically in- 
 effective (s) . 
 
 The act does not extend to any copyhold hereditaments, nor Exemptions, 
 to any lease not exceeding twenty-one years, or any assignment 
 thereof when accompanied by actual possession from the making 
 of such lease or assignment (t) ; nor to assurances of land of 
 the Crown (u). Nor does it extend to land registered under 
 the Land Transfer Act, 1875, with a few exceptions (x), nor to 
 land in the city of Y ork . 
 
 The offices for the registration of deeds are situate at North- Offices, 
 allerton for the north riding; at Beverley for the east riding 
 and Hull; and at Wakefield for the west riding (?/). 
 
 The stamp duty is, where the instrument registered is charge- Stamp duty, 
 able with any duty not amounting to 2s. 6d., the same duty as 
 the registered instrument; in any other case 2s. 6d. (z). 
 
 The fee for registration or enrolment of any document except Fees 
 a caveat is 5s., and for a caveat 2s. (a). 
 
 moral blame, and not what has 
 sometimes been caded legal fraud 
 or constructive fraud, or fraud in 
 the eye of a court of law or a 
 court of equity”: per Stirling, J., 
 in Batlison v. Hobson, (1898) 2 
 Ch. at p. 412. 
 
 (r) Yorkshire Registries Act, 
 1884, s. 14. 
 
 (s) See ante, p. 162. 
 
 (t) Yorkshire Registries Act, 
 1884, s. 28. 
 
 (w) Ibid. s. 30. 
 
 (cc) See s. 127 of that act, as 
 amended by the act of 1897, 
 Sched. I. 
 
 ( y ) See Yorkshire Registries 
 Act, 1881, s. 31. 
 
 ( 2 ) Stamp Act, 1891, Sched., 
 “ Memorial.” 
 
 (a) The fees specified in the 
 Yorkshire Registries Act, 1884, 
 Second Sched., have been modified 
 by rules made under the act. See 
 s. 38. 
 
 G. — C. 
 
 O 
 
194 
 
 BK. I., PT. I. SALES, EXCHANGES AND GIFTS. 
 
 When land 
 conveyed for 
 charitable 
 purposes, 
 deed must 
 be enrolled. 
 
 Exceptions. 
 
 Omission to 
 enrol deed 
 within requi- 
 site time. 
 
 Special cases : 
 
 (1) grants 
 of annuities ; 
 
 (2) btrgains 
 and sales ; 
 
 Registration of Conveyances to Charities. 
 
 If the conveyance is in favour of a charity and comes within 
 Part II. of the Mortmain and Charitable Uses Act, 1888 (6), 
 the assurance must be enrolled in the Enrolment Department 
 of the Central Office of the Supreme Court(c). The enrolment 
 must be effected within six months after execution, and is re- 
 quired whether the conveyance be for valuable consideration 
 or not. The fee for enrolment is Is. per folio of seventy-two 
 words, exclusive of maps, plans and drawings, which are 
 charged at their actual cost (d). 
 
 A conveyance made “ otherwise than in good faith for full 
 and valuable consideration ” of land for the purposes of a 
 public park, school-house for any elementary school, or public 
 museum, or for the purpose of erecting dwellings for the poor 
 of populous places under the Working Classes Dwellings Act, 
 1890, or to a local authority under the Mortmain Act, 1892, 
 though excepted from Part II. of the act of 1888, must be 
 enrolled with the Charity Commissioners (e); the time for 
 enrolment in each case being within six months of execution. 
 
 The court may authorize the enrolment of a deed after the 
 time limited for so doing in the circumstances and upon the 
 terms stated in s. 5 of the act. 
 
 Special Cases of Registration. 
 
 Other cases in which registration is necessary are: — 
 
 When a deed grants an annuity for life or lives or for 
 years determinable on a life or lives, it must be regis- 
 tered in the Land Registry (/). The fee for registra- 
 tion is 2s. 6d. ( g ). 
 
 When a statutory bargain and sale is the form of assur- 
 ance made use of, it must be enrolled in the Enrol- 
 ment Department of the Central Office of the 
 
 (b) Ante, p. 23. (/) Judgments Act, 1855, s. 12; 
 
 (c) See Ord. LXI. r. 9 of the Land Charges Act, 19J0, s. 1, 
 
 Eulcs of the Supreme Court. ante, p. 157. 
 
 ( d ) Annual Practice, vol. ii. ( g ) Eule as to Fees dated the 
 
 (e) Ante, p. 25. 8th August, 1900. 
 
STEPS SUBSEQUENT TO COMPLETION. 
 
 195 
 
 Supreme Court, or before the custos rotulorum and 
 two justices of the peace and the clerk of the peace of 
 the county in which the land is, or two of them at 
 least, of' whom the clerk of the peace must be on e(h). 
 
 When the conveyance operates to bar an entail by a tenant ( 3 ) disentail- 
 
 . . . . ing deeds. 
 
 m tail, enrolment is necessary m the Enrolment 
 Department of the Central Office of the Supreme 
 Court (i). The fee for enrolment is Is. per folio of 
 seventy-two words, exclusive of maps, plans and 
 drawings, which are charged at their actual cost (k) . 
 
 ( h ) 27 Hen. 8, c. 16; Judica- 
 ture Act, 1873, s. 16; Eules of 
 the Supreme Court, Ord. LXI. r. 9. 
 
 ( i ) Lines and Eecoveries Act, 
 
 1833, s. 74; Judicature Act, 1873, 
 s. 16; Eules of the Supreme 
 Court, Ord. LXI. r. 9. 
 
 ( k ) Annual Practice, vol. ii. 
 
196 
 
 BK. I., PT. I. SALES, EXCHANGES AND GIFTS. 
 
 CHAPTER XI. 
 
 COMPULSORY SALES UNDER TPIE LANDS CLAUSES CONSOLIDATION 
 
 ACTS. 
 
 The object of 
 the statutes. 
 
 8 & 9 Viet. 
 
 c. 18. 
 
 Enabling- 
 provisions of 
 the statutes. 
 
 As a rule no person is bound to sell his property against his 
 will; though the sovereign power in every state can and does at 
 times appropriate the property of individuals for purposes of 
 public utility — a right sometimes called “eminent domain.” 
 So a landowner may be compelled to do so if a special act 
 of parliament is obtained for the purpose. In the first half 
 of the nineteenth century applications to parliament for private 
 acts authorizing the compulsory purchase of land for public 
 purposes, or for the purposes of commercial undertakings of a 
 public nature, like railways, waterworks and canals, came to be 
 numerous. Until 1845 every special act had to be self- 
 contained, and always comprised a large number of common- 
 form clauses combined with the special clauses peculiar to the 
 undertaking which it authorized. With a view to diminish the 
 bulk of these special acts, and to ensure precision, brevity and 
 uniformity, these common and indispensable clauses were 
 classified into a general act called the Lands Clauses Consoli- 
 dation Act, 1845, so that they might for the future be incor- 
 porated in any special act by reference. The act has since 
 been amended by the Lands Clauses Consolidation Acts 
 Amendment Act, 1860, the Lands Clauses Consolidation Act, 
 1869, the Lands Clauses (Umpire) Act, 1883., and the Lands 
 Clauses (Taxation of Costs) Act, 1895, and these are ail to be 
 read together as parts of a single code, and are included in, the 
 citation the Lands Clauses Acts, 1845 to 1895. 
 
 The act of 1845 enables all parties entitled to land or to any 
 estate or interest therein to enter into all necessary agreements 
 for the sale thereof (a). Particularly it enables corporations,. 
 
 (a) Lands Clauses Consolidation Act, 1845, s. 6. 
 
SALES UNDER LANDS CLAUSES CONSOLIDATION ACTS. 
 
 197 
 
 tenants in tail or for life, married women seised in their own 
 right or entitled to dower, guardians, committees of' lunatics 
 and idiots, trustees of' charities, executors and administrators, 
 and all parties for the time being entitled to the receipt of the 
 rents and profits of any such land in possession, or subject to 
 any estate in dower, or to any lease for life or for lives and 
 years or for years, or any less interest, to sell their lands, and 
 (with the exception of married women entitled to dower and 
 lessees for life, &c.) to sell them not only on behalf of them- 
 selves, but also on behalf of persons entitled in reversion, 
 remainder, or expectancy after them, or in defeasance of the 
 estates of such parties; and it enables married women and all 
 owners of land who are under disability to deal with the land 
 as if they were respectively under no disability (b). Though, 
 corporations generally are empowered to sell, municipal cor- 
 porations must still get the consent of the Treasury (<?) . 
 
 The proceedings under this act are briefly as follows: — 
 When the promoters require any land they must first give a 
 “ notice to treat” under the act, which notice must state the 
 particulars of the lands they desire to take (d). An owner who 
 is competent to deal with his lands freely can, of course, make 
 any agreement he likes with them; but it is when the owner 
 for the time being is under disability^ or refuses to treat that 
 the provisions of 1 the act are more especially of use. In such 
 cases the value of the land is first to be ascertained, either by 
 arbitration or by the Verdict of a jury, or in certain cases by a 
 valuation (e). The compensation or purchase-money, having 
 been determined in one of these ways, is, in the case of dis- 
 ability. to be dealt with in different ways, varying with its 
 amount. If it exceed 200L, it must be paid into the bank in 
 the name of the paymaster-general, and it will there remain 
 until applied by the court, in— 
 
 (a) The purchase or redemption of the land-tax, or the dis- 
 
 The notice 
 to treat. 
 
 Ascertain- 
 ment of com- 
 pensation. 
 
 Application 
 of compen- 
 sation. 
 
 (5) Lands Clauses Consolidation 
 Act, 1845, s. 7. 
 
 (c) Ibid. s. 15. 
 
 ( d ) Ibid. s. 18. It is usual to 
 annex a plan of the land re- 
 
 quired, and great care must be 
 taken to see that it is accurate. 
 See Stone v. Commercial Rail. Co. 
 (1839), 4 My. & Cr. 122. 
 
 (e) Ibid. ss. 23 — 68. 
 
198 
 
 BK. I., PT. I. SALES, EXCHANGES AND GIFTS. 
 
 charge of incumbrances affecting the land sold, or 
 
 other lands settled along with it but not taken. 
 
 (b) The purchase of other lands to be settled in the same 
 
 manner as the lands sold. 
 
 (c) The replacing of buildings if buildings have been com- 
 
 pulsorily taken. 
 
 (d) The payment to any party absolutely entitled to the 
 
 money (/) . 
 
 (e) In some one or more of the ways in which capital money 
 
 can be invested under the Settled Land Acts (g) . 
 
 If the purchase-money is 200/. or under, but over 20/., it 
 can either be dealt with in the same way as sums over 200/., 
 or else, if the promoters approve, it may be paid to two trus- 
 tees nominated by the parties entitled, the promoters approving 
 of the trustees selected; in this case the money must be applied 
 by the trustees in the manner directed with respect to money 
 paid into the bank, but no order of the court need be obtained 
 by them (A). If the purchase-money does not exceed 20/., it 
 can be paid to the parties entitled to the rents and profits of 
 the lands, or, if these are under disability, to their respective 
 guardians, committees, or trustees (i ) . 
 
 How the Upon deposit in the bank of the purchase-money or compen- 
 
 estate can be . ■ i *,i ,i . .-i , i • -i 
 
 vested in the sation m accordance with the act, the owner must when required 
 
 promoters. by the promoters convey to them, or as they direct. In default 
 
 thereof, or if he fail to adduce a good title, the promoters can 
 
 execute a deed poll Vesting in themselves all the estate and 
 
 interest of, or capable of being sold and conveyed by, the owner 
 
 in the land, and as against him and all parties on whose behalf 
 
 the act enables him to sell, the promoters will be entitled to 
 
 immediate possession (ft) ; and by a similar deed they can vest 
 
 in themselves the interest of a vendor who refuses to accept 
 
 the purchase-money when tendered, or who fails or neglects to 
 
 make out a good title, or refuses to convey, and also of a vendor 
 
 who is absent from the kingdom and cannot be found after 
 
 (/) Lands Clauses Consolidation 
 Act, 1845, s. 69. 
 
 (gr) Settled Land Act, 1882, 
 s. 32. 
 
 (A) Lands Clauses Consolidation. 
 Act, 1845, s. 71. 
 
 (0 Ibid. s. 72. 
 
 ( k ) Ibid. s. 75. 
 
SALES UNDER LANDS CLAUSES CONSOLIDATION ACTS. 
 
 199 
 
 diligent inquiry, upon depositing the purchase-money or com- 
 pensation in the bank (7). The conveyance may be made in 
 one of the forms in Schedules A. and B. to the act, and when 
 so made will operate to bar all estates tail, and all other estates, 
 rights, titles, remainders, reversions, limitations, trusts, and 
 interests whatever in the land (m). The promoters are to bear 
 the whole costs of the purchase, both their own and the 
 vendor’s ( n ). 
 
 When lands of' copyhold or customaryhold tenure are sold 
 to promoters the conveyance is required to be entered by the 
 steward of the manor on the court rolls, and upon payment of 
 such fees to him as would be due on the surrender of the same 
 lands to the use of a purchaser, he is to enrol the conveyance, 
 and the conveyance, when so enrolled, is to have the effect in 
 respect of such lands as if the same were of freehold tenure. 
 
 No one can be required to sell or convey to the jmomoters 
 of the undertaking a part only of any house or other building 
 or manufactory, if such party be willing and able to sell and 
 convey the whole thereof (o) . The promoters may redeem 
 mortgages, and concurrence of incumbrancers who refuse to 
 receive their money or to release, or who cannot make a satis- 
 factory title, can be dispensed with (p) . The promoters can 
 only exercise these compulsory powers for the period named 
 in their special act; if that prescribes no period, then only 
 for three years from the passing of their special act (g). 
 
 If it is intended that the purchase by a railway company 
 shall include the minerals they must be expressly mentioned. 
 
 Further provision is made for the disposal of lands which the 
 promoters have acquired but which are not required for the 
 purposes of their undertaking. Within the prescribed period, 
 or if no period be prescribed, within ten years after the time 
 specified in their special act for the completion of the works, 
 they are to sell these superfluous lands, and in default they will 
 become the property of the owners of the lands adjoining 
 thereto (r). Unless they are situate in a town, or are lands 
 
 (?) Ibid. S3. 76 — 80. Council, (1912) 1 Ch. 583. 
 
 (?n) lb d. s. 81. (p) Ibid. ss. 108 — 118. 
 
 (w) Ibid. s. 82. (q) Ibid. s. 123. 
 
 (o) Ibid. s. 92. See Regent's (r) Ibid. s. 127. 
 
 Canal Co. v. London County 
 
 General 
 
 provisions. 
 
 Provision as 
 to surplus 
 lands. 
 
200 
 
 The property 
 is deemed to 
 be converted 
 on the fixing 1 
 of the price. 
 
 BK. I. ? PT. I. — SALES, EXCHANGES AND GIFTS. 
 
 built upon or used for building* purposes, they must be first 
 offered to the person entitled to the lands, if any, from which 
 the}* were originally severed; if he refuse to purchase, or cannot 
 be found, then they are to be offered to adjoining owners (s). 
 Any such person desiring to purchase must signify his desire 
 within six weeks, or his right of pre-emption will cease (t). 
 The price, if necessary, will be ascertained by arbitration (u), 
 and the land conveyed to the purchaser ( x ) . On a sale of 
 
 such surplus lands restrictions may be imposed on the pur- 
 chasers; but it is not possible for the vendor company to* reserve 
 to themselves the right of repurchase at a future time, since 
 the conveyance must be absolute, without any reservation of 
 interest to the company (y). 
 
 The service of the notice to treat puts the parties in a position 
 somewhat analogous to that of vendor and purchaser; once 
 given the notice (except in the special case provided for by 
 s. 92 of the act) cannot be withdrawn ( 2 ); on the other hand, 
 the contract is not complete until the price payable to the 
 vendor is fixed; so that until then neither party can get a 
 judgment for specific performance (a); the proper remedy if, 
 after serving notice to treat, the promoters do not proceed, is 
 mandamus (z ) ; but directly the price is fixed, the true rela- 
 tionship of vendor and purchaser is established, specific per- 
 formance can be obtained, and the property is “converted’’ 
 in equity, so that if the vendor dies after the fixing of the 
 price, and before completion, the purchase-money forms part of 
 his personal estate (a ) . There is no equitable conversion, how- 
 ever, if the land belonged to a person under disability, or if 
 the land is settled; in such cases, as already mentioned, the 
 money is paid into the bank, and dealt with in the ways 
 referred to (&). 
 
 (s) Lands Clauses Consolidation 
 Act, 1845, s. 128. 
 
 (t) Ibid. s. 129. 
 
 (w) Ibid. s. 130. 
 
 (a?) Ibid. ss. 131 — 133. 
 
 [y) L. & S. W. Hail. Co . v. 
 Comm (1881), 20 Ch. D. 562; com- 
 pare Re Thackwray and Young's 
 Contract (1888), 40 Ch. D. 34; 
 Ray y. Walker, (1892) 2 Q. B. 88. 
 
 (3) R. v. Hungerford Market 
 Co. (1832), 4 B. & Ad. 327; see 
 also Sparrow v. O. W. and W. 
 Rail. Co. (1852), 21 L. J. Ch. 731; 
 and Wild v. Woolwich Borough 
 Council, (1909) 2 Ch.,287. 
 
 (a) Haynes v. Haynes (1861), 
 1D.&S. 428. 
 
 (5) Ante, p. 198. 
 
yoi 
 
 Part IL— MORTGAGES. 
 
 I . — INTRODUCTORY . 
 
 A mortgage has been defined as a conveyance of land or an 
 assignment of chattels as a security for the payment of a debt 
 or the discharge of some other obligation for which it is 
 given (a). 
 
 The law relating to mortgages is complicated, owing to the 
 fact that courts of equity took an entirely different view of the 
 meaning of the transaction between mortgagor and mortgagee 
 from that which it appears to bear, and gave the mortgagor 
 all kinds of rights which he did not possess by the terms of the 
 mortgage documents, and which are even in direct conflict with 
 those terms. The result is that the conveyancer has to deal 
 with a set of documents which do not mean what they say, 
 and in order to understand their operation and effect the con- 
 struction put upon them by courts of equity must be kept in 
 view throughout. “ No one,” as Lord Macnaghten has said, 
 “ by the light of nature ever understood an English mortgage 
 of real estate ” (b). 
 
 As in the case of sales, it is not every person who has legal 
 capacity to make a mortgage of property, and it is therefore 
 necessary to consider the subject of' the capacity of the parties 
 to the transaction before dealing with its form and effect. 
 
 Definition of 
 mortgage. 
 
 Complication 
 in the law 
 of mortgages 
 produced by 
 equity. 
 
 Capacity to 
 make or take 
 a mortgage. 
 
 (a) Per Lindley, M. R., Santley 
 v. Wilde, (1899) 2 Oh. 474. See, 
 however, Lord Macnaghten’s com- 
 ment on this definition in Bradley 
 v. Carritt, (1903) A. C. atp. 256. 
 
 (6) Per Lord Macnaghten, 
 Samuel v. Jarrah Timber and 
 Wood Paving Corporation, (1904) 
 A. C. at p. 326. 
 
202 
 
 General rule. 
 
 37 & 38 Viet, 
 c. 62. 
 
 53 & 54 Viet, 
 c. 5. 
 
 Vesting 
 
 orders. 
 
 Capacity of 
 
 married 
 
 woman. 
 
 BK. I., PT. II. MORTGAGES. 
 
 II. — CAPACITY OF PARTIES. 
 
 As a rule a person who has the legal capacity to sell or 
 purchase land or other property has a like power of making or 
 taking a mortgage of it, so that it is only necessary to refer 
 the reader to what has been previously said on this head in 
 Chapter I. of Part I. There are a few cases, however, which 
 require special consideration. 
 
 Infants. 
 
 The Infants Relief Act, 1874, s. 1, provides that “All con- 
 tracts, whether by specialty or by simple contract, henceforth 
 entered into by infants for the repayment of money lent or to 
 be lent .... shall be absolutely void.” It follows from this 
 that an infant cannot be made liable on a mortgage; the 
 transaction is void, not merely voidable like a sale, and this 
 even though the mortgage money may have been applied in 
 improvement of the property (c) . 
 
 Persons of Unsound Mind. 
 
 A mortgage made by a person of unsound mind appears to 
 be on the same footing as a sale ( d ). A power to mortgage 
 with the consent of the judge in lunacy is given by ss. 116, 
 120 and 124 of the Lunacy Act, 1890. 
 
 Where a mortgagee becomes of unsound mind and the mort- 
 gagor desires to pay off the mortgage and obtain a reconvey- 
 ance, he must apply in lunacy, or, if the mortgagee is a trustee, 
 in the Chancery Division, for a vesting order (e). 
 
 Married Women. 
 
 A married woman has the same power to make or take ,a 
 mortgage as she has to sell or buy property, and it is unneces- 
 sary to add anything to what has been said with regard to her 
 powers in this respect. 
 
 (c) Nottingham Permanent 
 Benefit Building Society v. Thur- 
 stan, (1903) A. 0. 6, affirming 
 0. A., (1902) 1 Cli. 1. 
 
 ( d ) See ante , pp. 8 and 9; 
 
 Campbell v. Hooper (1855), 3 Sm. 
 & Gr. 153. 
 
 (e) See Lunacy Act, 1890, s. 
 135; Lunacy Act, 1908, s. 2; and 
 Lunacy Act, 1911, s. 1. 
 
CAPACITY OF PARTIES. 
 
 203 
 
 Aliens, Traitors and Felons. 
 
 It is also unnecessary to add anything to what has been pre- 
 viously said with regard to the capacity of these persons to 
 make dispositions of and acquire property. 
 
 Corporations. 
 
 What has been said as to sales by corporations applies also to 
 mortgages, but with regard to a company registered under the 
 Companies Acts it is necessary to add that the elaborate pro- 
 visions contained in ss. 93 to 102 of the Companies (Consolida- 
 tion) Act, 1908, must be complied with, otherwise the security 
 will be void, or at least penalties will be incurred by the parties 
 concerned according to the particular provision compliance 
 with which is omitted. 
 
 Persons in a Fiduciary Position. 
 
 A trustee has no right to borrow money on the security of 
 a mortgage of the trust property unless he is authorized to 
 do so by the terms of the trust, or a statute confers the power. 
 
 There are several statutes by which such a mortgage is 
 authorized. First, the Law of Property Amendment Act, 
 1859, by ss. 14 to 17 (/), provides, that where a testator has 
 by his will charged his real estate with the payment of debts 
 or any legacy or other specific sum of money, and has devised 
 the estate so charged to a trustee for the whole of his interest, 
 and has not made any express provision for the raising of the 
 debts, legacy or sum of money, the trustee may raise money to 
 satisfy the charge by a sale or mortgage; and if the estate is 
 not so devised the executor has the power. Having regard, 
 however, to the provisions of Part I. of the Land Transfer 
 Act, 1897 (g), it will not be often that a mortgage is made 
 under the authority of this act. 
 
 Secondly, by the Settled Land Act, 1882, s. 18, as extended 
 by s. 11 of the Settled Land Act, 1890, power is conferred 
 on the tenant for life to raise money for enfranchisement or 
 equality of exchange or partition, or for the discharge of in- 
 
 Aliens and 
 convicts. 
 
 Corporations 
 and com- 
 panies. 
 
 8 Edw. 7, 
 c. 69. 
 
 When a 
 trustee may 
 mortgage the 
 trust pro- 
 perty. 
 
 22 & 23 Viet, 
 c. 35. 
 
 60 & 61 Yict. 
 c. 65. 
 
 45 & 46 Viot. 
 c. 38. 
 
 (/) See ante, p. 26 . 
 
 ( g ) See ante, p. 86. 
 
204 
 
 56 & 57 Viet. 
 «. 53. 
 
 When no 
 statutory- 
 authority 
 lender’s duty 
 to inquire 
 whether 
 trustee 
 authorized. 
 
 Duty of trus- 
 tee advancing 
 trust funds on 
 mortgage. 
 
 56 & 57 Viet. 
 <}. 53, s. 8. 
 
 BK. I., PT. II. MORTGAGES. 
 
 cumbrances in the case of settled land, and by s. 60 of the act 
 of 1882, where the tenant for life is an infant, this statutory 
 power is exerciseable by the trustees of the settlement, if any. 
 
 Lastly, the Trustee Act, 1893., s. 19, enables trustees for the 
 purpose of raising money to pay for the renewal of a lease 
 which forms part of the trust property, to mortgage the here- 
 ditaments to be comprised in the renewed lease, or any other 
 hereditaments for the time being subject to the uses or trusts 
 to which those hereditaments are subject. 
 
 Each of these statutes exonerates the mortgagee from inquir- 
 ing into the necessity of exercising the power, or seeing that the> 
 money, when obtained, is applied to the proper purposes, but 
 in any other case the mortgagee must ascertain that the power 
 exists, and that it is being properly exercised. 
 
 When a trustee is proposing to invest trust funds on mort- 
 gage, the provisions of the Trustee Act, 1893,, must be strictly 
 complied with. The effect of s. 8 (1) of this act is, that a 
 trustee who lends money on the security of' any property on 
 which he can lawfully lend will not be chargeable with 
 breach of trust by reason only of the proportion borne by the 
 amount of the loan to the value of the property at the time 
 when the loan was made, provided that it appears to the court 
 that in making the loan the trustee was acting on a report as to 
 the value of the property made by a person whom he reasonably 
 believed to be an able practical surveyor or valuer instructed 
 and employed independently of any owner of the property, 
 and whether such surveyor carried on business in the locality 
 where the property is situate or elsewhere, and that the amount 
 of the loan does not exceed two-thirds of the value of the pro- 
 perty as stated in the report, and that the loan was made under 
 the advice of the surveyor or valuer expressed in the report. 
 The act further provides that a trustee may, in lending on 
 leasehold security, dispense with the production and investiga- 
 tion of the lessor’s title (Ji)\ and that in purchasing, or lending 
 on the security of, property he may accept a shorter title than 
 the title he has a right to require if in the opinion of the court 
 the title accepted be such as a person acting with prudence and 
 caution would have accepted (i). 
 
 (h) Trustee Act, 1893, s. 8 (2). 
 
 (i) Ibid. s. 8 (3). 
 
CAPACITY OF PARTIES. 
 
 205 
 
 It is to be observed that the statute only applies to a trustee 
 lending money on the security of any property on which he can 
 lawfully lend. By s. 1 of the Trustee Act, 1893, every trustee 
 may, unless expressly forbidden by the terms of the trust, invest 
 on real or heritable securities in Great Britain or Ireland. 
 And it is expressly enacted by s. 5 of the act, that a trustee 
 having power to invest in “real securities,” unless expressly 
 forbidden by the terms of the trust, may invest and is deemed 
 to have always had power to invest on mortgage of property 
 held for an unexpired term of not less than 200 years, and not 
 subject to a rent greater than a shilling a year, or to any right 
 of redemption, or any condition of re-entry, except for non- 
 payment of rent. 
 
 Trustees are not, however, justified in lending money on any 
 kind of real security. They must exercise a reasonable dis- 
 cretion. Therefore they should not lend money on the security 
 of business premises if the security is really a business plus 
 the premises upon which it is carried on; and further, if the 
 premises and the business are so inseparably connected that 
 the discontinuance of the business may result in depreciation 
 of the premises, the trustees ought not to advance more than 
 half the value (k). They may, however, lend on a mortgage 
 of freehold ground rents, and in determining the amount of the 
 advance, the value of the houses may be taken into account (7), 
 and there is no rule that they cannot lend on the security of 
 property let on weekly tenancies (m ) . 
 
 Again, a trustee is not justified in lending money on a con- 
 tributory mortgage unless specially authorized (w), i.e., a mort- 
 gage made to secure a sum of money not lent by one lender, 
 or one set of trustees, but subscribed by several persons, or 1 
 several sets of trustees; nor on a merely equitable mortgage (o) ; 
 nor on a second mortgage (p ) . 
 
 (&) Learoydv. Whiteley (1887), 
 12 App. Oas. 727; Palmer v. 
 Emerson, (1911) 1 Ch. 758. 
 
 ( l ) Vickery v. Evans (1863), 3 
 New Reps. 286. 
 
 (m) Re Solomon, Nore v. Meyer , 
 (1912) 1 Ch. 261. 
 
 (n) Webb v. Jonas (1888), 39 
 Ch. D. 660. 
 
 (o) Webb v. Ledsam (1855), 1 
 K. & J. 398. 
 
 (p) Chapman v. Browne, (1902) 
 1 Ch. 785. The decision of 
 Wright, J., in Want v. Campain 
 
 56 & 57 Yict. 
 c. 53, s. 1 . 
 
 Mortgage of 
 business pre- 
 mises. 
 
 Ground rents. 
 
 Contributory 
 mortgage . 
 
 Equitable 
 
 mortgage. 
 
 Second 
 
 mortgage. 
 
206 
 
 BK. I., PT. II. — MORTGAGES. 
 
 Sub-mort- 
 
 gage. 
 
 Trustee must 
 select valuer. 
 
 Proportion of 
 loan to value 
 of property. 
 
 There is nothing to prevent a trustee from investing trust 
 funds on a sub-mortgage, i.e., a mortgage of a mortgage, if 
 he gets the legal estate in the property the subject of 1 the mort- 
 gages, and all the powers of the original mortgagee, since the 
 security is then as good as that of the original mortgagee with 
 the addition of a covenant for repayment from him as well as 
 from the original mortgagor (g) . 
 
 The selection of the surveyor or valuer must be made by 
 the trustees themselves; if 1 they leave the appointment to their 
 solicitor, and the security turns out to be insufficient, they may 
 have to bear the loss. If the trustees do not know a surveyor or 
 valuer, the proper course is for their solicitor to submit a name 
 or names to them and to tell them everything he knows to guide 
 their choice, but to leave the choice to them (r ) . The trustees, 
 if they properly instruct the valuer, need not make inquiries 
 themselves respecting the personality of' the mortgagor or the 
 details concerning the property, nor need they inquire whether 
 he has at any time acted for the mortgagor (s) . 
 
 Formerly there was no hard and fast rule as to what pro- 
 portion of the value of the property a trustee might advance 
 with safety; but it was generally considered that he would 
 not be liable for any loss that might be sustained provided 
 that he did not advance more than two-thirds of the value of 
 landed property, and one-half 1 of the value of house pro- 
 perty (t). The statute, as will be seen, authorizes a loan up to 
 two-thirds of the value of the property, and makes no distinc- 
 tion between agricultural, house or other property, and there 
 is now no rule that not more than one-half of the value should 
 be advanced on business premises (u). 
 
 (1893), 9 Times L. R. 254, that a 
 loan on second mortgage is not 
 necessarily a breach of trust, is 
 apparently no longer law. 
 
 ( q ) Smethurst v. Hastings 
 (1885), 30 Ch. D. 490. 
 
 (r) Fry v. Tapson (1884), 28 
 Oh. D. 268, at pp. 277, 281. 
 
 (s) Re Solomon, Nore v. Meyer, 
 (1912) 1 Ch. 261. 
 
 (£) See Lewin, Trusts, 12th ed. 
 376; Fry v. Tapson, supra; Shaw 
 v. Cates, (1909) 1 Ch. at pp. 396 
 et seq. 
 
 ( u ) Palmer v. Emerson, (1911) 
 1 Ch. 758. 
 
CONTRACT FOR MORTGAGE AND TITLE OF MORTGAGOR. 
 
 207 
 
 III. — CONTRACT FOR A MORTGAGE AND TITLE OF THE MORTGAGOR. 
 
 An agreement for a mortgage of land or any interest in Agreement 
 land is within s. 4 of the Statute of Frauds, and must, there- nmsTb^m^ 6 
 fore, be evidenced by a note or memorandum in writing signed writing, 
 by the party to be charged or his agent ( x ) . 
 
 Before agreeing to lend his money, the proposed mortgagee, Valuationof 
 whether he be a trustee or not, should always have the property property 6 
 offered as security valued by a competent valuer, and should 
 never advance more than will leave an ample margin between 
 his debt and the value of the property. Where the land is 
 subject to a rent-charge, it should be borne in mind that the 
 mortgagee will be liable for the payment of the rent, even 
 though he has never been in possession, if the freehold is con- 
 veyed to him (?/), and it may be advisable in such a case for 
 the mortgage to be made by demise for a long term of years, 
 since a leaseholder is not personally liable for the rent (z ) . It 
 is no part of a solicitor’s duty to act as valuer, and if he gives, 
 his client his idea of the value of the property, and the lattett* 
 acts upon it, and a loss ensues owing to the estimate being too 
 high, the solicitor is not liable in damages for negligence, 
 though the client would have had a claim against a professional 
 valuer had he employed one and been misled by a negligent 
 valuation (a). Similarly, a mortgagee who has acted on a care- 
 less representation of the mortgagor’s agent as to the value of 
 the property and who has sustained loss as a consequence, 
 cannot recover from the valuer unless he can show that he inten- 
 tionally deceived him, since there is no contract between them, 
 and an honest misrepresentation gives no right to damages. He 
 can only succeed, therefore, if he can make out a ca^e of 
 fraud (b). 
 
 The title to the property to be mortgaged is usually investi- Investigation 
 gated by or on behalf of the mortgagee as on a sale. The mort- mortgaged 
 
 property. 
 
 (as) Pattley. Anstruther (1893), 
 69 L. T. 175, ante , p. 33. 
 
 2 Ch. 811. See Law Notes, vol. 30, 
 p. 242. 
 
 ( y ) Cundiff v. Fitzsimmons , 
 
 (1911) 1 K. B. 513. 
 
 (a) Scholes v. Brook (1891), 64 
 L. T. 674. 
 
 (z) lie Herbage Rents, (1896) 
 
 ( b ) Le Lievre and Dennes v. 
 Gould, (1893) 1 Q. B. 491. 
 
^08 
 
 BK. I., PT. II. — MORTGAGES. 
 
 Right of 
 investigating 
 title not 
 controlled 
 by statute. 
 
 No specific 
 performance 
 of contract 
 for loan. 
 
 Mortgagor 
 pays costs of 
 mortgage. 
 
 gagor delivers an abstract of title and verifies it, and the mort - 
 gagee makes requisitions and objections upon it in manner 
 already explained. A mortgagee’s solicitor, in fact, should, 
 if anything, be more strict in his inquiries and requisitions 
 than he would be upon a sale; for the sole object of the mort- 
 gagee is to obtain a safe security for his advance, and he should 
 lend on nothing but an unimpeachable security. A purchaser 
 may have some particular fancy to gratify in acquiring any 
 particular plot of land; and, so long as he gets what he wants, 
 with a reasonably probable assurance that he is not likely to be 
 disturbed in the possession or enjoyment of it, he may be con- 
 tent to accept a title which is subject to technical defects. But 
 a mortgagee is not influenced by any such motives. He does 
 not want the mortgaged property; what he wants is something 
 on which he can confidently rely for repayment of the money 
 he lends, in case the mortgagor does not repay him . In investi- 
 gating the title, a solicitor may be as strict in his requirements 
 as he likes: the mortgagor is at his mercy in this respect, for 
 there will be no conditions or contract to limit the mortgagee’s 
 rights. Nor is the latter restricted by either the Vendor and 
 Purchaser Act, 1874, or the Conveyancing Act, 1881, s. 3., 
 neither of which applies to negotiations for mortgages, but 
 only to sales strictly so called. If the mortgagee is dissatisfied 
 with the mortgagor’s replies to his requisitions, or if he refuses 
 to comply with any of the mortgagee’s requirements, all the 
 latter has to do is to refuse to lend him the money. 
 
 Of course if a person enters into a contract to lend money 
 on mortgage without stipulating for a good title, and then 
 withdraws, he can be sued for damages for breach of contract, 
 but specific performance of the contract cannot be enforced 
 against him (c). 
 
 The mortgagee’s costs of investigating the title and pre- 
 paring the mortgage are, upon completion, payable by the 
 
 (c) Rogers v. Challis (1859), 27 
 Beav. 175; Sichcl v. Mosentlial 
 (1862), 30 Beav. 371; South 
 African Territories, Limited v. 
 Wallington, (1898) A. 0. 309. 
 
 This is now subject to the excep- 
 tion contained in s. 105 of the 
 Companies (Consolidation) Act,. 
 1908. 
 
CONTRACT FOR MORTGAGE AND TITLE OF MORTGAGOR. 
 
 209 
 
 mortgagor, and are recoverable from him as a simple contract 
 debt (d ) ; but where a proposed mortgage goes off owing to 
 the default of the mortgagor, the mortgagee’s solicitor has, in 
 the absence of agreement, no claim for his charges against the 
 mortgagor; he must look to the party retaining him, leaving 
 him to his remedy (if any) against the party who occasioned 
 the fruitless expense (e) . 
 
 IV. — THE FORM AND CONTENTS OF AN ORDINARY MORTGAGE. 
 
 Having seen that the mortgagor can make a good title, the 
 mortgagee’s solicitor prepares the mortgage deed. A mort- 
 gage is now generally framed in the form of an absolute 
 conveyance with a proviso for re-conveyance on the repay- 
 ment of the loan. 
 
 Date, Parties and Recitals. 
 
 Taking the heads of a mortgage deed as they usually occur, 
 it will be found that after the date, parties and recitals, as to 
 which it is unnecessary to add anything to what has been said 
 in discussing the form of a purchase deed, there will be: — 
 
 First Testatum.— Covenant for Repayment of Loan and 
 
 Interest. 
 
 The first testatum witnesses that in consideration of the sum 
 advanced the mortgagor covenants with the mortgagee to pay 
 him on a specified date (usually six calendar months after the 
 execution of the mortgage) the principal sum with interest 
 thereon in the meantime at the agreed rate, and further, that if 
 the money shall not be so paid, to pay him interest at the rate 
 aforesaid by equal half-yearly (or other) payments on speci- 
 fied days in every year on the principal moneys for the time 
 being remaining due on the security. Generally it is not in- 
 
 ( d ) See Re Roberts (1889), 43 Longbotliam and Sons, (1904) 2 
 Ch. D. at p. 54; Wales v. Carr, Ch. 152. 
 
 (1902) 1 Ch. 860; see also Re (e) Wi hinson v. Grant (1856), 
 
 25 L. J. C. P. 233. 
 
 Costs of 
 abortive 
 investigation. 
 
 Form of the 
 
 mortgage 
 
 deed. 
 
 Formal parts. 
 
 First 
 
 testatum. 
 
 The covenant 
 to pay. 
 
 G. — C. 
 
 P 
 
210 
 
 Period of 
 limitation of 
 action on the 
 covenant. 
 
 37 & 38 Viet, 
 c. 57. 
 
 Arrears of 
 
 interest 
 
 recoverable. 
 
 3 & 4 Will. 4, 
 c. 27. 
 
 BIv. I., PT. II. MORTGAGES. 
 
 tended that the money shall be repaid on the day named in the 
 covenant, but the effect of specifying a day for repayment is 
 that from that day the mortgagor is in default, and the mort- 
 gagee acquires important rights as will be explained hereafter. 
 
 As a rule, the remedy for the recovery of a debt secured 
 by a covenant, or specialty debt, is barred only after the lapse 
 of twenty years after the cause of action arose or from the last 
 payment of principal or interest or acknowledgment in writing 
 by the covenantor (/); but in the case of Sutton v. Sutton (g) 
 it was held that since the Real Property Limitation Act, 1874, 
 s. 8, provides that an action to recover any money secured on 
 land must be brought within twelve years of the cause of 
 action, an action on a covenant for repayment in the mortgage 
 is barred at the expiration of that time. And in Fearnside v. 
 Flint (h) it was held, that it made no difference that the cove- 
 nant for repayment was contained in some separate instrument 
 from the mortgage, as in a collateral bond by the mortgagor, 
 but that the action to recover the money secured both by the 
 mortgage and the collateral bond must be brought within 
 twelve years, for the action still remains one to recover money 
 secured on land. But if there is a collateral bond by a 
 surety an action on the bond may be brought against the 
 surety at any time within twenty years, the action being 
 rather in the nature of an action for damages for breach of 
 covenant than a proceeding to recover the same debt as that 
 secured by the mortgage (y); and perhaps an action against 
 a surety on the covenant in the mortgage is also not barred 
 until the expiration of twenty years (1c). 
 
 The Beal Property Limitation Act, 1833, s. 42, enacts that 
 no arrears of interest in respect of any sum of money charged 
 upon or payable out of any land shall be recovered by any 
 distress, action, or suit but within six years next alter the same 
 shall have become due. This applies to a foreclosure action, 
 
 (/) Civil Procedure Act, 1833, 
 s. 3. 
 
 (g) (1882), 22 Ch. D. 511; see 
 also Kirkland v. Peat-field, (1903) 
 
 1 K. B. 756. 
 
 (h) (1882), 22 Ch. D. 579. 
 
 (i) Re Powers, Lindsell v. 
 Phillips (1885), 30 Ch. D. 291. 
 
 ( k ) Re Frisky, Alii on v. Frisky 
 (1889), 43 Ch. D. 106. 
 
THE FORM AND CONTENTS OF A MORTGAGE DEED. 
 
 211 
 
 and consequently in such an action only six years’ arrears 
 are recoverable, but apparently it does not apply to an action on 
 the covenant if there is one; so that in the latter action twelve 
 years’ arrears are recoverable (l ) . The section does not pre- 
 vent a (mortgagee, who sells under his power of sale, from 
 paying himself out of the proceeds of sale all arrears of in- 
 terest (m ) ; nor docs it apply to redemption actions or to pro- 
 ceedings taken by the mortgagor to obtain payment of a fund 
 in court representing the proceeds of sale of the mort- 
 gaged land, in which he must be prepared to pay all arrears 
 of interest (n). Further, since the provisions of the act relate 
 only to interest on money charged on land, in the case of a 
 mortgage of pure personal property all arrears of interest are 
 recoverable in a foreclosure action (o). 
 
 The mortgagee, with a view to make punctuality in pay- 
 ment of the interest of advantage to the mortgagor, sometimes 
 wishes to provide that if he does not pay it punctually at the 
 time stipulated, he shall be bound to pay interest at a higher 
 rate. He cannot do this directly; for if the covenant provides 
 for interest at the rate of five per cent., but that if it be not 
 paid punctually on the date fixed for payment, then it is to 
 be six per cent., the court would treat the provision as a penalty 
 and relieve the mortgagor against it by allowing him to redeem 
 on repayment of the principal and interest at five per cent. 
 But the object may be effected by stipulating that the rate of 
 interest shall be six per cent., but that, if it is paid punctually, 
 payment at the rate of five per cent, will be accepted, and 
 such a clause is frequently seen in mortgages. It has been 
 decided that payment “punctually" here means payment on 
 the day fixed for payment, and that payment after the fixed 
 day, even though but a few days after, is not sufficient (p). 
 
 How punctual 
 payment of 
 interest may 
 be insured — 
 
 (1) by reserv- 
 ing higher 
 rate ; 
 
 (7) See Coote, Law of Mort- 
 gages, 7th ed. vol. ii. 1187. 
 
 (m) Be Marshfield, Marshfield, 
 v. Hutchings (1887), 34 Oh. D. 
 721. 
 
 {n) Dingle v. Coppen, (1899) 1 
 Ch. 726; Be Lloyd , Lloydv. Lloyd, 
 
 p 2 
 
 (1903) 1 Ch. 385. 
 
 (o) Mellersh v. Brown (1890), 
 45 Ch. D. 225. 
 
 (p) L/eeds and Hanley Theatre 
 of Varieties v. Broadbent, (1898) 
 1 Ch. 348. 
 
212 
 
 (2) by com- 
 pounding the 
 interest. 
 
 Provision for 
 securing 
 future 
 advances. 
 
 Provision for 
 repayment by 
 instalments. 
 
 BK. I., PT. II. — MORTGAGES. 
 
 A jmoviso for the reduction of interest on punctual payment 
 does not. apply when the mortgagee takes possession and re- 
 ceives the rents, whether he does so by arrangement with the 
 mortgagor or otherwise, and he is accordingly allowed the 
 higher rate, even though there was no interest in arrear when 
 he took possession (g). Since the usury laws were repealed 
 by 17 & 18 Viet. c. 90, another way to secure the punctual pay- 
 ment of interest is to provide for the payment of compound 
 interest (r) ; but a proviso for capitalization of interest, if in 
 arrear for twenty-one days, does not take effect if the mort- 
 gagee in possession receives sufficient rent before the twenty- 
 one days have expired (s ) . 
 
 Sometimes the covenant to repay is extended, not only to 
 the actual money lent at the time of the execution of the mort- 
 gage, but also to advances to be made on some future occasion. 
 In these cases it is not the practice to state expressly the total 
 amount beyond which these advances shall not be extended, but 
 the mortgage deed is so stamped as to cover a certain sum in 
 excess of that advanced at the time of execution. 
 
 Again, provision is sometimes made for the repayment of 
 the advance by instalments. In this case it is the practice 
 to make the money payable at the usual time, and then to add 
 a proviso that if' the instalments be paid punctually on certain 
 days, with interest on the part not paid off, the mortgagee 
 will not call in the part which is not already j^aid off. Or 
 else the covenant may be, in the first case, to pay the money 
 off by instalments, and the proviso for redemption makes the 
 premises redeemable on the payment of the advance and interest 
 in the manner mentioned in the covenant, and this is followed 
 by a proviso giving the mortgagee power to call in all the 
 money secured in event of the instalments and the interest not 
 being duly paid (t). Where some such provision for payment 
 
 (g) Union Bank v. Ingram 
 (1880), 16 Ch. D. 53; Bright v. 
 Campbell (1889), 41 Ch. D. 388. 
 
 (r) Clarkson v. Henderson 
 (1880), 14 Ch. D. 348. 
 
 (s) Wrigley v. Gill, (1906) 1 
 
 Ch. 165. 
 
 ( t ) The mortgagee may also 
 stipulate for a commission of — per 
 cent, on each instalment not paid 
 at the due date for every month 
 or part of a month from the due 
 
THE FORM AND CONTENTS OF A MORTGAGE DEED. 
 
 213 
 
 by instalments is made there should be a proviso that, notwith- 
 standing the provision and without prejudice to it, the principal 
 money shall be deemed to become due, within the meaning of 
 the Conveyancing Acts and for all purposes of those acts, on the 
 day usually fixed, namely, six months after the execution of 
 the deed (u ) . 
 
 Where the mortgagees were trustees advancing money out of 
 their trust funds, it was formerly necessary to modify the form 
 of covenant, and to insert what was called the “ joint account 
 clause.” The reason for this was, that when several persons 
 advanced money, though they might be joint tenants of the 
 mortgage debt at law, in equity they were considered as tenants 
 in common; so that, on the death of one of them, the mort- 
 gagor, on paying off the debt, had to go for a discharge, not! 
 only to the survivors, but to the personal representatives of the 
 deceased person. This was especially inconvenient in the case 
 of trustees, who form a large proportion of the class of persons 
 who lend on mortgage. It was not desirable to show on the face 
 of the mortgage deed that the lenders were trustees, and that 
 the survivors had power to give receipts, for that would amount 
 to notice that the money was trust property, which would have 
 incorporated the title deeds relating to the trust into the title of 1 
 the mortgagor ( x ). It was therefore the usual practice to insert 
 this joint account clause, by which it was declared that the 
 money belonged to them upon a joint account, both at law and 
 in equity, and that the receipt of the survivor or survivors of 
 them, or the executors or administrators of the survivor, their or 
 his assigns, should be a valid discharge. But in the case of' 
 mortgages made since the 3.1st December, 1881, the Convey- 
 ancing Act, 1881, s. 61, provides that where the sum advanced 
 is expressed to be advanced by more persons than one out of 
 money belonging to them on a joint account, or a mortgage is 
 made to more persons than one jointly and not in shares, the 
 mortgage money is to be deemed to belong to them on a joint 
 account as between them and the mortgagor, and the receipt in 
 
 date to the date of payment: (u) See 1 Prideaux, 20th ed. 791. 
 
 General Credit and Discount Co. (x) Re Blaiberg and Abrahams' 
 
 v. Glegg (1883), 22 Oh. D. 549. Contract, (1899) 2 Ch. 340. 
 
 Joint account 
 clause 
 formerly 
 necessary in 
 the case of 
 trustees. 
 
 44 & 45 Viet, 
 c. 41, s. 61. 
 
214 
 
 Right to sue 
 on covenant 
 after fore- 
 closure. 
 
 Second 
 
 testatum. 
 
 Conveyance of 
 the property. 
 
 BIC. I., PT. II. MORTGAGES. 
 
 writing of the survivors or last survivor of them will be a 
 complete discharge, notwithstanding any notice to the payer of 
 a severance of the joint account. The result is, that it is now 
 unnecessary to declare that the mortgagees are joint tenants in 
 equity, or that the receipt of the survivor is to be a discharge, 
 or even that the advance is made “ out of money belonging to 
 them on a joint account,” if' the mortgage is made to them 
 jointly; though in practice the latter words are usually inserted. 
 
 The mere fact that the mortgage is made jointly does not 
 alter the rights of the mortgagees inter se, so that if the money 
 in fact belonged to them as tenants in common they will, as 
 between themselves, be tenants in common of the money 
 secured (y). 
 
 A mortgagee, who has sold under his power of sale, can sue 
 on the covenant for any deficiency there may be, but if lie does 
 so after foreclosure decree absolute he opens the foreclosure, 
 and gives the mortgagor a further right to redeem (z ) . If 
 after foreclosure decree he sells the property, he cannot recover 
 a deficiency by suing on the covenant ( zz ) . 
 
 Second Testatum. — Conveyance of Mortgaged Property to 
 
 Mortgagee. 
 
 After the covenant for payment of principal and interest 
 follows the second testatum, by which it is expressed that for 
 the consideration aforesaid the mortgagor, as “ beneficial 
 owner,” conveys to the mortgagee the property the subject of 
 the mortgage (describing it), to hold unto and to the use of’ 
 the mortgagee in fee simple, or as may be according to the 
 nature of the property, subject to the proviso for redemption 
 thereinafter contained. With regard to this part of the deed, 
 it is unnecessary to add anything to what has been said of the 
 operative part in the case of a purchase deed. 
 
 ( y ) Re Jackson (1887), 34 27 Bcav. 349. 
 
 Ch. D. 732. {zz) Lockhart v. Hardy (1846), 
 
 (z) Palmer v. Hendrie (1860), 9 Beav. 379. 
 
THE FORM AND CONTENTS OF A MORTGAGE DEED. 
 
 216 
 
 The Proviso for Redemption. 
 
 After the conveyance of the property to the mortgagee 
 follows the proviso for redemption or reconveyance. 
 
 In old mortgages this proviso was to the effect that the con- 
 veyance should he avoided upon the payment of the money 
 secured: but the usual practice of the present day is to pro- 
 vide that upon the mortgage money and interest being paid 
 off the mortgagee will reconvey the premises to the mortgagor 
 or as he shall direct. 
 
 The mortgagee cannot be compelled to allow the property 
 to be redeemed before the day specified in the covenant for 
 repayment has arrived, even though the mortgagor tenders the 
 principal with interest calculated up to that date (a) . On the 
 day named the mortgagor has, and always had, a right to re- 
 deem both at law and in equity; after the day named there 
 was no right to redeem at law, hut in equity the mortgagor 
 has long been permitted to redeem on payment of principal, 
 interest and costs, notwithstanding that the day named has 
 
 This “equity of redemption of the mortgagor is an 
 inseparable incident of a mortgage, and no agreement between 
 the parties in the mortgage deed can deprive the mortgagor of 
 it, or prevent its exercise. Once it is shown that a transfer of 
 property is only by way of security for an advance made to 
 the transferor, no agreement the parties can make can prevent 
 the transferor getting his property hack on repaying the amount 
 advanced with interest and costs. “ Once a mortgage always a 
 mortgage ” (b ) . Nor is the mortgagee allowed to make any 
 stipulation which will prevent a mortgagor who has paid 
 principal, interest and costs from getting back his mortgaged 
 property in the condition in which he parted with it. No clog 
 or fetter may be imposed upon the equity of redemption. 
 Consequently in a mortgage of a public-house to a firm of 
 brewers, a covenant that the mortgagor will not during the 
 
 (а) Brown v. Cole (1845), 14 Wh. & Tud. L. C. Eq. 8th ed. 
 
 Sim. 427. vol. ii. 11; Salt v. The Marquis 
 
 (б) Howard v. Harris (1683), ot Northampton, (1892) A. C. 1. 
 
 Proviso for re- 
 conveyance. 
 
 The equity of 
 redemption. 
 
 Once a mort- 
 gage always 
 a mortgage. 
 
 Equity of 
 redemption 
 cannot be 
 clogged or 
 fettered. 
 
216 
 
 Who can 
 redeem. 
 
 BK. I., PT. II. MORTGAGES. 
 
 continuance of the term, whether or not any principal money 
 or interest is still owing on the security, sell on the mortgaged 
 premises any malt liquors except such as shall have been pur- 
 chased from the mortgagees, is invalid, since otherwise on pay- 
 ment off the mortgagor would not get his property back un- 
 fettered (c). And it has been held that a condition in a mort- 
 gage of shares in a company, that the mortgagor shall endeavour 
 to secure that the mortgagee shall always thereafter be em- 
 ployed as broker by the company is void for the like reason (d). 
 On the other hand, a mortgagee may stipulate for a collateral 
 advantage at the time, and as a term of the advance, provided 
 that the equity of redemption is not thereby fettered and the 
 bargain is fair and reasonable. So that there is no objection 
 to a provision that the mortgagor will during the continuance 
 of the security buy from the mortgagee only all beers and stout 
 or any other description of malt liquors vended or consumed 
 on or off the mortgaged premises (e); nor to a provision such 
 as is often to be found for continuing the loan for a specified 
 time, namely, that the mortgagor shall not be at liberty to 
 pay off the money before the expiration of a reasonable period 
 (say five years), the mortgagee being at the same time pro- 
 hibited from calling in the money during the same period if 
 meanwhile the interest is punctually paid, for this is a fair 
 bargain between the parties, and does not prevent the mort- 
 gagor getting the property back in its original form when he 
 does redeem (/) . 
 
 The right to redeem belongs not only to the mortgagor and 
 the persons to whom it is expressly reserved by the provisions 
 
 (c) Noakes & Co. v. Rice, (1902) 
 A. C. 24; and Samuel v. Jarrah 
 Timber and Wood Paving Corpo- 
 ration, (1904) A. C. 323. 
 
 (d) Bradley v. Carritt. A fur- 
 ther illustration of the rule is to 
 be found in Browne v. Ryan, 
 (1901) 2 I. R. 653. 
 
 (e) Biggs v. Iloddinott, (1898) 
 2 Ch. 307. Compare Santley v. 
 Wilde, (1899) 2 Ch. 474, which, 
 however, was disapproved by Lords 
 
 Macnaghten and Davey in Noakes 
 & Co. v. Rice, (1902) A. O. at pp. 
 31, 34, and again in Bradley v. 
 Carritt, (1903) A. C. at pp. 255, 
 267. 
 
 (/) Teevan v. Smith (1882), 20 
 Ch. D. at p. 729; Biggs v. Hoddi- 
 nott, supra; and compare Morgan 
 v. Jeffreys, (1910) 1 Ch. 620; and 
 Be Beers v. British S. A. Co., 
 (1912) A. C. 52. 
 
THE FORM AND CONTENTS OF A MORTGAGE DEED. 
 
 217 
 
 of the mortgage deed, but also to all persons claiming under 
 the mortgagor, and all persons having any interest in the equity 
 of redemption (g ) . This includes the mortgagor’s heir, and 
 where Part I. of the Land Transfer Act, 1897, applies, his 
 personal representatives; a purchaser and a mortgagee of the 
 equity of redemption (h); a trustee in bankruptcy, and a judg- 
 ment creditor of the mortgagor; sureties for the payment of 
 the mortgage debt; and even a pi ere lessee of the premises, 
 whose lease, being made by the mortgagor after the date of 
 the mortgage deed, and without any power to make it, is not 
 binding on the mortgagee ( i ) . If the equity of redemption is 
 settled, the right to redeem belongs to the tenant for life in 
 preference to those entitled in remainder (Ar), who can only 
 redeem with his consent, but a tenant for life who has redeemed 
 cannot compel those in remainder to redeem him. 
 
 Unless the principal money is repaid at the time lixed in 
 the mortgage, before exercising his right to redeem, the mort- 
 gagor must either give six months’ notice to the mortgagee or 
 pay him six months’ interest in lieu of notice (7); unless, in- 
 deed, the mortgagee has gone into possession (m), or has com- 
 menced foreclosure proceedings or taken other steps to recover 
 his money (w). But if six months’ interest is tendered in lieu 
 of notice, the mortgagee is bound to accept it (o) . Where a 
 notice has been given requiring repayment of the mortgage 
 money, the mortgagor may at any time, whether on or after the 
 expiration of the notice, tender the money with interest to the 
 date of tender. If the time named in the notice has expired, 
 the mortgagor need not give any further notice, or pay interest 
 in lieu of notice (p) . 
 
 Notice of 
 intention to 
 redeem. 
 
 ( g ) See generally Coote, Law 
 of Mortgages, 7tli ed. vol. i. 712 
 et seq. 
 
 ( h ) See Pearce v. Morris (1869), 
 L. R. 5 Ch. App. 227. 
 
 ( i ) Tarn v. Turner (1888), 89 
 
 Ch. D. 456. 
 
 (k) Ravald v. Russell (1830), 
 Younge, at p. 21; Prout v. Cock, 
 (1896) 1 Ch. 808. 
 
 (l) Browne v. Lockhart (1840), 
 
 10 Sim. 420; Smith v. Smith, 
 (1891) 3 Ch. 550. 
 
 ( m ) Bovill v. Endle, (1896) 1 
 Ch. 648. 
 
 ( n ) Prescott v. Phipps (1883), 
 23 Ch. D. 372. 
 
 (o) Johnson v. Evans (1889), 61 
 L. T. 18. 
 
 (p) Edmondson v. Copland, 
 
 (1911) 2 Ch. 301. 
 
218 
 
 On redemp- 
 tion increment 
 value duty 
 and reversion 
 duty payable 
 by mortgagee 
 must be 
 repaid. 
 
 The right to 
 redeem may 
 be lost — 
 
 (1) by fraudu- 
 lent conceal- 
 ment ; 
 
 (2) by lapse 
 of time ; 
 
 (3) by fore- 
 closure 
 decree ; 
 
 BK. I., PT. II. MORTGAGES. 
 
 If the mortgagee has incurred any liability to pay increment, 
 value duty or reversion duty in respect of the mortgaged pro- 
 perty, the mortgagor on redeeming must pay the amount 
 together with any costs or expenses properly incurred by the 
 mortgagee in respect of the payment of the duty (q ) . 
 
 The mortgagor may lose his right to redeem. First, by the 
 4 & 5 Will. & Mary, c. 16, it is enacted, that when a person, 
 having once mortgaged, mortgages again, with intention to 
 defraud, without disclosing the first mortgage to the second 
 mortgagee, he will have no right to relief or equity of re- 
 demption as against the second mortgagee, who will be able to 
 hold the land free from the equity as fully as if he had pur- 
 chased the land. But this statute being a penal one is construed 
 very strictly, and it has been held that an equitable mortgage 
 by deposit of title deeds, and a further charge without a proviso 
 for redemption, are not second mortgages within the meaning 
 of the act, and as the act affords no active enforceable remedy, 
 it appears to be of little effect (r) . 
 
 Secondly, by the Ileal Property Limitation Act, 1874, s. 7, 
 an action to redeem must be brought within twelve years after 
 the time when the mortgagee has obtained possession or receipt 
 of the land, or the rents and profits thereof, unless some acknow- 
 ledgment in writing of his right to redeem has been given to 
 him in the meantime by the mortgagee, "when the action must be 
 brought within twelve years after the date of such acknowledg- 
 ment, and no additional time is allowed for disability ( s ) . 
 
 Thirdly, the mortgagee may obtain a foreclosure decree at 
 any time after tbe day named for payment in the mortgage 
 deed. By such a decree an account is directed to be taken of 
 what is due under the mortgage, and a time named at the end 
 of which, if the money found to be due is not repaid, the 
 mortgagor will be foreclosed from his equity of redemption. 
 The time fixed is generally six months after the date of the 
 master’s certificate (but it may be enlarged in certain cases), 
 
 ( q ) Finance (1909-10) Act, (s) See Foster v. Patterson 
 1910, s. 39 (4). (1881), 17 Ch. D. 132; Kinsman 
 
 (r) Kennard v. Futvoye (1860), v. Bouse (1881), 50 L. J. Ch. 486. 
 2 Gift. 81. 
 
THE FORM AND CONTENTS OF A MORTGAGE DEED. 
 
 219 
 
 and if at the end of the time so limited the money is not paid 
 off, then the decree is made absolute, and the result is that the 
 mortgagee becomes absolute owner of the mortgaged property 
 in equity as well as at law. This right of foreclosure is inci- 
 dent to a mere equitable mortgage by 'deposit, with or without 
 memorandum in writing (f), and in this case the judgment 
 orders the mortgagor to convey the legal estate (u), but not to 
 a pledge of personal chattels, e.g., a deposit of bonds not trans- 
 ferred, the remedy in this case being by sale (x). It is, how- 
 ever, available in case of a security on shares with power of sale 
 under which the shares are transferred to the lenders (y ) . 
 
 Finally, the mortgagee may sell under his power of sale, in 
 which event the mortgagor’s right to redeem will be lost, though 
 he will be entitled to any surplus left after the mortgagee has 
 paid himself principal, interest and costs (z). 
 
 The court may now order a sale in lieu of a foreclosure under 
 the provisions of s. 25 of the Conveyancing Act, 1881. 
 
 The mortgagor’s equity of redemption is further subject to 
 the mortgagee’s right to consolidate his securities. This is 
 the right of a mortgagee, who has several mortgages on dif- 
 ferent properties from the same mortgagor, to refuse to permit 
 the redemption of one of the mortgages without being' paid 
 what is due to him in respect of the others; in other words, 
 it is a right to insist on the several properties being, as it were, 
 lumped together and treated as one security for the total of 
 the various amounts advanced upon each one of the securi- 
 ties (a ) . 
 
 The right is subject to several limitations. Thus, in 
 Jennings v. Jordan (5), where one of the mortgages, which it 
 was sought to consolidate, was not created till after the mort- 
 gagor had sold the equity of redemption of the other to the 
 
 (4) by sale by 
 mortgagee. 
 
 Court can 
 order a sale 
 in lieu of 
 foreclosure. 
 
 44 & 45 Viet, 
 c. 41, s. 25. 
 Doctrine of 
 consolidation. 
 
 Limits of the 
 doctrine. 
 Jennings v. 
 Jordan. 
 
 O Backhouse v. Charlton 
 (1878), 8 Ch. D. 444; Oldham v. 
 Stringer (1885), 51 L. T. 895. 
 
 ( u ) James v. James (1873), 16 
 Equity, 153. 
 
 (as) Carter v. Wake (1877), 4 
 Ch. D. 606; Fraser v. By as 
 (1895), 13 R. 452. 
 
 (y) General Credit and Discount 
 Co. v. Glegg (1883), 22 Ch. D. 
 549. 
 
 (z) See post, p. 228. 
 
 (а) Vint v. Padgett (1858), 1 
 Giff. 448; Pledge v. White, (1896) 
 A. C. 187. 
 
 (б) (1881), 6 App. Cas. 698. 
 
220 
 
 BK. I., PT. II. MORTGAGES. 
 
 Harter v. 
 Colman. 
 
 Cummins v. 
 Fletcher. 
 
 Sharp v. 
 Rickards. 
 
 44 & 45 Viet, 
 c. 41, s. 17. 
 
 Why consoli- 
 dation is still 
 a risk. 
 
 person claiming to redeem, it was held that the latter could 
 redeem the mortgage on the property assigned to him without 
 also redeeming that created subsequently to his assignment. 
 Again, in Harter v. Colman (<?), it was decided that mortgages 
 cannot he consolidated as against an intervening incumbrancer 
 of one of the estates, unless they were vested in the same person 
 at the time when the intervening incumbrancer became such. 
 Consequently, if A. mortgages Blackacre to B. for 1,000L, 
 and subsequently he mortgages Whiteacre to B. for 1,000L, 
 and then A. makes a second mortgage (or sale) of the equity of 
 redemption in Blackacre to C.,and subsequently A. mortgages 
 Greenacre to B. for 1,000L, if C. wishes to redeem Blackacre, 
 B. can compel him to redeem Whiteacre as well, for the mort- 
 gage of that estate was in existence when C . acquired the right 
 to redeem Blackacre, and he took subject to all subsisting 
 equities; but B. could not in such a ease compel C. (though 
 he might have compelled A.) to redeem also Greenacre, because 
 Greenacre was not in mortgage to B. when C. acquired the 
 equity of redemption in Blackacre. 
 
 Further, a mortgagee cannot consolidate securities unless de- 
 fault in payment of the money secured has been made in the 
 case of all of the mortgages sought to be consolidated (d), 
 nor unless all the mortgages sought to be consolidated were 
 created by the same mortgagor (e). 
 
 It is now, moreover, provided by s. 17 of the Conveyancing 
 Act, 1881, that a mortgagor (which includes any person en- 
 titled to redeem, and therefore a second mortgagee) may, when 
 seeking to redeem any mortgage, do so without paying any 
 money due under any separate mortgage made by him or by 
 any person through whom he claims, on property other than 
 that comprised in the mortgage which he seeks to redeem. But 
 this section only applies (1) where the mortgages ,or one of 
 them are or is made after the commencement of the act; and 
 
 (c) (1882), 19 Ch. D. 630; fol- 
 lowed by 0. A. in M inter v. Carr, 
 (1894) 3 Oh. 498. 
 
 (d) Cummins v . Fletcher (1879), 
 14 Ch. D. 689; see also Cheswortli 
 v. Hunt (1880), 5 C. P. I). 266; 
 
 Re Raggett, Ex parte Williams 
 (1880), 16 Oh. D. 117; Riley v. 
 Hall (1898), 79 L. T. 244. 
 
 (e) Sharp v. Richards, (1909) 1 
 Ch. 109. 
 
THE FORM AND CONTENTS OF A MORTGAGE DEED. 
 
 221 
 
 (2) if and so far as a contrary intention is not expressed in the 
 mortgage deeds or one of them; and it is not uncommon to 
 exclude the operation of the section (/). If s. 17 of the Con- 
 veyancing Act has been excluded, the mortgagee can consoli- 
 date, though he has given the mortgagor notice under s. 20 of 
 the act to pay off one of the mortgages in order to acquire a, 
 power of sale, and the mortgagor is prepared to pay and tenders 
 the money (g). 
 
 Where a mortgagor stipulated in an equitable mortgage to 
 execute a legal mortgage in such form as the mortgagee might 
 require, it was held that the insertion of a clause excluding 
 s. 17 could not be insisted upon (A). 
 
 Formerly the mortgagor could insist only on having the Mortgagee 
 property reconveyed to him. He could not require the mort- pelted* to° m 
 gagee to transfer the mortgage to some third person, even 4ra “ s ^ r of 
 though he found such a person willing to pay him off. But recoil veying. 
 now, by s. 15 of the Conveyancing Act, 1881, it is provided 44 & 45 Viet, 
 that the mortgagor may require the mortgagee instead of re- ' ’ “ 
 
 conveying, and on the terms on which he would be bound to 
 reconvey, to assign the mortgage debt, and convey the mort- 
 gaged property to any third person as the mortgagor directs, 
 and the mortgagee is bound to assign and convey accordingly. 
 
 But the section (which is retrospective in its operation) does 
 not apply if the mortgagee is or has been in possession. By 45 ™ 46 Yo Ct * 
 s. 12 of the Conveyancing Act, 1882, the right of the mort- 
 gagor under s. 15 of the act of 1881 to require an assignment 
 instead of a reconveyance belongs to and is capable of being 
 enforced by each incumbrancer or by the mortgagor, notwith- 
 standing any intermediate incumbrance; but a requisition of 
 an incumbrancer is to prevail over the requisition of the mort- 
 gagor, and as between incumbrancers a requisition of a prior 
 incumbrancer is to prevail over the requisition of a subse- 
 quent incumbrancer. 
 
 (/) It has been held that it 
 cannot be excluded by a solicitor 
 taking a mortgage from his client 
 unless he explains to the latter the 
 effect of the exclusion: Climpson 
 
 v. Coles (1889), 23 Q. B. D. 465, 
 at pp. 467, 468. 
 
 ( g ) Griffith v. Pound (1889), 45 
 
 Ch. D. 553. 
 
 ( [h ) Farmer v. Pitt, (1902) 1 
 Ch. 954. 
 
222 
 
 Usual 
 
 covenants. 
 
 Covenants 
 for title. 
 
 44 & 45 Viet, 
 c. 41, s. 7. 
 
 Covenants to 
 repair and 
 to insure. 
 
 UK. I., PT. IL MORTGAGES. 
 
 Covenants by Mortgagor. 
 
 After the proviso for redemption follow the covenants by the 
 mortgagor if there be any. The covenants most usually found 
 are (1) for title; (2) to insure; (3) to keep in repair. 
 
 Covenants for title are not now expressly inserted in the deed, 
 for, by s. 7 of the Conveyancing Act, 1881, as in a purchase 
 deed, when the mortgagor conveys, and is expressed to convey, 
 “ as beneficial owner,” there are implied the four covenants 
 usually entered into by a mortgagor, viz., for right to convey, 
 for quiet enjoyment, for freedom from incumbrances and for 
 further assurance, at the cost of the mortgagor so long as any 
 right of redemption exists, and afterwards at the cost of the 
 party requiring the further assurance; these are absolute cove- 
 nants and not qualified as they are in the case of a purchase 
 deed . If the mortgage is of leasehold property, a further cove- 
 nant is implied similar to that implied in the case of a sale of 
 leaseholds — i.e., that the lease is a valid and subsisting one, 
 and that the rent and the lessee’s covenants and conditions con- 
 tained therein have been paid, observed, and performed; and 
 in addition a covenant by the mortgagor to pay the rent and 
 observe the lessee’s covenants, conditions and agreements, so 
 long as. any money remains owing on the security of the mort- 
 gage, and to indemnify the mortgagee and those deriving title 
 under him in respect thereof. 
 
 In mortgages of buildings a covenant to repair is generally 
 required to be inserted, and so is a covenant to insure notwith- 
 standing the power of insurance given to the mortgagee hv the 
 Conveyancing Act, 1881 ( i ). Where the mortgagor has in- 
 sured and the premises are destroyed by fire, the mortgagee can 
 require the insurance company to lay out the insurance money 
 in re-building the premises, since he is a person interested 
 within the meaning of s. 83 of the Metropolitan Building 
 Act, 1774 (k). 
 
 ( i ) Seo post, p. 229. decided that the act applies to the 
 
 (&) Sinnott v. Bowden (1912), whole of England. See ante, 
 
 28 T. L. R. 594. This ease also p. 84. 
 
THE FORM AND CONTENTS OF A MORTGAGE DEED. 
 
 223 
 
 Powers of Mortgagee. 
 
 After the covenants come or came powers to the mortgagee— 
 To sell the property; to insure; to appoint a receiver; to cut 
 and sell timber. None of these need now he expressly inserted 
 since they are conferred by s. 19 of the Conveyancing Act, 
 where — (1) the mortgage is made by deed ; (2) the provisions 
 of the act are not, as they may he, excluded or varied by tho 
 terms of the mortgage; and (3) the deed is executed after the 
 31st December, 1881. 
 
 The Power of Sale. 
 
 The power of sale is one of the most important remedies of 
 the mortgagee. Before the passing of Lord Cranworth’s Act, 
 this power had always to be expressly reserved, except perhaps 
 in mortgages of' chattels (7), but by that act such a power wais 
 made incident, under certain circumstances, to every mortgage 
 executed after the 28th August, 1860. This provision was 
 repealed and replaced by s. 19 of the Conveyancing Act, 1881, 
 above mentioned. 
 
 Under the latter act a mortgagee has power, when the mort- 
 gage money has become due , to sell, or concur with any other 
 person in selling, the mortgaged property or any part thereof', 
 either subject to prior charges or not, and either together or in 
 lots, by public auction or private contract, subject to such con- 
 ditions, respecting title, or evidence of title, or other matter, as 
 the mortgagee thinks lit, with power to vary any contract for 
 sale.^ and to buy in at an auction, or to rescind any contract, 
 and to resell without being answerable for any loss occasioned 
 thereby (m). 
 
 It would appear that a mortgagee, whose mortgage was 
 executed before 1912, cannot sell the land and reserve the 
 minerals, or vice versa , without first obtaining the leave of the 
 
 Powers of the 
 mortgagee. 
 
 Statutory 
 power of sale. 
 
 23 & 24 Viet, 
 c. 145. 
 
 44 & 45 Viet, 
 c. 41, s. 19. 
 
 When it 
 
 arises. 
 
 Whether 
 mines can be 
 reserved. 
 
 (7) Be Morritt (1886), 18 Q. B. D. 222. 
 (m) s. 19 (1). 
 
224 
 
 Fixtures. 
 
 BK. I., PT. II. MORTGAGES. 
 
 court under the provisions of the Trustee Acts, 1893 (s. 44) 
 and 1894 (s. 3); but it seems clear that if he sells part of the 
 security he can create easements over it for the benefit of the 
 reserved security, and can subject the reserved security to ease- 
 ments for the benefit of the part sold(wi). And in cases of 
 mortgages made since 1911, a mortgagee may now, by the 
 provisions of the Conveyancing Act, 1911 (o), without making 
 any such application as mentioned, under his statutory power 
 of sale, sell the mortgaged property or any part thereof, or any 
 mines and minerals apart from the surface — (a) with or without 
 a grant or reservation of rights of way or water, easements, 
 rights and privileges for or in connection with building or 
 other purposes in relation to the property remaining on mort- 
 gage or any part thereof, or to any property sold; (b) with or 
 without an exception or reservation of all or any of the mines 
 and minerals in or under the mortgaged property, and with 
 or without a grant or reservation of powers of working, way- 
 leaves, or rights of way, rights of water and drainage, and other 
 powers, easements, rights and privileges for or connected with 
 mining purposes, or relative to the property remaining unsold 
 or any part thereof, or to any property sold; (c) with or with- 
 out covenants by the purchaser to expend money on the land 
 sold. A mortgagee may be able to sell trade fixtures set up by 
 a tenant of the mortgagor (p), and it is particularly enacted 
 by the act of 1911, with regard to mortgages made since that 
 year, that a mortgagee selling under his statutory power may 
 impose or reserve or make binding, so far as the law permits 
 by covenant, condition, or otherwise, on the unsold part of the 
 mortgaged property or any part thereof, or on the purchaser 
 and any property sold, any restriction or reservation with 
 respect to buildings on or other user of land, or -with 
 respect to mines or minerals, or for the purpose of the more 
 beneficial working thereof, or with respect to any other 
 thing (o). 
 
 (n) See Farrer, Conditions of 
 Sale, 14; Born v. Turner , (1900) 
 2 Cli. 211. 
 
 (o) 1 & 2 Geo. 5, c. 37, s. 4. 
 
 (p) See Sawders v. Davis (1885), 
 
 15 Q. B. D. 218; Gough v. Wood 
 & Co., (1894) 1 Q. B. 713; 
 Ilobson v. Gorringe, (1897) 1 Ch. 
 182; and Reynolds v. Ashby and 
 Son, (1904) A. C. 466. 
 
THE FORM AND CONTENTS OF A MORTGAGE DEED. 
 
 225 
 
 Although the mortgagee’s right to sell arises directly the 
 mortgage money has become due, yet by s. 20 he cannot 
 exercise it unless one of the three following events has taken 
 place: — 
 
 (i) Notice requiring payment of the mortgage money has 
 
 been served on the mortgagor, or one of several mort- 
 gagors, and default has been made in payment of the 
 mortgage money or of part thereof for three months 
 after such service; or 
 
 (ii) Some interest is in arrear and unpaid for two months 
 
 after becoming due; or 
 
 (iii) There has been a breach of some provision contained 
 
 in the mortgage or in the act (g) on the part of the 
 mortgagor or of some person concurring in making 
 the mortgage other than a covenant for payment of 
 the mortgage money or interest. 
 
 It was thought that the notice given under this provision 
 ought to call upon the mortgagor to repay the money at once, 
 for if it called upon him to repay the money at the expiration 
 of three months, default would only begin upon the expira- 
 tion of the three months, and the right to sell would be post- 
 poned until six months had elapsed after the service of the 
 notice. But it has been held that the power can be exercised 
 at the end of three months after the service of the notice, even 
 though the notice only requires payment at the expiration of 
 three months from the date of the notice (gg). 
 
 It will be seen that the section requires the notice to be 
 served on “the mortgagor.” But by s. 2 of the act “ mort- 
 gagor ” includes any person from time to time deriving title 
 under the original mortgagor or entitled to redeem a mortgage 
 according to his estate, interest or right in the mortgaged pro- 
 perty. This leaves it doubtful whether, when there is a sub- 
 sequent incumbrancer, it is necessary to give notice to him as 
 well as or in substitution for the mortgagor; it is therefore 
 
 ( q ) See Public Trustee v. Law- the form and mode of service of 
 rence, (1912) 1 Ch. 789. the notice, s. 67 of the Conveyanc- 
 
 {qq) Barker v. Illingworth, ing Act, 1881. 
 
 (1908) 2 Ch. 20. See further as to 
 
 When power 
 of sale exer- 
 cisable. 
 
 Form of 
 notice. 
 
 To whom 
 notice to pay 
 should be 
 given. 
 
 G. — C. 
 
 Q 
 
226 
 
 The interest 
 which a mort- 
 gagee can 
 convey under 
 the power. 
 
 The purchaser 
 under the 
 power is 
 protected. 
 
 How the 
 proceeds are 
 to be applied. 
 
 BK. I., PT. II. MORTGAGES. 
 
 better in practice to give notice to all subsequent incumbrancers 
 of whose mortgages the mortgagee requiring repayment has 
 notice (r). Notice once given cannot be withdrawn except by 
 the consent of the mortgagor (s). 
 
 By s. 21 (1), a mortgagee, exercising the power of sale, has 
 power, by deed, to convey the property “ for such estate and 1 
 interest therein as is the subject of the mortgage, freed from all 
 estates, interests, and rights to which the mortgage has priority, 
 but subject to all estates, interests, and rights which have 
 priority to the mortgage.” But an equitable mortgagee by 
 deposit, even though his memorandum be by deed, so as to 
 enable him to exercise the power of sale under this section, 
 cannot convey the legal estate under the power (£). 
 
 By sub-s. 2, as read with s. 5 of the Conveyancing Act, 1911, 
 a purchaser at a sale made in professed exercise of the power of 
 sale conferred by the act is not, and never has been, either before 
 or on conveyance, concerned to see or inquire whether a case 
 has arisen to authorize the sale, or whether due notice has been 
 given, or whether the power is otherwise properly or regularly 
 exercised ( u ) ; but any person damnified by an unauthorized, 
 improper, or irregular exercise of the power has a remedy in 
 damages against the person exercising the power (x). 
 
 The proceeds of the sale must be held by the mortgagee 
 
 (r) See Hoole v. Smith (1881), 
 17 Ch. D. 431; Tozer v. Buxton 
 (1888), 5 Times L. R. 7. 
 
 (s) Santley v. Wilde, (1899) 1 
 Oh. 747. 
 
 (t) Re Iiodson and Howe's Con- 
 tract (1887), 35 Ch. D. 668. 
 Under the power conferred by 
 Lord Cranworth’s Act an equitable 
 mortgagee could convey the legal 
 estate: Re So 1 omon and Meagher's 
 Contract (1889), 40 Ch. D. 508. 
 
 ( u ) Provided, of course, that he 
 acted in good faith. See Selwyn 
 v. Garfit (1888), 38 Ch. D. 273; 
 Bailey v. Barnes, (1894) 1 Ch. 25; 
 
 Born v. Turner, (1900) 2 Ch. 211. 
 See s. 5 of 1 & 2 Geo. 5, 
 
 c. 37, s. 5, and see Life Interest 
 and Reversionary Securities Cor- 
 poration v. Hand in Hand Insur- 
 ance Co., (1898) 2 Ch. 230, in 
 which it was held that s. 21 (2) 
 of the Conveyancing Act, 1881, did 
 not apply till the conveyance had 
 been obtained. 
 
 (x) Such damages are recover- 
 able in the County Court where 
 the amount claimed is within its 
 jurisdiction: Ames v. Higdon 
 
 (1893), 69 L. T. 292. 
 
THE FORM AND CONTENTS OF A MORTGAGE DEED. 
 
 227 
 
 after discharge of prior incumbrances, to which the sale is not 
 made subject, in trust to be applied — 
 
 First, in payment of all costs of sale, or any attempted sale 
 properly incurred; 
 
 Secondly, in discharge of the mortgage money, interest, and 
 costs, and other money, if any, due under the mortgage; 
 and the residue must be paid to the person entitled to the mort- 
 gaged property, or authorized to give receipts for the proceeds 
 of the sale thereof (y ) . 
 
 The same section (z), as read with s. 5, sub-s. (2), of 1 the 
 Conveyancing Act, 1911, also provides that: — 
 
 (4.) The power of 1 sale may be exercised by any person for 
 the time being entitled to receive and give a discharge for the 
 mortgage money. 
 
 (5.) The power of sale conferred by the act is not to affect 
 the right of' foreclosure. 
 
 (6.) The mortgagee, his executors, administrators, or as- 
 signs, are not to be answerable for any involuntary loss 
 happening in or about the exercise of the power of sale, or 
 of any trust connected therewith, or any power or provision 
 contained in the mortgage deed. 
 
 (7.) At any time after the power of sale has become exer- 
 cisable, the person entitled to exercise the same may recover 
 the title deeds from any person who has them, except a person 
 who has an estate, interest, or right in the mortgaged property 
 entitled to priority over the mortgage. 
 
 The receipt in writing of a mortgagee is a sufficient discharge 
 for any money arising under the power of sale conferred by the 
 act, and the person paying the same is not concerned to inquire 
 whether any money remains due under the mortgage ( a ). 
 
 The statutory power of' sale is, on the whole, fair to both 
 mortgagor and mortgagee, and is generally relied on in prac- 
 tice. 
 
 Sometimes, however, it is varied so as to be exercisable by 
 the mortgagee at any time, independently of 1 notice or interest 
 being in arrear or covenants being broken; but only excep- 
 
 ( y ) Conveyancing Act, 1881, (z) s. 21. 
 
 s. 21, sub-s. (3). (a) s. 22. 
 
 Q 2 
 
 Who may sell. 
 
 The power of 
 sale does not 
 affect fore- 
 closure. 
 
 Mortgagee 
 not liable for 
 involuntary 
 loss. 
 
 Title deeds 
 may be 
 recovered. 
 
 Mortgagee’s 
 receipt to be 
 a good dis- 
 charge. 
 
 Reliabilitv of 
 %/ 
 
 the statutory 
 power of sale. 
 
 Absolute 
 power of sale. 
 
228 
 
 BK. I., PT. II. MORTGAGES. 
 
 Position of 
 mortfragee 
 exercising 
 power of sale. 
 
 Power of sale 
 suspended by 
 foreclosure 
 decree. 
 
 lional circumstances justify the insertion of such a power, and 
 if a solicitor inserts such a power in a mortgage made to him 
 by his client without explaining the effect of the clause to the 
 mortgagor, he will not be able to take advantage of 1 it (b). 
 
 The mortgagee, in exercising a power of sale, whether given 
 him by the mortgage deed or conferred by statute law, is not a 
 trustee, and therefore may sell as and when he likes, and to 
 whom he likes (c) other than himself (d), and is not answerable 
 to the mortgagor for any loss arising from selling subject to 
 depreciatory conditions which may not be necessary (e ) ; he 
 is, however, liable for loss arising from the negligence of 
 himself or of his surveyor or other agent (/), and he is liable as 
 trustee to the mortgagor, or to any second mortgagee, of' whose 
 mortgage he may have notice, in respect of any balance left 
 after payment of all principal and interest and costs due to 
 him ($p), so that he will have to pay interest on such balance for 
 such time as it remains in his hands (k). 
 
 It may be added that the power of’ sale cannot he exercised 
 by the mortgagee after he has obtained a decree nisi in a fore- 
 closure suit, except with the leave of the court, because it pre- 
 judices the rights given to the mortgagor by the direction to 
 re-convey. But the power is suspended only, not extinguished, 
 and a bond fide purchaser without notice may get a good title 
 under the power (i) . 
 
 ( b ) Cockburn v. Edwards 
 (1881), 18 Ch. D. 449; Craddock 
 v. Rogers (1884), 53 L. J. Ch. 938. 
 
 (c) Kennedy v. Be Trafford, 
 (1896) 1 Ch. 762; affirmed by 
 H. L., (1897) A. C. 180; Nutt v. 
 Easton, (1899) 1 Ch. 873. 
 
 ( d ) See Farrar v. Farrars, Ltd. 
 (1888), 40 Ch. D. 395, and cases 
 cited by Lindley, L. J., at p. 409. 
 
 (e) Warner v. Jacob (1882), 20 
 Ch. D. 220; and see Haddington 
 v. Huson, (1911) A. C. 722. 
 
 (/) Tomlin v. Luce (1889), 43 
 Ch. D. 191. 
 
 ( g ) West London Commercial 
 Bank v. Reliance Permanent 
 Building Society (1885), 29 Ch. D. 
 954; Thorne v. Heard, (1895) 
 A. C. 495; Conv. Act, 1881, 
 s. 21 (3). 
 
 ( h ) Eley v. Read (1889), 76 
 L. T. 39. 
 
 (i) Stevens v. Theatres, Limited , 
 (1903) 1 Ch. 857. 
 
THE FORM AND CONTENTS OF A MORTGAGE DEED. 
 
 229 
 
 The Power to Insure. 
 
 The power to effect insurance conferred by the Conveyancing 
 Act, 1881, s. 19 (1) (ii), is a power at any time after the date 
 of the mortgage deed to insure and keep insured against loss or 
 damage by fire any building or any effects or property of an 
 insurable nature, whether affixed to the freehold or not, being 
 or forming part of the mortgaged property, and the premiums 
 paid for any such insurance are a charge on the mortgaged 
 property in addition to the mortgage money, and with the same 
 priority, and with interest at the same rate as the mortgage 
 money. 
 
 But by s. 23, the amount of an insurance effected by a mort- 
 gagee under this power must not exceed the amount specified 
 in the mortgage deed, or if no amount is therein specified, 
 two third parts of the amount that would be required in case 
 of total destruction to restore the property insured; and an 
 insurance is not to be effected under this power — 
 
 (1) Where there is a declaration in the mortgage deed that 
 
 no insurance is required. 
 
 (2) Where an insurance is kept up by or on behalf of the 
 
 mortgagor in accordance with the mortgage deed. 
 
 (3) Where the mortgage deed contains no stipulation re- 
 
 specting insurance, and an insurance is kept up by 
 or on behalf of the mortgagor to the amount in which 
 the mortgagee is by the act authorized to insure. 
 
 The section further provides that the mortgagee may, at his 
 option, require the mortgagor to apply the moneys received 
 under an insurance, effected either under the morto-ao-e deed or 
 the statutory power, in making good the loss or damage in 
 respect of which the money is received, or (without prejudice to 
 any obligation to the contrary imposed by law or by special 
 contract) in or towards discharge of the money due under the 
 mortgage. The words “ obligation imposed by law '’ refer to 
 the Fires Prevention (Metropolis) Act, 1774, s. 83, by which 
 the insurance office must, at the request of any person interested 
 in the building burnt down, or on any suspicion of fraud, cause 
 the insurance money to be expended in rebuilding or repairing, 
 unless the party insured, within sixty days after the adjust- 
 
 Statutory 
 pcrwvr to 
 insure. 
 
 Limitations 
 on the statu 
 tory power. 
 
 Application 
 of insurance 
 moneys. 
 
 14 Geo. 3, 
 c. 78. 
 
230 
 
 BK. I., PT. II. — MORTGAGES. 
 
 Objections 
 to relying on 
 statutory- 
 power of 
 insurance. 
 
 Existing 
 
 policy. 
 
 ment of the claim, gives security that the money shall be so 
 expended, or the money is at the time disposed of amongst 
 all parties to the satisfaction of the insurance office (j ) . 
 
 Some conveyancers do not consider it advisable to rely on the 
 statutory power to insure, the objections to it being that — 
 1) The mortgagor may have insured to the amount in which 
 the mortgagee is empowered to insure by the act, and if the 
 mortgagee then insures he will not be able to charge the pre- 
 miums on the property; on the other hand, if the mortgagee 
 does not insure, and it turns out that the mortgagor has not 
 insured, the mortgagee would lose his security in case of fire. 
 (2) The mortgagee has no personal claim against the mort- 
 gagor for premiums paid by him (the mortgagee) in case of the 
 mortgagor’s default. All he can do is to add them to his prin- 
 cipal debt. (3) The act limits the amount of insurance. The 
 result is, that if it is intended that the mortgagor should effect 
 the insurance, an express power should be given to the mort- 
 gagee to insure in default, but if the mortgagee intends to 
 insure himself he may rely on the statutory power, extending 
 it, however, by a clause mentioning the amount in which he 
 may insure and empowering him to insure notwithstanding any 
 insurance by the mortgagor. 
 
 Where at the time of the mortgage being executed there 
 is on foot an insurance policy on the property mortgaged, 
 the policy, if in the hands of the borrower, should be handed 
 over to the mortgagee with an indorsement bv the insurance 
 office on it, that the mortgagee is jointly interested with the 
 borrower . 
 
 The Power to appoint a Receiver. 
 
 When power 
 to appoint 
 receiver 
 becomes 
 exercisable. 
 
 The power to appoint a receiver conferred by the act, though 
 arising when the mortgage money becomes due (Jc), is not to 
 be exercised until the mortgagee has become entitled to exercise 
 the statutory power of sale(£). 
 
 The following is a summary of the provisions of s. 24 
 
 (j) See Sinnott v. Bowden (k) s. 19. 
 
 (1912), 28 T. L. R. 594, ante, (l) s. 24. See ante, p. 225. 
 
 Powers, &c. 
 of receiver. 
 
THE FORM AND CONTENTS OF A MORTGAGE DEED. 
 
 231 
 
 relating to the appointment, powers, remuneration, and duties 
 of the receiver: — 
 
 (1) The appointment must he in writing under the hand of 
 
 the mortgagee, who may appoint such person as he 
 thinks fit to be the receiver. 
 
 (2) The receiver is to be deemed the agent of the mortgagor, 
 
 who is to be solely responsible for the receiver’s acts 
 and defaults, unless the mortgage deed otherwise pro- 
 vides (m). 
 
 (3) The receiver is empowered to recover the income of the 
 
 property by action, distress or otherwise, in the name 
 either of the mortgagor or of the mortgagee to the 
 full extent of the estate or interest which the mort- 
 gagor could dispose of, and to give effectual re- 
 ceipts (n). 
 
 (4) A person paying money to the receiver is not to be con- 
 
 cerned to inquire whether any case has happened to 
 authorize him to act. 
 
 (5) The receiver may be removed and a new one appointed 
 
 by writing under the hand of the mortgagee. 
 
 (6) The receiver may retain, out of any money received by 
 
 him, his commission, at such rate not exceeding 5 per 
 cent, on the gross amount of all money received as 
 is specified in his appointment, and if no rate is 
 specified, then at the rate of 51. per cent, on that 
 gross amount, or at such higher rate as the court 
 allows . 
 
 (7) The receiver must, if so directed in writing by the mort- 
 
 gagee, insure against loss by fire, out of the money 
 received by him, any property comprised in the 
 mortgage. 
 
 (8) The receiver is to apply money received by him as 
 
 follows: — 
 
 (i) In discharging rents, taxes, rates and other 
 outgoings; 
 
 (ii) In keeping down annual sums or other pay- 
 
 (m) See Re Hale , Lilley v. ( n ) See W oolston v. Ross, (1900) 
 
 Foad (1898), 79 L. T. 468. 1 Oh. 789. 
 
 Remunera- 
 tion of 
 receiver. 
 
 How money 
 received to be 
 applied. 
 
2o2 
 
 BK. I., PT. II. — MORTGAGES. 
 
 ments and interest on all principal sums having 
 priority to the mortgage; 
 
 (iii) In payment of his commission and of the pre- 
 miums on lire, life, or other insurances payable under 
 the mortgage deed or the act, and the cost of neces- 
 sary or proper repairs directed in writing by the 
 mortgagee (a). 
 
 (iv) In payment of the interest accruing due in 
 respect of any principal money due under the mort- 
 gage (p); 
 
 and must pay the residue to the person who, but for the pos- 
 session of the receiver, would have been entitled to receive the 
 income of the mortgaged property, or who is otherwise entitled 
 to that property. 
 
 Advantages 
 of appointing 
 a receiver. 
 
 Receiver 
 sometimes 
 appointed at 
 time of 
 mortgage. 
 
 When a mortgagee wishes to obtain the rents and profits of 
 the mortgaged property, it is usual and more advantageous to 
 him to appoint a receiver than to go into possession himself; 
 since, if' he takes possession, he is strictly accountable to the 
 mortgagor; whereas if a mortgagee appoints a receiver, as 
 shown above, the receiver is the agent of the mortgagor, who 
 will be accountable for his acts. The mortgagee must make up 
 his mind which course he will adopt, since a mortgagee who 
 has himself been in possession cannot, it seems, give up pos- 
 session and appoint a receiver under the section (q ) ; although 
 the court can appoint a receiver at the instance of a mortgagee 
 in possession (r) . Where a receiver has been appointed the 
 mortgagor must obtain his authority to distrain (s). 
 
 Sometimes a receiver is appointed by an instrument col- 
 lateral to the mortgage deed, and executed at the same time. 
 In this case he is appointed by mortgagor and mortgagee to- 
 gether, and the instrument appointing him provides that the 
 powers, &c. conferred by the Conveyancing Acts shall apply, 
 
 (o) See White v. Metcalf , 
 (1903) 2 Ch. 567. 
 
 (p) This includes the arrears 
 due at the time of the appointment 
 of the receiver: National Bank v. 
 Kenney, (1898) 1 Ir. R. 197. 
 
 ( q ) Prytherch v. Williams 
 
 (1889), 42 Oh. D. 590, at p. 600. 
 
 (r) The County of Gloucester 
 Bank v. Rudry Merthyr Steam, 
 &c. Co., (1895) 1 Ch. 629. 
 
 (s) Woolston v. Ross, (1900) 1 
 Ch. 788. 
 
THE FORM AND CONTENTS OF A MORTGAGE DEED. 
 
 233 
 
 but that he shall not enter on his duties unless and until interest 
 remains unpaid for a certain number of* days. A clear 
 advantage in this method of appointment is that the mort- 
 gagor concurs in the person selected to act as receiver (£). 
 
 The Power to Cut and Sell Timber. 
 
 The power given by s. 19 (1) (iv) of the act is a power When the 
 ivhile the mortgagee is in possession to cut and sell timber cu 
 
 and other trees ripe for cutting, and not planted or left standing exercisable, 
 for shelter or ornament, or to contract for such cutting and 
 sale to be completed within any time not exceeding twelve, 
 months from the making of the contract. 
 
 It may be here mentioned that while the mortgagor is allowed 
 to remain in possession he will not be restrained by the court 
 from cutting timber, unless the security without the timber is a 
 scanty one ( u ) . 
 
 All the statutory powers may be varied or extended by the All four 
 mortgage deed, and as so varied or extended will, as far as powerTmay 
 may be, operate in the like manner, and with all the likei be varied or 
 incidents, effects and consequences, as if such variations or 
 extensions were contained in the act (x ) . And the act applies 
 only if and as far as a contrary intention is not expressed in 
 the mortgage deed, and has effect subject to its terms and 
 provisions (?/). 
 
 The Power to grant Leases. 
 
 In a mortgage of land after the mortgagee’s powers come Old law as 
 the provisions relating to leases of the mortgaged property. to leasing— 
 Before the passing of the Conveyancing Act, 1881, if there 
 was no express provision in the mortgage, the mortgagor not (i) by mort- 
 being the legal owner of 1 the property could not make a lease gagor ’ 
 so as to bind the mortgagee, and if he did make one, the mort- 
 gagee could eject the lessee without notice (z), though the lessee 
 
 ( t ) See further, 1 Prideaux, 
 p. 1009, where a form of such an 
 appointment will be found. 
 
 ( u ) King v. Smith, 2 Hare, 239. 
 (cc) Conveyancing Act, 1881, 
 
 s. 19 (2), and Conveyancing Act. 
 1911, s. 4 (2). 
 
 (y) Conveyancing Act, 1881, 
 s. 19 (3). 
 
 ( z ) Keecli v. Hall (1779), Smith, 
 L. C. 11th ed. vol. i. 511. 
 
BK. I., PT. II. MORTGAGES. 
 
 might, if he liked, redeem him (a). In such a case, how- 
 ever, if the mortgagee accepted rent from the tenant, he recog- 
 nized the right of' the latter to possession, for he oould not 
 treat him as both a tenant and a trespasser at the same time, 
 and apparently a yearly tenancy would be created between 
 them (6). On the other hand, the mortgagee, though he was 
 legally the owner of the property, could not, without an, 
 express power, grant leases which would be binding in equity 
 on the mortgagor; that is to say, the mortgagor could, on 
 redeeming the property, eject the tenant. So that, practi- 
 cally, when property was in mortgage, the only way in which 
 a valid and binding lease could be granted was by the mort- 
 gagor and mortgagee both joining in the lease, or by virtue of 
 an express power of leasing, which was often inserted in mort- 
 gages comprising an extensive property. 
 
 Statutory pro- The Conveyancing Act, 1881, s. 18, as read with the Con- 
 
 visions as to . . . . . 
 
 leasing. veyancing Act, 1911, s. 4, sub-s. (11), now enables either the 
 mortgagor (c) of land while in possession or the mortgagee of 
 land while in possession to make leases of the mortgaged land or 
 any part thereof (d) as in the section described, and to execute 
 and do all assurances and things necessary or proper in that 
 behalf. 
 
 The leases which the section authorizes are: — 
 
 (i) An agricultural or occupation lease for any term not 
 
 exceeding twenty-one years; and 
 
 (ii) A building lease for any term not exceeding ninety- 
 
 nine years. 
 
 The lease must be made to take effect in possession not later 
 than twelve months after its date. 
 
 The best rent must be reserved and no fine taken . 
 
 The lease must contain a covenant by the lessee for payment 
 of rent, and a condition of re-entry on the rent not being paid 
 within a time therein specified, not exceeding thirty days. 
 
 (a) Tarn v. Turner (1888), 39 title under the original mortgagor 
 Ch. D. 456. (Act of 1911, s. 3, sub-s. 10). 
 
 (5) This appears to follow from When in possession he leases as 
 the decision in Birch v. Wright mortgagee. 
 
 (1786), 1 T. R. 378; see at p. 387. (d) See Browne v. Peto, (1900) 
 
 (c) This expression does not in- 2 Q. B. 653. 
 elude an incumbrancer deriving 
 
 
 (ii) by mort- 
 gagee. 
 
THE FORM AND CONTENTS OF A MORTGAGE DEED. 
 
 236 
 
 A counterpart of the lease must be executed by the lessee 
 and delivered to the lessor; of this the execution of the lease 
 by the lessor is, in favour of the lessee and all persons deriving 
 title under him, sufficient evidence. 
 
 Every building lease must be made in consideration of the 
 lessee or some person by whose direction the lease is granted 
 having erected or agreeing to erect within not more than five 
 years from the date of the lease, buildings new or additional, 
 or having improved or repaired buildings or agreeing to do 
 so within that time, and having executed or agreeing to execute 
 within that time an improvement for or in connection with 
 building purposes. 
 
 In a building lease a peppercorn or a nominal or other rent 
 may bo made payable for the first five years or any less part of 
 the term. 
 
 If it is the mortgagor who makes the lease, he must, within 
 one month after making it, deliver to the mortgagee, or, if more 
 than one, to the first mortgagee, a counterpart duly executed 
 by the lessee; but the lessee need not see that this is done, the 
 effect of non-delivery being only to enable the mortgagee to 
 exercise his statutory power of sale (dd). 
 
 The section applies only if and as far as a contrary inten- 
 tion is not expressed by the mortgagor and the mortgagee, 
 either in the mortgage deed, or otherwise in writing; and the 
 section does not prevent the mortgage deed from reserving to 
 or conferring on the mortgagor or the mortgagee or both any 
 further or other powers of leasing. Nor does it enable a mort- 
 gagor or mortgagee to make a lease for any longer term or on 
 any other conditions than such as could have been granted 
 or imposed by the mortgagor with the concurrence of all the 
 incumbrancers if the act had not been passed. 
 
 The section applies to mortgages made after the commence- 
 ment of the act, and also to mortgages made before, if it is 
 agreed that it shall apply in a writing made, after the com- 
 mencement of the act, between the mortgagor and the mort- 
 gagee. 
 
 (■ dd ) See Public Trustee v. ante , p. 225. 
 
 Lawrence, (1912) 1 Cli. 789, and 
 
 Power can be 
 excluded or 
 extended. 
 
 Only autho- 
 rizes such 
 lease as mort- 
 gagor and 
 mortgagee 
 concurring 
 could make. 
 
 How far 
 retrospective. 
 
236 
 
 Lease in a 
 proper case 
 may be verbal. 
 
 Nominal rent 
 in building 
 lease. 
 
 Practice of 
 conveyancers. 
 
 Mortgagee 
 may enforce 
 covenants. 
 
 Who can 
 make leases 
 when receiver 
 appointed. 
 
 BK. I., PT. II. — MORTGAGES. 
 
 It may be added, that the act authorizes the making a mere 
 verbal letting, and also an agreement for a lease, whether in 
 writing or not; but of course it does not affect any enactment 
 which requires a lease to be by deed or in writing. The pro- 
 visions as to delivery of a counterpart and the covenants of the 
 lessee hardly seem applicable to verbal leases or agreements. 
 
 The provision permitting the reservation in a building lease 
 of a mere nominal rent for the first five years may have a very 
 serious effect in the case of a lease by the mortgagor, since it 
 practically deprives the mortgagee of all chance of getting his 
 interest out of the income of the property for the five years . 
 
 Some conveyancers consider that, from the mortgagee’s point 
 of view, the powers conferred on the mortgagor by the section 
 are too wide, and they therefore exclude it, wholly or partly, 
 from applying to the mortgagor, or make the power exercisable 
 only after obtaining the mortgagee’s consent in writing (e). 
 
 Where the mortgagor makes a lease under the Conveyancing 
 Act, the mortgagee, on giving notice to the tenant and going 
 into possession, is entitled to enforce the covenants and con- 
 ditions of the lease just as if he had been a party to it, and his 
 right cannot be affected by a collateral agreement between the 
 lessor and the lessee (/) . 
 
 The question has sometimes arisen who is the proper person 
 to make a lease under the statutorjr power when a receiver has 
 been appointed by the mortgagee under the Conveyancing Act, 
 1881. The Act gives the receiver no power to lease, so that it 
 must be either the mortgagor or the mortgagee who has the 
 power, if anyone has. The general opinion seemed to be that 
 since the act makes the receiver the agent of the mortgagor, 
 the latter was “in possession’’ for the purpose of s. 18 of the 
 act, and was therefore the proper person to make a lease ( g ) . 
 This doubt has now been set at rest by the Conveyancing Act, 
 1911, s. 3, sub-s. (11), whereby it is enacted that in such a 
 
 (e) See Form of Consent, 1 
 Prideaux, 1022. 
 
 (/) Municipal, dx. Building 
 Society v. Smith (1888), 22 
 
 Q. B. D. 70; see also John Bros. 
 
 Abergarw Brewery Co. v. Holmes, 
 (19C0) 1 Ch. 188. 
 
 ( g ) See TIood and Challis, Conv. 
 and S. L. Acts, 7tli ed. 102. 
 
THE FORM AND CONTENTS OF A MORTGAGE DEED. 
 
 237 
 
 case as long as the receiver acts the power shall be exercisable 
 by the mortgagee in like manner as if he were in possession of 
 the land. 
 
 It was held that a mortgagor who, while in possession, had Surrender 
 granted a lease under the statutory power, could not accept a 
 surrender of the lease without the cc 
 since he was not the legal owner 
 always so, since by the Conveyancing Act, 1911, a lease may 1911 > a PP lies * 
 in certain circumstances be surrendered to the mortgagor. 
 
 By s. 3f of 1 this act it is provided that, for the purpose only 
 of enabling a lease to be granted, a mortgagor of land while 
 in possession has, in like manner as if the legal estate were 
 vested in him and as against every incumbrancer, power to 
 accept from time to time a surrender of any lease of the mort- 
 gaged land or any part thereof 1 comprised in the lease, with or 
 without an exception of all or an} r of the mines and minerals 
 therein, or in respect of mines and minerals, or any of them, 
 and, on a surrender of part only of the land or mines and 
 minerals leased, the rent may be apportioned. 
 
 And for the same purpose a mortgagee while in possession 
 has, as against all prior and other incumbrancers, and as against 
 the mortgagor, power from time to time to accept any such 
 surrender as aforesaid. 
 
 On a surrender of part only of the land or mines and minerals 
 leased, the original lease may be varied, and on a surrender 
 and the making of a new lease, the value of the lessee’s interest 
 in the lease surrendered may be taken into account in deter- 
 mining the rent to be reserved, and the nature of the cove- 
 nants. &c. to be inserted in the new lease, but a surrender to 
 a mortgagor cannot be made without the consent of the in- 
 cumbrancers, nor a surrender to a second or subsequent in- 
 cumbrancer without the consent of a prior incumbrancer. To 
 make the surrender valid an authorized lease (i) must bo granted 
 of the whole of the lands or mines and minerals comprised in 
 the surrender, to take effect in possession within a month after 
 
 ( h ) Robbins v. Whyte , (1906) 1 act of 1881, or any agreement 
 
 K. B. 125. made pursuant to that section or 
 
 (i) This expression signifies “A by the mortgage deed.” See 1 & 2 
 lease authorized under s. 18 of the Geo. 5, c. 37, s. 3, sub-s. (1). 
 
 ncurrence or me mortgagee, except wner 
 W; but this is no longer andn^IX 
 
238 
 
 Practice note. 
 
 The object 
 of the attorn 
 ment clause. 
 
 
 BK. I.j PT. II. MORTGAGES. 
 
 the date of the surrender, and the term granted by the new 
 lease must not be less in duration than the unexpired term or 
 interest which would have subsisted if' the lease had not been 
 surrendered; and where the whole of the lands, &c. originally 
 leased has been surrendered the rent under the new lease must 
 not be less than would have been payable under the surren- 
 dered lease; and where the surrender is partial only the aggre- 
 gate rents must not be less than the rent payable under the 
 original lease. The provisions only apply to mortgages made 
 on or after 1st January, 1912, unless they are extended by 
 written agreement made on or after that date between mort- 
 gagor and mortgagee to earlier mortgages, and only so far as 
 a contrary intention is not expressed in the mortgage deed, or 
 otherwise in writing, but the provisions, &c. extend and apply 
 so far as circumstances admit, to any letting, and to an agree- 
 ment, whether in writing or not, for leasing or letting. Where 
 the mortgagee has appointed a receiver, the surrender must be 
 accepted by the mortgagee just as if he were in actual possession 
 of the land. 
 
 If there is a likelihood of the mortgagee appointing a re- 
 ceiver it is useful in a proper case to provide that this statutory 
 power of leasing may be exercised by the receiver as the agent 
 of the mortgagor. 
 
 The Attornment Clause. 
 
 Sometimes, besides the provisions above mentioned, the mort- 
 gage deed contains an attornment clause, by which the mort- 
 gagor expressly constitutes himself' a tenant of the mortgagee 
 of 1 the mortgaged premises at a yearly rent equivalent, as a 
 rule, to the annual amount of interest, the mortgagee being 
 given power to determine the tenancy so created at any time 
 without notice (j ) . 
 
 The advantage of 1 this formerly was that if the mortgagor 
 allowed the interest to fall into arrear, the mortgagee could 
 distrain for it as if he were a landlord distraining for his rent. 
 It was, however, established in the case of' Re Willis, Ex parte 
 
 (?) See form in Key and Elphin- Prideaux, Prec. 20th ed. vol. i. 
 stone, Prec. 9th ed. vol. ii. 67; 782. 
 
THE FORM AND CONTENTS OF A MORTGAGE DEED. 
 
 239 
 
 Kennedy (Jc), that the insertion of such a clause brings the in- 
 strument within the Bills of Sale Acts (7). Now, a bill of sale Effect of Bills 
 
 • i pi • . p .-i a p . i *11 of S^-Ig Act on 
 
 given by way oi security ior money must, by s. 9 oi the JdiIIs the clause. 
 
 of Sale Act, 1882, be in the form given in the schedule to that 
 act. It has been said, it is true, that an attornment clause is 
 not governed by s. 9 of the Bills of Sale Act, 1882, and so 
 need not be in the statutory form(ra) ; but even if this be correct, 
 it is plainly void as a power of distress unless registered in the 
 Bills of Sale Office; and it is not at all likely that the mort- 
 gagor will consent to that. However, it has been decided that 
 the non -registration of the mortgage as a bill of sale will not 
 invalidate it — as was at one time thought — as far as the land is 
 concerned (n ) ; and that, notwithstanding the Bills of Sale 
 Acts, the clause is still valid for the purpose of creating the 
 relation of' landlord and tenant between the mortgagee and 
 mortgagor ( o ). Therefore where the mortgage contains such a 
 clause, even though it is not registered as a bill of sale, if the 
 mortgagee wishes to recover possession, he can sue by specially 
 indorsed writ under Ord. III. r. 6, and obtain speedy judgment 
 under Ord. XIV. r. 1 of the rules of the Supreme Court (p). 
 
 The rent reserved should be nominal only, and there should Power of 
 
 • distress 
 
 be a power reserved to the mortgagee to determine the tenancy invalid, 
 at any time. It seems clear that to give the mortgagee ex- 
 pressly a power of distress for the recovery of arrears of interest 
 wiil.be equally invalid as constituting the document a bill of 
 sale (g). 
 
 It has been held that an attornment may be made to a second Attornment 
 . . .... .to second 
 
 mortgagee (r), even though there is subsisting a previous mortgagee. 
 
 attornment to a first mortgagee ( 5 ). 
 
 (Jc) (1888), 21 Q. B. D. 384. 
 
 (l) Sec Bills of Sale Act, 1878, 
 ss. 4, 6, post, p. 267. 
 
 (m) Per Kay, L. J., delivering 
 the judgment of the Court of 
 Appeal in Green v. Marsh, (1832) 
 2 Q. B. at p. 335. See, however, 
 the criticism of this judgment in 
 Weir on Bills of Sale, 179, 180. 
 
 ( n ) Re Burdett, Ex parte Byrne 
 (1888), 20 Q. B. D. 310. 
 
 ( 0 ) Mumford v. Collier (1890), 
 25 Q. B. D. 279. 
 
 ( p ) Mumford v. Collier (1890), 
 25 Q. B. D. 279; Kempv. Lester, 
 (1896) 2 Q. B. 162. 
 
 ( q ) See the Bills of Sale Act, 
 1878, ss. 4, 6; Pulbrook v. Ashby 
 (1887), 56 L. J. Q. B. 376. 
 
 (r) Morton v. Woods (1869), 
 L. R. 4 Q. B. 293. 
 
 (s) Ex parte Punnett (1880), 16 
 Ch. D. 226. 
 
240 
 
 BK. I., PT. II. MORTGAGES. 
 
 The following is the form of an ordinary mortgage deed of 
 freehold land in a simple case: — 
 
 Deed of Mortgage of Freehold Land. 
 
 This Indenture made the day of 19 between A. 
 
 of [&c.~\ of the one part and B. of [f&c.] and C. of [c 0c.] of the 
 other part Whereas the said A. is seised of the hereditaments 
 intended to be hereby conveyed for an estate in fee simple in pos- 
 session free from incumbrances And whereas the said B. and C. 
 have agreed to lend to the said A. the sum of £ upon having 
 the repayment thereof with interest secured in manner hereinafter 
 expressed Now this Indenture witnesseth that in consideration 
 of the sum of £ paid to A. by B. and C. out of money belong- 
 ing to them on a joint account the receipt whereof the said A. 
 hereby acknowledges the said A. hereby covenants with the said 
 B. and C. to pay to them on the day of the sum of 
 
 £ with interest thereon in the meantime at the rate of 
 
 per centum per annum and also as long after that day as any 
 principal money remains due under this mortgage to pay to the 
 said B. and C. interest thereon at the same rate by equal half- 
 yearly payments on the day of! and the day of 
 
 And this Indenture also witnesseth that for the same 
 consideration the said A. as beneficial owner hereby conveys to 
 the said B. and C. All that \&c\ To hold to and to the use of the 
 said B. and C. in fee simple subject to the proviso for redemp- 
 tion following (namely) that if the said A. shall pay to the said 
 B. and C. on the day of the sum of £ and 
 
 interest thereon at the rate aforesaid then the said B. and C. 
 will at the request and cost of the said A. re-convey the premises 
 to the said A. or the persons claiming under him And the said 
 A. hereby covenants with the said B. and C. as follows [here 
 add covenants as to fire insurance and repairs , and any other 
 special covenant or clause required]. 
 
 In witness, &c. 
 
 V. — THE FORM OF THE MORTGAGE IN SPECIAL CASES. 
 
 Mortgages of Copyholds. 
 
 Mortgages of 
 copy holds 
 effected by 
 conditional 
 surrender. 
 
 A. mortgage of copyhold land is effected by a surrender sub- 
 ject to a condition that it shall become void upon the payment 
 of the debt and interest on a specified day. The mortgagee is 
 not as a rule admitted, for this gives him no advantage, unless 
 ho wishes to realize his security, and until this occurs admit- 
 tance will be unnecessary and will render him subject to the 
 necessity of having to pay the fine due to the lord on admit- 
 
THE FORM OF THE MORTGAGE IN SPECIAL CASES. 
 
 241 
 
 tanoe. The surrender is accompanied or preceded by a deed 
 of covenant to surrender, in which are embodied the usual 
 mortgage clauses, and into which the Conveyancing Act, 1881, 
 imports covenants for title, the power of sale, and all the other 
 clauses which it imports into a mortgage of freehold land. 
 
 If the loan precedes the surrender by even a short length of 
 time, it is usual to add to the covenant to surrender a declara- 
 tion by the mortgagor that he will stand seised of the premises 
 until the surrender on trust for the mortgagee, his heirs and 
 assigns, subject to the same equity of redemption as they would 
 have been subject to had the surrender been already made; 
 for this will enable the mortgagee to obtain the legal estate 
 under s. 26 of the Trustee Act, 1893, by an order of the court, 
 in case the surrender is not duly made by the mortgagor. 
 This will not he necessary when the money is not advanced 
 (as it should not be) until the surrender is effected. On the 
 mortgagee being paid off, if he has not been admitted, all that 
 is necessary to revest the land in the mortgagor is to enter an 
 acknowledgment of satisfaction on the court rolls, but it is also 
 advisable to endorse a receipt for the money on the covenant to 
 surrender . 
 
 Mortgages of Leaseholds. 
 
 Whether a mortgage of leaseholds should be effected by an 
 assignment or an underlease depends on the nature of the rent 
 and covenants contained in the lease. 
 
 The assignee of a lease becomes liable and remains liable 
 until he assigns over for the rent and covenants contained 
 therein so far as they run with the land, whereas an under- 
 lessee does not. Consequently, if a rent is payable or the 
 covenants in the lease are burdensome, it is obviously dis- 
 advantageous to the mortgagee to take an assignment. On 
 the other hand, if the mortgagee takes an underlease, the mort- 
 gagor may commit some breach of covenant in the lease 
 involving forfeiture. It is true that if he does, the mort- 
 gagee underlessee can now apply for relief under s. 14 of the 
 Conveyancing Act, 1881, as extended by s. 4 of the Convey- 
 ancing Act, 1892; but this entails expense and trouble, and 
 relief can only be given him in the form of vesting the lease 
 
 G. — C. R 
 
 Declaration 
 of trust until 
 surrender. 
 
 Entry of satis- 
 faction on 
 court rolls. 
 
 Mortgages of 
 leaseholds 
 may be by 
 assignment or 
 underlease. 
 
 Respective 
 advantages 
 »T>d dis- 
 advantages. 
 
242 
 
 BK. I., PT. II. — MORTGAGES. 
 
 In practice 
 such mort- 
 gages are 
 usually by 
 underlease. 
 
 Effect of 
 bankruptcy 
 on a mortgage 
 by underlease. 
 
 in the mortgagee for a term not exceeding the term of the 
 underlease, which puts him in the position of the lessee and 
 subjects him to all the liabilities of the latter; so that where 
 there is no rent or only a nominal rent and the covenants are 
 not onerous, an assignment of the whole term affords the better 
 security of the two. As this seldom happens, however, the 
 mortgage is usually made by underlease; the underlease being 
 for the whole term except the last day or last few days. When 
 this method is adopted, the deed should contain a declaration 
 of trust by the mortgagor of the head term for the benefit of 
 the mortgagee and persons claiming under him, and also a 
 power of attorney authorizing the mortgagee to assign to him- 
 self the head lease subject to the equity of redenrption, if that 
 should be existing at the time it is proposed to exercise the 
 power, and also a power enabling the mortgagee to appoint 
 a new trustee in place of the mortgagor of the head term, and 
 to remove the mortgagor from being trustee. Under the latter 
 power the mortgagee can appoint a nominee of his own to be 
 a trustee, and at the same time make a declaration under s. 12 
 of the Trustee Act, 1897, vesting the head lease in the new 
 trustee (£). Should the property consist of renewable lease- 
 holds it may be advisable to- insert an express covenant by the 
 mortgagor to renew on the request of the mortgagee, and to 
 assign the property included in the renewed lease to the mort- 
 gagee subject to the subsisting equity of redemption. But 
 such a covenant is not absolutely necessary; for though in its 
 absence the mortgagee cannot compel the mortgagor to renew, 
 lie can effect a renewal in his own name, and hold the renewed 
 lease as a security not only for the mortgage debt and interest, 
 but for the costs of renewal and interest thereon ( u ), and if the 
 mortgagor renews the mortgagee is entitled to the benefit of 
 the renewed term for the purposes of his security (x). 
 
 In connection with a mortgage by way of' underlease the 
 provisions of s. 55 of the Bankruptcy Act, 1883, as amended 
 by s. 13 of the act of 1890, must be borne in mind. Under 
 
 (t) London and County Bank 3 Atk. 4; see also Bakestraw v. 
 
 y. Goddard, (1897) 1 Oh. 642. Brewer (1728), 2 P. W. 511. 
 
 (u) See Lacon v. Mertins (1743), (x) Smithy. Chichester (1842), 
 
 1 0. & L. 486. 
 
THE FORM OF THE MORTGAGE IN SPECIAL CASES. 
 
 243 
 
 these acts, should the mortgagor become bankrupt and his 
 trustee disclaim the lease, the effect on the underlease will be 
 that the mortgagee will either have to lose his security, or 
 will ha\e to take a vesting order, which will render him liable 
 to perform the covenants and pay the rent contained in and 
 reserved by the original lease. For the disclaimer does not 
 prevent the original lessor from entering upon the land under 
 the condition of re-entry contained in the original lease (?/) ; 
 and it is expressly provided that if the underlessee seeks the 
 court’s assistance, the same can only be given him on the terms 
 that the original lease be vested in him, subject to the sarno 
 liabilities and obligations as the bankrupt was subject to under 
 the lease at the date when the bankruptcy petition was filed, 
 or at the discretion of the court as if the lease had been assigned 
 to him at the date when the bankruptcy petition was filed, 
 and (if the case so requires) as if the lease had comprised only 
 the property comprised in the vesting order (z), and then he 
 would become entirely responsible to the lessor on the original 
 covenants as to anything done after the date when the bank- 
 ruptcy petition was filed. The lessor, too, can apply to the 
 court for an order vesting the disclaimed lease in the mort- 
 gagee on terms ( a ). 
 
 Mortgages of Choses in Action. 
 
 A mortgage of a chose in action, such as a debt, is made in Form of 
 the same form mutcitis mutandis as a mortgage of freehold X>a?m ° ° f 
 land or a mortgage of leasehold land by assignment. A mort- action- 
 gage of such choses in action as stock or shares is also made in 
 the same form, except that in the case of registered stock or 
 shares the transfer to the mortgagee must be by separate docu- 
 ment in the proper form. The same inquiries must be made 
 and the same notices given as in the case of the sale of a chose f 
 in action (b) . 
 
 ( y ) Ex parte Walton, Re Levy 
 (1881), 17 Oh. D. 746; Bank- 
 ruptcy Act, 1883, s. 55 (2). 
 
 (z) Bankruptcy Act, 1883, 
 s. 55 (6) ; Bankruptcy Act, 1890, 
 
 s. 13. See Re Carter and Ellis, 
 (1905) 1 Iv. B. 735. 
 
 (a) Re Cock, Ex parte Shilson 
 (1887), 57 L. J. Q. B. 169. 
 
 (5) See ante, p. 180. 
 
 R 
 
 2 
 
244 
 
 BK. I., PT. II. — MORTGAGES. 
 
 When dis- 
 tringas, &c. 
 necessary. 
 
 Implied power 
 to sell. 
 
 Mortgages of 
 life policies, 
 when taken. 
 
 Covenants 
 
 required. 
 
 If the mortgage is of a reversionary interest in stock, a dis- 
 tringas ought to be put upon the stock, and if it is of a fund 
 in court a stop order should be applied for. 
 
 A mortgagee of choses in action such as stock or shares has 
 implied power to sell them on default being made by the mort- 
 gagor in payment of the amount due at the time appointed 
 for payment, or if no time be fixed, on the expiration of ja 
 reasonable notice by the mortgagee requiring payment on a day 
 certain, and ss. 19 and 20 of the Conveyancing Act, 1881, do 
 not affect the power of sale which is implied in the case of a 
 mortgage of shares not made by deed (c) . 
 
 Mortgages of Life Policies. 
 
 A mortgage of a policy of life assurance is generally taken 
 in conjunction with a mortgage of a life estate in land; such 
 a mortgage is sometimes, however, taken alone ; but in this case 
 it is but an inefficient security, as during the mortgagor’s life 
 there is no fund for the mortgagee to rely on, and the mort- 
 gagor may omit to pay the premiums, or do some act which will 
 avoid the policy. If such a policy is taken as a security, inquiry 
 should be made at the office of the assurance company whether 
 notice of any previous incumbrance has been given. The mort- 
 gage will be effected by assignment, and, immediately on com- 
 pletion, notice must be given to the assurance company, other- 
 wise a subsequent incumbrancer who gives notice will obtain 
 priority if he is unaware of the mortgage (d), and this is so, 
 even where the first assignment is made by the insured him- 
 self, and the second by his personal representative (e). 
 
 The assignment should contain covenants by the mortgagor 
 not to do anything which may avoid the policy; to restore it if 
 by any means it becomes voidable; and to effect a new insur- 
 ance in the name of the mortgagee if it becomes void; and to 
 pay the premiums, and deliver the receipts therefor to the 
 mortgagee; a power to the mortgagee to pay the premiums if 
 
 (c) Deverges v. Sandeman, v. Newman (1885), 28 Ch. D. 674. 
 
 Clark & Co., (1902) 1 Ch. 579. (e) Re FreshfLeld (1879), 11 
 
 ( d ) See the Po'icies of Assur- Ch. D. 198. 
 ance Act, 1837, s. 3; and Newman 
 
THE FORM OF THE MORTGAGE IN SPECIAL CASES. 
 
 24 5 
 
 he makes default, and a covenant that, on the mortgagee doing 
 so, he, the mortgagor, will on demand repay them with interest 
 and expenses. If the policy is mortgaged in connection with Mortgagee's 
 land, there should be a charge of 1 these expenses on the land premiums* 0 
 until repayment. But the mortgagee, even in the absence of P aid - 
 stipulation, is entitled to charge the property with any sums he 
 may advance to keep up the policy, with interest thereon at 
 4 per cent. (/). 
 
 Statutory Mortgages. 
 
 In the case of a simple mortgage of freehold or leasehold land When statu - 
 
 where the amount of' the loan is small, recourse may be had g°age™may 
 
 with advantage to the short form of statutory mortgage pro- be used - 
 
 vided by the Conveyancing Act, 1881. By s. 26 of that act, 
 
 a mortgage of freehold or leasehold land may be made by deed 
 
 expressed to be made by way of' statutory mortgage, in the 
 
 form given in Part I. of the Third Schedule to the act with 
 
 such variations and additions as circumstances may require. 
 
 And there will then by virtue of the act be implied in the what cove- 
 
 mortgage deed: — nants, &c. 
 
 ° ° are implied, 
 
 (1) A covenant with the mortgagee by the person expressed 
 
 to convey as mortgagor to pay on the stated day the 
 mortgage money, with interest thereon in the mean- 
 time at the stated rate, and thereafter, so long as the 
 mortgage money or any part remains unpaid, to pay 
 interest thereon at the stated rate, by equal half- 
 yearly payments, the first to be made at the end of 
 six calendar months from the day stated for pay- 
 ment of the mortgage money. 
 
 (2) A proviso for re-conveyance if the mortgagor pays the 
 
 principal and interest on the stated day. 
 
 Besides this, ss. 19 bo 24 of 1 the Conveyancing Act import and what 
 into the statutory mortgage power to sell; to insure; to ap- powers- 
 point a receiver; and to cut timber; and by s. 7, if the mort- 
 gagor is expressed to convey as beneficial owner , the four usual 
 covenants for title are implied. 
 
 (/) See Bellamy v. Brickenden 552; Falcke v. Scottish Imperial 
 (1861), 2 J. & H. 137; Re Leslie, Co. (1886), 34 Ch. D. 234. 
 
 Leslie v. French (1883), 23 Ch. D. 
 
246 
 
 Practice note. 
 
 Disadvan- 
 tages of a 
 second 
 mortgage. 
 
 BK. I., PT. II. MORTGAGES. 
 
 Even if the mortgage is not prepared exactly in accordance 
 with the statutory form, it may be useful to declare it to be 
 
 made by way of statutory mortgage,” since, if so made, the 
 security can be transferred by means of the statutory transfer, 
 and the property can be re-conveyed by means of a statutory 
 re-conveyance (g). 
 
 The following is the form of a statutory mortgage, as given 
 in Schedule III. Part I. to the Conveyancing Act, 1881: — 
 
 Dead of Statutory Mortgage. 
 
 This Indenture made by way of statutory mortgage the 
 day of 1882 between A. of [Ac.] of the one part and M. 
 
 of [Ac.] of the other part Witnesseth that in consideration of 
 the sum of £ now paid to A. by M. of which sum A. hereby 
 acknowledges the receipt A. as mortgagor and as beneficial owner 
 hereby conveys to M. All that [Ac.] To hold to and to the use 
 of M. in fee simple for securing payment on the day of 
 
 1883 of the principal sum of £ as the mortgage money 
 with interest thereon at the rate of [four] per centum per annum. 
 
 In witness, &c. 
 
 *** Variations to be made, if required , for leasehold land, or for giving 
 effect to special arrangements fgg'). 
 
 VI. — SECOND AND SUBSEQUENT MORTGAGES. 
 
 Property may he mortgaged more than once, but a second 
 mortgage, even of a freehold estate in fee simple, is far inferior 
 as a security to a first mortgage. The disadvantages of a 
 second mortgage are: — 
 
 (1) The second mortgagee does not get the legal estate, and 
 
 is consequently exposed to the risk of tacking. 
 
 (2) Other mortgages may in some cases be consolidated 
 
 against him. 
 
 (3) He does not get the title deeds. 
 
 (4) The first mortgagee may exercise his power of sale 
 
 without consulting any but his own interests, and the 
 second mortgagee may be compelled to redeem the 
 first mortgage or lose his security. 
 
 (< jg ) Conveyancing Act, 1911, 
 s. 15. 
 
 (g) 8ee below, pp. 250, 260. 
 
SECOND AND SUBSEQUENT MORTGAGES. 
 
 247 
 
 (5) The first mortgagee may foreclose his security, and again 
 the second mortgagee will either have to redeem or 
 lose his security. 
 
 Tacking is the right of a legal mortgagee who has made a 
 further advance on the security of the mortgaged property 
 without notice of an intervening incumbrance, or of an incum- 
 brancer subsequent to the second mortgagee who has advanced 
 his money without notice of an intervening mortgage, and has 
 bought up the first legal mortgage, to have both the charges 
 satisfied before he can be compelled to relinquish the security 
 in his favour, and so squeeze out, as it were, the intervening 
 incumbrancer. Suppose, for instance, A. mortgages his estate 
 Whiteacre to B., then to C., and then to D. If at the time of 
 advancing his money D. had no notice of C.’s mortgage, he 
 can pay off B. and take a transfer of the legal esta,te from 
 him, and can then tack the first and the third mortgages 
 together, and thus squeeze out C.’s mortgage (h). The right 
 depends entirely upon the recognition by equity of the power 
 inherent in the legal estate, so that it is only he who has the 
 legal estate, or at least the best right to call for it, who can 
 exercise the privilege of tacking. As between merely equitable 
 mortgagees, therefore, when none of them has a better right to 
 the legal estate than any other there can be no tacking. 
 
 There can be no right to tack against an incumbrancer of 
 whose charge the party seeking to tack had notice at the time 
 he made his advance. Consequently, a first mortgagee cannot 
 tack a further advance if before he made it he had notice of 
 the second mortgage, even though the original mortgage deed 
 covers future advances (i) or contains a covenant by the first 
 mortgagee- to make them (1c ) . And notice to one of several 
 joint mortgagees is sufficient to prevent the acquisition of the 
 right (7). But the right to tack is not lost by notice before the 
 legal estate is got in, so that a third mortgagee who has 
 
 ( h ) Marsh v. Lee (1670), Wh. & II. L. 0. 514. 
 
 Tud. L. C. Eq. 8th ed. vol. ii. (h) West v. Williams , (1899) 1 
 118; Brace v. Duchess of Marl- Cli. 132. 
 
 borough (1728), 2 P. Wms. 491. (1) Freeman v. Laing, (1899) 2 
 
 (i) Ho'phinson v. Bolt (1831), 9 Ch. 3 55. 
 
 Tiie doctrine 
 of tacking. 
 
 Notice defeats 
 the right to 
 tack. 
 
248 
 
 BK. I., PT. II. MORTGAGES. 
 
 A judgment 
 debt cannot 
 be tacked. 
 
 Restrictions 
 on the right 
 of tacking. 
 
 Precautions 
 to be taken 
 by second 
 mortgagee. 
 
 advanced his money without notice of the second mortgage can 
 take a transfer of the first mortgage and tack his own mortgage 
 to it, although he has received notice of the second mortgage 
 before the transfer (m ) . But if a first mortgagee is paid off 
 by the mortgagor he becomes a bare trustee of the legal estate 
 for the second mortgagee, and the third mortgagee, if he has 
 notice of the fact, cannot, by taking a transfer of the legal 
 estate from him, obtain priority over the second; for it is a 
 breach of trust in the first mortgagee to convey the legal estate 
 to the third, and the latter having notice of the breach cannot 
 profit by it {n). 
 
 A judgment creditor who advances money to his debtor on 
 security of a mortgage, cannot (even though he may have got a 
 charge on the debtor’s land by means of execution) tack his 
 judgment debt to the mortgage debt, because, with regard to 
 the judgment debt, he did not originally lend his money on 
 the security of the land (o<). 
 
 The right of tacking was abolished by s. 7 of the Vendor 
 and Purchaser Act, 1874, but restored by s. 129 of the Land 
 Transfer Act, 1875; but in the case of mortgages of land in 
 Yorkshire made on or after the 1st January, 1885, it is again 
 abolished by s. 16 of the Yorkshire Registry Act, 1884. And 
 having regard to s. 28 of the Land Transfer Act, 1875, it 
 would appear that there cannot be any right of tacking mort- 
 gages of land the title to which is registered. 
 
 It is proper, then, in advancing money on a second mortgage, 
 to inquire from the first mortgagee how much is due upon his 
 security, and also, on completion, to give him notice that a 
 second mortgage has been effected, which will have the effect of 
 preventing him from tacking; and if the first mortgagee will 
 permit it, the notice should be indorsed on the mortgage deed, 
 so that it may be notice to a transferee of the first mortgage as 
 well as to the first mortgagee himself. The second mortgagee 
 will, however, still be exposed to the risk of the mortgagor 
 
 (m) See Marsh v. Lee, supra. Banking Co., (1901) 2 Oh. 231. 
 
 ( n ) II arpharn v. Shaddock (o) Brace v. Duchess of Marl- 
 (1880), 19 Oh. D. 207; and see borough, supra. 
 
 Taylor v. London and County 
 
EQUITABLE MORTGAGES. 
 
 249 
 
 making a third mortgage to a person who has no notice of thte 
 second mortgage, and of this third mortgagee taking a transfer 
 of the security of the first mortgagee, and tacking the two 
 securities together . 
 
 The cases in which the right of consolidation can be exer- Consolidation, 
 cised against the assignee of the equity of redemption have 
 already been discussed (p ) . 
 
 The third objection to a second mortgage is that the mort- Second mort- 
 
 l-iii mi i-i p g -agee gets no 
 
 gagee does not get the title deeds. I he disadvantage of not title deeds, 
 having these is obvious; not only is the second mortgagee 
 exposed to risk of fraudulent dealings with the property by the 
 first mortgagee and the mortgagor, but having no legal 
 evidence of his charge on the estate other than his own mort- 
 gage deed, his security is depreciated in value. 
 
 VII . — EQUITABLE MORTGAGES. 
 
 Sometimes a loan is needed for a short time only, and the How created, 
 parties do not think it worth while to incur the expense and 
 formality of a legal mortgage. Sometimes a loan is urgently 
 required, and there is not time to make a legal mortgage. 
 
 Under these circumstances an equitable mortgage may be taken. 
 
 Such a mortgage may be created — 
 
 (1) by an agreement, in writing and signed as required by 
 
 s. 4 of the Statute of Frauds in the case of a mortgage 
 of land, showing the intention to charge the property, 
 no special words of charge being required so long 
 as the intention is clear (q); or 
 
 (2) by a deposit by way of 1 security of the title deeds, or 
 
 documents relating to the property the subject of the 
 security, accompanied by a memorandum of deposit, 
 signed as required in the case of land by s. 4 of the 
 Statute of Frauds; or 
 
 (3-) by a deposit by way of security of the title deeds or ai 
 
 (p) See ante , p. 219. Provident Institution (1894), 63 
 
 ( q ) See Cradock v. The Scottish L. J. Oh. 15. 
 
250 
 
 Form of 
 memorandum. 
 
 Methods of 
 securing 
 power of sale 
 to equitable 
 mortgagee. 
 
 BK. I., PT. II. MORTGAGES. 
 
 material portion of them (r), without any writing (s), 
 provided the deposit amounts to a part perf ormance of 
 the agreement to give security (t). 
 
 Equitable mortgages by deposit are not confined to title deeds 
 relating to land. An equitable mortgage of stock, shares, 
 debentures, debenture stock, policies of insurance, bonds, and 
 other securities may, without writing, be created by depositing 
 the certificates or instruments relating thereto (w); and in fact 
 such mortgages are common enough among the commercial 
 community. 
 
 Although no writing is necessary even in the case of land, 
 a mortgage b}^ a deposit of title deeds should always be accom- 
 panied by a memorandum, stating the time for repayment of 
 the loan, the rate of interest to be paid, and containing an 
 agreement by the mortgagor to execute a legal mortgage if 
 required by the mortgagee (x). 
 
 Generally the memorandum is put under seal in order to 
 give the mortgagee the powers of sale, &c. contained in s. 19 
 of the Conveyancing Act, 1881. But to enable the mortgagee 
 to convey the legal estate to a purchaser on a sale of the pro- 
 perty, he must be given a power of attorney for that purpose in 
 the memorandum, since the act does not confer any power to 
 convey the legal estate, and consequently, unless he is given 
 the power by the memorandum, he can only transfer his equit- 
 able interest (y ) . Another method of attaining the same result 
 is to make the mortgagor declare in the memorandum of deposit 
 that he holds the property on trust for the mortgagee, and to 
 authorize the mortgagee at any time during the continuance 
 
 (r) Lacon v. Allen (1856), 3 
 Brew. 579; Dawv. Terrell (1863), 
 33 Beav. 218; Dixon v. Muckle- 
 ston (1872), L. li. 8 Ch. App. 155. 
 
 (s) Russel v. Russel (1783), 1 
 Bro. 0. 0. 269. 
 
 (t) Ex parte Broderick, Re 
 Beetham (1887), 18 Q. B. B. 766. 
 
 {u) Palmer, Company Prece- 
 dents, 11th ed. 687. 
 
 (x) It may be as well to specify 
 
 in the memorandum the length of 
 notice to be given by the mort- 
 gagor if he wishes to pay off the 
 mortgage after the time named 
 for payment has passed; in the 
 absence of agreement lie need only 
 give a reasonable notice: Fitz- 
 
 gerald's Trustee v. Mellersh, 
 (1892) 1 Ch. 385. 
 
 (y) Re Ilodson and Howe's Con- 
 tract (1887), 35 Ch. B. 668. 
 
EQUITABLE MORTGAGES. 
 
 251 
 
 of the security to remove him from being trustee and to appoint 
 himself or any other person a new trustee. Then, when the 
 mortgagee wants to sell (or at any other time), he can execute 
 a deed appointing himself a new trustee in place of the mort- 
 gagor, and vesting the legal estate in himself as new trustee 
 by declaration in the deed under s. 12 of the Trustee Act, 
 
 1893i 
 
 M- 
 
 Questions have arisen whether a mere deposit of the deeds 
 without any memorandum will cover subsequent advances, and 
 it has been held that parol evidence is admissible to show that, 
 at the time of the deposit, or of the subsequent advance, it 
 was stipulated that the security should cover the latter as well 
 as the existing debt ( a ). And even if there is a memorandum 
 of deposit which is silent as to whether future advances are 
 to be included, parol evidence is admissible here, too, to show 
 that there was an intention to this effect, and on this being 
 shown the security will extend to them ( b) . 
 
 The proper remedy of an equitable mortgagee is fore- 
 closure (c). But, under the 25th section of the Conveyancing 
 Act, 1881, he may now, in the foreclosure action, ask for a 
 sale, even though there is no memorandum of deposit (d). 
 
 An equitable mortgagee, moreover, if his memorandum of 
 charge is by deed and is properly framed, may, as we have seen, 
 sell the property, or appoint a receiver, under s. 19 of the Con- 
 veyancing Act; and whether the Conveyancing Act applies or 
 not, if the mortgagor has expressly agreed to execute a legal 
 mortgage, a receiver of the property can be appointed by the' 
 court (e). He can also sue for the money lent; hut he 
 has not the important right of a legal mortgagee to take 
 possession of the mortgaged property (/). Having regard, 
 
 A mortgage 
 by deposit 
 may extend 
 to future 
 advances. 
 
 An equitable 
 mortgagee’s 
 remedy is 
 foreclosure or 
 sale. 
 
 If memo- 
 randum by 
 deed, mort- 
 gagee can 
 himself sell, 
 
 or sue for 
 money lent, 
 
 but cannot 
 take posses- 
 sion. 
 
 ( z ) London and County Banking 
 Co. v. Goddard, (1897) 1 Ch. 642. 
 
 (a) Ex parte Langston (1810), 
 
 17 Yes. 227. 
 
 ( b ) Ex parte Kensington (1813), 
 
 2 V. & B. 79. 
 
 (c) James v. James (1873), 
 L. R. 16 Eq. 153; Backhouse v. 
 
 Charlton (1878), 8 Ch. D. 444; 
 York Union Banking Co. v. Artley 
 (1879), 11 Ch. D. 205. 
 
 (d) Oldham v. Stringer (1884), 
 51 L. T. 895. 
 
 (e) Bodgerw. Badger (1862), 11 
 
 W. R. 160. 
 
 (/) He has therefore no right 
 
252 
 
 Solicitor’s 
 remunera- 
 tion depends 
 on amount of 
 loan, in case 
 of mortgage 
 of land ; 
 
 in case of pure 
 personalty, 
 on work done. 
 
 Right of 
 election to be 
 paid for work 
 done. 
 
 Remunera- 
 tion for nego- 
 tiating a loan. 
 
 BK. I., PT. II. MORTGAGES. 
 
 therefore, to the deficient character of the mortgagee’s reme- 
 dies, and to the risk he runs of being postponed to others inte- 
 rested in the estate, having an equity superior or equal to his 
 own (g), and having also the legal estate, an equitable mortgage 
 is an undesirable security; it is, however, often accepted by 
 bankers as a security for money lent to their customers, and 
 for temporary loans it is obviously a convenient form of 
 security, and when the money is repaid no reconveyance is 
 required, but a simple receipt for the mortgage money and 
 interest repaid by the mortgagor is all that is necessary, and 
 this receipt does not require an ad valorem duty as a recon- 
 veyance or discharge within the Stamp Act, 1891. 
 
 Legal Charges on Mortgages. 
 
 A solicitor’s remuneration for work done in relation to a 
 mortgage of freehold, copyhold, or leasehold property, whether 
 he acts for mortgagor or mortgagee, or for both, depends on 
 the amount of the mortgage money, being regulated by Part I. 
 of Schedule I. of the Solicitors’ Remuneration Order, 1882. 
 The scale charges, however, are only applicable to mortgages of 
 freehold, copyhold, or leasehold property, and in other cases, 
 e.g., a mortgage of a life policy, the remuneration will be re- 
 gulated by the amount of work done, that is, by the system of 
 charging which prevailed prior to the Solicitors’ Remuneration 
 Order, 1882, as altered by Schedule II. of that Order. 
 
 And a solicitor may in every case elect to be paid for the 
 actual work done, as under the old system, provided that he 
 makes his election by notice in writing given to the client before 
 undertaking the business. 
 
 If the mortgagee’s solicitor is instrumental in negotiating the 
 loan, he will be entitled to charge the negotiation fee allowed 
 by the scale of charges already referred to. The mortgagor’s 
 solicitor, even though he may have procured some one willing 
 to advance the money, is not entitled to any negotiation fee, 
 though if the facts show that lie acted as a “scrivener ' in 
 
 to be paid the rents of tlie mort- ( g ) See, for example, London 
 
 gaged property: Finch v. Tranter, and County Banking Co. v. Nixon, 
 (1905) 1 K. B. 427. (1901) 2 Ch. 231. 
 
TRANSFERS OF MORTGAGES. 
 
 procuring the loan, and not as solicitor, he will be entitled to 
 charge a commission as such (h). 
 
 The scale fees do not apply to a further charge where the 
 title was investigated prior to the mortgage itself, but the 
 charges are regulated by Schedule II. of the Order of 1882. 
 
 Formerly, when a solicitor took a mortgage from his own 
 client he could not charge him any costs for the preparation of 
 the deed, but was only entitled to charge him costs out of 
 pocket (z). But in the case of mortgages made since the 6th 
 July, 1895, a solicitor-mortgagee or his firm may, by virtue 
 of the Mortgagees’ Legal Costs Act, 1895, make the same 
 charges as if' the mortgagee had not been a solicitor (k). 
 
 Since a mortgagee cannot add to the mortgage debt the costs 
 due to his solicitor for negotiating the loan and preparing the 
 mortgage deed, but has to rely on his personal remedy against 
 the mortgagor (Z), the practitioner should always be careful to 
 have these costs deducted from the amount advanced. 
 
 Remunera- 
 tion for 
 further 
 charges. 
 
 Remunera- 
 tion of 
 solicitor - 
 mortgagee. 
 
 58 & 59 Viet, 
 c. 25. 
 
 Practice note. 
 
 VIII . — TRANSFERS OF MORTGAGES. 
 
 The desirability of the Mortgagor’s Concurrence in the 
 
 Transfer. 
 
 As a rule it is not necessary for the mortgagor to join in a Mortgagor’s 
 transfer, the mortgagee having full power to assign the mort- inTtransfer 
 gage debt and interest and the security without his concurrence. ? ot necessary, 
 
 T • • 1 1 . J . .but advis- 
 
 It is said, however, that if a mortgagee m possession assigns, able— 
 without the mortgagor’s concurrence, he remains liable to> 
 account to the mortgagor notwithstanding the transfer (m), 
 unless he transfers under the direction of the court (n). And to obtain 
 in any case, if the mortgagor’s concurrence in the transfer accounts 11 ° f 
 
 (h) Gradwell v. Aitchison 
 (1893), 10 Times L. R. 20. 
 
 (0 Re Roberts (1889), 43 Ch. 13. 
 52; Field v. Hopkins (1890), 44 
 Cb. D. 524; Ex parte Lickorish 
 (1890), 25 Q. B. D. 176; Fisher v. 
 Doody ( Ilibbert v. Lloyd), (1893) 
 1 Ch. 129. 
 
 (k) See Re Norris, (1902) 1 Cb. 
 741. 
 
 (l) Wales v. Carr , (1902) 1 Ch. 
 860. 
 
 (m) See Coote, Law of Mort- 
 gages, 7th ed. vol. ii. 821; Hall v. 
 Heward (1886), 32 Ch. D. 430. 
 
 (n) Hall v. Heward (1886), 32 
 Ch. D. 430. 
 
*254 
 
 Form of 
 transfer. 
 
 (1) When the 
 mortgagor 
 does not join. 
 
 BK. I., PT. II. — MORTGAGES. 
 
 can be obtained, it is advisable to make him a party, because 
 by joining he admits the state of 1 account between the mort- 
 gagee and himself; and thus shuts out, as between him and 
 the transferee, any undisclosed equities which may exist 
 between the mortgagor and the mortgagee. For if the mort- 
 gagor does not join, and a part of the mortgage money has been 
 paid off, the transferee could only compel payment from the 
 mortgagor of what remained owing, as he takes subject to the 
 state of the accounts (o). It has been decided, however, that 
 although the original mortgage money has never been ad- 
 vanced, if it purports to have been by the terms of the mortgage' 
 deed, which contains a proper receipt therefor, and is duly 
 executed by the mortgagor, the transferee of the legal estate 
 can compel the mortgagor to pay the money apparently ad- 
 vanced to him (p ) . Moreover, when a mortgage is transferred 
 without the concurrence of the mortgagor, and without calling 
 upon him to redeem, the costs of the transfer cannot be added 
 to the mortgage debt(g). It was formerly the practice when 
 the mortgagor joined, if he had not incumbered the equity of 
 redemption, to insert a fresh covenant for payment, proviso for 
 redemption and new powers to the mortgagee; but this is not 
 necessary, and they are now usually omitted; though, if the 
 equity of redemption has devolved on some other person since, 
 the mortgage, a new covenant from the owner of it with the 
 transferee for the payment of the mortgage money and interest 
 is desirable. 
 
 The form of a transfer of mortgage consequently varies ac- 
 cording as to whether (a) the mortgagor is not a party; (b) he 
 is a party. 
 
 (a) Transfer to which the Mortgagor is not a party . 
 
 When the mortgagor does not join, the mortgagee assigns 
 the mortgage debt, and the interest thenceforth to become due 
 on the same, and the benefit of the securities therefor. The 
 
 (o) See Turner v. Smith, (1901) 
 1 Ch. 213. 
 
 (p) See Bickerton v. Walker 
 (1885), 31 Ch. D. 151; and French 
 v. Hope (1887), 56 L. J. Ch. 363; 
 
 overruling Parker v. Clarke 
 (1861), 30 Beav. 54. 
 
 ( q ) Re Radcliffe (1853), 22 
 Beav. 201. 
 
TRANSFERS OF MORTGAGES. 
 
 255 
 
 mortgagee then conveys the mortgaged property to the trans- 
 feree, “ subject to such right or equity of redemption as is 
 subsisting in the premises by virtue of the mortgage deed. 
 If the mortgagee transfers expressly “ as mortgagee,” there will 
 be implied by the Conveyancing Act, 1881, s. 7, a covenant 
 on his part that he has not incumbered, and this is all the 
 transferee is entitled to. 
 
 The power of sale and other remedies of the mortgagee need 
 not be expressly transferred, for if they are expressly conferred 
 by the mortgage deed, and are thereby made exercisable by the 
 mortgagee “ and his assigns,” they will pass to the transferee 
 without mention; if they are not so made they will not be 
 assignable at all (r) ; while if they are the implied powers 
 given to the mortgagee by the Conveyancing Act, 1881, they 
 are exercisable by “ the person for the time being entitled to 
 receive and give a discharge for the mortgage money” under 
 s. 2 (4) of that act. It is, however, the practice to mention 
 them by adding to the assignment of the debt such words as 
 '‘with the benefit of the power of sale, and all other powers, 
 &c. given by the mortgage for the recovery, &c. of the mort- 
 gage debt.” 
 
 The transferee should give notice of the transfer to the mort- 
 gagor, not to complete his title, but to prevent the mortgagor 
 repaying the original mortgagee, as in the absence of notice he 
 would be justified in doing. 
 
 (b) Transfer to which the Mortgagor is a party. 
 
 When the mortgagor is a party to the transfer the debt and 
 interest is assigned by the mortgagee to the transferee, with 
 the benefit of the power of sale, &c. as in the first case; and 
 the mortgagee “as mortgagee” conveys, and the mortgagor 
 “as beneficial owner” conveys and confirms, the property to 
 the transferee, the habendum being made as in the first case 
 "subject to such equity of redemption as is subsisting in the 
 premises by virtue of ” the mortgage deed. 
 
 Need not 
 assign powers. 
 
 Notice of 
 transfer to 
 mortgagor. 
 
 (2) When 
 
 mortgagor 
 
 joins. 
 
 (r) Be Bumney and Smith's Contract, (1897) 2 Ch. 351. 
 
256 
 
 Form of 
 transfer of 
 copyhold 
 mortgages- 
 
 (1) When 
 there has been 
 only a cove- 
 nant to 
 surrender. 
 
 (2) When 
 there has been 
 a conditional 
 surrender. 
 
 (3) When the 
 mortgagee 
 has been 
 admitted. 
 
 On death of 
 mortgagee. 
 
 Statutory 
 
 transfers. 
 
 BK. I., PT. II. MORTGAGES. 
 
 Transfer of Mortgages of Copyholds. 
 
 When the property is copyhold, the form of the transfer will 
 vary according to the way in which the mortgage has been 
 effected. If the mortgage has been made by mere covenant 
 to surrender, not followed by the usual conditional surrender, 
 the mortgagee assigns his equitable interest in the premises to 
 the transferee, and the benefit of the same, and the habendum 
 will be made to the transferee, his heirs and assigns, subject to 
 the subsisting equity of redemption, on payment of the money 
 secured to the transferee. When there has been a conditional 
 surrender, satisfaction of the old surrender should be entered 
 up on the court rolls, and a new conditional surrender made 
 by the mortgagor to the use of the transferee; but when the 
 mortgagor does not join, or has incumbered the equity of re- 
 demption, it will be necessary for the mortgagee to be admitted, 
 and then to surrender to the use of the transferee, subject to 
 the equity of redemption then subsisting. Sometimes, to avoid 
 the expense of admittance and the fines due thereon, the trans- 
 feree will not. insist on it, but will be satisfied by a covenant by 
 the mortgagee that he will surrender if required. When the 
 mortgagee has been admitted on the original mortgage, he will 
 have to surrender to the use of the transferee, subject, as in the 
 last case, to the existing equity of redemption. 
 
 Parties to the Transfer after Death of the Mortgagee. 
 
 When the mortgagee is dead the transfer must in general be 
 made by the same persons as would execute a re-conveyance. 
 Who these are is discussed below. 
 
 Statutory Transfers. 
 
 Three forms of a transfer of a mortgage are given in 
 Part II. of the Third Schedule to the Conveyancing Act, 1881, 
 but they are only applicable to a case where the original mort- 
 gage has been expressed to be made “ by way of statutory 
 mortgage,” and if either of the first two forms is used in other 
 cases the legal estate is loft outstanding in the mortgagee, as 
 these forms purport to transfer only “ the benefit of the said 
 
RE-CONVEYANCE OF MORTGAGES. 
 
 257 
 
 mortgage.” Such a result would not attend the use of the 
 third form, which resembles that of an ordinary transfer (s) . 
 
 Legal Charges. 
 
 The charges which a solicitor is entitled to make in connec- 
 tion with the transfer of mortgages if concerned as solicitor 
 with the original mortgage or with any previous transfer in 
 which the title was investigated depend on the work done, and 
 are regulated by Schedule II. of the Solicitors’ Remuneration 
 Order, and not by the scale given in Schedule I. In other 
 cases the scale charges allowed for mortgages are applicable to 
 transfers (£). 
 
 The provisions of the Mortgagees’ Legal Costs Act, 1895, 
 enabling solicitor-mortgagees and their firms to make the same 
 legal charges in respect of mortgages as if the mortgagee were 
 not a solicitor, apply to the case of a solicitor being a transferee 
 of a mortgage (u ) . 
 
 The costs of the transfer are added to the mortgage debt in 
 cases where the mortgagor concurs in the transfer (x ) . 
 
 IX. — RE-CONVEYANCE OF MORTGAGES. 
 
 When the money secured by a mortgage is paid off, ,the 
 equitable interest of the mortgagee ceases, but the legal estate 
 will generally have to be re-conveyed by a formal deed before 
 it can revest in the mortgagor, and it is the mortgagee’s duty, 
 on tender of principal, interest and costs, at the proper time, to 
 hand over to the mortgagor a duly executed re-conveyance, 
 together with the title deeds (y). If the mortgage is only 
 equitable, no re-conveyance is necessary, so that on the payment 
 off of a second mortgage, for instance, the mortgagee, not 
 
 (s) See Be Beachey, Heaton v. 
 Beachey, (1904) 1 Ch. 67. 
 
 (if) See rule 10 to Sched. I. of 
 the General Order under the 
 Solicitors’ Remuneration Act, 
 1881, post, Part VIII. 
 
 G. — C. 
 
 (u) Mortgagees’ Legal Costs 
 Act, 1895, s. 3. 
 
 (x) See ante, p. 254. 
 
 (y) Bourke v. Bobinson, (1911) 
 1 Ch. 480. 
 
 S 
 
 Solicitor’s 
 remunera- 
 tion for 
 transfer. 
 
 58 & 59 Viet, 
 c. 25. 
 
 Re -convey- 
 ance neces- 
 sary in the 
 case of a legal 
 mortgage, 
 
258 
 
 BK. I., PT. II. — MORTGAGES. 
 
 (i) but not in 
 a mortgage to 
 a building 
 or friendly 
 society ; 
 
 (ii) nor after 
 lapse of 
 thirteen 
 years. 
 
 Form of re- 
 conveyance — 
 
 (1) of free- 
 holds ; 
 
 (2) of copy- 
 holds. 
 
 having the legal estate of the premises in him, cannot be called 
 on to re-convey it (z ) . The same will be the case when the 
 mortgage has been made by a deposit of title deeds. In these 
 cases a receipt for the mortgage money and interest is sufficient 
 to clear the property from the charge of the debt. And even 
 where the legal estate is in the mortgagee, there are cases in 
 which no formal re-conveyance of it is necessary. For example, 
 s. 42 of the Building Societies Act, 1874, provides that a build- 
 ing society may indorse upon or annex to the mortgage a receipt 
 under the seal of the society, countersigned by the secretary 
 or manager, in the form specified in the schedule to the act, 
 and such receipt shall vacate the security and revest the estate 
 in the person for the time being entitled to the equity of re- 
 demption without any re-conveyance (a) . And a somewhat 
 similar provision is made by the Friendly Societies Act, 1875, 
 s. 16 (7), and the Friendly Societies Act, 1896, s. 53 (1). 
 Further, under the Statutes of Limitation, if the mortgagor 
 remains in possession, the mortgagee’s legal estate will be ex- 
 tinguished at the end of thirteen years from the time of the 
 money being repaid to him, the mortgagor, after payment off, 
 being treated for the purposes of these statutes as a tenant at 
 will, and in this case a re-conveyance will be unnecessary and 
 indeed impossible since the mortgagee has nothing to 
 convey (b). 
 
 A re-conveyance generally recites the mortgage deed and the 
 state of the debt, or is expressed to be supplemental to the 
 mortgage deed, and then re-conveys the estate to the mort- 
 gagor freed from all charges under the mortgage deed. 
 
 When the subject of the mortgage is copyhold land, and 
 there has been merely a covenant to surrender, a receipt for 
 the mortgage money and interest would, at least in equity, 
 be quite sufficient, although it is usual to release the debt by 
 
 (z) See, however, Be Moore and 
 ITulme's Contract , (1912) 2 Ch. 
 105, where it was held that on re- 
 payment of money secured on 
 leasehold property by second mort- 
 gage by demise a surrender was 
 necessary. 
 
 (а) See Fourth City Benefit 
 Building Society v. Williams 
 (1879), 14 Oh. D. 140; and see 
 Croshie-Hill v. Sayer, (1908) 1 
 Ch. 866. 
 
 (б) Sands to Thompson (1883), 
 22 Ch. D. 614. 
 
RE-CONVEYANCE OF MORTGAGES. 
 
 259 
 
 deed. If there lias been a conditional surrender, the mortgagee 
 gives a warrant to enter up satisfaction on the court rolls, and 
 when this has been done the land will be discharged from the 
 debt. If the mortgagee has been actually admitted he will 
 have to surrender again to the use of the mortgagor, who will 
 be re-admitted as tenant on the court rolls. 
 
 Parties to the Re-conveyance after the Death of the 
 
 Mortgagee. 
 
 When the mortgagee has died before executing a re-con- 
 veyance the proper persons to be made parties to the re-con- 
 veyance vary according to the date of the mortgagee’s death. 
 If he died before 7th August, 1874, the mortgaged land, 
 whether of freehold or copyhold tenure, devolved on his heir 
 or devisee, who was thus the proper person to execute the re- 
 conveyance. If he died on or after that date, his legal per- 
 sonal representative had power to convey or surrender the 
 mortgaged estate (o) . 
 
 If, however, the death of the mortgagee occurs after 1881, 
 the mortgaged estate, notwithstanding any testamentary dis- 
 position, devolves to, and becomes vested in, his personal repre- 
 sentatives or representative as if the same were a chattel real 
 vesting in them or him; and accordingly all the like powers 
 for one only of several joint personal representatives, as well 
 as for a single personal representative, and for all the personal 
 representatives together, to dispose of or otherwise deal with 
 the same belong to the deceased’s personal representatives or 
 representative from time to time (d ) . 
 
 The provision of the act of 1881 was held to apply to copy- 
 holds, but they have been excepted from the operation of the 
 section where the mortgagee has been admitted and has died 
 on or after the 16th September, 1887, and in such a case the 
 legal estate devolves upon the devisee or customary heir of 
 the deceased mortgagee (e) . 
 
 (c) Vendor and Purchaser Act, 
 1874, s. 4. This provision did not 
 apply to a transfer, Re Spradbery's 
 Mortgage (1880), 14 Oh. D. 514; 
 Re White's Mortgage (1881), 29 
 
 W. R. 820. 
 
 ( d ) Conveyancing Act, 1881, 
 s. 30. 
 
 (e) Re Mills' Trusts (1887), 37 
 Ch. D. 312; 40 Oh. D. 14; Copy- 
 
 Freehold or 
 copyhold 
 heredita- 
 ments. 
 
 (1) Before 
 7th August, 
 1874, the 
 heir or devisee 
 must re- 
 convey. 
 
 (2) Between 
 7th August, 
 1874, and 31st 
 December, 
 1881, either 
 personal re- 
 presentative 
 or heir or 
 devisee might 
 reconvey. 
 
 (3) Since 
 31st De- 
 cember, 1881, 
 legal personal 
 representative 
 must reconvey 
 freeholds. 
 
 Exception of 
 copyholds by 
 Copyhold 
 Acts, 1887, 
 1894. 
 
260 
 
 BK. I., PT. II. — MORTGAGES. 
 
 Effect of 
 
 Land 
 
 Transfer Act, 
 1897, Part I. 
 
 Reconveyance 
 of leaseholds 
 and other 
 personalty. 
 
 The Land Transfer Act, 1897, Part I. (/), does not appear 
 to affect the provision of sect. 30 of the Conveyancing Act, 
 1881, and probably one of several personal representatives can. 
 execute an effectual re-conveyance of freehold land. 
 
 Where the subject of the mortgage is leasehold land or other 
 personal property, the proper parties to execute a re-convey- 
 ance after the death of the mortgagee are, and have always 
 been, his legal personal representatives. 
 
 Form of Re-conveyance. 
 
 The following is a short form of re-conveyance of mortgage 
 of freehold land : — 
 
 This Indenture made the day of between B. of 
 
 &c. ( mortgagee ) of the one part and A. of &c. ( mortgagor ) of the 
 other part supplemental to an indenture made the day of 
 
 between &c. (hereinafter called “the principal indenture”), 
 being a mortgage of certain lands and hereditaments situate at 
 for securing repayment by A. to B of the sum of £ 
 and interest thereon Witnesseth that in consideration of all 
 principal money and interest due under the principal indenture 
 having been paid (of which principal and interest B. hereby 
 acknowledges the receipt) B. as mortgagee hereby conveys to A. 
 all the lands and hereditaments now vested in B. under the prin- 
 cipal indenture To hold unto and to the use of A. in fee simple 
 discharged from all principal money and interest secured by and 
 from all claims and demands under the principal indenture. 
 
 In witness, &c. 
 
 Statutory 
 
 re-convey- 
 
 ances. 
 
 A form of statutory re-conveyance is given in Part III. of 
 the Third Schedule to the Conveyancing Act, 1881, which is 
 available where the mortgage has been expressed to be made 
 “by way of statutory mortgage ” ( g ). 
 
 Remunera- 
 tion for re- 
 conveyance. 
 
 Legal Charges. 
 
 The charges to which a solicitor is entitled in respect of' a 
 re-conveyance of a mortgage depend on the work done, and 
 are regulated by Schedule II. of the Solicitors’ Remuneration 
 Order, and are not governed by the scale charge depending 
 on the amount of the mortgage money. 
 
 hold Act, 1887, s. 45; Copyhold ( g ) See remarks, ante, under 
 
 Act, 1894, s. 88. Transfer, p. 256. 
 
 (/) Ante, p. 86. 
 
MISCELLANEOUS MATTERS. 
 
 261 
 
 The Mortgagees’ Legal Costs Act, 1895, alreacty referred 
 to, applies also here, and enables all costs incurred in respect 
 of a re-conveyance of a mortgage vested in a solicitor to be 
 recovered by him or bis firm (h). 
 
 The costs connected with a re-conveyance must be borne by 
 the mortgagor, but any extra costs caused by the mortgagee 
 refusing to hand over a re-conveyance on tender thereof to 
 him by the mortgagor of the money due would be thrown on 
 the mortgagee (i). 
 
 Stamps on Mortgages, Transfers, and Re-conveyances. 
 
 The stamp duties on mortgages, transfers and re-convey- 
 ances arc now regulated by the Stamp Act, 1891. 
 
 The rates of' duty are as follows: — 
 
 MORTGAGE, BOND, DEBENTURE, COVENANT 
 (except a marketable security otherwise specially 
 charged with duty), and WARRANT of AT- 
 TORNEY to confess and enter up judgment. 
 
 (1.) Being the only or principal or primary secu- 
 rity (other than an equitable mortgage) for 
 the payment or repayment of money — 
 
 Not exceeding £10 
 
 £ s. d. 
 
 exceedin 
 
 g £10 and not exceedin 
 
 g £25 ... 
 
 0 
 
 0 
 
 >5 
 
 £25 
 
 5 ? 
 
 £50 ... 
 
 0 
 
 1 
 
 ?? 
 
 £50 
 
 5? 
 
 £100 ... 
 
 0 
 
 2 
 
 ?? 
 
 £100 
 
 5? 
 
 £150 ... 
 
 0 
 
 3 
 
 5? 
 
 £150 
 
 ? ? 
 
 £200 ... 
 
 0 
 
 5 
 
 5? 
 
 £200 
 
 
 £250 ... 
 
 0 
 
 6 
 
 >5 
 
 £250 
 
 5? 
 
 £300 ... 
 
 0 
 
 7 
 
 0 0 3 
 
 3 
 
 6 
 
 9 
 
 0 
 
 3 
 
 6 
 
 For every £100, and also for any fractional 
 
 part of £100, of the amount secured 0 2 6 
 
 (2.) Being a collateral, or auxiliary, or additional, 
 or substituted security (other than an equit- 
 able mortgage), or by way of further assur- 
 ance for the above-mentioned purpose where 
 the principal or primary security is duly 
 stamped : 
 
 For every £100, and also for any fractional 
 
 part of £100, of the amount secured 0 0 6 
 
 Provided that the whole amount of duty 
 payable shall not exceed 10s. (Jc). 
 
 ( h ) Mortgagees’ Legal Costs ( i ) Rourke v. Robmson, (1911) 
 
 Act, 1895, s. 3. 1 Ch. 480. 
 
 (Jc) Revenue Act, 1903, s. 7. 
 
 58 & 59 Viet, 
 c. 25. 
 
 Rates of 
 stamp duty. 
 
2m 
 
 BK. I., PT. II. MORTGAGES. 
 
 (3.) Being an equitable mortgage (l): 
 
 For every £100, and any fractional part of 
 £100, of the amount secured 
 
 £ s. d. 
 
 0 10 
 
 (4.) Transfer, Assignment, Disposition, or As- 
 signation of any mortgage, bond, debenture, 
 or covenant (except a marketable security), 
 or of any money or stock secured by any such 
 instrument, or by any warrant of attorney to 
 enter up judgment, or by any judgment: 
 
 For every £100, and also for any fractional 
 part of £100, of the amount transferred, 
 assigned, or disponed, exclusive of inte- 
 rest which is not in arrear 0 0 6 
 
 And also where any further money is added to 
 the money already secured 
 
 The same duty 
 as a principal 
 security for 
 such further 
 money. 
 
 (5.) Re-conveyance, Release, Discharge, Sur- 
 render, Re-surrender, Warrant to Vacate, 
 or Renunciation of any such security as 
 aforesaid, or of the benefit thereof, or of the 
 money thereby secured: 
 
 For every £100, and also for any fractional 
 part of £100, of the total amount or value 
 of the money at any time secured 0 0 6 
 
 And see sections 86, 87, 88 and 89. 
 
 Several 
 warrants 
 to vacate. 
 
 Exemption 
 from duty. 
 
 Where copyholds situate in different manors are mortgaged 
 and there are several warrants to vacate, only one warrant is 
 chargeable with an ad valorem duty (m) . 
 
 Mortgages by members to unincorporated building societies 
 which are certified under 6 & 7 Will. 4, c. 32, are exempt from 
 stamp duty, provided the amount of the mortgage money does, 
 not exceed 500L (w); hut mortgages to a building society in- 
 corporated under the Building Societies Act, 1874, must be 
 stamped in the same way as other mortgages, the provisions of 
 6 & 7 Will. 4, c. 32, having been repealed as to these by s. 7 
 of the act of 1874, and the exemption from stamp duty con- 
 tained in s. 41 of the act not extending to mortgages. 
 
 ( l ) The expression “ equitable 
 mortgage ” means an agreement 
 or memorandum under hand only: 
 s. 86 (2). 
 
 ( m ) Alpe, Law of Stamp Duties, 
 12th ed. 183. 
 
 ( n ) Stamp Act, 1891, s. 89. 
 
263 
 
 Part IIP— BILLS OP SALE. 
 
 I . — INTRODUCTORY . 
 
 The legal property in personal chattels can be transferred from Introductory, 
 one person to another inter vivos — (1) by delivery of the 
 chattel; (2) by a deed; or (3) by a contract of sale; and an 
 equitable property can be created by a declaration of' trust, 
 which may be verbal, or in writing, or by deed («). 
 
 A transfer may be either an absolute assignment by way of Meaning of 
 gift or sale, or an assignment by way of mortgage or security 
 only; but in either case when a written document of any sort is 
 used to effect the transfer, the document is called technically a 
 “bill of sale/’ Whether the assignment is absolute or byway 
 of security, it may happen, and in the latter case generally does 
 happen, that the assignor or grantor remains in possession of 
 the property assigned; and when this is so, the document will, 
 generally speaking, become subject to the provisions of' the 
 Bills of Sale Acts, 1878 to 1891, and must be in conformity 
 with their provisions. The object of these statutes is twofold: 
 that of the act of 1878 is to prevent persons from obtaining 
 false credit from the possession of property apparently their 
 own, but really belonging to others; that of the act of 1882 is 
 also to protect borrowers from oppressive action on the part 
 of those who lend them money (6). 
 
 (a) Cochrane v. Moore (1890), Central Wagon Co. (1888), 18 
 
 25 Q. B. D. 57; Sale of Goods App. Cas. at p. 560; Lord Hals- 
 
 Act, 1893, ss. 17 and 18. bury in Charlesworth v. Mills, 
 
 ( b ) See per Lord Hersckell in (1892) A. C. at p. 235. 
 
 M. S. & L. Rail. Co. v. North 
 
264 
 
 BiJls of Sale 
 Acts of 1854 
 and 1866. 
 
 Acts of 1878, 
 1882, 1890 
 and 1891. 
 
 Application 
 of acts. 
 
 What instru- 
 ments are 
 bills of sale. 
 
 BK. I. j PT. III. BILLS OF SALE. 
 
 Bills of sale were not subject to any legislative provisions 
 until the 10th of June, 1854, on which day the Bills of Sale 
 Act, 1854, came into operation, and required the registration of 
 all hills of sale made after that date. This statute was supple- 
 mented by the act of 1866, which required the re-registration 
 of a bill of sale every five years. But both these statutes are 
 now repealed, and the law on the subject is at the present time 
 contained in the Bills of Sale Acts of 1878 and 1882, as 
 amended by the Bills of Sale Acts, 1890 and 1891. 
 
 The act of 1878 applies to all bills of sale, whether absolute 
 or not, registered before November 1st, 1882, and to absolute 
 bills of sale executed on or after that date, while the act of 1882 
 applies only to bills of sale given by way of security for 
 money (<?), and — with the exception of ss. 7 and 13, which are 
 retrospective (d ) — only to bills registered on or after November 
 1st, 1882 (e). The 1882 act, however, is to be construed as 
 far as possible as one with the 1878 act, and as some of the 
 provisions of the earlier act are applicable still to all bills of 
 sale, it is necessary to consider the provisions of the two statutes 
 together. 
 
 II. — WHAT IS A BILL OF SALE WITHIN THE ACTS. 
 
 By s. 4 of the act of 1878 the expression bill of sale'’ 
 includes: — 
 
 Bills of sale, assignments, transfers, declarations of trust, 
 without transfer, inventories of goods with receipt 
 thereto attached, or receipts for jiur chase-moneys of 
 goods, and other assurances of personal chattels (/) . 
 
 Powers of attorney, authorities, or licences to take posses- 
 sion of personal chattels as security for any debt (g) . 
 
 (c) Swift v. Pannell (1883), 24 
 
 Oh. D. 210. 
 
 (d) Ex parte Cotton (1883), 11 
 
 Q. B. D. 301. 
 
 (e) Hickson v. Harlow (1883), 
 
 23 Oh. D. 690. 
 
 (/) See M. S. & L. Bail. Co. v. 
 
 North Central Wagon Co. (1888), 
 13 App. Oas. 554; Charlesworth v . 
 Mills, (1892) A. C. 231; Re Hood 
 (1893), 68 L. T. 591. 
 
 (g) See Ex parte Parsons , Re 
 Townsend (1886), 16 Q. B. D. 
 532; Grigg v. National Guardian 
 
WHAT IS A BILL OF SALE WITHIN THE ACTS. 
 
 265 
 
 An}' agreement, whether intended or not to be followed by 
 the execution of any other instrument, by which a right 
 in equity to any personal chattels, or to any charge or 
 security thereon, shall be conferred. 
 
 And by s. 6 of the act of 1878 — 
 
 Every attornment, instrument or agreement, not being a 
 mining lease, whereby a power of distress is given, or 
 agreed to be given, by any person to any other person 
 by way of security for any present, future or contin- 
 gent debt or advance, and whereby any rent is reserved 
 or made payable as a mode of providing for the pay- 
 ment of interest on such debt or advance, or otherwise 
 for the purpose of such security only ( h ), shall be 
 deemed to be (i) a bill of sale, within the meaning of the 
 act, of any personal chattels which may be seized or 
 taken under such power of distress. 
 
 Provided that nothing in this section shall extend to any 
 mortgage of any estate or interest in any land, tene- 
 ment or hereditament which the mortgagee, being in 
 possession, shall have demised to the mortgagor, as his 
 tenant, at a fair and reasonable rent (7c). 
 
 For the purpose of determining whether an instrument is 
 within the definition or not, it has been held that its form is 
 immaterial, so long as the intention to transfer or create a 
 security, by passing the immediate property, be shown (7); 
 that it is not necessary that the bill of sale should be con- 
 tained in one instrument (m ) ; that an instrument is not a 
 bill of sale within the act unless it be given by the person 
 who is the owner of the property comprised in it; so that if 
 furniture is sold on the hire system, and in the hiring instru- 
 
 Assurance Co., (1891) 3 Ch. 206; 
 Be Roundwood Colliery Co., Lee 
 v. Roundwood Colliery Co., (1897) 
 1 Ch. 373. 
 
 ( h ) See Pulbrook v. Ashby 
 (1887), 56 L. J. Q. B. 376; 
 Stevens v. Marston (1890), 60 
 
 L. J. Q. B. 192. 
 
 (i) See Green v. Marsh, (1892) 
 2 Q. B. 330. 
 
 ( k ) See Re Willis, Ex parte 
 Kennedy (1888), 21 Q. B. D. 384. 
 
 (7) Brantom v. Griffits (1877), 
 2 C. P. D. 212. 
 
 (m) Ex parte Odell (1878), 10 
 
 Ch. D. 76. 
 
 Cases on the 
 construction 
 of the defini- 
 tion of a hill 
 of sale. 
 
266 
 
 BK. I., PT. III. BILLS OF SALE. 
 
 Hiring 
 
 agreements. 
 
 Licences to 
 take posses - 
 
 ment it is stipulated that the property shall not pass to the 
 purchaser till he has paid all the instalments, the instrument 
 is not a hill of sale by the purchaser, and does not require 
 registration (n ) ; and that “inventories of goods with receipts 
 attached” includes an inventory and receipt on a sale in all 
 cases where the receipt is used as the medium of transfer or 
 record of transaction, and is not merely an acknowledgment of 
 payment; but does not include a receipt used as evidence of' 
 a transfer effected in some other way; that is to say, where it 
 is only intended by the j:>arties to be a common receipt, and 
 no part of the bargain between them(o). Where there is a 
 change in the legal possession of goods, even though there be 
 no change in the physical possession, a document which 
 evidences the transaction is not a bill of sale within the 
 meaning of the acts (p). 
 
 A bond fide hiring agreement is not a bill of sale, whether it 
 includes a term for purchase or not(g). If, however, what 
 purports to be a hire-purchase agreement is in reality a security 
 for a loan, the agreement must be registered as a bill of sale; 
 and the court will always in these cases go behind the form of 
 the document and inquire what is the real nature of the trans- 
 action (r ) . 
 
 Again, a “licence” within the act means a licence to take 
 
 ( n ) Crawcour v. Salter (1880), 
 18 Ch. D. 30; Re Davis , Ex parte 
 Rawlings (1888), 22 Q. B. D. 193. 
 
 (o) See Ramsay v. Margrett, 
 (1894) 2 Q. B. 18; Newlove v. 
 Shrewsbury (1888), 21 Q. B. D. 
 41; Re Hood (1893), 68 L. T. 591; 
 Marsden v. Meadows (1881), 7 
 Q. B. D. 80; Fox v. Barnett 
 (1886), 2 Times L. R. 233; Grace 
 v. Gard (1889), 6 Times L. R. 74; 
 Wilkinsons. Girard Freres (1891), 
 7 Times L. R. 266; Stammers v. 
 Margrett (1905), 21 Times L. R. 
 342. 
 
 (p) Charlesworth v. Mills , 
 
 (1892) A. 0. 231. 
 
 {q) Ex parte Crawcour , Re 
 Robertson (1878), 9 Ch. D. 419; 
 M. S. & L. Rail. Co. v. North 
 Central Wagon Co. (1888), 13 
 App. Cas. 554. 
 
 {r ) Re Watson (1890), 25 
 
 Q. B. D. 27; Madell v. Thomas & 
 Co., (1891) 1 Q. B. 230; Beckett 
 v. Tower Assets Co., (1891) 1 
 Q. B. 638; and see McEntire v. 
 Crossley, (1895) A. C. 457; Re 
 Isaacson, Ex parte Mason, (1895) 
 1 Q. B. 333; Mellors Trustee v. 
 Maas, (1902) 1 K. B. 137; Maas 
 v. Pepper, (1905) A. C. 102. 
 
WHAT IS A BILL OF SALE WITHIN THE ACTS. 
 
 267 
 
 possession of property as a security for a debt (s) ; but not a 
 licence to take possession of it in discharge of a debit. An 
 agreement in a lease giving a landlord power to distrain on 
 goods for money due for goods supplied, or for any debt due 
 to the landlord, is within the acts and requires registration (t). 
 
 Further, it would seem that an agreement to give a charge 
 upon chattels, unless followed by an actual bill of sale, is in- 
 effective without registration; and that an assignment of such 
 a charge must be registered unless the charge itself has been 
 registered (u) . And so must a mortgage of land with an 
 attornment clause; at any rate, so far as the right to seize 
 chattels thereunder is concerned (x) . 
 
 In determining whether a document is a bill of sale within 
 the meaning of the acts, the court looks at all the facts and 
 not only at the document itself . 
 
 Certain kinds of instruments are expressly excluded from 
 the operation of the acts . 
 
 Sect. 4 of the Bills of Sale Act, 1878, provides that the 
 expression “ bill of sale ” shall not include the following docu- 
 ments:— Assignments for the benefit of the creditors of the 
 person making or giving the same (y) ; marriage settlements; 
 transfers or assignments of any ship or vessel; transfers of 
 goods in the ordinary course of 1 business of any trade or calling; 
 bills of sale of goods in foreign parts, or at sea; bills of lading; 
 India warrants; warehouse keepers’ certificates; warrants or 
 orders for the delivery of goods, or any other documents used 
 in the ordinary course of business, as proof of the possession or 
 control of goods (z), or authorizing, or purporting to authorize, 
 
 (s) Ex parte Newitt, Re Garrud 
 (1880), 16 Ch. D. 522; Re Round- 
 wood Colliery Co., Lee v. Round- 
 wood Colliery Co., (1897) 1 Ch. 
 373. 
 
 (£) Pulbrooh v. Asliby (1887), 
 56 L. J. Q. B. 376; Stevens v. 
 Marston (1890), 60 L. J. Q. B. 
 192; and compare Re Roundwood 
 Colliery Co., Lee v. Roundwood 
 Colliery Co., supra. 
 
 ( u ) Jarvis v. Jarvis (1893), 63 
 
 L. J. Ch. 10. This decision is 
 criticised in Weir on Bills of Sale, 
 65, 323. 
 
 (as) Re Willis, Ex parte Ken- 
 nedy (1888), 21 Q. B. D. 384; 
 Green v. Marsh, (1892) 2 Q. B. 
 330; and compare Mumford v. 
 Collier (1890), 25 Q. B. D. 279. 
 
 {y) Hadley v. Beedom, (1895) 1 
 Q. B. 646. 
 
 (z) See Re Hamilton, Ex parte 
 Carter, (1905) 2 K. B. 772. 
 
 si on, and 
 powers of 
 distress. 
 
 Agreement 
 for charge. 
 
 Attornments. 
 
 Court will 
 consider all 
 the facts. 
 
 What instru- 
 ments are not 
 bills of sale : 
 
 (a) exceptions 
 in the act of 
 1878 : 
 
268 
 
 BK. I., PT. III. BILLS OF SALE. 
 
 either by indorsement or by delivery, the possessor of such 
 document to transfer or receive goods thereby represented. The 
 words “ marriage settlements,” however, only include ante- 
 nuptial settlements, settlements made after the marriage, but 
 in pursuance of ante-nuptial agreement ( a ), and ante-nuptial 
 agreements for a marriage settlement (6) . Any other post- 
 nuptial settlement of personal chattels is a bill of sale within 
 the act of 1878 if the settlor remains in possession, and forms 
 a good example of an absolute bill of sale. It would seem, 
 however, that a settlement made by a husband in favour of his 
 wife of furniture in the house in which they are living together 
 does not require registration as a bill of sale, since on the 
 execution of the settlement the furniture passes out of his pos- 
 session into hers (c). A mortgage of a barge is an “ assignment 
 of a vessel” within the meaning of the exception, and does not 
 require registration under the Bills of Sale Acts (d). 
 
 (b) exceptions By s 17 0 £ the act of 1882, the act is not to apply to deben- 
 
 1882: tures issued by any mortgage, loan, or other incorporated 
 
 company, and secured on the capital stock or effects of the 
 company. The proper construction of this provision is that the 
 acts do not apply to debentures issued by companies registered 
 under the Companies Act, and their registration elsewhere 
 is now provided for (e) . The exemption, however, does not 
 extend to a society registered under the Industrial and Provi- 
 dent Societies Act, 1862, and the debentures of 1 such a society 
 must therefore be registered under the Bills of Sale Acts(/). 
 
 (c) exceptions By Bie Bills 0 f' Sale Acts, 1890 and 1891, certain letters of 
 
 m the acts of 
 
 1890 and hypothecation, i.e., those creating a security or the like on 
 imported goods prior to their being deposited in a warehouse, 
 
 (a) Re Reis , Ex parte Clough, 
 (1904) 2 K. B. 769. 
 
 ( b ) Wenman v. Lyon, (1891) 2 
 
 Q. B. 192. 
 
 (c) Ramsay v. Margrett, (1894) 
 2 Q. B. 18; and see Re Satter- 
 thwaite, Ex parte The Trustee 
 (1895), 2 Manson, 52. 
 
 ( d ) Gapp v. Bond (1887), 19 
 
 Q. B. D. 200. 
 
 (e) Read v. Joannon (1890), 25 
 Q. B. E). 300; Re The Standard 
 Manufacturing Co., (1891) 1 Ch. 
 627; Clark v. Balm, (1908) 1 
 K. B. 667. 
 
 (/) G. N . Rail. Co. v. The Coal 
 Co-operative Society, (1896) 1 Ch. 
 187. 
 
WHAT ARE PERSONAL CHATTELS WITHIN THE ACTS. 
 
 269 
 
 &c. or being re-shipped, are excluded from the operation of the 
 acts. 
 
 Again, a document accompanying the pledge of" goods as a 
 security for money need not be registered to make it valid (p fl ); 
 nor need an agreement entitling an agent to retain goods after 
 they ha\e come into his possession to secure advances made to 
 his principal (h ) ; nor need a building contract which provides 
 that all materials brought on the land by the contractor shall 
 become the property of 1 the contractor’s employer (i ) . But iti 
 has been held that an assignment of a building agreement, with 
 plant and materials on the land, as a security for a loan, is. 
 a bill of sale needing registration as to the plant and 
 materials (Jc) . 
 
 111. — WHAT ARE PERSONAL CHATTELS WITHIN THE ACTS. 
 
 By s. 4 of the act of 1878, the expression “ personal chattels ’ 
 means — 
 
 Goods, furniture and other articles capable of complete 
 transfer by delivery, and (when separately assigned or charged) 
 fixtures and growing crops; but does not include chattel inte- 
 rests in real estate; nor fixtures (except trade machinery, as 
 hereinafter defined), when assigned together with a freehold 
 or leasehold interest in any land or building to which they are 
 affixed (l); nor growing crops when assigned together with 
 any interest in the land on which they grow; nor shares or 
 interests in the stock, funds, or securities of any government, 
 or in the capital or property of incorporated or joint stock 
 companies; nor choses in action (m); nor any stock or produce 
 
 (g) Re Hall, Ex parte Close 
 (1884), 14 Q. B. D. 386; Re Cun- 
 ningham & Co., Ltd. (1884), 28 
 Ch. D. 682; Charlesworth v. 
 Mills, (1892) A. C. 231. 
 
 (h) Morris v. JDelobbel-Flipo, 
 (1892) 2 Ch. 352. 
 
 (i) Reeves v. Barlow (1884), 12 
 Q. B. D. 436. 
 
 {k) Church v. S age (1892), 67 
 L. T. 800. 
 
 (Z) See Small v. National Pro- 
 vincial Bank of England, (1894) 
 1 Ch. 686. 
 
 (m) This includes a future in- 
 terest in settled chattels; Re 
 Thynne, (1911) 1 Ch. 282. 
 
 Pledges of 
 goods, &c. 
 
 Personal 
 
 chattels, 
 
 (a) within 
 the acts ; 
 
 (b) not within 
 the acts. 
 
270 
 
 Fixtures are 
 not within 
 the acts, 
 
 except trade 
 machinery. 
 
 Fixtures not 
 
 separately 
 
 assigned. 
 
 BIv. I., PT. III. BILLS OF SALE. 
 
 upon any farm or lands which, by virtue of any covenant or 
 agreement or custom of the country, ought not to be removed 
 from any farm where the same are at the time of making or 
 giving of such bill of sale. 
 
 Sect. 7 of the act provides that no fixtures or growing crops 
 shall be deemed to be separately assigned or charged, by reason 
 only that they are assigned by separate words, or that power is 
 given to sever them from the land or building without other- 
 wise taking possession of or dealing with such land or building, 
 if by the same instrument any freehold or leasehold interest in 
 the land or building is also conveyed or assigned to the same 
 person. By s. 5, trade machinery is to be deemed to be per- 
 sonal chattels, and any mode of disposition of trade machinery 
 by the owner thereof which would be a bill of sale as to any 
 other personal chattels is to be deemed to be a bill of sale (n) . 
 Trade machinery means the machinery used in or attached to 
 any factory or workshop, with the following exceptions: — 
 (1) Fixed motive powers, such as water wheels and steam 
 engines, steam boilers, donkey engines, and other fixed appur- 
 tenances to the said motive powers; (2) the fixed power 
 machinery, such as the shafts, wheels, drums, and their fixed 
 appurtenances, which transmit the action of the motive powers 
 to the other machinery, fixed and loose; (3) pipes for steam, 
 gas, and water in the factory or workshop. The excepted 
 machinery, it should be noted, is to be deemed not merely “ not 
 trade machinery,” but “not personal chattels,” from which it 
 follows that an assignment of such excepted machinery is not 
 in any circumstances a bill of sale (o). A factory or workshop 
 means any premises on which any manual labour is exercised 
 by way of trade, or for purposes of gain, in or incidental to 
 the making of any article, or part of an article, or to the alter- 
 ing or repairing, ornamenting or finishing of any article, or to 
 the adapting for sale of any article. 
 
 It has been decided that where a mortgage is made of land 
 
 (n) Be Lusty (1889), 60 L. T. 
 160; Small v. National Provincial 
 Bank, (1891) 1 Oh. 686; Be 
 Brooke, (1894) 2 Cli. 647; and see 
 
 •Johns v. Ware, (1899) 1 Ch. 359. 
 
 (o) See Topham v. Greenside 
 Glazed Firebrick Co. (1887), 37 
 Ch. D. 281. 
 
WHAT ARE PERSONAL CHATTELS WITHIN THE ACTS. 
 
 271 
 
 and there is no express assignment of trade machinery, but 
 such machinery passes as an incident of the land, the mortgage 
 is not a bill of sale of personal chattels (p) . 
 
 W e may here consider how far a bill of sale can be framed so 
 as to affect after-acquired chattels. To state the matter briefly, 
 it is now useless (subject to the exceptions stated below) to 
 make a mortgage of after-acquired chattels by bill of sale; 
 for by 6. 4 of the act of 1882 the bill must have annexed to 
 it a schedule containing an inventory of the property comprised 
 in the bill, and it will be void (except as against the grantor) 
 as to chattels not so described; and again, by s. 5, such a 
 bill will be void (except as against the grantor) in respect of 
 chattels of which the grantor was not the true owner at the 
 time of execution. Although these provisions would seem to 
 imply that as against the grantor a bill of sale of after-acquired 
 chattels is good, yet it has been held that, owing to s. 9, which 
 invalidates a bill given by way of security altogether, unless 
 made in accordance with the form in the schedule to the act, 
 the bill will be void even against the grantor if it extends to 
 after-acquired chattels, for if the goods are not described in 
 the schedule, the bill is not in the statutory form (g) . 
 
 However, by s. 6 of the Bills of Sale Act, 1882, nothing in 
 the foregoing sections of the act is to render a bill of sale 
 void in respect of any of the following things: — (i) Any 
 growing crops separately assigned or charged, where such crops 
 are (actually growing at the time when the bill of sale was 
 executed, and (ii) any fixtures separately assigned or charged, 
 and any plant (r) or trade machinery, where such fixtures, 
 plant or trade machinery are used in, attached to or brought 
 upon any land, farm, factory, workshop, shop, house, ware- 
 house or other place in substitution for any of the like fixtures, 
 plant or trade machinery specifically described in the schedule 
 to such bill of sale. And, since the statutory form permits the 
 insertion of any terms which the parties may agree to “ for 
 
 How far 
 after- acquired 
 chattels can 
 be covered by 
 bill of sale. 
 
 Crops, fixtures 
 and plant 
 can still be 
 assigned. 
 
 (p) Batcheldor v. Yates (1888), App. Cas. 506. 
 
 38 Cb. D. 112; Be Brooke, supra ; ( r ) Cab-borses are not “plant”: 
 
 Be Lusty, supra ; Be Bargen, London and Eastern Counties Loan 
 (1894) 1 Q. B. 444. • and Discount Co. v. Creasy, (1897) 
 
 ( q ) Thomas v. Kelly (1888), 13 1 Q. B. 768. 
 
272 
 
 BK. I., PT. III. BILLS OF SALE. 
 
 Absolute bills 
 may extend 
 to after- 
 acquired 
 property. 
 
 Requirements 
 of the 1878 
 act. 
 
 Result of 
 failure to 
 comply with 
 them. 
 
 the maintenance of the security,” where a bill of sale of fur- 
 niture to secure money contained a covenant by the grantor 
 to replace any of the goods described in the schedule, if worn 
 out, by other goods of a similar nature, it was held that the bill 
 of sale was good, the covenant being merely a term “ for the 
 maintenance of the security” (s). 
 
 Further, since the provisions of the act of 1882 only apply to 
 bills to secure money, an absolute bill of sale of after-acquired 
 chattels can still be validly made. 
 
 IV. — THE REQUISITES OF THE ACT OF 1878 AS TO THE EXECUTION 
 AND ATTESTATION OF ABSOLUTE BILLS OF SALE. 
 
 Absolute bills of sale are, as already stated, governed solely 
 by the act of 1878, and though ss. 8, 10 (1), and 20 of that ,act 
 are repealed by the act of 1882, as regards bills of sale given by 
 way of security on or after the 1st November, 1882, their 
 provisions still apply to absolute bills whenever executed, and 
 to bills given by way of security before that date(£). An 
 absolute bill of sale must, therefore, comply with s. 8 of the 
 act of 1878, which provides that every bill of sale to which the 
 act applies must be duly attested, and must be registered within 
 seven days after the making or giving thereof, and must set 
 forth the consideration for which it is given. 
 
 The result of not complying with these requirements is that 
 the bill of sale will be void as against all trustees or assignee^ 
 of the estate of the person whose chattels, or any of them, are; 
 comprised in the bill, under the bankruptcy law or under any 
 assignment for the benefit of the creditors of such person, and 
 also as against every person on whose behalf' process of execu- 
 tion has been issued. But the bill is only void as against these 
 persons so far as regards the property in or right to the posses- 
 
 0) Seed v. Bradley , (1894) 1 (1883), 23 Ch. D. 409; Swift v. 
 
 Q. B. 319; Coates v. Moore, Pannell (1883), 24 Ch. D. 210; 
 (1903) 2 K. B. 140; 72 L. J. Iv. B. Casson v. Churchley (1884), 53 
 539. L. J. Q. B. 335. 
 
 ( t ) Ex parte Izard, Be Chappie 
 
AS TO THE EXECUTION AND ATTESTATION OF BILLS OF SALE. 
 
 273 
 
 sion of any chattels comprised in such hill which at or after 
 the filing of the bankruptcy petition, or of the execution of 
 such assignment, or of' executing such process, and after the 
 expiration of such seven days, are in the possession or apparent 
 possession of the person making the bill of sale. The chattels' 
 will be deemed to be in his apparent possession so long as they 
 remain or are in or upon any house, mill, warehouse, building, 
 works, yard, land, or other premises occupied by him, or are 
 used and enjoyed by him in any place whatsoever, notwith- 
 standing that formal possession may have been taken by or 
 given to any other person (u ) . 
 
 With regard to attestation, s. 10 requires the execution to be 
 attested by a solicitor, and the attestation to state that before 
 the execution of the bill the effect thereof was explained to the 
 grantor by the attesting solicitor. But a bill not so attested 
 will not be void as against the grantor; it will only be void 
 against an execution creditor or trustee in bankruptcy, or trustee 
 under a deed of assignment, if the goods are allowed to remain 
 in the possession of the grantor as apparent owner (x ) . 
 
 Curiously enough, it has been held that though the attesta- 
 tion must contain a statement that the attesting solicitor ex- 
 plained the effect of the bill to the grantor before execution, it 
 is not necessary to the validity of the bill that any such expla- 
 nation shall in fact have been given (y ) . And further, it is not 
 necessary that such a statement shall be contained in the 
 affidavit, which, as explained hereafter, has to be filed upon the! 
 registration of the bill ( 2 ) . 
 
 The attesting witness must be a solicitor; but it does not 
 seem to bo necessary that he should be practising for himself 
 or even that he should have a certificate (a). The grantee of 1 
 
 “ Apparent 
 possession.” 
 
 Bill of sale 
 under the 
 1878 act 
 must he 
 attested by 
 solicitor. 
 
 How far 
 explanation 
 before execu- 
 tion is 
 required. 
 
 Attesting 
 solicitor need 
 not be prac- 
 tising nor 
 have certi- 
 ficate. 
 
 ( u ) s. 4. See Ancona v. Rogers 
 (1876), 1 Ex. D. 285; Ex parte 
 Saffery (1881), 16 Ch. D. 668; 
 Re Eales, Ex parte Steel (1905), 
 54 W. R. 202; see also Ex parte 
 Homan (1871), L. R. 12 Eq. 5S8; 
 Smith v. Wall (1868), 18 L. T. 
 182. 
 
 ( x ) Davis v. Goodman (1880), 5 
 0. P. D. 128. 
 
 (; y ) Ex parte National Mercan- 
 tile Bank, Re Haynes (1880), 15 
 Ch. D. 42. 
 
 (z) Ex parte Bolland, Re Roper 
 (1882), 21 Ch. D. 543. 
 
 (a) Hill v. Kirkwood (1880), 42 
 
 L. T. 105. 
 
 T 
 
274 
 
 Effect of 
 subsequent 
 bill on prior 
 unregistered 
 
 bill. 
 
 Bills of sale 
 given as 
 security for 
 money. 
 
 BK. I., PT. III. BILLS OF SALE. 
 
 the bill, even if he is a solicitor, is disqualified from acting as 
 the attesting witness (6). But a solicitor who acts for both 
 parties to the bill (c), or even for the grantee only (d), may 
 attest the bill. 
 
 If an absolute bill of sale is not registered, and the grantor 
 subsequently executes another absolute bill, which is duly re- 
 gistered, the latter will take priority over the former (e); but, 
 if the second bill of sale were given as a security, it would be 
 void, and the title of the assignee under the unregistered 
 absolute bill would prevail, owing to s. 5 of the act of 1882,, 
 which renders void (except as against the grantor) a bill of sale 
 to secure money comprising goods of which at the time the 
 grantor is not the true owner (/). And the absolute bill would 
 still have priority, although it was not duly attested or did not 
 set forth the consideration truly, for, as explained above (g), 
 failure to comply with the requirements of the act of 1878 
 does not make the bill void between the parties, but only against 
 the grantor’s trustee in bankruptcy, or a trustee under a deed 
 of assignment, or an execution creditor, so far as the goods 
 remain in the grantor’s apparent possession. 
 
 V. — THE REQUISITES OF THE ACT OF 1882 AS TO THE CONTENTS, 
 EXECUTION AND ATTESTATION OF BILLS OF SALE BY WAY OF 
 SECURITY. 
 
 We must now turn to the act of 1882, and see what its re- 
 
 quirements are with respect to I 
 for money and registered on or 
 
 (5) Seal v. Claridge (1881), 7 
 Q. B. D. 516. 
 
 (c) Vernon v. Cooke (1880), 49 
 L. J. C. P. 767. 
 
 ( d ) Penwarden v. Roberts 
 (1882), 9 Q. B. D. 137. 
 
 (e) Act of 1878, s. 10. Conelly 
 v. Steer (1881), 7 Q. B. D. 520; 
 
 nils ol sale given as a security 
 after 1st November, 1882 ( h ). 
 
 Lyons v. Tucker (1881), 7 Q. B. D. 
 523. 
 
 (/) Tuck v. Southern Counties 
 Deposit Bank (1889), 42 Ch. D. 
 471. 
 
 ( g ) Supra, p. 273. 
 
 (^) Hickson v. Darlow (1883), 
 23 Ch. D. 690; Swift v. Pannell 
 (1883), 24 Ch. D. 210. 
 
CONTENTS, EXECUTION AND ATTESTATION OF BILLS OF SALE. 
 
 275 
 
 The first of these is contained in s. 4, which requires every Every bill 
 bill of sale to have “annexed thereto or written thereon” a schedule of 
 schedule containing an inventory of the chattels comprised in 
 the bill, and provides that the bill shall only have effect in 
 respect of the chattels specifically described in such schedule, 
 and shall be void except as against the grantor in respect of 
 any chattels not so described. We have seen that it was decided 
 in Thomas v. Kelly (i) that if the bill extends to goods not 
 specifically described in the schedule to the bill it will be void 
 altogether under s. 9 of the act, since it is then not in the form 
 given in the schedule to the act. This is subject to the quali- 
 fication illustrated by Seed, v. Bradley explained above. This 
 schedule need not contain a detailed description of each article, 
 but it must contain such an inventory as is usual in business; a 
 mere general description, such as “ household furniture and 
 effects,” has been held insufficient (1c ) ; on the other hand, the 
 words “my farming stock, comprising four horses,” have been 
 held a sufficient description of two mares, a horse and a pony (l). 
 
 Secondly, the bill will be void, except as against the grantor, Grantor must 
 in respect of any chattels, even though specifically described in of true owner 
 the schedule, of which the grantor was not the true owner at chattels, 
 the time of the execution of the bill (m ) . But a mortgagor 
 remains, sufficiently, the “true owner” of goods comprised in 
 a bill of sale to be able to make a valid second bill of sale of 
 them (n). And where one of two partners with the assent of 
 his co-partner mortgaged the partnership goods for a loan for 
 the benefit of the partnership, it was held that he was the true 
 owner to the extent of his share in the partnership goods, but 
 the bill was held void as to the goods which belonged to his 
 co-partner (o). 
 
 ( i ) (1888), 13 App. Cas. 506. 
 
 ( k ) Roberts v. Roberts (1884), 
 13 Q. B. D. 794. 
 
 ( l ) Jones v. Roberts (1890), 34 
 Sol. Jour. 254. See also Car - 
 penter v. JDeen (1889), 23 Q. B. D. 
 566. 
 
 (m) s. 5. 
 
 (ft) Thomas v. Searles, (1891) 
 
 2 Q. B. 408. 
 
 (o) Re Tamplin , Ex parte Bar- 
 nett (1890), 59 L. J. Q. B. 194; 
 see also Re Field, Ex parte 
 Pratt (1890), 63 L. T. 289; Tuck 
 v. Southern Counties Deposit Bank 
 (1889), 42 Oh. D. 471; Re Sari, 
 Ex parte Williams, (1892) 2 Q. B. 
 591. 
 
276 
 
 BK. I., PT. III. BILLS OF SALE. 
 
 Exceptions. The provisions of the two foregoing sections are subject to 
 the qualifications contained in s. 6 of the act stated above (p). 
 
 Bill must be 
 attested, re- 
 gistered, and 
 truly set forth 
 consideration. 
 
 Attestation 
 must be by 
 one or more 
 witnesses. 
 
 The next requirements of the act are contained in s. 8, and 
 are that every bill shall be duly attested; shall be registered 
 within seven clear days of execution, or, if executed in any 
 place out of England, then wdthin seven clear days after the 
 time at which it would, in the ordinary course of post, arrive 
 in England if posted immediately after execution; and shall 
 truly set forth the consideration. These requirements will be 
 found discussed more fully below (q ) . Where they are not 
 complied with, the bill of sale is not wholly void as it is when 
 not in the statutory form (r) ; it is merely void as to the 
 chattels comprised in it, and a covenant to repay the money, 
 contained in the bill remains good, and can be sued upon (s) . 
 
 Sect. 10 provides that the execution of the bill by the 
 grantor shall be attested by one or more credible witness or 
 witnesses not being a party or parties to the bill. By repeal- 
 ing s. 10 of the act of 1878, the section makes it unnecessary 
 that the execution of the bill shall be attested by a solicitor, 
 and that the attestation shall state that before the execution 
 the effect of the bill has been explained by the attesting wit- 
 ness in the case of a bill given as security for money. There 
 is nothing to prevent the grantee from being appointed the 
 attorney of the grantor to execute the bill(£); but the mode 
 of attestation must comply w r ith the statutory form by which 
 the witness must sign his name and add his address and de- 
 
 scription (u). The business address of the witness suffices (%), 
 and the address will be sufficient even though it be neither the 
 witness’s residential nor his business address, provided it is one 
 at which he is known, and where information regarding him 
 may be obtained (jj) . When the same witness attests the signa- 
 
 (p) Ante , p. 271. 
 
 (q) Infra, p. 283 et seq. 
 
 ( r ) See Davies v. Dees (1886), 
 
 17 Q. B. D. 408. 
 
 (s) Heseltine v. Simmons, 
 (1892) 2 Q. B. 547. 
 
 (£) Furnivall 
 (1893) 1 Cli. 335. 
 
 ( u ) Parsons v. Brand (1890), 25 
 Q. B. D. 110; Sims v. Trollope, 
 (1897) 1 Q. B. 24. 
 
 (x) Simmons v. Woodward, 
 (1892) A. 0. 100. 
 
 ( y ) Dolcini v. Dolcini, (1895) 1 
 Q. B. 898. 
 
 v. 
 
 Hudson, 
 
CONTENTS, EXECUTION AND ATTESTATION OF BILLS OF SALE. 
 
 277 
 
 tures of two grantors, and separate attestation clauses are used, 
 it is not necessary that he should add his address and descrip- 
 tion twice ( 0 ) . 
 
 Sect. 12 provides that every bill of’ sale made or given in> 
 consideration of any sum under 3.01. shall be void. A curious 
 case (a) was decided under this section. A loan of 1 15/. only 
 was to be made, and in order to avoid the section in the bill 
 of sale given to secure the loan the consideration was stated to 
 be 30/., of which 15/. was to be repayable on demand. Imme- 
 diately after the execution of the bill the grantee demanded 
 repayment of 15/., which was repaid. It was held that, in the 
 absence of evidence to show the transaction was a sham, the bill 
 was Valid. But such a bill of sale would now be held void alto- 
 gether, as it has been since decided that the money must not 
 be repayable on demand nor a certain time after demand (&•), 
 though it may be made payable “on or before” a certain 
 day (c). 
 
 Lastly, by s. 9, a bill of sale made or given by way of 
 security for the payment of money is Void, unless made in ac- 
 cordance with the form in the schedule to the act. If it is not 
 in accordance with the statutory form it is void not merely as a 
 security over the chattels comprised in it but void altogether, 
 so that the covenant for the repayment of the money and interest 
 cannot be sued upon, though the principal money might be 
 recovered in a common law action for money lent with interest 
 at 5 per cent. (d). 
 
 Apparently a bill of sale is not “in accordance with the 
 form” if its legal effect, had it been enforceable, would have 
 been in any respect different from the legal effect of the form, 
 or if the departure from the form is reasonably calculated to 
 deceive (e,). It has been said that a bill is not in accordance 
 with the statutory form when it departs from that form in any- 
 
 Consideration 
 must be not 
 less than 30?. 
 
 Bill of sale 
 must be in 
 the statutory- 
 form. 
 
 Construction 
 of this 
 provision. 
 
 (z) Bird v. Davey, (1891) 1 
 
 Q. B. 29. 
 
 (a) Davis v. Usher (1884), 12 
 
 Q. B. D. 490. 
 
 (&) Hetherington v. Groome 
 (1884), 13 Q. B. D. 789; Bishop 
 & Sons v. Beale (1884), 1 Times 
 
 L. R. 140. 
 
 (c) De Braam v. Ford, (1900) 
 1 Oh. 142. 
 
 (d) Davies v. Rees (1886), 17 
 Q. B. D. 408. 
 
 (e) Re Barber, Ex parte Stan- 
 ford (1886), 17 Q. B. D. 259. 
 
278 
 
 Illustrations. 
 
 BK. I., PT. III. BILLS OF SALE. 
 
 thing which is a characteristic of that form (f) . The instruc- 
 tions in the brackets in the form itself, however, allow terms to- 
 be inserted “as to insurance, payment of rent or otherwise* 
 which the parties may agree to, for the maintenance or de-: 
 feasance of the security ” (g); and it is a good rule to observe 
 in drafting a bill of sale to secure money, “ not to insert any- 
 thing not reasonably within those brackets” (h). 
 
 If an advance of money is made subject to certain conditions 
 forming part of the bargain between the lender and the bor- 
 rower, as where the lender signs a letter saying that the loan 
 has been made ,on the faith of his representation that the chattels 
 comprised in the bill are his own property free from any charge, 
 and undertaking not to create any further mortgage on them, 
 the bill of sale will not be in the statutory form if the conditions 
 are not inserted, since they operate as a defeasance of the 
 security, and should, therefore, be inserted (£). 
 
 The following is a table showing the cases in which, where 
 the form has not been strictly complied with, the bill has been 
 held good, and where held void. 
 
 Table of Cases decided under Sect. 9 of the Act of 1882. 
 As to Description of Chattels comprised in the Bill. 
 
 Good. 
 
 Bill assigning goods which may 
 be substituted for the goods speci- 
 fically assigned. ( Bouchette v. 
 Attenborough (1887), 3 Times 
 
 L. R. 813.) 
 
 Bill containing a clause that the 
 grantor shall provide, for articles 
 of furniture, set forth in the 
 schedule, which shall be “ worn 
 
 (/) Thomas v. Kelly (1888), 13 
 App. Cas. 536; and see Topley v. 
 Corsbie (1888), 20 Q. B. D. 350. 
 
 ( g ) See Seed v. Brad'ey, (1894) 
 1 Q. B. 319; Peace v. Brooks, 
 (1895) 2 Q. B. 451. 
 
 Void. 
 
 Bill comprising after-acquired 
 chattels not specifically described 
 in the schedule held void even as 
 against the grantor. ( Thomas v. 
 Kelly (1888), 13 App. Cas. 506.) 
 
 Bill comprising chattels real as- 
 well as personal chattels. ( Coch- 
 rane v. Entwistle (1887), 25 
 
 Q. B. D. 116.) 
 
 ( h ) See Melville v. Stringer t 
 (1884), 13 Q. B. D. 392. 
 
 (■ i ) Hall v. Whiteman, (1912). 
 1 Iv. B. 683; Smith v. Whiteman,. 
 (1909) 2 K. B. 437. 
 
TABLE OF CASES DECIDED UNDER 1882 ACT. 
 
 279 
 
 Good. 
 
 out,” other similar articles. 
 ( Seed v. Bradley, (1894) 1 Q. B. 
 319; Coates v. Moore, (1903) 2 
 
 K. B. 140. 
 
 Bill assigning besides goods 
 certain title deeds specified in the 
 schedule. ( Swanley Coil Co. v. 
 Denton, (1906) 2 K. B. 873.) 
 
 Void. 
 
 Bill which describes goods as 
 “at 47, Mortimer Street; 450 oil 
 paintings in gilt frames ” 
 
 ( Witt v. Banner (1887), 20 
 
 Q. B. D. 114; but compare 
 Cooper v. Huggins (1889), 34 
 Sol. Jour. 96.) 
 
 As to the Repayment of the Money secured and Interest 
 
 thereon . 
 
 Good. 
 
 Bill reserving a monthly in- 
 stead of a yearly rate of interest. 
 ( Lumley v. Simmons (1886), 34 
 
 Ch. D. 698.) 
 
 Bill reserving payment of in- 
 terest by amounts varying from 
 time to time. ( GoMstrom v. Tal- 
 lerman (1886), 18 Q. B. D. 1.) 
 
 Bill reserving interest at five 
 per cent, per month, the grantor 
 agreeing to repay the loan by 
 specified monthly instalments till a 
 certain date, when the balance is 
 to be paid. ( Edwards v. Marston, 
 (1891) 1 Q. B. 225.) 
 
 Bill to secure 150?. and interest 
 at 4 1. per cent, per annum, the 
 grantor agreeing with the grantee 
 to pay the principal money by 
 equal yearly instalments of 30?. 
 until the whole of the principal 
 and interest is fully paid, and the 
 grantor further agreeing to pay 
 interest on the said sum of 150?. 
 at the rate of 4?. per cent, per 
 annum, such interest being pay- 
 able by quarterly payments in each 
 year. (JFearc?a?e Coal and Iron 
 Co. v. Ilodson, (1894) 1 Q. B. 598.) 
 
 Bill making the loan repayable 
 
 Void. 
 
 Bill to secure future advances, 
 where time for repayment thereof 
 and dates of payment of interest 
 not stated. ( Cook v. Taylor 
 
 (1887), 3 Times L. R. 800.) 
 
 Bill which does not show at what 
 rate interest is reserved. ( Myers 
 v. Elliott (1886), 16 Q. B. D. 
 526.) 
 
 Bill reserving compound in- 
 terest. ( Go'dstrom v. Tallerman 
 (1886), 18 Q. B. D. 1.) 
 
 Bill reserving a lump sum by 
 way of interest. ( Blankenstein v. 
 Robertson (1890), 24 Q. B. D. 
 543.) 
 
 Bill given to secure 300?. and 
 interest, accompanied by a mort- 
 gage of land to secure the same 
 300?. and compound interest, is 
 void under s. 10 of the 1878 act 
 as to the chattels comprised in it, 
 though not void altogether under 
 s. 9 of the 1882 act. ( Edwards v. 
 Marcus, (1894) 1 Q. B. 587.) 
 
 Bill given as security against 
 moneys the grantee might be called 
 on to pay under an indemnity 
 given by him. ( Hughes v. Little 
 (1888), 18 Q. B. D. 32.) 
 
280 
 
 BK. I., PT. III. BILLS OF SALE. 
 
 Good. 
 
 by mixed instalments of principal 
 and interest ( Goldstrom v. Toiler- 
 man (1886), 18 Q. B. D. 1; Rose- 
 field v. Provincial Union Bank , 
 (1910) 2 K. B. 781) or by unequal 
 instalments ( Re Cleaver; Ex p arte 
 Rawlings (1887), 18 Q. B. D. 489), 
 even though the document does not 
 on its face show how many instal- 
 ments will be necessary to satisfy 
 the amount secured, and notwith- 
 standing the repayments in this 
 way may involve complicated cal- 
 culations. ( Re Bargen, (1894) 
 1 Q. B. 444; Linfoot v. Pockett, 
 (1895) 2 Ch. 835.) 
 
 Bill making the money repay- 
 able “on or before ” a certain date. 
 ( Be Braam v. Ford , (1900) 1 Ch. 
 142.) 
 
 Bill in which, on the whole, the 
 amount of interest payable is 
 stated, though this does not at first 
 clearly appear on the face thereof. 
 ( Haslewood v. Consolidated Co. 
 (1890), 63 L. T. 71.) 
 
 Bill to secure loan of 70 1. and 
 interest at Is. in the pound per 
 month, containing covenant to pay 
 principal and interest “ by monthly 
 instalments of seven.” ( Mourmand 
 v. Le Clair, (1903) 2 K. B. 216). 
 
 Void. 
 
 Bill providing that the bill itself 
 should remain in the hands of the 
 grantee after payment off of the 
 amount secured. ( Watson v. 
 Strickland (1887), 19 Q. B. D. 
 391.) 
 
 Bill to secure a sum uncertain, 
 e.g., to indemnify a surety. ( Re 
 Hill, Official Receiver v. Ellis 
 (1895), 2 Manson, 208.) 
 
 Bill whereby the money secured 
 is made payable “ on demand,” or 
 within a certain time after de- 
 mand. ( Melville v. Stringer 
 (1884), 13 Q. B. D. 392; Hetlier- 
 ington v. Groome (1884), 13 
 
 Q. B. D. 789; Re Williams (1883), 
 49 L. T. 475; Bishop & Sons v. 
 Beale (1881), 1 Times L. B. 140; 
 and see Furnivall v. Hudson, 
 (1893) 1 Ch. 335.) 
 
 As to the Insertion of Special Clauses. 
 
 Good. 
 
 Bill declaring that the power of 
 sale conferred by the Conveyanc- 
 ing Act, 1881, shall bo exercisable 
 by the mortgagee as if s. 20 of 
 the act had not been enacted. (Re 
 Morritt (1883), 18 Q. B. D. 222.) 
 
 Void. 
 
 Bill with clause that out of 
 moneys to be realized by a sale 
 the expenses of the sale and the 
 security shall be first discharged. 
 (Calvert v. Thomas and Lloyd 
 (1887), 19 Q. B. D. 204.) 
 
TABLE OF CASES DECIDED UNDER 1882 ACT. 
 
 281 
 
 Good. 
 
 Bill containing clause empower- 
 ing the mortgagee, for the purpose 
 of seizing the good-;, to break open 
 doors and windows. (Ibid.; and 
 Lumley v. Simmons (1887), 34 
 Ch. D. 098.) 
 
 Bill containing the ordinary 
 covenant for further assurance. 
 (lie Cleaver, Ex parte Rawlings 
 (1887), 18 Q. B. D. 489.) 
 
 Bill with covenant by grantor 
 not to remove goods without the 
 consent of the grantee, and to 
 make repayment by insta’ments. 
 (Re Coton, Ex parte Payne (1887), 
 56 L. T. 571.) 
 
 Bill giving the grantee the right 
 lo sell the goods by private treaty 
 or by public auction on or off the 
 premises. (Bournev. Wall (189 1), 
 64 L. T. 530.) 
 
 Bill which contains a covenant 
 by the grantor to insure, and pro- 
 vides that if he does not produce 
 the policy, or the receipt for the 
 current premiums, the grantee 
 shall be at liberty to enter and 
 seize. (Hammond v. Hocking 
 (1884), 12 Q. B. D. 291; and see 
 Briggs v. Pike (1892), 61 L. J. 
 Q. B. 418.) 
 
 Bill giving grantee power to 
 seize for whole of money secured 
 if grantor makes default in pay- 
 ment of any of the instalments 
 by which the money is repayable. 
 (Re Wood, Ex parte Woolf e, 
 (1894) 1 Q. B. 605.) 
 
 Void. 
 
 Bill in which the grantor cove- 
 nants for himself and “ for any 
 other person claiming any interest 
 in the chattels assigned.” (Liver- 
 pool Commercial, &c. Soc. v. 
 Richardson (1886), 55 L. J. Q. B. 
 455 n.) 
 
 Bill in which grantor assigns 
 “ as beneficial owner,” thereby in- 
 corporating the covenants for title 
 under the Conveyancing Act. (Re 
 Barber, Ex parte Stanford (1886), 
 17 Q. B. D. 259.) 
 
 Bill empowering the creditor to 
 seize if debtor fails on demand 
 (without the words “ in writing ”) 
 to produce last receipt for rent, or 
 if he compounds with his creditors 
 (Barr v. Kingsford (1887), 56 
 L. T. 861), unless it is expressly 
 provided that the chattels shall 
 only bo liable to be seized for the 
 causes specified in s. 7 of the 1882 
 act. W ear dale Coal & Iron Co. 
 v. Hodson, (1894) 1 Q. B. 598; 
 Cartwright v. Regan, (1895) 1 
 Q. B. 900; Re Bullock, Ex parte 
 Ward, (1899) 2 Q. B. 517.) 
 
 Bill giving the grantee authority 
 to “ affix such bills and placards 
 having reference to the said chat- 
 tels and things as he or they may 
 think fit on any premises for the 
 time being in the occupation of 
 the grantor.” (Bar dell v. Daykin 
 (1886), 3 Times L. R. 526.) 
 
 Bill with clause that on a sale by 
 the grantee the purchaser need not 
 inquire as to the validity of the 
 seizure. (Blaiberg v. Parsons 
 (1886), 17 Q. B. D. 336; Blaiberg 
 v. Beckett (1886), 18 Q. B. D. 96.) 
 
282 
 
 BK. I., PT. III. BILLS OF SALE. 
 
 Good. Void. 
 
 Bill allowing seizure upon tlie 
 grantor taking the benefit of any 
 Bankruptcy Act. ( Gilroy v. 
 Bowey (1888), 59 L. T. 223.) 
 
 Bill with clause providing that 
 sums paid by the grantee for rent 
 may be added to the principal 
 moneys. ( Bianchi v. Offord 
 (1886), 17 Q. B. D. 484.) 
 
 Bill requiring the grantor to pay 
 the rent of a house in which the 
 goods are, and, in default, adding 
 such rent to the amount of the 
 loan. ( Beal and Personal Advance 
 Co. v. Clears (1887), 20 Q. B. D. 
 304.) 
 
 Bill containing a covenant by 
 the grantor to pay rates and taxes, 
 with a proviso that in default the 
 grantee may pay them and add 
 them to the security. ( Macey v. 
 Gilbert (1888), 57 L. J. Q. B. 
 461.) 
 
 Miscellaneous. 
 
 Good. 
 
 Bill given by two grantors with 
 separate attestation clauses, but 
 the same witness who in the first 
 attestation clause gives his name, 
 address, and description, and in 
 the second only gives his name. 
 ( Bird v. Davey, (1891) 1 Q. B. 
 29.) 
 
 Bill made subject to a former 
 registered mortgage bill of sale. 
 ( Thomas v. Searles, (1891) 2 
 
 Q. B. 408.) 
 
 Void. 
 
 Bill attested by a witness of no 
 occupation, and mere'y giving his 
 name and address, and not adding 
 the description of “ gentleman.” 
 ( Sims v. Trollope, (1897) 1 Q. B. 
 24.) 
 
 Bill containing no covenant to 
 repay the principal. {Re Moore , 
 Ex parte Official Receiver (1897), 
 4 Manson, 51.) 
 
 Bill accompanied by a bill of 
 exchange or promissory note. 
 ( Monetary Advance Co. v. Cater 
 (1888), 20 Q. B. D. 785; and see 
 Counsell v. L. & W. Loan and 
 
28 & 
 
 PROVISIONS OF ACTS AS TO CONSIDERATION, ETC. 
 
 Good. Void. 
 
 Discount Co. (1887), 19 Q. B. D. 
 512; Griffin v. Union Deposit 
 Bank (1887), 3 Times L. R. 608; 
 Onn v. Fisher (1889), 5 Times 
 L. R. 504.) 
 
 Bill omitting to give the address 
 of the grantee. ( Altree v. Altree, 
 (1898) 2 Q. B. 267.) 
 
 Bill omitting to give a receipt 
 for the consideration money. 
 {Davies v. Jenkins , (1900) 1 Q. B. 
 133.) 
 
 Bill given by two grantors who 
 are not jointly interested in the 
 goods, but are each owner of a 
 portion. {Saunders v. White, 
 (1902) 1 K. B. 472.) 
 
 Bill the terms of which are sub- 
 sequently modified by written 
 agreement {Petitt v. Lodge, 
 (1908) 1 K. B. 744), or which 
 contains no reference to conditions 
 set out in a contemporaneous 
 document forming part of the 
 bargain between the parties, the 
 effect of which conditions, if in- 
 serted, would have been to operate 
 as a defeasance of the security. 
 {Smith v. Whiteman (1909), 78 
 L. J. K. B. 1073; Hall v. White- 
 man, (1912) 1 K. B. 683.) 
 
 VI. — THE PROVISIONS OF THE ACTS AS TO THE CONSIDERATION, 
 REGISTRATION AND RE-REGISTRATION OF A BILL OF SALE. 
 
 The Consideration. 
 
 The greatest care must be taken in stating the consideration Consideration 
 for which the bill is given, whether it be absolute or by way of 
 security (fc); a statement of it which does not comply with the set forth. 
 
 {k) See s. 8 of both acts. 
 
284 
 
 BK. I. ? PT. III. BILLS OF SALE. 
 
 All the cir- 
 cumstances 
 attending the 
 payment must 
 he set out. 
 
 Cases illus- 
 trating rule. 
 
 statutory provision will not be remedied by the correct state- 
 ment of it in a receipt appended to the bill; for such a receipt 
 forms no part of the bill, and so cannot be looked to for the 
 purpose of curing any defect in the statement of the considera- 
 tion in the body of the bill (Z) . 
 
 In order to satisfy the statutory provisions, the manner of 
 payment of the consideration, and all the circumstances attend- 
 ing it, must be set out in the fullest possible way, especial care 
 being taken to show what sum of money is actually paid to and 
 received by the grantor for the making of the bill. For this 
 really constitutes the consideration for which the bill is given. 
 On this subject it lias been decided (1) that money in fact 
 owing at the time of the bill of' sale being given from the mort- 
 gagor to the mortgagee may be properly stated as a sum of 
 money then advanced and paid(m); but (2) that where the 
 consideration is stated to consist of “money owing/' and part 
 of it is money secured by a promissory note not due at the 
 date of the bill of sale, the consideration is not truly stated (w) ; 
 nor (3) is it truly stated where money advanced at the time 
 of the bill of sale is improperly stated to be money “now 
 owing" (o); (4) if part of the money for which the bill of 
 sale is given is retained by the mortgagee for interest or a 
 bonus (p). or to pay some debt not yet due (g), or even to pay 
 the expense of the preparation of the bill of sale (this debt not 
 arising until after the mortgage is complete (r)), the money 
 must not be merely expressed to be paid, but the facts must be 
 clearly stated or the bill of sale is void; but (5) if the money 
 expressed to be paid (or a part of it) is in fact by the direc- 
 tion of the grantor, or as a condition of the advance, applied 
 in payment of the mortgagor’s debts, or in discharge of the 
 
 (Z) Be Parker, Ex parte Charing 
 Cross Bank (1880), 16 Ch. D. 35. 
 
 (m) Credit Co. v. Pott (1880), 
 6 Q. B. D. 295. 
 
 (n) Mayer and Fulda v. Min- 
 dlevich (1888), 59 L. T. 400; 
 Barlow v. Bland, (1897) 1 Q. B. 
 125; see also Ex parte Bolph, Be 
 Spindler (1881), 19 Ch. D. 98. 
 
 (o) Davies v. Jenkins , (1900) 
 1 Q. B. 133. 
 
 (p) Ex parte Charing Cross 
 Bank (1880), 16 Ch. D. 35. 
 
 ( q ) Be Spindler, Ex parte Bolph 
 (1881), 19 Ch. D. 98. 
 
 (r) Ex parte Frith (1882), 19 
 Ch. D. 419; but see In re Cann 
 (1884), 13 Q. B. D. 36. 
 
285 
 
 PROVISIONS OF ACTS AS TO CONSIDERATION, ETC. 
 
 mortgagor’s liability to a third party though not a debt already 
 due, the consideration is considered sufficiently truly stated (s ) . 
 
 If a bill of sale is governed by the act of 1878, .and not by, Difference 
 the act of' 1882, the omission to state the consideration truly o-oterned^by 
 will not render it void as between grantor and grantee (£);, act of 1878 
 but if the bill of sale falls within the act of 1882, the omission governed by 
 makes it void altogether as to the chattels comprised in it, act ot 1882 - 
 though it does not prevent the grantee suing on the covenant 
 contained in the bill to repay the money (u ) . 
 
 Registration. 
 
 Upon applying to register the bill, not only must a true copy True copyof 
 thereof (x), and of elyery schedule or inventory annexed to it, filed with 
 and of every attestation of its execution, be filed, but also an affidavl t- 
 affidavit proving the date of the execution, the due execution, 
 and attestation of the bill, and containing a description of the 
 residence and occupation of' the grantor and of every attesting 
 witness (y ) . This affidavit may be sworn before a master of 
 the High Court or a commissioner (z ) ; and wilf ully to make a 
 false affidavit for the purposes of the act is a misdemeanour (,a) . 
 
 It is not necessary for the grantor to be precisely and Description 
 minutely described, so that an error in his name will be 
 immaterial so long as he can be identified from the descrip- 
 tion (b). But it is necessary for the grantor’s residence and 
 occupation to be accurately described. A misdescription, how- be stated, 
 ever, to be fatal, must be one which is calculated to mislead 
 
 of grantor. 
 
 Residence of 
 grantor must 
 
 (s) Be Wiltshire , (1900) 1 Q. B. 
 
 96. 
 
 (t) Davis v. Goodman (1880), 5 
 C. P. D. 128; ante , p. 273. 
 
 (w) Heseltine v. Simmons , 
 
 (1892) 2 Q. B. 547. 
 
 (cc) See Thomas v. Boberts, 
 (1898) 1 Q. B. 657; Coates v. 
 Moore, (1903) 2 K. B. 140. 
 
 (; y ) s. 10 (2) of the act of 1878. 
 (z) The solicitor of the grantor 
 must not take the affidavit, even 
 though he be a commissioner: 
 
 Baker v. Ambrose, (1896) 2 Q. B. 
 372. 
 
 (а) Perjury Act, 1911, s. 2, 
 repealing and replacing s. 17 of 
 the act of 1878. 
 
 (б) See Ex parte M‘ Hattie, Be 
 Wood (1878), 10 Oh. D. 398; 
 Central Bank v. Hawkins (1890), 
 62 L. T. 901; Stokes v. Spencer, 
 (1900) 2 Q. B. 483; Downs v. 
 Salmon (1888), 20 Q. B. D. 775; 
 compare Lee v. Turner (1888), 
 20 Q. B. D. 773. 
 
286 
 
 BK. I., FT. III. BILLS OF SALE. 
 
 $ 
 
 creditors. If it is but a slight one, and one which is, on the 
 face of it, a mistake and would deceive nobody, it will not 
 invalidate the bill (c) . It has been held that it is sufficient 
 to state the place where the person can be found during the day, 
 and it is not essential to state the place where he sleeps ( d ). 
 And it is sufficient to give one of several residences (e). The 
 place to be given is the residence at the date of the making of 
 the affidavit, and this address is to be given if it should happen 
 that the grantor has changed his place of residence between 
 the execution of the bill of sale and the making of the 
 affidavit (/). 
 
 Occupation of An accurate description of 1 the grantor’s occupation tnust 
 be^tated nUSt a ^ so given in the affidavit ( g ). Thus, it has been held that 
 “gentleman” is not a sufficient description of a solicitor or a 
 solicitor’s clerk (7^), or, as a rule, of any person who has a 
 recognised profession, business, or avocation (i). At the same 
 time, it is not necessary to mention, when he is out of business, 
 any occupation which he has only temporarily or casually 
 followed (7c) . If the grantor has more than one occupation, it 
 would seem that it is not necessary to mention them all, but the 
 principal occupation should be selected; at any rate, the bill 
 is not void if only one is referred to, provided that there was 
 no intention to deceive and no likelihood of deceiving (7). 
 
 (c) Hewer v. Cox (1860), 30 
 L. J. Q. B. 73; but see Murray 
 v. Mackenzie (1857), L. R. 10 
 0. P. 625; compare Blount v. 
 Harris (1878), 4 Q. B. D. 603. 
 
 (d) Attenborough v. Thompson 
 (1857), 2 H. & N. 559. 
 
 (e) Greenham v. Child (1889), 
 24 Q. B. D. 29. 
 
 (/) Button v. O'Neil (1879), 4 
 O. P. D. 354. 
 
 ( g ) See Neverson v. Seymour 
 (1908), 97 L. T. 788. 
 
 ( h ) Tuton v. Sanoner (1858), 
 27 L. J. Ex. 293; Beales v. 
 
 Tennant (1860), 29 L. J. Q. B. 
 188. 
 
 (i) See Ex parte Homan, Be 
 Broadbent (1871), L. R. 12 Eq. 
 598; Allen v. Thompson (1856), 
 1 H. & 1ST. 15; Matthews v. 
 Buchanan (1888), 5 Times L. R. 
 373. 
 
 ( k ) Smith v. Cheese (1875), 1 
 O. P. D. 60; see also Morewood 
 v. South Yorkshire Co. (1858}, 28 
 L. J. Ex. 114; Feast v. Robin- 
 son (1894), 63 L. J. Ch. 321. 
 
 ( l ) Ex parte National Mercan- 
 tile Bank, Re Haynes (1880), 15 
 Ch. D. 42; Throssell v. Marsh 
 (1885), 53 L. T. 321. 
 
287 
 
 PROVISIONS OF ACTS AS TO CONSIDERATION, ETC. 
 
 If there is a discrepancy between the descriptions in the bill Discrepancy 
 and in the affidavit, the bill will be invalidated as a rule. lit 0 f sale and 
 has, however, been held that if the description of the grantor’s a ®^* vlt ' 
 residence or occupation be insufficient in the affidavit, the pro- bill, 
 visions of the act are satisfied if the description in the bill be 
 alluded to in it (m). But Murray v. Mackenzie (n) and Marks 
 v. Derrick (o) seem to show that the bill will be invalidated if 
 no such allusion is made. 
 
 The affidavit must also state that the bill was duly attested Affidavit must 
 by the attesting witness, which has been interpreted to mean wa^attested. 
 that it must state that he was present and witnessed the due 
 execution. If the affidavit omits to make this statement the 
 registration is invalidated (p). Again, if the jurat to the 
 affidavit omits to give the name of the commissioner before 
 whom the affidavit was sworn, the registration is void (q). 
 
 When there are several witnesses, the affidavit must give the 
 description and occupation of each witness (r). 
 
 In order to effect registration, the bill, with any schedule or How regie- 
 inventory annexed to it or referred to in it, must be presented effected, 
 to the registrar within seven clear days of execution, and a 
 true copy of the bill, and of every schedule or inventory, and of 
 every attestation to its execution, and of the affidavit, must be 
 filed with the registrar at the same time. And if the bill is 
 given subject to any defeasance or condition, or to any declara- 
 tion of trust not contained in it, such defeasance, &c. is deemed 
 part of the bill, and must be written on the same paper as the 
 bill before registration, and must be truly set forth in the copy 
 filed (s). The functions of the registrar are ministerial, not 
 
 (m) Jones v. Harris (1871), 
 L. R. 7 Q. B. 157. 
 
 (n) (1857), L. R. 10 0. P. 625. 
 
 (o) (1899), 80 L. T. 60. 
 
 {p) Sharpe v. Birch (1881), 8 
 Q. B. D. Ill; Ford v. Kettle 
 (1882), 9 Q. B. D. 139. 
 
 ( q ) Brown v. London and 
 County Advance Co . (1889), 5 
 Times L. R. 199. 
 
 ( r ) Pickard v. Marriage (1876), 
 1 Ex. D. 364. 
 
 (s) s. 10 of the act of 1878. 
 See Edwards v. Marcus , (1894) 1 
 Q. B. 587; Smith v. Whiteman, 
 (1909) 2 K. B. 437; Hall v. 
 Whiteman, (1912) 1 K. B. 683. 
 The fee for filing a bill of sale 
 and affidavit is 5s. when the con- 
 sideration for the biil does not 
 exceed 100k, and 10s. if it ex- 
 ceeds 100Z. and does not exceed 
 200Z., and 1Z. above 200Z. 
 
288 
 
 Time for 
 registration. 
 
 Successive 
 bills of sale on 
 same chattels 
 to secure same 
 debt not now 
 allowed. 
 
 BK. I., PT. III. BILLS OF SALE. 
 
 judicial, so that lie must receive and file the papers, though 
 they are insufficient; their validity or otherwise is to be decided 
 by the court, and not by the registrar ( t ). It is his duty to 
 enter in the register the name, residence, and occupation of the 
 grantor of every bill filed, and certain other particulars, and he 
 must also keep an index of the names of the grantors. 
 
 As we have said, the registration must be effected within 
 seven clear days of execution, or (at least in the case of bills of 
 sale within the act of 1882) if executed abroad within seven 
 clear days of the time the bill of sale would have reached 
 England if posted immediately after execution (u). If this 
 time expires on a Sunday, or other day on which the registrar’s 
 office is closed, the bill may be registered on the next following 
 day on which the office is open ( x ) ; and the time for registra- 
 tion may be extended by the court when the omission to register 
 has been purely accidental (y ) . Before the seven days have 
 expired the bill is good, though not registered. So that if 
 within these seven days the grantee takes possession of the 
 goods he will get a good title to them, though the grantor 
 has meanwhile become bankrupt, or the goods have been seized 
 by an execution creditor ( 2 ) . But after the seven days have 
 expired, if the bill be not then registered, it will be void as 
 against an execution creditor, notwithstanding the fact that 
 the creditor has had notice that the bill of sale has been given 
 before his debt was contracted (a) . 
 
 Formerly, in order to avoid the necessity of registration, the 
 device of giving successive bills of sale was resorted to. Imme- 
 diately before the expiration of the period allowed for the 
 registration of the first bill, a second bill was given for the same 
 debt and comprising the same property. Then, again, just 
 before the time for registering this second bill expired, a third 
 bill was given in its place, and so on, the bills being renewed 
 from time to time, but always within the time allowed for 
 registration (6) . But this device is now of no use; for by 
 
 (; t) Needham to Johnson (1867), 
 8 B. & S. 190. 
 
 (u) s. 8 of the act of 1882. 
 
 (cc) s. 22 of the act of 1878. 
 
 ( y ) s. 14 of the act of 1878. 
 
 ( 2 ) See Marples v. Hartley 
 (1861), 3 E. & E. 610. 
 
 (a) Edwards v. Edwards (1876), 
 2 Ch. D. 291. 
 
 ( b ) Ramsden v. Lupton (1873), 
 L. E. 9 Q. B. 17. 
 
289 
 
 PROVISIONS OF ACTS AS TO CONSIDERATION, ETC. 
 
 s. 9 of the act of 1878 it is provided that if a second bill is 
 executed within seven days from the execution of an unregis- 
 tered bill, and includes the same chattels, or some of them, then 
 if the second bill be given as a security for the same debt or 
 part of it, it shall be absolutely null and void (c) . 
 
 The act of 1878, s. 10, provides that the transfer or assign- 
 ment of a registered bill of sale need not be registered. This 
 provision, and also the provision as to the manner of registra- 
 tion, apply to all bills of sale, and not merely to those governed 
 by the act of 1878. 
 
 Re-registration. 
 
 Besides registration in the first instance, the bill must be re- 
 registered every five years, or the registration will become void. 
 The re-registration is effected by filing an affidavit mentioning 
 the date of the bill, and of the last registration thereof, and the 
 names, residences, and occupations of the parties to it, and 
 stating that it is still a subsisting security. The affidavit may 
 be in the form in the Schedule A. to the act of 1878 (<7). 
 This affidavit must, if the grantor’s residence has not been 
 changed, give the same description of the grantor’s address as 
 that contained in the bill itself; or if that is erroneous, it 
 should allude to it as being so, and give the correct address (e). 
 These provisions also apply to all bills. 
 
 The Result of Omission to Register and Re-register 
 
 a Bill of Sale. 
 
 The consequence of an omission to register or re-register a 
 bill of sale within the act of 1882 is to make it void as to the 
 chattels comprised in it (/), so as to prevent any title thereto 
 
 (c) In Re Bargen, (1894) 1 
 Q. B. 444, it was held that a 
 second bill of sale given under a 
 mistake of fact on the part of the 
 grantee, after the bankruptcy of 
 the grantor, was mere’y nugatory, 
 and did not cancel a prior bill of 
 
 sale in the same terms. 
 
 ( d ) s. 11 of the act of 1878. 
 The fee for filing the affidavit for 
 re-registration is 10s. 
 
 (e) Ex parte Webster, Re 
 Morris (1882), 22 Ch. D. 136. 
 
 (/) s. 8 of the act of 1882. 
 
 Transfers 
 need not be 
 registered. 
 
 Bill must be 
 re-registered 
 every five 
 years. 
 
 If a bill of 
 sale is not ' 
 registered it 
 is void, as to 
 chattels com- 
 prised in it. 
 
 G. — C. 
 
 U 
 
290 
 
 Power of 
 court to cure 
 omission to 
 register. 
 
 Action for 
 malicious 
 registration of 
 bill of sale. 
 
 BK. I., PT. III. BILLS OF SALE. 
 
 being acquired by the grantee, hut the covenants in the bill can 
 be sued upon. The consequence of an omission to register or 
 re-register a bill of sale within the act of 1878 is merely to 
 make the bill of sale void as against certain persons as to the 
 chattels comprised in it, and not to invalidate it as between 
 grantor and grantee ( g ) . Besides being good as between the 
 parties, if the grantor dies insolvent, and his estate is being 
 administered, the bill, though unregistered, will be good as 
 against the unsecured creditors, and, notwithstanding s. 10 of 
 the Judicature Act, 1875, the rules in bankruptcy will not 
 apply in this case ( h ) . 
 
 To meet the case of' an accidental omission to register or 
 re-register a bill of sale or of a defective registration, it is pro- 
 vided by s. 14 of the act of 1878 that any judge of the High 
 Court, on being satisfied that the omission to register a bill of' 
 sale or an affidavit of 1 renewal thereof within the time pre- 
 scribed, or the omission or mis-statement of the name, resi- 
 dence, or occupation of 1 any person was accidental or due to 
 inadvertence, may order such omission or mis-statement to be 
 rectified by the insertion in the register of the true name, &c., 
 or by extending the time for registration on such terms as he 
 may think fit. It has been held that the court’s discretion under 
 this section can only be exercised so long as, at the time of 
 application, no third party, e.g., a trustee in bankruptcy, has 
 acquired a right to the chattels comprised in the hill (i). 
 
 It is obvious that the publicity arising from the registration 
 of a document as a bill of sale may prejudicially affect the 
 grantor, and an action may lie against a person who registers 
 a document not requiring registration; but in order to be suc- 
 cessful the plaintiff must prove malice and want of probable 
 cause as well as damage (7r). 
 
 ( g ) s. 8 of the act of 1878. ( i ) Be Parsons, Ex yarte 
 
 ( h ) Be Knott (1877), 7 Oh. D. Furber, (1893) 2 Q. B. 122. 
 
 549, n. (k) Horsley v. Style (1893), 69 
 
 L. T. 222. 
 
UPON WHAT EVENTS THE GOODS CAN EE SEIZED. 
 
 201 
 
 VII . UPON WHAT EVENTS THE GOODS CAN BE SEIZED WHEN 
 
 THE BILL IS BY WAY OF SECURITY FOR THE PAYMENT OF 
 MONEY ONLY. 
 
 The act of 1882 restricts the power of the parties to stipu- 
 late at their pleasure upon what events the usual power to 
 seize the goods comprised in a bill given by way of security 
 shall be exercisable. By s. 7 it is provided that the goods 
 shall not be liable to be seized or taken possession of by the 
 grantee for any other than the following causes: — 
 
 (1) If the grantor makes default in payment of the money 
 
 secured at the time provided for payment, or in the 
 performance of any covenant or agreement con- 
 tained in the bill and necessary for maintaining the 
 security (Z) ; 
 
 (2) If the grantor becomes bankrupt or suffers the goods to 
 
 be distrained for rent, rates, or taxes (in)\ 
 
 (3<) If the grantor fraudulently either removes or suffers the 
 goods, or any of them, to be removed from the 
 premises ; 
 
 (4) If the grantor does not, without reasonable excuse, upon 
 
 demand in writing by the grantee, produce to him 
 his last receipts for rent, rates and taxes (n); 
 
 (5) If execution is levied against the goods of the grantor 
 
 under any judgment at law. 
 
 Moreover, when the grantee has seized, the grantor may, 
 within five days from the seizure, apply to the High Court, or 
 to a judge in chambers, and such court or judge, if satisfied 
 that by payment of 1 money or otherwise the cause of seizure 
 no longer exists, may restrain the grantee from removing or; 
 selling the chattels, or make such other order as may seem 
 just ( 0 ). 
 
 (l) Be Wood, Ex parte Woolf e, 
 (1894) 1 Q. B. 605; Ex parte 
 Ellis, (1898) 2 Q. B. 79. 
 
 (m) See Gilroy v. Bowey (1888), 
 <59 L. T. 223. 
 
 ( n ) See Hammond v. Hocking 
 
 (1884), 12 Q. B. D. 291; Barr v. 
 Kingsford (1887), 56 L. T. 861; 
 Cartwright v. Began, (1895) 1 
 Q. B. 900; Ex parte Wichens, 
 (1898) 1 Q. B. 543. 
 
 (o) See Ex parte Cotton (1883), 
 
 On what 
 events the 
 grantee can 
 seize. 
 
 Grantor may 
 within live 
 clays after 
 seizure apply 
 to restrain 
 sale ; 
 
BK. I., PT. III. BILLS OF SALE. 
 
 292 
 
 chattels 
 cannot be 
 removed for 
 five days. 
 
 Grantor’s 
 rights after 
 removal. 
 
 This section is supplemented by s. IB, which provides that 
 all chattels seized, or of 1 which possession is taken, after the 
 commencement of the act, under or by virtue of any bill, shall 
 remain on the premises where seized or taken possession of, 
 and shall not be removed or sold until after the expiration of 
 five clear days from the day they were seized or taken. But 
 the grantor can waive this provision, since it is merely 
 intended for his benefit (p ) . 
 
 Even after the goods have been removed with a view to their 
 sale, the grantor may redeem them on payment of 1 all that is 
 owing for principal, interest, and costs of seizure and of 
 redemption (q ) . 
 
 VIII. — HOW FAR THE ORDER AND DISPOSITION CLAUSE OF THE 
 BANKRUPTCY ACT IS AFFECTED BY REGISTRATION. 
 
 Reputed 
 ownership 
 clause applies 
 to bills under 
 the 1882 act, 
 not under the 
 1878 act. 
 
 Notwithstanding that a bill of sale is duly made and regis- 
 tered in accordance with the acts, it may nevertheless be in- 
 effective against a trustee in bankruptcy of' the grantor if the 
 goods to which it relates fall within the “ order and disposi- 
 tion ” clause of the Bankruptcy Act (r); for s. 20 of the Bills 
 of Sale Act, 1878, which provides (in effect) that the doctrine 
 of reputed ownership shall not apply to bills executed on or 
 after the 1st January, 1879, provided they are duly registered 
 under the act, is repealed by s. 15 of 1 the act of 1882; so that 
 the doctrine is again applicable to goods comprised in a bill 
 of sale given to secure money on or after 1st November, 1882, 
 even though duly registered (s). But as the order and disposi- 
 tion clause only applies to goods in the possession, order, or 
 disposition of’ the bankrupt in Ms trade or business, the grantee 
 
 11 Q. B. D. 301; Ex p arte 
 Wickens, supra; and distinguish 
 Ex parte Ellis , (1898) 2 Q. B. 79. 
 
 ( p ) Lane v. Tyler (1887), 56 
 L. J. Q. B. 461; Tomlinson v. 
 Consolidated Credit Co. (1889), 24 
 Q. B. D. 135. 
 
 (q) See Johnson v. Diprose, 
 (1893) 1 Q. B. 512; Re Wood, Ex 
 parte Woolf e, (1894) 1 Q. B. 605. 
 
 (r) Bankruptcy Act, 1883, 
 s. 44 (2) (iii). 
 
 (s) Re Ginger, Ex parte London 
 and Universal Bank, (1897) 2 
 Q. B. 461. 
 
ORDER AND DISPOSITION CLAUSE. 
 
 293 
 
 of a bill of sale in due form, and projDerly attested and regis- 
 tered, is protected even though the goods remain in the grantor’s 
 possession at the commencement of his bankruptcy, if the goods 
 are not used by the grantor in his trade or business. Further, 
 the holder of an absolute bill of sale, whether registered before 
 or after 1st November, 1882, if attested and registered as re- 
 quired by the act of 1 1878, is also fully protected as against the 
 trustee in bankruptcy, even though the goods are trade goods; 
 for the repeal of s. 20 of the act of 1878 does not apply to these 
 bills (^) . By the Bills of Sale Acts, 1890 and 1891, certain 
 letters of hypothecation are not bills of sale within either the 
 1878 or 1882 act (w), but the order and disposition clause in 
 the Bankruptcy Act applies to the goods comprised in such 
 letters ( x ) . 
 
 IX .—MISCELLANEOUS MATTERS . 
 
 Entry of Satisfaction. 
 
 Provision is made by s. 15 of the act of 1878 for the entry Entry of 
 of satisfaction, on its being proved that the debt for which sati>,faction * 
 the bill was given has been discharged, and the registrar may 
 order a memorandum of satisfaction to be written on any re- 
 gistered copy of the bill. To procure this order a consent to 
 satisfaction given by the person entitled to the bill of sale, and 
 verified by affidavit, must be produced to the registrar, and 
 filed in the Central Office. The affidavit need not be made by 
 a solicitor ( y ). 
 
 Searches. 
 
 By s. 16 of the act of 1882, the provisions of which on this Searches, 
 point supersede those contained in the act of 1878, any person 
 
 ( t ) See Hickson v. Harlow 
 (1883), 23 Oh. D. 690; Swift v. 
 Pannell (1883), 24 Oh. D. 610. 
 
 (il) See ante, p. 268. 
 
 (cc) s. 2 of the act of 1890. 
 
 ( y ) See White to Rubery, (1894) 
 2 Q. B. 923; and Rules of the 
 Supreme Court, 1883, Ord. LXI. 
 rr. 26, 27. The fee for filing fiat 
 of satisfaction is 5s. 
 
294 
 
 Transmission 
 of particulars 
 to county 
 court. 
 
 Means by 
 which the 
 grantee’ s 
 right may be 
 defeated. 
 
 BIC. I., PT. III. BILLS OF SALE. 
 
 may at all reasonable times search the register on the payment 
 of the prescribed fee, and subject to the prescribed regulations; 
 and may inspect, examine, and make extracts from any regis- 
 tered bill without being required to make any written applica- 
 tion or to specify any particulars in reference thereto; but these 
 extracts are to be limited to the dates of execution, registration, 
 renewal of registration, the names, addresses and occupations 
 of the parties, the amount of the consideration, and other pre- 
 scribed particulars . 
 
 To render it possible, without the necessity of searching in 
 London, to discover whether a bill of sale has been given by 
 a person residing in the provinces, s. 11 of 1 the 1882 act pro- 
 vides that when the affidavit describes the grantor’s residence 
 as being in some place outside the London bankruptcy dis- 
 trict, or where the bill of sale describes the chattels as being 
 out of such district, the registrar must, within three days after 
 registration, transmit an abstract of the contents of the bill to 
 the county court registrar in whose district such places are 
 situate, and if such places are in the districts of different regis- 
 trars, then to each such registrar; which abstract is to be filed, 
 kept and indexed, and any person is to be at liberty to search, 
 inspect, make extracts from, and obtain copies of the abstract. 
 
 The Risks attending a Bill of Sale. 
 
 Although a bill of sale is in the statutory form, properly 
 executed, attested and registered, it is not a perfect security. 
 For in the first place the grantor remains in the possession of 
 the goods, and may defeat the grantee’s right by selling the 
 goods in market overt; secondly, the goods are liable to 
 depreciate in value (z); thirdly, if the goods are in the pos- 
 session of the grantor in his trade or business, and bankruptcy 
 ensues before the grantee has taken the goods out of the order 
 and disposition of the grantor, the goods will pass to the trustee 
 in bankruptcy of the grantor (a); and lastly, the goods may 
 
 ( 2 ) This may to some extent be (a) Re Ginger, Ex parte London 
 met by adopting the plan resorted and Universal Bank, (1897) 2 
 to in Seed v. Bradley, ante, p. 272. Q. B. 461. 
 
MISCELLANEOUS MATTERS. 
 
 295 
 
 be taken by way of distress for rent, rates or taxes, and so 
 lost to the grantee (6). For these reasons, apart from the 
 numerous pitfalls attending the preparation, execution, and 
 attestation of the instrument, a mortgage of personal chattels 
 cannot be regarded as a good form of security for the loan of 
 money . 
 
 The Statutory Form of Bill of Sale. 
 
 The following is a copy of the form of a bill of sale given in 
 the schedule to the act of 1882: — 
 
 Form of Bill of Sale. 
 
 This Indenture, made the day of , between A. B. 
 
 of of the one part, and C. D. of of the other part. 
 
 Witnesseth that in consideration of the sum of £ now paid to 
 A. B. by C . D., the receipt of which the said A. B. hereby acknow- 
 ledges [or whatever else the consideration may be], he the said 
 A. B. doth hereby assign unto C. D., his executors, administrators 
 and assigns, all and singular the several chattels and things speci- 
 fically described in the schedule hereto annexed by way of security 
 for the payment of the sum of £ , and interest thereon at the 
 
 rate of per cent, per annum [or whatever else may be the 
 
 rate]. And the said A. B. doth farther agree and declare that he 
 will duly pay to the said C. D. the principal sum aforesaid, 
 together with the interest then due, by equal payments of 
 
 £ , on the day of [or whatever else may be the 
 
 stipulated times or time of payment]. And the said A. B. doth 
 also agree with the said C. D. that he will [ here insert terms as to 
 insurance , payment of rent, or otherwise, which the parties may 
 agree to for the maintenance or defeasance of the security]. 
 
 Provided always that the chattels hereby assigned shall not be 
 liable to seizure or to be taken possession of by the said C. D. 
 for any cause other than those specified in section seven of the 
 Bills of Sale Act (1878) Amendment Act, 1882. 
 
 In witness, &c. 
 
 Signed and sealed by the said A. B. in the presence of me, E. F 
 [Add ivitness s name, address, and description.] 
 
 The Schedule. 
 
 (6) Goods comprised in a bill 
 of sale given by a tenant are ex- 
 pressly excepted from the Law of 
 Distress Amendment Act, 1908, 
 
 which in most cases allows a 
 stranger, whose goods are dis- 
 trained for rent, to recover the 
 goods. 
 
 Form of bill 
 of sale. 
 
296 
 
 BK. I.j PT. III. BILLS OF SALE. 
 
 Rates of 
 stamp duty 
 on bills of 
 sale. 
 
 Stamps, &c. 
 
 Absolute bills of sale must be stamped as conveyances of 
 property at the ad valorem rate. Bills of sale to secure money 
 are liable to stamp duty as mortgages. An affidavit made on 
 registering or re-registering a bill of sale requires no stamp . 
 
 Solicitor’s 
 remuneration . 
 
 Legal Charges. 
 
 A solicitor’s charges for preparing a bill of sale will be 
 regulated by the work done, in accordance with Schedule II. 
 of the Solicitors’ Remuneration Order, 1881, and not by the 
 scale of charges in Schedule I. of the Order. 
 
297 
 
 Part IV. — LEASES. 
 
 I . — INTRODUCTORY . 
 
 A lease is a “ demise” or grant of' land or other heredita- 
 ments by one person, called the lessor, to another, called the 
 lessee, for an interest less than a freehold and less than that of 
 the grantor, the interest which remains in the grantor being 
 called a reversion. 
 
 The interest of the lessee may he a tenancy at will, or from 
 year to year, or for years, and is personal property. A so-called 
 lease for a life or lives is the grant of a freehold, and stands 
 on a somewhat different footing. The subject-matter of a 
 lease must he real estate or a chattel real. The creation of a 
 similar interest in pure personal property is not generally 
 called a lease . 
 
 II. — CAPACITY OF PARTIES. 
 
 Upon a lease of property, just as upon a purchase or mort- 
 gage, the first point for consideration is the capacity of the 
 parties to enter into the transaction. As a rule, a person who 
 has power to sell his land has also power to lease it; but there 
 are cases in which a person can make a lease, although he can- 
 not dispose of the land by way of sale. It is necessary, there- 
 fore, to consider the powers of leasing possessed by persons 
 who are under disability, or who are limited owners of land. 
 
 Leases by and to Infants. 
 
 By the common law a lessor, who has made a lease while an 
 infant, may repudiate it when he attains full age, and his 
 representatives tnay do the same if he dies under age; nor can 
 
 Definition of 
 lease. 
 
 Nature of 
 
 lessee’s 
 
 interest. 
 
 General rule. 
 
 Leases by 
 infants : 
 
 (i) At com- 
 mon law ; 
 
298 
 
 (ii) Under 
 11 Geo. 4, 
 c. 65 ; 
 
 (iii) Under 
 44 & 45 Viet, 
 c. 41, s. 41 ; 
 
 (iv) Under 
 45 & 46 Viet, 
 c. 38, ss. 59 
 and 60. 
 
 Leases to 
 infants. 
 
 BK. I., PT. IV. LEASES. 
 
 his guardian grant a lease which will be binding on him when 
 he attains majority; and, indeed, a guardian by nature or for 
 nurture only can make no better lease than one at will (a ) . But 
 a lease granted by an infant is binding unless he repudiates it 
 within a reasonable time after attaining majority (b) . 
 
 By the Infants’ Property Act, 1830, the court was em- 
 powered to authorize an infant or his guardian to make a lease 
 of the infant's land for such term of years and subject to such 
 rents and covenants as the court should direct (c) . Later, by 
 the Conveyancing Act, 1881, s. 41, it was enacted that “where 
 a person in his own right seised of or entitled to land for an 
 estate in fee simple, or for any leasehold interest at a rent, 
 is an infant, the land shall be deemed to be a settled estate 
 within the Settled Estates Act, 1877." The effect of this pro- 
 vision is, that the court may, under s. 4 of that act, authorize 
 leases of the infant’s land on the terms stated in that section; 
 and direct what person shall execute the lease as lessor; and 
 possibly that the infant’s guardian, under ss. 46 and 49, may 
 make leases for not exceeding twenty-one years, without any 
 application to the court. 
 
 These acts are, however, practically superseded by the Settled 
 Land Act, 1882, under s. 59 of which, where a person who is in 
 his own right seised of or entitled in possession to land is an 
 infant, for the purposes of the act the land is settled land, and 
 the infant is to be deemed a tenant for life thereof; and by 
 s. 60, the powers given by the act to tenants for life may be 
 exercised on an infant’s behalf by the trustees of the settle- 
 ment, and, if there are none, by such person and in such manner 
 as the court may order. Under that statute, as we shall see 
 hereafter, tenants for life can make leases in different cases 
 for terms of ninety-nine, sixty, and twenty-one years (d ) . 
 
 Similarly, although an infant may take a lease, he is entitled 
 to avoid it on attaining majority, though he cannot recover 
 
 ( а ) Wood fall. Landlord and 
 Tenant, 19tli ed. 46, 47. 
 
 (б) See Edwards v. Carter , 
 (1893) A. C. 360. 
 
 (c) s. 17. See Re Letchford 
 (1876), 2 Oh. D. 719. 
 
 ( d ) See Re Duke of N etc castle's 
 Estates (1883), 24 Ch. D. 129. 
 
CAPACITY OF PARTIES. 
 
 any rent which he has paid '(e); but he must do so within 
 a reasonable time, or he will become liable to pay the rent 
 and the arrears of it, and to perform the covenants contained in 
 it (/) . By s. 12 of the Infants’ Property Act, 1830, men- 
 tioned above, an infant or his guardian may by the direction 
 of the court surrender a lease and accept a new one. 
 
 Leases by and to Persons of Unsound Mind. 
 
 A lease by a person of unsound mind is apparently binding 
 on him, unless the lessee knew of his insanity at the time the 
 lease was made (g) . When the fact of insanity is known, it is 
 necessary to have recourse to the provisions of the Lunacy Acts, 
 1890 and 1908, which provide that leases may be granted 
 by the lunatic’s committee with the sanction of the judge, 
 or, if he is not so found by inquisition, by such person as the 
 judge, or, subject to rules, the master, may direct (h). 
 Further, by the Settled Land Act, 1882, provision is made 
 for the granting of leases of a settled estate of which a lunatic 
 is tenant for life (i) . 
 
 Presumably, a lease to a person of unsound mind is also 
 binding unless the lessor knows of the insanity. The Lunacy 
 Acts, 1890 and 1908 (h), provide for the surrender of a lease 
 and the acceptance of a new one. 
 
 Leases by and to Married Women. 
 
 A married woman can grant a valid lease of property which 
 is her separate estate. 
 
 If the property is not separate estate, a lease of freehold land 
 ought to be made by a married woman with her husband’s 
 
 (e) Ketsey's Case (1614), Cro. 
 Jac. 320; Valentini v. Canali 
 (1889), 24 Q. B. D. 166. 
 
 (/) Ketsey's Case , supra. See 
 L. & N. W. Bail. Co. v. Mac- 
 Michael (1850), 5 Ex. 114, see at 
 p. 128; Edwards v. Carter, (1893) 
 A. C. 360. 
 
 (. g ) Molton v. Camroux (1848), 
 4 Exch. 17; Imperial Loan Co. 
 v. Stone, (1892) 1 Q. B. 599. 
 
 (h) Act of 1890, ss. 116, 120; 
 act of 1908, s. 1. 
 
 (0 See Part V., Chap. III., 
 post ; and Re Catherine Salt, 
 (1896) 1 Oh. 117. 
 
 Leases by 
 
 lunatics — how 
 far binding. 
 
 Leases to 
 lunatics. 
 
 Leases of 
 
 separate 
 
 estate. 
 
 Leases of 
 freehold land 
 not separate 
 estate. 
 
300 
 
 BK. I., PT. IV. LEASES. 
 
 Leases of 
 leasehold land 
 not separate 
 estate. 
 
 45 & 46 Viet, 
 c. 75. 
 
 concurrence, the deed being acknowledged under the Fines and 
 Recoveries Act. However, under the Settled Estates Act, 1877, 
 a husband entitled to an estate in right of his wife may, with 
 the leave of the court, make leases of the land subject to the 
 provisions of that act, and he may without such leave lease 
 it for any term not exceeding twenty-one years, the lease to 
 take effect in possession, and otherwise to conform to the 
 provisions of the act, and in such leases the wife’s concurrence 
 is unnecessary. A lease of the wife’s freehold land which is 
 not separate estate unless made by deed acknowledged or under 
 statutory authority, is good during the coverture; but the wife 
 may avoid it on the husband’s death, or confirm it, either ex- 
 pressly or impliedly (Jc ) . As to leaseholds which are not the 
 wife’s for her separate use, the husband has full power to as- 
 sign or sub-lease them during coverture, and the assignment 
 or sub-demise is good even though the wife survive him. 
 
 Since the Married Women’s Property Act, 1882, a married 
 woman can take a lease, as if a feme sole. 
 
 Leases by and to Corporations. 
 
 Leases by 
 
 corporations 
 
 generally. 
 
 (1) The 
 Crown . 
 
 (2) Ecclesias- 
 tical corpora- 
 tions. 
 
 At common law a corporation may grant a lease, provided 
 that the lease be under the seal of the corporation; if, however, 
 though the lease is not under seal, the tenant enters and pays 
 rent, he holds as tenant from year to year on the terms of the 
 instrument, so far as they may be applicable to such tenancy (?) . 
 But numerous restrictions have been imposed on corporations 
 by statute. 
 
 The Sovereign has been prohibited from granting leases of 
 crown lands for more than thirty-one years or three lives, or 
 some term of years determinable upon one, two, or three lives 
 and upon certain conditions specified (m). Ecclesiastical cor- 
 
 (. h ) See Goodright v. Straphan 
 (1774), Cowp. 201; Toler v. Slater 
 (1867), L. R. 3 Q. B. 42. 
 
 (l) See Ecclesiastical Commis- 
 sioners v. Merral (1869), L. R. 4 
 Ex. 162. 
 
 (m) See 1 Anne, c. 1, s. 5. By 
 
 10 Geo. 4, c. 50 (the Crown Lands 
 Act, 1829), crown lands are placed 
 under the management of the 
 commissioners of woods and 
 forests, who are authorised to 
 grant leases for not exceeding 
 thirty-one years from the mak- 
 ing; see ss. 22 — 33. 
 
CAPACITY OF PARTIES. 
 
 801 
 
 p orations are in some cases disabled from leasing, and in 
 others empowered to do so by a number of statutes known as 
 Enabling and Disabling or Restraining Statutes. On taking a 
 lease from such a corporation these statutes must be consulted. 
 
 Municipal corporations are prohibited by the Municipal Cor- (3) Municipal 
 porations Act, 1882, from granting leases for terms exceeding 
 thirty-one years, unless they obtain the consent of the Local c. 50. 
 Government Board, or unless the lease is a renewed one. But 
 they may grant building leases for terms not exceeding- 
 seven ty-five years (n ) . 
 
 A corporation may take a lease, but if it be for a long term, Leases to 
 licence to hold it in mortmain appears to be necessary (o ) . (,01 P° ratl,,us - 
 It has been said that a lease for 100 years, for example, is 
 within the Mortmain Acts (p), but shorter terms have been 
 held not to be (q ) . 
 
 Leases by Trustees. 
 
 A trustee of land held in trust to manage it may lease the When 
 land, but the lease must be reasonable and made in fair manage- ma * 
 
 ment of the estate (r) . 
 
 Generally, however, a trustee who holds land in trust to sell Trustee for 
 has no power to grant a lease of the land, even though he has [ a ^ e carmot 
 made every effort to sell it without success (s) . But trustees 
 who hold land under one lease in trust to sell and Avho desire 
 to sell the property in lots, may grant to the purchaser of 
 each lot an underlease for the whole term less one day; for 
 this is the expedient ordinarily adopted by conveyancers for 
 avoiding an apportionment of the rent in such cases; it is 
 practically the only method in which the sale can be carried 
 out, and is in substance a sale of the property (t). 
 
 Trustees who have a power of leasing under the settlement, 
 
 (n) ss. 108, 109. 
 
 (o) Mortmain Act, 1888, ss. 1 
 and 14. 
 
 ( p ) Roivles v. Mason (1612), 
 Brownlow and G., Part II. 192, 
 per Warburton, J., at p. 197. 
 
 ( q ) Truro Corporation v. Rowe , 
 (1901) 2 K. B. 870, per Wills, 
 
 J., at p. 875. 
 
 (>■) Per Lord Eldon, Attorney- 
 General v. Oiven (1805), 10 Ves. 
 at p. 560. 
 
 (s) Evans v. Jackson (1836), 8 
 
 Sim. 217. 
 
 (t) Re Judd and Poland and 
 Skelcher's Contract , (1906) 1 Ch. 
 
802 BK. I., PT. IV. LEASES. 
 
 cannot grant a lease of unopened mines, unless the power is 
 expressly conferred upon them (w.) . 
 
 Leases by Executors and Administrators. 
 
 Leases by 
 executors and 
 administra- 
 tors. 
 
 When 
 property 
 disposed of 
 by will. 
 
 An executor or administrator may make an underlease of 
 leasehold property if it be the best way of administering the 
 assets of the deceased (x), and since the Land Transfer Act, 
 1897, he has the same power of granting a lease of real estate. 
 A disposition of personal property by one of several execu- 
 tors is valid, as executors have a joint and several authority; 
 as also have administrators (y ) . But a disposition of real 
 property can only be made by all the proving executors or 
 all the administrators owing to s. 2 of the Land Transfer 
 Act, 1897, but the concurrence of the non-proving executors 
 which was required by that section ( z ) is not now necessary, 
 owing to the provision contained in s. 12 of the Conveyancing 
 Act, 1911. 
 
 A lease may be taken from an executor or administrator even 
 though the property is specifically devised or bequeathed; but 
 anyone taking a lease under such circumstances should ascer- 
 tain that the executor or administrator has not already assented 
 to the devise or bequest, for if he has done so he has no power 
 to grant the lease ( a ) . 
 
 Leases under Powers. 
 
 Leases under It may happen that the lessor derives his right to grant a 
 lease from some power contained in a settlement. In accepting 
 a lease from such a person it should be seen that the terms of 
 
 648, overruling Re Walker and 
 Oakshott's Contract, (1901) 2 Ch. 
 383. 
 
 (u) Re Baskerville, (1910) 2 
 Ch. 329; and see Re Daniels, 
 (1912) 2 Ch. 90. 
 
 (x) Oceanic Steam Navigation 
 Company v. Sutherland (1880), 
 16 Ch. D. 236. 
 
 ( y ) See Doe v. Sturges (1816), 
 7 Taunt. 217; Jacomb v. Harwood 
 
 (1751), 2 Ves. Sen. 265. 
 
 ( z ) See Re Pawley and The 
 London and Provincial Bank, 
 (1900) 1 Ch. 58. 
 
 (a) See Solomon v. Atten- 
 borough, W. N. (1912) 269, and 
 for examples of acts amounting to 
 an assent, Fenton v. Clegg (1854), 
 9 Ex. 680 ; Austin v. Beddoe 
 (1893), 41 W. E. 619. 
 
CAPACITY OF PARTIES. 
 
 303 
 
 the power arc strictly observed. A person acting under a power 
 may do less than the power warrants him in doing (&), but 
 otherwise, unless the lease he in accordance with the terms of 
 the power, it will be void as against a remainderman or rever- 
 sioner, though it may take effect by estoppel as between the 
 lessee and the lessor (c). But even where there has been a Statutory 
 defective execution there is a remedy provided by statute; for 
 by the Leases Act, 1849, s. 7, a lease made in intended exercise Vict - c - 26 - 
 of a power, but invalid by reason of some deviation from the 
 terms of the power, if made bond fide and the lessee has entered 
 thereunder, is to be considered in equity as a contract for a 
 valid lease under the power; and by the Leases Act, 1850, 13 & 14 Viet, 
 where upon or before the acceptance of any rent under an in- c ' tm 
 valid lease any receipt, memorandum, or note in writing con- 
 firming the lease, is signed by the person accepting the rent, the 
 acceptance will be deemed to be a confirmation of the lease. 
 
 Leases by Limited Owners. 
 
 A lease of settled land may be made under a power conferred Leases by 
 
 ^ toiidnts ioi* 
 
 by the settlement, or under the provisions of the Settled Estates life and 
 Act, 1877, or under the provisions of the Settled Land Acts, otliers ‘ 
 1882—1890. 
 
 The provisions of the Settled Land Acts on the subject are 
 set out on a later page (d ) ; they practically render obsolete, 
 though they do not repeal, the less extensive provisions of the 
 Settled Estates Act, 1877. By the latter statute tenants for 40 & 41 Viet, 
 life and other limited owners (including dowresses who are not c - 18# 
 within the Settled Land Acts) are empowered to make leases 
 for not exceeding twenty-one years at the best rent, and sub- 
 ject to certain conditions, provided the settlement was made 
 after 1st November, 1856, and contains no contrary provisions, 
 and subject to the latter proviso, whatever the date of the settle- 
 ment, the court is empowered by the act to order leases of 
 settled estates for not exceeding in the case of an agricultural 
 
 (5) See Isherwood v. Oldknow (1855), 11 Exch. 274. 
 
 (1815), 3 M. & S. 382. (d) Post , Part V., pp. 418 et 
 
 (c) See Yellowly v. Gower seq. 
 
304 
 
 Leases by 
 reversionei's. 
 
 Leases 
 by copy- 
 holders — how 
 far good. 
 
 Leases by 
 tenants for 
 years and 
 others. 
 
 BK. I., PT. IV. LEASES. 
 
 or occupation lease twenty-one years, a mining lease forty 
 years, a repairing lease sixty years, and a building lease ninety- 
 nine years. 
 
 Leases by Reversioners. 
 
 If a remainderman or reversioner grants a lease during the 
 continuance of the particular estate which precedes his re- 
 mainder or reversion, the lease will take effect in possession 
 as soon as the particular estate determines. 
 
 Leases by Copyholders. 
 
 A copyholder cannot, except by a special custom of the 
 manor, make a lease for more than one year without incurring 
 a forfeiture of his estate (e) . If a copyholder does make a 
 lease for a longer term, it is good against all persons except 
 the lord of the manor, who may avoid or confirm it at his 
 option (/) . But the lord of the manor, even though only 
 tenant for life (g), may empower his tenant to grant leases for 
 more than a year by licence; this, however, is entirely in his 
 discretion (h ) . 
 
 Leases by Tenants for Years. 
 
 A tenant for years, unless restrained by express agreement, 
 may make an underlease of his lands, and a tenant from year 
 to year may make a lease for a term of years which will last 
 until his own term expires; or he may underlet from year to 
 year (i ) . And, in both cases, he will have a sufficient rever- 
 sion in him to enable him to distrain for rent (1c ) . If' a tenant 
 at will makes a lease it operates to determine his own estate at 
 will, although the lease is good as against himself by estoppel. 
 The same rule applies to a tenant at sufferance. 
 
 (e) The Lady Montague's Case 
 (1613), Cro. Jac. 301; Melwich 
 v. Luter (1588), 4 Rep. 26a. 
 
 (/) Doe v. Bousfield (1844), 14 
 L. J. Q. B. 42. 
 
 ( g ) See Settled Land Act, 1882, 
 s. 14, post, Part V. 
 
 (70 JR. v. Hale (1838), 9 A. & 
 E. 339. 
 
 (0 See Pike v. Eyre (1829), 9 
 B. & C. 909. 
 
 ( k ) Curtis v. Wheeler (1830),, 
 Moo. & M. 493; Oxley v. James. 
 (1844), 13 M. & W. 209. 
 
LEASE AND INVESTIGATION OF LESSOR’S TITLE. 
 
 III. CONTRACT FOR LEASE AND INVESTIGATION OF LESSOR’S 
 
 TITLE. 
 
 A contract for a lease must be evidenced by a memorandum 
 or note in writing under s. 4 of the Statute of Frauds (Z), 
 however short the term may be ; but although damages 
 cannot, be recovered for breach of a verbal agreement to grant a 
 lease, specific performance may be obtained if there has been a 
 sufficient part performance of the agreement by the plain- 
 tiff (m). 
 
 When the statute is complied with, either damages or specific 
 performance can be obtained if the contract is broken. But 
 the statute is not complied with if the memorandum of the con- 
 tract omits to specify the time from which the term is to com- 
 mence^); though the day on which a lease is to commence 
 may be collected from the agreement as a whole (o). Probably 
 the court will not decree specific performance of an agreement 
 for a lease which, if granted, might immediately be determined 
 under a proviso for re-entry (p). Similarly specific perform- 
 ance will be refused when the term contracted to be granted 
 has expired, or will expire before the judgment in the action 
 can be obtained (q). But there is no rule that the court will 
 refuse specific performance of an agreement for a lease from 
 year to year or even a shorter term (r) . 
 
 In the absence of a contract to the contrary, if the intending 
 lessor is a freeholder, the lessee cannot require him to prove his 
 title, but must assume that it is such as to enable him to make 
 
 Contract for 
 lea*e must be 
 in writing. 
 
 29 Car. 2, 
 c. 3, 8. 4. 
 
 Remedy for 
 breach of 
 contract for 
 a lease. 
 
 Investigation 
 of lessor’s 
 title. 
 
 (?) See ante , p. 33. 
 
 (m) See ante, p. 38. 
 
 ( n ) Marshall v. Berridge 
 (1881), 19 Ch. D. 233. 
 
 (o) Re Lander and Bagley's 
 Contract, (1892) 3 Ch. 41. 
 
 ( p ) See Jones v. Jones (1806), 
 12 Ves. 186, at p. 188; Gourlay 
 
 v. Duke of Somerset (1812), 1 
 V. & B. 68, at p. 72; Lillie v. 
 Legh (1858), 3 De GL & J. 204. 
 
 ( q ) Nesbitt v. Mayer (1818), 1 
 Swanst. 223. 
 
 (r) Lever v. Koffler, (1901) 1 
 Ch. 543. 
 
 G. — C. 
 
 X, 
 
306 
 
 BK. I., PT. IV. ■ — LEASES. 
 
 Practice note. 
 
 37 & 38 Viet, 
 c. 78, s. 9, 
 applies to 
 dispute 
 between 
 lessor and 
 lessee. 
 
 the lease proposed. If the intending lessor is not the freeholder, 
 but a leaseholder, that is to say, if the lease proposed to be 
 granted is a sub-lease or derivative term, the lessee will be 
 able to call upon the intending lessor to produce the lease or 
 sub-lease out of which the proposed lease is to be carved, and 
 the mesne assignments of it for the forty years preceding the 
 contract (s) ; he cannot, however, call for the reversionary title, 
 which, in the case of an intending sub-lease, will be a freehold 
 reversion, and in the case of a sub-sub-lease, a leasehold rever- 
 sion as well. This is the conjoint effect of s. 2 of the Vendor 
 and Purchaser Act, 1874, and s. 13 of the Conveyancing Act, 
 1881 (s). It follows that if there is any doubt, a contract to be 
 allowed to inspect the title should, in the interests of the lessee, 
 be insisted upon, more particularly where some consideration 
 passes on the granting of the lease. It has been held that if 
 an intending lessor stipulates with the intending lessee to 
 deliver to him an abstract of title, not only must the deeds 
 be produced to the latter to enable him to verify it in the usual 
 way, but they must also be produced at any time during the 
 continuance of the lease in support of the lessee's title (t). 
 
 Any dispute arising between an intending lessor and lessee 
 not being a question affecting the existence or validity of the 
 contract for the lease can be settled without action by means 
 of a summons in chambers under s. 9 of the Vendor and Pur- 
 chaser Act, 1874 (w). 
 
 Once the lease has been granted, it cannot be cancelled on 
 the ground that its execution was brought about by innocent 
 misrepresentation, but only on the ground of fraud (a:). 
 
 (s) See ante , p. 50; Frend v. 
 Buckley (1870), L. B. 5 Q. B. 
 213; Williams v. Spargo (1893), 
 W. N. 100; Gosling v. Woolf, 
 (1893) 1 Q. B. 39. 
 
 (£) Re Fur sell and Leakin' s 
 Contract (1893), W. N. 152. 
 
 ( u ) Re Stephenson and Cox's 
 Contract (1892), 36 Sol. Jour. 
 287 ; Re Lander and Bagley's 
 Contract, (1892) 3 Ch. 41. 
 
 (x) Angel v. Jay, (1911) 1 
 K. B. 666. 
 
THE FORM AND CONTENTS OF A LEASE. 
 
 -‘307 
 
 IV. — THE FORM AND CONTENTS OF A LEASE. 
 
 By s. 1 of the Statute of Frauds all leases .... not put in 
 writing and signed by the parties so making or creating the 
 same or their agents thereunto lawfully authorized by writing 
 shall have the force and effect of leases or estates at will only ; 
 except, by s. 2, leases not exceeding the term of three years 
 from the making thereof, whereupon the rent reserved .... 
 shall amount unto two third parts at least of the full improved 
 value of the thing demised. And by s. 3 of the Beal Property 
 Act, 1845, a lease required by law to be in writing .... 
 shall be void at law unless made by deed . 
 
 But the courts have permitted themselves a considerable 
 latitude of interpretation in applying these enactments, espe- 
 cially in the case of the latter. For, hrst of all, it was held in 
 the cases of Doe d. Rigge v. Bell (y ), and Clayton v. 
 Blakey (z), that where the lessee had entered into possession 
 under a lease void under the statutes, and had paid rent, he 
 became a tenant from year to year upon the terms of the void 
 lease so far as they were not inconsistent with such a tenancy . 
 And, secondly, where there was a demise in writing, which not 
 being under seal was therefore void as a lease, it was held by 
 courts of equity that the demise would he good as an agreement 
 for a lease, and specific performance of such an agreement would 
 be granted ( a ). Thirdly, in Walsh v. Lonsdale (5), it was held 
 that by the effect of the Judicature Act, the tenant who is in 
 possession under an agreement for a lease is to be treated in 
 every court as holding upon the terms upon which he would 
 have held had he received a valid lease in pursuance of the 
 agreement; so that a distress for the non-payment of an in- 
 stalment. of rent Avhich would have been payable in advance 
 if the lease had been granted, was allowed in that case. As a 
 
 ( y ) (1793), 5 T. R. 471; Smith, 
 L. C., 11th ed. vol. ii. 119. 
 
 (z) (1798), 8 T. R. 3; Smith, 
 L. C., 11th ed. vol. ii. 127. 
 
 (a) Parker v. Taswell (1858), 2 
 Be G. & J. 559; Zimbler v. Abra- 
 
 hams, (1903) 1 K. B. 577. 
 
 (6) (1882), 21 Ch. B. 9; fol- 
 lowed in Crump v. Temple (1890), 
 7 Times L. R. 120. Compare 
 Foster v. Reeves, (1892) 2 Q. B. 
 255. 
 
 When a deed 
 is necessary. 
 
 29 Car. 2, 
 c. 3. 
 
 8 & 9 Viet, 
 c. 106. 
 
 Construction 
 of the 
 statutes. 
 
 Comparison 
 between 
 leases and 
 agreements 
 for leases. 
 
BK. I.. PT. IV. LEASES. 
 
 808 
 
 BK. I.. PT. IV. LEASES. 
 
 / 
 
 By whom 
 the lease is 
 prepared. 
 
 consequence, an agreement for a lease which sets forth the 
 terms agreed upon is as good as a lease; and by s. 5 of the 
 Conveyancing Act, 1892, a tenant holding under an agreement 
 for a lease, “ if he has become entitled to have his lease 
 granted,” can obtain relief against forfeiture for breach of 
 covenant under s. 14 of the Conveyancing Act, 1881, just as 
 if a lease had been actually granted to him; and in one respect, 
 indeed, an agreement for a lease is preferable to a lease; for 
 although the stamp duty on agreements for leases, when the 
 term does not exceed thirty-five years, is the same as that 
 payable on a lease by deed for a similar term, yet where the 
 term exceeds that period, the duty on an agreement for a 
 lease is but sixpence; whereas on an actual lease the duty 
 varies with the rent, and would be much more. 
 
 A lease is usually prepared by the solicitor of the lessor at 
 the expense of the lessee ( c ), the expenses of the counterpart, 
 however, falling on the lessor (■ d ) . If the lessee refuses to pay 
 the costs, the remedy of the solicitor is against his client the 
 lessor, who in his turn can sue the lessee for reimbursement. 
 
 Practice note. The lessee’s solicitor should, if possible, arrange that the costs 
 
 Date and 
 parties. 
 
 be divided between lessor and lessee, and in provincial practioe 
 this is often done. 
 
 Contents of the Lease: Date, Parties and Recitals. 
 
 Turning now to the contents of the lease and taking each 
 clause in the order in which it appears, it need only be stated 
 with regard to the date and parties that the remarks made 
 in the case of purchase deeds (e) are equally applicable here. 
 
 Recitals. 
 
 Recitals are seldom inserted in a lease, but they may some- 
 times be useful; for instance, when an underlease is being' 
 granted by a lessee who is prohibited from granting one with- 
 out the licence of the lessor, it is useful to recite the fact 
 that such licence has been obtained. 
 
 
 (c) Smith v. Clegg (1858), 27 Ch. 688. 
 
 L. J. Ex. 300 ; compare Re ( d ) Re Negus, (1895) 1 Ch. 73. 
 
 Fletcher and Dyson, (1903) 2 (e) Ante, p. 127. 
 
THE FORM AND CONTENTS OF A LEASE. 
 
 309 
 
 Testatum. 
 
 The consideration is generally stated to consist of the rent 
 reserved, and the covenants and conditions to be observed and 
 performed by the lessee. 
 
 It is not necessary to use any special or formal operative 
 words, for any words are sufficient which explain the intent that 
 the one party shall divest himself of the possession, and the 
 other take it for a determinate time, but in practice the word 
 “demise” is invariably used by lawyers. 
 
 And as to the parcels it does not seem necessary to add any- 
 thing to what has been already said on the subject in connection 
 with purchase deeds. 
 
 Habendum. 
 
 The office of the habendum is to specify the quantity and 
 quality of the lessee’s estate. In it the commencement of the 
 term and its duration must be clearly shown. The term may 
 commence at a past, a present, or a future date. If it is to 
 commence “from the date of the lease, the day mentioned 
 will be deemed included or excluded according to the intention 
 of the parties as appearing from the instrument (/). If the 
 date inserted in the lease is erroneous or the lease has no date, 
 or an impossible one, as the 30th of February, the term will 
 commence from the delivery of the deed (g). If the lease is 
 not by deed, and no date is specified, apparently the term com- 
 mences upon the entry of the lessee (h ) . When the date men- 
 tioned in the habendum from which the term is to commence is 
 a past day, the term will run from >the date mentioned in the 
 habendum (i ) ; but in such a case the tenant is not liable for 
 breach of covenants committed bef ore the date of the lease (1c). 
 When the day for the commencement of the term is one which 
 
 (/) Pugh v. Duke of Leeds 
 (1777), Cowp. 714. 
 
 ( g ) Clayton’s Case (1585), 5 
 Coke, 1 a; Steele v. Mart (1825), 
 4 B. & C. 272; Styles v. Wardle 
 (1825), 4 B. & C. 908. 
 
 ( h ) Kemp v. Derrett (1814), 3 
 Camp. 510. 
 
 (i) Bird v. Baker (1858), 1 
 
 El. & El. 12. 
 
 ( k ) Shaw v. Kay (1847), 1 Ex. 
 412. 
 
 Considera 
 
 tion 
 
 Operative 
 
 words. 
 
 Parcels. 
 
 Habendum — 
 
 when the 
 term may 
 commence ; 
 
310 
 
 BK. I., PT. IV. LEASES. 
 
 inter esse 
 termini. 
 
 The duration 
 of term must 
 be fixed. 
 
 Option to 
 determine 
 term. 
 
 Partnership 
 
 tenancy. 
 
 has not jet arrived, until that day iarrives the grantee is said 
 to have merely an interesse termini in the land, a right which 
 may be assigned or devised by him, but which, till he has 
 entered into possession, gives him no estate in the land; so that, 
 for instance, he cannot before entry maintain an action for 
 trespass. 
 
 The duration of the term, or, in other words, the time for its 
 expiration, must be fixed; so that if a lease is made to A. for 
 as many years as B. shall live, this will not create a term of 
 years, for it is uncertain how long B. will live. But a lease 
 may validly be granted for a term of 999 years if A. shall so 
 long live; for here an ascertained period is stated upon which 
 the term must come to an end. A lease “for years, ” without 
 specifying the number of years, is a lease for two years; and 
 a lease “for two years certain and thereafter from year to 
 year,” is a lease for three years at least (7). 
 
 When an option is given to determine the lease before the 
 term expires of itself, and it is not stated who is to have that 
 option, it is the lessee alone who can exercise it; for when the 
 words of a grant are doubtful, they must be construed most 
 strongly in favour of the grantee (m) . On the other hand, 
 where a lease was for twenty-one years, determinable, never- 
 theless, in seven or fourteen years, “ if the parties shall so 
 think fit,” it was held that both parties must concur in exer- 
 cising the option (ft). A notice to determine the lease can 
 only be given by the legal owner, and not by the equitable 
 owner, of the term (o) . 
 
 It may be mentioned here that where a lease of the busi- 
 ness premises of a partnership has been acquired by one of the 
 partners before the commencement of the partnership, and the 
 firm pays the rent, the inference is, in the absence of any 
 provision in the articles, that the tenancy exists during the 
 
 (I) Re Searle, Brooke v. Searle, 
 (1912) 1 Oil. 610. And see Doe 
 v. Green (1839), 9 A. & E. 658; 
 Ccuinon Brewery v. Nash (1898), 
 77 L. T. 648. 
 
 ( m ) Doe v. Dixon (1807), 9 
 East, 15. 
 
 ( n ) Foiuell v. Tranter (1864), 3 
 Id. & C. 458. 
 
 (o) Stait v. Fenner (1912), 107 
 L. T. 120. 
 
THE FORM AND CONTENTS OF A LEASE. 
 
 311 
 
 continuance of the partnership only, and is not a tenancj 
 from year to year(p). 
 
 Reddendum. 
 
 The reddendum specifies the amount of the rent reserved Reddendum 
 and the times at which it is to he payable. Rent need notneces- ^rent!^ 
 sarily consist of money; it may be of labour, provisions, ser- 
 vices, and the like, yet it must not consist of part of the thing 
 itself which is demised, as the herbage or vesture, i.e., it must 
 not be something excepted from, but something newly created 
 or reserved out of the premises (g). Further, it must be re- 
 served out of something upon which a distress can be made 
 in case it is not paid; so that, as a rule, rent cannot be reserved 
 out of an incorporeal hereditament; and it must be reserved 
 to the lessor, and not to a stranger (r) . The safest way, how- 
 ever, of reserving the rent is to make no mention at all of 
 the person to whom it is reserved, for it will always be inci- 
 dent to the reversion and payable to the holder thereof from 
 time to time without express mention (s) . Lastly, the rent 
 must be certain in amount; but to the expression “ certain 
 the maxim 'Id cert am est quod cerium reddi potest ap- 
 plies, so that the actual amount need not be set down in so 
 many words if some clue is afforded by which the exact amount 
 may be ascertained. 
 
 Obligations of the Parties in the absence of Express 
 
 Covenants. 
 
 Before proceeding to discuss the express covenants in a lease, Covenants, 
 it may be well to consider the obligations to which the parties 
 to a lease are subject in the absence of express covenants. It 
 is settled that the use of the word “ demise ” in a lease imports 
 into it a covenant by the lessor for quiet enjoyment (f) ; 
 
 (p) Pocock v. Carter, (1912) 1 
 Ch. 663. 
 
 ( q ) See Doe v. Lock (1835), 2 
 A. & E. 705, at pp. 743, 744. 
 
 (r) See Oates v. Frith (1615), 
 
 Hob. 130. 
 
 (s) See Whitlock's Case (1609), 
 8 Rep. 69 b. 
 
 (t) Baynes v. Lloyd, (1895) 2 
 Q. B. 510. 
 
312 
 
 Implied 
 covenant for 
 quiet enjoy- 
 ment. 
 
 What obliga- 
 tious are 
 implied on 
 part of 
 lessee — 
 
 (a) to pay 
 rent ; 
 
 (b) to pay 
 taxes ; 
 
 5 & 6 Viet, 
 c. 35. 
 
 54 Viet. c. 8. 
 
 BK. I., PT. IV. LEASES. 
 
 whether the lease he by deed or by writing’ without seal (u ) . 
 Whether in the absence of the word “demise” and merely by 
 virtue of the relation of landlord and tenant, the law implies 
 an undertaking by the lessor that the lessee shall have the 
 right to enjoy the premises free from interruption, must be 
 regarded as still unsettled (x ) . However this may be, it is 
 clear that the covenant, whether implied by the word “ demise ” 
 or by the relation of landlord and tenant, if it be so, is limited 
 to the acts of the lessor and those claiming under him, and 
 gives no right of action to the tenant if he is ejected by some 
 one claiming by title paramount. All the cases are in accord 
 as to this. 
 
 It is also settled that the words “yielding and paying” in 
 the reddendum imply a covenant on the lessee’s part to pay 
 the rent (y ) . But even in their absence upon every lease at a 
 fixed rent the law imposes an obligation on the lessee to pay 
 the rent (z ) . Besides this, a lessee is under an obligation to 
 pay the rates and taxes (except landlord’s rates and taxes), 
 to keep the premises in repair, and in certain cases to permit 
 the lessor to enter and view the state of repair of the pre- 
 mises. 
 
 With regard to rates and taxes, the property tax is payable 
 by the landlord under the Income Tax Act, 1842, and he cannot, 
 even b j express contract, throw the burden of it on the tenant; 
 for if the tenant pays it he may deduct it from his next rent, 
 and the lessor is bound under a penalty to allow the deduction, 
 and any agreement to pay the rent in full without allowing 
 such deduction is void (A). And by the Tithe Act, 1891, 
 s. 1 (1), the tithe rent-charge must be paid by the 
 
 “owner ” (b), and any contract by the “ occupier ” to pay it is 
 void, and this would include a contract to pay the landlord 
 
 ( u ) Bundy v. Cartwright 
 
 (1853), 8 Ex. 913. 
 
 ( x ) Budd-Scott v. Daniel, 
 (1902) 2 K. B. 351; Jones v. 
 Lavington, (1903) 1 K. B. 253; 
 Markham v. Paget, (1908) 1 Ch. 
 697. 
 
 {y) Hellier v. Casbard (1666), 1 
 
 Sid. 266. 
 
 ( z ) Doe v. Kneller (1829), 4 
 C. & P. 3. 
 
 (a) Income Tax Act, 1842, 
 ss. 60, 73, 103; see post, p. 325. 
 
 (5) As defined by the statute 
 this expression includes certain 
 
 lessees. 
 
THE FORM AND CONTENTS OF A LEASE. 
 
 n 3 
 
 »> 
 
 by wa j o£ further rent what the latter has had to pay for 
 tithe rent-charge (c) ; but where the occupier is liable under 
 a contract made before the passing of the act (26th March, 
 1891) to pay the tithe rent-charge he is liable to repay to the 
 owner what the owner is called upon to pay for tithe rent- 
 charge (d). Similarly, by the Extraordinary Tithe Redemp- 
 tion Act, 1886, s. 7 (3), extraordinary tithe rent-charge is 
 payable by the landlord, any agreement to the contrary not- 
 withstanding. There will also, in the absence of agreement, 
 fall on the landlord the land tax (g), sewers rate (/), and where 
 the premises are let for a term not exceeding three months 
 the poor rate (g ) . The tenant must pay all other rates and 
 taxes, and if a “ net ” rent or a rent “ free from all deductions ” 
 is reserved, the tenant is liable to pay all rates and taxes except 
 property tax and tithe rent-charge (Ji ) . 
 
 The obligation to keep in repair is a corollary to the rule 
 that a tenant for years must not commit waste. A tenant 
 from year to year is liable for that kind of waste known as 
 voluntary waste, i.e ., waste of a distinctive kind; but he is 
 only liable to a limited extent for permissive waste, since he 
 is not bound to keep the premises in repair any further than 
 to keep them “wind and water tight'’ (£), e.g ., if a window 
 is broken to put in fresh glass or in some other way prevent 
 the rain from coming in, and he would not be bound to repair 
 the premises if they were burned down(/c). The liability of 
 tenants for fixed terms of years to repair, in the absence of 
 any stipulation, has seldom been raised in the courts; for leases 
 for terms of years nearly always contain an express covenant 
 on the subject. At one time it was questioned if they were 
 liable at all for mere permissive waste (?); but later cases show 
 
 49 & 50 Viet, 
 c. 54. 
 
 38 Geo. 3, 
 c. 5. 
 
 32 & 33 Viet, 
 c. 41. 
 
 (c) to keep in 
 repair. 
 
 (c) Tuff v. Drapers' Co. (1912), 
 W. N. 249. 
 
 (d) Tithe Act, 1891, s. 1 (2). 
 
 (e) Land Tax Act, 1797, ss. 17, 
 18. 
 
 (/) Palmer v. Earith (1845), 14 
 M. & W. 428. 
 
 ( g ) Poor Rate Assessment and 
 Collection Act, 1869, s. 1. 
 
 ( [h ) Bennett v. Womack (1828), 
 7 B. & C. 627; Parish v. Sleeman 
 (1860), 1 De Gr. F. & J. 326. 
 
 (i) Auworth v. Johnson (1832), 
 5 C. & P. 239; Leach v. Thomas 
 (1835), 7 C. & P. 327. 
 
 ( k ) Horsefall v. Mather (1815), 
 Holt, N. P. 7. 
 
 ( l ) See Ilerne v. Bembow 
 (1813), 4 Taunt. 764. 
 
314 
 
 BK. I., PT. IV. LEASES. 
 
 14 Geo. 3, 
 c. 78. 
 
 No implied 
 obligation 
 on lessor to 
 repair. 
 
 that as a consequence of the statutes 52 Hen. 3, c. 23, known 
 as the Statute of Marlbridge, or Marlborough, and 6 Ed. 1, 
 c. 5, known as the Statute of Gloucester, they are liable for 
 such waste. That is to say, at the end of the term they will 
 be held responsible for dilapidations arising from neglect to 
 do proper and timely repairs (m). Tenants for years, how- 
 ever, would probably not be liable to repair the premises if 
 they were destroyed by storm or other act of God; and by 
 s. 86 of the Fires Prevention (Metropolis) Act, 1774, if the 
 premises are destroyed by accidental lire ( n ), the tenant seems 
 not to be liable; but he can make himself liable by contract, 
 as agreements between landlord and tenant are excepted. 
 
 The lessor is under no implied obligation to repair (o), or to 
 rebuild if the premises are destroyed by fire, even though he 
 has covenanted for quiet enjoyment (p). Nor is there any 
 implied covenant on his part that the premises are habit- 
 able (q), so that he is not liable for any injury caused to the 
 lessee or the lessee’s servants, guests, or customers, or to an}' 
 other persons on the premises by their not being habitable, 
 though he may be liable as for a nuisance to parties off the 
 premises (r ) ; nor is there any implied covenant on his part 
 that the premises are fit for the purposes for which they are 
 required (s). To this, however, there are three exceptions, 
 namely, (1) where the subject of the lease is a furnished house, 
 when there is an implied condition that, at the commencement 
 
 (m) See Harnett v. Maitland 
 (1847), 16 M. & W. 257; Yellowly 
 v. Gower (1855), 11 Excli. 274; 
 Davies v. Davies (1888), 38 Ch. 
 
 D. 499. 
 
 (n) The statute does not apply 
 to a fire caused by negligence: 
 Filliter v. Phippard (1847), 17 
 L. J. Q. B. 89; on the question 
 whether the act is limited in its 
 operation to the metropolis, sec 
 ante, p. 86. 
 
 (o) Gott v. Gandy (1853), 2 El. 
 & Bl. 845. 
 
 (p) Brown v. Quitter (1764), 
 Amb. 619. 
 
 ( q ) Hart v. Windsor (1843), 12 
 M. & W. 68. 
 
 (r) Lane v. Cox, (1897) 1 Q. B. 
 415; Cavalier v. Pope, (1906) 
 A. C. 428; Todd v. Flight (1860), 
 9 C. B. NT. S. 377; and see Sand- 
 ford v. Clarke (1888), 21 Q. B. D. 
 398; Miller v. Hancock, (1893) 2 
 Q. B. 177; Bowen v. Anderson, 
 (1894) 1 Q. B. 164. 
 
 (s) Manchester Bonded Ware- 
 house Co. v. Carr (1880), 5 0. P. 
 D. 507. 
 
THE FORM AND CONTENTS OF A LEASE. 
 
 315 
 
 of the tenancy, the house is fit for habitation (t ) ; (2) under 
 s. 75 of the Housing of the Working Classes Act, 1890, 
 where a house or part of a house is let for habitation by persons 
 of the working classes at a rent not exceeding- in the metro- 
 polis, 20/., in Liverpool, 13 /., in Manchester or Birmingham, 
 10/., aud elsewhere 81., there is an implied condition that the 
 house is at the commencement of the tenancy in all respects 
 reasonably fit for human habitation; and this condition cannot 
 be excluded by agreement (u ) ; and (3) under the Housing, 
 Town Planning, &c. Act, 1909, ss. 14, 15, there is a similar 
 condition, where any house or part of a house is let at a rent 
 not exceeding in the County of London 40/., or, in a borough 
 or urban district with a population of 50,000 or more, 26/., 
 or elsewhere, 16/.; and there is also an implied undertaking 
 by the landlord to keep the house fit for human habitation 
 during the holding; but this provision does not apply where 
 the house is let for three years or more on the terms that it be 
 put by the lessee into a condition reasonably fit for occupation. 
 
 Apart from statute, the obligation to permit the landlord 
 to enter and view the state of repair only exists when the land- 
 lord has covenanted to do repairs (x ) . It arises then, because 
 otherwise the landlord would have no right to go on the pre- 
 mises to make repairs. The landlord has, however, under the 
 Agricultural Holdings Act, 1908, s. 24, a right to enter and 
 view the state of an agricultural holding at all reasonable times, 
 and a similar right in respect of houses to which s. 15 of the 
 Housing, Town Planning, &c. Act, 1909, applies. 
 
 Covenants which are implied by the law, run with the land; 
 but they only bind the covenantor so long as he retains pos- 
 session of the estate; if he parts with it, he is not liable for 
 subsequent breaches (y ) . It is for this reason, among others, 
 that the implied covenants are seldom relied on in practice. 
 
 53 & 54 Viet, 
 c. 70. 
 
 9 Edw. 7, 
 c. 44. 
 
 Implied right 
 for lessor to 
 enter and 
 view repairs. 
 
 Implied cove- 
 nants run 
 with the 
 land. 
 
 (£) Smith v. Marrahle (1843), 
 11 M. & W. 5; Wilson v. Finch- 
 Eatton (1877), 2 Ex. D. 336; 
 Bird v. Greville (1884), 1 Cab. & 
 Ell. 317 ; Sarson v. Roberts , 
 (1895) 2 Q. B. 395. 
 
 (u) Housing of the Working 
 Classes Act, 1903, s. 12. 
 
 (x) Saner v. Bilton (1878), 7 
 Ch. D. 815. 
 
 (y) See Harley v. King (1835), 
 5 Tyrwli. 692; Taylor v. Shum 
 (1797), 1 B. & P. 21. 
 
316 
 
 BK. I., PT. IV. — LEASES. 
 
 As to cove- 
 nants running 
 with the land 
 and reversion. 
 
 Covenants 
 running * 
 with the 
 reversion — 
 
 (a) at common 
 law ; 
 
 (b) under 
 32 Hen. 8, 
 c. 34 ; 
 
 (c) under 
 44 & 45 Viet, 
 c. 41, and 
 1 & 2 Geo. 5, 
 c. 37. 
 
 How far Covenants run with the Land or the Reversion. 
 
 It is desirable to consider how far express covenants in a 
 lease are affected by an assignment of the lease, or of the re- 
 version before considering their terms. 
 
 A covenant is said to run with the land when it is enforce- 
 able by or against the person for the time being in possession 
 of the land by virtue of his possession; it is said to run with 
 the reversion when it is enforceable by or against the person 
 for the time being entitled to the reversion. At common law 
 covenants in a lease run with the land provided that they 
 1 'touch and concern’’ the land demised, but do not run with 
 the reversion, so that on an assignment of the reversion the 
 assignee was not able to take advantage of the covenants which 
 the lessee had entered into with the lessor. But by the statute 
 32 Hen. 8, c. 34, the assignee of the reversion was enabled to 
 sue on the covenants of the lease as fully as the original lessor, 
 and the lessee was given the like right against the assignee 
 of the reversion. But the statute is only applicable if the lease 
 is under seal (z ) . This statute has, however, been rendered 
 practically obsolete by the Conveyancing Act, 1881 , s. 10, 
 as extended by the Conveyancing Act, 1911 , s. 2, which pro- 
 vides that; the rent reserved by the lease, if made after 1881 , 
 and the benefit of every covenant and provision therein, having 
 reference to the subject-matter of the lease to be observed and 
 performed by the lessee, and every condition of re-entry and 
 other condition therein, is to be annexed to and incident to the 
 reversion, so that it can be enforced and taken advantage of 
 by the person from time to time entitled, subject to the term, 
 to the income of the whole or any part of' the land leased, and 
 this although that person became so entitled after the con- 
 dition had become enforceable, provided he became so entitled 
 after 31st December, 1911 . Conversely, it is provided by 
 s. 11 , that in leases made after 1881 the obligation of a cove- 
 nant entered into by the lessor, and having reference to the 
 subject-matter of the lease, shall, as far as he has power to 
 bind the reversionary estate immediately expectant on the term, 
 
 (z) Smith v. Eggington (1874), L. R. 9 C. P. 145. 
 
THE FORM AND CONTENTS OF A LEASE. 
 
 317 
 
 be incident to that reversionary estate: and each section con- 
 tains a provision that the assignee of the reversion in the one 
 case shall have the right to enforce and take the benefit of the 
 lessee’s covenants and conditions, and that the lessee in the 
 other shall have the right to enforce and take the benefit of the 
 lessor’s covenants against the assignee of the reversion, not- 
 withstanding that the reversionary estate is severed. It has 
 been held that, if the lessor, after granting the lease, grants 
 another lease for a longer term to commence at once, the 
 grantee of the second lease is an assignee of the reversion, 
 and can sue the first lessee for rent accruing after the grant 
 of the second lease without any attornment by the first 
 lessee (a). 
 
 However, neither the 32 Hen. 8, c. 34, nor the Conveyanc- What cove - 
 mg Act applies unless the covenant touches and concerns w ith the land 
 the land demised. A covenant which does not touch and 
 concern the land demised is merely collateral or personal to 
 the covenantor (b). It is not easy to say generally what cove- 
 nants “ touch and concern ” the land so as to run with the land. 
 
 Such covenants as covenants by the lessor for quiet enjoyment, 
 for renewal, to repair and to observe a building-line with 
 regard to adjoining land (c), not only run with the reversion 
 and bind the assignee of the lessor, but also run with the land, 
 and can be taken advantage of not only by the lessee, but by 
 any assignee of the lease. In the same way, the lessee’s cove- 
 nants to pay rent, to repair, to cultivate the land in a particular 
 way, to reside on the land, to insure, and other covenants of 
 a similar nature, not only bind the lessee, but also bind any 
 assignee of the lease; and so apparently does a covenant not 
 to assign or underlet (d ) . Again, though the covenant is one 
 
 (a) Horn v. Beard, (1912) 3 
 
 K. B. 181. 
 
 (b) Williams v. Earle (1868), 
 
 L. R. 3 Q. B. 739; Dewar v. 
 Goodman, (1909) A. C. 72. 
 
 (c) Ricketts v. Enfield Church- 
 wardens, (1909) 1 Ch. 544. 
 
 (d) Williams v. Earle (1868), 
 L. R. 3 Q. B. 39. In this case 
 
 the covenant was for the lessee 
 “ and his assigns,” and possibly if 
 the assigns had not been men- 
 tioned they would not have been 
 held bound : see West v. Dobh 
 
 (1869), L. R. 4 Q. B. at p. 637. 
 But the better opinion seems to 
 be that the mention of the word 
 “ assigns ” is immaterial : 
 
 see 
 
EK. I., PT. IV. 
 
 LEASES. 
 
 -318 
 
 How far 
 restrictive 
 covenants of 
 lessor bind 
 lessee. 
 
 And 
 
 assigns of 
 reversion. 
 
 which does not run with the land, yet the assign may in some 
 cases be bound by being expressly named; but this is only the 
 case with covenants to do something new upon the land demised , 
 as, for instance, a covenant to build a wall or a house on it; 
 in these cases the assignee of the lease will be bound by such 
 covenants only if the lessee covenanted for himself and his 
 assigns. Lastly, there are some covenants which will not bind 
 assigns, even when they are expressly mentioned. Such are 
 covenants which relate to something wholly collateral to the 
 land demised, as a covenant by a lessee to build on some other 
 land of the lessor’s not comprised in the demise (e). 
 
 It must also be remembered that the lessee himself may in 
 some cases be bound by covenants made by his lessor, although 
 the covenants do not run with the land at common law, and 
 that an assignee from him may be similarly bound; for a 
 restrictive as distinguished from an affirmative covenant, 
 entered into by the lessor with ref erence to the land, which does 
 not run with the land at common law will nevertheless be 
 binding on the lessee or his assignee if they have notice of it (/) . 
 And as a lessee is deemed in all cases to have constructive 
 notice of the lessor’s title, he will be bound by any restrictive 
 covenants which the latter has entered into with owners of ad- 
 joining property so far as they bear on the enjoyment of the 
 property demised, whether he actually knows of them or 
 not (g ) . In like manner a restrictive covenant entered into by 
 the lessee will bind his assignees (h) or underlessees (i) if they 
 have notice of it. 
 
 Conversely, assignees of a lessor are bound by a restrictive 
 
 Woodfall, Landlord and Tenant, 
 19th ed. 193; Foa, Landlord and 
 Tenant, 4th ed. 420. 
 
 (e) Spencer's Case (1583), 
 Smith, L. C., 11th ed. vol. i. 55. 
 
 (/) Tulk v. Moxhay (1848), 2 
 Ph. 774 ; Patman v. Harland 
 (1881), 17 Oh. D. 353; Hall v. 
 Ewin (1887), 37 Ch. D. 74; Hollo- 
 
 way Bros., Ltd. v. Hill , (1902) 2 
 Ch. 612. 
 
 (g) Wilson v. Hart (1866), 
 L. E. 1 Ch. App. 463; Patman 
 v. Harland, supra. 
 
 ( h ) Luker v. Dennis (1887), 7 
 Ch. D. 227 ; see also Clegg v. 
 Hands (1890), 44 Ch. D. 503. 
 
 (i) Hall v. Ewin (1887), 37 
 Ch. D. 74. 
 
THE FORM AND CONTENTS OF A LEASE. 
 
 319 
 
 •covenant entered into by him if they have notice of it (k), 
 and are entitled to enforce restrictive covenants binding on the 
 lessee (7). 
 
 Usual Covenants. 
 
 Where a lease is preceded by an agreement it is always 
 desirable that the covenants to be inserted in the lease should 
 be set forth in the agreement by means of a schedule or other- 
 wise. and not merely to provide that the lease should contain 
 “the usual covenants and conditions,” since this is almost 
 certain to lead to disputes when the lease is being prepared. 
 When an agreement does provide that a lease shall contain 
 all usual and proper covenants and provisoes it becomes neces- 
 sary for the practitioner in drafting the lease to consider what 
 are “usual covenants” within the meaning of the agreement. 
 According to the practice of conveyancers, some covenants are 
 “usual” beyond question, while others may be “usual” by 
 the custom of the locality in which the premises are situate, 
 or by the usage of trade for the purpose of which they are 
 let, or by other circumstances. Whether there are any of the 
 latter seems to be a question of fact for the jury(m). The 
 following covenants and conditions are clearly usual: — 
 
 Covenants by the lessee — 
 
 (1) To pay the rent; 
 
 (2) To pay tenant’s taxes; 
 
 (3) To keep and deliver up the premises in repair; and 
 
 (4) To permit the lessor to enter and view the state of 
 
 repair, and a condition of re-entry for non-pay- 
 ment of rent, and 
 
 Covenant by the lessor in the usual qualified form for quiet 
 enjoyment (n). 
 
 But the following are not “ usual ” covenants or provisoes: — 
 A clause for forfeiture or re-entry on the bankruptcy of the 
 
 (k) Holloivay Bros., Ltd. v. 
 Hill, (1902) 2 Ch. 612. 
 
 (l) Clegg v. Hands (1890), 44 
 Ch. D. 503. 
 
 (m) See Doe v. Sandham 
 (1787), 1 T. R. 705; Bennett v. 
 
 Womack (1828), 7 B. & C. 627 ; 
 Brookes v. Drysdale (1877), 3 
 C. P. D. 52. 
 
 (■ n ) Hampshire v. Wickens 
 (1878), 7 Ch. D. 555. 
 
 Agreements 
 to grant and 
 take lease 
 with “ usual 
 covenants.” 
 
 What are 
 usual cove- 
 nants in this 
 case. 
 
 What are not 
 
 usual. 
 
320 
 
 BK. I., FT. IV. — LEASES. 
 
 lessee (o), or on the breach of any of the covenants (p); a 
 covenant restricting the carrying on of particular trades (g); 
 a covenant not to assign without licence (r) ; a covenant not 
 to assign without the lessor’s consent, such consent not to be 
 “ unreasonably withheld ’ ’ (s') ; a covenant to leave assign- 
 ments and under-leases with the lessor's solicitor for registra- 
 tion (t); a covenant in the lease of a public-house by the 
 tenant to reside upon the premises, and personally to conduct 
 the business (u ) . And where the lessee agreed that the lease 
 should contain a covenant on his part to keep the premises in 
 good repair, it was held that he was not entitled to have the 
 general covenant qualified by the words “ damage by fire or 
 tempest only excepted” (%). 
 
 Under an It seems that under an open contract to grant a lease the 
 
 open contract p ar ties are in the same position in respect to the covenants and 
 only usual 1 ^ 1 
 
 covenants can provisoes to be inserted as under a contract to grant a lease 
 be insisted on. ^ contain the usual covenants and provisoes (?y). 
 
 Express Covenants. 
 
 Turning now to the express covenants, those of the lessee 
 are generally placed first in the lease. The more important of 
 them are: — 
 
 The Covenant to Pay Rent. 
 
 When rent Kent becomes due on the first moment of the day appointed 
 is due; for payment, and if it is not paid by midnight of the same 
 
 (o) Hyde v. Warden (1877), 3 
 Ex. D. 72. 
 
 (p) Ilodgkinson v. Crowe 
 (1875), L. R. 10 Oh. App. 622; 
 Re Anderton and Milner's Con- 
 tract (1890), 45 Ch. D. 476. 
 
 (g) Propert v. Parker (1832), 3 
 My. & K. 280. 
 
 (r) Henderson v. Hay (1792), 3 
 Bro. C. C. 632; Church v. Brown 
 (1808), 15 Ves. 258; Hampshire 
 v. Wickens (1878), 7 Ch. D. 555; 
 Re Lander and Bagley's Contract, 
 
 (1892) 3 Cli. 41. 
 
 ( s ) Bishop v. Taylor & Co. 
 (1891), 60 L. J. Q. B. 556. 
 
 (£) Brookes v. Drysdale (1877), 
 3 C. P. D. 52. 
 
 (u) Re Lander and Bagley's 
 Contract, (1892) 3 Ch. 41. 
 
 (cc) Sharp v. Milligan (1857), 
 23 Beav. 419. 
 
 (y) Propert v. Parker (1832), 3 
 My. & Iv. 280; Re Lander and 
 Bagley's Contract , (1892) 3 Ch.. 
 41. 
 
THE FORM AND CONTENTS OF A LEASE. 
 
 321 
 
 day it becomes in arrear (z ) . The payment should be made 
 in cash, unless any other mode of payment, e.g. by cheque, 
 is authorized by custom, or by the previous course of dealing 
 between the parties. If a bill of exchange, promissory note, 
 or a bond is given in payment, the debt arising out of the 
 liability to pay the rent is not thereby necessarily extinguished 
 or merged, so as to supersede the lessor’s right to distrain; 
 but the taking* of such a bill by the landlord is some evidence 
 of an agreement by him to suspend his right of distress until 
 the bill matures ( a ) . 
 
 The proper place to make the payment is upon the land or 
 premises demised; but if there is an express covenant to pay 
 the rent, it is the duty of the tenant to seek the landlord out, 
 wherever he may be, and to make the payment to him (b). 
 The payment should be made to the lessor in person, or to his 
 authorized agent, or at least to a person to whom the tenant 
 has previously paid it, with the approval, tacit or express, of 
 the lessor. Even though the lessor mortgage the premises after 
 the demise, the lessee can nevertheless go on paying the rent 
 to the lessor until he receives notice from the mortgagee re- 
 quiring the payment to be made to him ( c ) . 
 
 As already mentioned, under the Income Tax Act, 1842, the 
 tenant may deduct any property tax, which he has paid, from 
 his next rent, notwithstanding any agreement to the con- 
 trary (d) ; and so also if called upon to pay any tax or rate 
 which, though leviable in the first instance on the occupier of 
 the premises, is ultimately payable by the landlord, he may 
 deduct these, in the absence of agreement to the contrary; but 
 in all cases the deduction should be made from the instalment 
 of rent paid next after the payment of such taxes oir rates, 
 since it seems that they cannot as a rule be afterwards de- 
 ducted or even recovered from the landlord by action (e). Even 
 
 how it should 
 he paid ; 
 
 where it 
 should be 
 paid : 
 
 to whom it 
 should be 
 paid. 
 
 As to deduct- 
 ing- rates and 
 taxes. 
 
 5 & 6 Viet, 
 c. 35. 
 
 ( 2 ) Dibble v. Bowater (1853), 
 2 E. & B. 564. 
 
 (а) Palmer v. Bramley , (1895) 
 
 2 Q. B. 405. 
 
 (б) Haldane v. Johnson (1853), 
 8 Ex. 689. 
 
 (c) Trent v. Hunt (1853), 9 Ex. 
 
 14, see at p. 23. 
 
 ( d ) Income Tax Act, 1842, 
 ss. 73, 103. 
 
 (A Cummin g v. Bedborougk 
 (1846), 15 M. & W. 438. But see 
 Be Sturm, ey Motors, Ltd., (1912) 
 
 W. N. 250. 
 
 G. 
 
 Y 
 
 1 
 
322 
 
 Practice note. 
 
 Landlord’s 
 remedies 
 for rent. 
 
 (i) Action. 
 
 3 & 4 Will. 4, 
 c. 27. 
 
 3 & 4 Will. 4, 
 c. 42. 
 
 37 & 38 Viet, 
 c. 57. 
 
 (ii) Distress. 
 
 RK. I., PT. IV. LEASES. 
 
 where the premises are destroyed by fire the tenant, in the 
 absence of stipulation, must pay the rent in full(/); and for 
 this reason, an express provision exempting the lessee from 
 this liability should be inserted when a lease is being settled 
 on his behalf. The rent will, however, be entirely suspended 
 if the tenant is evicted by the landlord until such time as he is 
 reinstated in possession. 
 
 The lessor can enforce the covenant for payment of rent by 
 action or by distress; but he cannot exercise both these rights 
 concurrently. If he has distrained he cannot sue on the cove- 
 nant until he has realized the distress, even though it is insuffi- 
 cient to satisfy the rent (g ) . But if after the completion of 
 the distress it be found insufficient, he may then sue on the 
 covenant for the balance (/&). In an action for the recovery 
 of rent, six years’ arrears of rent may be recovered under 
 the Beal Property Limitation Act, 1833, or if there is a cove- 
 nant to pay it twenty years’ arrears may be recovered under 
 the Civil Procedure Act, 1833 (i). An action for rent may 
 be brought at any time during the tenancy; for as long as the 
 relationship of landlord and tenant exists the twelve years 
 within which an action to recover rent must be brought under 
 the Beal Property Limitation Act, 1874, do not run (k). 
 
 The last quarter’s rent is sometimes made payable in ad- 
 vance in order to facilitate its collection by means of a distress. 
 
 For a detailed statement of the remedy by distress, reference 
 must be made to books on the law of Landlord and Tenant (Z). 
 
 (/) Beljour v. Weston (1786), 
 1 T. R. 310; Pindar v. Ainsley 
 (1767), cited ibid. 312. 
 
 ( g ) Lehain v. Philpott (1875), 
 L. R. 10 Ex. 242. 
 
 ( h ) Lear v. Edmonds (1817), 1 
 B. & A. 157. 
 
 O Paget v. Foley (1836), 2 
 Bing. N. C. 679; see also Hunter 
 v. Nockolds (1850), 19 L. J. Ch. 
 
 177; Darley v. Tennant (1885), 
 53 L. T. 257. 
 
 (k) Grant v. Ellis (1841), 9 
 M. & W. 113; Lewis v. Graham 
 (1885), 80 L. T. Jour. 66. 
 
 ( l ) See Woodfall, Landlord and 
 Tenant ; Eoa, Landlord and 
 Tenant; Redman & Lyon, Land- 
 lord and Tenant; and Student’s 
 Statute Law, under title “ Land- 
 lord and Tenant.” 
 
THE FORM AND CONTENTS OF A LEASE. 
 
 323 
 
 The Covenant to Pay Taxes, &c. 
 
 The form of the covenant to pay taxes and rates varies very 
 much, and the obligations it imposes vary accordingly. 
 
 A covenant to pay “all taxes” will generally extend only 
 to parliamentary taxes (m), which include land tax, hut not 
 tithe rent-charge, since the Tithe Act, 1891, nor parochial or 
 sewers rates (zz), or others of like nature; nor is a sewers rate 
 within a covenant to pay all taxes parochial and parliamen- 
 tary^). The word “taxes” is applicable to parliamentary 
 and “rates” to parochial assessments (o). A covenant to pay 
 “all rates and taxes” chargeable in respect of the demised 
 premises may cover a water rate (p). But a covenant to pay 
 “ all rates, taxes and impositions whatsoever, whether parlia- 
 mentary, parochial, or imposed bv the corporation of the City 
 of London or otherwise,” which might be rated, charged, or 
 assessed on the demised premises or on the landlord or tenant 
 in respect of them, has been held not to apply to a water rate 
 levied by a water company, because that cannot properly be 
 said to be “imposed” on the person supplied (q). 
 
 Whether the tenant is bound to pay charges not of a recur- 
 ring nature assessed in respect of improvements to the pro- 
 perty, such as charges for paving, sewering, or draining under 
 the Public Health, Metropolis Management and similar acts, 
 or to paj r the cost of improvements required to be made by the 
 local authorities under such statutes as the Factory Acts, 
 depends on the terms in which the covenant is expressed. 
 There is a perfect maze of decisions on the subject which it is 
 impossible to reconcile, and the older authorities cannot be 
 relied on. It appears clear that when the covenant includes 
 words of wide import like “duties,” “ outgoings,” “ imposi- 
 
 (m) Arran v. Crisp (1691), 12 
 Mod. 55. 
 
 ( n ) Palmer v. Earith (1845), 
 14 M. & W. 428. 
 
 (o) See Chatfield v. Ruston 
 (1825), 3 B. & C. 863. 
 
 (p) Spanish Telegraph Co. v. 
 
 Shepherd (1884), 13 Q. B. D. 202; 
 Bourne v. Salmon & Gluckstein, 
 Ltd., (1907) 1 Ch. 616. 
 
 ( q ) Badcock v. Hunt (1888), 22 
 Q. B. D. 145; and see Driesel- 
 man v. Winstanley (1909), 53 
 Sol. Jo. 631. 
 
 What taxes 
 included 
 in usual 
 covenant. 
 
 Meaning of 
 “ rates.” 
 
 Charges for 
 permanent 
 improve- 
 ments ; 
 
324 
 
 BIC. I., PT. IV. LEASES. 
 
 “ assess- 
 ments” ; 
 
 C i 
 
 duties 
 
 9 1 . 
 
 “ out- 
 goings” ; 
 
 “ imposi- 
 tions ” ; 
 
 tions,” or “ charges/' the tenant will have to pay such charges,, 
 for each of these expressions implies a covenant to indemnify 
 the lessor against such expenses, but in their absence such 
 charges must be borne by the lessor. 
 
 A covenant to pay all ‘‘assessments” will not throw on the 
 tenant the cost of abating a nuisance (r) or of paving under 
 s. 150 of the Public Health Act, 1875 ( s ). 
 
 On the other hand, a covenant to “pay .... all duties 
 imposed in respect of the demised premises ” renders the tenant 
 liable to pay the cost of complying with a notice to abate a 
 nuisance served on the landlord under the Public Health 
 (London) Act, 1891 (t), and apparently also the cost of paving 
 a new street or of drainage works under the Metropolis 
 Management Act, 1855 (u). 
 
 The word “ outgoings ” is at least as strong as “duties” (x), 
 and the tendency of the courts is to put a broad construction 
 upon the expression, and it has been held that a covenant to pay 
 all “ outgoings ” throws on the tenant tjhe cost of drainage 
 works, paving a new street and similar charges (t /) . 
 
 The word “impositions” appears to have the same effect as 
 the words “ duties ” and “ outgoings,” and to be equivalent to a 
 covenant to indemnify the landlord. It has been held sufficient 
 
 (r) Lyon v. Greenhoiv (1892), 8 
 Times L. E. 457. 
 
 (s) Baylis v. Jig gens, (1898) 2 
 Q. B. 315; Lumby v. Faupel 
 (1903), 88 L. T. 562. 
 
 ( t ) Brett v. Rogers, (1897) 1 
 Q. B. 525. 
 
 (w) Thompson v. Lapworth 
 (1868), L. E. 3 C. P. 149; Wix 
 v. Rutson, (1899) 1 Q. B. 474; 
 Farloiv v. Stevenson, (1900) 1 
 Ch. 128. 
 
 (as) Per Grove, J., in Aldridge 
 v. Feme (1886), 17 Q. B. D. at 
 p. 214. 
 
 {y) Crosse v. Raw (1874), L. E. 
 9 Ex. 209; Aldridge v. Feme 
 (1886), 17 Q. B. D. 212 (doubt- 
 
 ing Hill v. Edward (1885), 1 
 Times L. E. 253); Batchelor v. 
 Bigger (1889), 60 L. T. 416; 
 Antil v. Godwin (1889), 15 Times 
 L. E. 462; Stockdale v. Ascher- 
 berg, (1904) 1 K. B. 447; Greaves 
 v. Whitmarsh, (1906) 2 K. B. 
 340. Compare the special cases 
 of Vestry of Mile End Old Town 
 v. Whitby (1898), 78 L. T. 80 
 (new rate falls on landlord); and 
 Arding v. Economic Printing and 
 Publishing Co. (1899), 79 L. T. 
 622 (covenant to pay “ fair share 
 and proportion ” of expenses 
 under Eactory Act) ; Harris v. 
 Hickman, (1904) 1 K. B. 13 
 (yearly tenant not liable). 
 
THE FORM AND CONTENTS OF A LEASE. 
 
 •325 
 
 to throw on the tenant the cost of repairing a drain or abating 
 a nuisance at the requisition of the sanitary authority under 
 the Public Health (London) Act, 1891 (z). 
 
 Apparently, the Avord “charges’ 1 also is as wide as the fore- 
 going, though there is no recent decision directly in point; if 
 the tenant covenants to pay “charges imposed'’ he clearly 
 makes himself liable (a) . 
 
 In the older oases in which the tenant Avas held liable the 
 decision seems to have been based on the presence in the cove- 
 nant of Avords throwing on him the obligation to pay charges 
 imposed “on the lessor in respect of the demised premises” as 
 well as those charged on the premises; and in the absence of 
 such words the tenant escaped. But the phrase iioav appeal’s to 
 he immaterial if Avords of indemnity appear in the cove- 
 nant (b). 
 
 If a landlord Avho has covenanted to pay a tax does not do 
 so, and the tenant has to pay it, the latter may either deduct it 
 from his next rent, or sue to recover the money paid (<?) . If 
 by the statute imposing’ a tax the landlord is the person ulti- 
 mately liable for it, should the tenant be called on to pay it, it 
 would seem that his remedy is to deduct the amount from his 
 rent, and that he cannot as a rule bring an action to recover 
 it (d). Deductions should always be made from the next rent. 
 
 (z) Smith v. Robinson, (1893) 
 2 Q. B. 53; Foulger v. Arding, 
 (1902) 1 K. B. 700 (which, as 
 read with Farlow v. Stevenson, 
 (1900) 1 Ch. 128, seem to over- 
 rule Tidswell v. Whitworth 
 (1867), L. R. 2 C. P. 326; and 
 Rawlins v. Briggs (1878), 3 
 
 C. P. D. 368); Re Warriner, 
 (1903) 2 Oh. 367. 
 
 (а) See George v. Coates 
 (1903), 88 L. T. 48; and per Lord 
 Alverstone in Lumby v. Faupel 
 (1903), ibid, at p. 564; see also 
 Smith v. Robinson, supra. 
 
 (б) See Antil v. Godwin (1889), 
 15 Times L. R. 462; and Farlow 
 
 v. Stevenson, (1900) 1 Ch. 128. 
 A fuller discussion of the autho- 
 rities will be found in Poa, Land- 
 lord and Tenant. 
 
 (c) Watson v. Home (1827), 7 
 B. & C . 285; Graham v. Tate 
 (1813), 1 M. & S. 609. 
 
 (d) Denby v. Moore (1817), 1 
 B. & Aid. 126; Andrew v. Han- 
 cock (1819), 1 B. & B. 37; Lamb 
 v. Breivster (1879), 4 Q. B. D. 
 220, 607. He was allowed, how- 
 ever, to recover by action in Earle 
 v. Maugham (1863), 14 C. B. 
 N. S. 626, where the statute in 
 point gave a right of action; and 
 in Dawson v. Linton (1822), 5 
 
 “ charges.” 
 
 Basis of 
 
 latest 
 
 decisions. 
 
 Tenant’s 
 remedy for 
 non-payment 
 by landlord. 
 
326 
 
 Deductions 
 when rateable 
 value 
 increased 
 by tenant. 
 
 ‘ ‘ Land- 
 lord’s” and 
 “tenant’s ” 
 taxes. 
 
 By the 
 landlord ; 
 
 Practice note. 
 
 BK. I., FT. IV. — LEASES. 
 
 If that rent be paid in full without deduction, it seems that 
 the lessee cannot as a rule afterwards recover the amount of 
 tho tax or deduct it from a subsequent quarter’s rent(e). 
 
 Where the tenant is empowered to deduct sewers rate and 
 land tax, and he builds on the land so as to increase its rate- 
 able value, he can only deduct the rate apd tax on the original 
 value (/), and the same principle applies in respect of the pro- 
 perty tax which the law allows him to deduct. 
 
 "‘Landlord’s rates and taxes” and “Tenant’s rates and 
 taxes” mean the rates and taxes which would, in the absence of 
 agreement, fall on the landlord and tenant respectively (g ) . 
 
 The Covenant to Repair. 
 
 When the landlord expressly covenants to repair, the cove- 
 nant carries with it the right to enter on the land and remain 
 there for a reasonable time to execute the repairs (h). In the 
 absence of any provision whatever, the landlord has no right 
 to enter on the premises to do repairs (except in cases falling 
 within ss. 14 and 15 of the Housing, Town Planning, &c. 
 Act, 1909 (i)), even though the result of non-repair may cause 
 a forfeiture of his own lease (1c ) . This should be borne in 
 mind in drawing a lease. If the landlord covenants to repair 
 the inside of the demised premises, he cannot be sued for 
 breach of the covenant until he has had notice of the want 
 of repairs, even though the covenant contains no stipulation 
 
 B. & Aid. 521, where the tenant 
 had not been called on to pay 
 until after he had paid his rent. 
 
 (e) See JDenby v. Moore (1817), 
 1 B. & A. 123; Andrew v. Han- 
 cock (1819), 1 B. & B. 37; In- 
 come Tax Act, 1842, ss. 60, 73, 
 103; Income Tax Act, 1843, s. 40; 
 The Revenue (No. 1) Act, 1864, 
 s. 15; see, however, Re Sturmey 
 Motors, Ltd., (1913) 1 Oh. 16. 
 
 (/) Watson v. Home (1827), 7 
 B. & C. 285; Smith v. Humble 
 (1854), 15 0. B. 321; Mansfield 
 v. Relf, (1908) 1 K. B. 71; com- 
 pare Salaman v. Holford, (1909) 
 2 Ch. 602. 
 
 (g) See ante, p. 312. 
 
 ( [h ) Saner v. Bilton (1878), 7 
 Ch. D. 815. 
 
 (i) See ante, p. 315. 
 
 ( k ) Stocker v. Planet Building 
 Society (1879), 27 W. R, 877. 
 
THE FORM AND CONTENTS OF A LEASE. 
 
 327 
 
 as to notice (Z). Tlie omission by the landlord to do repairs 
 which he has covenanted to do does not give the tenant a right 
 himself to do the repairs, and deduct what he has paid for 
 them from his rent (m), unless the circumstances be special 
 (e.g., where the non-repair will cause injury to the tenant’s 
 goods), and the landlord after notice fails to do what is neces- 
 sary (n); nor does it give the tenant the right to quit the 
 premises (o). 
 
 The tenant’s covenant varies with the nature of the pro- by the tenant, 
 pert}' comprised in the lease; but his liability under a general ^j_ s 
 
 covenant to repair depends to a great extent upon the condition of the 
 of the building at the time of the commencement of the demise. coveiiant - 
 For where an old building is leased, the covenant to keep and 
 deliver up in repair is not to be construed as meaning that the 
 lessee must restore it in a renewed form at the termination of 
 his tenancy, nor even that he must restore it in the same condi- 
 tion as that in which he found it. It is the duty of the tenant 
 to keep the premises as nearly as may be in the same state in 
 which they were at the time of the demise by the timely expen- 
 diture of money and care, but their age, character, and con- 
 dition must be taken into consideration ; and an allowance must 
 be made for decay, which is the natural result of time and the 
 elements (p ) . The lessee is, however, bound to renew and 
 rebuild any subsidiary part of the premises which is past 
 ordinary repair; so that where the front wall of an old house 
 had by natural decay at the end of the term fallen into such 
 a state that it had been condemned as a dangerous structure, 
 it was held that the lessee must pull it down and rebuild 
 
 ( l ) Mahin v. Wathinson (1870), 
 L. R. 6 Exch. 25; L. & S. W. 
 By. Co. v. Fowler (1875), 1 
 C. P. D. 77; Hugall v. M l Lean 
 (1885), 53 L. T. 94; Torrens v. 
 Walker, (1906) 2 Ch. 166. 
 
 (ra) Taylor v. Beal (1501), 1 
 Croke, 222 ; Weigall v. Waters 
 (1795), 6 T. R. 488; Waters v. 
 Weigall (1795), 2 Anst. 575. 
 
 ( n ) Green v. Bales (1841), 2 
 Q. B. 225. 
 
 (o) Surplice v. Farnsworth 
 (1844), 7 M. & (4. 576. 
 
 (p) Gutteridge v. M unyard 
 (1834), 7 C. & P. 129; Payne v. 
 Haine (1847), 16 M. & W. 541; 
 Lister v. Lane, (1893) 2 Q. B. 
 212 . 
 
328 
 
 BK. I., PT. IV. LEASES. 
 
 “ Tenantable 
 repair.” 
 
 “ Habitable 
 repair.” 
 
 As to the 
 extent of the 
 covenant. 
 
 14 Geo. 3, 
 c. 78. 
 
 it (g). Under a covenant to keep and leave a house in “good 
 tenantable repair,” the tenant must put , keep, and leave the 
 house in such repair as, having regard to the age, character, 
 and locality of the house, would make it reasonably fit for 
 the occupation of a reasonably-minded tenant of the class who 
 would be likely to take it; but the tenant need not do merely 
 decorative repairs, nor re-paper or paint, unless that is neces- 
 sary to satisfy a reasonably-minded tenant of the class who 
 would be likely to take the house (r). “Habitable repair” 
 seems to mean the same as “tenantable repair.” It follows that 
 where the obligation is “ to put the premises into habitable 
 repair,” the tenant may possibly have to deliver them up in a 
 better state than that in which he found them (s) . The tenant 
 will be liable for damages for breach of covenant to repair, 
 even though the landlord pulls down the building at the end of 
 the tenancy, so that he suffers no real injury (£); or even 
 though an incoming tenant has agreed to reinstate the pre- 
 mises, and thus again the landlord suffers no real loss {it). 
 
 If the covenant to repair is a general one, it comprises all 
 the premises on the demised land, whether existing at the date 
 of the demise or erected subsequently. But if it be “ to repair 
 the buildings demised,” it will only comprise the buildings 
 existing at the commencement of the demise (x). No subse- 
 quent accident or disaster will excuse the tenant from perform- 
 ing the covenant: so that if the premises are burned down, 
 ‘whether by accident or neglect, or are otherwise destroyed ( e.g ., 
 by a landslip), he must rebuild them (?/); and in such a case 
 the landlord who has insured will not be compelled to contribute 
 the insurance money towards the re-building of the pre- 
 mises ( z ) . Where, however, the premises are destroyed by fire, 
 it may be that under s. 83 of the Fires Prevention (Metro- 
 
 ( q ) Lurcott v. Wakeley, (1911) 
 1 K. B. 905. 
 
 ( r ) Proudfoot v. Hart (1890), 
 25 Q. B. D. 42. 
 
 (s) Belcher v. Mackintosh 
 (1839), 2 Moo. & R. 186. 
 
 (£) Inderwick v. Leech (1884), 
 1 C. & E. 412. 
 
 ( u ) Joyner v. Weeks, (1891) 2 
 Q. B. 31. 
 
 (x) Doe v. Rowlands (1841), 9 
 C. &P. 734. 
 
 (y) Bullock v. Dommitt (1796), 
 6 T. R. 650. 
 
 (z) Leeds v. Cheetham (1827), 
 1 Sim. 146. 
 
THE FORM AND CONTENTS OF A LEASE. 
 
 329 
 
 polis) Act, 1774, the lessee may, as a person interested, apply 
 to the insurance company to have the money laid out in re- 
 building or repairing the premises, provided he make the 
 application before the company have actually paid the moneys 
 over to the landlord. 
 
 The remedy which the landlord has, in the event of a breach 
 of this covenant, is an action for damages; hut besides this 
 the lease usually contains a proviso giving him a power to 
 re-enter. 
 
 The measure of damages recoverable by the landlord at the 
 end of the term for breach of a Covenant to repair is the cost 
 of putting the premises in such repair as is required by the 
 covenant, not the actual loss occasioned to the landlord ( a ) . 
 When the breach occurs during the continuance of the lease, 
 the measure of damages is the extent of the damage to the 
 reversion (b). Lord Herschell said, in the case of Conquest v. 
 Ebbetts (c), “ I do not think any hard-and-fast rule can he 
 laid down. . . . All the circumstances of the case must 
 
 he taken into consideration, and the damages must be assessed 
 at such a sum as reasonably represents the damage which the 
 covenantee has sustained by the breach of covenant.” And it 
 'was pointed out in the same case in the Court of Appeal (d), 
 that the measure of damages is not the same in the case of' an 
 underlease as in that of a lease with a freehold reversion, since, 
 where the underlessee has notice that there is a superior land- 
 lord, the underlessor’s liability to that landlord must be taken 
 into account; and the cost of putting the property into repair 
 at the end of the term is properly considered in assessing the 
 damages against the underlessee (e) . 
 
 ( a ) Joyner v. Weeks, (1891) 2 
 
 Q. B. 31. 
 
 (5) Doe v. Rowlands (1841), 9 
 C. & P. 734; Ebbetts v. Conquest , 
 (1895) 2 Ch. 377, see especially 
 at pp. 383 and 384. 
 
 (c) (1896) A. C. 490. 
 
 ( d ) (1895) 2 Ch. at pp. 381 et 
 seq. 
 
 (e) See also Henderson v. 
 Thorn , (1893) 2 Q. B. 164; and 
 Clare v. Dobson , (1911) 1 K. B. 
 35. 
 
 Remedy for 
 breach of 
 covenant. 
 
 Measure of 
 damages. 
 
330 
 
 BK. I., PT. IV. LEASES. 
 
 The Covenant for Insurance. 
 
 When a 
 covenant to 
 insure is 
 inserted. 
 
 What will 
 amount to 
 breach of 
 covenant. 
 
 A covenant to insure is generally inserted in leases of houses 
 and buildings of any description. It was formerly sometimes 
 provided in the covenant that if the lessee made default in 
 paying the premiums, the lessor should have power to pay them 
 and to recover the same, with expenses, by distress, as if they 
 were rent in arrear; hut this is not now practicable, as such 
 a power of distress would make the instrument a bill of sale 
 and involve the necessity of registering it under the Bills of 
 Sale Acts (/); and there seems to be the same objection to the 
 reservation of an additional rent in case the premiums are 
 not paid. The covenant ought generally to make provision 
 for the laying out of the insurance moneys in the reinstating 
 of the premises (g ) ; and if it is the lessor who gives the cove- 
 nant, the lessee ought to be required to enter into a counter 
 covenant not to do anything to increase the rate of insurance. 
 
 As to what constitutes a breach of the covenant to insure, it 
 has been held that if the premises are left uninsured for any 
 part of the term, however small, even though no fire occur and 
 proper insurances be afterwards effected, the covenant has 
 nevertheless been broken (h ) ; and if the covenant provides that 
 the insurance shall be effected in the joint names of the lessor 
 and the lessee, it is broken if the insurance is in the name of 
 the lessee alone ( i ) ; although it is satisfied if the insurance 
 be effected in the name of the lessor alone (7c). Further, a 
 covenant to insure in the name of the lessor alone is broken 
 by insuring in the names of the lessor and the lessee 
 jointly (7). The breach of this covenant is a continuing 
 breach, so that the receipt of rent by the lessor after the omis- 
 
 (/) See Pulbrook v. Ashby 
 (1887), 56 L. J. Q. B. 376; 
 Stevens v. Marston (1890), 60 
 L. J. Q. B. 192. 
 
 ( g ) See Lees v. Whitely (1866), 
 L. R. 2 Eq. 143. 
 
 ( h ) Penniall v. Harborne 
 
 (1848), 11 Q. B. 368. 
 
 (i) Doe v. Gladwin (1845), 6 
 Q. B. 953. 
 
 ( h ) Havens v. Middleton 
 
 (1853), 10 Ha. 641. 
 
 (Z) Penniall v. Harborne 
 
 supra. 
 
THE FORM AND CONTENTS OF A LEASE. 
 
 331 
 
 sion to insure will only operate to waive the breach so far as 
 it has occurred prior to the receipt of the rent (m) . 
 
 The Covenant not to Assign or Underlet. 
 
 A covenant against assigning or underletting, as generally 
 framed, prohibits the lessee, his executors, administrators and 
 assigns, from assigning, underletting, or parting with pos- 
 session of the premises, but is commonly qualified so as to 
 only prohibit these iacts without the written consent or 
 licence of the lessor. It seems that the covenant runs with the 
 land; at any rate, it will bind an assignee of the lease if the 
 lessee covenanted for himself and his assigns (w), though it has 
 been held that the executor of a deceased lessee is not 
 bound (o) unless the lessee covenanted for his executors as well 
 as for himself (p) . On the other hand, even though it be ex- 
 pressed to bind assigns, it has been said (q) that if the lessor 
 has given his consent to an underlease, the underlessee is not 
 bound by the original covenant in the lease; and it has been 
 held (r) that if the underlessee in his turn underlets the pre- 
 mises, the lessor cannot re-enter under a proviso for re-entry 
 on breach of covenant, because the underlessee not being an 
 “assign,” there is no breach of the original covenant. 
 
 Sect. 3 of the Conveyancing Act, 1892, which applies to all 
 leases, whether executed before or after the commencement of 
 the. act (s), makes every such covenant, in the absence of an 
 expressed provision to the contrary, subject to a proviso to 
 the effect that no fine, or sum of money in the nature of a fine, 
 shall be payable for or in respect of the licence or consent; 
 but this proviso does not preclude the right to require the pay- 
 
 Covenants 
 not to assign 
 without 
 licence. 
 
 55 & 56 Viet, 
 c. 13. 
 
 (m) Doe v. Gladwin , supra. 
 
 (n) Williams v. Earle (1868), 
 L. It. 3 Q. B. 739; compare West 
 v. Dobb (1870), L. It. 5 Q. B. 
 460; and see ante, p. 317. 
 
 (o) Seers v. Hind (1791), 1 Ves. 
 294. 
 
 (p) Roe v. Harrison (1788), 2 
 
 T. It. 425. 
 
 ( q ) Per James, L. J., in 
 Williamson v. Williamson (1874), 
 L. It. 9 Ck. App. at p. 732; see 
 Law Notes, vol. xxii. pp. 330 and 
 370. 
 
 (r) Villiers v. Oldcorn (1903), 
 20 Times L. R. 11. 
 
 (s) West v. Gwynne, (1911) 2 
 Ch. 1. 
 
332 
 
 BK. I., PT. IV. LEASES. 
 
 ment of a reasonable sum in respect of any legal or other 
 expense incurred in relation to such licence or consent. It 
 has been held that a requirement that a sum of money shall 
 be deposited to secure the execution of agreed improvements 
 is not prohibited by the section (t). And the section does not 
 make illegal the payment or acceptance of a fine for the lessor's 
 licence or consent, and if such a payment is made by a lessee 
 not under protest he cannot recover the amount paid, though 
 if consent is refused except upon payment, he can disregard 
 the covenant and make a valid assignment or underlease with- 
 
 Covenant not 
 broken — 
 
 (a) by bequest 
 of term ; 
 
 (b) by 
 involuntary 
 alienation ; 
 
 (c) by deposit 
 of lease ; 
 
 (d) declaration 
 of trust. 
 
 out it (u) } or bring an action for a declaration that he is entitled 
 to assign or underlet, in which action costs will be given him, 
 though no relief is asked for beyond the declaration (x ) . 
 
 There have been many decisions as to what constitutes a 
 breach of a covenant of this kind; of course the question 
 depends in a great measure on the wording of the particular 
 covenant. Thus, it has been held that a condition not to assign 
 without consent is not broken by a specific bequest of the 
 term (y), and, in general, it is not broken by any assignment 
 which occurs by operation of law and is involuntary. So that 
 no breach occurs by the bankruptcy of the lessee, though the 
 effect is to vest the term in the trustee (2) ; or by an execution 
 — at any rate, if it is suffered without collusion or any inten- 
 tion to evade the covenant (a); or by a compulsory sale to a 
 company under the Lands Clauses Act(fr). Again, it is not 
 broken by a mere equitable mortgage by deposit (c ) ; nor by 
 the lessee executing a deed of arrangement declaring himself 
 a trustee of the lease for his creditors (d ) . A covenant “ not 
 
 (t) Re Cosli's Contract , (1897) 
 1 Ch. 9. Compare Jenkins v. 
 Pi 'ice, (1907) 2 Ch. 229, reversed 
 by C. A. on another ground, 
 (1908) 1 Ch. 10. 
 
 (w) Andrew v. Bridgman, 
 (1908) 1 K. B. 596. 
 
 ( x ) West v. Gwynne, (1911) 2 
 Ch. 1. See post, j>. 334. 
 
 ( y ) Fox v. Swan (1655), Sty. 
 483. 
 
 ( 2 ) Doe v. Bevan (1815), 3 
 M. & S. 353; Re Riggs, (1901) 2 
 K. B. 16. 
 
 (a) Doe v. Carter (1799), 8 
 T. R. 300. 
 
 (5) Baily v. De Crespigny 
 (1869), L. R. 4 Q. B. 180. 
 
 (c) Doe v. Ilogg (1824), 4 
 D. & Ry. 226. 
 
 (d) Gentle v. Faulkner, (1900) 
 2 Q. B. 267. 
 
THE FORM AND CONTENTS OF A LEASE. 
 
 333 
 
 to assign” is not broken by granting an underlease (e), but Covenant 
 a covenant “not to assign, or otherwise part with the premises byunder- 
 for the whole or any part of the term ” is (/). Where partners letting ; 
 were assignees of a lease which contained a covenant not to (h) assign- 
 
 . . i i > ... ment on 
 
 assign without the lessor s consent m writing, and upon the dissolution of 
 
 dissolution of the partnership one of the partners assigned all partnership. 
 
 his interest to the other without such consent, this was held to 
 
 be a breach (g). But the withdrawal of one of two joint lessees 
 
 who were partners, so as to leave the other in sole possession 
 
 of the premises, is not a breach of a covenant not to part with 
 
 possession of them (ft). 
 
 A covenant not to “underlet” will apparently prevent an Covenant not 
 assignment oi the term — an assignment being practically an broken by 
 underlease for the whole term— but this does not seem assignment, 
 settled (i). To let lodgings is probably a breach of a covenant 
 not to underlet (1c ) . 
 
 Sometimes the covenant is qualified by the provision that the Effect of 
 consent of the lessor shall not be “arbitrarily withheld” or ie^^ >nthat 
 “unreasonably withheld.” These words mean that the consent c £ n ^ ent tb 
 shall not be unfairly withheld; and if the lessor ref uses “upon unreasonably 
 advice,” though he does not specify the grounds of his refusal, wlthheld - 
 he cannot be said to withhold his consent arbitrarily. Nor is 
 he bound to specify any reason for his refusal (l). Further, 
 even though the consent is arbitrarily or unreasonably withheld, 
 the lessee can neither recover damages (m), nor get an injunc- 
 tion or specific performance, there being no contract on the 
 
 (e) Crusoe v. Bugby (1771), 
 3 Wils. 234. 
 
 (/) Doe v. Worsley (1807), 1 
 Camp. 20. 
 
 ( g ) Varley v. Coppard (1872), 
 L. R. 7 C. P. 505; Langton v. 
 Henson (1905), 92 L. T. 805. 
 
 (. h ) Corporation of Bristol v. 
 Westcott (1879), 12 Ch. D. 461. 
 
 (i) Compare Greenaway v. 
 Adams (1806), 12 Yes. 395; and 
 
 Re Doyle and O'Hara's Contract , 
 (1899) 1 Ir. R. 113. 
 
 (ft) Greenslade v. Tapscott 
 (1834), 1 C. M. & R. 55; ques- 
 tioning Doe v. Laming (1814), 4 
 Camp. 73, contra. 
 
 ( l ) Young v. Ashley Gardens 
 Properties , Ltd., (1903) 2 Ch. 
 112 . 
 
 (m) Treloar v. Bigge (1874), 
 
 L. R. 9 Ex. 151. 
 
334 
 
 LEASES. 
 
 BK. I., PT. IV. 
 
 Action for 
 declaration 
 that lessee 
 entitled to 
 assign. 
 
 Covenant by- 
 lessor not to 
 withhold 
 consent. 
 
 lessor’s part (w); in such a case his only remedy is to assign 
 without consent (w); and the same applies where it is provided 
 that consent is not to be withheld in the case of a respectable 
 and responsible person (o). This right to assign without 
 licence is generally of very little value to the lessee, because 
 the person to whom it is desired to assign the premises will 
 probably decline to take the assignment when the consent is 
 refused, and the court will hesitate to grant specific perform- 
 ance against him if it is not plain that the lessor’s refusal to 
 consent was unreasonable. This is illustrated by Re Marshall 
 and Salt's Contract (p), where it was provided that the consent 
 was not to be “ unreasonably withheld in the case of a respect- 
 able and responsible tenant,” and the lessor, on being applied 
 to for his consent to an assignment of the house (which was 
 a public-house) to a brewery company, refused, stating that 
 his chief reason was that he desired to keep the house as a 
 “free house.” It was held that in the circumstances the title 
 ought not to be forced on the purchaser, and specific perform- 
 ance was refused. 
 
 If, however, the lessor, when asked for his consent, attaches 
 a condition to it which is unreasonable, the lessee is entitled 
 to bring an action against him for a declaration under 
 Ord. XXV. r. 5, of the Rules of the Supreme Court, that the 
 lessor is not entitled to impose such condition, and that the 
 lessee is entitled to assign without any f urther consent (g); 
 and in a proper case the lessee will be allowed the costs of the 
 application (r ) . 
 
 If, instead of a proviso qualifying the covenant, there were 
 added a covenant by the lessor framed as follows: “and the 
 
 ( n ) Sear v. The House Pro- 
 perty, &c. Society (1880), 16 
 Ch. D. 387. 
 
 (o) Hyde v. Warden (1877), 3 
 Ex. D. 72. Compare Barrow v. 
 Isaacs, (1891) 1 Q. B. 417 ; 
 Eastern Telegraph Co. v. Dent, 
 (1899) 1 Q. B. 835. See also 
 Wilmott v. London Road Car Co., 
 (1910) 2 Ch. 525, where it 
 
 was held that a “ limited com- 
 pany ” may be a “ respectable or 
 responsible person ” within the 
 meaning of the covenant. 
 
 (p) (1900) 2 Ch. 202. 
 
 (q) Young v. Ashley Gardens 
 Properties, Ltd., (1903) 2 Ch. 
 112 . 
 
 (r) West v. Gwynne, (1911) 2 
 Ch. 1. 
 
THE FORM AND CONTENTS OF A LEASE. 
 
 336 
 
 lessor hereby covenants not to withhold such consent in the 
 case of a respectable and responsible tenant,” the lessee would 
 apparently he entitled to bring an action for damages in the 
 event of the consent being withheld; but probably the lessor’s 
 advisers will refuse to permit the insertion of the covenant in 
 this form. 
 
 In any event the covenant will be broken unless the lessor’s 
 consent is applied for (s); and no relief can be obtained against 
 a forfeiture incurred by the breach of a covenant of this kind, 
 since it is expressly excepted from the operation of s. 14 of the 
 Conveyancing Act, 1881 ( t ). 
 
 Restrictive Covenants. 
 
 In order to protect himself, or to prevent the property from 
 being depreciated in value, the lessor often requires the lessee 
 to enter into covenants which restrict his right to use the 
 property in any manner he thinks fit. Thus, the lessee some- 
 times covenants that he will not carry on any trade or business 
 upon the demised premises. There is a difference between a 
 “trade” and a “business,” the latter term being the more 
 extensive of the two. To keep a school or a private lunatic 
 asylum, or a “home” for working girls, though not established 
 for profit, is a “business,” but not a “trade” (u). 
 
 The following is a summary of some of the decisions on the 
 construction of covenants of this nature: — 
 
 To carry on the trade of a coachmaker is not a breach of a 
 covenant not to carry on an “offensive trade” (x); nor is such 
 a covenant broken by using the premises to store lucifer 
 
 (s) Barrow v. Isaacs, (1891) 1 
 Q. B. 417; Eastern Telegraph Co. 
 v. Dent , (1899) 1 Q. B. 835; 
 questioning Hyde v. Warden 
 (1877), 3 Ex. D. 72 (see at p. 81). 
 
 (£) Barrow v. Isaacs , supra; 
 Eastern Telegraph Co. v. Dent, 
 supra . 
 
 (w) Doe v. Keeling (1813), 1 
 M. & S. 95 (school); Kemp v. 
 
 Sober (1851), 1 Sim. N. S. 517 
 (school); Doe v. Bird (1834), 2 
 A. & E. 161 (lunatic asylum); 
 Bramwell v. Lucy (1879), 10 
 
 Ch. D. 691 (hospital); Rolls v. 
 Miller (1884), 27 Ch. D. 71 (home 
 for working girls). 
 
 ( x ) Bonnett v. Sadler (1808), 
 14 Yes. 526. 
 
 Practice point. 
 
 No relief 
 for breach 
 of covenant. 
 
 The object of 
 
 restrictive 
 
 covenants. 
 
 Distinction 
 between 
 ‘ ‘ trade ’ ’ and 
 “ business.” 
 
 Summary of 
 cases on 
 restrictive 
 covenants. 
 
336 
 
 BK. I., PT. IV. LEASES. 
 
 matches, though this might be a breach of a covenant not to 
 carry on a dangerous trade (y) . A covenant not to use the 
 premises as a coffee-house was held to be broken by selling 
 light refreshments (tea, coffee, buns, &c.) to customers (2). The 
 establishing of a national school is not a breach of a covenant 
 “not to do anything which might be a nuisance” (a); and a 
 brew-house is not necessarily a “nuisance” ( b ); but to carry 
 on a boys’ school is a breach of covenant “not to carry on any 
 trade, business, or occupation whereby any injurious, offensive, 
 or disagreeable noise or nuisance” shall be caused (c). A cove- 
 nant not to use the premises for the sale of wines, malt or 
 spirituous liquors was held not to be broken where the lessees 
 were a club, and such liquors were supplied to the members at 
 fixed prices (d); buf such a covenant is broken by a grocer 
 selling wines and spirits in bottle (e). Technical meanings 
 have been attached to the terms “beer-house” and “beer- 
 shop”; so that a sale of beer to be drunk off the premises is 
 not a breach of a covenant not to use the premises as a “ beer- 
 house”^); but a covenant not to use the premises as a 
 “beer-shop” is broken if beer is sold for consumption off the 
 premises (gf) . A covenant not to use a house “for any trade 
 or manufacture or for any other purpose than a private resi- 
 dence” is broken by using it as a boarding-house for scholars 
 attending a school kept by the owner of the house (h ) ; and a 
 covenant to use the premises as a private dwelling-house only 
 is broken by using them as an office to receive orders for 
 
 ( y ) Hickman v. Isaacs (1861), 4 
 L. T. 285. 
 
 (z) Fitz v. lies, (1893) 1 Oh. 
 
 77. 
 
 (a) Harrison v. Good (1871), 
 L. R. 11 Eq. 388. Compare, 
 however, Todheatly v. Benham 
 (1888), 40 Ch. D. 80. 
 
 (5) Gorton v. Smart (1822), 1 
 Sim. & S. 66. 
 
 (c) Wanton v. Coppard, (1899) 
 1 Oh. 92. 
 
 (d) Banken v. Hunt (1894), 10 
 R. 249. 
 
 (e) Fielden v. Slater (1869), 
 L. R. 7 Eq. 523. 
 
 (/) L. & N. W. Bail. Co. v. 
 Garnett (1869), L. R. 9 Eq. 26. 
 
 ( g ) Bishop of St. Albans v. 
 Battersby (1878), 3 Q. B. D. 359; 
 London, &c. Co. v. Field (1881), 
 16 Ch. D. 645. 
 
 (h) Hobson v. Tulloch, (1898) 1 
 Ch. 424; and see Milch v. Coburn 
 (1911), 27 T. L. R. 372. 
 
THE FORM AND CONTENTS OF A LEASE. 
 
 coal (i), or as a school for girls (7c), or as a charitable institu- 
 tion for the board and education of children (/i). A covenant 
 not to carry on a specified business is broken hy transacting 
 the forbidden business merely as ancillary to another busi- 
 ness (m) . A covenant that the lessor, or some particular brewer, 
 shall have the exclusive right to supply the premises with beer, 
 is a valid covenant (w); but the condition that the beer supplied 
 shall be good is implied (o). A covenant by a lessee not to 
 erect or build on the demised premises any other building what- 
 soever other than a stable or coach-house has been held to be 
 broken by the erection of a substantial trellis-work screen in- 
 tended to be permanent (p) . 
 
 The lessor may lose his right to enforce restrictive covenants 
 by waiver. He will lose it, for example, if he lies by, while a 
 breach is being committed, in such circumstances as to raise 
 a presumption that he has waived the breach, as, for example, 
 by the acceptance of rent after he lias become aware of the 
 breach (g), especially if he has knowledge of the breach for a 
 long time, and has made no objection (r) ; but mere acquies- 
 cence in a trilling breach will not prevent him from exercising 
 his right to restrain more extensive ones (s) . 
 
 Occasionally the lessor enters into restrictive covenants: for 
 example, he sometimes covenants that the adjoining premises 
 shall not be used for the purpose of some trade which the 
 lessee intends to carry on upon the demised premises; and 
 where he has done this he or any assign or lessee of his with 
 
 (i) Wilkinson v. Rogers (1863), 
 
 12 W. R. 119. 
 
 (7c) Wickenden v. Webster 
 (1856), 6 E. & B. 387. 
 
 (7) German v. Chapman (1877), 
 7 Ch. D. 271. 
 
 (m) Buckle v. Fredericks 
 (1890), 44 Ch. D. 244; and see 
 Errington v. Birt (1911), 105 
 L. T. 373. 
 
 ( n ) Catt v. Tourle (1889), L. R. 
 4 Ch. App. 654. 
 
 (o) Luker v. Dennis (1877), 7 
 Ch. D. 227; and see remarks of 
 Fry, J., in Edwick v. Hawkes 
 (1881), 18 Ch. D. at p. 207. 
 
 (p) Wood v. Cooper , (1894) 3 
 Ch. 671. 
 
 (g) Doe v. Allen (1810), 3 
 Taunt. 78. 
 
 (r) Gibson v. Doeg (1857), 2 
 H. & N. 615. 
 
 ( 5 ) Richards v. Revitt (1877), 7 
 Ch. D. 224. 
 
 337 
 
 How the right 
 to enforce 
 restrictive 
 covenants 
 may be lost. 
 
 Restrictive 
 covenants by 
 lessor. 
 
 G. — C. 
 
 Z 
 
BIv. I., PT. IV. LEASES. 
 
 wss 
 
 notice will be restrained from breaking the covenant (t). But 
 such a covenant may be a merely personal covenant, so that an 
 assignee of the covenantor may not be bound by it (m) . 
 
 Conditions for Ee-entry and Forfeiture. 
 
 Form of 
 condition of 
 re-entry. 
 
 The lessor generally ensures the observance by the lessee of 
 his covenants by the insertion in the lease of a condition for 
 re-entry or forfeiture on breach of any of the lessee’s covenants. 
 
 The condition of re-entry is usually in the form of a proviso 
 that if the rent shall at any time be in arrear for twenty-one 
 days (x), whether the same shall have been lawfully demanded 
 or not, or if the lessee shall make default in the performance 
 or observance of any of the covenants and conditions on his 
 part to be performed and observed, it shall be lawful for the 
 lessor at any time thereafter into and upon the demised pre- 
 mises or any part thereof in the name of the whole to re-enter, 
 and the same to have again, re-possess and enjoy as in his 
 former estate. 
 
 Strictly 
 
 construed. 
 
 A proviso for re-entry will be strictly construed, and it was 
 therefore formerly thought that negative covenants could not 
 he ‘‘performed,” so that a proviso for re-entry on failure by 
 the lessee to “perform” any of the covenants would not autho- 
 rize a re-entry for breach of such covenants (?/), though the 
 addition of the word “observe” to the word “perform” would 
 extend the right of re-entry to breach of a negative cove- 
 nant ( z ). But the Court of Appeal has held that this is erro- 
 
 (t) Holloway Bros., Ltd. v. 
 Hill , (1902) 2 Ch. 612. 
 
 (u) Kemp y. Bird (1877), 5 
 Ch. D. 549, 974; Powell v. Hems- 
 ley, (1909) 1 Ch. 680, affirmed by 
 C. A., (1909) 2 Ch. 252. 
 
 ( x ) Sometimes the words “ and 
 no sufficient distress can be had 
 for the same ” are added, in which 
 case it is desirable to frame the 
 proviso “ if and whenever the 
 
 rent,” . . . &c. See Shepherd v. 
 Berger, (1891) 1 Q. B. 597. 
 
 {y) Hyde v. Warden (1877), 3 
 Ex. D. at p. 82; Harman v. 
 Ainslie, (1903) 2 K. B. 241 ; 
 compare Barrow v. Isaacs, (1891) 
 1 Q. B. at pp. 418, 424. 
 
 (z) Croft v. Lumley (1858), 6 
 H. L. C. 672; Evans v. Davis 
 (1878), 10 Ch. D. 747; Barrow v. 
 Isaacs, supra. 
 
THE FORM AND CONTENTS OF A LEASE. 
 
 *39 
 
 neous, and that the word “perform” is sufficient to include 
 negative covenants {a) . 
 
 Subject to the Conveyancing Acts, 1881 and 1892, the lessor when 
 may take advantage of the proviso for re-entry immediately it P revl0 ^ s . 
 arises without any preceding formalities; hut, in the case of required 
 forfeiture for the breach of the covenant to pay rent, unless adyantage U of 
 the lease otherwise 'provides, he must make a previous demand proviso, 
 of the precise amount of rent due on the precise day on which 
 it is payable, at a convenient time before sunset, upon the 
 land, at the most notorious place of it, or at the place, if any, 
 appointed for payment (5). To avoid these troublesome for- 
 malities, the proviso in a lease generally stipulates that the 
 lessor may re-enter “ although no legal demand shall have been 
 made for the payment of the rent.” By the Common Law' 15 & i6Vict. 
 Procedure Act, 1852, s. 210, the landlord may re-enter when 7(, ‘ 
 he has reserved the right to re-enter for non-payment of rent, 
 even though these words do not appear in the proviso, and even 
 though he makes no formal demand, but only in the event of 
 the rent being in arrear for half a year, and there being no 
 sufficient distress on the premises. 
 
 Even though there is a right of re-entry on breach of a Operation of 
 covenant, a breach of the covenant does not of itself determine re-entry 01 
 the lease; but it becomes voidable at the option of the 
 lessor (c). Further, the lessor must do some act clearly showing 
 his intention of avoiding the lease, e.g ., by commencing pro- 
 ceedings in ejectment (d) ; and when he has once elected to 
 avoid the lease no subsequent receipt of rent can operate as 
 a waiver of the forfeiture, nor is the lessee liable to pay any 
 subsequent rent ( d ). Subject to the provisions of the Convey- 
 ancing Acts stated below, when the lessor enters for forfeiture, 
 the rights of an underlessee in the land are gone(e). 
 
 (a) Harman v. Ainslie, (1904) 
 1 K. B. 698. 
 
 ( b ) Huppa v. Mayo (1670), 1 
 Wms. Saund. 287. 
 
 (c) But not at the option of the 
 lessee, even though the proviso 
 says the lease shall be “ void,” 
 since a person is never allowed to 
 
 take advantage of his own wrong: 
 Rede v. Farr (1817), 6 M. & S. 
 
 121 . 
 
 (d) Jones v. Carter (1846), 15 
 M. & W. 718. 
 
 (e) G. W. Rail. Co. v. Smith 
 (1876), 2 Ch. D. 235. 
 
 z 2 
 
340 
 
 BK. I., PT. IV. LEASES. 
 
 Provisions of 
 the Convey- 
 ancing- Act as 
 to right of 
 re-entry. 
 
 Lessee’s rig-lit 
 of applying to 
 the court for 
 relief against 
 forfeiture. 
 
 Before taking advantage of a proviso for re-entry or forfei- 
 ture, the lessor must now comply with the provisions of s. 14 
 of the Conveyancing Act, 1881, which (except as mentioned 
 below) enacts that the right of re-entry or forfeiture shall not 
 be enforceable by action or otherwise (/), unless and until the 
 lessor serves on the lessee a notice specifying the particular 
 breach complained of, and, if the breach is capable of remedy, 
 requiring the lessee to remedy it, and in any case requiring 
 the lessee to make compensation in money for the breach, and 
 the lessee fails within a reasonable time thereafter to remedy 
 the breach if it is capable of remedy, and to make reasonable 
 compensation in money to the satisfaction of the lessor for 
 the breach. A notice served under this section is not insuffi- 
 cient because no compensation is demanded (g). 
 
 Not only does the act prevent a landlord from making a 
 harsh use of his right to re-enter or to take advantage of a 
 forfeiture, but when the lessor has, by complying with the pre- 
 vious provisions of the act, entitled himself to enforce these 
 rights, and is proceeding by action or otherwise so to do, the 
 lessee may apply to the court for relief, and the court may 
 grant or refuse relief , as it thinks fit; and in case of relief may 
 grant it on such terms as it thinks fit(^). The court’s dis- 
 cretion is very wide, and the House of Lords has refused to 
 lay down any rigid rules to fetter it (i ) . The application for 
 relief should be made in the action (whether in the High 
 Court or County Court) brought to enforce the forfeiture, but 
 if no such action is pending the lessee must apply by writ (not 
 by originating summons) to the High Court (fc); he cannot 
 in such a case seek relief in the County Court. The applica- 
 tion for relief must be made before the lessor has actually 
 
 (/) See Re Riggs, Ex parte 
 Lovell, (1901) 2 IT B. 16. 
 
 (g) Lock v. Pearce, (1893) 2 
 Oh. 271. Upon the form of the 
 notice reference may be made to 
 Cove v. Smith (1886), 2 Times 
 L. R. 778; Fletcher v. Nolces, 
 (1897) 1 Ch. 271; Renton v. 
 Barnett, (1898) 1 Q. B. 276; Re 
 Serle, Gregory v. Serle, (1898) 1 
 
 Ch. 652; and see post, p. 344, as 
 to forfeiture for non-payment of 
 rent. 
 
 ( h ) Conveyancing Act, 1881, 
 s. 14 (2). 
 
 O Hyman v. Rose (1912), 28 
 T. L. R. 432. 
 
 (fc) Lock v. Pearce, (1893) 2 
 Ch. 271. 
 
THE FORM AND CONTENTS OF A LEASE. 
 
 341 
 
 entered; after lie has done so it is generally too late (7). For 
 the purposes of the section a lease includes ( inter alia ) an under- 
 lease; lessee includes underlessee, and a lessee’s heirs, execu- 
 tors, administrators, or assigns (m). Where relief is granted 
 the effect is to restore the lease as if it had never been for- 
 feited, so that an underlessee cannot refuse to pay rent for the 
 period elapsing between the forfeiture and the granting of 
 relief (w). 
 
 It was decided in Burt v. Gray (o) that an underlessee, as Rio-ht of 
 distinguished from the assignee of a lessee, was not entitled to ^^ 1 ® f ssee 
 the benefit of the act as against the superior landlord; but 
 this is now altered by s. 4 of the Conveyancing Act, 1892, by 55 & 56 Viet, 
 which the court may, on application by any person claiming as e ‘ 13 ’ s * 
 underlessee any estate or interest in the property comprised 
 in the lease or any part thereof, either in the lessor's action, if 
 any, or in any action brought by such person for that purpose, 
 make an order vesting' for the whole term of the lease, or any 
 less term, the property comprised in the lease or any part 
 thereof in any person entitled as underlessee on such conditions 
 as the court thinks fit, but in no case is the underlessee entitled 
 to require a lease to be granted to him for any longer term 
 than he had under his original sub-lease (p) . 
 
 This enactment enables an underlessee to obtain relief even Its extent, 
 though the original lessee himself could not have done so, e.g ., 
 if there is a breach of a covenant not to assign or underlet (q) . 
 
 ( l ) Rogers v. Rice, (1892) 2 
 Ch. 170; see, however, Jacques v. 
 Harrison (1884), 12 Q. B. D. 165, 
 where the court appears to have 
 allowed an application for relief 
 to be made after the lessor had 
 obtained possession. 
 
 ( m ) Conveyancing Act, 1881, 
 s. 14 (3); see Matthews v. Usher, 
 (1900) 2 Q. B. 535. 
 
 ( n ) Bendy v. Evans , (1909) 2 
 K. B. 894. 
 
 (o) (1891) 2 Q. B. 98. 
 
 (p) In Cliolmeley School v. 
 Sewell, (1894) 2 Q. B. 906, relief 
 
 was granted on condition that the 
 underlessee paid all rent due, and 
 executed a deed containing the 
 same covenants as the lessee had 
 entered into with the lessor. See 
 also Ewart v. Fryer, (1901) 1 Ch. 
 499 (affirmed by H. L. sub nom. 
 Fryer v. Ewart, (1902) A. C. 
 187), where the court directed an 
 inquiry as to the rent to be paid 
 by the underlessee. 
 
 ( q ) Imray v. Oakshette , (1897) 
 2 Q. B. 218; Gray v. Bonsall, 
 (1904) 1 K. B. 601. 
 
BK. I., PT. IV. LEASES. 
 
 342 
 
 Agreement 
 for a lease 
 
 within the 
 act. 
 
 55 & 56 Viet, 
 c. 13, s. 5. 
 
 Effect of 
 statute on 
 lessor’s right. 
 
 As to costs 
 of preparing 
 notice. 
 
 55 & 56 Viet, 
 o. 13, s. 2. 
 
 Further, under the act of 1881, if a tenant under an agree- 
 ment for a lease broke the terms of the agreement, he could not 
 obtain relief from the forfeiture consequent thereon, unless the 
 agreement were such as the court would specifically enforce (r); 
 but this also is now altered by s. 5 of the act of 1892, under 
 which relief can be afforded to a tenant holding under an 
 agreement for a lease or for an underlease, where he “has 
 become entitled to have his lease [or underlease] granted.” 
 What this exactly means is not quite clear, but perhaps its 
 effect is to enable all tenants under agreements for leases to get 
 relief from forfeiture, provided there is no condition to the 
 granting of the lease still unfulfilled. 
 
 The better opinion seems to be that the preliminaries required 
 by s. 14 are a condition precedent, and that a lessor cannot 
 bring any action of ejectment or otherwise enforce a forfeiture 
 until he has served notice on the lessee (s). Non-compliance 
 with the statute, however, does not take away the landlord’s 
 right of re-entry, but merely postpones it till he has taken the 
 steps the statute requires (if). 
 
 It was decided that the lessor could not recover from the 
 lessee the costs of preparing the notice required by the sec- 
 tion (w).and to meet this it is provided by s. 2 of the Convey- 
 ancing Act, 1892, that the lessor shall be entitled to recover 
 all reasonable costs and expenses properly incurred by him in 
 the employment of a solicitor and surveyor or valuer or other- 
 wise in reference to any breach giving rise to a right of re-entry 
 or forfeiture, which, at the request of the lessee, is waived 
 by the lessor by writing under his hand, or from which the 
 lessee is relieved. If, however, an underlessee obtains relief in 
 respect of a forfeiture incurred by the original lessee, the costs 
 incurred in connection with the notice cannot be recovered 
 under this section from the underlessee though they would have 
 
 (r) Swain v. Ayres and Luck 
 (1888), 21 Q. B. D. 289; Strong 
 v. Stringer (1889), 61 L. T. 470. 
 
 (s) See per Davey, L. J., in 
 Nind v. Nineteenth Century 
 Building Society , (1894) 2 Q. B. 
 226, at p. 233. 
 
 ( t ) See Coats worth v. Johnson 
 (1886), 55 L. J. Q.B. 220; Cres- 
 well v. Davidson (1887), 56 L. T. 
 811. 
 
 (w) Skinners' Co. v. Knight , 
 (1891) 2 Q. B. 542. 
 
THE FORM AND CONTENTS OF A LEASE. 
 
 843 
 
 been payable by the lessee himself if he had sought relief; 
 and apparently these costs cannot be recovered even from the 
 lessee if he has complied with the notice (x ) . 
 
 Sect. 14 of the Conveyancing Act, 1881, does not enable the Cases to 
 court to grant relief in the case of all covenants; it does not 
 extend to a covenant against assigning, underletting, parting apply, 
 with possession, or disposing of the land leased (?/); or to a 
 condition for forfeiture on the bankruptcy of the tenant, or 
 on the taking in execution of the lessee’s interest (z); but this 
 is now subject to s. 2 of the Conveyancing Act, 1892, which 55 & 56 Viet, 
 runs thus: — “Sub-s. 6 of s. 14 of the Conveyancing Act, c - lo > s - 2 * 
 1881, is to apply to a condition for forfeiture on bankruptcy 
 of the lessee, or the taking in execution of the lessee’s interest 
 only after the expiration of one year from the date of the 
 bankruptcy, or taking in execution, and provided the lessee’s 
 interest be not sold within such one year, but in case the 
 lessee’s interest be sold within such one year sub-s. 6 shall 
 cease to be applicable thereto”; the section of the 1892 act, 
 however, does not apply to leases of — 
 
 (1) Agricultural or pastoral land; or 
 
 (2) Mines or minerals; or 
 
 (3) A house used or intended to be used as a public-house 
 
 or beershop ; or 
 
 (4) A house let as a dwelling-house with the use of any 
 
 furniture, books, works of art, or other chattels not 
 being in the nature of fixtures; or 
 
 (5) Any property with respect to which the personal qualifi- 
 
 cations of the tenant are of importance for the pre- 
 servation of the nature or character of the property, 
 
 (x) Nind v. Nineteenth Century 
 Building Society , (1894) 2 Q. B. 
 226. 
 
 ( y ) Consequently no relief can 
 be given in respect of a breach of 
 such a covenant, even though it 
 be committed by mistake: Barrow 
 v. Isaacs, (1891) 1 Q. B. 417; 
 
 Eastern Telegraph Co. v. Dent, 
 (1899) 1 Q. B. 835. 
 
 (z) Bankruptcy includes liqui- 
 dation where the lessee is a com- 
 pany. See Conveyancing Act, 
 1881, s. 2 (xv) ; Horsey Estate, 
 Ltd. v. Steiger, (1899) 2 Q. B. 
 79; Fryer v. Ewart, (1902) A. C. 
 187. 
 
344 
 
 BK. I., FT. IV. LEASES. 
 
 or on the ground of neighbourhood to the lessor or 
 to any persons holding under him. 
 
 Mining 
 
 leases. 
 
 Sect. 14 also does not extend in the case of a mining lease to 
 a covenant or condition for allowing the lessor to have access 
 to or inspect books, accounts, records, weighing machines or 
 other things, or to enter or inspect the mine or the workings 
 thereof . 
 
 As to for- 
 feiture for 
 non-payment 
 of rent. 
 
 15 & 16 Viet, 
 c. 76. 
 
 23 & 24 Viet, 
 c. 126. 
 
 Sub-s. 8 of s. 14 also expressly enacts that the section is not 
 to affect the law relating to re-entry or forfeiture or relief in 
 case of non-payment of rent. But equity would always relieve 
 against the forfeiture for non-payment of the rent, provided 
 that the lessee showed equitable grounds, applied before the 
 landlord re-let the premises, and paid what was due, with 
 costs (a) ; and this right to relief was made a statutory right 
 by the Common Law Procedure Act, 1852 (ss. 210 — 212), 
 and the Common Law Procedure Act, 1860 (s. 1). In the case 
 of a breach of the covenant for payment of rent, therefore, the 
 forfeiture accrues at once, and no notice to the lessee under the 
 Conveyancing Act is required; but the lessee will, in a proper 
 case, obtain relief on paying the rent and costs within the 
 time limited by s. 210 of the Common Law Procedure Act, 
 1852, that is, within six months of ejectment. It has been 
 held that relief may be granted even though there has been a 
 peaceable resumption of the premises without any such process 
 of law as is impliedly referred to in the statute (5). If an 
 underlessee who has lost the benefit of his underlease, by reason 
 of the underlessor not paying his rent, applies for relief, that 
 is, to have the original and forfeited lease restored to the 
 original lessee, he must make the original lessee a party to the 
 action, unless there is a sufficient reason for not doing so (c). 
 
 Right to relief The right of a lessee to relief against forfeiture is a chose in 
 
 (a) A mortgagee of the lease is 
 entitled to relief unless a right in 
 some third party has accrued be- 
 tween the date of the judgment 
 in ejectment and the application 
 for relief: Newboult v. Bingham 
 
 (1895), 72 L. T. 852. 
 
 (5) Howard v. Fanshawe, 
 (1895) 2 Cli. 581. 
 
 (c) Hare v. Elms, (1893) 1 
 Q. B. G04; Humphreys v. Morten, 
 (1905) 1 Oh. 739. 
 
THE FORM AND CONTENTS OF A LEASE. 
 
 ►345 
 
 action and assignable either by law ( e.g ., in bankruptcy), or 
 by act of the party (d). 
 
 A t common law a grantee of part of the reversion expectant 
 on a lease could not take advantage of any condition in the 
 lease; for it was a doctrine of the law that a condition was not 
 divisible or apportionable (e). By s. 3 of the Law of Property 
 Amendment Act, 1859, it was provided that, where the rever- 
 sion was severed and the rent legally apportioned, the assignee 
 of each part of the reversion should have the benefit of all 
 conditions or powers of re-entry for non-payment of rent just 
 as if those conditions had been specially reserved to him to 
 secure the payment of the portion of the rent to which he 
 became entitled after the assignment. This provision, which 
 it will be seen only applied to conditions of re-entry on non- 
 payment of rent and only when the rent had been legally ap- 
 portioned, is extended by the latter part of sub-s. 1 of s. 10, 
 and of sub-s. 1 of s. 12 of the Conveyancing Act, 1881, as 
 read with s. 2 of the Conveyancing Act, 1911, to all con- 
 ditions, and it applies even when the rent has not been legally 
 apportioned, that is to say, even though the tenant has not 
 consented to the apportionment. Sect. 12 enacts that notwith- 
 standing the severance of the reversion the conditions of 
 re-entry, &c. contained in the lease shall be apportioned, and 
 shall remain annexed to the several parts of the reversion as 
 if the land comprised in each severed part had alone originally 
 been comprised in the lease. The Conveyancing Act, however, 
 only applies to leases made after the commencement of the act. 
 
 It was also established in Dumpor s case (/) that every condi- 
 tion being one and indivisible, if a condition of re-entry was 
 once waived it was gone for ever. This, however, only extended 
 to express waivers; for a waiver implied from the receipt of 
 rent, after and with knowledge of a breach, did not operate to 
 debar the lessor from taking advantage of the condition on a 
 breach occurring after waiver. The rule was the same with 
 regard to licences granted by the lessor to commit a breach of a 
 
 ( d ) Howard v. Fanshawe, Smith, L. C., 11th ed. vol. i. 32. 
 
 supra. (/) (1603), Smith, L. C., 11th 
 
 (e) Dumpor's case (1603), ed. vol. i. 32. 
 
 a chose in 
 action. 
 
 Effect of 
 severance of 
 reversion on 
 conditions of 
 re-entry. 
 Dumpor' s case. 
 22 & 23 Viet, 
 c. 35. 
 
 44 & 45 Viet, 
 c. 41. 
 
 Effect of 
 waiver of 
 condition of 
 re-entry. 
 Dumpor' & case. 
 
646 
 
 22 & 23 Viet, 
 c. 3-5. 
 
 23 & 24 Viet, 
 c. 38. 
 
 Acts which 
 
 constitute 
 
 waiver. 
 
 Does not 
 destroy 
 action . 
 
 BIv. I., PT. IV. — LEASES. 
 
 covenant secured by a right of re-entry or a clause of for- 
 feiture. But by the Law of Property Amendment Act, 1859, 
 s. 1, it is provided that in such cases the licence granted shall 
 extend to the permission actually given, or to the specific breach 
 of covenant authorized to be committed, and not operate to 
 prevent proceedings for a subsequent unlicensed breach; and 
 that where a licence is given to one of several lessees to commit 
 a breach of such a covenant, or to one lessee in respect to part 
 only of the property, the licence is not to operate to destroy the 
 right of re-entry in case of a breach by the co-lessees, or by the 
 lessees of the rest of the property. And by the Law of Pro- 
 perty Amendment Act, 1860, s. 6, it is enacted that where 
 an actual waiver of the benefit of any covenant or condition 
 has been made by the lessor, it is not to extend to any instance 
 other than that to which it specially relates, or to be deemed a 
 general waiver of the henefit of such covenant or condition, 
 unless an intention to that effect appears. 
 
 A right of re-entry is impliedly waived if the lessor, having 
 knowledge of it, does any act from which it may be presumed 
 that he recognises the tenancy as still subsisting, e.g., by ac- 
 cepting rent due after the forfeiture was incurred ( g ) ; or by 
 distraining for rent due either before or after forfeiture in- 
 curred ( h ). Sometimes acceptance of rent will amount not only 
 to a waiver of a past breach, but also to a licence to continue 
 the breach in future. Thus, if a covenant not to underlet is 
 broken, and the landlord, with knowledge of the breach, goes 
 on receiving rent, he waives the right to re-enter for the whole 
 time during which the sub-interest lasts (i). 
 
 While a waiver may destroy a right of re-entry for breach of 
 covenant, it does not release a right of action for such breach. 
 
 (g) Marsh v. Curteys (1595), 
 Cro. Eliz. 528; Price v. Wor- 
 wood (1859), 4 H. & N. 512. 
 
 (h) Cotesivorth v. Spokes 
 (1861), 10 C. B.N. S. 103; Doe 
 v. Peck (1830), 1 B. & A. 428; 
 Kirkland v. Briancourt (1890), 6 
 
 Times L. B. 441; but compare 
 Thomas v. Lulham, (1895) 2 Q. B. 
 400. 
 
 ( i ) Walrond v. Hawkins (1875), 
 L. B. 10 C. P. 342; see also 
 Griffin v. Tomkins (1880), 42 
 L. T. 359. 
 
THE FORM AND CONTENTS OF A LEASE. 
 
 34 
 
 Covenant by the Lessor for Quiet Enjoyment. 
 
 The usual form of a covenant for quiet enjoyment is to the 
 effect that the lessee performing and observing all the cove- 
 nants on his part to be performed and observed shall quietly 
 hold and enjoy the demised premises without any interruption 
 by the lessor or any person rightfully claiming from or under 
 him. The covenant does not in any way enlarge the rights 
 of the lessee, but confers on him an additional remedy in 
 case those rights are invaded. 
 
 In determining what amounts to a breach of this covenant, 
 the wording of it must in all cases he taken into considera- 
 tion; for the liability of the lessor depends on the extent to 
 which he has bound himself. So that, if he covenants as against 
 the acts of himself, and of “all persons claiming by, through 
 or under him,” the covenant does not extend to an eviction by 
 a person claiming by a title paramount; nor does it cover 
 disturbance by a person who claims against him, as in the case 
 where a distress is made on the premises at the instance of a 
 person claiming land-tax due from him before the demise (7c). 
 Nor does it apply even to the acts of a person claiming under 
 him, if such acts are done without his authority, express or 
 implied (7). So an underlessee who is disturbed by the original 
 lessor has no remedy against his underlessor for breach of any 
 covenant, since the original lessor does not claim by, through 
 or under the underlessor (m) ; but a person who claims under 
 a settlement made by the lessor himself is a person “ claiming 
 under” him (?z). The covenant is not broken by a trespass 
 by a stranger; for it does not extend to the acts of wrong- 
 doers, but only to persons claiming by a legal title (o). Nor 
 is damage caused by the bursting of a water-pipe, reasonably 
 placed on the premises by the lessor before the date of the lease 
 
 Form of 
 covenant 
 for quiet 
 enjoyment. 
 
 What will 
 amount to a 
 breach of 
 covenant. 
 
 ( k ) Stanley v. Hayes (1842), 3 
 
 Q. B. 105. 
 
 ( l ) Williams v. Gabriel, (1906) 
 
 1 K. B. 155. 
 
 (m) Kelly v. Rogers, (1892) 1 
 
 Q. B. 910. Compare Cohen v. 
 Tannar, (1900) 2 Q. B. 609. 
 
 ( n ) See Carpenter v. Parker 
 (1857), 3 C. B. N. S. 206. 
 
 (o) Dudley v. Folliott (1790), 
 3 T. R. 584. 
 
34 8 
 
 BK. I., PT. IV. LEASES. 
 
 and properly maintained, a breach of it, for the covenant only 
 refers to acts done after the lease has been granted (p) . Any 
 proceeding in a court of law which has the effect of interfering 
 with the title and possession of the land is a breach of covenant; 
 but not a proceeding interfering merely with a particular mode 
 of enjoyment of the land, so that where the land was subject 
 to a condition binding on the lessor against the carrying on 
 of certain trades, and an injunction was obtained restraining the 
 lessee from carrying on one of the prohibited trades, it was 
 held that the injunction did not amount to a breach of the 
 lessor’s covenant for quiet enjoyment; for the covenant is 
 meant to secure to the tenant the title and quiet possession 
 of the land, but not to warrant that he may use the property for 
 any purpose not specially provided against by restrictive 
 covenants (g). Again, the covenant is broken if the lessor does 
 anything in the assertion of a right hostile to the full enjoy- 
 ment of the land by the covenantee. So that if' the lease be of a 
 watercourse, and the lessor afterwards stop the watercourse 
 up (r) : or of a house, and the lessor or those claiming under 
 him work mines so as to cause a subsidence of the house (s) ; 
 or of a seam of coal, and the lessor afterwards so work the 
 strata above as to cause the roof of the mine to fall in(£');i 
 the lessee will in each case have action for breach of the cove- 
 nant. But to build on adjoining premises so as to cause the 
 chimneys of the lessee’s house to smoke is probably not a breach 
 of the covenant (m), and generally to constitute a breach of 
 the covenant there must be some physical interference with 
 the enjoyment of the demised premises, and a mere inter- 
 ference with the comfort of persons using those premises by 
 the creation of a personal annoyance such as might arise from 
 
 (p) Anderson v. Oppenheimer 
 (1880), 5 Q. B. D. 602. 
 
 ( q ) Dennett v. Atherton (1872), 
 L. It. 7 Q. B. 316. 
 
 (r) See Pom fret v. Piero ft 
 (1668), 1 Wins. Saund. 321. 
 
 (s) Markham v. Paget , (1908) 
 1 Ch. 697. 
 
 (t) Shaw y. Stenton (1858), 2 
 H. & N. 858. 
 
 ( u ) Davis v. Totun Properties 
 Investment Corporation, Ltd., 
 (1903) 1 Ch. 797, per Komer and 
 Cozens-Hardy, L. JJ., doubting 
 Tehb v. Cave, (1900) 1 Ch. 642. 
 
THE FORM AND CONTENTS OF A LEASE. 
 
 341 
 
 noise, invasion of privacy, or the like, is not enough (x ) . 
 Lastly, the covenant is broken if the lessor gives notice to a 
 sub-lessee to pay the rent to him instead of to the sub-lessor 
 (the original lessee), and this though the latter had broken his 
 covenants, and the covenant for quiet enjoyment was made 
 dependent on the lessee paying his rent and performing his 
 covenants. But in such a case there is no breach unless the sub- 
 lessee acts upon the notice (?/). 
 
 The breach of this covenant gives the tenant a right of 
 action for damages against the lessor, but does not discharge 
 him from any liability under the lease except the liability to 
 pay rent (z) . 
 
 Even though the lessor cannot be made liable for disturbance 
 of the lessee under the covenant for quiet enjoyment owing 
 to its limited character, he may still be liable; for he must 
 not derogate from his own grant, and therefore must not use 
 his adjoining property or permit it to be used for a purpose 
 which constitutes a nuisance to his tenant; and if he does 
 the tenant can recover damages, and if he apply in time can 
 obtain an injunction (a). The right of action on the cove- 
 nant or otherwise is subject to the well established qualifica- 
 tion in favour of the exercise of statutory poAvers, so that no 
 action will lie against a railway company for the breach of 
 the covenant if the breaches are committed in the exercise of 
 their statutory powers; the tenant’s only remedy being under 
 the compensation clauses of the Railways Clauses Act, 1845, 
 and the Lands Clauses Act, 1845 (b). 
 
 The following is a form of occupation lease of a dwelling- 
 house: — 
 
 This Indenture made the day of Between A. of 
 
 &e. (who with his heirs and assigns is hereinafter referred to 
 
 ( x ) Browne v. Fowler, (1911) 
 1 Ch. 219. 
 
 ( y ) Edge v. Boileau (1885), 16 
 
 Q. B. D. 117. 
 
 (z) Morrison v. Chadwick, 7 
 
 0. B. 266. 
 
 (a) Grosvenor Hotel Co. v. 
 
 Hamilton, (1894) 2 Q. B. 836; 
 see also Aldin v. Latimer Clark, 
 Muirhead & Co., (1894) 2 Ch. 
 457; and Browne v. Fowler, 
 (1911) 1 Ch. 219. 
 
 ( b ) M. S. & L. Rail. Co. v. 
 Anderson, (1898) 2 Ch. 394. 
 
 Rights of 
 tenant on 
 breach . 
 
 Lessor must 
 not derogate 
 from his 
 grant. 
 
 Exercise of 
 
 statutory 
 
 powers. 
 
BK. I., PT. IV. LEASES. 
 
 as “the Lessor”) of the one part and B. of &e. (who with his 
 executors, administrators and assigns is hereinafter referred to 
 as “ the Lessee ”) of the other part. 
 
 Witnesseth that in consideration of the rent hereinafter re- 
 served, and of the Lessee’s covenants hereinafter contained, the 
 Lessor hereby demises unto the Lessee, All that messuage or 
 dwelling house, &c. (parcels), To hold unto the Lessee, for the 
 term of twenty-one years from the day of determin- 
 
 able nevertheless as hereinafter mentioned, the Lessee Yielding 
 and Paying during the said term the yearly rent of £ by four 
 equal quarterly payments, on the 25th day of March, the 24th day 
 of June, the 29th day of September, and the 25th day of December, 
 in every year, the first payment to be made on the day of 
 
 next. 
 
 And the Lessee hereby covenants with the Lessor 
 
 To pay the rent hereby reserved at the times and in manner 
 aforesaid. 
 
 To pay and discharge all rates, taxes, assessments, duties, im- 
 positions and outgoings whatsoever, whether parliamentary, paro- 
 chial, or of any other description, which now are or during the said 
 term shall be imposed or charged on the premises or the owner 
 or occupier in respect thereof (except the land tax, tithe rent 
 charge and landlord’s property tax). 
 
 To keep the said premises (including all fixtures and additions 
 thereto) in good and substantial repair and condition, and so to 
 deliver up to the Lessor at the expiration or sooner determination 
 of the said term. 
 
 To paint with two coats at least of good oil colour and in a 
 proper and workmanlike manner all the wood, iron and other 
 work in and about the said premises previously or usually painted, 
 as to outside work in every third year of the term hereby granted, 
 and as to inside work in every seventh year of the said term: and 
 at the same time with every outside painting to restore and make 
 good the stucco work wherever necessary, and at the same time 
 with every inside painting to whitewash and colour such parts 
 of the inside of the said premises as are usually whitewashed and 
 coloured, and paper with paper of suitable quality such parts 
 thereof as are usually papered. 
 
 To permit the Lessor, or his agent, with or without workmen, 
 and others, twice in every year during the said term, at convenient 
 hours in the daytime to enter into and upon the said premises, and 
 examine the state and condition thereof, and to repair and make 
 good all defects and wants of reparation, of whic h notice in writing 
 shall be given to him by the Lessor, within three calendar months 
 after the giving of such notice. 
 
 To insure and keep insured the said premises from loss or 
 damage by lire, in the joint names of the Lessor and Lessee, in 
 the Insurance Office, or in some other -well -established 
 
 office to be approved of by the Lessor, in the sum of £ at 
 least, and to pay all premiums necessary for that purpose within 
 
THE FORM AND CONTENTS OE A LEASE. 
 
 351 
 
 seven days after the same shall become due, and to produce to 
 the Lessor whenever required the policy of such insurance, and 
 the receipt for every such payment, and to cause all moneys 
 received by virtue of any such insurance to be forthwith laid out 
 in rebuilding- and reinstating the said premises, and if the moneys 
 so received shall be insufficient for the purpose, to pay the defi- 
 ciency out of his own moneys. 
 
 Not to carry on or permit to be carried on at any time during 
 the said term any trade or business upon the said premises, nor 
 permit the same to be occupied or used in any other manner than 
 as a private dwelling house. 
 
 Not to assign or underlet or part with possession of the said 
 demised premises, or any part thereof, without the consent in 
 writing of the Lessor first had and obtained, which consent how- 
 ever shall not be unreasonably withheld. 
 
 Provided always, that if the said yearly rent of £ or any 
 part thereof, shall be in arrear for the space of twenty-one days 
 next after any of the days whereon the same ought to be paid as 
 aforesaid, whether the same shall or shall not have been legally 
 demanded, or if there shall be any breach or non-observance of 
 any of the Lessee’s covenants hereinbefore contained, then and in 
 any of the said cases it shall be lawful for the Lessor, at any time 
 thereafter, into and upon the said demised premises, or any part 
 thereof, in the name of the whole to re-enter and the same to 
 have again, repossess and enjoy in his former estate. 
 
 And the Lessor hereby covenants with the Lessee, that the 
 Lessee paying the rent hereby reserved, and observing and per- 
 forming the covenants and conditions herein contained, and on 
 his part to be observed and performed, shall and may peaceably 
 and quietly possess and enjoy the said premises hereby demised 
 during the said term without any lawful interruption from or by 
 the Lessor or any person rightfully claiming from or under him. 
 
 Provided also, that if the Lessee shall be desirous of deter- 
 mining this lease at the end of the first seven or fourteen years of 
 the said term, and of such desire shall give to the Lessor, or his 
 agents, or leave at his usual or last known place of abode in 
 England or Wales, six calendar months’ previous notice in writing, 
 then and in such case at the end of such seven or fourteen years, 
 as the case may be, the term hereby granted shall cease, but sub- 
 ject to the rights and remedies of the Lessor for or in respect of 
 any rent in arrear, or any breach of any of the Lessee’s covenants. 
 
 In Witness, &c. 
 
 V. — STATUTORY PROVISIONS AFFECTING AGRICULTURAL 
 
 LEASES. 
 
 In the case of leases of 1 agricultural holdings and market The Agri- 
 
 CJ O c" 1 
 
 gardens, the ordinary law is modified by the Agricultural ip^-^s 
 Holdings Act, 1908, which consolidates a number of previous Acts. 
 
352 BK. I., PT. IV. LEASES 
 
 enactments, and makes important provisions with reference to 
 compensation for improvements made by, and for unreason- 
 able disturbance of, the tenant of such holdings, the right of 
 the tenant to remove fixtures and notice to quit. 
 
 Compensation for Improvements and Disturbance. 
 
 Right of 
 teijant to 
 compensation 
 for improve- 
 ments. 
 
 As to com- 
 pensation for 
 improve- 
 ments. 
 
 The act provides that where a tenant of a holding has made 
 thereon any improvement comprised in the first schedule to 
 the act, he shall, subject as in the act mentioned, be entitled 
 at the determination of a tenancy on quitting his holding to 
 obtain from the landlord as compensation for the improve- 
 ment such sum as fairly represents the value of the improve- 
 ment to an incoming tenant. In the ascertainment of the 
 amount of the compensation payable there must be taken into 
 account (a) any benefit (c) which the landlord has given or 
 allowed to the tenant in consideration of the tenant executing 
 the improvement; and (b) as respects manuring as defined 
 by the act, the value of the manure required by the contract of 
 tenancy or by custom to be returned to the holding in respect 
 of any crops sold off or removed from the holding within tho 
 last two years of the tenancy or other less time for which 
 the tenancy has endured, not exceeding the value of the manure 
 which would have been produced by the consumption on the 
 holding of the crops so sold off or removed. The enactment 
 does not prejudice the right of a tenant to claim any com- 
 pensation to which he may be entitled under custom, agree- 
 ment, or otherwise in lieu of the compensation provided by 
 it (d). 
 
 The improvements for which a tenant is entitled to com- 
 pensation under the act are of three kinds: — 
 
 Class I. is set out in Part I. of the first schedule to the 
 act, and consists of improvements of a permanent nature, such 
 as the erection, alteration, or enlargement of buildings and the 
 
 (c) See M'Quater v. Fergus- the Agricultural Holdings Act, 
 
 son, (1911) S. C. 640. 1900, and s. 1 (1) of the Agri- 
 
 ( d ) s. 1. This enactment is cultural Holdings Act, 1906. 
 based on the provisions of s. 1 of 
 
AGRICULTURAL LEASES. 
 
 353 
 
 laying down of permanent pasture; for these the tenant only 
 obtains compensation if they are executed with the landlord s 
 written consent (e). 
 
 Class II. is dealt with by Part II. of the first schedule, and 
 consists of drainage: for this compensation is only allowed 
 provided that not more than three nor less than two months 
 before beginning to execute the improvement the tenant has 
 given to the landlord notice in writing of his intention, and 
 the landlord fails to execute the improvement within a reason- 
 able time. If the landlord chooses to execute the improvement 
 himself, he may recover from the tenant interest on the outlay 
 to the extent specified in the act (/) . 
 
 Class III. consists of improvements of a less important 
 character, such as the chalking of land, clay burning, consump- 
 tion in the holding by cattle of cake, repairs to buildings neces- 
 sary for the proper cultivation or working of the holding other 
 than repairs which the tenant is himself under an obligation to 
 execute. For these improvements, unless fair and reasonable 
 compensation is substituted by an agreement in writing (g), 
 the tenant is entitled to compensation, although effected 
 without any notification to or consent of the landlord (h ) . 
 
 Except as provided by the act, any contract (whether under Avoidance of 
 seal or not) made by a tenant of a holding by virtue of which ? ontra ?t 
 
 ' . . . ° J inconsistent 
 
 he is deprived of his right to claim compensation under the with act. 
 
 act in respect of any improvement comprised in the first 
 
 schedule, is void so far as it deprives him of that right («*). 
 
 (e) s. 2. Part I. of the first 
 schedule is subject as to market 
 gardens to the provisions of the 
 third schedule. See s. 42, post, 
 p. 358. 
 
 (/) s. 3. “ Drainage ” is not 
 
 defined by the act, and it is not 
 clear whether it is confined to the 
 drainage of the land or whether it 
 extends also to the drainage of 
 buildings. See Johnston, Agri- 
 cultural Holdings Act, 27. 
 
 ( 9 ) See Brown v. Mitchell, 
 (1910) S. 0. 369. 
 
 W ss. 1 and 4. But before 
 beginning to execute repairs to 
 buildings the tenant must give the 
 landlord notice in writing of his 
 intention, together with particu- 
 lars of such repairs, and must not 
 execute the repairs unless the 
 landlord fails to execute them 
 within a reasonable time after 
 receiving such notice. See 
 Part III. of first schedule. 
 
 (i) s. 5. See hereon, Cathcart 
 v. Chalmers, (1911) A. C. 246. 
 
 A A 
 
354 
 
 Supple- 
 
 mentary 
 
 provisions. 
 
 Compensation 
 for damage 
 by game. 
 
 Compensation 
 /or un- 
 reasonable 
 disturbance. 
 
 BK. I., PT. IV. LEASES. 
 
 The act contains elaborate supplementary provisions for the 
 determination of claims to compensation by arbitration (k), 
 safeguarding the rights of an incoming tenant who has with 
 the consent in writing of his landlord paid compensation to 
 an outgoing tenant, and of a tenant who has remained on his 
 holding during two or more tenancies, and limiting the right 
 to compensation in respect of improvements made by a tenant 
 about to quit (7). 
 
 The act also provides that where a tenant of a holding has 
 sustained damage to his crops from game, the right to kill 
 and take which is vested neither in him nor in anyone claiming 
 under him, other than the landlord, and which the tenant has 
 not permission in writing to kill, he shall, subject as in the 
 act mentioned, be entitled to compensation from his landlord 
 for such damage if it exceeds in amount the sum of one shilling 
 per acre of the area over which the damage extends, and any 
 agreement to the contrary or in limitation of such compensation 
 is void. But the right to compensation is subject to various 
 conditions specified (m). 
 
 A still more important provision is that where (a) the land- 
 lord of a holding without good and sufficient cause and for 
 reasons inconsistent with good estate management terminate® 
 the tenancy by notice to quit, or having been requested in 
 writing at least one year before the expiration of a tenancy 
 to grant a renewal thereof , refuses to do so; or (b) it has been 
 proved that an increase of rent is demanded from the tenant 
 of a holding, and that such increase was demanded by reason 
 of an increase in the value of the holding due to improvements 
 which have been executed by or at the cost of the tenant and 
 for which he has not either directly or indirectly received an 
 equivalent from the landlord, and such demand results in the 
 tenant quitting the holding — the tenant upon quitting shall, 
 in addition to the compensation (if any) to which he may be 
 entitled in respect of improvements, and notwithstanding any 
 
 ( k ) See Stewart v. William- ( m ) s. 10. Por the purposes of 
 
 son , (1910) A. C. 455. the section “game” means deer, 
 
 (l) ss. 6, 7, 8, 9, 13 and 14. pheasants, partridges, grouse and 
 
 black game. 
 
AGRICULTURAL LEASES. 
 
 355 
 
 agreement to the contrary, be entitled to compensation for the 
 loss or expense directly attributable to bis quitting the bolding 
 which the tenant may unavoidably incur upon or in connec- 
 tion with the sale or removal of bis household goods or bis 
 implements of husbandry, produce or farm stock, on or used 
 in connection with the holding; the right being again subject 
 to various qualifications specified (n ) . The right to com- 
 pensation has been extended to the case of tenancies deter- 
 mined by a council for the purpose of providing small holdings 
 under the Small Holdings and Allotments Act, 1908 (o). 
 
 In order to ensure that the tenant’s claim for compensation Compensation 
 shall not be defeated by the fact that the landlord has mort- ^^mort- 
 gaged his property, the act provides that where a person gagee takes 
 occupies land under a contract of tenancy with a mortgagor, P° Sbe8sl0n - 
 which is not binding on the mortgagee, then — 
 
 (1) The occupier shall, as against the mortgagee who takes 
 possession, be entitled to any compensation which is, or would, 
 but for the mortgagee taking possession, be due to the occu- 
 pier from the mortgagor as respects crops, improvements, 
 tillages, or other matters connected with the land, whether 
 under the act or custom, or an agreement authorized by the 
 act. 
 
 (2) If the contract of tenancy is for a tenancy from year to 
 year, or for a term of years not exceeding twenty-one, at a 
 rack rent, the mortgagee shall, before he deprives the occupier 
 of possession otherwise than in accordance with the contract 
 of tenancy, give to the occupier six months’ notice in writing 
 of his intention so to do, and if he so deprives him, compensa- 
 tion shall be due to the occupier for his crops, and for any 
 expenditure upon the land which he has made in the expecta- 
 tion of remaining in the holding for the full term of his contract 
 of tenancy, in so far as any improvement resulting therefrom 
 is not exhausted at the time of his being so deprived.. 
 
 (3) Any sum ascertained to be due to the occupier for com- 
 pensation, or for any costs connected therewith may be set off 
 against any rent or other sum due from him in respect r>f the 
 
 ( n ) s. 11. 
 
 (o) Small Holdings and Allotment Act, 1910. 
 
 A A 2 
 
356 
 
 Power for 
 landlord on 
 paying- com- 
 pensation to 
 obtain charge. 
 
 Capital money 
 applicable for 
 compensation . 
 
 Tenant’s 
 property in 
 fixtures and 
 buildings. 
 
 BK. I., PT. IV. LEASES. 
 
 holding*, but unless so set off shall, as against the mortgagee, 
 be charged and recovered in accordance with the provisions of 
 the act relating ,to the recovery of compensation due from 3 , 
 landlord who is a trustee (p) . 
 
 A landlord, on paying to the tenant the amount due to him 
 under the act or under custom or agreement or otherwise in 
 respect of compensation for an improvement or certain other 
 expenditure under the act, is entitled to obtain from the Board 
 of Agriculture and Fisheries an order charging the holding 
 or any part thereof with repayment of the amount expended 
 and interest (q). Such a charge is within the provisions of 
 the Land Charges Registration and Searches Act, 1888, and 
 must be registered at the Land Registry, otherwise it will be 
 void as against a purchaser for value of the land charged (r). 
 
 Capital money arising under the Settled Land Acts may 
 be applied in payment of compensation or in discharge of any 
 charge as if it were an incumbrance authorized by those acts 
 to be discharged out of capital money (s) . 
 
 Fixtures and Buildings. 
 
 Any engine, machinery, fencing, or other fixture affixed to 
 a holding by a tenant, and any building erected by him thereon 
 for which he is not under the act or otherwise entitled to com- 
 pensation, and which is not affixed or erected in pursuance of 
 some obligation or instead of some fixture or building belong- 
 ing to the landlord, is the property of and is removable by the 
 tenant before or within a reasonable time after the determina- 
 tion of the tenancy. Provided that (i) before the removal the 
 tenant must pay all rent owing and perform or satisfy all his 
 other obligations to the landlord; (ii) in the removal the tenant 
 
 ( p ) s. 12. This section replaces 
 s. 2 of the Tenants Compensation 
 Act, 1890, which, however, still re- 
 mains in force so far as it relates 
 to compensation under the Allot- 
 ments and Cottage Gardens (Com- 
 pensation for Crops) Act, 1887. 
 As to recovery of compensation 
 
 from a trustee, see s. 35. 
 
 (q) s. 15. See also ss. 16, 17 
 and 18. 
 
 (r) s. 19. 
 
 (s) s. 20. The provisions of the 
 Settled Land Acts with reference 
 to capital moneys are set out 
 below, p. 426. 
 
AGRICULTURAL LEASES. 
 
 357 
 
 must not do any avoidable damage; (iii) immediately after 
 the removal the tenant must make good all damage; (iv) the 
 tenant must give one month’s previous notice in writing to the 
 landlord of his intention to remove it; and (v) at any time 
 before the expiration of the notice the landlord by notice in 
 writing may elect to purchase any fixture or building, which 
 will then become the property of the landlord, who must pay 
 to the tenant the fair value thereof' to an incoming tenant; any 
 difference being settled by arbitration (t) . 
 
 Notice to Quit and Other Matters. 
 
 Generally a tenancy from year to year can be determined by A year’s 
 half a year’s notice, but the act provides that where a half-year’s necessary? Ult 
 notice expiring with a year of tenancy is by law necessary and 
 sufficient for the determination of a tenancy of a holding from 
 year to year, a year’s notice so expiring is by virtue of the 
 act necessary and sufficient, unless the landlord and tenant agree 
 in writing that this enactment shall not apply, in which case 
 a half-year’s notice is sufficient; but the enactment does not 
 extend to a case where a receiving order in bankruptcy is made 
 against a tenant (u ) . On the other hand, in certain cases and 
 for certain purposes the act authorizes a notice to quit being 
 given in respect of part only of a holding, but the tenant may 
 at any time within twenty-eight days after service of' the notice 
 serve a counter notice in writing to the effect that he accepts 
 it as a notice to cjuit the entire holding, to take effect at the 
 expiration of the then current year of’ tenancy (x ) . 
 
 As has been seen, a lessor has generally no right of entry Power of 
 on the premises leased by him during the term, but the act J’^dlord 
 provides that the landlord of a holding or any person autho- 
 rized by him may at all reasonable times enter on the holding 
 for the purpose of viewing' the state of the holding (y ) . 
 
 There are also provisions restricting the landlord’s right to Limitations 
 recover penal rents, giving the tenant full right to practise ®? ot 1 ^ dlord ’ s 
 
 (i t) s. 21. See Hears v. Callen- Agricultural Holdings Act, 1883. 
 der, (1901) 2 Ch. 388. . g< ^ 
 
 (w) s. 22, re-enacting with some 
 variation of language s. 33 of the (y) s * 24. 
 
.358 
 
 Special pro- 
 visions as to 
 market 
 gardens. 
 
 BK. I., FT. IV. LEASES. 
 
 any system of cropping arable land and limiting the right of 
 distress to one year’s arrears, and in other respects, for the 
 details of which reference must he made to the act itself (z) . 
 
 Market Gardens. 
 
 In the case of a holding in respect of which it is agreed by 
 an agreement in writing made on or after the 1st of January, 
 1896, that the holding shall be let or treated as a market 
 garden (a), the tenant gets an additional right to compensation 
 for improvements, for in this case the act is to apply as if 
 the improvements contained in the third schedule were com- 
 prised in Part III. of the first schedule. These improve- 
 ments are — (1) planting of standard or other fruit trees per- 
 manently set out; (2) planting of fruit bushes permanently 
 set out; (3) planting of strawberry plants; (4) planting of 
 asparagus, rhubarb, and other vegetable crops which continue 
 productive for two or more years; and (5) erection or enlarge- 
 ment of buildings for the purpose of the trade or business 
 of a market gardener. Further, the provisions of the act 
 relating to tenants’ property in fixtures and buildings extend 
 to every fixture or building affixed or erected by the tenant to 
 or upon the holding or acquired by him since the 31st of 
 December, 1900, for the purposes of his trade or business as 
 a market gardener. And the tenant may remove all fruit 
 trees and fruit bushes planted by him on the holding and 
 not permanently set out; but if the tenant does not remove 
 them before the determination of the tenancy they remain 
 the property of the landlord, and the tenant is not entitled 
 to any compensation in respect of them. These provisions 
 are also made applicable, subject to certain qualifications, to 
 a contract of tenancy current on the 1st of January, 1896, 
 where the holding was at that date in use or cultivation as a 
 market garden with the knowledge of the landlord (b). 
 
 (z) ss. 25, 26, 27, 28, 29, 30 and (a) See In re Kedwell and 
 31. Flint, (1911) 1 K. B. 797. 
 
 (6) s. 42. 
 
AGRICULTURAL LEASES. 
 
 359 
 
 Further, by the Allotments and Cottage Gardens Compen- 
 sation for Crops Act, 1887, the holder of an allotment, i.e., 
 any parcel of land of not more than two acres in extent held 
 by a tenant under a landlord, and cultivated as a garden or 
 as a farm, or partly as a garden and partly as a farm (*Z), 
 is entitled to compensation for certain improvements on the 
 determination of his tenancy, notwithstanding any agree- 
 ment to the contrary. 
 
 Finally, it should be noticed that the word “ holding’’ in the 
 act means any parcel of land held by a tenant which is either 
 wholly agricultural or wholly pastoral, or in part agricultural 
 and as to the residue pastoral, or in whole or in part cultivated 
 as a market garden, and which is not let to the tenant during 
 his continuance in any office, appointment, or employment held 
 under the landlord; and “market garden’ means a holding 
 cultivated wholly or mainly for the purpose of the trade or 
 business of market gardening (c). So that it is only to hold- 
 ings of this character that the act applies. 
 
 Emblements. 
 
 When the term is liable to come to a sudden determination, 
 and one which cannot be foreseen by the tenant, as where he is 
 a lessee at will, or his tenancy is otherwise liable to be brought 
 to a sudden end by the landlord, the tenant has a right to 
 emblements. But, except by local custom, the tenant has not 
 this right if the term be put an end to by his or her own act ; 
 thus a widow holding during widowhood who sows the land 
 and marries before harvest is not entitled to the crops. 
 
 Emblements consist of all crops produced annually by the 
 labour of the cultivator, as distinguished from such crops as are 
 produced spontaneously, or which require more than a year to 
 arrive at maturity. 'Thus corn, turnips, carrots, potatoes, and 
 the like, are emblements; and so are hops, though they spring 
 
 (c) s. 48. apply to a holding used by the 
 
 ( d ) See Cooper v. Pearse , tenant for the purposes of his 
 (1896) 1 Q. B. 562, in which it business as a seedsman. 
 
 was held that the act does not 
 
 Cottage 
 Gardens 
 Compensation 
 Act, 1887. 
 
 50 & 51 Viet, 
 c. 26. 
 
 To what 
 holdings the 
 act of 1908 
 applies. 
 
 When the 
 right to 
 emblements 
 arises. 
 
 What are 
 emblements. 
 
360 
 
 Statutory- 
 
 provisions. 
 
 14 & 15 Viet, 
 c. 25. 
 
 43 & 44 Yict. 
 c. 47, and 
 6 Edw. 7, 
 c. 21. 
 
 BK. I., PT. IV. LEASES. 
 
 from old roots, for they are annually manured. But clover is 
 apparently not an emblement, for it takes more than a year to 
 reach maturity. The tenant’s right is when his term has come 
 to an end while these crops are planted, and before they haw 
 yet come to maturity, to enter on the land, in spite of the 
 determination of the tenancy, and to reap and carry away the 
 harvest of what he has sown. 
 
 By the Landlord and Tenant Act, 1851, s. 1, it is enacted, 
 with regard to under-tenancies, determinable with death of 
 lessor or other uncertain event, if they are held at a rack-rent, 
 that the under-tenant, on his landlord’s interest in the property 
 suddenly determining, instead of his claim to emblements, shall 
 continue to hold on till the expiration of the then current year 
 of his tenancy, and shall then quit on the terms of his lease, in 
 the same manner as if it were then determined by effluxion of 
 time or other lawf ul means during the continuance of the land- 
 lord’s estate; and the succeeding landlord or owner may recover 
 a fair proportion of rent for the period which may have elapsed 
 from the death or cesser of the estate of the preceding lessor to 
 the time the tenant so quits; and the tenant and the succeeding 
 landlord, as between themselves, and as against each other, shall 
 have all the benefits and be subject to all the terms and condi- 
 tions to which the preceding landlord and tenant respectively 
 would have been so entitled or subject in case the lease had 
 determined in such manner; and no notice to quit will be 
 necessary or required to determine the tenancy. 
 
 Right to Kill Ground Game. 
 
 In connection with leases of land, as distinguished from 
 leases of house property, the lessee’s rights have also been en- 
 larged by the Ground Game Acts, 1880 and 1906. The former 
 act provides that the occujner of land shall have as incident to 
 and inseparable from his occupation, the right to kill and take 
 ground game ( e ) thereon, concurrently with any other person 
 
 (e) I.e., hares and rabbits: see s. 8. 
 
AGRICULTURAL LEASES. 
 
 361 
 
 who may be entitled to kill and take such game. But the 
 right is subject to the following limitations: — 
 
 (1) The occupier shall kill and take ground game only by 
 
 himself or by persons duly authorized by him in 
 writing; and he and one other person, authorized in 
 writing by him, shall be the only persons entitled 
 to kill ground game with firearms; and no person 
 shall be authorized by him except members of his 
 household resident on the land, persons in his or- 
 dinary service on such land, and any one other person 
 bond fide employed by him for reward in the taking 
 and destruction of ground game; and every person so 
 authorized, on demand by any person having a con- 
 current right to kill the ground game, or any person 
 authorized by him in writing to make such demand, 
 shall produce to the person so demanding the docu- 
 ment by which he is authorized, and in default he 
 shall not be deemed to be an authorized person. 
 
 (2) A person shall not be deemed to be an occupier of land 
 
 by reason of his having a right of common over such 
 lands; or by reason of an occupation for the purpose 
 of grazing or pasturage of sheep, cattle, or horses, for 
 not more than nine months. 
 
 (3) In the case of moorlands and uninclosed lands (not being 
 
 arable lands), the occupier and the persons authorized 
 by him shall exercise the rights conferred only from 
 the eleventh day of December in one year until the 
 thirty-first day of March in the next year, both inclu- 
 sive; but this provision shall not apply to detached 
 portions of moorlands or uninclosed lands adjoining 
 arable lands, where such detached portions of moor- 
 lands or uninclosed lands are less than twenty-five 
 acres in extent (/). 
 
 (/) s. 1. But notwithstanding elusive, to kill and take ground 
 sub-s. (3) the occupier is entitled, game otherwise than by the use 
 between the 1st of September and of firearms: Ground Game Act, 
 the 10th of December, both in- 1906, s. 2. 
 
362 
 
 BK. I., PT. IV. LEASES. 
 
 Agreements 
 in contraven- 
 tion of the 
 right of 
 occupier to 
 destroy 
 ground game 
 void. 
 
 Express 
 surrender, 
 when a deed 
 is necessary. 
 29 Car. 2, 
 c. 3, s. 3. 
 
 Every agreement, condition, or arrangement which purports 
 to divest or alienate the right of the occupier as declared given 
 and reserved to him by the act or which gives him any advan- 
 tage in consideration of his forbearing to exercise such right or 
 imposes upon him any disadvantage in consequence of his exer- 
 cising such right is void (g). 
 
 This act does not apply to cases in which, at the time of its 
 passing , the right to kill and take ground game is for valuable 
 consideration vested in some person other than the occupier (h ) . 
 Thus, it does not apply to a lease which takes effect after, 
 but which is made in pursuance of, an agreement made before 
 the act came into operation (i). When the act does apply, 
 the right given by it is inseparable from occupation, and may 
 be exercised by the occupier even though he happen to be also 
 the owner of the land (1c). No person having a right of killing 
 ground game under the act or otherwise (l) may use any fire- 
 arms for the purpose of killing ground game between the ex- 
 piration of the first hour after sunset and the commencement of 
 the last hour before sunrise; nor may he employ spring traps, 
 except in rabbit holes, nor employ poison. 
 
 VI. — MISCELLANEOUS MATTERS. 
 
 The Surrender of Leases. 
 
 A lease may be determined by surrender, which may he (1) 
 express, or (2) by operation of law. By s. 3 of the Statute of 
 
 Frauds, no lease .... shall 
 
 (g) s. 3. See Sherrard v. Gas- 
 coigne (1900), 69 L. J. Q. B. 720. 
 
 (. h ) s. 5. 
 
 ( i ) Allhusen v. Brooking 
 
 (1880), 26 Ch. D. 559. 
 
 (. k ) Anderson v. Vicary, (1899) 
 
 2 Q. B. 437. 
 
 (Z) s. 6. But the section does 
 not apply to the owner of the land 
 who is himself in occupation : 
 
 be ... . surrendered unless 
 
 Smith v. Hunt (1886), 54 L. T. 
 422. Nor does it apply to a per- 
 son who by virtue of a grant from 
 the owner exercises sporting 
 rights over, but does not occupy, 
 the land: May v. Waters , (1910) 
 1 If. B. 431; and see Saunders 
 v. Pitfield (1888), 58 L. T. 108, 
 and Waters v. Phillips , (1910) 2 
 If. B. 465. 
 
MISCELLANEOUS MATTERS. 
 
 363 
 
 it be by deed or note in writing signed by the party sur- 
 rendering the same, or their agents thereunto lawfully au- 
 thorized by writing, or by act and operation of law (m) ; and 
 by s. 3 of the Real Property Act, 1845, a surrender in writing 
 of an interest not being a copyhold interest, and not being an 
 interest which might by law have been created without writing, 
 is void at law unless made by deed. Consequently a surrender 
 of a lease for not more than three years from the making at 
 two-thirds of a rack-rent, although it must be in writing, need 
 not be by deed. 
 
 A surrender by operation of law arises when one party does, 
 and the other assents to, an act inconsistent with the con- 
 tinuance of the lease. Consequently, if the lessor, with the 
 assent of the lessee, during the continuance of the term, grants 
 a new lease either to the lessee himself, or to him jointly 
 with a third person, or to a third person alone, and the neces- 
 sary change of possession follows, the result is that the old 
 lease is deemed to he surrendered ( n ) ; even if the old lease 
 was by deed and the new one is by parol only (o). The reason 
 is that the parties are estopped by their conduct from setting 
 up the old lease as still in existence. But the giving up of a 
 small portion of the premises, in consideration of a propor- 
 tionate reduction of the rent, does not of itself amount to a 
 surrender by operation of law (p ) . 
 
 Anything which amounts to abandonment of possession by 
 the tenant, if there is evidence to show that the landlord 
 assented thereto, constitutes a surrender by operation of law. 
 So where the tenant left the premises and wrote to the land- 
 lord that he trusted that he might be able to let them to some 
 other person, and the landlord immediately did so, it was held 
 
 8 & 9 Viet, 
 c. 106, s. 3. 
 
 Surrender by 
 implication 
 of law. 
 
 Acts which 
 amount to 
 surrender by 
 operation of 
 law. 
 
 (m) Mere cancellation of the 
 lease is not a “ deed or note in 
 writing”: Roe v. Archbishop of 
 York (1805), 6 East, 86. 
 
 (n) Lyon v. Reed (1844), 13 
 M. & W. 285; Hammerton v. 
 Stead (1824), 3 B. & C. 478; 
 Davison v. Gent (1857), 1 H. & N. 
 
 744; Wallis v. Hands, (1893) 2 
 Ch. 75; and Knight v. Williams, 
 (1901) 1 Oh. 256. 
 
 (o) Per Tindal, C. J., Dodd v. 
 Acklom (1843), 6 M. & Grr. at 
 p. 679. 
 
 (p) Holme v. Brunskill (1878), 
 3 Q. B. D. 495. 
 
364 
 
 BK. I., PT. IV. LEASES. 
 
 Effect of 
 surrender. 
 
 Right to 
 retain lease. 
 
 When land is 
 in mortgage. 
 
 that there was a surrender bv operation of law (q). Again, 
 delivery and acceptance of the key of the premises, either pur- 
 suant to an agreement that the tenancy shall cease, or under 
 circumstances from which the intention of the lessor to resume 
 possession can be inferred, will have a similar effect (r). But 
 in all cases there must be something to show the assent of the 
 landlord to the quitting of possession. If the key be merely 
 left with the landlord, he is not bound to return it, and it will 
 not be presumed simply because he has not done so that he has 
 assented to the quitting of possession (s) . Nor will a mere 
 attempt by the landlord to re-let the premises estop him from 
 alleging that the tenancy is still subsisting, and when there 
 is a re-letting the surrender only takes effect as from the date 
 thereof (i t). 
 
 A surrender will not be allowed to act prejudicially on the 
 rights of third parties, so that it will not avoid or prejudice 
 an underlease (u). 
 
 When a lease is surrendered and a longer term granted to the 
 same lessee he is entitled to retain the original lease (x ) . 
 
 The special law contained in the Conveyancing Act, 1911, 
 relating to the surrender of leases made by mortgagors and 
 mortgagees under s. 18 of the Conveyancing Act, 1881, has 
 already been considered (//) . 
 
 Notices to Quit. 
 
 Length of 
 notice to quit. 
 
 Yearly, quarterly, monthly, and weekly tenancies are deter- 
 minable by notice to quit without any special stipulation to 
 that effect. The parties may contract for any length of notice, 
 or that the tenant may quit without notice, or that the notice 
 
 ( q ) Nichells v. Atherstone 
 (1847), 10 Q. B. 944. See also 
 Walls v. Atcheson (1826), 3 Bing. 
 462. 
 
 (r) Dodd v. Achlom (1843), 6 
 M. & Gr. 672. See also Moss v. 
 James (1877), 47 L. J. Q. B. 160. 
 
 (s) Cannan v. Hartley (1850), 
 9 C. B. 634; and see Bessell v. 
 
 Landsberg (1845), 7 Q. B. 638. 
 
 O Oastler v. Henderson 
 (1877), 2 Q. B. D. 575. 
 
 (u) See G. W. Rail. Co. v. 
 Smith (1876), 2 Ch. D. 235; and 
 see 8 & 9 Viet. c. 106, s. 9. 
 
 ( x ) Knight v. Williams, (1901) 
 1 Ch. 256. 
 
 (; y ) See ante, p. 237. 
 
MISCELLANEOUS MATTERS. 
 
 365 
 
 may expire at any period of the year, and generally may vary 
 the requisites of the notice as required by law, but subject to 
 the terms of any such contract, in the case of a yearly tenancy 
 the notice, which may be verbal or in writing, must be given 
 half -a-y ear at least before the expiration of some year of the 
 tenancy. If the tenancy commenced on one of the usual quarter 
 days, the notice must bo given on or before the last quarter 
 day but one before the quarter day on which the current year 
 of the tenancy expires. A notice so given is sufficient, though 
 the period be less than 182 days (z). 
 
 The notice must expire at that period of the year when the 
 tenancy commenced (a) . If the tenant enters in the middle of 
 a quarter and pays rent for the half quarter, and then goes on 
 paying rent from quarter to quarter, or if he gets the half- 
 quarter rent-free, the tenancy will, for the purpose of giving 
 notice to quit, be deemed to have commenced 011 the quarter 
 day next after he entered (b). 
 
 The notice must be given to quit the whole of the promises 
 the subject of the tenancy; a notice to quit part is void except 
 so far as it is given by virtue of the Agricultural Holdings 
 Act (c ) . 
 
 If the day on which it is intended that the tenant should 
 quit is specifically stated, the notice is bad unless it be the 
 right day (d ) . But a notice to quit on the anniversary of the 
 day the tenant entered, that is, the day after the end of the 
 current year of the tenancy, is good (e). And where there is 
 a doubt when the tenancy commenced, a notice for two alterna- 
 tive days is good if either of them be the right on e(/). At the 
 
 When the 
 notice must 
 expire. 
 
 Notice to 
 quit part is, 
 as a rule, 
 bad. 
 
 Form of 
 notice. 
 
 ( z ) See per Tindal, C. J., Roe 
 v. Doe (1830), 6 Bing. 574. 
 
 (a) Simmons v. Underwood 
 (1897), 76 L. T. 777. If there is 
 any doubt when the tenancy com- 
 menced, the question appears to be 
 one of fact. See Doe v. Howard 
 (1809), 11 East, 498. 
 
 (&) Doe v. Johnson (1806), 6 
 Esp. 10; Doe v. Stapleton (1828), 
 3 C. & P. 275; Simmons v. Under- 
 
 wood , supra. 
 
 (c) See above, p. 357. 
 
 (d) Doe v. Lea (1800), 11 East, 
 312. 
 
 (e) Sidehotham v. Holland, 
 
 (1895) 1 Q. B. 378; and see Wride 
 v. Dyer , (1900) 1 Q. B. 23; and 
 Herron v. Martin (1911), 27 
 
 T. L. R. 431. 
 
 (/) Doe v. Wrightman (1801), 
 4 Esp. 5. 
 
366 
 
 BK. I., PT. IV. LEASES. 
 
 How and to 
 whom notice 
 must be 
 given. 
 
 Notice may be 
 withdrawn. 
 
 same time the notice must be clear and unambiguous; a notice 
 of intention to surrender premises “on or before” a specified 
 date is equivocal and bad (g ) . The best form of notice is one 
 which does not specify the day by date, but gives notice to 
 quit “at the expiration of the current year of the tenancy 
 which shall expire next after the end of one half-year from the 
 date hereof .” The notice must be imperative, and no con- 
 ditions must be imported into it; but it has been held that a 
 notice which ran, “ I desire you to quit or I shall insist upon 
 double rent,” was good, as it did not offer an alternative; for 
 unless the tenant quits on such a notice, the law imposes an 
 obligation on him to pay the double rent (h). Again, a notice 
 given to the landlord by the tenant that if he cannot see his 
 way to reduce the rent, the tenant will be obliged to give up 
 possession, is a good notice (i) . 
 
 Notice should be given to the lessor or his agent for receiving 
 rent and letting the property. It may be given through the 
 post; and in one case where this was done, and the letter 
 reached the place of business of the landlord’s agent during 
 business hours on the last day for giving notice, it was held 
 to be in time although the agent had left the place and did 
 not actually receive it till next day (it) . 
 
 The parties may waive the right to enforce the determina- 
 tion of the tenancy pursuant to the notice, expressly or im- 
 pliedly, as by the landlord distraining for rent or receiving 
 rent accruing due after the expiration of the notice (l). But 
 a mere demand pf the subsequent rent is not necessarily a 
 waiver, if it is not in fact received (m ) . And a mere indulgence 
 to the tenant, as allowing him, for convenience, to remain on 
 the premises after the expiration of the tenancy, will not 
 amount to a waiver (w). 
 
 (r/) Gardner v. Ingrain (1890), 
 61 L. T. 729; compare General 
 Assurance Co. v. Worsley (1895), 
 64 L. J. Q. B. 253. 
 
 ( h ) Doe v. Jackson (1779), 1 
 Doug. 175. 
 
 ( i ) Bury v. Thompson, (1895) 
 1 Q. B. 696. 
 
 (k) Pappillon v. Brunton 
 (1860), 5 H. & N. 518. 
 
 (Z) Keith, Browse & Co. v. 
 National Telephone Co., (1894) 2 
 Oh. 147. 
 
 (m) Blxyth v. Dennett (1853), 
 13 C. B. 178. 
 
 (w) Whiteacre v. Symonds 
 (1808), 10 East, 13. 
 
MISCELLANEOUS MATTERS. 
 
 367 
 
 In the case of a quarterly tenancy a quarter’s notice is neces- 
 sary ( o ) ; in the case of a monthly or of a weekly tenancy a 
 month’s and a week’s notice respectively are certainly sufficient, 
 and, perhaps, necessary (p), though possibly a reasonable notice 
 will do (g). 
 
 Stamps. 
 
 Under the Stamp Act, 1891, and the Finance (1909-10) Act, 
 1910, s. 75, which doubled the duties payable under the former 
 act, the stamp duty on leases, whatever their length, and on 
 agreements for leases, when the term does not exceed thirty- 
 five years, depends on the rent. Agreements for leases for over 
 thirty-five years require a sixpenny agreement stamp only. 
 
 Where an agreement for a lease is duly stamped as a lease, 
 the lease subsequently executed requires a sixpenny stamp only. 
 
 The rates of duty are as follow: — 
 
 LEASE OR TACK— £ s. d. 
 
 (1.) For any definite time not exceeding a year: 
 
 Of any dwelling-house or part of a dwelling- 
 house at a rent not exceeding the rate of 
 £10 per annum 0 0 1 
 
 (2.) For any definite term less than a year: 
 
 (a) Of any furnished dwelling-house or apart- 
 ments where the rent for such term 
 exceeds £25 0 5 0 
 
 (b) Of any lands, tenements, or heritable 
 subjects except or otherwise than afore- - 
 said | 
 
 The same duty as 
 a lease for a year 
 at the rent re- 
 served for the 
 definite term. 
 
 (3.) For any other definite term or for any indefi- 
 nite term: 
 
 Of any lands, tenements, or heritable subjects — 
 
 Where the consideration, or any part of the 
 consideration, moving either to the 
 lessor or to any other person, consists 
 of any money, stock, or security: 
 
 I The same duty as 
 
 faleTor y the P same 
 
 consideration. 
 
 (o) Per Coltman, J., Towne v. 
 Campbell (1847), 3 C. B. 921. 
 
 (p) Bowen v. Anderson, (1894) 
 
 1 Q. B. 164. 
 
 (q) See Huff ell v. Armitstead 
 (1835), 7 C. & P. 56 ; Jones v. 
 Mills (1861), 10 C. B. N. S. 788. 
 
 Notice re- 
 quired for 
 quarterly, 
 monthly, and 
 weekly 
 tenancies. 
 
 Pates of 
 stamp duty. 
 
368 
 
 BK. I., PT. IV. LEASES. 
 
 Where the consideration or any part of the 
 consideration is any rent: 
 
 In respect of such consideration : 
 
 If the rent, whether reserved as a yearly 
 rent or otherwise, is at a rate or 
 average rate: 
 
 
 
 If the term 
 does not exceed 
 35 years, or is 
 indefinite. 
 
 If the term 
 exceeds 
 35 years, but 
 does not exceed 
 100 years. 
 
 If the term 
 exceeds 
 100 years. 
 
 
 
 
 £ S. 
 
 d. 
 
 £ 
 
 8. 
 
 d. 
 
 £ 
 
 s. 
 
 d. 
 
 Not exceeding £5 per annum 
 
 
 0 1 
 
 0 
 
 0 
 
 6 
 
 0 
 
 0 
 
 12 
 
 0 
 
 Exceeding — 
 
 
 
 
 
 
 
 
 
 
 £5 and not exceeding 
 
 £10 
 
 0 2 
 
 0 
 
 0 
 
 12 
 
 0 
 
 1 
 
 4 
 
 0 
 
 10 
 
 15 
 
 0 3 
 
 0 
 
 0 
 
 18 
 
 0 
 
 1 
 
 16 
 
 0 
 
 1 5 , , , , 
 
 20 
 
 0 4 
 
 0 
 
 1 
 
 4 
 
 0 
 
 2 
 
 8 
 
 0 
 
 20 
 
 * jV/ > > 5 1 
 
 25 
 
 0 5 
 
 0 
 
 1 
 
 10 
 
 0 
 
 3 
 
 0 
 
 0 
 
 -5 j , , , 
 
 50 
 
 0 10 
 
 0 
 
 3 
 
 0 
 
 0 
 
 6 
 
 0 
 
 0 
 
 50 
 
 75 
 
 0 15 
 
 0 
 
 4 
 
 10 
 
 0 
 
 9 
 
 0 
 
 0 
 
 1 5 , , , , 
 
 100 
 
 1 0 
 
 o 
 
 6 
 
 0 
 
 0 
 
 12 
 
 0 
 
 0 
 
 100 
 
 
 
 
 
 
 
 
 
 
 For every full sum of £50, 
 
 and 
 
 
 
 
 
 
 
 
 
 also for any fractional part of 
 
 
 
 
 
 
 
 
 
 £50 thereof 
 
 • 
 
 0 10 
 
 0 
 
 o 
 
 o 
 
 0 
 
 0 
 
 6 
 
 0 
 
 0 
 
 (4.) Of any other kind whatsoever not hereinbefore 
 
 described 1 0 0 
 
 And see sects. 75, 76, 77, and 78. 
 
 iSTo extra stamp duty is payable because the lease contains an 
 option for the lessee to buy the freehold (r) ; nor is any extra 
 duty necessary by reason of there being a covenant by a surety 
 to pay the rent, or by reason of a covenant by the lessee to 
 expend money in building (s) . But a lease containing a con- 
 tract for the sale of fixtures is liable, in addition to the lease 
 stamp, to a sixpenny agreement stamp, if not under seal, and a 
 ten shilling stamp if by deed (t). 
 
 Where in one lease several parcels are let to the same person, 
 the stamp duty is on the aggregate amount of the rents (u ) ; 
 
 (r) Worthington v. Warrington ( t ) Corder v. Drakeford (1811), 
 
 (1848), 5 C. B. 635. 3 Taunt, 382. 
 
 (s) Stamp Act, 1891, s. 77 (2). ( u ) Boase v. Jackson (1822), 3 
 
 B. & B. 185; 6 Moore, 480. 
 
MISCELLANEOUS MATTERS. 
 
 369 
 
 but if a lease of several parcels is made to different persons, the 
 lease is liable to an ad valorem duty on the separate rents (x ) . 
 
 The stamp on a lease must be impressed, with the exceptions 
 of a lease of (a) any dwelling-house or paid thereof for a defi- 
 nite term not exceeding a year, at a rent not exceeding the rate 
 of 10?. per annum; or (b) any furnished dwelling-house or 
 apartments for any definite term less than a year. In these 
 two cases an adhesive stamp may be used (y). 
 
 Where leases are executed in duplicate the counterpart must 
 be stamped with a five shilling stamp, unless the lease itself is 
 subject to a smaller duty than five shillings, when it must be 
 stamped with the same duty as the lease. 
 
 Legal Charges. 
 
 As already stated (z), in the absence of agreement, the lessee 
 is liable to pay all or most of the legal charges and expenses 
 connected with the lease. These charges are now (unless other- 
 wise agreed) regulated by Schedule I., Part 2, of the Solicitors’ 
 Remuneration Order, 1881, and vary with the amount of the 
 rent reserved. The scale will be found set out below in 
 Part VIII. 
 
 The schedule applies to “ leases or agreements for leases at a 
 rack rent (other than a mining lease or a lease for building 
 purposes or agreement for the same).” It was the subject of 
 judicial construction in the case of Re Negus (a), where it was 
 held to apply to a tenancy agreement whereby the lessor agreed 
 to let, and the tenant agreed to take, a flat for a term of three 
 years at a rack rent. The case also decided that, although the 
 lessee is bound to pay the costs of preparing the lease, he is not 
 bound to pay for the counterpart, and that therefore, in esti- 
 mating the costs properly payable by the lessee to the lessor's 
 solicitor, the cost of the counterpart lease or duplicate agree- 
 ment must be deducted from the scale fee. The decision in Re 
 Negus, however, has not met with the approval of the pro- 
 
 (%) Doe v. Day (1811), 13 East, (z) See above, p. 308. 
 
 241. (a) (1895) 1 Ch. 73. 
 
 ( y ) Stamp Act, 1891, s. 78. 
 
 G. — C. 
 
 Lessee must 
 pay costs of 
 lease. 
 
 Scale fee 
 applicable. 
 
 B B 
 
370 
 
 BK. I., PT. IV. LEASES. 
 
 fcssion; and the general opinion seems to be that an agreement 
 for a tenancy for three years, under hand only, should be 
 charged for under the old system, as altered by Schedule II. of 
 the Order, and that in the case of' such an agreement there is no 
 custom binding the tenant to pay the landlord’s costs at all; 
 and lastly, that in the case of a lease or agreement for a lease 
 within Schedule I., Part 2, a lessee is liable to pay for both 
 lease and counterpart. Nevertheless on this last point Re Negus 
 has been followed in Re Gray (b). 
 
 It has also been decided that the scale fee includes all “ busi- 
 ness connected with” the preparation of a lease, so that where 
 there is an agreement for a lease, followed by a lease, the soli- 
 citors engaged cannot add any charge to the scale fee for the 
 preparation of the preliminary agreement (e ) . 
 
 Increment Value and Reversion Duties. 
 
 Increment 
 value duty. 
 
 Reversion 
 
 duty. 
 
 What has been said concerning the payment of increment 
 value duty in connection with sales applies equally to the 
 payment of such duty on the grant of' a lease for a term of 
 years exceeding fourteen years (d ) . The duty has to be paid 
 by the lessor, and any contract by the lessee to pay it or any 
 expenses incurred in connection with its payment or assess- 
 ment, or for the re-payment or re-imbursement to the lessor 
 of any payments made by him in respect of the duty or ex- 
 penses is void(e). The lessee must, however, see that the 
 lease is duly stamped with one of the stamps mentioned in 
 s. 4(3) of the Finance (1909-10) Act, 1910 (/). 
 
 Reversion duty, like increment value duty, was imposed by 
 the Finance (1909-10) Act, 1910. It is payable on the deter- 
 mination of a lease granted for more than twenty-one years, 
 and is levied on the value of the benefit accruing to the lessor 
 by reason of such determination, and is at the rate of 1/. for 
 every complete 10 1. of that value. The value of the benefit 
 
 (6) (1901) 1 Ch. 239. 
 
 (c) Be Emanuel and Simmonds 
 (1886), 33 Ch. D. 40. 
 
 ( d ) Finance (1909-10) Act, 
 1910, s. 1. See ante, p. 74. 
 
 (e) Revenue Act, 1911, s. 1. 
 (/) Ante, p. 75. 
 
MISCELLANEOUS MATTERS. 
 
 371 
 
 is to be deemed the amount (if any) by which the total value 
 of the land, as defined by s. 25 (3) of' the act, at the determina- 
 tion of the lease, after allowing for works executed or capital 
 expenditure incurred by the lessor during the term and for com- 
 pensation payable by the lessor, exceeds the total value of the 
 land when the lease was granted, to be ascertained on the basis 
 of the rent reserved and payments made in consideration of 
 the lease (g). There are several exemptions from the duty. 
 No duty is payable on agricultural land, or by a lessor whose 
 interest is only a lease for not exceeding twenty-one years, 
 or on a reversion purchased before the 30th April, 1009, if 
 the lease determines otherwise than by agreement within forty 
 years of the purchase (h), or where a lease is determined in 
 pursuance of an agreement by the lessee for the acquisition 
 of the lessor’s interest, provided the lease has still fifty years 
 to run, and the total value of the land does not exceed 500/. ( i ). 
 Further, where the lease determines through the interests of 
 the lessee and lessor vesting in the same person before the ex- 
 piration of the term, as on a surrender, the duty payable is 
 not the full duty (k ) . 
 
 The duty is recoverable from the lessor as a Crown debt, 
 but is not to have priority over other debts, nor is it charged 
 on the land(Z). The lessor must deliver an account to the 
 Inland Revenue Commissioners within three months after the 
 determination of the lease; heavy penalties are imposed for 
 failure to do so(m). By “lessor” is meant the person in 
 whom the lessor’s interest was vested immediately before the 
 expiration of the term for which the lease was granted, or, if 
 the lease has determined before that time, immediately before 
 the transaction or event in consequence of which the lease has 
 determined ( n ) . 
 
 (</) Finance (1909-10) Act, 
 
 1910, s. 13. 
 
 ( h ) Ibid. s. 14 (1) and (2). 
 
 The word “ purchase ” here does 
 not include a marriage settlement: 
 Commissioners of Inland Revenue 
 v. Cribble , (1912) W. N. 301. 
 
 (0 Revenue Act, 1911, s. 3 (3). 
 
 B B 2 
 
 ( k ) Ibid. s. 3 (2). See also 
 ss. 14 (4) and (5), 22 (1), 35, 36, 
 37 and 38. 
 
 ( l ) Finance (1909-10) Act, 
 1910, s. 15 (1). 
 
 (m) Ibid. s. 15 (2) and (3). 
 
 ( n ) Revenue Act, 1911, s. 3 (1). 
 
 Lessor must 
 pay the duty. 
 
372 
 
 Meaning of 
 “ settle- 
 ment.” 
 
 Marriage 
 
 settlements. 
 
 45 & 46 Viet, 
 c. 75. 
 
 Part V. 
 
 I . — INTRODUCTORY . 
 
 The term £t settlement ” is in this chapter used in the sense of 
 an instrument inter vivos whereby property is limited to persons 
 for successive interests. 
 
 Settlements of this kind are more often made upon marriage 
 than upon any other occasion, the object of such a settlement 
 being to secure the property the subject of the settlement to the 
 husband and wife during their lives, and after the death of the 
 survivor to make provision for the children of the marriage. 
 Before the year 1883 there was another object for the settle- 
 ment of the wife’s property — to secure it to her as against her 
 husband — but the Married Women’s Property Acts, by depriv- 
 ing the husband of the interests which he formerly took in his 
 wife’s property, render a settlement of the wife’s property 
 merely for this purpose unnecessary. The acts, however, have 
 not materially diminished the practical utility of a settlement 
 even of the wife’s property; for though they secure her 
 property to her they confer no rights on the children, and it 
 is one of the primary objects of a marriage settlement to make 
 a provision for the children. Nor can the acts protect a woman 
 against her own folly and extravagance, or against her hus- 
 band’s influence, and the only way to prevent a woman from 
 squandering her property or allowing her husband to squander 
 it for her, is to settle it on her subject to a restraint upon 
 
CAPACITY OF PARTIES. 
 
 < 37:5 
 
 anticipation (a ) . Again, the acts make no provision for the 
 husband, who, under the usual form of settlement, generally 
 gets a life interest in his wife’s property after her death, and 
 so a settlement is still necessary for this purpose. 
 
 II. — CAPACITY OF PARTIES. 
 
 What has alread}^ been said of the capacity of persons to Capacity of 
 acquire or dispose of property in connection with sales is for Fr-enerally. 
 the most part applicable to dispositions by way of settlement 
 and need not be repeated. The rules relating to the capacity 
 of infants are, however, of special importance in connection 
 with settlements, and require a short consideration. 
 
 Settlements by Infants. 
 
 The Infant Settlements Act, 1855, authorizes an infant Settlements 
 upon or in contemplation of his or her marriage, with the uuder^^ 
 sanction of the Court of Chancery, to make a valid and binding 18 & 19 Vlct * 
 settlement or contract for a settlement of his or her property, 
 or property over which he or she has any power of appointment, 
 whether real or personal; and every conveyance executed by 
 the infant with the approbation of the court for the purpose of 
 giving effect to such settlement is to be as valid and effectual 
 as if the person executing the same were of the full age of 
 twenty-one years; but the enactment does not extend to powers 
 of which it is expressly declared that they shall not be exercised 
 by an infant. The act has a proviso to the effect that an 
 appointment under a power (5) or a disentailing deed executed 
 by an infant tenant in tail under the act, shall, in the event 
 of the infant dying under age, be absolutely void. The sanction 
 
 (a) s. 19 of the Married Wo- 
 men’s Property Act, 1882, provides 
 that nothing in the act shall inter- 
 fere with or render inoperative 
 any restriction on anticipation. 
 
 (&) If executed by an infant 
 tenant in tail, but not otherwise: 
 Scott v. Hanbury, (1891) 1 Oh. 
 298. 
 
374 
 
 BK. I., PT. V. SETTLEMENTS. 
 
 When act 
 applies. 
 
 To what 
 settlements 
 the act 
 applies. 
 
 Settlements 
 not made 
 under the act. 
 
 Stevens v. 
 
 Trevor- 
 
 Garricle. 
 
 of the court can be obtained upon an originating summons (c). 
 and will generally be granted as a matter of course, and 
 without any inquiry being directed as to the propriety of the 
 contemplated marriage, unless the infant is a ward of court (d ) . 
 
 The act does not apply to a male infant under the age of 
 twenty years, or to a female under the age of seventeen years. 
 
 It was formerly thought that the fict did not authorize a 
 post-nuptial settlement of the property of the wife (e); but in 
 Re Sampson and Wall (f), as to infant wards of court, and 
 Re Phillips (g), as to other infants, it was decided that the act 
 is sufficiently wide to authorize a post-nuptial settlement of 
 property, and even by an infant who married under the neces- 
 sary age, but only on his or her reaching that age. The 
 settlement may include a covenant to settle after-acquired 
 property (K)\ but the act does not give the court power to 
 allow the infant to settle property which an adult could not 
 settle («). Re Sampson and Wall(J) and Leigh v. Leigh (Tc) 
 show that the act merely empowers the court to sanction a 
 settlement, and does not confer jurisdiction to compel such a 
 settlement to be made. 
 
 A settlement made by an infant independently of this act is 
 not void but voidable (?), that is to say, it may be repudiated 
 by him or her on attaining the age of twenty-one, or within a 
 reasonable time afterwards; but unless he or she takes steps to 
 repudiate the settlement within a reasonable time after attain- 
 ing majority, it is binding upon him or her without any express 
 ratification (m). 
 
 Formerly if a female on attaining her majority repudiated 
 a settlement made by her on her marriage while under age, a 
 very curious result sometimes ensued. For if the intended 
 
 (c) Eules of the Supreme Court, 
 1883, Ord. LV. r. 2. 
 
 (' d ) See Re Dalton (1856), 25 
 
 L. J. Ch. 751. 
 
 (e) Re Potter (1869), L. E. 7 
 Eq. 484. 
 
 (/) (1884), 25 Ch. D. 482. 
 
 '(g) (1887), 34 Ch. D. 467. 
 
 ( h ) Moore v. Johnson, (1891) 3 
 Ch. 48. 
 
 ( i ) Seaton v. Seaton (1888), 13 
 App. Cas. 61. 
 
 (&) (1888), 40 Ch. D. 290. 
 
 ( l ) Duncan v. Dixon (1890), 44 
 
 Ch. D. 211. 
 
 (m) Edwards v. Carter, (1893); 
 A. C. 360. 
 
CAPACITY OF PARTIES. 
 
 375 
 
 husband was an adult and the intended wife an infant, and the 
 latter was possessed of personal property which was settled by 
 them before marriage without the leave of the court, and then 
 on attaining majority the wife repudiated the settlement, she 
 was still not entitled to the property. This was the result of 
 s. 19 of the Married Women’s Property Act, 1882, which pro- 
 vides that nothing in the act shall interfere with or affect any 
 settlement. As a consequence, the matter had to be dealt with 
 as if the act had never been passed, so that the old common 
 law rule applied, and the property passed to the husband, and 
 he being bound by the settlement, was obliged to hand the pro- 
 perty over to the trustees. That is to say, though nominally 
 the wife was entitled to repudiate the settlement, the repudia- 
 tion was practically ineffective (ri). This is no longer the law, 
 however, for it is provided by the Married Women’s Property 
 Act, 1907, s. 2, that “notwithstanding ,s. 19 of the Married: 
 
 Women’s Property Act, 1882, a settlement or agreement for 
 a settlement made after the commencement of the act by the 
 husband or intended husband, whether before or after marriage, 
 respecting the property of any woman he may marry or have 
 married, shall not be valid unless it is executed by her if she 
 is of full age, or confirmed by her after she attains full age. 
 
 But if she dies an infant, any covenant or disposition by her 
 husband contained in the settlement or agreement shall bind 
 or pass any property of hers to which he may become entitled 
 on her death, and which he could have bound or disposed of if 
 this act had not been passed.” 
 
 But when a female infant makes a voidable settlement of Election in 
 property, if by the same instrument her husband also settles eqm W 
 property on her, on attaining majority she will be put to her 
 election either to confirm the settlement or to repudiate it, and 
 give up all interest under it, unless a contrary intention 
 appears (o) . 
 
 (ft) Stevens v. Trevor-Garrick, 
 (1893) 2 Ch. 307; see also Buck- 
 land v. Buckland, (1900) 2 Ch. 
 534. 
 
 ( o ) Re Vardon (1885), 31 
 
 Ch. D. 275; Greenhill v. North 
 British, &c. Insurance Co., (1893) 
 3 Ch. 474. 
 
376 
 
 29 Car. 2, 
 
 c. 3. 
 
 Investigation 
 of title of 
 settlor. 
 
 Mode of 
 transferring 
 property to 
 the trustees. 
 
 BK. I., PT. V. SETTLEMENTS. 
 
 III. — CONTRACT FOR SETTLEMENT AND PREPARATION OF 
 SETTLEMENTS GENERALLY. 
 
 By the 4th section of the Statute of Frauds, “No action 
 shall be brought .... to charge any person upon any agree- 
 ment made in consideration of marriage .... unless the 
 agreement upon which such action shall be brought, or some 
 memorandum or note thereof, shall be in writing, and signed 
 by the party to be charged therewith, or some other person 
 thereunto by him lawfully authorized.'’ Consequently any 
 marriage settlement, or contract for a marriage settlement, 
 must be in writing. But the writing required by the statute is 
 evidentiary only, and a recital in a post-nuptial settlement of 
 a verbal ante-nuptial agreement is sufficient to satisfy it (p). 
 
 In practice a settlement is always made by deed. As a rule, 
 no investigation of the title of the settlor to the property 
 intended to be settled is, from the nature of the case, neces- 
 sary; but occasionally it may be, and the procedure is then 
 the same as on a sale. Usually, the intended wife’s solicitor 
 prepares the settlement at the intended husband’s cost (g), but 
 in the case of a strict settlement, the settlement is sometimes 
 prepared by the family solicitor. 
 
 How the Trust Property is vested in the Trustees. 
 
 The mode by which the. property the subject of a settlement 
 is vested in the trustees depends on the nature of the pro- 
 perty and the trusts of the settlement. If the property re- 
 quires transfer in the books of banks or companies, as in the 
 case of government stock, shares, &c., or some deed in a statu- 
 tory form, as in the case of railway debentures, it is vested 
 in the trustees in the appropriate way as if they were pur- 
 chasers, and the transfer is recited in the settlement as having 
 been made. 
 
 O) Re Holland, Gregg v. Hoi- (1864), 17 C. B. N. S. 553; Re 
 land, (1902) 2 Ch. 360. Lawrence, BowJcer v. Austin, 
 
 ( q ) See Helps v. Clayton (1894) 1 Ch. 556, at p. 558. 
 
SETTLEMENTS GENERALLY. 
 
 377 
 
 Where the proper mode of transferring the property is by 
 deed, the question may arise whether the transfer should be 
 effected by the settlement itself, or whether a separate deed 
 should be employed. This depends on whether the trustees are 
 to have power to sell the property, and, if so, whether the 
 assignment to them will form a part of the title to which the 
 purchaser on the sale will be entitled. If the answer is in 
 the affirmative, the transfer should be by a separate deed, so 
 that the settlement and its trusts may be kept off the title (r). 
 For example, if the property settled be a debt secured by a 
 mortgage, owing to the settlor, it will be more convenient to 
 have the transfer to the trustees made by a separate deed, so 
 that when the mortgage is paid off the settlement may form no 
 part of the title to the mortgaged property. If this plan be 
 adopted the settlement will recite the mortgage and the trans- 
 fer, and then proceed to declare the trusts. But where it is not 
 intended that the trustee shall be empowered to dispose of the 
 property, the assignment may be made by the settlement itself. 
 
 The Covenant to Settle After-Acquired Property. 
 
 It is common for the wife to covenant to settle all property (s) 
 to which she may become entitled during the coverture (called 
 her after-acquired property) with specified exceptions, such as 
 jewelry, furniture, and sums of money not exceeding 200 1. ( t ). 
 This covenant is now inserted partly in order to secure such 
 property for the benefit of the children of the marriage, and 
 partly in order to attach a restraint against anticipation to it. 
 
 Sometimes the covenant is by the wife alone that she will 
 convey her interest in the property to the trustees; or some- 
 times there is an agreement and declaration by both parties 
 that such property shall be subject to the settlement. 
 
 ( r ) See on this subject gene- 
 rally, Williams, Vendor and Pur- 
 chaser, vol. i. 249 et seq. 
 
 (s) As to the meaning of the 
 word “ property ” in this cove- 
 nant, see Re Simpson, (1904) 1 
 
 Ch. 1; and Tremayne v. Rash- 
 leigh, (1908) 1 Ch. 681. 
 
 ( t ) See Re Ear court's Trusts, 
 White v. Harcourt (1911), 105 
 L. T. 747. 
 
 When a 
 separate deed 
 is necessary. 
 
 Nature of the 
 covenant. 
 
 Form of 
 covenant. 
 
378 
 
 BK. I., PT. V. SETTLEMENTS. 
 
 What pro- 
 perty will fall 
 within the 
 covenant. 
 
 The covenant should be so framed as to include property 
 to which the wife is entitled at the date of the settlement ( u ). 
 If the covenant be merely to settle property to which the wife, 
 or the husband in her right, shall become entitled during the 
 coverture, as the words “shall become entitled” import a 
 change of condition, the covenant will not include property in 
 which she has, at the date of the settlement, a vested interest 
 in possession ( x ), or in which she then has a reversionary inte- 
 rest, whether it falls into possession during the coverture or 
 after it has determined (?/) . But if the covenant is properly 
 framed it will bind reversionary property if the interest fall 
 into possession during the coverture (z ) . If the covenant be 
 to settle “property” it will not include property over which 
 the wife acquires a general power of appointment unless she 
 exercises the power in her own favour (a), but of course the 
 covenant may be expressly made to extend to such pro- 
 perty (6). Generally, it appears to include a gift by husband 
 to wife (e), but not investments made by Tier with savings of 
 her separate income (d), nor a life interest (e), nor an estate 
 tail (/), nor property subject to restraint against anticipa- 
 tion ( g ) . Where the property comes within the covenant, she 
 will be bound to settle it, although it is given to her subject to 
 a condition that it shall be free from any covenant contained 
 
 (u) It will then bind even con- 
 tingent interests: Agar v. George 
 (1876), 2 Ch. D. 706. 
 
 (x) Otter v. Melvill (1848), 2 
 De G. & Sm. 257; Archer v. 
 Kelly (1860), 1 D. & S. 300. 
 
 ( : y ) Re Mitchell (1878), 9 
 
 Ch. D. 5; Re Bland, (1905) 1 Ch. 
 4. 
 
 (z) See, for example, Archer v. 
 Kelly (1860), 1 D. & S. 300 ; 
 Davenport v. Marshall, (1902) 1 
 Ch. 82; Lloyd v. Prichard, (1908) 
 1 Ch. 266; lie Williams, (1911) 1 
 Ch. 441. 
 
 (a) Tremayne v. Rashleigh, 
 
 (1908) 1 Ch. 681. 
 
 (6) See for an example, Hill 
 v. Schwarz, (1892) 3 Ch. 510. 
 
 (c) Re Ellis, (1909) 1 Ch. 618; 
 Re Plumptre, (1910) 1 Ch. 609; 
 contra, Coles v. Coles, (1901) 1 
 Ch. 711. 
 
 (d) Finlay v. Darling, (1897) 1 
 Ch. 719; dissenting from Re 
 Bendy, (1895) 1 Ch. 109. 
 
 (e) Re Dowding, (1904) 1 Ch. 
 441. 
 
 (/) Re Dunsany, (1906) 1 Ch. 
 578; and see In re Pearse, (1909) 
 1 Ch. 304. 
 
 ( g ) Coventry v. Coventry 
 (1863), 32 Beav. 612; Gibson v. 
 Way (1886), 56 L. J. Ch. 389. 
 
SETTLEMENTS GENERALLY. 
 
 379 
 
 in the marriage settlement to settle after-acquired property, 
 the condition being void (li). 
 
 The covenant is usually limited so as to bind only property 
 acquired during coverture, but, even though not expressly so 
 limited, it will not bind property coming to her after the 
 coverture is at an end, unless an intention to bind such pro- 
 perty is clearly shown, at any rate if the wife survives the 
 husband (i) . Where the covenant is limited to property acquired 
 “ during coverture” or “during marriage,” it is rendered 
 inoperative by a judicial separation between the husband and 
 wife (k), though not by a decree nisi for dissolution of mar- 
 riage (/). 
 
 According to the usage of conveyancers, a covenant by the 
 intended wife to settle after-acquired property is not a “ usual ” 
 clause, and so cannot be insisted upon under an agreement to 
 execute a settlement containing the usual clauses (m). 
 
 If the covenant to settle specified after-acquired property be 
 broken, even though specific performance may not be obtain- 
 able, damages, to the value of the property which ought to 
 have been handed over to the trustees, will be recoverable by 
 them (n). 
 
 A covenant by the husband to settle after-acquired property 
 is unusual, but it is not void (o) . 
 
 Does not 
 affect pro- 
 perty acquired 
 after 
 
 coverture. 
 
 Not a 
 “usual ” 
 clause. 
 
 Breach of 
 covenant. 
 
 Covenants for Title. 
 
 It used to be customary, especially where the property settled 
 was land or a policy of assurance, to make the settlor enter 
 into full covenants for title. 'The objection to doing this is, 
 
 Not advisable 
 to make hus- 
 band give full 
 covenants for 
 title. 
 
 ( h ) Re Wharton (1910), 102 
 
 L. T. 531. 
 
 (i) Dickinson v. Dillivyn 
 (1869), L. R. 8 Eq. 546; Re 
 Edwards (1873), L. R. 9 Ch. App. 
 97; Re Campbell's Policies (1877), 
 6 Ch. D. 686; Re Coghlan , (1894) 
 3 Ch. 76; Fisher v. Shirley (1889), 
 43 Ch. D. 290. 
 
 ( k ) Dawes v. Creyke (1885), 30 
 
 Ch. D. 500; Davenport v. Mar- 
 shall, (1902) 1 Ch. 82. 
 
 ( l ) Sinclair v. Fell , (1912) 
 
 W. N. 277. 
 
 (m) Re Maddy, Maddy v. 
 Maddy (1902), 71 L. J. Ch. 18. 
 
 (■ n ) See Hill v. Schwarz, (1892) 
 3 Ch. 510. 
 
 (o) Re Turcan (1888), 40 
 Ch. D. 5; and see Ridley v. Ridley 
 (1911), 55 S. J. 838. 
 
380 
 
 Two forms of 
 settlement. 
 
 Preliminary 
 parts of 
 settlement 
 of personalty. 
 
 BK. I.j FT. V. SETTLEMENTS. 
 
 that in case of a breach of a covenant it would be the duty of 
 the trustees to sue the settlor on the covenant. To do this 
 might in many cases involve him in serious loss, and where 
 the settlor is the husband, as is generally the case, it would' 
 hardly be to the interests of the wife and children of the 
 marriage. The modern practice, therefore, is only to make the 
 settlor covenant for further assurance. This covenant need not 
 now bo inserted in express terms, for it may be implied by 
 virtue of s. 7 of the Conveyancing Act, 1881, which provides 
 that in a conveyance by way of settlement a person who conveys 
 and is expressed to convey “ as settlor” shall be deemed to 
 covenant for further assurance, and this covenant will extend 
 to every person deriving title under the settlor, either by deed 
 or act or operation of law in his lifetime, subsequent to the 
 settlement, or bv testamentary disposition, or devolution in law 
 on his death. 
 
 IV. — FORM OF SETTLEMENT OF PERSONALTY. 
 
 The form of a settlement depends to a great extent on 
 whether the property settled is personalty or realty, and we 
 must therefore consider the two kinds of settlement separately. 
 We take a settlement of personalty first as being the simpler, 
 and assume that it is being made in contemplation of marriage. 
 
 Dates, Parties and Recitals. 
 
 With regard to the preliminary parts of the deed, it need 
 only be said that the parties are usually the intended hus- 
 band, the intended wife and the trustees of the settlement, of 
 "whom there are generally at least two, and that the only recitals 
 are of the intended marriage, of the agreement for the settle- 
 ment, and of the transfer of the trust property to the trustees 
 if that has already taken place. 
 
FORM OF SETTLEMENT OF PERSONALTY. 
 
 381 
 
 The Trusts of the Settlement. 
 
 The property having been vested in the trustees in the appro- 
 priate way already indicated, the settlement proceeds to declare 
 the trusts upon which they are to hold it. The first of these 
 will be to hold it upon trust for the settlor until the solem- 
 nization of the intended marriage. The object of this trust 
 is that if the intended marriage does not take place, the 
 ownership of the property shall not be altered; but it also 
 operates in a case where, though the parties go through a cere- 
 mony, a marriage is impossible owing to their being within the 
 prohibited degrees (p) . In the event of the marriage not 
 being solemnized, any investments which may have been made 
 will be ordered to be re-transferred (q). 
 
 The next trust is, that after the solemnization of the intended 
 marriage, the trustees shall either retain the property in its 
 existing' state, or (generally with the consent of the husband 
 and wife during their joint lives, and of the survivor after 
 the death of one of them, and on the death of the survivor, 
 then at the discretion of the trustees) sell the same and invest 
 the proceeds, with a power to vary the investments from time 
 to time with the same consents, and to stand possessed of the 
 property or the proceeds of the investments thereof, upon trusts 
 which will vary according as the property was brought into 
 the settlement by the husband or the wife: if it comes from the 
 former, it is usual to vest it in the trustees upon trust for the 
 husband for life; but if it comes from the wife, the first life 
 interest in the income is generally given to her for her separate 
 use, without power of anticipation. Sometimes, however, the 
 first life interest in the income of the whole estate, wherever 
 it comes from, is given to the husband, and when this is done it 
 is proper to charge it with the payment to the wife of an annual 
 income during the coverture. This latter plan is usually 
 adopted when the husband is not in business, or is not earning 
 an income from some trade or profession. 
 
 (p) See Neale v. Neale (1899), ( q ) Essery v. Cowlard (1884), 
 
 79 L. T. 629; Phillips v. Probyn, 26 Oh. D. 191. 
 
 (1899) 1 Oh. 811. 
 
 The usual 
 trusts are — 
 (i) To hold 
 for settlor 
 till marriage. 
 
 (ii) After 
 marriage to 
 retain, or sell 
 and invest. 
 
 (iii) For hus- 
 band or wife 
 for life. 
 
382 
 
 How far 
 limitation to 
 husband, 
 determinable 
 on bank- 
 ruptcy or 
 attempting to 
 alienate, is 
 valid. 
 
 (iv) After 
 death of hus- 
 band or wife 
 for survivor 
 for life. 
 
 (v) After 
 death of 
 parents for 
 children or 
 remoter issue, 
 as parents 
 appoint ; 
 
 BK. I., PT. Y. SETTLEMENTS. 
 
 To protect the life interest of the husband from any obli- 
 gations he may incur in business, it is often desired, especially 
 when the business he carries on is of a hazardous nature, to 
 make it determinable on his bankruptcy, or on his attempting 
 to alien or charge it. It must, however, be remembered that a 
 man cannot settle his own property so as to take an interest 
 determinable on his bankruptcy, for that is a fraud on the 
 bankruptcy law (r) ; such a trust is only valid when the pro- 
 perty comes from the wife or from some person other than the 
 husband himself (s), and if the husband’s property is to be 
 protected, the only way is to give a first life interest to the 
 wife, or declare an immediate discretionary trust. A man 
 can, however, settle his property so as to take a life interest 
 determinable on alienation (£), and if he does his interest will 
 determine even though the alienation be involuntary, as by 
 the appointment of a receiver (u)\ but even in this case his 
 interest cannot be so limited as to continue in himself after his 
 alienation: there must be a gift over, or the destination of the 
 income during the rest of his life must in some way be pro- 
 vided for (x). 
 
 The next trust is concerned with the destination of the settled 
 property, or the income of the investments thereof, upon the 
 decease of the husband or wife. Upon such decease occurring it is 
 usual to give the income to the survivor of the spouses for life. 
 After the decease of the survivor, the trust is for such child or 
 children or remoter issue (y) of the intended marriage at such 
 age or time, or at such ages or times, not being earlier as to any 
 
 (r) Higinbotham v. Holme 
 (1811), 19 Ves. 88. 
 
 (s) Ex parte Cooke (1803), 8 
 Ves. 353; and see JDommett v. 
 Bedford (1796), 6 T. R. 684, 
 where a gift by uncle to nephew 
 “ to cease immediately on aliena- 
 tion ” was held to go over on the 
 donee becoming a bankrupt. See 
 also Lester v. Garland (1832), 5 
 Sim. 205. 
 
 (t) Brooke v. Pearson (1859), 
 
 27 Beav. 181; Knight v. Browne 
 (1861), 30 L. J. Ch. 649. 
 
 (u) Be Detmold (1889), 40 
 Ch. D. 585; In re Perkins (1912), 
 56 S. J. 412. 
 
 (x) Brandon v. Bobinson 
 (1811), 18 Ves. 429; and see In 
 re Masters , (1911) 1 Ch. 321. 
 
 (y) That is, any descendant. 
 Ilobbs v. Tuthill, (1895) 1 Ir. R. 
 115. 
 
FORM OF SETTLEMENT OF PERSONALTY. 
 
 383 
 
 object of the power than his or her age of twenty-one years, or 
 in the case of females, day of marriage, in such shares, if more 
 than one, and on such conditions and in such manner as the 
 husband and wife shall by deed or deeds jointly appoint, and 
 in default of such appointment as the survivor shall by deed 
 or will appoint, and in default of appointment, then in trust for 
 all the children of the intended marriage, who being sons shall 
 attain the age of twenty-one years, or being daughters shall 
 attain that age or shall marry under that age, in equal shares; 
 and if there is but one child, then in trust as to the whole fund 
 for that one child ( z ). 
 
 The trust, in default of appointment, for the children of the 
 marriage in equal shares, is qualified by the insertion of what 
 is known as the hotchpot clause. This clause declares that no 
 child to whom any share has been appointed shall take any 
 share in the unappointed part without bringing his appointed 
 portion into hotchpot and accounting for the same. The object 
 of the clause is to prevent any child to whom an appointment 
 has been made from taking, in addition to the property ap- 
 pointed to him, as large a share in the residue which remains 
 unappointed as children to whom no appointment has been 
 made. Suppose, for example, there were a fund of 4,000/., 
 and there were three children of the marriage, and to one of 
 them, A., 1,000/. had been previously appointed by the father. 
 If the remainder of the fund, 3,000/., were left unappointed, 
 the children, including A., would, in the absence of a hotchpot 
 clause, be entitled to 1,000/. each, and A. would thus get 
 2,000/., while the other two children would only get 1,000/. 
 each. But under the operation of a hotchpot clause, A. would 
 have to bring into account the 1,000/. previously received by 
 him as a condition of his receiving a share of the remaining 
 3,000/., so that he would only get 333/. 65 . 8 d. of the unap- 
 pointed sum, which, together with the 1,000/. he had previously 
 received, would amount to 1,333/. 6s. 8d., or one-third of the 
 
 (z) An illegitimate child, living Ebbern v. Fowler, (1909) 1 Oh. 
 
 at the date of the settlement, 578, overruling Re Shaw, Robin- 
 
 may take under this limitation. son v. Shaw, (1894) 2 Ch. 573. 
 
 and failing 
 appointment 
 equally among 
 children. 
 
 (vi) The 
 
 hotchpot 
 
 clause. 
 
384 
 
 (vii) Trusts 
 in default of 
 issue. 
 
 Object of 
 trust of 
 wife’s 
 property. 
 
 Meaning of 
 words “ die 
 without 
 having been 
 married.” 
 
 BK. I., PT. V. SETTLEMENTS. 
 
 whole trust fund, a share equal to that received by each of the 
 other children ( a ) . 
 
 The last trust of the property declares its destination if there 
 be no child of the marriage who lives to attain a vested interest 
 under the previous trusts. With regard to the property brought 
 into the settlement by the husband, it is declared that it shall be 
 held upon trust for him absolutely. As to the property brought 
 in by the wife, it is declared that it shall be held upon trust 
 for such person or persons or purposes as she shall during cover- 
 ture by will, or when not under coverture by deed or will, 
 appoint, and in default of and subject to any such appoint- 
 ment, upon trust if she shall survive her husband for her abso- 
 lutely, but if she should die before him, upon trust for the 
 person or persons who, under the statutes for the distribution 
 of the effects of intestates, would, on her decease, have been 
 entitled thereto if she had died possessed thereof intestate, and 
 without leaving a husband or issue her surviving; such persons, 
 if more than one, to take as tenants in common in the shares 
 in which the same would have been divisible between them 
 under the same statutes. 
 
 The object of the lengthy trust declared in the event of the 
 wife dying during the coverture, is to exclude the husband 
 from taking the settled property on her death, unless the wife 
 thinks proper under the power conferred upon her to appoint 
 the property to him. For if it were simply given to her 
 absolutely, and she died before her husband, the husband, on 
 taking out administration, would be entitled to the whole of 
 the property. 
 
 The words “ died without leaving a husband or issue her 
 surviving ” have been used rather than the words “ died without 
 having been married,” for the latter expression has sometimes 
 been held, when taken with the context, to mean “not under 
 coverture at the time of her death,” with the result that, while 
 it is sufficient to prevent the husband from taking jure mariti 
 on the death of the wife, it does not necessarily prevent an 
 infant child of the wife from taking as her next of kin, in 
 
 (a) A hotchpot clause will not Alf reton (1883), 52 L. J. Ch. 745; 
 
 he implied in a settlement. He He Bacon (1889), 42 Oh. D. 559. 
 
FORM OF SETTLEMENT OF PERSONALTY. 
 
 385 
 
 which case, if the child died under twenty-one, the husband 
 would take as next of kin of the child, and thus defeat the in- 
 tention of the trust (5). There is, however, no rule that the 
 expression must be so construed, as was at one time thought, 
 and primd facie the words “without having been married” 
 exclude children (c). Again, the words “next of kin” should 
 not be used in substitution for the more lengthy expression, 
 “the persons entitled under the Statutes of Distribution”; 
 for “next of kin,” without reference to the Statutes of Dis- 
 tribution, may be held to include only the nearest blood rela- 
 tions in the same degree (d). 
 
 In some cases, e.g., where the wife brings into settlement 
 much more than the husband, and especially if, from the cir- 
 cumstances, she is likely to survive her husband, it is desirable 
 to reserve to her a power of appointment over at least a part 
 of the settled funds in favour of any future husband she may 
 marry and the children of any future marriage. The power 
 is nearly always inserted in infants’ settlements made by the 
 court. 
 
 After the clauses limiting the destination of the trust pro- 
 perty an advancement clause should also be inserted in the 
 settlement, in order to enable the trustees to raise a part of an 
 infant child’s vested or presumptive share and apply it for his 
 advancement, preferment, or benefit. The clause, as usually 
 framed, authorizes the trustees, with the consent in writing 
 of the parents during their joint lives, and of the survivor 
 during his or her life, and after the death of the survivor at the 
 discretion of the trustees, to raise any part not exceeding one- 
 half of the vested or expectant share of any child or issue of 
 
 ( b ) See Wilson v. Atkinson 
 (1864), 4 Do G. J. & S. 455; 
 Upton v. Brown (1879), 12 Ch. D. 
 872; Stoddart v. Savile, (1894) 1 
 Ch. 480; Re Mare, Mare v. 
 Ilowey, (1902) 2 Ch. 112. 
 
 (c) Re Brydone, Cobb v. Black- 
 burne, (1903) 2 Oh. 84. This case 
 
 G. — C. 
 
 overrules Upton v. Brown, Stod- 
 dart v. Savile, and Re Mare, 
 supra. 
 
 (d) Ilalton v. Foster (1868), 
 L. R. 3 Ch. App. 505; but see 
 Re Gray, Akers v. Sears, (1896) 
 
 2 Ch. 802. 
 
 1 
 
 C C 
 
 Power of 
 appointment 
 in favour of 
 second hus- 
 band, &e. 
 
 (viii) The 
 
 advancement 
 
 clause. 
 
386 
 
 BK. I., PT. Y. — SETTLEMENTS. 
 
 (ix) The 
 maintenance 
 and accumu- 
 lation clause. 
 
 23 & 24 Viet, 
 c. 145. 
 
 Construction 
 of section. 
 
 the marriage, and to apply the same for his advancement or 
 benefit as the trustees may think fit. 
 
 It was formerly usual to insert a further clause known as the 
 maintenance and accumulation clause, which generally em- 
 powered the trustees to apply the whole or part of the income 
 of the expectant share of any infant child for his maintenance 
 and education, and to accumulate the residue and add the accu- 
 mulations thereof to the capital of the share. A clause of this 
 kind was impliedly annexed to settlements executed after the 
 28th August, 1860, by s. 26 of Lord Cranworth’s Act. This 
 provision has, however, been superseded by s. 43 of the Con- 
 veyancing Act, 1881, which enacts that, where property is held 
 by trustees in trust for an infant, either for life or any greater 
 interest, and whether absolutely or contingently on his attain- 
 ing the age of’ twenty-one, or the occurrence of any event 
 before his attaining that age, the trustees may at their sole 
 discretion pay to the infant’s parent or guardian (if any), 
 or otherwise apply for or towards the infant’s maintenance, 
 education, or benefit, the income of that property, or any part 
 thereof, whether there is any other fund applicable to the same 
 purposes, or any person bound by law to provide for the in- 
 fant’s maintenance or education, or not. The trustees must 
 accumulate the residue of that income at compound interest for 
 the benefit of the person who ultimately becomes entitled to 
 the property (e); but the trustees may apply the accumula- 
 tions, or any part thereof, as if the same were income arising 
 in the then current year (/) . This provision may be excluded 
 or varied by the settlement, but applies to instruments coming 
 into operation before or after the commencement of the act (g). 
 
 It will be observed that the section applies, whether the 
 infant is entitled absolutely or contingently, but where the 
 infant is contingently entitled only, the income cannot be used 
 for maintenance under the section, unless, should the contin- 
 gency happen, the infant will be entitled to the accumulated 
 
 (e) See Re Bowlby, (1904) 2 
 Ch. 685. 
 
 (/) sub-s. (2); see, as to the 
 construction of this sub-section, 
 Re Humphreys, Humphreys v. 
 
 Levett, (1893) 3 Ch. 1. 
 
 ( g ) sub-ss. (3) and (4); see 
 Re Humphreys, Humphreys v. 
 Levett, (1893) 3 Ch. 1. 
 
FORM OF SETTLEMENT OF PERSONALTY. 
 
 ‘387 
 
 income, if not used for maintenance, as well as to the capital 
 itself (Ji)\ but the section applies whore property is limited 
 to children as a class on attaining twenty-one, and in the case 
 of personalty this is so, even though some member of the class 
 has acquired a vested interest by attaining majority, so that the 
 income derived from the shares of the children avIio are still 
 minors can be applied for their maintenance, and does not be- 
 long to the child who has acquired a vested interest (i ) . But 
 where realty is devised to a class contingently on attaining 
 twenty-one, the whole interest vests in the first devisee who 
 attains that age, and he takes the whole of' the income until 
 another share vests (1c). 
 
 Trustee Clauses. 
 
 We have now to consider the clauses which at one time were 
 almost always, and some of which may still occasionally be, 
 inserted in settlements with the object of conferring adminis- 
 trative powers on the trustees. The most usual of these clauses 
 are- — 
 
 The Investment Clause. 
 
 The Trustees’ Receipt Clause. 
 
 The power to compound and settle Claims. 
 
 The Indemnity and Reimbursement Clause. 
 
 The power to appoint New Trustees. 
 
 The Investment Clause. 
 
 By virtue of s. 1 of the Trustee Act, 1893, as read with 
 the Colonial Stock Act, 1900, and the Metropolis Water Act, 
 1902, trustees may, unless expressly forbidden (Z) by the trust 
 instrument, invest in any of the following securities: — - 
 
 (a) In any of the parliamentary stocks or public funds or 
 government securities of the United Kingdom. 
 
 (h) Re Dickson, Hill v. Grant 
 (1885), 29 Ch. D. 331. 
 
 ( i ) Re Holford, Ilolford v. 
 Holford, (1894) 3 Ch. 30. 
 
 (k) Re Averill, Salusbury v. 
 Buckle, (1898) 1 Ch. 523. 
 
 (Z) See Re Burke, (1908) 2 Ch. 
 
 248. 
 
 c c 2 
 
 The invest- 
 ment clause. 
 56 & 57 Viet, 
 c. 53. 
 
388 
 
 BK. I., PT. V. SETTLEMENTS. 
 
 (b) On real or heritable securities in Great Britain or 
 
 Ireland (m) . 
 
 (c) In the stock of the Bank of England or the Bank of 
 
 Ireland . 
 
 (d) In India Three and a Half and Three per Cent. Stock, 
 
 or in any other stock hereafter issued by the Secre- 
 tary of State in Council of India under the authority 
 of act of parliament and charged on the revenues 
 of India. 
 
 (dd) In any colonial stock registered in the United Kingdom 
 in accordance with the provisions of the Colonial 
 Stock Acts, 1877 to 1900 (n ) . 
 
 (e) In any securities the interest of' which is guaranteed by 
 
 parliament. 
 
 (f ) In consolidated stock created by the Metropolitan Board 
 
 of Works or the London County Council, or in deben- 
 ture stock created by the receiver for the Metropolitan 
 Police District. 
 
 (g) In the debenture or rent-charge or guaranteed or pre- 
 
 ference stock of any railway company in Great 
 Britain or Ireland, incorporated by special act of par- 
 liament, and having during each of the ten years last 
 past before the date of investment paid a dividend at 
 the rate of not less than three per cent, per annum on 
 its ordinary stock (o). 
 
 (h) In the stock of any railway or canal company in Great 
 
 Britain or Ireland whose undertaking is leased in 
 perpetuity, or for a term of not less than two hundred 
 
 (m) “ Real securities ” includes 
 certain kinds of leaseholds. (See 
 s. 5 of the act, post , p. 392.) The 
 expression also includes freehold 
 ground rents ( Vickery v. Evans 
 (1863), 3 N. R. 286); but it does 
 not authorize the purchase of 
 them, but only a loan on the 
 security of them; nor does it 
 authorize the purchase of any 
 property. 
 
 (n) Colonial Stock Act, 1900, 
 s. 2. 
 
 (o) By the Rules of the Supreme 
 Court, 1883, funds in court may be 
 invested in such stock, provided a 
 dividend has been paid during the 
 ten years next before the date of 
 investment, and securities autho- 
 rized for the investment of funds 
 in court are open to trustees. (See 
 par. (o), infra.) 
 
FORM OF SETTLEMENT OF PERSONALTY. 
 
 389 
 
 years at a fixed rental to any such railway company 
 as is mentioned in sub-s. (g), either alone or jointly 
 with any other railway company. 
 
 (i) In the debenture stock of any railway company in India 
 
 the interest on which is paid or guaranteed by the 
 Secretary of State in Council of India. 
 
 (j) In the “B.” annuities of the Eastern Bengal, the East 
 
 Indian, and the Scinde, Punjaub and Delhi Railways, 
 and any like annuities which may at any time here- 
 after be created on the purchase of any other railway 
 by the Secretary of State in Council of India and 
 charged on the revenues of India, and which may be 
 authorized by act of parliament to be accepted by 
 trustees in lieu of any stock held by them in the 
 purchased railway ; also in the deferred annuities 
 comprised in the register of holders of annuity, 
 class D., and annuities comprised in the register of 
 annuitants, class C., of the East Indian Railway 
 Company. 
 
 (k) In the stock of any railway company in India upon 
 
 which a fixed or minimum dividend in sterling is 
 paid or guaranteed by the Secretary of State in 
 Council of India, or upon the capital of which the 
 interest is so guaranteed. 
 
 (l) In the debenture, guaranteed or preference stock of any 
 
 company in Great Britain or Ireland established for 
 the supply of water for profit, and incorporated by 
 special act of parliament or by royal charter, and 
 having during each of the ten years last past before 
 the date of investment paid a dividend of not less 
 than five per cent, per annum on its ordinary stock. 
 
 (m) In nominal or inscribed stock issued or to be issued by 
 
 the corporation of any municipal borough having, 
 according to the returns of the last census prior to the 
 date of investment, a population exceeding 50,000, or 
 by any county council under the authority of any act 
 of parliament or provisional order. 
 
 (n) In nominal or inscribed stock issued or to be issued by 
 
 any commissioners incorporated by act of parliament 
 
390 
 
 BK. I., PT. V. — SETTLEMENTS. 
 
 for the purpose of supplying water, ,and having a 
 compulsory power of levying rates over an area 
 having, according to the returns of the last census 
 prior to the date of investment, a population ex- 
 ceeding 50,000, provided that during each of the ten 
 years last past before the date of investment the rates 
 levied by such commissioners shall not have exceeded 
 eighty per cent, of the amount authorized by law to 
 be levied. 
 
 (nn) In Metropolitan water stock issued by the Metropolitan 
 Water Board (ft ) . 
 
 (o) In any of the stocks, funds or securities for the time 
 beinff authorized for the investment of cash under the 
 
 control or subject to 
 
 (p) Metropolis Water Act, 1902, 
 s. 17 (4). 
 
 (q) The rule at present in force 
 on the subject (Order XXII. 
 r. 17) provides the following list 
 of investments: — 
 
 “ Two and a Half per Cent. 
 Consolidated Stock: 
 
 “ Consolidated Three Pounds 
 per Cent. Annuities: 
 
 “ Reduced Three Pounds per 
 Cent. Annuities: 
 
 “ Two Pounds Fifteen Shillings 
 per Cent. Annuities: 
 
 “ Two Pounds Ten Shillings per 
 Cent. Annuities: 
 
 “ Local Loans Stock under the 
 National Debt and Local Loans 
 Act, 1887: 
 
 “ Exchequer Bills : 
 
 “Bank Stock: 
 
 “ India Three and a Half per 
 Cent. Stock: 
 
 “ India Three per Cent. Stock: 
 
 “ India Two and a Half per 
 Cent. Stock: 
 
 the order of the court (q ) . 
 
 “ Indian guaranteed railway 
 stocks or shares, provided in each 
 case that such stocks or shares 
 shall not be liable to be redeemed 
 within a period of fifteen years 
 from the date of investment: 
 
 “ Stocks of Colonial Govern- 
 ments guaranteed by the Imperial 
 Government, or in respect of 
 which the provisions of the 
 Colonial Stock Act, 1900, and of 
 s. 2 (2) of the Trustee Act, 1893, 
 are for the time being complied 
 with: 
 
 “ Mortgage of freehold and 
 copyhold estates respectively in 
 England and Wales: 
 
 “ Metropolitan Consolidated 
 Stock, Three Pounds Ten Shillings 
 per Cent.: 
 
 “ Three per Cent. Metropolitan 
 Consolidated Stock: 
 
 “ Two and a Half per Cent. 
 Metropolitan Consolidated Stock: 
 “ Two and a Half per Cent. 
 London County Consolidated 
 Stock: 
 
FORM OF SETTLEMENT OF PERSONALTY. 
 
 Tlio section also gives the trustees power to vary these in- 
 vestments from time to time. 
 
 By s. 2 of the act (as amended by s. 2 of the Colonial Stock 
 Act, 1900), a trustee may invest in any of the stocks, funds, 
 shares, or securities mentioned or referred to in the act, not- 
 withstanding the same are redeemable, and that the price 
 exceeds the redemption value; but may not purchase, at a price 
 exceeding its redemption value, any stock mentioned or referred 
 to in sub-ss. (dd), (g), (i), (k), (1) and (nr), which is liable to be 
 redeemed within fifteen years of the date of purchase at par or 
 at some other fixed rate, or purchase any such stock as is men- 
 tioned or referred to in the sub-sections aforesaid, which is 
 liable to be redeemed at par or at some other fixed rate, at a 
 price exceeding fifteen per centum above par or such other fixed 
 rate. 
 
 By s. 3 the statutory powers of investment are exercisable 
 
 “ Three per Cent. London 
 County Consolidated Stock: 
 
 “ London County Council Three 
 and a Half per Cent. Stock: 
 
 “ Inscribed Two and a Half per 
 Cent. Debenture Stock, issued by 
 the Corporation of London, and 
 secured by a trust deed dated the 
 24th June, 1897 : 
 
 “ Inscribed Three per Cent. 
 Debenture Stock, issued by the 
 Corporation of London, and se- 
 cured by supplemental trust deed 
 dated June 1st, 1905: 
 
 “ Debenture, preference, guar- 
 anteed, or rent-charge stocks of 
 railways in Great Britain or Ire- 
 land having for ten years next 
 before the date of investment paid 
 a dividend on ordinary stock or 
 shares : 
 
 “ Debenture, preference, guar- 
 anteed, or rent-charge stocks of 
 railways in Great Britain or Ire- 
 
 land guaranteed by railway com- 
 panies owning railways in Great 
 Britain or Ireland which have for 
 ten years next before the date of 
 investment paid a dividend on 
 ordinary stock or shares: 
 
 “ Nominal debentures or nomi- 
 nal debenture stock under the 
 Local Loans Act, 1875, or under 
 the Isle of Man Loans Act, 1880, 
 provided in each case that such 
 debentures or stock shall not be 
 liable to be redeemed within a 
 period of fifteen years from the 
 date of investment: 
 
 “ Guaranteed land stock, issued 
 under the act 54 & 55 Viet. c. 48: 
 “ Guaranteed Two and Three- 
 quarters per Cent. Stock, issued 
 under the act 3 Edw. 7, c. 37, and 
 “ Guaranteed Three per Cent. 
 Stock, issued under the act 
 9 Edw. 7, c. 42.” 
 
 391 
 
 Power to 
 vary. 
 
 Redeemable 
 
 stocks. 
 
 Investment 
 to be at] 
 discretion 
 of trustees. 
 
392 
 
 Application 
 of the act. 
 
 Enlargement 
 of express 
 powers of 
 investment. 
 
 Express 
 
 investment 
 
 clause. 
 
 The receipt 
 clause. 
 
 56 & 57 Viet, 
 c. 53, s. 20. 
 
 BK. I., PT. V. — SETTLEMENTS. 
 
 at the discretion of the trustees, but subject to any consent 
 required by the trust instrument. 
 
 And by s. 4 they are applicable as well to trusts created before 
 as after the act, and are in addition to the powers conferred 
 by the instrument creating the trust; it has therefore been 
 held that trustees whose trust funds were invested under the 
 authority of the trust instrument at the time when the statu- 
 tory enactments came into operation were by virtue of the act 
 entitled to shift the investment and invest the trust funds in 
 one of the statutory investments (r) . 
 
 By s. 5 of the act the power to invest in real securities au- 
 thorizes an investment in a mortgage of property held for an 
 unexpired term of not less than two hundred years, and not 
 subject to any reservation of rent greater than Is. per annum, 
 or to any right of redemption, or to any condition for re-entry, 
 except for non-payment of rent. 
 
 In consequence of these provisions it is now not necessary to 
 insert an investment clause in the settlement, but it is very 
 common to do so, since it is convenient for lay trustees 
 to have their powers clearly stated in the trust instrument, 
 and even more extensive powers than those conferred by the 
 statute are often given. 
 
 The Receipt Clause. 
 
 A receipt clause was f ormerly inserted in settlements, because 
 a purchaser from a trustee, in the absence of an express power 
 to the trustee to give receipts, was, generally speaking, bound 
 to see to the application of the money paid by him (s). Power 
 to give receipts, however, is now conferred by s. 20 of the Trus- 
 tee Act. 1893, which provides as follows: — The receipt in 
 writing of any trustees or trustee for any money, securities, 
 or other personal property or effects, payable, transferable, or 
 deliverable to them or him under any trust or power, shall be a 
 sufficient discharge for the same, and shall effectually exonerate 
 
 (r) Hume v. Lopes , (1892) (s) See Elliot v. Merryman 
 
 A. C. 112. (1740), 2 Wh. & Tud. L. C. Eq. 
 
 8th ed. vol. ii. 913 and notes. 
 
FORM OF SETTLEMENT OF PERSONALTY. 
 
 393 
 
 the person paying, transferring, or delivering the same from 
 seeing to the application, or being answerable for any loss or 
 misapplication thereof . This section applies to trusts created 
 either before or after the commencement of the act. In view 
 of this provision, it is now unnecessary to insert any receipt 
 clause in a settlement. 
 
 The Power to Compound and Settle Claims. 
 
 A power to compound and settle claims was generally in- 
 serted in settlements, but may now be omitted in reliance on 
 s. 21 of the Trustee Act, 1893. This section empowers an ex- 
 ecutor or administrator, or two or more trustees acting together, 
 or a sole acting trustee, where the trust instrument authorizes 
 a sole trustee to exercise the trusts and powers thereof 1 , to accept 
 any composition or any security, real or personal, for any debt 
 or property claimed, and to allow time for payment of any debt, 
 and to compromise, compound, abandon, submit to arbitration, 
 or otherwise settle any debt, account, claim, or thing whatever 
 relating to the testator’s or intestate’s estate, or to the trust, 
 and to execute any such instruments, &c., as may seem neces- 
 sary, without being responsible for ( any loss. The section ap- 
 plies only if and as far as a contrary intention is not expressed 
 in the instrument creating the trust, but it applies to executor- 
 ships, administratorships, and trusts constituted or created 
 either before or after the commencement of the act. 
 
 The Indemnity and Re-imbursement Clause. 
 
 The insertion of an indemnity clause is generally unneces- 
 sary : the Trustee Act, 1893, s. 24, implies such a clause in 
 all deeds, wills, or other instruments creating a trust ( t ). Occa- 
 sionally a very wide indemnity clause is inserted under which 
 the trustee is protected from ,every default, &c. by a co-trustee, 
 except when he actually colludes with him; but as such a clause 
 has the effect of relieving one trustee from being obliged to 
 
 The power to 
 compound and 
 settle claims. 
 06 & 57 Viet, 
 c. 53, s. 21. 
 
 The indem- 
 nity and 
 re-imburse- 
 ment clause. 
 56 & 57 Viet, 
 c. 53, s. 24. 
 
 (t) And see Matthews v. Buggies Brise, (1911) 1 Ch. 194. 
 
894 
 
 BK. I., PT. V. SETTLEMENTS. 
 
 look after liis co-trustee, in the interests of 1 the cestuis que 
 trustent it should not be lightly inserted (u). 
 
 Wten ti-iist ee A provision should be inserted in the settlement authorizing 
 
 imbursement a trustee who is a solicitor, and who it is intended shall act as 
 
 clamy solicitor to the trust, to charge for .professional services fust as if 
 
 required. m ° J 
 
 he had not been appointed a trustee; for in the absence of such 
 a power lie will only be allowed costs out of pocket (a?). The 
 clause empowering a solicitor trustee to retain his professional 
 costs as usually framed does not authorize him to charge for 
 things which a trustee ought to have done without employing a 
 solicitor, e.g., attending at a bank to make transfers and similar 
 work (y ) . But it may be frameld in terms wide enough for 
 this purpose ( 0 ). It was established, however, by the case of 
 Cradoclc v. Pipe f (a) , that even in the absence of any such 
 clause, where one of several trustees is a solicitor, and an action 
 is brought against the trustees, the solicitor trustee may be 
 employed by his co-trustees to defend the action, and may 
 recover his profit costs from the trust estate. And this has 
 been extended even to friendly proceedings on behalf of 
 himself and his co-trustees (&). Further, where a trustee soli- 
 citor is a member of a firm, he can employ his partner to do 
 legal work for the trust, and the latter can make the usual profit 
 charges, provided that the trustee partner does not share in 
 them (c) . 
 
 Appointment of New Trustees. 
 
 Statutory- 
 power to 
 appoint new 
 trustees : 
 
 56 & 57 Viet, 
 c. 53, s. 10. 
 
 It is now unnecessary to insert an express power to appoint 
 new trustees; for s. 10 of the Trustee Act, 1893, incorporates 
 
 (u) See Wilkins v. Hogg 
 (1861), 8 Jur. N. S. 25; Pass v. 
 Dundas (1880), 43 L. T. 665. 
 
 (cc) Moore v. Frowd (1837), 3 
 My. & Cr. 45; see Hart, Digest 
 of the Daw of Trusts, 269 et seq. 
 
 ( y ) Harbin v. Darby (1860), 28 
 Beav. 325; Be Chappie, Newton 
 v. Chapman (1884), 27 Ch. D. 584. 
 
 (z) Be Ames , Ames v. Taylor 
 (1883), 25 Ch. D. 72; compare 
 
 Clarkson v. Bobinson , (1900) 2 
 Ch. 722. A precedent of such a 
 clause approved by the Law So- 
 ciety will be found in Law Notes, 
 vol. xxi. p. 234. 
 
 (а) (1850), 1 Hall & Tw. 617; 
 1 Mac. & G. 664. 
 
 (б) Be Corsellis, Lawton v. 
 Elwes (1887), 34 Ch. D. 675. 
 
 (c) Clack v. Carton (1861), 30 
 L. J. Ch. 639. 
 
FORM OF SETTLEMENT OF PERSONALTY. 
 
 395 
 
 into instruments creating trusts, dated either before or after the 
 commencement of the act (unless the provisions thereof are 
 excluded by expression of contrary intention), ample powers 
 for the purpose. 
 
 By this provision, where a trustee (either original or substi- 
 tuted, and whether appointed by a court or otherwise) 
 
 Is dead, or 
 
 Remains out of the United Kingdom for more than 
 twelve months, or 
 
 Desires to be discharged from all or any of the trusts 
 or powers, or 
 Refuses to act, or 
 Is unfit to act, or 
 Is incapable of acting, 
 
 then — 
 
 1. The person or persons nominated for the purpose of 
 
 appointing new trustees by the instrument creating 
 the trust; 
 
 or (if there is no such person, or no such person 
 able and willing to act), the ; n — 
 
 2. The surviving or continuing trustees or trustee for the 
 
 time being (<?); or 
 
 3. The personal representatives of the last surviving or con- 
 
 tinuing trustee (e), 
 
 may by writing appoint another person or other persons to be a 
 trustee or trustees. 
 
 Under the ordinary express power to appoint new trustees 
 the number of trustees could not be increased. By sub-s. 2 
 of s. 10 of the Trustee Act, 1893, however, on the appointment 
 of a new trustee, (a) the number of trustees may be increased; 
 and (b) a separate set of trustees may be appointed for any 
 part of the trust property held on trusts distinct from those 
 
 ( d ) A trustee who refuses to act 
 or has made up his mind to retire 
 is a “ continuing trustee ” if will- 
 ing to act. See sub-s. (4), infra; 
 Re Glenny and Hartley (1884), 25 
 Ch. D. 611; Re Norris (1884), 27 
 
 Ch. D. 333; Coates to Parsons 
 (1886), 34 Ch. D. 370. 
 
 (e) This includes the executor 
 or administrator of a “ sole ” trus- 
 tee: Re Shafto (1885), 29 Ch. D. 
 247. 
 
 when 
 
 exercisable ; 
 
 by whom 
 exercisable. 
 
 Increase in 
 number of 
 trustees. 
 
 Separate sets 
 of trustees. 
 
396 
 
 BK. I., PT. V. SETTLEMENTS. 
 
 Decrease in 
 number of 
 trustees. 
 
 Powers of 
 new trustee. 
 
 Case of trus- 
 tee dying 
 before 
 testator. 
 
 relating to any other part or parts of the trust property, not- 
 withstanding that no new trustees or trustee are or is to be 
 appointed for other parts of the trust property, and any existing 
 trustee may be appointed or remlain one of such separate set of 
 trustees; or if only one trustee was originally appointed, then 
 one separate trustee may he so appointed for the first mentioned 
 part; and (c) it shall not he obligatory to appoint more than 
 one trustee where only one trustee was originally appointed, 
 or to fill up the original number of' trustees where more than 
 two trustees were originally appointed; but except where only 
 one trustee was originally appointed, a trustee shall not be dis- 
 charged under this section from his trust unless there will be 
 at least, tAvo trustees to perform 1 the trust, and in determining 
 the number of trustees for this purpose, a custodian trustee 
 (who is appointed under s. 4 of the Public Trustee Act, 1906) 
 is not to be reckoned as a trustee. For example, if there were 
 four trustees originally appointed, and three died, the survivor, 
 in appointing new trustees, could reduce the number, but he 
 would have to leave at least tAvo managing trustees to carry 
 out the trust; so that if' he wished to retire, he could not appoint 
 fewer than two new trustees, in order to be himself discharged, 
 unless he appointed the Public Trustee, as he might except 
 where the settlement contained a direction to the contrary (/) . 
 
 Sub-s. 3 of the act also provides that every neAv trustee so 
 appointed, as well bef ore as after all the trust property becomes 
 vested in him, shall have the same poAvers, authorities and dis- 
 cretions, and may in all respects act as if he had originally 
 been appointed by the instrument, if any, creating 1 the trust. 
 
 Sub-s. 4 provides that the provisions of this section relative 
 to a trustee who is dead include the case of a person nominated 
 trustee in a Avill but dyijig before the testator, and those rela- 
 tive to a continuing trustee include a refusing or retiring trus- 
 tee if Avilling to act in the execution of the provisions of this 
 section. Supposing, hoAvever, A., by his Avill, appoints B. and 
 C. his trustees, both of Avhom predecease him, the personal 
 representative of the survivor of B. and C. cannot appoint a 
 new trustee ( g ) . 
 
 (/) Public Trustee Act, 1906, ( g ) Nicholson v. Field, (1893) 
 
 s. 5. 2 Ch. 511. 
 
FORM OF SETTLEMENT OF PERSONALTY. 
 
 It lias been held that, owing to the wording of the statutory 
 power , the appointor cannot appoint himself to be a trustee (h), 
 though he might be able ,to do so under an express power con- 
 ferred by the settlement. Such a power, however, is fiduciary, 
 and the appointor ought not to appoint himself save in excep- 
 tional circumstances (i) ; nor ought he to appoint his solicitor 
 if there would be any danger of a conflict between his duty as 
 solicitor and his duty as trustee, but if he does appoint his 
 solicitor in good faith, the appointment will not be set aside by 
 the court (Ic ) . 
 
 It is provided by s. 8 of the Conveyancing Act, 1911, that 
 until the appointment of new trustees the personal representa- 
 tives or representative for the time being of a sole trustee, or 
 where there were two or more trustees then of the last surviving 
 or continuing trustee, shall be capable of exercising or per- 
 forming any power or trust which was given to or capable of 
 being exercised by the sole or last surviving or continuing 
 trustee. This provision takes effect subject to any direction 
 to the contrary in the trust instrument, and applies only to 
 trusts constituted after or created by instruments coming into 
 operation after 1881, and does not apply to land of copyhold 
 or customary tenure vested in the tenant on the court rolls on 
 trust (l). 
 
 Formerly, a trustee could not retire from the trust without 
 appointing a successor, except under a power to that effect 
 specially given by the trust instrument, or by the consent of 
 the eestuis que trustent, if they were sui juris , or by the au- 
 thority of the court. But now, by s. 11 of the Trustee Act, 
 1893, where there are more than two trustees, if one of' them 
 by deed declares that he is desirous of being discharged from 
 the trust, and if his co-trustees and such other person, if any, 
 as is empowered to appoint trustees, by deed consent to the 
 
 ( h ) Re Sampson , (1906) 1 Ch. 
 435. 
 
 (i) Re Skeat's Settlement 
 (1889), 42 Ch. D. 522; Re Newen, 
 Newen v. Barnes , (1894) 2 Ch. 
 
 297; compare Montefiore v. Gue- 
 dalla, (1903) 2 Ch. 723. 
 
 ( k ) Payne v. Stamford, (1896) 
 1 Ch. 288. 
 
 ( l ) Conveyancing Act, 1911, s. 8. 
 
 397 
 
 Power to 
 appoint new 
 trustees a 
 fiduciary 
 power. 
 
 Personal 
 representa- 
 tives may 
 act until 
 new trustee- 
 appointed. 
 
 Retirement 
 of trustees. 
 
 Statutory 
 power of 
 retirement. 
 
 56 & 57 Viet, 
 c. 53, s. 11. 
 
398 
 
 BK. I., PT. V. SETTLEMENTS. 
 
 Property may 
 be vested in 
 new or con- 
 tinuing 1 
 trustees, by 
 declaration ; 
 
 56 & 57 Viet, 
 c. 53, s. 12 ; 
 
 on retirement 
 of trustee ; 
 
 except in 
 certain cases 
 when transfer 
 necessary. 
 
 discharge of the trustee and to the vesting in the co-trustees 
 alone of the trust property, then the trustee desirous of being 
 discharged shall be deemed to have retired from the trust and 
 shall by the deed be discharged therefrom under this act, with- 
 out any new trustee being appointed in his place. Any assur- 
 ance or thing requisite for vesting the trust property in the 
 continuing trustees alone must be executed or done. This 
 provision applies to trusts created either before or after the 
 commencement of the act, but only so far as not excluded by 
 the expression of contrary intention in the trust instrument, 
 and subject to any provisions therein contained. Where the 
 Public Trustee has been appointed a trustee, a co-trustee may 
 retire under s. 11, n o twiths tanding that there are not more 
 than two trustees, and without such consents as are required 
 by that section (m) . 
 
 The vesting of the trust property in the new or continuing 
 trustees may be, by virtue of s. 12 of the Trustee Act, 1893, 
 effected by a declaration by the appointor in the deed (w) by 
 which the new trustee is appointed, to the effect that any estate 
 or interest in the trust property, as well as the right to recover 
 any debt or other thing in action, the subject of 1 the trust, 
 shall vest in the persons who by virtue of the deed become 
 and are the trustees for performing the trust. When such a 
 declaration is made it will operate, without any conveyance 
 or assignment, to vest the trust property in the persons who 
 become the trustees as joint tenants. 
 
 In the case of a trustee retiring under s. 11 of' the act, the 
 declaration must be made by the retiring and continuing trus- 
 tees, and the person, if ,a,ny, empowered to appoint trustees, 
 and will without any conveyance .or assignment operate to vest 
 the trust property in the continuing trustees alone as joint 
 tenants (o) . 
 
 The section, however, does not extend (a) to any legal estate 
 
 (m) Public Trustee Act, 1906, 
 s. 5 (2). 
 
 ( n ) Under s. 10 the appoint- 
 ment of a new trustee need only 
 be by writing; but if it is wished 
 
 to take advantage of a declaration 
 vesting the trust property in him 
 under this section it must be by 
 deed. 
 
 (o) sub-s. (2). 
 
FORM OF SETTLEMENT OF PERSONALTY. 
 
 399 
 
 or interest in copyhold or customary land; or (b) to land con- 
 veyed by way of mortgage for securing money subject to the 
 trust; or (c) to shares or stocks, annuity or property, only 
 transferable in books kept by a company or other body, or in 
 manner directed by act of parliament (p), so that these species 
 of property must be vested in the trustees in the ordinary way. 
 The section only applies to deeds of appointment of new 
 trustees executed after the 31st December, 1881 (q). 
 
 In ordinary oases there seems to be little advantage in using 
 the declaration, instead of the usual conveyance or assignment, 
 to vest the property in the trustees. But in those cases where 
 it is doubtful who has the legal estate, or the legal estate is 
 vested in a person whose concurrence cannot by reason of his 
 absence or incapacity be obtained, the declaration enables the 
 person appointing the new trustees to vest the trust property in 
 them (save in the excepted oases) without the inconvenience and 
 expense of applying to the court for a vesting order under 
 the act. 
 
 When vesting 
 
 declaration 
 
 useful. 
 
 Settlement of a Life Policy. 
 
 Before leaving the subject of settlements of personal pro- y P ecial 
 perty, we may mention that a kind of property which is often usually 
 brought into settlement by the intended husband is a policy g^ttie^ntof 
 of insurance. He insures his life, and then assigns the policy a life policy, 
 and the sum assured to the trustees, who are directed to hold 
 them on the trusts expressed. A settlement of this kind re- 
 quires the following clauses in addition to the ordinary pro- 
 visions of a settlement of personalty. The husband covenants 
 not to do any act to render the policy void, to effect a new 
 policy in case it should become void by any means, to duly pay 
 the premiums, and to deliver the receipts therefor to the trustees 
 upon demand. Power is also given to the trustees, in the event 
 of the husband making default in paying any premium, to 
 apply any part of the trust fund in payment of it; but the 
 settlement should expressly provide that they shall not be re- 
 sponsible for any lapse of the policy which may occur. It is 
 sometimes stipulated that the trustees may, at the request of the 
 
 (; p ) sub-s. (3). 
 
 ( q ) sub-s. (5). 
 
400 BK. I., PT. V. SETTLEMENTS. 
 
 husband, instead of treating any bonus declared on the policy 
 as capital, authorize the husband to take advantage of the option 
 usually given to the assured by the insurance company, and 
 have the bonus applied in the reduction of the amount of the 
 premiums. Powers are sometimes given enabling the policy 
 to be surrendered or redeemed by the husband on his paying 
 to the trustees a stipulated sum, which is to be subject, when 
 paid, to the trusts of the settlement. 
 
 V. — FORM OF SETTLEMENT OF REALTY. 
 
 Species of 
 settlement of 
 realty. 
 
 Settlement 
 on trust for 
 sale. 
 
 A settlement of realty may take either one of two forms — a 
 settlement upon trust for sale, or a strict settlement. 
 
 The former is resorted to when land is held as an investment, 
 e.ff. y building estates, shop property, and the like. It is sub- 
 stantially a settlement of personalty, for the trust to sell, under 
 the doctrine of equitable conversion, operates to impress the 
 land with the character of personalty, and the ordinary clauses 
 and provisions of a settlement of 1 personalty are applicable. 
 The land is conveyed to the trustees in fee simple to the use of 
 the settlor in fee simple until the celebration of the intended 
 marriage, and afterwards to the use of the trustees in fee simple 
 upon trust, at the request in writing of the husband and wife 
 during their joint lives and afterwards of the survivor, and 
 after the death of the survivor at the discretion of the trustees, 
 to sell. This prevents the land from being sold, unless the 
 husband and wife during their lives, or the survivor after the 
 death of one of' them, desire it. On the other hand, when the 
 time comes for dividing the property among the children, all 
 danger of an action for partition will be avoided. The trusts 
 declared of the proceeds of sale are the same as those in a 
 settlement of personalty, and should be declared by a separate 
 deed (the settlement) from that .conveying the property upon 
 trust for sale, since the adoption of this plan prevents the 
 settlement from becoming one of the documents of title to the 
 land. A further reference to this form of investment of land 
 will be made when we come to consider s. 63 of the Settled 
 Land Act, 1882. 
 
FORM OF SETTLEMENT OF REALTY. 
 
 401 
 
 A strict settlement is resorted to in the case of family estates, 
 and its object is just the opposite, being to settle land in specie 
 in such a manner as to prevent it from being sold, and to keep 
 it in the eldest male branch of the family of the settlor for as 
 long a period as the law permits, while ait the same time making 
 adequate provision for the wife and younger children, and this 
 form of settlement it is that we have now to consider. A strict 
 settlement was at one time a very long and complicated instru- 
 ment, and though in consequence of the Conveyancing Acts, 
 of the Settled Land Acts, and of the Trustee Acts, it is now 
 very much abbreviated and simplified, even at the present day 
 it must necessarily run to a considerable length. All that will 
 be attempted here will be to give a general analysis of such a 
 settlement, and to draw attention to some of the points which 
 arise in connection with its limitations, provisions, and clauses; 
 and then to the leading provisions of the Settled Land Acts, 
 1882—1890, by which the effect of such a settlement has been 
 so materially modified. 
 
 The Form of a Strict Settlement. 
 
 With reference to the preliminary parts of the settlement, we 
 need add nothing to what we have already said with regard to 
 settlements generally and to other deeds, but it may be men- 
 tioned that in old settlements it will generally be found that 
 there are four sets of trustees: two or more trustees to exercise 
 the general powers and trusts of the settlement; two trustees 
 of the “pin-money” term; two trustees of the “jointure” 
 term, and two more trustees of the “portions” term. The 
 reason for having several sets of trustees was the danger of a 
 merger occurring, by two or more terms, or a term and an 
 estate of freehold limited in immediate succession, becoming 
 vested in the same person. But this danger has been removed 
 by sub-s. 4 of the 25th section of the Judicature Act, 1873, 
 which provides that there shall not be any merger by operation 
 of law only of an estate, the beneficial interest in which would 
 not be deemed to be merged or extinguished in equity; and 
 since the wife’s pin-money and jointure are no longer secured 
 by terms of years, it is now the practice to have only one set 
 
 G. — C. D D 
 
 Strict 
 
 settlements. 
 
 F ormerly 
 several sets 
 of trustees : 
 
 but now only 
 one. 
 
402 
 
 BK. I., PT. V. SETTLEMENTS. 
 
 Usual limita- 
 tions of a 
 strict settle- 
 ment. 
 
 (i) To trustees 
 for settlor 
 till marriage ; 
 
 (ii) after the 
 marriage for 
 pin-money ; 
 
 (iii) to hus- 
 band for life ; 
 
 (iv) for join- 
 ture for wife ; 
 
 (v) to the 
 trustees for 
 portions ; 
 
 (vi) to sons in 
 tail male ; 
 
 (vii) to sons in 
 tail general ; 
 (viii) to 
 daughters, 
 with cross - 
 remainders ; 
 (ix) to heirs 
 of settlor ; 
 
 trusts of 
 portions term; 
 powers to the 
 tenant for 
 life, &c. 
 
 of trustees; but these, as a rule, should be at least three in 
 number; for otherwise, on the death of one of them, the 
 number will be reduced below two, the minimum number 
 which, as we shall hereafter see, is contemplated by the Settled 
 Land Act, 1882. 
 
 We now proceed to analyse the usual limitations and the 
 subsequent clauses and provisions. 
 
 Assuming that the settlement is made in contemplation of 
 marriage, that the property which is to be settled comes from 
 the intended husband, and that he is seised of a legal estate 
 in fee simple, the first limitation will be unto the trustees in fee 
 simple, to the use of the settlor in fee simple until the intended 
 marriage. Upon this limitation we need add nothing to what 
 we have said with regard to the corresponding limitation in 
 a settlement of personalty (r). 
 
 The limitations then proceed as follows: — 
 
 After the solemnization of the marriage to the use that the 
 wife of the settlor may receive a yearly rent-charge for pin- 
 money, and subject thereto to the use of the husband for life; 
 remainder to the use that the wife shall receive a yearly rent- 
 charge for her jointure; remainder to the use of the trustees for 
 500 or 1,000 years (the portions term); remainder to the use of 
 the sons of the marriage successively in order of seniority in 
 tail male ; remainder to the use of the sons successively in 
 order of seniority in tail general; remainder to use of the 
 daughters of the marriage as tenants in common in tail, with 
 cross-remainders between them; and remainder, to the use of 
 the settlor in fee simple. 
 
 Following the limitations comes the declaration of the trusts 
 upon which the portions term is to be held, with hotchpot, 
 advancement and maintenance clauses, and then will follow 
 the various powers which are intended to be exercised by the 
 tenant for life, such as powers to jointure a future wife, to 
 charge portions for the children of a future marriage, and any 
 additions to the powers conferred on him by the Settled Land 
 Acts which may be desired. Then will follow the nomination 
 of the person to have the power of appointing new trustees, 
 
 (r) See above, p. 381. 
 
FORM OF SETTLEMENT OF REALTY. 
 
 403 
 
 and additional powers and indemnities to the trustees, if any 
 are needed. 
 
 Considering these provisions more in detail, we have said 
 that formerly the wife’s pin-money, i.e., the annual sum given 
 to her during the joint lives of herself and her husband for 
 her private expenses, was secured by limiting a term of 99 
 years to trustees prior to the husband’s life estate. The trusts 
 of this term were declared to be to raise tan annuity of' a specified 
 amount during the joint lives of the husband and wife, and to 
 pay it to the wife as pin-money, and without power of anticipa- 
 tion. It was the practice to state that this annuity was to be 
 deemed “accruing from day to day.” But the necessity of 
 expressly stating that it should be so payable was removed by 
 the Apportionment Act, 1870, which provides that, inter alia , 
 all annuities and other periodical payments in the nature of 
 income shall, like interest on money lent, be considered as 
 accruing from day to day, and be apportionable in respect of 
 time accordingly. 
 
 Instead of limiting a term to trustees to secure the payment 
 of the pin-money, it is now the practice to give the wife a 
 rent-charge during the joint lives of herself and her husband, 
 annexing to it a proviso restraining her from anticipating the 
 income. For the limitation of such a charge involves much less 
 complication than the limitation of a term according to the old 
 practice; and since the Conveyancing Act, 1881, the grantee 
 of a rent-charge is endowed with ample powers for procuring 
 the payment of the charge. 
 
 For by s. 44 of that act, as read with s. 6 of the Con- 
 veyancing Act, 1911, it is provided, that any person 
 entitled under an instrument coming into operation after 1881 
 to receive any annual sum out of land, whether charged on 
 the land or on the income of the land, and whether by way 
 of rent-charge or otherwise not being rent incident to a 
 reversion, shall have, subject to all prior interests, a power to 
 distrain on the land for the charge, whenever it is in arrear for 
 twenty-one days; and if the sum is in arrear for forty days, 
 then (although no legal demand has been made for payment) 
 such person may enter into possession of the land and take the 
 
 d d 2 
 
 Pin-money 
 formerly 
 secured by 
 creation of 
 term ; 
 
 but now 
 secured by 
 rent -charge. 
 
 44 & 45 Viet, 
 c. 41. 
 
 Remedies for 
 unpaid rent- 
 charge. 
 
404 
 
 These reme- 
 dies not 
 obnoxious to 
 perpetuity 
 rule. 
 
 The life estate 
 of the settlor. 
 
 Usually given 
 without 
 impeachment 
 for waste. 
 
 BK. I., PT. V. SETTLEMENTS. 
 
 income thereof until thereby or otherwise the annual sum and 
 all the arrears thereof due at the time of his entry, or after- 
 wards becoming due during his continuance in possession, and 
 all costs and expenses occasioned by non-payment, are fully 
 paid; and such possession, when taken, will be without im- 
 peachment of waste. The same section gives the person 
 entitled to the rent-charge further power, when the annual sum 
 is forty days in arrear, whether taking possession or not, by 
 deed to demise the land charged or any part thereof to trustees 
 for a term of years, with or without impeachment of waste, 
 upon trust (a) by mortgage; (b) by sale; (c) by demise for 
 all or any part of the term; or (d) by receipt of the income of 
 the land; or (e) by all or any of the above means; or (f) by 
 any other reasonable means, to raise and pay the annual sum 
 and arrears and the costs and expenses incurred by the non- 
 payment thereof, including the costs of the preparation and 
 execution of the deed of demise, and the costs of the trusts 
 of that deed. 
 
 The Act of 1911 specially declares that the rule of law relating 
 to perpetuities does not apply to these powers and remedies, 
 and that the same are exerciseable whether the annual sum is 
 created under a power contained in an instrument coming into 
 operation on or after the 1st January, 1882, and takes effect 
 unless the instrument creating the powers under which the 
 annual sum is created otherwise directs. 
 
 With reference to the life estate given to the husband, we 
 shall see, when we come to consider the provisions of the 
 Settled Land Acts, what extensive powers of dealing with the 
 property those acts confer on him. The estate of the husband 
 is usually given to him “without impeachment of waste.” 
 This will enable him to commit all kinds of waste, except such 
 as a court of equity would restrain (s). If the husband as 
 tenant for life is left impeachable for waste, he will not be 
 at liberty to cut down timber, except (i) for thinning pur- 
 poses, or (ii) for the repair of houses or fences, and implements 
 of husbandry; or (iii) when the estate is a “timber" 
 
 (s) See Judicature Act, 1873, s. 25 (3). 
 
FORM OF SETTLEMENT OF REALTY. 
 
 405 
 
 estate (tj; or (iv) under sect. 35 of the Settled Land Act, 
 1882. If, however, the tenant for life is “without impeach- 
 ment for waste,” he may cut down timber (except ornamental 
 timber (w) ) and convert it to his own use. As to the working 
 of mines, he may not, if impeachable for waste, open new 
 mines, but he may work any already open, and may make 
 mining leases under the Settled Land Acts. He is generally, 
 though impeachable, not liable for mere permissive waste, such 
 as allowing the premises to fall into disrepair, the Statute of 
 Marlbridge not applying (a?), unless his estate is made subject 
 to a condition to keep them i n repair (y) . So that if it is the 
 intention that he should keep the premises in repajr, a clause 
 to that effect should ho inserted in the settlement. 
 
 Even though the interest of the tenant for life under the 
 settlement he equitable merely, the court may make an order 
 that he be let into possession and give him the custodJy of 
 the title deeds, if he make out a piroper case, but he is not en- 
 titled to the order as a matter of course (z). 
 
 After the life estate to the husband comes the limitation 
 to the wife of a yearly rent-charge for her jointure. This, 
 like her pin-money, was formerly secured by vesting in trus- 
 tees a term of 200 years, which was limited so as to come 
 into effect after the husband’s life estate, as the jointure would 
 not require to be raised till that estate had determined by his 
 death; a power of entry as well as a power of distress being 
 conferred in the event of the jointure being in arrear. The 
 reason for giving this additional security was, that the power of 
 distress could not be exercised over land which was in the 
 occupation of persons holding under leases created before the 
 settlement or created subsequently under powers conferred on 
 the tenant for life; for the title of such lessees was paramount 
 
 If impeach- 
 able for waste 
 may not cut 
 timber. 
 
 As to mines. 
 
 As to repairs, 
 not liable for 
 permissive 
 waste. 
 
 Practice note. 
 
 As to custody 
 of title deeds. 
 
 Jointure 
 formerly 
 secured by 
 a term ; 
 
 ( t ) Dashwood v. Magniac, 
 (1891) 3 Oh. 306. 
 
 ( u ) As to which sec Baker' v. 
 Sebright (1879), 13 Ch. D. 179. 
 
 (as) Re Cartwright, Avis v. 
 Newman (1889), 41 Ch. D. 532; 
 Barnes v. Dowling (1881), 44 
 L. T. 809. 
 
 ( y ) Woodhouse v. Walker 
 
 (1880), 5 Q. B. D. 404. 
 
 ( z ) Re Burnaby's Settled 
 Estates (1889), 42 Ch. D. 621 ; 
 West v. Wythes, (1893) 2 Ch. 
 369; Re Newen , Newen v. Barnes, 
 (1894) 2 Ch. 297. 
 
406 
 
 BK. I., PT. y. SETTLEMENTS. 
 
 but now 
 secured by a 
 rent- charge. 
 
 to the rent-charge . But by vesting the term in the trustees, 
 they could require these lessees to pay their rent to them as 
 being reversioners. 
 
 But, as in the ease of the pin-money term, it is now un- 
 necessary to make use of a term of years to secure the jointure, 
 having regard to the 44th section of the Conveyancing Act, 
 1881. 
 
 Term for 
 securing 
 portions for 
 the younger 
 children. 
 
 Following the provision for jointure comes the term for 
 securing portions for the younger children of the marriage. 
 This term is usually a long period of years, often one of 1,000 
 years. It is still necessary to make use of this method of secur- 
 ing portions. For these are not, like pin-money and jointure, 
 mere annuities; but they are “lump sums” of money payable 
 to the younger children of the marriage upon their attaining 
 a certain age; and a mere rent-charge, with its attendant 
 powers of distress, entry, and power to create and deal with 
 a term, would not answer the purposes required. The money 
 required to discharge the portions will be, as a rule, most con- 
 veniently raised by mortgage, and it is with this object that 
 the term is given to the trustees, and for this reason that it is 
 made of so great a length; for if necessary they can mortgage 
 the term which is practically as good a security as the fee. 
 Notice, also, that the portions term precedes the estate in tail 
 limited to the eldest son of the marriage. The result of this is 
 that the eldest son takes his estate tail subject to the portions 
 to the younger children, and accordingly he cannot, by dis- 
 entailing his estate, get rid of the charge of the portions, since 
 they have priority to that estate. In a subsequent part of the 
 settlement it is provided that the land settled shall stand 
 charged with a certain sum (reducible as thereinafter pro- 
 vided) for the portions of the children, who, being younger 
 sons, shall attain the age of twenty-one, or, being daughters, 
 shall attain that age or marry under that age. Then it is pro- 
 vided that the portions money shall be divided among the 
 children in such shares as the intended husband shall by deed 
 or will appoint, and in default of appointment among them 
 in equal shares, the portion of each child who attains a vested 
 interest therein after the death of the tenant for life to be 
 
FORM OF SETTLEMENT OF REALTY. 
 
 407 
 
 payable on the vesting thereof, and the portion of each child 
 who attains a vested interest during the lifetime of the tenant 
 for life to be payable on the death of the tenant for life. It 
 is then provided that any child who has his portion appointed 
 to him shall not be entitled to any share in the unappointed 
 part, without bringing such share into hotchpot. 
 
 Then follow provisions for the reduction of the original 
 amount of the charge. It is generally stipulated that if only 
 one child, being a younger son, shall attain twenty-one years, 
 such child shall have only a smaller sum as a portion than the 
 sum originally specified as the total amount of the portions 
 fund; and if two children and no more shall attain twenty- 
 one, then the portions fund which they will share is also reduced 
 from the original amount, but is made larger in amount than 
 that which is to be paid in case there is only one child. Then 
 with regard to the excess of the original sum over the amounts 
 payable respectively, when there is only one, or two younger 
 children to share the portions, it is provided that it shall sink 
 into the hereditaments, and cease to be charged thereon. 
 
 The trusts of the portions term are declared to be, that the 
 trustees shall by mortgage thereof , or by or out of the rents and 
 profits thereof, or by any other reasonable ways and means, 
 raise the money to which any child or children shall become en- 
 titled for a portion as and when the same becomes payable, with 
 the costs and expenses of the execution of the trust, and further, 
 that so long as any portion which has become payable remains 
 unpaid, the trustees shall, out of the rents and profits of the 
 hereditaments, or by any other reasonable ways or means, raise 
 interest thereon ; and further, that if at the death of the 
 intended husband any child entitled in expectancy to a portion 
 is under the age of twenty-one, and, being a daughter, is un- 
 married, the trustees shall, with and out of the profits of the 
 hereditaments, or by any other reasonable ways or means, raise 
 such annual sum for the maintenance and education of each 
 such minor, as they think fit; and further, that, subject to the 
 above trusts, and to the power of advancement next thereinafter 
 contained, the trustees shall permit the rents and profits of the 
 hereditaments to be received by the person for the time being 
 entitled thereto in remainder immediately expectant on the 
 
 Hotchpot 
 
 clause. 
 
 Reduction of 
 charge. 
 
 The trusts of 
 the portions 
 terra. 
 
408 
 
 BK. I., PT. V. — SETTLEMENTS. 
 
 Who are 
 “ younger 
 sons.” 
 
 Generally 
 defined by the 
 settlement. 
 
 When the 
 “ younger 
 son ” is to be 
 ascertained. 
 
 term. Then the trustees are empowered to raise a moiety of 
 the presumptive shares of the sons, for their advancement, pre- 
 ferment, or benefit, at the request of the intended husband 
 during his life, and after his death, at their own discretion, the 
 money so raised to be reckoned as part of the share of such son, 
 if he attain the age of twenty-one. 
 
 The question which arises in connection with the above pro- 
 visions is, Who is to be deemed a younger son? The object in 
 giving the portions is, of course, to provide for those children 
 of the marriage who do not get any interest in the settled land, 
 and who would thus be otherwise unprovided for. It is not the 
 intention to give the son who takes the land a portion as 
 well as the estate. But it may happen that one who is 
 literally a younger son at the time when younger sons be- 
 come entitled to portions, may by the death of his elder brother 
 become entitled to step into* that brother’s shoes, and take his 
 interest in the land. Is he in such a case to be entitled 
 to a portion as well? Evidently this is not the intention, 
 and the general rule is, that in a provision for the raising of 
 portions, when it is made by a parent or person standing in 
 loco parentis , the term “a younger child” does not bear its 
 literal meaning, but means any one of’ the children exclusive of 
 the one who takes the family estate. To avoid any difficulties 
 in this respect it is usual in the settlement to define the chil- 
 dren who are to be entitled to portions, and these are generally 
 stated to be the children of the intended marriage, “ other than 
 a first or only son, or any other son who, before attaining the 
 age of twenty-one years, shall become entitled, under the settle- 
 ment, to an estate tail in possession, or in remainder expectant 
 on the death of the tenant for life.” The character of a 
 “younger son” is thus ascertained at the time the son attains 
 twenty-one, and so becomes entitled to a vested share in his 
 portion. The result will be that a second son, who is still a 
 younger son when he attains twenty-one, will not be deprived 
 of his portion by the subsequent death of his elder brother {a ) . 
 This enables a second son, should he marry during his elder 
 
 ( a ) See In re Wrottesley' s Set- Smith v. Waller, (1912) W. N. 
 tlement, Wrottesley v. Fowler, 235. 
 
 (1911) 1 Ch. 708; and In re Wise, 
 
FORM OF SETTLEMENT OF REALTY. 
 
 409 
 
 brother’s lifetime, to make a certain provision for his wife and 
 children, and one which is not liable to be defeated by the 
 loss of his portion in consequence of his afterwards becoming 
 an eldest son. If the settlement is silent on the point, the 
 period of distribution, not that of vesting, will be the time 
 for ascertaining the character. 
 
 The time for payment of the portions is not until after the 
 death of the intended husband, although the children may ob- 
 tain vested interests therein during his lifetime. Sometimes 
 power is given to the father (the tenant for life) to require 
 the portions to be raised and paid during his lifetime. Some- 
 times, too, an express power is given to the owner of the estate 
 for the time being to have the total sum, designated as the 
 portions fund, raised as soon as the first portion becomes pay- 
 able, so that the trustees need not be obliged to make as many 
 mortgages of the term as there are portions. It is doubtful 
 if, in the absence of express provision, the whole of the portions 
 could be raised at once (b). 
 
 As to when portions charged on land and payable on certain 
 events are or are not to be raised should the person die before 
 the event happens, ' the general rule is, that if the event be 
 personal to the perso,n to be benefited, e.g ., his attaining 
 twenty-one, and he die before the event happen, the portion 
 is not to be raised out of the la,nd (c ) ; but if the payment is 
 postponed to the happening of an event not referable to the 
 person to be benefited, but to the circumstances of 1 the estate 
 out of which the portion is to be raised, e.g., the death of the 
 tenant for life, it will be raisable after the death of the tenant 
 for life, though the term out of which it was to be raised had 1 
 not arisen during the life of the person to be benefited owing 
 to his death 'during the life of the tenant for life (d) . 
 
 The estate of the tenant in tail under the settlement for the 
 time being is a contingent remainder, and it was formerly 
 necessary to limit an estate immediately in priority to it to 
 
 (&) See Sheppard v. Wilson 1 Vern. 321; Tudor, Conv. Cases, 
 (1845), 4 Ha. 392. 4th ed. 434. 
 
 (c) Pawlett v. Pawlett (1685), (d) See Evans v. Scott (1847), 1 
 
 II. L. C. 43. 
 
 Portions are 
 paid on hus- 
 band’s death 
 
 Effect of 
 death of 
 portionist on 
 raising of 
 portions. 
 
 The estates 
 tail to the 
 sons succes- 
 sively. 
 
410 
 
 BK. I., PT. V. SETTLEMENTS. 
 
 8 & 9 Viet, 
 c. 106, s. 8. 
 
 40 & 41 Viet, 
 o. 33. 
 
 The estate to 
 the daughters, 
 as tenants in 
 common. 
 
 Settlement of 
 
 trustees to preserve the contingent remainders in accordance 
 with the plan invented by Sir Orlando Bridgman (e). This 
 was, however, rendered unnecessary by the Beal Property Act, 
 1845, s. 8 of which provides that a contingent remainder shall 
 be capable of taking effect notwithstanding the determination 
 by forfeiture, surrender, 'or merger of any preceding estate of 
 freehold, in the same manner in all respects as if such deter- 
 mination had not happened ; and by the Contingent Be- 
 mainders Act, 1877, which provides that every contingent 
 remainder created by any instrument executed after that act, 
 which would have been valid as a springing or shifting use 
 or executory devise or other limitation, had it not had a suffi- 
 cient estate to support it as a contingent remainder, shall, if 
 the particular estate determines before the remainder vests, be 
 capable of taking effect just as if it had originally been created 
 as a springing or shifting use, &c. 
 
 The estate tail to the daughters, it will be observed, is given 
 to them with “cross-remainders between them.” This needs 
 some explanation. The limitation in full runs as follows: — ■ 
 “ To the use of the daughters and the heirs of their respective 
 bodies in equal shares as tenants in common. And if and so 
 often as there shall be a failure of issue of any such daughter, 
 then as well as to her original share as also to the share or 
 shares which shall have accrued to her or the heirs of her body 
 by this present limitation, to the use of the others of such 
 daughters and the heirs of their respective bodies in equal shares 
 as tenants in common. And if there shall be a failure of issue 
 of all such daughters but one, or if there shall be but one 
 such daughter, then as to the entirety of the premises to the 
 use of such one or only daughter and the heirs of her body.” 
 The effect of this limitation is, that on the death of any 
 daughter, and the failure of the issue of her body, both her 
 original share and any share which she or her issue may have 
 taken will be divided equally among the other daughters in 
 tail. 
 
 It is sometimes desired that leaseholds or chattels shall be 
 
 (e) For u short account of Bridgman’s life and work, see 
 “Law Notes,” vol. xx. p. 368. 
 
FORM OF SETTLEMENT OF REALTY. 
 
 411 
 
 settled so as to go with the freeholds so long as the law allows. 
 Inasmuch ias an estate tail in these properties cannot be 
 created, they must he limited to the same uses, as nearly as 
 possible, as the freeholds, with ,a proviso that no tenant in tail 
 by purchase (■ i.e ., one faking immediately under the settle- 
 ment, and not through some person who took under the settle- 
 ment) shall become absolutely entitled to the leaseholds or 
 chattels until he attains twenty-one. The words “ by pur- 
 chase” are introduced to prevent the rule against perpetuities 
 being offended. Under such a limitation, on attaining twenty- 
 one, but not before, the eldest son will become absolutely en- 
 titled to the leaseholds and chattels, unless the settlement shows 
 clearly that he is pot to be absolutely entitled to them until he 
 comes into actual possession of the estate (/). 
 
 Before 1882, it was generally the practice to give the trustees, 
 during the minority of an infant tenant for life, or tenant in 
 tail by purchase (g), power to enter upon the estate and to 
 manage it, such power directing them to pay all outgoings and 
 moneys necessary for the maintenance pf the infant, and to 
 accumulate the residue of the income for the infant’s benefit, 
 should he attain the age of twenty-one. The management 
 and accumulation clauses are now, however, omitted in reliance 
 on s. 42 of the Conveyancing Act, 1881, which confers these 
 powers very fully on the trustees, if any, appointed for the 
 purpose by the settlement; if no such trustees are appointed, 
 then 0 |U the trustees with power of sale of the settled land, or 
 with power of consent to or approval of the exercise of such 
 power of sale; or, if none, then on any person appointed as 
 trustee for this purpose by the court on the application of the 
 guardian or next friend of the infant. These powers apply 
 when the instrument under which the infant’s interest arises 
 comes into operation after the 31st December, 1881, and may 
 be excluded or varied by the instrument. 
 
 Formerly, it was the practice to give the tenant for life or 
 the trustees extensive powers to lease, sell, exchange, grant 
 licences to copyholders, and to enfranchise copyhold land the 
 
 (/) Re Chesham, (1909) 2 Ch. ( g ) See preceding paragraph. 
 
 329; Re Parker, (1910) 1 Ch. 581. 
 
 leaseholds and 
 chattels. 
 
 Management 
 during 
 minority of 
 tenant for life. 
 
 44 & 45 Viet, 
 c. 41, s. 42. 
 
 Certain 
 powers need 
 not now be 
 given to the 
 tenant for life 
 and trustees. 
 
412 
 
 Object of the 
 Settled Land 
 Acts. 
 
 BK. I.j PT. V. SETTLEMENTS. 
 
 subject of the settlement; but the wide powers conferred on 
 the tenant for life by the Settled Land Acts, which cannot be 
 excluded or abridged by any provision in the settlement, have 
 rendered any reference in it to these matters unnecessary . It is 
 permissible, however, for the settlement to give the tenant wider 
 powers than those conferred by the acts, and sometimes pro- 
 visions are inserted relaxing some of the restrictions imposed 
 on the exercise of the statutory powers. These restrictions are 
 mentioned below, and whether or not it is desirable to modify 
 them depends upon the circumstances of each particular case. 
 Of the receipt clause, the trustee’s indemnity and reimburse- 
 ment clause, and other supplementary clauses, we have already 
 spoken (Ji ) . 
 
 The Settled Land Acts. 
 
 Introduction . 
 
 The restrictions which a strict settlement imposed on the 
 disposition of land were early found to have evil consequences 
 to the persons interested in it, and caused it to become a common 
 practice in the last century to insert in the settlement extensive 
 powers of leasing, selling, and otherwise disposing of and 
 managing the land, and in 1856 the statute 19 & 20 Viet. c. 120 
 was passed to confer such powers on all life tenants. This act 
 and several amendments to it were repealed and replaced in 
 1877 by the more extensive Settled Estates Act of that year, 
 which is still in force, though now not often resorted to. It 
 was found, however, that there was a graver economical objec- 
 tion to strict settlements than the want of power to deal with 
 the land, which these statutes did not touch. It was that the 
 life tenant was without any inducement to lay out any money 
 of his own upon the improvement of the land. This divorce 
 of capital from land was a loss to the land itself, to the culti- 
 vator, and in the long run to the commonwealth (i). It was 
 with a view to temedy this evil, as well as the other, that the 
 Settled Land Acts were passed. They consist of the principal 
 
 ( h ) See above, pp. 392 — 399. (i) See Pollock, Land Laws, 2nd 
 
 ed. 187, 188. 
 
FORM OF SETTLEMENT OF REALTY. 
 
 413 
 
 act passed in 1882, and the amending acts passed in 1884, 1887, 
 1889, and 1890. The object of the acts is to enable a limitod 
 owner ” under a settlement of land to deal with it as if abso- 
 lute owner. A period of agricultural depression, which showed 
 no signs of abatement, had given rise to a popular outcry 
 against settlements, and the problem to which the legislature 
 had to address itself in framing the Settled Land Acts was 
 how to relieve settled land from the mischief which strict settle- 
 ments undoubtedly did in some cases produce without doing 
 away altogether with the power of bringing land into settle- 
 ment. In the earlier acts the legislature did not look beyond 
 the interests of the persons entitled under the settlement. In 
 the Settled Land Acts the paramount object of the legislature 
 was the well-being of settled land (Tc). 
 
 Definition of Settlement and Settled Land. 
 
 Lor the purpose of the acts a ‘‘ settlement ” includes not only 
 what is generally understood by a marriage settlement, but 
 “ any deed, will, agreement for a settlement, or other agree- 
 ment, covenant to surrender, copy of court roll, act of parlia- 
 ment, or other instrument, or any number of instruments, made 
 or passed before or after, or partly before and partly after, 
 the act of 1882, under or by virtue of which land, or any estate 
 or interest in land, stands for the time being limited to or in 
 trust for any persons by way of succession” (l). A will and 
 settlement referred to therein may constitute one settlement 
 within the act(m); and where one settlement flows out of 
 another, as in the case of a settlement on A. for life, with 
 remainder to B . in tail, followed by a disentailing deed between 
 A. and B. barring the entail and re-settling the lands, subject 
 to the charges of the prior settlement, on B. for life, with 
 remainders over, the two settlements may be read as one com- 
 pound settlement for the purposes of the Settled Land Acts (n). 
 
 ( k ) Per Lord Macnaghten in 
 Bruce v. Marquis of Ailesbury, 
 (1892) A. C. at p. 364. 
 
 (l) S. L. Act, 1882, s. 2 (1); 
 see Re Marshall , (1905) 2 Cli. 325. 
 
 (m) Re Mundy's Settled 
 Estates, (1891) 1 Ch. 399; see also 
 Re Phillimore, (1904) 2 Ch. 460. 
 
 ( n ) Re Marquis of Ailesbury 
 and Lord Iveagh, (1893) 2 Ch. 
 
 Meaning of 
 “•settle- 
 ment.” 
 
414 
 
 BK. I., PT. V. SETTLEMENTS. 
 
 A public general act of parliament may form a settlement (o); 
 
 but an instrument limiting land to A. for life, and then to such 
 
 uses as A. shall appoint, is not a settlement within the act (p). 
 
 An estate or interest in remainder or reversion not disposed of 
 
 by a settlement, and reverting to the settlor or descending to 
 
 the testator’s heir, is a settled estate for the purposes of the 
 
 Meaning of act(g); and land and any estate or interest therein which is 
 ^ ^ settled • 
 
 land.” the subject of a settlement is, for the purposes of the act, 
 
 “ settled land ” (r). 
 
 Definition of Tenant for Life. 
 
 Who is a The act of 1882 defines a tenant for life as the person who 
 
 life. is for the time being under a settlement beneficially entitled 
 
 to possession of the settled land for his life (s), and provides 
 that, if there are two or more persons so entitled as tenants in 
 common or joint tenants, or for other concurrent interests, they 
 together constitute the tenant for life ( ; and further, such 
 person or persons will remain tenant or tenants for life, not- 
 withstanding that the settled land is encumbered or charged 
 in any manner or to any extent (u). When two or more 
 persons constitute together the complex tenant for life, the 
 consent of one, when consent is required by the act, will be 
 sufficient (a:); but subject to this exception, the powers con- 
 ferred by the act must be exercised by the complex tenant for 
 life (y) . If, however, only an undivided share is settled, the 
 tenant for life oan deal with that share undter the act without 
 
 345; Re Keck and Ilart, (1898) 1 
 Cli. 617; Re Da Cane and Nettle- 
 fold, (1898) 2 Ch. 98; Re Mundy 
 and Roper, (1899) 1 Ch. 275; Re 
 Cornwallis-West and Munro, 
 (1903) 2 Ch. 150; Re Lord Wim- 
 borne and Browne, (1904) 1 Ch. 
 537. 
 
 (o) Vine v. Raleigh (No. 2), 
 (1896) 1 Ch. 37. 
 
 ( p ) Re Pocock and Prankerd, 
 
 (1896) 1 Ch. 302. 
 
 (q) S. L. Act, 1882, s. 2 (2); 
 Re Hunter and Hewlett, (1907) 1 
 Ch. 46. 
 
 (r) S. L. Act, 1882, s. 2 (3). 
 (5) Ibid. s. 2 (5) ; see Re Carnt, 
 
 (1899) 1 Ch. 324. 
 
 (0 S. L. Act, 1882, s. 2 (6). 
 
 (w) Ibid. s. 2 (7). 
 
 (x) S. L. Act, 1884, s. 6 (2). 
 
 ( y ) S. L. Act, 1882, s. 19. 
 
FORM OF SETTLEMENT OF REALTY. 
 
 415 
 
 the concurrence of the owner of the other undivided share ( z ) . 
 As will be seen later on, a number of other limited owners are 
 given the powers of a tenant for life, though strictly their 
 interests are not estates for life (a). 
 
 Definition of Trustees. 
 
 The trustees for the purposes of the act are the persons, if 
 any, who are for the time being, under a settlement, trustees 
 with power of sale of the settled land, or with power of consent 
 to or approval of the exercise of such a power of sale, or if 
 under a settlement there are no such trustees, then the persons, 
 if any, for the time being, who are by the settlement declared 
 to be trustees thereof for the purposes of the act (5). Where 
 there are no express trustees, the following persons will be 
 trustees: — (1) Persons who are for the time being under the 
 settlement trustees with power of or upon trust for sale of 
 any othei land comprised in the settlement and subject to the 
 same limitations as the land to be sold, or with power of con- 
 sent to or approval of the exercise of such a power of sale, 
 or if there be no such persons, then (2) the persons who are for 
 the time being under the settlement trustees with a future power 
 of sale, or under a future trust for sale of the land to be sold, 
 or with power of consent or approval of the exercise of such 
 a future power of sale, whether the power or trust takes effect 
 in all events, or not (c) . 
 
 Powers conferred on the Tenant for Life. 
 
 The powers conferred by the acts on a tenant for life are 
 powers to sell, to enfranchise, to exchange, to make partitions 
 of the settled land (d), to transfer incumbrances of the land 
 sold to other parts of the settled land (e); to grant leases (/), 
 to accept surrenders and grant new leases to grant licences 
 
 (z) See S. L. Act, 1882, s. 2 
 (10;, (i); and Cooper v. Betsey , 
 (1899) 1 Ch. 639; overruling lie 
 Collinge (1887), 36 Ch. D. 516. 
 
 (a) See S. L. Act, 1882, s. 58, 
 below, p. 444. 
 
 (6) S. L. Act, 1882, s. 2 (8). 
 
 (c) S. L. Act, 1890, s. 16. See 
 Re Jackson, (1902) 1 Ch. 258. 
 
 ( d ) S. L. Act, 1882, s. 3. 
 
 (e) Ibid. s. 5. 
 
 (/) Ibid. s. 6. 
 
 (g) Ibid. s. 13. 
 
 Who are 
 trustees for 
 the purposes 
 of the act. 
 
 The powers 
 of a tenant 
 for life. 
 
416 BK. I., PT. V. SETTLEMENTS. 
 
 to copyholders to lease (A), to dedicate land for streets and 
 open spaces, &c. (i); to mortgiage for enfranchisement or 
 equality of exchange or partition (Jc), or for payment of 
 costs (l), or for the discharge of certain incumbrances (m ) ; to 
 make certain improvements on the land (n); to enter into con- 
 tracts to lease, sell, exchange, make partitions (o); to sell timber 
 in certain cases (p), and to sell heirlooms (g). 
 
 Restrictions The exercise of these powers is, however, subject to certain 
 ( exercise 1 
 
 of powers. restrictions such as the giving of notice to the trustees of the 
 settlement, designed for the protection of the remaindermen 
 and others as will be seen hereafter (r) . 
 
 The Power of Sale. 
 
 The power 
 to sell. 
 
 What be- 
 comes of the 
 purchase- 
 money . 
 
 Regulations 
 as to sales, 
 enfranchise- 
 ments. ex- 
 changes and 
 partitions. 
 
 Sect. 3 provides that the tenant for life may sell the settled 
 land or any part thereof; may sell the seigniory of a manor 
 or the freehold or inheritance of any copyhold land, reserv- 
 ing the minerals or not, so as in every such case to effect an 
 enfranchisement; may make an exchange of the settled land 
 or any part thereof ; and where the settlement comprises an 
 undivided share in land, or the land has come to be held in 
 undivided shares, he may concur in making a partition of the 
 entirety . 
 
 But the tenant for life is not absolutely entitled to the 
 purchase-money received on a sale; this will constitute “capital 
 money,” and must be paid to the trustees or into court, and 
 will then be dealt with in the manner in which the act 
 directs capital money to be dealt with (s). 
 
 The 4th section contains the following regulations as to 
 sales, enfranchisements, exchanges and partitions: — 
 
 (1.) Every sale must be made at the best price that can 
 reasonably be obtained. 
 
 ( h ) S. L. Act, 1882, s. 14. 
 
 (i) Ibid. s. 16. 
 
 (A?) Ibid. s. 18. 
 
 (/) Ibid. s. 47. 
 
 ( m ) S. L. Act, 1890, s. 11. 
 (ft) S. L. Act, 1882, s. 25. 
 
 (o) Ibid. s. 31. 
 
 ( p ) Ibid. s. 35. 
 
 ( q ) Ibid. s. 37. 
 
 (/•) See below, p. 438 et seq. 
 (s) S. L. Act, 1882, s. 21, be- 
 low, p. 426. 
 
FORM OF SETTLEMENT OF REALTY. 
 
 417 
 
 (2.) Every exchange and every partition must be made for 
 the best consideration in land, or in land and money, 
 that can reasonably be obtained. 
 
 (3.) A sale may be made in one lot or in several lots, and 
 either by auction or by private contract. 
 
 (4.) On a sale the tenant for life may fix reserve biddings 
 and buy in at an auction. 
 
 (5.) A sale, exchange, or partition may be made subject to 
 any stipulations respecting title, or evidence of title, 
 or other things. 
 
 (6.) On a sale, exchange, or partition, any restriction or 
 reservation with respect to building on or other user 
 of land, or with respect to mines and minerals, or with 
 respect to or for the purpose of the more beneficial 
 working thereof, or with respect to any other thing, 
 may be imposed or reserved and made binding, as far 
 as the law permits, by covenant, condition, or other- 
 wise, on the tenant for life and the settled land, or 
 any part thereof, or on the other party and any land 
 sold or given in exchange or on partition to him. 
 
 (7.) An enfranchisement may be made with or without a 
 re-grant of any right of common or other right, ease- 
 ment, or privilege theretofore appendant or appur- 
 tenant to or held or enjoyed with the land enfran- 
 chised, or reputed so to be. 
 
 (8.) Settled land in England must not be given in exchange 
 for land out of England. 
 
 (9.) On an exchange or partition an easement, right or 
 privilege may be reserved or granted over the settled 
 land or any part thereof, or an easement, right or 
 privilege may be given or taken in exchange or on 
 partition for land, or for any other easement, right 
 or privilege (£). 
 
 By s. 5 where on a sale, exchange, or partition there is an shifting in- 
 incumbrance affecting land sold or given in exchange or on par- cumbrauces. 
 tition, the tenant for life, with the consent of the incumbrancer , 
 may charge that incumbrance on any other part of the settled 
 
 G. — C. 
 
 ( t ) S. L. Act, 1890, s. 5. 
 
 E E 
 
418 
 
 BK. I., PT. V. SETTLEMENTS. 
 
 land, ’whether already charged therewith or not, in exoneration 
 of the part sold or so given, and, by conveyance of the fee 
 simple, or other estate or interest the subject of the settlement, 
 or by creation of a term of years in the settled land, or other- 
 wise, make provision accordingly. 
 
 Several If the land sold is an undivided share in land, the tenant for 
 
 life of that undivided share may join or concur with any per- 
 son entitled to or having a power or right of disposition of or 
 over another undivided share ( u ) . 
 
 The Power of Leasing. 
 
 Leases, 
 surrenders 
 and renewals 
 of leases. 
 
 Regulations 
 to be 
 observed. 
 
 (i) Generally ; 
 
 It is provided by s. 6 of the act of' 1882 that a tenant for 
 life may lease the settled land, or any part thereof', or any ease- 
 ment, right, or privilege of any kind over or in relation to the 
 same, for any purpose whatever, whether involving waste or 
 not, for any term not exceeding ninety-nine years for a 
 building lease, sixty for a mining lease, and twenty-one for 
 any other kind of lease. But by s. 7 — 
 
 (1) Every lease (except as provided by s. 7 of the act of 
 
 1890, infra) must be by deed, and be made to take 
 effect in possession not later than twelve months after 
 its date. 
 
 (2) It must reserve the best rent that can reasonably be 
 
 obtained, regard being had to any fine taken, and to 
 any money laid out or to be laid out for the benefit of 
 the settled land, and generally to the circumstances of 
 
 the case ( x ). 
 
 (3) It must contain a covenant by the lessee for jDayment 
 
 of the rent, and a condition of re-entry on the rent 
 not being paid within a time therein specified, not 
 exceeding thirty days. 
 
 (4) A counterpart of every lease must be executed by the 
 
 lessee and delivered to the tenant for life; of which 
 
 O) 8. L. Act, 1882, s. 19. He 
 can sell liis own undivided share 
 without the concurrence of the 
 other owners. See ante, p. 415. 
 
 (x) See Re Walker, (1894) 1 
 Ch. 189; Re Chawner, (1892) 2 
 Ch. 192. If a fine is taken it 
 becomes “capital money”: S. L. 
 Act, 1884, s. 4. 
 
FORM OF SETTLEMENT OF REALTY. 
 
 419 
 
 execution and delivery the execution of the lease by 
 the tenant for life will be sufficient evidence. 
 
 (5) A statement contained in a lease or in an indorsement 
 thereon signed by the tenant for life, respecting any 
 matter of fact or of calculation under this act in 
 relation to the lease, will, in favour of the lessee and 
 of those claiming under him, be sufficient evidence of 
 the matter stated. 
 
 In general the tenant for life must give notice to the trustees 
 of his intention to lease, and act in good faith and for the 
 benefit of the settled estate (?/), and otherwise observe the same 
 preliminaries as he is required to observe before making a sale; 
 but by s. 7 of the act of 1890 it is provided that a lease for 
 not exceeding twenty-one years at the best rent that can reason- 
 ably be obtained without fine, and whereby the lessee is not 
 exempted from punishment for waste, may be made — 
 
 (i) Without any notice to the trustees; and 
 
 (ii) Notwithstanding that there are no trustees of the settle- 
 
 ment for the purposes of the acts; and 
 
 (iii) By writing under hand only containing an agreement 
 
 instead of a covenant by the lessee for the payment of 
 rent in cases where the term does not extend beyond 
 three years from the date of the writing. 
 
 In addition to the above regulations, building and mining 
 leases are subject to special provisions (z). With regard to 
 building leases — the consideration must be the fact of the lessee 
 or some person by whose direction the lease is granted, or some 
 other person, having erected or agreeing to erect buildings, 
 either new or additional, or having improved or repaired, or 
 agreeing to improve or repair, buildings, or having executed 
 or agreed to execute some improvement authorized by the act 
 for or in connection with building purposes (a) . A pepper- 
 corn rent may be made payable during the first five years or 
 any less part of the term. If the land is contracted to be 
 
 (y) See Sutherland v. Bather- ( 2 ) S. L. Act, 1882, ss. 8 — 11. 
 land, (1893) 3 Oh. 169. ( a ) See Re Daniell's Settled 
 
 Estates, (1894) 3 Oh. 503. 
 
 E E 2 
 
 (ii) As to 
 building 
 
 leases. 
 
420 
 
 Option of 
 purchase may 
 be given to 
 lessee. 
 
 Reservation 
 of minerals. 
 
 (iii) As to 
 mining leases. 
 
 BK. I., PT. V. SETTLEMENTS. 
 
 leased in lots, the entire rent to be ultimately payable may be 
 apportioned among the lots in any manner, but no lease is to 
 reserve a rent of less than ten shillings; the total amount of 
 rent reserved must not be less in amount than the amount at 
 which the land as a whole would have to be leased under the 
 act, and the rent reserved by any lease is not to exceed on,e- 
 lifth of the full annual value of the land with the building 
 thereon when completed. 
 
 By the act of 1889, s. 2, a building lease may contain an 
 option, to be exercised at any time within an agreed number 
 of years, not exceeding ten, for the lessee to purchase the land 
 at a price fixed at the time of the making of the lease, such 
 price to be the best price which, having regard to the rent 
 reserved, can reasonably be obtained, and to be either a fixed 
 sum, or such a sum as is equal to a stated number of years’ 
 purchase of the highest rent reserved by the lease. The price 
 when received will be capital money. 
 
 On making a building lease under the acts the tenant for life 
 may reserve minerals (&). 
 
 With regard to mining leases — the rent to be reserved may 
 be ascertained by or vary according to the acreage worked or 
 the quantity of mineral obtained, made merchantable, carried 
 away, or disposed of, or the rent may be made to vary with the 
 price of the minerals gotten (c) . A minimum rent may be 
 made payable, and the tenant for life may allow the lessee, 
 in case he cannot pay it, to make up the deficiency in any 
 subsequent period, free of any further rent than the minimum 
 rent, and a mining lease may be made in consideration of the 
 lessee’s undertaking to execute, or having already executed, 
 some improvement authorized by the act in connection with 
 mining purposes (d). A certain portion of the rent arising 
 from these leases must be set aside, whether the mines are 
 already opened or not. Where the tenant for life is impeach- 
 able for waste for minerals, three-quarters of the rent must be 
 set aside as capital money under the act; if he is not so im- 
 
 (5) Be Gladstone, (1900) 2 Ch. (c) S. L. Act, 1890, s. 8. 
 
 101; overruling Be Nevile and ( d ) See s. 25 of the act of 1882. 
 
 Newell, (1900) 1 Ch. 90. as to these improvements. 
 
FORM OF SETTLEMENT OF REALTY. 
 
 421 
 
 peachable, whether by express provision in the settlement or 
 by implication (e), then only one-quarter, and the remainder 
 in both cases goes to the tenant for life as rents and profits. 
 Lastly, the court may vary the terms and conditions in building 
 and mining' leases where it is the local custom to grant leases 
 different from those authorized by the act, and may allow the 
 custom to be followed, when more beneficial to all parties con- 
 cerned. 
 
 The leasing powers given to a tenant for life extend to the 
 three following cases: he may carry into effect a contract for a 
 lease entered into by his predecessor in title (/) ; he may renew 
 leases; and he may confirm them (g). 
 
 Provision is also made by s. 13 for his accepting surrenders 
 and granting new leases. 
 
 These provisions are as follow: — 
 
 (1) He may accept, with or without consideration (h), a 
 
 surrender of any lease of settled land, whether made 
 under the acts or not, in respect of the whole land 
 leased, or any part thereof, with or without an ex- 
 cejDtion of all or any of the mines and minerals 
 therein, or in respect of mines and minerals, or 
 any of them. 
 
 (2) On a surrender of a lease in respect of part only of the 
 
 land or mines and minerals leased, the rent may be 
 apportioned. 
 
 (3) On a surrender, he may make of the land or mines 
 
 and minerals surrendered, or of any part thereof, 
 a new or other lease, or new or other leases in lots. 
 
 (4) A new or other lease may comprise additional land or 
 
 mines and minerals, and may reserve any appor- 
 tioned or other rent. 
 
 (e) e.g., by reason of the mines 
 being already open when he took 
 possession: Re Chaytor, (1900) 2 
 Ch. 804. 
 
 (/) See Re Kemeys-Tynte, 
 (1892) 2 Ch. 211. 
 
 (g) S. L. Act, 1882, s. 12. 
 
 ( h ) Any consideration must be 
 paid to the trustees as capital 
 money, and must be paid out to 
 tenant for life by proper instal- 
 ments. Re Rodes, (1909) 1 Ch. 
 815. 
 
 Supple- 
 mentary- 
 powers re- 
 lating to 
 leases. 
 
 Surrender of 
 leases. 
 
 Regulations 
 as to. 
 
4 22 
 
 Leaser of 
 copyhold 
 property. 
 
 Dedication 
 of property 
 for streets and 
 open spaces. 
 
 Separate 
 dealing 1 with 
 surface and 
 minerals. 
 
 BK. I., PT. V. SETTLEMENTS. 
 
 (5) On a surrender, and the making' of a new or other 
 
 lease, the value of the lessee’s interest in the lease 
 surrendered mav he taken into account in the deter- 
 
 *y 
 
 mination of the amount of the rent to be reserved, 
 and of any fine to be taken, and of the nature of 
 the covenants, provisions, and conditions to be in- 
 serted in the new or other lease. 
 
 (6) Every new or other lease must be in conformity with 
 
 the acts. 
 
 By s. 14 of the act, the tenant for life may grant to copy- 
 holders licences to lease in the same manner as the tenant for 
 life himself is empowered to do under the act, and so enable the 
 copyholders to make leases binding on the remainderman. The 
 licence may fix the annual value whereon fines, fees, or other 
 customary payments are to be assessed, or the amount of those 
 fines, fees, or payments. The licence is to be entered on the 
 court rolls, and the steward’s certificate will be evidence of such 
 entry . 
 
 General Powers on Sales, Leases, and other Dispositions . 
 
 Sect. 16 provides that on or in connection with a sale or grant 
 for building purposes, or a building lease, the tenant for life, 
 for the general benefit of the residents on the settled land, 
 may cause or require any parts thereof to be appropriated and 
 laid out for streets, roads, paths, squares, gardens, or other open 
 spaces ; for the use gratuitously or on payment of the public or 
 of individuals, with all works necessary or proper in connection 
 therewith; and may provide that the parts so appropriated shall 
 be vested in the trustees of the settlement or other trustees, or 
 any company or public body, and may execute all deeds neces- 
 sary for giving effect to the provisions of the section. 
 
 By s. 17, a sale, exchange, partition, or mining lease may be 
 made either of land, with or without an exception or reservation 
 of all or any of the mines and minerals therein, or of any mines 
 and minerals, and with or without a grant or reservation of 
 powers of working, wayleaves or rights of way, and other 
 powers and rights. 
 
FORM OF SETTLEMENT OF REALTY. 
 
 423 
 
 The Power of Mortgaging . 
 
 The principal act empowers the tenant for life to mortgage 
 the settled land, but only (1) where money is required for an 
 enfranchisement (i ) ; or (2) for equality of exchange or par- 
 tition, and any money so raised on mortgage is to be con- 
 sidered capital money (k); or (3) for payment of costs ordered 
 to be paid by the court out of the settled property (l). The 
 act of 1890 also authorizes a mortgage for the purpose of dis- 
 charging an incumbrance on the settled land other than anv 
 annual sum payable only during a life or lives, or during a 
 term of years absolute or determinable (m) . This provision 
 does not authorize a tenant for life to mortgage against the 
 wishes of those who have a charge on the land, if by the exer- 
 cise of the power their rights are liable to be prejudiced (n). 
 
 Power to cut Timber . 
 
 By s. 35, where a tenant for life is impeachable for waste 
 in respect of timber, and there is on the settled land timber 
 ripe and fit for cutting, he may, on obtaining the consent of 
 the trustees of the settlement, or an order of the court, cut and 
 sell that timber, or any part thereof. Three-fourths of the 
 net proceeds of the sale must be set aside as and be capital 
 money, and the other fourth will go as rents and profits. 
 
 Power to sell Heirlooms. 
 
 By s. 37, where personal chattels are settled on trust so as to 
 devolve with land until a tenant in tail by purchase is born 
 or attains the age of twenty-one years, or so as otherwise to vest 
 in some person becoming entitled to an estate of freehold of 
 
 (i) See Re Bruce , (1905) 2 Cli. 
 372. 
 
 (k) S. L. Act, 1882, s. 18. 
 
 (Z) Ibid. s. 47. 
 
 (m) S. L. Act, 1890, s. 11. As 
 to the comprehensive character of 
 this power where different estates 
 
 are settled by two instruments 
 constituting together a compound 
 settlement, see JRe Monson's Set- 
 tled Estates, (1898) 1 Ch. 427. 
 
 (n) Hampden v. Earl of Buck- 
 inghamshire, (1893) 2 Ch. 531. 
 
 Purposes for 
 which tenant 
 for life may 
 mortgage. 
 
 Cutting and 
 sale of timber. 
 
 Sale of 
 heirlooms. 
 
424 
 
 Tenant for 
 life can con- 
 vey the fee. 
 
 Effect of 
 conveyance : 
 
 (i) Generally ; 
 
 BK. I., PT. V. SETTLEMENTS. 
 
 inheritance in the land, a tenant for life of the land may sell the 
 chattels or any of them. The money arising by the sale will 
 be capital money, and may be invested or dealt with in like 
 manner to other capital money, or may be invested in the pur- 
 chase of other chattels, which when purchased must be settled 
 and held on the same trusts, and will devolve in the same 
 manner as the chattels sold. A sale cannot be made under this 
 section without an order of the court, and the court will not 
 make the order unless a sale is proved to be for the benefit 
 not only of the tenant for life, but also of those to come after 
 him (o). 
 
 Poiv'er to execute Conveyances and Deeds. 
 
 By s. 20, the tenant for life may give effect to any sale, 
 exchange, partition, lease, mortgage or charge he may make 
 under the act, by conveying the land or creating the charge, 
 &c. by deed; and such daed will pass the land conveyed, or the 
 interest created, discharged from all the limitations, powers 
 and provisions of the settlement, and from all estates, interests 
 and charges subsisting or to arise thereunder (p), subject to 
 and with the exception of — 
 
 (i.) Estates, interests and charges having priority to the 
 settlement (g); 
 
 (ii.) Estates, &c. which have been conveyed or created for 
 securing money actually raised at the date of the 
 deed (r) ; and 
 
 (iii.) Leases, grants at fee farm rents or otherwise, and 
 grants of easements, rights of common, or other 
 rights and privileges granted or made for value 
 in money or money’s worth, or agreed so to be 
 
 (o) Re Hope (1910), 26 T. L. E. 
 413 ; Re Sebright (1912), 28 
 
 T. L. E. 191. 
 
 (p) See Re Keck and Hart, 
 (1898) 1 Ch. 617; Re Du Cane 
 and Nettlefold, (1898) 2 Ch. 96; 
 Re Mundy and Royer, (1899) 1 
 Ch. 275. 
 
 ( q ) See Re Marquis of Ailes- 
 
 bury and Lord Iveagh, (1893) 2 
 Ch. 345; Re Mundy and Royer, 
 suyra. 
 
 (r) This does not include a 
 mortgage by tenant for life or re- 
 mainderman of his own interest 
 only : Re Dickin and Kelsall, 
 
 (1908) 1 Ch. 213; Re Davies and 
 Kent, (1910) 2 Ch. 35. 
 
FORM OF SETTLEMENT OF REALTY. 
 
 425 
 
 before the date of the deed by the tenant for life, 
 or any of his predecessors in title, or by any trustees 
 for him or them under the settlement, or under 
 any statutory power, or being otherwise binding 
 on the successors in title of the tenant for life. 
 
 When the deed comprises copyholds, the steward is required 
 to enrol it when produced to him; but he may require to be pro- 
 duced to him so much of the settlement as may be necessary 
 to show the title of the person executing the deed, and if he 
 thinks fit he may enter the same on the rolls. 
 
 Application of Capital Money. 
 
 The money received in the exercise of the powers given to 
 the tenant for life under the acts, or c ' capital money,” as it 
 is called in the acts (s), is not receivable by him, but must 
 be paid to the trustees or into court. Capital money includes 
 any money arising under s. 3 by sale, partition, enfranchise- 
 ment, or exchange; a proportion of the rent received in respect 
 of a mining lease under s. 11 ; money raised by mortgage under 
 s. 18; a consideration for varying or rescinding the contract 
 under s. 31 received by the tenant for life; a certain proportion 
 of the money received for timber under s. 35; money received 
 on the sale of heirlooms under s. 37; also, by s. 4 of the act 
 of 1884, a fine reserved on the grant of a lease; and compensa- 
 tion paid on an extinction of a licence under the Licensing 
 Act(£). Further, s. 33 provides that, where under a settle- 
 ment money is in the hands of the trustees, and is liable (m) to 
 be laid out in the purchase of land to be made subject to the 
 settlement, then, in addition to such powers of dealing there- 
 with as they have independently of the act, they may, at the 
 option of the tenant for life, invest or apply the same as capital 
 money arising under the act. It has been held that money 
 paid by a lessee to a legal tenant for life, not impeachable for 
 
 (s) See S. L. Act, 1882, s. 2 (9). (u) See Re Soltau's Settled 
 
 (t) Re Bladon (1911), 28 Estates , (1898) 2 Cli. 629; Re 
 
 T. L. R. 57. Tessyman's Trust (1897), 77 L. T. 
 
 484. 
 
 (ii) As to 
 copyholds. 
 
 What 
 4 4 capital 
 money ” is. 
 
426 
 
 How to be 
 dealt with. 
 
 List of invest- 
 ments for 
 capital 
 money. 
 
 BK. I., FT. V. SETTLEMENTS. 
 
 waste, by way of damages for breach of a covenant to repair 
 is not capital money, but belongs to the tenant for life ( x ). 
 
 Sect. 21 regulates the way in which capital money is to be 
 dealt with, and provides that it shall, when received (subject 
 to claims payable thereout, and to the application thereof for 
 any special authorized object for which it was raised), be in- 
 vested or applied in one or more of the following modes: 
 
 (i.) In investment on government securities or other secu- 
 rities which the trustees are authorized by the settle- 
 ment or by law (y) to invest in, or in bonds, 
 mortgages, debentures, or in the purchase of the 
 debenture-stock of any railway in Great Britain or 
 Ireland incorporated by special act of parliament, and 
 having for ten years before the investment paid a 
 dividend on its ordinary stock or shares, with power 
 to vary investments: 
 
 (ii.) In discharge, purchase, or redemption of incumbrances 
 affecting the inheritance of the settled land, or other 
 the whole estate the subject of the settlement ( z ), or 
 of land tax, rent-charge in lieu of tithe, crown rent, 
 chief rent, or quit rent, charged on or payable there- 
 out ( a ): 
 
 (iii.) In payment for any improvement authorized b}^ the 
 act ( h ) : 
 
 (iv.) In payment for equality of exchange or partition: 
 
 (v.) In purchase of the seigniory of any part of the settled 
 land, being freehold land, or in purchase of the fee 
 simple of any part of the settled land, being copy- 
 hold or customary land: 
 
 (cc) Re Lacon, (1911) 2 Oh. 17. 
 
 (y) See Trustee Act, 1893, ss. 1 
 — 7, ante , p. 387 et seq. 
 
 ( z ) See Freiven v. James 
 (1888), 38 Ch. D. 383. 
 
 ( a ) Even capital money derived 
 from the sale of heirlooms may be 
 applied in this way : Re Duke of 
 Marlborough (1886), 32 Ch. D. 1. 
 
 See also on this sub-section, Re 
 Lord Egmont (1890), 45 Ch. D. 
 395; Re Duke of Manchester , 
 (1910) 1 Oh. 106; and Re Hodg- 
 son, (1912) 1 Ch. 784. 
 
 (5) See Re Bulwer Lytton's 
 Will (1888), 38 Ch. D. 20; and 
 infra, pp. 431 et seq. 
 
FORM OF SETTLEMENT OF REALTY. 
 
 42 
 
 (vi.) In purchase of the reversion or freehold in fee of any 
 part of the settled land, being 1 leasehold land held for 
 years, or life, or years determinable on life: 
 
 (vii.) In purchase of land in fee simple, or of copyhold or 
 customary land, or of leasehold land held for sixtv 
 years or more unexpired at the time of purchase, sub- 
 ject or not to any exception or reservation of or in 
 respect of mines or minerals therein, or of or in respect 
 of rights or powers relative to the working of mines 
 or minerals therein, or in other land: 
 
 (viii.) In purchase, either in fee simple, or for a term of 
 sixty years or more of mines and minerals conve- 
 nient to be held or worked with the settled land, or 
 of any easement, right, or privilege convenient to be 
 held with the settled land for mining or other pur- 
 poses: 
 
 (ix.) In payment to any person becoming absolutely en- 
 titled : 
 
 (x.) In payment of costs incidental to the exercise of any 
 of the powers (c), or execution of any of the provi- 
 sions of the act (d ) : 
 
 (xi.) In any other mode in which money jM’oduced by the 
 exercise of a power of sale in the settlement is applic- 
 able thereunder: 
 
 (xii.) In paying off a rent-charge created to pay off moneys 
 advanced, to defray the expenses of improvements 
 authorized by the act of 1882 (e): 
 
 (xiii.) In payment of money and costs spent by a landlord 
 in the execution of first or second class improvements 
 under the Agricultural Holdings Act, 1908, and also 
 
 (c) Where there are tenants in 
 common for life, costs of separate 
 solicitors for perusing and com- 
 pleting the conveyance will be 
 allowed out of the proceeds of sale 
 effected under the acts: Smith v. 
 Lancaster, (1894) 3 Ch. 439. See 
 also Re Peel, (1910) 1 Ch. 389; 
 
 and Re Earl de la Warr (1912), 
 56 S. J. 650. 
 
 ( d ) This includes the costs of 
 an abortive sale by the tenant for 
 life: Re Smith, (1891) 3 Ch. 65. 
 
 (e) S. L. Act, 1887, s. 1; see 
 Re Verney, (1898) 1 Ch. 508. 
 
428 
 
 Payment and 
 investment 
 of capital 
 money. 
 
 BK. I., PT. V. SETTLEMENTS. 
 
 in discharge of charges created on a holding under that 
 act for such improvements (/): 
 
 (xiv.) Upon dwellings to be erected under the Housing of 
 the Working Classes Act, 1890, the building of which 
 is not, in the opinion of the court, injurious to the 
 estate, and the rateable value of which does not exceed 
 100?. a year (g). 
 
 In order to obtain an investment of capital money, it must 
 be paid either to the trustees of the settlement or into court, 
 at the option, of the tenant for life (h), and even if all the 
 purchase-money on a sale is to be paid to incumbrancers who 
 have priority to the settlement, the trustees must concur in the 
 conveyance in order to give the purchaser a good discharge (i ) . 
 The investment or other application will be made according 
 to the direction of the tenant for life (1c), and in default thereof 
 according to the discretion of the trustees, but in the last- 
 mentioned case subject to any consent required or direction 
 given by the settlement with respect to the investment or 
 other application by the trustees; and any investment is to be 
 in the names or under the control of the trustees (Z). Where 
 capital money arises from the sale of a lease or a reversion, 
 the trustees or the court, according as such money is in the 
 hands of the trustees or in court, may invest the money in such 
 manner as will give the parties interested the like benefit as 
 they might have had from the lease or reversion (m ) . The 
 investment or other application under the direction of the court 
 
 (/) See now Agricultural Hold- 
 ings Act, 1908, above, p. 352 et 
 seq. 
 
 ( g ) Housing of the Working 
 Classes Act, 1890, s. 74. 
 
 (h) S. L. Act, 1882, s. 22 (1). 
 If there are no trustees the pur- 
 chaser cannot be required to pay 
 the money into court: Be Fisher 
 and Grazebrooh, (1898) 2 Ch. 660. 
 
 (i) Be Norton and Las Casas, 
 (1909) 2 Ch. 59. 
 
 ( k ) Neither the trustees nor the 
 
 court can control his direction if 
 given bond fide: Be Coleridge, 
 (1895) 2 Ch. 704 ; Be Hunt, 
 (1906) 2 Ch. 11; but it is for the 
 trustees to see that the investment 
 is a proper one: Be Hotham, 
 
 (1901) 2 Ch. 790; (1902) 2 Ch. 
 575 ; compare Be Cleveland, 
 (1902) 2 Ch. 350; see also Be 
 Theobald (1903), 19 T. L. R. 536. 
 
 (l) S. L. Act, 1882, s. 22 (2). 
 
 (m) Ibid. s. 34. 
 
FORM OF SETTLEMENT OF REALTY. 
 
 429 
 
 is to be made on the application of the tenant for life, or of 
 the trustees (n); and investments or other applications are not, 
 during the life of' the tenant for life, to be altered without his 
 consent (o). But the court has a discretion to pay out capital 
 money in court to the trustees of the settlement for the pur- 
 poses of the acts (p). 
 
 Capital money while remaining uninvested or unapplied, and 
 securities on which an investment of any such capital money is 
 made, will be considered as land, and go to the same persons 
 successively, in the same manner and for and on the same 
 estates, interests and trusts, as the land wherefrom the money 
 arises would, if not disposed of, have been held and have gone 
 under the settlement (q). 
 
 The income of those securities is to be paid or applied as the 
 income of that land, if not disposed of, would have been payable 
 or applicable under the settlement (r) ; and those securities may 
 be converted into money, which is to be capital money ( s ) . 
 Lastly, capital money arising from settled land in England is 
 not to be applied in the purchase of land out of England, 
 unless the settlement expressly authorizes it (£). 
 
 Capital money 
 and invest- 
 ments to 
 devolve as 
 land. 
 
 How income 
 of investments 
 treated . 
 
 Supposing land has been acquired by purchase or in 
 exchange, or on partition, by s. 24 it must be made subject to 
 the settlement in the following way: — 
 
 (i.) Freehold land must be conveyed to the uses, on the 
 trusts and subject to the powers and provisions which, 
 under the settlement, or by reason of the exercise of 
 any power of charging therein contained, are sub- 
 sisting with respect to the settled land, or as near 
 thereto as circumstances permit. 
 
 (ii.) Copyhold, customary, or leasehold land must be con- 
 veyed to and vested in the trustees on trusts and 
 subject to powers and provisions corresponding, as 
 nearly as the law and circumstances permit, with the 
 
 Land bought 
 with capital 
 money : 
 how dealt 
 with. 
 
 (q) S. L. Act, 1882, s. 22 (5). 
 
 (r) Ibid. s. 22 (6). 
 
 (s) Ibid. s. 22 (7). 
 
 (t) s. 23. 
 
 (n) S. L. Act, 1882, s. 22 (3). 
 
 (o) Ibid. s. 22 (4). 
 
 (p) S. L. Act, 1890, s. 14. 
 
480 
 
 BK. I., PT. V. — SETTLEMENTS. 
 
 uses, trusts, powers, and provisions to, on, and subject 
 to which freehold land is to be conveyed; so, never- 
 theless, that the beneficial interest in land held by 
 lease for years shall not vest absolutely in a person 
 who is b}^ the settlement made by purchase tenant in 
 tail, or in tail male, or in tail female, and who dies 
 under the age of twenty-one years, but shall, on the 
 death of that person under that age, go as freehold 
 land conveyed as aforesaid would go. 
 
 (iii.) Land acquired as aforesaid may be made a substituted 
 security for any charge in respect of money actually 
 raised, and remaining unpaid, from which the settled 
 land, or any part thereof, or any undivided share 
 therein, has theretofore been released on the occasion, 
 and in order to the completion, of a sale, exchange, 
 or partition. 
 
 (iv.) Where a charge does not affect the whole of the settled 
 land, then the land acquired shall not be subjected 
 thereto, unless the land is acquired either by purchase 
 with money arising from sale of land which was 
 before the sale subject to the charge, or by an ex- 
 change or partition of land which, or an undivided 
 share wherein, was before the exchange or partition 
 subject to the charge. 
 
 (v.) On land being so acquired, any person who, by the 
 direction of the tenant for life, so conveys the land 
 as to subject it to any charge, is not concerned to 
 inquire whether or not it is proper that the land 
 should be subjected to the charge. 
 
 Foreclosed, 
 &c. mort- 
 gages, how 
 dealt with. 
 
 Where capital money has been invested on mortgage, and the 
 mortgaged property lias become by virtue of the statutes of limi- 
 tation or of an ordfer for foreclosure or otherwise, discharged 
 from the right of redemption, it must be held by the trustees on 
 trust for sale with power to postpone such sale for such a period 
 as they think proper; but the tenant for life, or person having 
 the powers of a tenant for life, may require the trustees, in- 
 stead of selling* the land, to make such conveyance or execute 
 such declaration of trust as may be required for giving effect 
 
FORM OF SETTLEMENT OF REALTY. 
 
 431 
 
 to the directions contained in s. 24 of the Settled Land Act, 
 1882, set out above, as if the land had been acquired by pur- 
 chase (w). 
 
 Improvements with Capital Money. 
 
 Improvements authorized by the act are defined by s. 25 to 
 be the making or execution on, or in connection with, and for 
 the benefit of, settled land, of any of the following works: — 
 (i.) Drainage, including the straightening, widening, or 
 deepening of drains, streams and watercourses: 
 
 (ii.) Irrigation, warping: 
 
 (iii.) Drains, pipes and machinery for supply and distribu- 
 tion of sewage as manure : 
 
 (iv.) Embanking or weiring from a river or lake, or from 
 the sea, or a tidal water: 
 
 (v.) Groynes; sea walls; defences against water: 
 
 (vi.) Inclosing ; straightening of fences ; re-division of 
 fields: 
 
 (vii.) Declamation; dry warping: 
 
 (viii.) Farm roads; private roads; roads or streets in villages 
 or towns: 
 
 (ix.) Clearing; trenching; planting: 
 
 (x.) Cottages for labourers, farm servants and artizans em- 
 ployed on the settled land or not: 
 
 (xi.) Farmhouses, oifices and outbuildings, and other build- 
 ings for farm purposes (x): 
 
 (xii.) Saw and other mills (y), water-wheels, engine houses 
 
 and kilns, which will 
 land for agricultural 
 otherwise (z ) : 
 
 (u) Conveyancing Act, 1911, 
 s. 9. 
 
 (x) This does not authorize the 
 expenditure of capital money in 
 building a chapel or a house for 
 the agent of the estate (Re Lord 
 Gerard, (1893) 3 Cli. 252); but 
 includes re-roofing farm build- 
 ings. Re Verney, (1898) 1 Ch. at 
 
 increase the value of the settled 
 purposes or as woodland or 
 
 p. 512. 
 
 (y) See Re Harrington's Settled 
 Estates (1906), 75 L. J. Ch. 460. 
 
 (z) The erection of an engine 
 house for the purpose of an elec- 
 tric light installation is not within 
 this provision: Re Lord Lecon- 
 field’s Settled Estates, (1907) 2 
 Ch. 340. 
 
 Improve- 
 ments allowed 
 by the act. 
 
432 
 
 BK. I., PT. V. SETTLEMENTS. 
 
 (xiii.) Reservoirs, tanks, conduits, watercourses, pipes, wells, 
 ponds, shafts, dams, weirs, sluices and other works 
 and machinery for supply and distribution of water 
 for agricultural, manufacturing, or other purposes, 
 or for domestic or other consumption: 
 
 (xiv.) Tramways; railways; canals; docks: 
 
 (xv.) Jetties, piers, and landing places on river, lakes, the 
 sea, or tidal waters, for facilitating transport of per- 
 sons and of agricultural stock or produce and of 
 manure and other things required for agricultural 
 purposes, and of minerals, and of things required for 
 mining purposes: 
 
 (xvi.) Markets and market places: 
 
 (xvii.) Streets, roads, paths, squares, gardens, or other open 
 spaces (a) for the use, gratuitously or on payment, 
 of the public or of individuals, or for dedication to 
 the public, the same being necessary or proper in con- 
 nection with the conversion of land into building- 
 land: 
 
 (xviii.) Sewers, drains, watercourses, pipe-making, fencing, 
 paving, brick-making, tile-making, and other works 
 necessary or proper in connection with any of the 
 objects aforesaid: 
 
 (xix.) Trial pits for mines and other preliminary works 
 necessary or proper in connection with development 
 of mines (b ) : 
 
 (xx.) Reconstruction, enlargement or improvement of any of 
 those works (c) . 
 
 And by s. 13 of the act of 1890 the following have been 
 added to the above list: — 
 
 (i.) Bridges: 
 
 (ii.) Making any additions to or alterations in buildings 
 necessary or proper to enable the same to be let (c?) : 
 
 (a) This includes a “ golf 
 course”: Re Be la Warr's S. E. 
 (1911), 27 T. L. B. 534. 
 
 (5) This includes the erection of 
 a new pumping machine : Re 
 
 Mundy, (1891) 1 Ch. 399. 
 
 (c) See Re Verney , (1898) 1 
 Ch. 503. 
 
 (c?) See Re Be Tessier, (1893) 
 1 Ch. 153; Re Lord Gerard,. 
 
FORM OF SETTLEMENT OF REALTY. 
 
 433 
 
 (iii.) Erection of buildings in substitution for buildings 
 within an urban sanitary district taken by a local or 
 other public authority, or for buildings taken under 
 compulsory powers, but so that no more money be 
 expended than the amount reserved for the buildings 
 taken and the sale thereof : 
 
 (iv.) The rebuilding (e) of the principal mansion house, 
 provided that the sum to be applied shall not exceed 
 one-lialf of the annual rental (/) of the settled land. 
 
 Where the tenant for life desires capital money arising under 
 the aet to bo applied towards improvements authorized by the 
 act, he should submit for approval to the trustees or the court 
 a scheme for the execution of the improvement, showing the 
 proposed expenditure (g ) ; but it is not compulsory on the 
 tenant to submit a scheme, and the court may direct capital 
 money to be applied towards improvements, although no scheme 
 was submitted before the execution thereof (h); but the juris- 
 diction under this section is jealously exercised (i ) . Where 
 the capital money is in the hands of trustees, then, after a 
 
 (1893) 3 Cli. 252; Re Gaskell, 
 
 (1894) 1 Ch. 485; Re Tucker , 
 
 (1895) 2 Oh. 468; Re Thomas, 
 
 Weatherall v. Thomas, (1900) 1 
 
 Oh. 319; Re Stanford, Stanford 
 v. Roberts , (1901) 1 Ch. 440; Re 
 Clarke , (1902) 2 Oh. 327; Re Bla- 
 grave, (1903) 1 Ch. 560; Re Cal- 
 verley, (1904) 1 Ch. 150; Re 
 Leveson-Gower, (1905) 2 Ch. 95; 
 Re Harrington (1906), 75 L. J. 
 Ch. 460. 
 
 (e) See Re Wright (1900), 83 
 L. T. 159; Re Legh, (1902) 2 Ch. 
 274; Re Dunham Massey (1906), 
 22 Times L. R. 595; Re Earl of 
 Dunraven, (1907) 2 Ch. 417. 
 
 (/) As to how this is to be 
 reckoned, see Re De Tessier, 
 
 (1893) 1 Ch. 153; Re Lord 
 
 Gerard, (1893) 3 Ch. 252; Re 
 
 Walker, (1894) 1 Ch. 189; Re 
 Windham's S. E., (1912) 2 Ch. 75. 
 
 (g) S. L. Act, 1882, s. 26 (1). 
 See Re Earl of Egmont's Settled 
 Estates, (1906) 2 Ch. 151, as to 
 the duty of the trustees. 
 
 ( [h ) S. L. Act, 1890, s. 15. This 
 act is retrospective: see Re Orm- 
 rod's S.E., (1892) 2 Ch. 318. 
 
 (0 Re Tucker, (1895) 2 Ch. 
 
 468; Re Dalison, (1892) 3 Ch. 
 
 522; Re Millard, (1893) 3 Ch. 
 
 116 ; Re Marquis of Bristol, 
 (1893) 3 Ch. 161; Re Earl of 
 Egmont (1900), 16 Times L. E. 
 360. 
 
 Course to be 
 adopted when 
 capital money 
 is to be laid 
 out in im- 
 provements. 
 
 (i) When 
 capital money 
 in hands of 
 trustees ; 
 
 G. — C. 
 
 F F 
 
434 
 
 BK. I., PT. V. SETTLEMENTS. 
 
 scheme is approved by them (fc), the trustees may apply that 
 money in or towards the improvement, on — 
 
 (i.) A certificate of the Board of Agriculture (Land Com- 
 missioners’ Department, hereinafter referred to as 
 “the commissioners”) certifying that the work has 
 been properly executed, and what amount is properly 
 payable by the trustees in respect thereof; or on 
 (ii.) A like certificate of a competent engineer or able prac- 
 tical surveyor nominated by the trustees and approved 
 by the commissioners, or by the court; or on 
 (iii.) An order of the court directing or authorizing the 
 trustees to so apply a specified portion of the capital 
 money (£). 
 
 (ii) When 
 capital money 
 is in court. 
 
 Improve- 
 ments to be 
 maintained 
 by tenant 
 for life. 
 
 Reports to 
 commis- 
 sioners. 
 
 Where the capital money to be expended is in court, then 
 after a scheme is approved by the court, the court may, on a 
 report or certificate of the commissioners, or of a competent 
 engineer or able practical surveyor, approved by the court, or 
 on such other evidence as the court thinks sufficient, make such 
 order and give such directions as it thinks fit for the applica- 
 tion of that money towards the improvement (m). 
 
 The tenant for life may join or concur with any other person 
 interested in executing any improvement authorized by the act, 
 or in contributing to the cost thereof (w). He, and each of 
 his successors in title (having a limited estate or interest only 
 in the settled land), must, during such period, if any, as the 
 commissioners prescribe, maintain and repair, at his own ex- 
 pense, every improvement executed under the act, and where 
 a building or work in its nature insurable against damage by 
 fire is comprised in the improvement, must insure the same, at 
 his own expense, in such amount, if any, as the commissioners 
 prescribe (o). 
 
 Further, neither he nor any of his successors may cut down, 
 or knowingly permit to be cut down, except in proper thinning, 
 any trees planted as an improvement, and they must, from time 
 
 (k) See Re Duke of Norfolk's 
 Settled Estates, (1900) 1 Ch. 461. 
 (0 S. L. Act, 1882, s. 26 (2). 
 
 ( m ) Ibid. s. 26 (3). 
 
 (n) Ibid. s. 27. 
 
 (o) Ibid. s. 28 (1). 
 
FORM OF SETTLEMENT OF REALTY. 
 
 43 O 
 
 to time, if required by the commissioners, report to the com- 
 missioners the state of every improvement executed, and the 
 fact and particulars of the fire insurance, if any (p). 
 
 The commissioners may vary any certificate made by them as 
 circumstances appear to require, but not so as to increase the 
 liabilities of the tenant for life, or any of his successors. If the 
 tenant for life, or any of his successors, fail to comply with the 
 requisitions of this section, or do any act in contravention 
 thereof, any person having, under the settlement, any estate or 
 interest in the settled land, has a right of action against the 
 tenant for life; and the estate of the tenant for life, after his 
 death, shall be liable to make good to the persons entitled under 
 the settlement any damages occasioned (q). 
 
 The tenant for life, and each of his successors as above, and 
 all persons employed by them, may from time to time enter on 
 the settled land, and, without impeachment of waste, thereon 
 execute any improvement authorized by the act, or inspect, 
 maintain and repair the same, and do, make, and use all acts, 
 works and conveniences proper for the execution, maintenance, 
 repair, and use thereof, and get and work freestone, limestone, 
 clay, sand, and other substances, and make tramways and other 
 ways, and burn and make bricks, tiles, and other things, and 
 cut down and use timber and other trees not planted or left 
 standing for shelter or ornament. 
 
 It is noticeable that the act gives no power to raise money 
 for improvements by mortgage of any part of the settled 
 estate. If it is desired to raise the money in this way recourse 
 must he had to the Board of Agriculture, with whose sanction 
 the money may bo raised by means of a rent-charge on the 
 land in manner prescribed by the Improvement of Land Acts, 
 1864 — 1899. The improvements authorized by these acts are 
 extended to comprise all the improvements authorized by the 
 Settled Land Acts for the application of capital money (r), 
 and the charges on the estate placed upon the property to 
 secure repayment of the money borrowed may be redeemed 
 with capital money (s). 
 
 Commis- 
 sioners’ 
 certificate 
 may be 
 varied. 
 
 As to waste 
 by tenant for 
 life in respect 
 of improve- 
 ments. 
 
 Raising 
 money for im- 
 provements. 
 
 (p) Hid. s. 28 (2) and (3). (r) Ibid. s. 30. 
 
 ( q ) Ibid. s. 28 (4) and (5). (s) S. L . Act, 1887. 
 
 F r 2 
 
BK. I., PT. V. 
 
 SETTLEMENTS. 
 
 
 Power to enter into Contracts. 
 
 Contracts by 
 tenant for 
 life. 
 
 Effect 
 
 thereof. 
 
 By s. 31, the tenant for life may contract to make any sale, 
 exchange, partition, mortgage, or charge, and rescind or vary 
 such contract when made, just as if he were the absolute owner 
 of the land, except that the contract as varied must be in con- 
 formity with the act. Any consideration paid to him for 
 varying or rescinding a contract will constitute capital money 
 under the act. He may also contract to make a lease, and in 
 making the lease may vary the terms, so that the lease be in 
 conformity with the act; and he may accept a surrender of a 
 contract for a lease, and make a new or other contract for a 
 lease, in like manner and on the like terms in and on which 
 he might make a new or other lease where a lease had been 
 granted. He may also generally enter into any contract to do 
 any act for carrying into effect any of the purposes of the act, 
 and may vary or rescind the same. Every such contract will 
 bind and be for the benefit of the settled land, and will 
 be enforceable by and against every successor in title for the 
 time being of the tenant for life, and may be carried into effect 
 by such successor, but so that it may be varied or rescinded by 
 such successor just as if it had been made by himself (£). 
 The court may give directions as to the enforcing, carrying 
 into effect, varying, or rescinding any such contract. A tenant 
 for life may make any conveyance necessary or proper for 
 giving effect to a contract entered into by a jmedecessor in 
 title, and which if made by such predecessor, would have been 
 valid as against his successors in title. 
 
 Dealings between Tenant for Life and Estate. 
 
 Sales to the 
 tenant for 
 life himself. 
 
 Lastly, where a sale of settled land is to be made to the 
 tenant for life, or a purchase is to be made from him of land 
 to be made subject to the limitations of the settlement, or an 
 exchange is to be made with him of settled land for other land, 
 or a partition is to be made with him of land an undivided 
 share whereof is subject to the limitations of the settlement. 
 
 ( t ) See Mogridge v. Clapp. (1892) 3 Ch. 382. 
 
FORM OF SETTLEMENT OF REALTY. 
 
 437 
 
 the trustees of the settlement will stand in the place of and 
 represent the tenant for life, and will, in addition to their 
 powers as trustees, have all the powers of: the tenant for life in 
 reference to negotiating and completing the transaction (■ u ). 
 
 Tr us tefis ’ Provisions . 
 
 The 38th to the 43rd sections relate to trustees, and provide, 
 inter alia, that if at any time there are no trustees within the 
 definition in the act, or it is expedient for the purposes of the 
 act to appoint new trustees, the court may, on the application of 
 the tenant for life, or any other person having under the settle- 
 ment an estate or interest in the settled land, or, in case of an 
 infant, of his guardian or next friend, appoint new trus- 
 tees (x). It has been decided under this provision that the 
 court will not appoint the tenant for life himself to be a trus- 
 tee (t/), nor the solicitor for the tenant for life ( 2 ); but there 
 is no reason why a woman should not be appointed in a case 
 where she appears to have exceptional qualifications (a). The 
 persons appointed by the court, and, till the appointment again 
 of new trustees, the representative of the last surviving or 
 continuing trustee, are to be the trustees of the settlement 
 within the act (6). Capital money must not be paid to fewer 
 than two persons as trustees unless the settlement authorizes 
 the receipt of capital trust money by one trustee (c) ; but it 
 may be paid to the Public Trustee acting as sole trustee ( d ). 
 
 Appointment 
 of trustees by 
 the court. 
 
 Number of 
 trustees to 
 act. 
 
 (■u) S. L. Act, 1890, s. 12. 
 
 ( x ) As to when it is necessary 
 to appoint trustees of a compound 
 settlement, see Be Meade, (1897) 
 
 1 Ir. R. 121; Be Tibbits, (1897) 
 
 2 Ch. 149; Be Keck and Hart, 
 (1898) 1 Ch. 617; Be Du Cane 
 and N ettlefold, (1898) 2 Ch. 96; 
 Be Mundy and Boper, (1899) 1 
 Ch. 275; Be Spencer, (1903) 1 
 Ch. 75; Be Cornwallis-West and 
 Munro, (1903) 2 Ch. 150; Be Lord 
 Winiborne and Browne, (1904) 1 
 
 Ch. 537; Be Spearman, (1906) 2 
 Ch. 502. 
 
 (y) Be Harrop (1883), 24 
 
 Ch. D. 717. 
 
 ( 2 ) Be Walker (1883), 48 L. T. 
 632; Be Spencer, (1903) 1 Ch. 75. 
 
 (a) Be Peake, (1894) 3 Ch. 520. 
 As to appointment of trustees in 
 a British colony, see Be Simpson, 
 (1897) 1 Ch. 256. 
 
 (5) S. L. Act, 1882, s. 38. 
 
 (c) Ibid. s. 39. 
 
 (' d ) Be Leslie's Hassop Estates, 
 
 (1911) 1 Ch. 611. 
 
438 
 
 56 & 57 Viet, 
 c. 53. 
 
 Trustees’ 
 
 receipts. 
 
 Protection 
 of trustees. 
 
 Trustees’ re- 
 imbursement. 
 
 Notice must 
 be given to 
 trustees 
 
 BK. I., PT. V. — SETTLEMENTS. 
 
 By s. 47 of the Trustee Act, 1893, all the powers and provi- 
 sions of that act with reference to the appointment of new 
 trustees, and the discharge and retirement of trustees, are to 
 apply to and include trustees for the purposes of the Settled 
 Land Acts, whether they are appointed by the court or by the 
 settlement, or under the provisions contained in the settle- 
 ment (e). 
 
 There is a provision in s. 40 of the Settled Land Act, 1882, 
 as to trustees’ receipts, which is practically the same as that 
 conferred on trustees by s. 20 of the Trustee Act, 1893 (/). 
 By s. 41 each trustee is answerable for what he actually re- 
 ceives only and in respect of his own acts, receipts and defaults 
 only; and s. 42 provides that trustees shall not be liable for 
 giving any consent, or for not making, bringing, taking, or 
 doing any such application, action, proceeding, or thing, as 
 they might do; and that, in case of the purchase of land with 
 capital money, or of an exchange, partition, or lease, they shall 
 not be liable for adopting any contract made by the tenant 
 for life, nor bound to inquire as to the propriety of the pur- 
 chase, exchange, partition, or lease, nor answerable as regards 
 any price, consideration, or fine, nor liable to see to, nor answer- 
 able for, the investigation of the title, nor answerable for a 
 conveyance of land, if the conveyance purports to convey the 
 land in the proper mode, nor liable in respect of purchase- 
 money paid by them by direction of the tenant for life to any 
 person joining in the conveyance as a conveying party, nor as 
 giving a receipt for the purchase-money, nor in any other 
 character, nor in respect of any other money paid by them by 
 direction of the tenant for life on the purchase, exchange, par- 
 tition, or lease. The trustees may reimburse themselves, or pay 
 and discharge out of the trust property all expenses properly 
 incurred by them (g ) . 
 
 Conditions precedent to the exercise of the Powers. 
 
 The powers given to the tenant for life are not to be exer- 
 cised without restriction. By s. 45, before exercising his power 
 
 (e) See also s. 8 of the Con- (/) See ante, p. 392. 
 veyancing Act, 1911. ( g ) S. L. Act, 1882, s. 43. 
 
FORM OF SETTLEMENT OF REALTY. 
 
 439 
 
 to sell, to exchange, make a partition, mortgage, charge or 
 —subject to s. 7 of the act of 1890 — lease, the tenant for life 
 must give notice of his intention so to do to each of the trustees 
 of the settlement, by posting registered letters, containing the 
 notice, addressed to the trustees, severally, each at his usual or 
 last-known place of abode in the United Kingdom, and must 
 give like notice to the solicitor for the trustees, if any such 
 solicitor is known to the tenant for life, by posting a regis- 
 tered letter, containing the notice, addressed to the solicitor 
 at his place of business in the United Kingdom, every letter 
 under this section being posted not less than one month before 
 the making by the tenant for life of the sale, exchange, par- 
 tition, lease, mortgage, or charge, or of a contract for the same. 
 At the date of notice given the number of trustees must not 
 be less than two, unless a contrary intention is exjmessed in the 
 settlement, or unless the one trustee is the Public Trustee (/&). 
 A person dealing in good faith with the tenant for life is not 
 concerned to inquire respecting the giving of any such notice 
 as is required by this section. 
 
 By s. 5 of the act of 1884 the notice may be a general 
 notice: provided, however, that on the request of the trustees 
 the tenant for life must from time to time furnish particulars 
 as to any sales, exchanges, partitions or leases, either carried 
 out or in progress, or immediately intended. But the trustees 
 may, in writing, waive notice in any particular case or gene- 
 rally, or may accept less than a month’s notice. The act of 
 1884 does not in express terms allow the notice to the solicitor 
 of the trustees to be dispensed with or shortened; but as the 
 trustees can dispense with or shorten the notice to themselves, 
 they can, it would appear, dispense, &c. also with notice to 
 their solicitor. The provision of the act of 1884 as to giving 
 a general notice does not seem to apply to the case of a mort- 
 gage or charge, and therefore the notice in that case should be 
 a specific notice (i ) . It will be observed that the number of 
 trustees to whom the notice is to be given must at least be two, 
 
 ( h ) Public Trustee Act, 1906, (i) See Re Ray's Settled Estates 
 
 s. 5; Re Leslie's Hassop Estates, (1884), 25 Oh. D. 464. 
 
 (1911) 1 Ch. 611. 
 
 before 
 exercise of 
 the powers. 
 
 A general 
 notice is 
 sufficient. 
 
 Waiver of 
 notice. 
 
 Notice of 
 intention to 
 mortgage. 
 
440 
 
 SETTLEMENTS. 
 
 BK. I., PT. V. 
 
 Purposes for 
 which the 
 consent of 
 trustees is 
 required. 
 
 except where the Public Trustee is acting. Suppose there are 
 not two trustees at the time the tenant for life wishes to exercise 
 his powers, he must apply to the court under s. 38 of the act to 
 appoint the requisite number of trustees, and the sale will be 
 restrained until such appointment has been obtained and the 
 proper notice has been given (fc). 
 
 Generally, although the tenant for life is required to give 
 notice, he does not, in exercising his statutory powers, require 
 any consent from the trustees or from the remainderman, or 
 from the court, but acts independently of them. For certain 
 purposes, however, he must obtain leave; thus, he must obtain 
 the leave of the court or the consent of the trustees if he wishes 
 to sell, exchange, or lease the principal mansion house and the 
 pleasure grounds and park and lands usually occupied there- 
 with; but where the house is usually occupied as a farm 
 house, or where the site of any house and the pleasure grounds 
 and park and lands if any) usually occupied therewith do not 
 altogether exceed twenty-five acres, the house is not to he 
 deemed a principal mansion house for the purpose of the act ( l ); 
 or if, being tenant for life impeachable for waste, he wishes 
 to cut the timber, he must obtain either the consent of the 
 trustees or the leave of the court (m) . And if he wishes to sell 
 chattels which are settled to go with the land (often callted 
 heirlooms), he must first obtain the leave of the court (n). 
 
 ( k ) See Wheelwright v. Walker 
 (1883), 23 Ch. D. 752. 
 
 (. I ) S. L. Act, 1890, s. 10. See 
 Bruce v. Marquis of Aileshury, 
 (1892) A. C. 356, as to the prin- 
 ciples by which the court should 
 be guided in authorizing a sale of 
 the mansion house. 
 
 (m) S. L. Act, 1882, s. 35. 
 
 ( n ) Ibid. s. 37; see Re Hough- 
 ton Estate (1885), 30 Ch. D. 102. 
 The court will not sanction a sale 
 
 unless the tenant for life shows 
 some good reason for it: Re The 
 Earl of Radnor (1880), 45 Ch. D. 
 402; Re Hope, (1899) 2 Oh. 679; 
 Re Hope (1910), 26 T. L. E. 413; 
 Re Sebright (1912), 28 T. L. E. 
 191. On the sale of the mansion 
 house the court has power to order 
 the removal of the settled chattels : 
 Browne v. Collins (1890), 62 L. T. 
 566. 
 
FORM OF SETTLEMENT OF REALTY. 
 
 441 
 
 Gen eral Pro vis ions . 
 
 The powers conferred by the act are not capable of assign- 
 ment or release, and do not pass to a person as being, by opera- 
 tion of law or otherwise, an assignee of a tenant for life, and 
 remain exercisable by the tenant for life after and notwith- 
 standing any assignment, by operation of law or otherwise, of 
 his estate or interest under the settlement (o ) ; so that neither 
 a purchaser of the life estate nor the trustee in bankruptcy of 
 the tenant for life can exercise the powers (p ) ; and a tenant 
 for life can sell, though the estate is being administered by the 
 court (q). 
 
 A contract by a tenant for life not to exercise any of his 
 powers under the act is void (r ) . 
 
 But this section is to operate without prejudice to the rights 
 of any person being* an assignee for value of the estate or 
 interest of the tenant for life; and in that case the assignee’s 
 rights are not to be affected without his consent, except that, 
 unless the assignee is actually in possession of the settled land, 
 or part thereof, his consent is not requisite for the making of 
 leases thereof by the tenant for life, provided the leases are made 
 at the best rent that can reasonably bo obtained, without fine, 
 and in other respects are in conformity with the act ( s ) . Where 
 the assignee's consent is required, e.g., to a sale by the tenant 
 for life, he is not a necessary party to the conveyance, nor need 
 his consent be given in writing (t). 
 
 The position of a tenant for life who has assigned his interest 
 in regard to the exercise of the statutory powers has been 
 modified by s. 4 of the act of 1890, which enables a tenant for 
 
 Powers 
 cannot be 
 assigned. 
 
 Contract not 
 to exercise 
 invalid ; 
 
 assignee for 
 value not to 
 be prejudiced. 
 
 Assignment 
 by way of 
 settlement . 
 
 (o) S. L. Act, 1882, s. 50 (1); 
 but see Re Bruen's Estate, (1911) 
 
 1 Ir. R. 76. 
 
 (p) See Re Mansel’s Settled 
 Estates, W. N. (1884) 209. 
 
 ( q ) Cardigan v. Curzon-Howe 
 (1885), 30 Ch. D. 629. 
 
 (r) S. L. Act, 1882, s. 50 (2). 
 
 (s) Ibid. s. 50 (3). In this 
 section “ assignment ” includes 
 
 assignment by way of mortgage 
 and any partial or qualified as- 
 signment and any charge on in- 
 cumbrance; and “ assignee ” has 
 a meaning corresponding with 
 that of assignment, ibid, sub- 
 s. (4). 
 
 (£) Re Dichin and Kelsall, 
 (1908) 1 Ch. 213. 
 
442 
 
 BK. I. ? PT. Y. SETTLEMENTS. 
 
 Tenant for 
 life cannot be 
 prohibited 
 from exer- 
 cising- his 
 powers. 
 
 Nor does the 
 exercise of 
 any power 
 work a 
 forfeiture. 
 
 Tenant for 
 life is trustee 
 for all parties 
 interested. 
 
 life who has made an assignment of or created a charge upon 
 his life interest by way of marriage settlement or family 
 arrangement to exercise the statutory powers; for the instru- 
 ment assigning or charging his interest is in this case to be 
 deemed one of the instruments creating the settlement and not 
 an instrument vesting in a person a right as assignee for value 
 within s. 50 of the act of 1882 (u). 
 
 Sect. 51 prevents the tenant for life being prohibited in any 
 manner whatever from exercising the powers conferred by the 
 act, even though the prohibition may arise not from the settle- 
 ment itself but from a separate instrument ( x ) ; and for the 
 purposes of this section, an estate or interest limited to continue 
 so long only as a person abstains from exercising any power 
 shall be and take effect as an estate or interest to continue for 
 the period for which it would continue if that person were to 
 abstain from exercising the power, discharged from liability to 
 determination or cesser by or on his exercising the same ( y ). 
 By s. 52, notwithstanding anything in a settlement, the exercise 
 by the tenant for life of any power under the act is not to 
 occasion a forfeiture. In connection with these provisions, it 
 has been held that a gift over on ceasing to reside in a particu- 
 lar house on the settled estate may be defeated by an exercise 
 of the statutory power of sale or leasing ( 2 ), though until the 
 house is sold or leased such a condition is good, and obliges the 
 tenant for life so to reside ( a ). 
 
 A tenant for life, in exercising any power under the acts, 
 must have regard to the interests of all parties entitled under 
 
 (u) This does not make it ne- 
 cessary to appoint trustees of the 
 compound settlement before the 
 tenant for life can exercise his 
 statutory powers: Re Keck and 
 Hart, (1898) 1 Ch. 617; Re Du 
 Cane and Nettlefold, (1898) 2 Oh. 
 96; Be Mundy and Roper, (1899) 
 1 Ch. 275; Be Lord Wimborne 
 and Browne, (1904) 1 Ch. 537. 
 These cases render the decisions 
 in Re Meade's S. E., (1897) 1 
 Ir. B. 121; and Re Tibbit's S. E., 
 
 (1897) 2 Ch. 149, doubtful. 
 
 (cc) Re Smith, Grose-Smith v. 
 Bridger, (1899) 1 Ch. 331. 
 
 (y) See Re Dairy mple, Bircham 
 v. Springfield (1901), 49 W. B. 
 627. 
 
 ( 2 ) Re Paget's S. E. (1885), 30 
 Ch. D. 161; Re Freme, Samuel 
 v. Freme (1912), 56 S. J. 362. 
 
 (a) Re Haynes, Kemp v. 
 Haynes (1887), 37 Ch. D. 306; 
 and see Ames v. Ames, (1893) 2 
 Ch. 479. 
 
FORM OF SETTLEMENT OF REALTY. 
 
 443 
 
 the settlement, and is, in relation to the exercise thereof by 
 him, to be deemed to be in the position and to have the duties 
 and liabilities of a trustee for those parties (6). 
 
 On a sale, exchange, partition, lease, mortgage, or charge, 
 a purchaser, lessee, mortgagee, or other person dealing in good 
 faith with a tenant for life, is, as against all parties entitled 
 under the settlement, conclusively taken to have given the best 
 price, consideration, or rent, as the case may require, that could 
 be reasonably obtained by the tenant for life, and to have com- 
 plied with all the requisitions of the act (<?). 
 
 Where a tenant for life or the trustees of the settlement 
 exercise the various powers given to them by the act, they may 
 execute, make, and do all deeds, instruments, and things neces- 
 sary or proper in that behalf (d ) . 
 
 Sect. 56 provides that nothing in the act shall take away, 
 abridge, or prej udicially affect any power for the time being 
 subsisting under a settlement or by statute or otherwise, exer- 
 cisable by a tenant for life or by trustees with his consent or 
 on his request or by his direction or otherwise; and that the 
 powers given by the act are cumulative (e) ; but in case there 
 is any conflict between the provisions of a settlement and those 
 of the act as to such powers, the provisions of the act are to 
 prevail (/) ; accordingly, notwithstanding anything in the 
 settlement, the consent of the tenant for life will be necessary 
 to the exercise by the trustees of the settlement or other person 
 of any power conferred by the settlement, exercisable for any 
 purpose provided for in the act. It has been held that a pur- 
 chaser from the trustees cannot insist on the tenant for life 
 concurring in the conveyance, but is only entitled to evidence 
 that he lias in fact consented ( g ) . If any question arises, or 
 doubt is entertained, respecting any matter within the section, 
 
 Protection of 
 purchasers, 
 
 &c. 
 
 Power to 
 execute all 
 necessary 
 deeds. 
 
 Powers in 
 settlement are 
 cumulative. 
 
 (6) S. L. Act, 1882, s. 53. See 
 Hampden v. Buckinghamshire, 
 (1893) 2 Ck. 531; Sutherland v. 
 Sutherland , (1893) 3 Ch. 169; 
 Middlemas v. Stevens, (1901) 1 
 Ch. 574; Re Hunt, (1906) 2 Ch. 
 11 . 
 
 (c) S. L. Act, 1882, s. 54. 
 
 ( d ) Ibid. s. 55. 
 
 (e) See Re Sudbury and Boyn- 
 ton Estates, (1893) 3 Ch. 74. 
 
 (/) See Re Houghton Estate 
 (1885), 30 Ch. D. 102. 
 
 ( g ) Re Pope and Easte's Con- 
 tract, (1911) 2 Ch. 442. 
 
444 
 
 SETTLEMENTS. 
 
 Settlements 
 may confer 
 additional 
 powers. 
 
 Enumeration 
 of limited 
 owners who 
 are to have 
 powers of 
 tenant for 
 life. 
 
 BK. I., PT. V. 
 
 the court may, on the application of the trustees or of the 
 tenant for life, or of any other person interested, give its de- 
 cision, opinion, advice, or direction. Where two or more per- 
 sons together constitute the tenant for life, the consent of any 
 one of those persons to the exercise of any power by the trustees 
 of the settlement is sufficient (Ji). 
 
 Nothing in the act is to preclude a settlor from conferring 
 on the tenant for life, or the trustees, any powers additional 
 to, or larger than, those conferred by the act; and any such 
 powers so conferred will, in spite of the act, operate and be 
 exercisable just as if they were conferred by the act, unless a 
 contrary intention is expressed in the settlement (i ) . 
 
 Limited Owners having Powers of Tenant for Life. 
 
 Sect. 58 of the act provides that each of the following persons 
 shall, when their estates or interests are in possession, have 
 the powers of a tenant for life under the act, just as if they 
 were tenants for life defined thereby: — 
 
 (i.) A tenant in tail, including 1 a tenant in tail who is by act 
 of parliament restrained from barring or defeating his 
 estate tail, and although the reversion is in the crown, 
 and so that the exercise by him of his powers under 
 this act shall bind the crown; but not including such 
 a tenant in tail where the land in respect whereof he 
 is so restrained was purchased with money provided 
 by parliament in consideration of public services: 
 (ii.) A tenant in fee simple, with an executory limitation, 
 gift, or disposition over, on failure of his issue, or 
 in any other event (Ar): 
 
 (iii.) A person entitled to a base fee, although the reversion 
 is in the crown, and so that the exercise by him of his 
 powers under this act shall bind the crown: 
 
 (iv.) A tenant for years determinable on life, not holding 
 merely under a lease at a rent(Z): 
 
 {h) S. L. Act, 1884, s. 6 (2). (1911), 105 L. T. 332. 
 
 (?) S. L. Act, 1882, s. 57. (?) See Re Hazle's Settled 
 
 \h) See Re Walmslei/s S. E. Estates (1884), 26 Ch. D. 428. 
 
FORM OF SETTLEMENT OF REALTY. 
 
 445 
 
 (v.) A tenant for the life of another, not holding merely 
 under a lease at a rent: 
 
 (vi.) A tenant for his own or any other life, or for years 
 determinable on life, whose estate is liable to cease in 
 any event during that life, whether by expiration of 
 the estate, or by conditional limitation, or other- 
 wise (m), or to be defeated by an executory limita- 
 tion, gift, or disposition over, or is subject to a trust 
 for accumulation of income for payment of debts or 
 other purpose (wi): 
 
 (vii.) A tenant in tail after possibility of issue extinct: 
 
 (viii.) A tenant by the curtesy: 
 
 (ix.) A person entitled to the income of land under a trust 
 or direction for payment thereof to him during his 
 own or any other life, whether subject to expenses of 
 management or not*, or until sale of the land, or until 
 forfeiture of his interest therein on bankruptcy or 
 other event (o) . 
 
 Besides this, s. 59 provides that where a person, who is in 
 his own right seised of or entitled in possession to land, is an 
 infant, then for purposes of the act the land is settled land, 
 and the infant is to be deemed tenant for life thereof. 
 
 Tenants for Life under Disability . 
 
 With a view to facilitate the exercise of the powers conferred 
 on the tenant for life, the act makes special provisions to meet 
 the several cases of the tenant for life being an infant, a 
 married woman, or a lunatic. These provisions are as 
 follow: — 
 
 Where a tenant for life, or a person having the powers of a 
 tenant for life under the act, is an infant, or an infant would, 
 if he were of full age, be a tenant for life, or have the powers of 
 a tenant for life under this act, the powers of a tenant for life 
 
 (m) See Re Paget (1885), 30 (n) Re Llewellyn, (1911) 1 Ch. 
 
 Ch. D. 161; and Re Sumner, 451. 
 
 (1911) 1 Ch. 315. (o) See Re Sumner, supra ; and 
 
 Re Jones (1884), 26 Ch. D. 736. 
 
 Infant abso- 
 lutely entitled 
 to be tenant 
 for life. 
 
 As to the 
 exercise of 
 powers 
 conferred on 
 a tenant for 
 life — 
 
 (i) When an 
 infant ; 
 
446 
 
 BK. I., PT. V. 
 
 SETTLEMENTS. 
 
 (ii) When a 
 married 
 woman ; 
 
 (iii) When a 
 lunatic. 
 
 under this act may be exercised on his behalf by the trustees of 
 the settlement, and if there are none, then by such person and 
 in such manner as the court, on the application of a testa- 
 mentary or other guardian or next friend of the infant, either 
 generally or in a particular instance orders (p). 
 
 With regard to married women, it is provided (g) that: — 
 
 (1.) Where a married woman who, if she had not been a 
 married woman, would have been a tenant for life 
 or would have had the powers of a tenant for life 
 under the foregoing provisions of this act, is en- 
 titled for her separate use, or is entitled under any 
 statute, passed or to be passed, for her separate 
 property, or as a feme sole, then she, without her 
 husband, shall have the powers of a tenant for life 
 under this act. 
 
 (2.) Where she is entitled otherwise than as aforesaid, then 
 she and her husband together shall have the powers 
 of a tenant for life under this act. 
 
 (3.) The provisions of this act referring to a tenant for 
 life and a settlement and settled land shall extend 
 to the married woman without her husband, or to 
 her and her husband together. 
 
 (4.) The married woman may execute all deeds and do all 
 things necessary to give effect to the provisions of 
 the section. 
 
 (5.) A restraint on anticipation in the settlement is not to 
 prevent the exercise by her of any power under the 
 act. 
 
 By s. 62, where a tenant for life, or a person having the 
 powers of a tenant for life under the act, is a lunatic, so found 
 by inquisition, the committee of his estate may, in his name 
 and on his behalf, under an order of the Lord Chancellor or 
 other person intrusted by virtue of the kings sign manual with 
 the care and commitment of the custody of the persons and 
 estates of lunatics, exercise the powers of a tenant for life under 
 this act; jand the order may be made on the petition of any 
 
 (p) S. L. Act, 1882 , s. 60 . 
 
 (q) Ibid. s. 61 . 
 
FORM OF SETTLEMENT OF REALTY. 
 
 447 
 
 person interested in the settled land, or of the committee of 
 the estate (r). 
 
 Settlements oj Land upon Trust for Sale. 
 
 The last provision of the act which need be noticed is that 
 contained in s. 63, as read with s. 7 of the Settled Land Act, 
 1884, and s. 10 of the Conveyancing Act, 1911, the object of 
 which is to make the provisions of the act apply to the case 
 where land is vested in trustees upon trust to sell, with power 
 for them to postpone the sale at their discretion, and where 
 such directions are followed by a settlement of the proceeds 
 of the sale in the form made use of for the settlement of per- 
 sonal estate (s). The section provides that in such a case the 
 money arising from the sale, or the income of the money, or 
 the income of the land till sale, shall be deemed to be settled 
 land, and the person for the time being entitled to such income 
 shall be deemed to be the tenant for life. All the provisions 
 of the act are then to apply, except that any reference in the 
 act to remaindermen, reversioners, predecessors or successors 
 in title, shall be deemed to refer to the persons interested in 
 succession in the money. But by s. 7 of the act of 1884, a 
 tenant for life under a settlement coming within s. 63 of the 
 act of 1882 can only exercise the powers given by that act by 
 the leave of the court (t). So long as an order of the court 
 
 (r) See Re Baggs, (1894) 2 Ch. 
 416, n., which, however, appears to 
 be superseded by the Lunacy Act, 
 1908, s. 1; see also Re Catherine 
 Salt, (1896) 1 Ch. 117; Re X., 
 (1894) 2 Ch. 415; and Re S. S. B., 
 (1906) 1 Ch. 712. The court may 
 authorize a sale of a lunatic’s share 
 in settled land to be made to the 
 owner of the other share in the 
 land : Re Gait shell (1889), 40 
 Ch. D. 416. Where a sale is au- 
 thorized, the court may direct the 
 committee to convey as beneficial 
 owner, so as to bind the lunatic 
 by the covenants for title implied 
 
 by s. 7 of the Conveyancing Act, 
 1881: Re Ray, (1896) 1 Ch. 468. 
 
 (s) See ants, pp. 400 et seq. 
 
 (t) See Re Bagot's Settlement, 
 (1894) 1 Ch. 177. The trustees 
 are primd facie the proper persons 
 to determine how the land is to be 
 sold, unless the court, under this 
 section, gives the tenant for life 
 leave to exercise the statutory 
 power of sale, which it will do if 
 satisfied that a sale will be fit and 
 proper and for the benefit of all 
 the persons interested: Re Hard- 
 ing's Estate, (1891) 1 Ch. 60. 
 
 Land settled 
 upon trust 
 for sale. 
 
 Sale by tenant 
 for life. 
 
448 
 
 Sale by the 
 trustees. 
 
 Effect of 
 the acts. 
 
 BK. 1., PT. V. SETTLEMENTS. 
 
 giving any leave to any person to execute any of such powers 
 is in force; neither the trustees of the settlement nor any person 
 other than he to whom the leave is given is to execute any trust 
 or power created by the settlement for any purpose for which 
 leave is given by the court. An order giving such leave may 
 be registered as a Us pendens, and persons dealing with the 
 trustees will not be affected by it unless it is so registered. 
 Though the tenant for life under a settlement falling within 
 the 63rd section of the act of 1882, cannot sell the land without 
 the leave of court, yet it is expressly enacted by s. 6 of the act 
 of 1884, that the trustees can sell the property without the 
 consent of the tenant for life (u). 
 
 With the view of enabling the draughtsman of a settlement 
 of personalty or of land upon trust for sale which contains a 
 power to purchase land to dispense with the somewhat lengthy 
 clauses usually inserted to provide for the sale of the land pur- 
 chased, and the application of the rents and profits until sale, 
 s. 10 of the Conveyancing Act, 1911, provides (as to settle- 
 ments coming into operation after 1911), that where a settle- 
 ment within the meaning of s. 63 of the Settled Land Act, 
 1882, or other settlement of property as personal estate con- 
 tains a power to invest money in the purchase of land, such land 
 shall, unless the settlement otherwise provides, be held by the 
 trustee upon trust for sale with power to postpone the sale, 
 and the net rents and profits until sale after bringing down the 
 costs of repairs, insurance, and other outgoings shall be paid 
 or applied in like manner as the income of investments repre- 
 senting the purchase-money would be payable or applicable 
 if a sale had been made and the proceeds had been duly invested 
 in personal estate (x ) . 
 
 From the above epitome it will be seen that the general effect 
 of the Settled Land Acts is to liberate the settled land, so far 
 as the exercise of any particular power extends, from the limi- 
 tations and trusts of the settlement and to transfer their opera- 
 tion to the money investments, land, or other net proceeds 
 obtained by exercising the power. 
 
 (u) See on s. 63, Be Earle and compare Be Wagstaff, (1909) 2 
 Webster (1883), 24 Ch. D. 144; Ch. 201. 
 
 Be Goodall, (1909) 1 Ch. 440, and (a?) 1 & 2 Geo. 5, c. 37, s. 10. 
 
VOLUNTARY SETTLEMENTS. 
 
 449 
 
 VI. — VOLUNTARY SETTLEMENTS. 
 
 A settlement made before and in consideration of the mar- 
 riage is deemed to be made for valuable consideration. But 
 the marriage consideration may not extend to all of the parties 
 interested under it. The husband, the wife, and the issue of 
 the marriage are all within the marriage consideration; and, 
 so far as they derive any interest under the settlement, are 
 treated as having given valuable consideration for it. But 
 limitations in favour of the husband’s or wife’s issue by a 
 previous marriage (y), or of the collateral relations of the 
 settlor, are not considered as being founded on valuable con- 
 sideration, and the beneficiaries are mere volunteers (z ) . 
 
 A settlement made after marriage but in pursuance of an 
 ante-nujjtial agreement stands in the same position as an ante- 
 nuptial settlement (a). 
 
 Any other settlement than the foregoing unless it is made 
 for valuable consideration is called a voluntary settlement. 
 
 Voluntary settlements are liable to be avoided under several 
 statutes. First, by 13 Eliz. c. 5 — which, omitting unnecessary 
 verbiage, is an act for avoiding gifts, grants, and conveyances 
 as well of lands and tenements as of goods and chattels devised 
 to the intent to delay, hinder or defraud creditors and others — 
 every gift, grant and conveyance of lands, tenements, heredita- 
 ments, goods and chattels or any of them by writing or other- 
 wise to or for any intent or purpose before declared shall be 
 deemed (only against that person hindered, delayed or de- 
 frauded) to be void (&). But the act is not to extend to any 
 estate or interest in lands, tenements or hereditaments, goods or 
 chattels, upon good consideration and bond fide conveyed or 
 
 ( y ) See Re Cameron and Wells 
 (1887), 37 Ch. D. 32; De Mestre 
 v. West, (1891) A. C. 264; Att.- 
 Gen. y. Jacobs- Smith, (1895) 1 
 Q. B. 272. 
 
 (s) See Johnson v. Regard 
 (1817), 3 Madd. 283; 6 M. & S. 
 
 60; compare Clayton v. Earl 
 Wilton, ibid. 302, 67. 
 
 (а) This applies, even though 
 the agreement was made verbally, 
 if it be recited in the settlement: 
 Re Holland, Gregg v. Holland, 
 (1902) 2 Ch. 360. 
 
 (б) s. 1. 
 
 Marriage a 
 valuable 
 consideration 
 for a settle- 
 ment. 
 
 When post- 
 nuptial settle- 
 ments are for 
 value. 
 
 Voluntary 
 settlements. § 
 
 Voluntary 
 settlements 
 are liable to 
 be avoided. 
 
 (i) Under 
 13 Eliz. c. 5. 
 
 G. — C. 
 
 G G 
 
450 
 
 BK. I., PT. V. SETTLEMENTS. 
 
 Effect of 
 statute. 
 
 Includes 
 
 (a) settlements 
 for value ; 
 
 (b) voluntary 
 settlements. 
 
 assured to any person not having at the time notice of such 
 fraud (c) . 
 
 It will be seen that the statute speaks of fraudulent, not 
 voluntary, dispositions; consequently a settlement cannot be set 
 aside under it merely because it is voluntary; it must also be 
 shown to be fraudulent. Conversely, the exception only being 
 in favour of conveyances upon good (which here means valu- 
 able) consideration and bond fide , a settlement may be set aside 
 under it, even though for value, if shown to be fraudulent. 
 
 Accordingly, an ante-nuptial settlement made by a man on 
 a woman with whom he has been previously living, and with 
 whom he goes through a form of marriage, if made merely for 
 the purpose of defrauding the husband’s creditors, is void pro- 
 vided the wife is aware of all the facts (d). So also is a settle- 
 ment made by an insolvent person in favour of his intended 
 wife who at the time of the marriage and the settlement was 
 fully aware of the settlor’s impecunious state, and where, but 
 for the desire to put the husband’s property out of the reach of 
 his creditors, the marriage would never have taken place (e). 
 On the other hand, a voluntary conveyance, though not neces- 
 sarily void under the statute, will, in the absence of evidence to 
 the contrary, be presumed to have been made with the intent to 
 defeat creditors, if that is its necessary effect (/) . This is so 
 even though the settlor could have paid his debts at the date of 
 the settlement without the aid of the property comprised 
 therein, if he contemplated a state of things which might not 
 improbably result in bankruptcy or insolvency, as if he were 
 engaged in a hazardous business or were incurring heavy liabili- 
 ties ( g :) . The court, however, is not bound to presume an 
 intent to defeat or defraud creditors merely because they are 
 defeated or defrauded as a necessary consequence of the settle- 
 
 (c) s. 5; see Holmes v. Penney 
 (1857), 26 L. J. Ch. 179; Re 
 Johnson (1881), 20 Ch. D. 389. 
 
 ( d ) Columbine v. Penhall 
 (1853), 1 Sm. & G. 228; Bulmer 
 v. Hunter (1869), L. E. 8 Eq. 46. 
 
 (e) Re Pennington , Ex parte 
 Cooper (1889), 59 L. T. 774. 
 
 (/) Freeman v. Pope (1870), 
 L. E. 5 Ch. App. 538. 
 
 ( g ) Machay v. Douglas (1872), 
 T. E. 14 Eq. 106 ; Ex parte 
 Russell (1882), 19 Ch. D. 588. 
 
VOLUNTARY SETTLEMENTS. 
 
 451 
 
 ment. And although a settlement has this effect, it will be 
 good if it appears from the evidence that the settlor had no such 
 intent (A). In other words, the presumption of intent to 
 defraud is a presumptio\ juris , not a presumption juris et de 
 jure. A voluntary deed may be set aside by a person who 
 became a creditor of the settlor after the deed, even though there 
 remains no creditor whose debt was in existence at the date of 
 the settlement (i). The plea of laches is no defence to an 
 action under the statute, and so a voluntary conveyance can be 
 impeached at any distance of time, provided that the plaintiff’s 
 debt is not statute barred (Tc). 
 
 Secondly, by 27 Eliz. c. 4, s. 2, every conveyance, grant, 
 charge, lease, estate, incumbrance, and limitation of uses of, 
 in, or out of any lands, tenements, or other hereditaments, for 
 the intent and of purpose to defraud and deceive purchasers, 
 is void as against subsequent purchasers. Sect. 4 excepts any 
 conveyance, &c. made upon good (i.e. t valuable) consideration 
 and bona fide. It will be noticed that this statute also refers 
 not to voluntary but to fraudulent conveyances; the construc- 
 tion put upon the statute by the courts, however, was that, 
 if a voluntary conveyance was made and subsequently the land 
 comprised in it was sold by the grantor to a purchaser, the 
 very fact of the subsequent sale was evidence that the volun- 
 tary conveyance was fraudulent (Z); so that practically every 
 voluntary settlement of land was void against a subsequent 
 purchaser. But it has been expressly provided by the Volun- 
 tary Conveyances Act, 1893, that no voluntary conveyance 
 (which expression includes every mode of disposition mentioned 
 or referred to in 27 Eliz. c. 4) of any lands, tenements or 
 hereditaments, whether made before or after the passing of the 
 act (29th June, 1893), if, in fact, made bona fide and without 
 anjr fraudulent intent, shall hereafter be deemed fraudulent 
 within the meaning of 27 Eliz. c. 4, by reason of any subse- 
 
 ( h ) Ex parte Mercer, Re Wise 
 
 (1886), 17 Q. B. D. 290. 
 
 (i) Taylor v. Coenen (1876), 
 1 Ch. D. 636; Ware v. Gardner 
 (1869), L. B. 7 Eq. 317. 
 
 ( k ) Three Towns Banking Co. 
 v. Maddever (1883), 27 Cli. D. 
 523. 
 
 (Z) Doe v. Manning (1807), 2 
 East, 59. 
 
 (ii) Under 
 27 Eliz. c. 4. 
 
 56 & 57 Viet, 
 c. 21. 
 
 G G 2 
 
452 
 
 BK. I., PT. V. SETTLEMENTS. 
 
 Effect of the 
 statutes. 
 
 (iii) Under 
 s. 47 of 
 46 & 47 Viet, 
 c. 52. 
 
 Construction 
 of the statute, 
 
 quent purchase for value, or be defeated under any of the 
 provisions of that act by a conveyance made upon any such 
 purchase, any rule of law notwithstanding (m). It will be 
 observed that the act is retrospective, and prevents voluntary 
 settlements, whether made before or since the 29th June, 1893, 
 being defeated by a sale made after that date; but by s. 3 
 it is expressly provided that the act is not to apply to any 
 case in which, before the passing of the act, the author of such 
 a voluntary conveyance had disposed of, or dealt, with, the lands, 
 &c. comprised therein, to, or in favour of, a purchaser for value. 
 
 Consequently, in future, where A. has settled his land by 
 a voluntary deed, provided he had no intent to defraud, a 
 subsequent sale of the property will not defeat the title of the 
 voluntary grantees under 27 Eliz. c. 4. That act, however, 
 is not repealed, and where the settlement is not merely volun- 
 tary but actually fraudulent, it will still be void under that 
 act, if the land is subsequently sold to a purchaser whose rights 
 the settlement was intended to defeat. 
 
 Lastly, by s. 47 of the Bankruptcy Act, 1883, a voluntary 
 settlement will, if the settlor becomes bankrupt ( n ) within two 
 vears after the date of the settlement, be void as against the 
 trustee in the bankruptcy; and will, if he becomes bankrupt at 
 any subsequent time within ten years after the date of the 
 settlement, be void against the trustee in the bankrnptcy unless 
 the parties claiming under it can prove that the settlor was at 
 the time of making the settlement able to j)ay all his debts 
 without the aid of the jn’operty comprised in the settlement, 
 and that the interest of the settlor in such property has passed 
 to the trustee on the execution thereof. The term ‘‘settle- 
 ment'’ is defined by the section to include “any conveyance 
 or transfer of property,” so that even a gift by a man to his 
 wife is within the statute (o) . 
 
 It has been held that the word “void” must be read as if it 
 
 (m) See ss. 2 and 4. 
 
 ( n ) See Re Reis, Ex parte 
 Clough, (1904) 1 K. B. 451; re- 
 versed by C. A. on another 
 ground, (1904) 2 K. B. 769. The 
 
 decision of the C. A. was affirmed 
 by H. L., sub nom. Clough v. 
 Samuel, (1905) A. C. 442. 
 
 (o) Be Vansittart, (1893) 2 
 Q. B. 377. 
 
VOLUNTARY SETTLEMENTS. 
 
 453 
 
 were “voidable,” and that if the person interested under a 
 voluntary settlement disposes for value of the property com- 
 prised in it before the trustee in bankruptcy takes steps to 
 avoid it, the disposition cannot be set aside (p). 
 
 Although, as appears from the foregoing, a voluntary settle- 
 ment may in some circumstances be avoided by third persons, it 
 is nevertheless as binding on the settlor as a settlement for 
 value, and cannot be revoked or varied by him, if it constitutes 
 a valid trust (g) . Nor will the court set it aside unless it was 
 induced by fraud, misrepresentation, undue influence or other 
 invalidating cause. If a person of full age and of sound mind 
 executes a voluntary conveyance, he cannot have it set aside 
 without giving substantial reasons why the transaction should 
 not stand; and if the settlor fully understands the effect of the 
 settlement, the mere absence of a power of revocation will not 
 invalidate the deed even though it be voluntary (r) ; the absence 
 of a power of revocation, however, may be a factor in inducing 
 the court to set aside a voluntary settlement (s), and a solicitor 
 acting' for a person about to make a voluntary settlement ought 
 to suggest to him the propriety of inserting such a power. 
 
 It must, however, be remembered that, where a settlement or 
 trust is voluntary, it will not be enforced unless it is a perfect 
 trust. A trust is said to be perfect when (a) the settlor has 
 transferred or done all in his power to transfer the trust pro- 
 perty to the trustee, or (b) has declared himself, or directed the 
 person in whose control it is to be a trustee thereof . Conse- 
 quently, where a father covenanted to surrender copyholds to 
 the use of trustees, to be held by them on trusts for the benefit 
 of his daughters, but died without having surrendered them, 
 
 A voluntary 
 settlement 
 cannot be 
 revoked by 
 settlor. 
 
 Solicitor’s 
 
 duty. 
 
 Agreements 
 for voluntary 
 settlements 
 are not 
 enforced. 
 
 (p) Re Brail, (1893) 2 Q. B. 
 381; Re Carter and Kenderdine, 
 (1897) 1 Oh. 776; Re Tankard, 
 Ex parte the Official Receiver, 
 (1899) 2 Q. B. 57; Re Hart, 
 (1912) 3 K. B. 6; and see ante, 
 
 p. 118. 
 
 (g) Ellison v. Ellison (1802), 
 White & Tud. L. C. Eq. 8th ed. 
 
 vol. ii. 853; Paid v. Paul (1882), 
 20 Oh. D. 742. 
 
 (r) Toker v. Toker (1863), 3 De 
 Gr. J. & S. 487; Phillips v. Mid- 
 lings (1871), L. R. 7 Oh. App. 
 244; Henry v. Armstrong (1881), 
 18 Ch. D. 668. 
 
 (0 Everett v. Everett (1870), 
 L. R. 10 Eq. 405; Toker v. Toker, 
 supra. 
 
454 
 
 Rates of 
 stamp duty. 
 
 BK. I., PT. V. SETTLEMENTS. 
 
 and having devised certain portions of them to his wife, 
 the court refused to carry out the intended settlement and 
 decree a surrender of the copyholds ; for the settlor had neither 
 declared himself a trustee, nor had he surrendered the copy- 
 holds to the trustees, but had merely entered into a voluntary 
 contract to transfer them(£). On the other hand, where the 
 alleged settlor has done all in his power to pass the property, 
 even though the assignment be imperfect, it will be enforced. 
 Thus, where the settlor executed a voluntary settlement 
 assigning a plot of land which he held under an agreement 
 for a lease with the agreement and all his interest therein to 
 trustees on certain trusts, although a lease was subsequently 
 granted to him but never assigned to the trustees, the settlor 
 having done all he could have done at the time of making 
 the settlement to pass the leaseholds, the trust was enforced (u). 
 So also where the settlor declares himself a trustee, the trust 
 being perfect will be enforced though voluntary (x). 
 
 VII. — MISCELLANEOUS MATTERS. 
 
 Stamps. 
 
 The stamp duty on settlements made in consideration of 
 marriage is regulated by the Stamp Act, 1891, and is not 
 affected by the provisions of s. 74 of the Finance (1909-10) 
 Act, 1910. Where the property settled or agreed to be settled 
 consists of “ any definite and certain principal sum of money 
 (whether charged or chargeable on lands or other hereditaments 
 or heritable subjects, or not, or to be laid out in the purchase of 
 lands or other hereditaments or heritable subjects or not), or 
 any definite and certain amount of stock, or any security,''’ the 
 duty is 5s. for every 100L, and also for any fractional part of 
 
 (i t) Jefferys v. Jefferys (1841), v. Manning (1851), 1 De G. M. 
 Cr. & Ph. 138 ; and see Re & G. 176. 
 
 Plumptre , (1910) 1 Ch. 609. (cc) Steele v. Waller (1860), 28 
 
 ty) Gilbert v. Overton (1864), Beav. 466. 
 
 2 IT. & M. 110; see also Kekewich 
 
VOLUNTARY SETTLEMENTS. 
 
 455 
 
 100£ . of the amount or value of the property settled or agreed 
 to be settled. 
 
 If the property consists of “ any money which may become As to settle - 
 
 i i t i * r* i • r» • ^ ment of 
 
 due or payable upon any policy ot lire insurance, or upon any polic or 
 security not being a marketable security,” the settlement is security, 
 charged with ad valorem duty in respect of that money, unless, 
 in the case of a. policy, no provision is made for keeping up the 
 policy, in which case the ad valorem duty is to be charged only 
 on the value of the policy at the date of the instrument. If 
 in any such case the instrument contains a statement of the 
 said value, and is stamped in accordance with the statement, 
 it is, so far as regards the policy, to be deemed duly stamped, 
 unless or until it is shown that the statement is untrue, and 
 that the instrument is in fact insufficiently stamped (?/). 
 
 An instrument chargeable with ad valorem duty as a settle- Settlements, 
 ment in respect of any money, stock, or security is not to be ^charged as 
 charged with any further duty by reason of containing pro- securities, 
 vision for the payment or transfer of the money, stock, or 
 security, or by reason of containing, where the money, stock, or 
 security is in reversion or is not paid or transferred upon the 
 execution of the instrument, provision for the payment by the 
 person entitled in possession to the interest or dividends of the 
 money, stock, or security, during the continuance of such pos- 
 session, of any annuity or yearly sum not exceeding interest at 
 the rate of four pounds per centum per annum upon the amount 
 or value of the money, stock, or security (z). 
 
 Further, it is provided by s. 106 of the Act that (1) where Where several 
 several instruments are executed for effecting the settlement ^monTy t^be 
 of the same property and the ad valorem duty chargeable in charged with 
 respect of the settlement of the property exceeds ten shillings, d u tv.° ° 
 one only of the instruments is to be charged with the ad valorem 
 duty. 
 
 (2) Where a settlement is made in pursuance of a previous 
 agreement upon which ad valorem settlement duty exceeding 
 ten shillings has been paid in respect of any property, the settle- 
 ment is not to be charged with ad valorem duty in respect of 
 the same property. 
 
 (y) Stamp Act, 1891, s. 104. 
 
 (z) Ibid. s. 105. 
 
456 
 
 Settlements 
 of furniture 
 and land. 
 
 Voluntary 
 settlements 
 must be 
 stamped 
 
 ad valorem. 
 
 Appointment 
 of new 
 trustees. 
 
 Vesting 
 
 order. 
 
 Solicitors’ 
 
 remuneration. 
 
 BK. I., PT. V. SETTLEMENTS. 
 
 (3) In each of the aforesaid cases the instruments not charge- 
 able with ad valorem duty are to be charged with the duty of 
 ten shillings. 
 
 Where the property settled consists of furniture the settle- 
 ment does not require ad valorem duty, but a deed stam'p of 
 10s.; and the same remark applies to a settlement of real 
 estate or of the proceeds of sale of real estate (a) . 
 
 Voluntary settlements were formerly chargeable with the 
 same duty as settlements made in consideration of marriage, 
 but they are now, by virtue of s. 74 of the Finance (1909-10) 
 Act, 1910, subject to the same duty as conveyances or transfers 
 on sale, i.e., 11. per cent., with the substitution of the value 
 of the property conveyed or transferred for the amount or value 
 of the consideration for the sale. 
 
 A deed appointing new trustees, and also a deed by which a 
 trustee retires, must be stamped with a 10s. deed stamp, and 
 if such a deed also vests the trust property (whether by convey- 
 ance or a declaration under the Trustee Act, 1893, s. 11) in the 
 continuing and new trustee, or in the remaining trustees, it 
 must he stamped with a further duty of 10s. (5). 
 
 Where the court, for the purpose of vesting property in a 
 new trustee, makes a vesting order under Part III. of the 
 Trustee Act, 1893, such order must be stamped with a 10s. 
 deed stamp as well as with the ordinary judicature fees. 
 
 Legal Charges for Settlements. 
 
 Legal charges for a settlement do not depend on the value of 
 the property settled, but on the work done, that is to say, they 
 are on the old system, as altered by Schedule II. of the Soli- 
 citors’ Remuneration Order, 1881. 
 
 The settlement belongs to the trustees, and the solicitor must 
 hand it over to them, even though he has not received his costs, 
 for he has no lien on it against them (c) . 
 
 ( a ) Re Stucley's Settlement not required in this case: Finance 
 (1870), L. E. 5 Ex. 85. (1909-10) Act, 1910, s. 74 (6). 
 
 (5) Hadgett v. Commissioners (c) Bowher v. Austin , (1894) 1 
 of Inland Revenue (1877), 3 Cli. 556. 
 
 Ex. D. 46. Ad valorem duty is 
 
457 
 
 Part VL— WILLS. 
 
 I . — INTRODUCTORY . 
 
 By s. 3 of the Wills Act of 1837 it is provided that it shall be 
 lawful for every person to devise, bequeath or dispose of, by his 
 will executed in manner hereinafter required, all real estate and 
 all personal estate which he shall be entitled to either at law or 
 in equity at the time of his death, and which, if not so devised, 
 bequeathed, or disposed of would devolve upon the heir-at-law, 
 or customary heir of him, or if he became entitled by descent, 
 of his ancestor; or upon his executor or administrator . . . . 
 notwithstanding’ that he may become entitled to the same sub- 
 sequently to the execution of his will. 
 
 But the words “every person” in this enactment must be 
 read subject to the qualifications, some of which are contained 
 in the act and some of which have been established by case law, 
 rendering’ various classes of persons subject to testamentary 
 incapacity. These need, therefore, to be considered. 
 
 II. — CAPACITY OF PARTIES. 
 
 Infants. 
 
 By s. 7 of the Wills Act, no will made by any person under 
 the age of twenty-one years shall be valid. But this again is 
 subject to the special rules relating to the wills of infant 
 soldiers and seamen (a ) . 
 
 (a) See ss. 11 and 12 of the act; Marines Wills Acts, 1865 and 
 In the goods of Farquhar (1846), 1897; Merchant Shipping Act, 
 
 4 Notes of Cases, 651; Navy and 1894, s. 177. 
 
 Power to 
 dispose of 
 property by 
 will. 
 
 1 Viet. c. 26, 
 s. 3. 
 
 Limitations 
 upon the 
 power. 
 
 Infant cannot 
 make a valid 
 will. 
 
 1 Viet. c. 26, 
 s. 7. 
 
458 
 
 Lunatic can 
 not make a 
 valid will. 
 
 Married 
 woman could 
 not formerly 
 make a valid 
 will. 
 
 1 Viet. c. 26, 
 s. 8. 
 
 45 & 46 Viet, 
 c. 75. 
 
 BK. I., PT. VI. — WILLS. 
 
 Persons of Unsound Mind. 
 
 A person of unsound mind, whether so found or not, cannot 
 make a will. But a will made during a lucid interval by a 
 person subject to fits of insanity is valid (5). The soundness 
 of mind of the testator is a question of fact, and in determining 
 it the rationality or otherwise of the will itself may be taken 
 into consideration. The mere existence of delusions in the 
 testator’s mind does not deprive him of testamentary capacity 
 if as a fact they have not influenced the disposition of his 
 property (e) . 
 
 Married Women. 
 
 At common law a married woman could make a will for 
 the purpose of appointing an executor to continue a represen- 
 tation, and could make a will in exercise of a joower to appoint 
 by will; she could also, with her husband’s concurrence, make 
 a will of personal estate, and she might dispose by will of her 
 separate estate in equity (cZ) ; but except in these cases she could 
 not make a valid will. Her incapacity was not affected by the 
 Wills Act, 1837, s. 8 of which provides that no will made by 
 any married woman shall be valid except such a will as might 
 have been made by a married woman before the passing of 
 the act. 
 
 By s. 1 of the Married Women’s Property Act, 1882, it is, 
 however, provided that “a married woman shall, in accordance 
 with the jnovisions of this act, be capable of acquiring', hold- 
 ing, and disposing by will or otherwise of any real or personal 
 property as her separate property in the same manner as if she 
 were a feme sole without the intervention of any trustee.” 
 This enactment appeared to give a married woman as full 
 
 (6) In the Estate of Walker , 
 Watson v. Treasury Solicitor 
 (1912), 28 T. L. E. 466. 
 
 (c) See Banks v. Goodfellow 
 (1870), L. E. 5 Q. B. 549; Smee 
 v. Smee (1879), 5 P. D. 84; Mur- 
 felt v. Smith (1887), 12 P. D. 
 
 116; see also Pilkington v. Gray, 
 (1909) A. 0. 401. 
 
 (d) See Willock v. Noble 
 (1873), L. E. 8 Ck. App. 708; 
 L. E. 7 H. L. 580; Be Bowen, 
 (1892) 2 Cli. 291. 
 
CAPACITY OF PARTIES. 
 
 459 
 
 testamentary capacity as a feme sole , but it was construed to 
 give her power to dispose only of property of which she was 
 possessed while under coverture, and unless she re-executed her 
 will after she had become discovert it would not be effectual to 
 dispose of property acquired by her after the coverture had come 
 to an end (e) . 
 
 It was accordingly provided by s. 3 of the Married Women’s 
 Property Act, 1893, that s. 24 of the Wills Act, 1837, shall 
 apply to the will of a married woman made during coverture, 
 whether she is or is not possessed of or entitled to any separate 
 property at the time of making” it, and such will shall not 
 require to be re-executed or re-published after the death of her 
 husband. Sect. 24 of the Wills Act provides that every will 
 shall be construed with reference to the real and personal estate 
 comprised in it to speak and take effect as if it had been exe- 
 cuted immediately before the death of the testator, unless a 
 contrary intention shall ajrpear by the will. 
 
 A married woman is therefore now in precisely the same 
 position in this respect as a, man or a feme sole. The act of 
 1893 applies to the will of every married woman who dies after 
 the act came into operation — which was the 5th December, 
 1893 — whether the will was executed before the act or not(/). 
 
 Aliens. 
 
 By the Naturalization Act, 1870, real and personal property 
 may be taken, acquired, and disposed of by an alien in the same 
 manner in all respects as by a natural-born British subject. 
 An alien has, therefore, the same testamentary capacity as a 
 British subject. 
 
 Traitors and Felons. 
 
 Conviction for treason or felony seems never, of itself, to 
 have involved any testamentary incapacity. Neither traitors 
 
 (e) He Price , Stafford v. Staf- (/) He Wylie, Wylie v. Moffat, 
 forcl (1885), 28 Ch. D. 709. (1895) 2 Oh. 117. 
 
 56 & 57 Viet, 
 c. 63. 
 
 Effect of the 
 act of 1893. 
 
 33 & 34 Viet, 
 c. 14. 
 
 33 & 34 Viet, 
 c. 23. 
 
460 BK. I., PT. VI. WILLS. 
 
 nor felons were incapable of making a will, but only incapable 
 of disposing of such property as was forfeited for their offence. 
 The Forfeiture Act, 1870, which abolishes this forfeiture, im- 
 poses incapacity of disposition (g), ,but the incapacity appears 
 to cease at death, and apparently a convict may now freely 
 dispose of his property by will, though unable to do so by 
 other means. 
 
 Ill . — FORM OF A WILL. 
 
 Test of 
 validity of 
 a will. 
 
 24 & 25 Viet. 
 
 c. 114. 
 
 In order to be a valid disposition of real property or leasehold 
 land, a will must be made in conformity with the law of the 
 country in which the property is situate (K ) ; and in order to 
 bo a valid disposition of personal property, it must be made in 
 conformity with the law of the testator’s domicile at the date of 
 his death. 
 
 This is subject to the qualification that a will exercising a 
 power of appointment over personalty included in an English 
 settlement may be made according to English law, though the 
 testator is not domiciled here (i), and to the qualification in 
 favour of British subjects contained in the Wills Act, 1861, 
 ss. 1 and 2, of which s. 1 provides that every will made out of 
 the United Kingdom by a British subject (fc), whatever his 
 domicile at the time of executing it or at the time of his death, 
 shall, as regards personal property in England (7), be well 
 executed if made according to the forms required either (i) by 
 the law of the place where the same is made, or (ii) by the law 
 of the place where the testator is domiciled when the same is 
 made, or (iii) by the laws then in force in that part of his 
 Majesty’s dominions where the testator had his domicile of 
 origin; and s. 2, that every such will of a British subject, if 
 
 ( g ) See ante, p. 17. 
 
 ( h ) Pepin v. Bruyere, (1900) 2 
 Ch. 504. 
 
 (i) Murpliy v. Deicliler, (1909) 
 A. C. 446. Such a will may also 
 be made according to the law of 
 
 the testator’s domicile: Be Price, 
 (1900) 1 Ch. 442. 
 
 (k) See Bloxam v. Favre 
 (1884), 9 P. D. 130. 
 
 (l) This includes leasehold land: 
 Be Grassi, (1905) 1 Ch. 584. 
 
461 
 
 FORM OF A WILL. 
 
 made within the United Kingdom, shall be well executed if 
 executed according* to the forms required by the laws for the 
 time being in force in that part of the United Kingdom where 
 the same is made. 
 
 Sect. 3 of the act provides that no will or other testamentary 
 instrument shall be held to be revoked or to have become 
 invalid, nor shall the construction thereof be altered by reason 
 of any subsequent change of domicile of the person making the 
 same (m). 
 
 Where a will has to be executed in accordance with the 
 English formalities, it must usually comply with s. 9 of the 
 Wills Act, 1837, which is as follows: — “ No will shall be valid 
 unless it shall be in writing and executed in manner hereinafter 
 mentioned; (that is to say) it shall be signed at the foot or 
 end (n) thereof by the testator or by some other person in his 
 presence and by his direction; and such signature shall be 
 made or acknowledged by the testator in the presence of two 
 or more witnesses present at the same time, and such witnesses 
 shall attest and shall subscribe the will in the presence of the 
 testator, but no form of attestation shall be necessary. ” 
 
 Exceptions are to be found in (1) the Crown Private Estates 
 Act, 1800, by s. 10 of which the king or queen may make a, 
 will of moneys not appropriated to any public service, or of 
 goods, chattels, or effects which have not come with or in right 
 of the crown, the will being under his or her majesty’s sign 
 manual ; (2) s. 11 of the Wills Act itself, which provides 
 that any soldier being in actual military service (a), or any 
 mariner or seaman being at sea, may dispose of his personal 
 estate as he might have done before the making of the act; 
 (3) the Navy and Marines Wills Acts, 1865 and 1897, which 
 impose special formalities in the case of the wills of seamen and 
 
 (m) This section applies to 
 foreigners as well as to British 
 subjects: Re Groos, (1904) P. 269. 
 
 (n) The meaning of this ex- 
 pression is explained by the Wills 
 Act, 1852. See Student’s Probate, 
 Divorce and Admiralty, 7th ed. 
 
 p. 22. 
 
 (o) As to the meaning of this, 
 see In the goods of Iliscock, 
 (1901) P. 78; Gattward v. Knee, 
 (1902) P. 99; In the goods of 
 Gordon (1905), 21 Times L. R. 
 653. 
 
 Will not 
 revoked by 
 change of 
 domicile. 
 
 1 Viet. c. 26, 
 s. 9. 
 
 39 & 40 Geo. 3, 
 c. 88. 
 
 1 Viet. c. 26, 
 s. 11. 
 
 28 & 29 Viet, 
 c. 72. 
 
 60 & 61 Viet, 
 c. 15. 
 
462 
 
 57 & 58 Viet, 
 c. 60. 
 
 Meaning 
 of “in his 
 presence.” 
 
 Attestation 
 of signature. 
 
 Acknowledg- 
 ment of 
 signature. 
 
 No form of 
 attestation 
 required. 
 
 BK. I., PT. VI. WILLS. 
 
 marines in the royal navy in order that they may pass certain 
 kinds of property; and (4) the Merchant Shipping Act, 1894, 
 s. 177, which imposes special formalities in the case of the will 
 of a seaman in the merchant marine in order that it may pass 
 property in the hands of the Board of Trade. 
 
 The will must be signed by the testator, or by some other 
 person in his presence and by his direction, and a signature 
 made by some other person cannot be regarded as made in his 
 presence unless he is proved to have seen it made, or at least to 
 have been in such a position that had he looked he could have 
 seen it. 
 
 The signature of the testator must be made or acknowledged 
 by him in the presence of two witnesses present at the same 
 time, and such witnesses must attest and subscribe the will in 
 the presence of the testator. The witnesses must be present 
 together when the will is signed, or when the signature is 
 acknowledged, ias the case may be, and they must both sign 
 after the testator has so signed or acknowledged (p) ; further, 
 they must both sign in the presence of the testator (g), though 
 they need not sign in the presence of each other. It is not 
 necessary that the testator should actually see the witnesses 
 sign, but he must be in such a position that he could see them 
 if he wished (r). 
 
 An acknowledgment by the testator of a signature already 
 made need not be in express words: it is sufficient if made by 
 gesture (s), or by a mere request to the Witnesses to place their 
 signatures under that of the testator (£). 
 
 No form of attestation is required; but it is advisable to 
 append an attestation clause to show that the requirements of 
 the act have been complied with, and the following* form is 
 
 ( p ) In the goods of Allen 
 (1839), 2 Curt. 331; Casement v. 
 Fulton (1845), 5 Moo. P. C. 139; 
 Wyatt v. Berry , (1893) P. 5; 
 Brown v. S Jcirrow, (1902) P. 3. 
 
 ( q ) In the goods of Ellis 
 (1840), 2 Curt. 395; In the goods 
 of Colman (1842), 3 Curt. 118. 
 
 (r) Casson v. Dade (1781), 1 
 Bro. Ch. 99. 
 
 (s) In the goods of Davis 
 (1843), 3 Curt. 748. 
 
 ( t ) Gaze v. Gaze (1843), 3 Curt. 
 451 ; see also In the goods of 
 Warden (1839), 2 Curt. 334. 
 
FORM OF A WILL. 
 
 463 
 
 commonly used: “Signed (or acknowledged) by the said 
 A. B., in the presence of us, present at the same time, who 
 ; at his request, and] in his presence [and in the presence of 
 each other], have subscribed our names as attesting witnesses.” 
 
 The words in square brackets are not necessary, though they 
 are often inserted. If the attestation be in this form, probate of 
 the will will be granted without any affidavit of due execution. 
 
 Care must be exercised in the selection of the attesting 1 t T ict. c. 26, 
 
 ^ . s . 1 5 . 
 
 witnesses, having regard to s. 15 of the Wills Act, which is 
 
 that “if any person shall attest the execution of any will to 
 
 whom or to whose wife or husband any beneficial devise, 
 
 legacy, estate, interest, gift, or appointment of or affecting 
 
 any real or personal estate (other than and except charges and 
 
 directions for the payment of any debt or debts), shall be 
 
 thereby given or made, such devise, &c. shall, so far only as 
 
 concerns such person attesting the execution of such will, or 
 
 the wife or husband of such person, or any person claiming 
 
 under such person or wife or husband, be utterly null and void, 
 
 and such person so attesting shall be admitted as a witness to 
 
 prove the execution of such will, or to prove the validity or 
 
 invalidity thereof, notwithstanding such devise, &c. mentioned 
 
 in such will ” (if). It follows from this section that if the will 
 
 contains ;a clause authorizing a trustee who is a solicitor to 
 
 make professional charges for work done on behalf of the estate, 
 
 and the solicitor trustee attests the will, he loses the benefit 
 
 of the clause ( x ). 
 
 By s. 16 of the act a creditor is an admissible attesting l Viet. c. 26, 
 witness, notwithstanding that real or j^ersonal estate is charged ss ' lo ’ - 
 with the payment of debts by the will; and by s. 17 no one 
 is incompetent to be a witness on account of his being an 
 executor of the will. 
 
 Alterations after Execution. 
 
 Sect. 21 of the Wills Act enacts that no obliteration, inter- 
 lineation, or other alteration made in any will after execution 
 
 1 Viet. c. 26. 
 s. 21. 
 
 (u) See Thorpe v. Bestwich ( x ) In re Barber (1886), 31 Ch. 
 
 (1881), 6 Q. B. D. 311; In the D. 665; In re Pooley (1889), 40 
 goods of Smith (1889), 15 P. D. 2. Ch. D. 1. 
 
464 
 
 BK. I., PT. VI. WILLS. 
 
 is to be valid, or have any effect, except in so far as the words 
 or effect of the will before such alteration shall be not ap- 
 parent, unless such alteration be executed in like manner as is 
 required for the execution of the will; but the will with such 
 alteration as part thereof is to be deemed to be duly executed 
 if the signature of the testator and the subscription of the wit- 
 nesses be made in the margin, or on some other part of the will 
 opposite or near to such alteration, or at the foot or end of or 
 opposite to a memorandum referring to such alteration, and 
 written at the end or some other part of the will. 
 
 IV. — GIFTS OF PROPERTY BY WILL GENERALLY. 
 
 “ Devise,” 
 
 ‘ ‘ bequest, ’ ’ 
 “ legacy.” 
 
 A gift of real property by will is, strictly speaking, called a 
 “ devise’’ in modern times, while a gift of personal property is 
 called ia “bequest” or “legacy.” The terms are, however, 
 often used loosely, and each may be applied to any species of 
 testamentary gift, but unless they are clearly used in an ex- 
 tended sense the technical meaning will be given them(y). 
 
 The Various Kinds ol Legacies. 
 
 General, 
 specific and 
 demonstra- 
 tive legacies. 
 
 Legacies are either general, specific, or demonstrative. 
 
 A specific legacy is the gift of a specified thing the property 
 of the testator (0) . 
 
 A demonstrative legacy is a gift of a sum of money with a 
 direction that it is to be paid out of a particular fund. Every 
 legacy which is neither specific nor demonstrative is general. 
 
 A specific legacy is adeemed or fails if the subject-matter 
 does not exist at the death of the testator. A demonstrative 
 legacy does not fail, although the fund out of which it is pay- 
 able does not exist at the death of the testator. 
 
 (y) See CamfLeld v. Gilbert 
 (1803), 3 East, 516; Coard v. 
 Ilolderness (1855), 20 Beav. 147; 
 Phillips v. Beal (1858), 25 Beav. 
 25; Hall v. Hall, (1892) 1 Ok. 
 
 361. 
 
 (z) The meaning of the term 
 specific legacy was discussed by 
 Sir G-. Jessel in Bothamley v. 
 Sherson (1875), L. B. 20 Eq. 304. 
 
GIFTS OF PROPERTY BY WILL GENERALLY. 
 
 465 
 
 Whether a legacy is specific, demonstrative, or general is Illustrative 
 
 • • • i , ft C&S6S. 
 
 often a difficult question m those cases where a sum of money 
 or stock is bequeathed by will. In such cases the legacy is not 
 specific unless the specific sum of money or stock is existing 
 at the date of the will, and it is clear that the testator refers to 
 it as a distinct thing apart from his general estate, and intends 
 that that particular stock or sum shall pass. For example, a 
 legacy of “my 1,000/. East India Stock” is specific (a); 
 but a legacy of “ fifty shares of the York Banking Co.” is not 
 a specific legacy, if the testator have more than fifty shares at 
 the date of the will (5). Further, if a testator bequeaths his 
 debenture stock or shares in two companies, and neither com- 
 pany has issued any such stock or shares, the gift is sufficiently 
 specific to pass to the legatee debentures held by the testator in 
 the companies mentioned (c) . And if the testator directs a 
 purchase of stock to be made, should he not have sufficient stock 
 to answer legacies thereof previously given, it shows that he 
 meant to give something in existence at the time, and the 
 legacy is specific (d). A gift of 1,00 01. “of my stock” is 
 spDecific, if the testator appears to have intended to give an 
 aliquot part of his stock; but it is demonstrative if his inten- 
 tion appears to have been to give 1,000/. payable out of his 
 stock (e). Again, a gift of “the” 1,000/. “out on mort- 
 gage ” is specific (/); and a gift of “ 1,000/. or thereabouts, 
 invested” in a specified way, has been held to be specific, the 
 testator’s apparent intention being to give the investment rather 
 than the mere sum of money (g ) . 
 
 It should be remembered that a devise of land is specific, Residuary 
 even if given by way of residue (Ji ). But in the case of per- devls ® 1S 
 
 spGCino , 
 
 (а) Ashburner v. MacGuire 
 (1784), 2 Bro. Ch. 108; Wh. & 
 Tud. Li. C. Eq. 8th ed. vol. i. 827. 
 
 (б) Re Gray (1887), 36 Ch. D. 
 205. 
 
 (c) Re Nottage, Jones v. 
 Palmer , (1895) 2 Ch. 657. 
 
 (d) Townsend v. Martin (1849), 
 7 Hare, 471. 
 
 (e) Kirby v. Potter (1799), 4 
 G. — C. 
 
 Ves. 748 ; Davies v. Fowler 
 (1873), L. R. 16 Eq. 308 ; Re 
 Pratt, Pratt v. Pratt, (1894) 1 Ch. 
 
 491. 
 
 (/) Gardner v. Hatton (1833), 6 
 Sim. 93. 
 
 (<7) Kermode v. Macdonald 
 (1868), L. R. 3 Ch. App. 584. 
 (Ji) Lancefield v. Iggulden 
 
 (1874), L. R. 10 Ch. App. 136. 
 
 H H 
 
466 
 
 BK. I., PT. VI. WILLS. 
 
 but a resi- 
 duary bequest 
 is not. 
 
 Ademption of 
 a specific 
 legacy. 
 
 Specific 
 legacies are 
 taken free 
 from liabili- 
 ties. 
 
 sonal estate, a mere enumeration of specific things in a residuary 
 bequest does not make a gift of those things specific, unless the 
 specific things are distinguished from the residue by some such 
 words as “as well as,” “ together with,” “or,” and “also.” 
 Thus, if a testator gives “all my leases, furniture, stock-in- 
 trade, and all my estate and effects,” the gift is a whole and 
 entire one, and is residuary (£). 
 
 If the subject-matter of the gift does not exist at the tes- 
 tator’s death, there is nothing for the legatee to take, and so he 
 will get nothing, nor will he be entitled to any compensation 
 for his disappointment out of the rest of the testator’s general 
 assets. But a specific legacy is also adeemed if it is changed 
 into something else, though that into which it is changed is 
 in existence at the testator’s death, and it is immaterial whether 
 the change is effected by the testator himself or by external 
 authority (Jc ) . But if the subject-matter of the legacy has 
 been changed in name and form only, there is no ademption. 
 “ The question is, whether a testator has at the time of his 
 death the same thing existing, it may be in a different shape, 
 yet substantially the same thing” (/). 
 
 The person entitled to a specific legacy of personalty is en- 
 titled to receive it free from all liabilities created by the tes- 
 tator, so that if the testator has pledged it the legatee is 
 entitled to have the pledgee paid off out of the general 
 residuary estate; but if the residuary estate is insufficient it 
 has been said that the legatee must take the legacy with the 
 burden upon it, even if the testator has left real estate charged 
 with the payment of his debts (m). But if the liability is one 
 which is incident to the subject-matter of the gift itself, the 
 legatee must take it with the liability. Thus, a specific legatee 
 
 (i) Bummer v. Pitcher (1833), 
 2 My. & K. 262; Bothamley v. 
 Sherson (1875), L. R. 20 Eq. 304. 
 
 (Jc) Harrison v. Jackson (1877), 
 7 Ch. D. 339; and see Re Slater , 
 (1907) 1 Ch. 665. Contrast In re 
 Jameson , (1908) 1 Ch. 111. 
 
 (I) Per Turner, V.-C., in Oalces 
 v. Oalces (1851), 9 Hare, 666; and 
 
 see In re Clifford, (1912) 1 Ch. 
 29, and In re Leeming, (1912) 1 
 Ch. 828. 
 
 (m) Re Butler, Le Bas v. Her- 
 bert, (1894) 3 Ch. 250 ; this 
 appears doubtful, however, having 
 regard to Re Salt, Brothwood v. 
 Keeling, (1895) 2 Ch. 203. 
 
GIFTS OF PROPERTY BY WILL GENERALLY. 
 
 467 
 
 of shares must pay all calls thereon made after the testator’s 
 death ( n ). The rule is not the same in the case of gifts of real 
 or leasehold property (o), subject to a mortgage or lien for un- 
 paid purchase-money or other equitable charge (p) ; for in the 
 absence of contrary intention, the donee will take them cum 
 onere, under the Real Estates Charges Acts, 1854, 1867 and 
 1877. 
 
 V. — THE CONTENTS OF A WILL. 
 
 We will now assume that the reader has received instructions 
 to draw a will for a client who is a family man, and will pro- 
 ceed to point out some of the most important points to be con- 
 sidered in preparing it in the order in which they will probably 
 arise. 
 
 Clause of Revocation. 
 
 It is well to begin with a clause revoking all former wills, 
 as it may happen that there are other wills or testamentary 
 papers of the testator extant; and in the absence of such a 
 clause these would be entitled to probate so far as not incon- 
 sistent with the will under preparation. But, on the other 
 hand, it must be remembered that if a clause revoking all 
 former wills is inserted, an earlier will cannot be admitted to 
 probate, even though the testator may have intended that it 
 should be, unless the clause was inserted without the know- 
 ledge and approval of the testator (q). 
 
 Appointment of Executors. 
 
 There is no necessity to appoint an executor of a will; but, 
 apart from the fact that, by appointing an executor, the testa- 
 
 ( n ) Armstrong v. Burnett 
 (1855), 20 Beav. 424. 
 
 (o) This includes ground rents: 
 lie Kidd, Brooman v. Witlnall, 
 (1894) 3 Ch. 558. 
 
 ( p ) Anthony v. Anthony, (1893) 
 3 Ch. 498. 
 
 ( q ) Collins v. Elstone, (1893) 
 
 P. 1. 
 
 Points for 
 consideration 
 in preparing 
 a will. 
 
 Why the 
 clause should 
 be inserted. 
 
 Not essential 
 to appoint 
 executors. 
 
 H H 2 
 
468 
 
 Who can be 
 
 appointed 
 
 executor. 
 
 Effect of 
 appointment 
 of testator’s 
 debtor. 
 
 12 Car. 2, 
 c. 24, s. 8. 
 
 49 & 50 Viet, 
 c. 27. 
 
 BK. I., PT. VI. WILLS. 
 
 tor as far as possible secures the administration of his estate 
 by a person in whom he has confidence, there is the advantage 
 that probate is granted to an executor without giving any bond 
 for the due administration of the estate, while an administra- 
 tor must give such a bond with two sureties as a rule, and 
 it is sometimes difficult to find the necessary sureties. 
 
 It is not advisable to appoint an infant an executor, unless 
 there are special reasons for doing so, since an infant cannot 
 act until he attains majority, and meanwhile it is necessary for 
 administration to be granted to his guardian or some other 
 person cum testamento* annexe*. Married women may, since 
 the Married Women’s Property Act, 1882, s. 24, accept the 
 office without the consent of their husbands; hut it is not advis- 
 able to appoint a woman, whether married or unmarried, a sole 
 executrix. 
 
 The effect of appointing a debtor of the testator to be exe- 
 cutor is to destroy the remedy against him at law for the debt, 
 except as between him and the creditors of the testator; but it 
 does not operate to release him in equity. ITe becomes a trustee 
 of the debt for the persons interested in the estate, and is 
 answerable for it as assets in his hands (r) . 
 
 Appointment of Guardians. 
 
 The testator may appoint a guardian to his infant children 
 if unmarried by s. 8 of the statute 12 Car. 2, c. 24, and a 
 guardian so appointed can be authorized to appoint a new 
 guardian to act when he dies (s) . 
 
 This act did not enable the mother to appoint a guardian; 
 but now, by the Guardianship of Infants Act, 1886, on the 
 death of the father the mother is to be the guardian of her 
 infant children, either alone, when no guardian has been 
 appointed by the father, or jointly with any guardian 
 appointed by the father. And the mother may by deed or 
 will appoint a guardian to act after the death of herself and 
 her husband if the infant be then unmarried; and where 
 
 (r) Sec Ingle v. Richards (s) In the goods of Parnell 
 (1860), 28 Beav. 366. (1872), L. R. 2 P. & D. 379. 
 
THE CONTENTS OF A WILL. 
 
 469 
 
 guardians are appointed by both parents they must act jointly. 
 And the mother may by deed or will provisionally nominate 
 a person to act as guardian jointly with her husband; and 
 the court can after her death, if it be shown that the father 
 is unfitted to act as sole guardian, confirm the appointment 
 by the mother, or make such order as seems fit (t). 
 
 Where two or more persons are appointed guardians the 
 guardianship survives (u ) . 
 
 Direction to pay Debts. 
 
 A will often contains a direction that the testator’s debts 
 and funeral and testamentary expenses are to be paid. This 
 direction is, to a great extent, superfluous, as his executor or 
 administrator is bound to pay the debts by virtue of his office. 
 But a direction to pay debts prevents the application of the 
 equitable doctrine of satisfaction (x ) . 
 
 Charge of Debts on the Realty. 
 
 A general direction to pay debts charges them upon the 
 testator’s real estate, unless, perhaps, the direction is addressed 
 to the executors; even in this case the realty will be charged, 
 if at the same time it is devised to the executors (?/), and 
 possibly since the Land Transfer Act, 1897, a direction to 
 the executors to pay the debts will charge them on the free- 
 holds although not devised to the executors, since such pro- 
 perty vests in the executors by virtue of that act. The ques- 
 tion whether the realty is charged with debts is still important 
 in determining the order in which the various properties of 
 the testator should be resorted to for payment of debts; if 
 there is a charge, pecuniary legatees are entitled to have the 
 
 (£) See Re G., an infant , 
 (1892) 1 Ch. 292. 
 
 ( u ) Eyre v. Shaftesbury (1722), 
 2 P. W. 103; Wh. & Tud. L. C. 
 Eq. 8th ed. vol. i. 495. 
 
 ( x ) Chancey's Case (1717), 1 
 P. W. 408; Wh. & Tud. L. C. Eq. 
 
 8th ed. vol. ii. 379; Bradshaw v. 
 Iluish (1889), 43 Ch. D. 260. 
 
 (; y ) Be Bailey (1879), 12 Ch. D. 
 268; Re T anqueray-Willaume and 
 Landau (1882), 20 Ch. D. 465; Re 
 Stokes (1892), 67 L. T. 223; Re 
 Salt , (1895) 2 Ch. 203. 
 
 Survival of 
 guardian- 
 ship. 
 
 Direction 
 to pay debts 
 superfluous. 
 
 What con- 
 stitutes 
 charge of 
 debts on 
 realty. 
 
470 
 
 BK. I., PT. VI. WILLS. 
 
 22 & 23 Viet, 
 c. 35. 
 
 Trust for 
 payment of 
 debts. 
 
 Usual bequest 
 to wife. 
 
 Legacy duty. 
 
 assets marshalled as against specific devisees of the real 
 estate (z). Further, by s. 16 of the Law of Property Amend- 
 ment Act, 1859, when there is such a charge and the real 
 estate is not so devised as that the whole interest of the testator 
 therein becomes vested in any trustee or trustees, the executors 
 have power to raise money to pay debts and legacies by sale 
 or mortgage. This is, however, of much less importance now 
 than formerly, since the Land Transfer Act, 1897, Part I., 
 vests the legal estate in real property, except copyholds, in 
 the personal representative with full power to deal with it for 
 purposes of administration. 
 
 A devise or trust for the payment of debts will not raise 
 a trust for the payment of debts barred by the Statute of 
 Limitations before the testator’s death. Nor will it prevent 
 the statute from running in favour of either real or personal 
 estate in case of debts not barred at his death (a). 
 
 The Bequest of Legacies. 
 
 The early part of a will is generally devoted to the bequest 
 of legacies. The household furniture and plate, &c. are often 
 left to the testator’s widow absolutely or for her life, with a 
 direction that on her death or re-marriage they shall fall into 
 the residue, or be divided among the children, or given to some 
 particular child. In this last case it is the duty of the executors, 
 in the absence of direction to the contrary, to take an inven- 
 tory of the household furniture, &c. so left, in order that when 
 the period for division comes there may be no dispute as to 
 what furniture belongs to the testator’s estate and what to his 
 widow’s. If it is desired that the executors shall insure the 
 furniture against lire, a clause to this effect should be inserted, 
 since, if no duty is imposed upon the executors by the will, 
 while they may insure under s. 18 of the Trustee Act, 1893, 
 they are not compelled to do so. 
 
 If the testator wishes a legatee to receive his legacy free from 
 
 (a) Re Roberts, (1902) 2 Oh. («) Eeal Property Limitation 
 834; Be Kempster, (1906) 1 Oh. Act, 1874, s. 10; Scott v. Jones 
 446. (1838), 4 C. & F. 382. 
 
THE CONTENTS OF A WILL. 
 
 471 
 
 legacy duty, a declaration to this effect must be inserted in the 
 will, otherwise the legatee will, as a rule, have to pay the duty. 
 But if the gift he made “free from deduction/’ or “free from 
 expense,” or of a “clear” legacy or sum, or of a fund to pro- 
 duce a “clear annual sum,” the duty will be payable out of the 
 testator’s estate (b). 
 
 Provisions for the Benefit of the Testator s Family. 
 
 With reference to the provisions for the benefit of the testa- 
 tor’s family, it is, of course, no part of a solicitor’s duty to 
 control the testator’s wishes, but merely to put them into 
 clear and unmistakeable language, and to take care that the 
 testator, in the disposition of his property, keeps within the 
 limits imposed by the law. In taking instructions from him, 
 the nature of his property, the condition of his family and of 
 his affairs generally, and his wishes with regard to the manner 
 in which his property is to be divided among those he desires to 
 benefit, must be accurately ascertained. In many cases a will 
 is made soon after marriage, when the testator has a wife and 
 young children, and in this case the property is most often 
 given to trustees in trust to convert it into money, with a 
 power to postpone such conversion, and to pay out of the pro- 
 ceeds the testator’s debts and funeral and testamentary ex- 
 penses, and to invest the residue (with power to vary the invest- 
 ments), and to pay the income to the wife for her life (or 
 perhaps only during widowhood), and after her death to stand 
 possessed of the trust funds for such of the testator’s issue as she 
 shall appoint, and in default of appointment for such of the 
 issue as attain twenty-one, or being a daughter marries under 
 twenty -one. Then follow the trusts in default of any child 
 attaining a vested interest, and directing the ultimate destina- 
 tion of the property. 
 
 Some care is necessary in framing the provisions for the 
 benefit of the testator’s children. It must be remembered that 
 advancements may have been or may be made to them by the 
 testator during his lifetime, and care should be taken not to 
 
 Duty of 
 solicitor. 
 
 Usual 
 
 provisions. 
 
 Provisions 
 for the testa- 
 tor’s children: 
 
 As to 
 hotchpot ; 
 
 (6) See Re BucMe , Williams v. Marson, (1894) 1 Cli. 286. 
 
472 
 
 BK. I., PT. VI. — WILLS. 
 
 As to 
 
 advancement 
 of children. 
 
 Provision to 
 prevent 
 lapse of 
 gift to 
 children ; 
 
 leave it doubtful whether or not such advancements are to be 
 deducted out of their shares in such cases. 
 
 Testators usually treat their children as a class . As we have 
 seen, in some cases trustees have power, under s. 43 of the 
 Conveyancing Act, 1881, to apply the income of the shares of 
 infant children towards their maintenance (c), but in the 
 absence of express provision, the trustees have no power to 
 apply any part of the capital of the trust fund towards the 
 advancement in the world of the children, without the sanction 
 of the court, so that if it be so intended, an express power to 
 this effect must be given to them. Such a power generally 
 authorizes the trustees to apply, in or towards the advance- 
 ment in the world of the children, any part not exceeding one- 
 half of the principal of their respective shares, and for that 
 purpose to raise, by mortgage or otherwise, such sum as they 
 may think lit. 
 
 Where a legacy is given to a child, contingently on his attain- 
 ing some age over twenty-one years, pro vision should be in- 
 serted with regard to his maintenance in the meantime, since 
 the legacy does not carry interest until he attains the specified 
 age (d). 
 
 Provision should be made to meet the case of a child or 
 children dying during the life of the testator (or the life of 
 the widow, if the vesting of the shares is postponed till after 
 her death) and leaving issue. In the latter case there will be, 
 of course, a lapse; but in the former the 33rd section of the 
 Wills Act, if it applies, prevents a lapse. But the section does 
 not apply to a gift to a class (e). If, then, it is desired that 
 there shall be no lapse, a clause should be inserted that if any 
 of the testator’s children who attain twenty-one or marry under 
 that age die in the testator’s lifetime leaving a child or children 
 who survive the testator, then the fund which the parent would 
 have taken had he lived to acquire a vested interest shall be 
 held by the trustees for such child or children. Again, the 
 33rd section of the Wills Act does not apply to an appoint- 
 ment under a special power of appointment, though it does 
 
 (c) See ante , p. 386. 
 
 (d) Re Abrahams, (1911) 1 Oh. 108. (e) See post, p. 490. 
 
THE CONTENTS OF A WILL. 
 
 473 
 
 apply to an appointment under a general power. If, there- 
 fore, the will is in exercise of a power which allows of an 
 appointment not merely to children, but to issue (/), a clause 
 should be inserted giving the issue of such children who die 
 in the testator’s lifetime the share of the appointed property 
 which their parent would have taken had he or she survived the 
 testator . 
 
 When a clause is inserted providing for the disposition of 
 property on the death in the lifetime of the testator of a member 
 of a class to whom it is given, it must he made clear whether 
 the clause applies to tide death of a member of the class who 
 has died before the date of the will or only to death after the 
 date of the will in the lifetime of the testator. In the absence 
 of any explicit provision on this point much difficulty may 
 arise ( g ) . 
 
 In providing for the issue of unborn persons, the gift must 
 be kept within the limits of the rule against perpetuities. If 
 the testator does not avail himself of the power to postpone the 
 vesting of the property during a life or lives in being, as 
 allowed by the rule, a gift, the result of which is to postpone 
 the vesting of property for more than twenty-one years after 
 the testator’s death, is void. And it must be remembered that 
 in applying the rule regard must he had to what may be the 
 effect of the gift, without reference to what does actually occur. 
 Therefore, if the vesting of a gift to a child of a child of the 
 testator is postponed to the death of the survivor of its parents, 
 and the testator’s child is unmarried at his death, the gift will 
 be too remote; for the child of the testator may marry a person 
 horn after the testator’s death, and that parent may be the 
 survivor (Ji). 
 
 In carrying out instructions to direct the accumulation of 
 income, the duration of the trust must be confined to one of the 
 
 (/) See Alexander v. Alexander 
 (1755), 2 Yes. 640; Tudor, L. C. 
 Conv. 4th ed. 554. 
 
 (g) See Loring v. Thomas 
 (1861), 1 Dr. & Sm. 497; Gor- 
 ringe v. Mahlstedt, (1907) A. C. 
 
 225; Be Cope , (1908) 2 Ch. 1; Be 
 Lambert , (1908) 2 Ch. 117; Be 
 Metcalfe , (1909) 1 Ch. 424. 
 
 ( [h ) See Hodson v. Ball (1845), 
 14 Sim. 558. 
 
 Gifts over 
 on death ; 
 
 In pro- 
 visions for 
 issue, per- 
 petuity rule 
 must be 
 observed ; 
 
 In direct- 
 ing the 
 accumulation 
 
474 
 
 BIv. I., PT. VI. WILLS. 
 
 of income, the 
 Accumulation 
 Acts must be 
 observed. 
 
 The rule 
 in Saunders 
 y. Vautier. 
 
 periods allowed by the Accumulations Act, 1800; or if the solo 
 object (i) of accumulation is that land may be purchased, to 
 the period allowed by the Accumulations Act, 1892. A direc- 
 tion to accumulate income which exceeds the authorized period 
 is not void wholly, but only as to excess (fc); but a direction 
 to accumulate which exceeds the limit allowed by the rule 
 against perpetuities is void altogether (J) . Accumulation can 
 only be directed for one of the periods named in the act of 
 1800, and the act applies though there is no direction to accu- 
 mulate if there is an executory gift or devise of such a nature 
 that accumulation becomes necessary during the suspense of 
 vesting (m) . The act does not apply where the income to be 
 accumulated is derived from the sale of timber, nor to accumu- 
 lations of income for the purpose of paying debts or raising' 
 portions (n), or rebuilding, repairing, or reinstating build- 
 ings (o), nor to a direction to accumulate part of the profits 
 of settled leaseholds to create a fund to protect the trustees 
 against claims for dilapidations (p) . But it probably does 
 apply to accumulations directed solely for the purpose of im- 
 proving the estate (g). 
 
 Where a testator wishes to confer a vested interest, but does 
 not desire that the donee shall actually take possession of the 
 property or enjoy its income for a long time, the doctrine of 
 the case of Saunders v. Vautier (r) must be kept in mind. 
 Thus, if he wishes his property not to be handed over to his son 
 until the latter attains thirty, and with this object vests the 
 property in trustees upon trust to hold it until his son reaches 
 thirty, and (accumulate its income until that time and then 
 
 (i) That is, the sole object: lie 
 Danson, Bell v. Dcinson (1895), 
 13 R. 633. 
 
 ( k ) Griffiths v. V ere (1893), 9 
 Ves. 127; Tudor, L. C. Conv. 4th 
 ed. 618. 
 
 ( l ) Boughton v. James (1844), 
 
 1 Coll. 26. 
 
 (m) Macdonald v. Bryce (1838), 
 
 2 Keene, 276. 
 
 (■ n ) s. 2. See, as to what is a 
 
 portion, Be Stephens , Kilby v. 
 Betts (1903), 73 L. J. Ch. 3. 
 
 ( o ) Mason v. Mason (1889), 61 
 L. T. 304. 
 
 (p) In re Hurlbatt, (1910) 2 
 Ch. 553. 
 
 (g) Vine v. Raleigh, (1896) 1 
 Ch. 37. 
 
 (r) (1841), 4 Beav. 115; Cr. & 
 Pli. 240. 
 
THE CONTENTS OF A WILL. 
 
 475 
 
 hand the property with its accumulated income to the son, such 
 a provision is valid; but as the son is entitled to a vested in- 
 terest, and no one else is beneficially interested in the property, 
 when the son reaches twenty-one lie will be able to demand to 
 have the property handed over, and so defeat the testator’s 
 intentions. The only way to prevent this is to provide that, 
 from and after the time of the son attaining his majority, the 
 income of the property, until he reaches thirty, shall be paid to 
 some one else. This rule, that where a person is absolutely 
 entitled to property he may demand its possession, although 
 by so doing a settlor’s intention may be defeated, is applic- 
 able also to gifts to charities (s) . 
 
 Provisions for Carrying on the Testator s Trade or Business. 
 
 If the testator is engaged in a trade or business which he 
 intends shall be carried on by his executors or trustees, pro- 
 visions should be inserted for this purpose, since it is a breach 
 of trust for executors or trustees to carry ,on the testator’s trade 
 or business without express directions to do so, except under 
 special circumstances (t), or for a temporary purpose (w). 
 
 And even where there is such a direction they will be per- 
 sonally resjjonsible to the creditors with whom they deal ( x ), 
 with the right to recoup themselves out of any property set 
 apart by the will for the purposes of the business, or if no part 
 is set aside, then apparently out of the general assets. In 
 Dowse v. Gorton (y), where a testator had empowered his exe- 
 cutors to carry on his business, the court held that the private 
 creditors of the testator had priority over the trade creditors 
 in respect of the assets existing at the testator’s death; and that 
 as to the assets subsequently acquired the trade creditors had 
 priority over the private creditors. Owing' to the executor’s 
 personal liability, it is the general practice to appoint a special 
 executor to carry on the business, such special executor usually 
 being the person for whose benefit the business is to be con- 
 
 (s) Wharton v. Masterman, 
 
 (1895) A. C. 186. 
 
 (0 Re Chancellor (1884), 26 Oh. 
 
 D. 4. 
 
 (u) Kirkman v. Booth (1848), 
 
 11 Beav. 273. 
 
 ( x ) Lucas v. Williams (1861), 3 
 Giff. 150. 
 
 ( y ) (1891) A. C. 190; see also 
 Re Oiven (1892), 66 L. T. 718. 
 
 Provision for 
 carrying 1 on 
 testator’s 
 business . 
 
 Effect of 
 provision . 
 
476 
 
 BK. I., PT. VI. WILLS. 
 
 tinued. Sometimes it is directed that only part of the testa- 
 tor’s estate shall be employed in trade; and when this is the 
 case that part only will be liable in exoneration of the general 
 assets; while, if the executor employs a larger sum than that 
 authorized, the excess, if he becomes bankrupt, may be proved 
 as a debt in his bankruptcy (z). 
 
 Duties of Executor with regard to Wasting Property. 
 
 The rule in 
 Howe v. Earl 
 Dartmouth. 
 
 In dealing with the disposition of the residue of the estate it 
 should be ascertained whether it includes any property of a 
 wasting or reversionary nature, and if so directions should be 
 inserted with regard to the application of the rule in Howe v. 
 Earl Dartmouth (a ) . This rule is as follows: — 
 
 Where a testator indicates an intention that the residue of 
 his personal estate shall be enjoyed by persons in succession, it 
 is the duty of the executor, in the absence of evidence of a con- 
 trary intention on the part of the testator, to convert so much 
 of the estate as is of a wasting 1 or perishable nature, or consists 
 of securities not authorized for the investment of trust funds, 
 and so much of the estate as is of a reversionary or expectant 
 nature, into authorized investments ” (&). The rule may apply 
 where the property is given absolutely with an executory 
 limitation over, but it is easier to infer a contrary intention in 
 this case(c). There are numerous cases to be found in the 
 reports in which the court has deduced from the terms of the 
 will an indication of an intention on the part of the testator 
 that the rule should not be applied (d ) ; hut it is desirable 
 to make his intention plain on the face of the will. 
 
 ( 3 ) Ex parte Garland (1804), 
 
 10 Ves. 110. 
 
 ( а ) (1802), 7 Ves. 137; Wh. & 
 Tud. L. C. Eq. 8th ed. vol. i. 68. 
 See Hart, Digest of the Law of 
 Trusts, 152 et seq. 
 
 (б) See also Porter v. Baddeley 
 (1877), 5 Ch. D. 542; Macdonald 
 v. Irvine (1878), 8 Ch. D. 101; 
 Gray v. Siggers (1880), 15 Ch. D. 
 74. 
 
 (c) Be Bland, (1899) 2 Ch. 336. 
 
 ( d ) See, for examples, Good- 
 enough v. Tremmamondo (1840), 
 2 Beav. 512; Blann v. Bell (1852), 
 5 De Gr. & Sm. 658; Be SeivelVs 
 Estate (1870), L. E. 11 Eq. 80; 
 Miller v. Miller (1872), L. E. 13 
 Eq. 263 ; Thurshy v. Thursby 
 (1875), L. E. 19 Eq. 395; Gray 
 v. Siggers (1880), 15 Ch. D. 74; 
 Be Pitcairn, Brandreth v. Colvin, 
 (1896) 2 Ch. 199; Be Nicholson, 
 (1909) 2 Ch. 111. 
 
THE CONTENTS OF A WILL. 
 
 477 
 
 Further, to prevent any question arising as to the destination 
 of the income of any property that ought to be converted prior 
 to the conversion, the executors should be authorized to post- 
 pone the sale and conversion as may seem fit to them, and a 
 direction inserted that the rents and profits of the property 
 to be converted shall, from the time of the testator's death, go 
 to the same person and in the same manner as the income of the 
 proceeds of the conversion would have done if the conversion 
 had been made. 
 
 Provisions relating to Copyhold Property. 
 
 Where a testator devises his real property upon trust for sale 
 and conversion, his copyholds should be excluded from the 
 devise, for if they are not, the trustees will have to be admitted 
 before they sell, and will have to pay the fines and fees due 
 on admittance. It is the practice instead to give them a power 
 to appoint the copyholds; and then when they sell them they 
 exercise the power of appointment in favour of the purchaser, 
 who is regarded as coming in under the will, and the necessity 
 for the trustees to be admitted is obviated (e). But this plan 
 can only be adopted when it is intended to sell at an early 
 date; for the lord of the manor can, if there is no tenant ad- 
 mitted, seize the land qaousqus and compel the legal admit- 
 tance of the person entitled to the legal ownership. 
 
 Further, since by s. 88 of the Copyhold Act, 1894, copyholds 
 vested in the tenant on the court rolls are excluded from the 
 provisions of s. 30 of the Conveyancing Act, 1881, it may be 
 advisable to devise to the executors any copyholds of which the 
 testator is sole trustee or mortgagee. 
 
 Again, copyholds being excluded from the provisions of the 
 Land Transfer Act, 1897, Part I., it may be advisable for the 
 convenience of administering his estate to devise to the executors 
 any copyholds to which the testator is beneficially entitled. 
 
 Destination of 
 income before 
 conversion. 
 
 Copyholds 
 should not be 
 included in a 
 trust for sale 
 and conver- 
 sion. 
 
 When copy- 
 holds should 
 be devised to 
 executor. 
 
 (e) Holder v. Preston (1769), 2 Wils. 400. 
 
478 
 
 BK. I., PT. VI. WILLS. 
 
 As to undis- 
 posed- of 
 residue. 
 
 Trustee’s 
 
 position. 
 
 Executor’s 
 position . 
 
 Undisposed-of Residue. 
 
 \ 
 
 In conclusion, it must be remembered that any interest un- 
 disposed of by the will, if realty, will pass to the heir, and if 
 personalty to the next of kin; and a direction that a certain 
 person is to take no share in the estate of the testator, or 
 disinheriting the heir, will not prevent him from taking as next 
 of kin or heir. Formerly it was thought that the heir-at-law 
 or next of kin, as the case might be, was entitled to any part of 
 the residue which the testator directed should, on the happening 
 of any event (e.g., on the death of a person entitled thereto 
 for life). “ form part of and fall into his residuary estate ” (/); 
 but it has been laid down that there is no rule on the subject, 
 and that whether such part goes to the heir or next of kin, or 
 falls into the residue for the benefit of the residuary donees, 
 is a matter of intention, to be determined according to the cir- 
 cumstances of each case, and, generally speaking, it will belong 
 to the residuary donees, and not to the heir or next of kin ( g ). 
 If realty is devised to a trustee on trusts which fail, and 
 there is no heir, the trustee formerly took beneficially, but now 
 the equitable interest will escheat under the Intestates’ Estates 
 Act, 1884; in the case of chattels real or other personalty, 
 the crown, and not the trustee, is and has always been entitled 
 if there bo no next of kin. Unless the will shows a contrarv 
 intention, an executor, as distinguished from a trustee, will be 
 entitled to the undisposed-of residue of the personal estate for 
 his own benefit if there are no next of kin (4) . 
 
 The Date of the Will. 
 
 No date 
 necessary. 
 
 It is usual to insert the date of the execution of the will in 
 the testimonium clause, and although a will may be perfectly 
 valid, even though undated, since evidence is admissible in order 
 to determine whether it was executed before or after another 
 
 (/) Humble v. Shore (1847), 7 
 Hare, 247. 
 
 ( g ) Palmer v. Answorth, (1893) 
 3 Ch. 369. 
 
 (h) Roose v. Chalk (1880), 49 
 L. J. Ch. 625. As to what is a 
 contrary intention, see Alt. -Gen. 
 v. Jefferys, (1908) A. C. 411. 
 
THE CONTENTS OF A WILL. 
 
 479 
 
 will executed by the testator, it should always be inserted in 
 order to save dispute. 
 
 The Execution of a Will. 
 
 A will, when drafted, should be read over to the testator, 
 and if he approves the draft and the matter is urgent it may 
 be executed as a will. The will should then be engrossed, and 
 great care must be taken that the engrossment contains no 
 mistakes. The testator must then formally execute the engross- 
 ment in accordance with the rules stated at the beginning of 
 this chapter. 
 
 Revocation and Revival of Wills. 
 
 Where a testator wishes to revoke his will or any codicil 
 to it, he should burn, tear, or otherwise destroy it, or see that 
 it is burnt, torn, or otherwise destroyed by some person in 
 his presence and by his direction; or he should execute another 
 will or codicil declaring an intention to revoke the former (i). 
 It should be borne in mind that marriage operates to revoke 
 a will, except a will made in exercise of a power of appoint- 
 ment where the property thereby appointed would not, in de- 
 fault of appointment, pass to the testator’s heir, customary 
 heir, executor or administrator, or next of kin under the Statute 
 of Distributions (k). 'To revive a revoked will, the testator 
 should re-execute it, or execute a codicil showing an intention 
 to revive it (Z). 
 
 VI. — THE CONSTRUCTION OF A WILL. 
 
 In order to determine the effect of a will, it is necessary to Introductory. 
 a pply the general rules established for the construction of 
 wills. Some of these rules of construction are to be found in 
 the Wills Act, but there are many others which rest entirely 
 
 ( i ) Wills Act, 1837, s. 20. formation as to revocation and re- 
 
 (k) Ibid. s. 18. vival of wills, see the Student’s 
 
 (l) Ibid. s. 22. For further in- Probate, Divorce and Admiralty. 
 
 Precautions 
 to be observed 
 with reference 
 to execution. 
 
480 BK. I., PT. VI. WILLS. 
 
 upon judicial decision. Such of them as amount to rules of 
 law must now be dealt with, for these rules must be applied 
 in every case, but except where a rule of this kind has been laid 
 down the courts exhibit an increasing tendency to disregard 
 previous decisions in determining the meaning of a will; it has 
 been frequently pointed out that it does not follow because 
 a particular construction has been put upon a word or expres- 
 sion in one will that the word or expression has the same 
 meaning when used in another will ( ( m) . 
 
 Cardinal Rules of Construction. 
 
 Testator’s The first rule for the construction of a will is, that the 
 
 t^be^ffected grammatical and ordinary sense of the ivords used in the will 
 must he strictly adhered to >, unless that would lead to some 
 absurdity or some repugnance or inconsistency icith the rest 
 of the instrument, in which case the sense may he modified so 
 as to avoid that absurdity or inconsistency, hut no further (n). 
 
 This is the golden rule, and it is in this sense, and only in 
 this sense, that it is true to say that the intention of the testator 
 is to he the guide. “ The use of this expression, unaccompanied 
 by the explanation that it is to be sought in the words and a 
 rigorous attention to them, is apt to lead the mind insensibly to 
 speculate upon what the testator may be supposed to have in- 
 tended to do instead of strictly attending to the true question, 
 which is what that which he has written means. The will must 
 be in writing, and the only question is what is the meaning of 
 the words used in that writing ” (o). Intention must not be 
 
 (m) See per Lord Halsbury in 
 Scale v. Rawlins, (1892) A. C. at 
 p. 343; per Romer, L. J., in Re 
 Gorringe, (1906) 2 Ch. at p. 347; 
 approved by the II. L., Gorringe 
 v. Mahlstedt, (1907) A. C. 225. 
 
 ( n ) Per Lord Wensleydale in 
 Grey V. Pearson (1857), 6 H. L. C. 
 at p. 106 ; approved by Lord 
 Chelmsford in Abbott v. Middle- 
 
 ton (1858), 7 H. L. C. at p. 82; 
 repeated by Lord Wensleydale in 
 Thellusson v. Rendlesham (1858), 
 7 H. L. C. at p. 519; approved 
 by Lord Blackburn in Caledonian 
 Rail. Co. v. North British Rail. 
 Co. (1881), 6 App. Cas. at p. 131. 
 
 (o) See per Lord Wensleydale 
 in Abbott v. Middleton, supra, at 
 p. 114. 
 
THE CONSTRUCTION OF A WILL. 
 
 481 
 
 imputed by mere uncertain conjecture, contrary to the express 
 words (p ) . 
 
 Secondly, except as stated below, extrinsic evidence is not 
 admissible to shorn what the testator meant (g). Thus, suppose 
 there is a reference in a codicil to a revoked will, but nothing 
 on the face of the codicil to show an intention to revive the 
 will: extrinsic evidence will not be allowed to show that the 
 reference to the will was meant by the testator to amount to a 
 revival of it(r). Nor, if a devise or bequest is inadvertently 
 omitted, can parol evidence be given to supply it, or show that 
 it was intended (s). Nor is it admissible to substitute one 
 word for another, to enlarge the extent of terms, or to affect 
 the construction of words, unless the context renders it impos- 
 sible to accept the words in their ordinary sense {t). Nor to 
 show that an illegitimate rather than a legitimate jjerson was 
 intended ( u ). Again, where a legatee is once correctly named 
 and described in one part of the will, and the same name occurs 
 again in another part as a legatee without any description, evi- 
 dence will not be admitted to show that a different person was 
 intended (x ) . 
 
 But extrinsic evidence is admissible of the facts respecting 
 the persons and property to which the will relates in order to 
 ascertain all the facts which were known to the testator at the 
 time he made his will (y) ; and to explain a latent ambiguity, 
 i.e ., one which only becomes apparent when it is attempted to 
 give effect to the will (0) . Extrinsic evidence will also be ad- 
 mitted to rebut presumptions of law, such as the presump - 
 
 (p) See per Lord Truro in 
 Egerton v. Earl Brownloiv (1853), 
 4 H. L. C. at p. 181. 
 
 ( q ) See Charter v. Charter 
 (1874), L. R. 7 If. L. 364. 
 
 (r) In the goods of Steele 
 (1868), L. R. 1 P. & D. 575. 
 
 (s) See per Sir C. Cresswell in 
 Mitchell v. Gard (1862), 3 Swab. 
 & Trist. at p. 80. 
 
 ( t ) Doe d. Hiscochs v. Hiscochs 
 (1839), 5 M. & W. 339; Tudor, 
 
 G. — C. 
 
 L. C. Conv. 4th ed. 489. 
 
 {u) Ingham, v. Bayner , (1894) 
 2 Oh. 83. 
 
 (x) Webber v. Corbett (1873), 
 L. R. 16 Eq. 515. 
 
 (y) Doe d. Hiscochs v. Hiscochs 
 (1839), 5 M. & W. 339; Tudor, 
 L. 0. Conv. 4th ed. 489; Bernas- 
 coni v. Athinson (1853), 10 Hare, 
 345; Re Ofner, (1909) 1 Ch. 60. 
 
 ( z ) In the estate of Dianah 
 Hubbuch, (1905) P. 129. 
 
 I I 
 
 Extrinsic 
 evidence not 
 admissible, 
 
 except — 
 
 (i) to explain 
 a latent 
 ambiguity ; 
 
482 
 
 BK. I., PT. VI. WILLS. 
 
 (ii) to retmt 
 presumptions 
 of law. 
 
 The whole 
 will must be 
 taken into 
 consideration. 
 
 Words may be 
 rejected, 
 added or 
 changed in 
 cases of 
 mistake. 
 
 Of two 
 inconsistent 
 clauses the 
 last prevails. 
 
 tions in favour of resulting trusts (a), of satisfaction and of 
 ademption of legacies by portions (b), to explain the meaning 
 of signs or symbols, or nicknames used by the testator ( c ), 
 or to show that the will was executed on another date than that 
 appearing on the face of it. 
 
 Thirdly, in order to determine the intention of the testator , 
 the ivhole wilt must be looked at , and not merely particular 
 expressions or detached passages ( d ) . The ' strict or literal 
 
 meaning of the terms used by the testator will be departed 
 from if upon a consideration of the whole will he appears to 
 have had a different intention (e). 
 
 Fourthly, words will be rejected, supplied, or changed, when 
 this is absolutely necessary to give effect to the general inten- 
 tion as collected from the whole will, or when it is obvious on 
 the face of the will that a mistake has been made. For in- 
 stance, words omitted by oversight will be supplied (/) . And 
 in a case in which the name of one of two daughters of the 
 testator was inserted in the will twice, being inserted in the 
 second place by mistake of the draftsman for that of the other 
 daughter, probate was granted with the name omitted in the 
 second place in which it occurred, leaving it for the Chancery 
 Division upon an application for the construction of the will 
 to fill in the name of the intended beneficiary (g) . Mistakes, 
 however, will never be presumed if the will is capable of a 
 reasonable construction as it stands. 
 
 Fifthly, if two parts of a will are totally inconsistent and 
 irreconcilable, the latter will prevail. This is based on the 
 theory that the testator may have changed his mind; but where 
 a benefit is conferred in one part of the will in clear terms, 
 
 ( а ) Gladding v. Yapp (1820), 
 5 Madd. 56. 
 
 (б) In re Tussaud's Estate 
 (1878), 9 Ch. D. 363. 
 
 (c) Doe d. Hiscocks v. Hiscocks , 
 supra. 
 
 {d) See per Lord Eldon, Wool- 
 lam v. Kenworthy (1803), 9 Ves. 
 at p. 142; per Lord Truro, Eger- 
 
 ton v. Earl Brownlow (1853), 4 
 H. L. C. at p. 181. 
 
 (e) See Abbott v. Middleton 
 (1858), 7 H. L. 0. 68. 
 
 (/) Davies v. Hetherington 
 (1890), 62 L. T. 753. 
 
 ( g ) In the goods of Boehm, 
 (1891) P. 247; see also In the 
 goods of Walkley (1893), 69 L. T. 
 419. 
 
THE CONSTRUCTION OF A WILL. 
 
 483 
 
 which admit of no doubt, such benefit cannot afterwards be 
 taken away, except by words which are just as clear and free 
 from doubt. Thus where there was a gift to the children of 
 a specified person “except Thomas, the eldest son,” and the 
 eldest son’s name was not Thomas, the exception was held 
 void (Ji). 
 
 Sixthly, where it is impossible to discover from the words 
 of a will what was meant to be given, or who ivas the person to 
 be benefited, the gift is void for uncertainty. Thus, if there 
 is a gift by name, and a particular description superadded, and 
 there is someone who answers to the name, and someone else 
 who answers to the description, no evidence of the testator’s 
 intention being* admissible, the gift is void for uncertainty (i). 
 So it will be if the name in the will may be intended for that of 
 either one of two persons, and there is nothing to point to one 
 being intended rather than the other (1c). But the mere fact 
 that the legatee’s Christian name is left blank will not avoid 
 the legacy if there is no doubt to whom the surname applies (Z). 
 
 Date of Operation of Will. 
 
 Sect. 24 of the Wills Act provides that “ every will shall be 
 construed with reference to the real estate and personal estate 
 comprised in it, to speak and take effect as if it had been 
 executed immediately before the death of the testator, unless 
 a contrary intention shall appear by the will.” 
 
 The section only applies in the absence of a contrary inten- 
 tion; but the contrary intention must clearly appear by the 
 will. Consequently if there is a gift of specific leaseholds, and 
 the testator afterwards acquires the freehold reversion, the fee 
 simple will pass to the legatee, unless it can be gathered from 
 the will that the testator only intended to deal with leasie- 
 
 (Ji) Hodgson v. Clarke (1860), 
 1 De Gf. F. & J. 394. 
 
 ( i ) Hoe d. Hiscocks v. Hiscocks 
 (1839), 5 M. & W. 339; Tudor, 
 L. C. Conv. 4th ed. 489. 
 
 I I 
 
 ( k ) Drake v. Drake (1860), 8 
 H. L. C. 172. 
 
 ( l ) Price v. Page (1799), 4 Yes. 
 680; In the goods of Boehm, 
 supra (extrinsic evidence was re- 
 ceived in these cases). 
 
 9 
 
 When inten- 
 tion cannot 
 be discovered, 
 will is void. 
 
 A will speaks 
 from the 
 death of the 
 testator. 
 
 1 Viet. c. 26, 
 s. 24. 
 
 What is a 
 
 contrary 
 
 intention. 
 
484 
 
 BK. I., PT. VI. WILLS. 
 
 holds (m). The use of the word “now*” will not alone be 
 deemed to refer to the date of the will. So that where a 
 testator devised all the property “ I now possess,” it was never- 
 theless held that property acquired subsequently to the date of 
 the will would pass(w). On the other hand, where A. be- 
 queathed a leasehold house, “ where he then resided,” called 
 the Anchor Inn, to B., and had, previously to the making of 
 the will, altered the house, turning part of it into a shop, and 
 had sub-leased the shop after the date of the will, the court 
 held that the shop passed with the inn toB . , on the ground that 
 the circumstances existing at the date of the will, not those at 
 the time of the testator’s decease, were to be considered, and 
 at the former period the testator was the only person occupying- 
 the premises (o). But where a testator devised lands to B., 
 and subsequently to the date of his will sold them, and took a 
 mortgage of the lands to secure a part of the purchase-money, 
 and died without having altered his will, it was held that B. 
 was not entitled to the mortgage money (p). So also, in Re 
 Slater (q), where a testator bequeathed “ the interest arising 
 from money invested in, inter alia, the Lambeth Waterworks 
 Company” to a legatee, and between the dates of his will and 
 death the Lambeth Waterworks Company was acquired by the 
 Metropolitan Water Board, and a sum of Metropolitan Water 
 Board stock was issued to the testator in respect of the stock 
 held by him in the company, the Court of Appeal held that 
 s. 24 of the Wills Act applied, there being no sufficient con- 
 trary intention to exclude the operation of that section, and 
 that the claim of the specific legatee failed. 
 
 (m) Saxton v. Saxton (1879), 
 13 Oh. D. 359. 
 
 (n) W ag staff v. Wagstajf 
 
 (1869), L. E. 8 Eq. 229; Castle 
 v. Fox (1871), L. E. 11 Eq. 542; 
 Re Portal and Lamb (1885), 30 
 Ch. D. 50; Re Willis, Spencer v. 
 Willis, (1911) 2 Ch. 563; In re 
 Ashburnham, (1912) W. N. 234. 
 
 (o) Rowland v. Edwards (1890), 
 63 L. T. 481; Re Evans, Powell 
 v. Evans, (1909) 1 Ch. 784, is 
 similar; sec also Williams on Exe- 
 cutors, 9th ed. 175, n. 
 
 (p) Re Clowes, (1893) 1 Ch. 
 214. 
 
 (q) (1907) 1 Ch. 665. See also 
 Re Cliford, (1912) 1 Ch. 29. 
 
THE CONSTRUCTION OF A WILL. 
 
 485 
 
 Lapsed Devise. 
 
 By s. 25 of the Wills Act, “ unless a contrary intention shall 
 appear by the will, such real estate or interest therein as shall 
 be comprised or intended to be comprised in any devise in such 
 will contained which shall fail or be void by reason of the death 
 of the devisee in the lifetime of the testator or by reason of such 
 devise being contrary to law or otherwise incapable of taking 
 effect shall be included in the residuary devise (if any) con- 
 tained in such will.” 
 
 This section, however, probably does not apply to the case 
 where the testator exercises a general power of appointment by 
 will and the appointee dies before him; in such a case the claim 
 of the persons entitled in default of appointment will probably 
 prevail over that of the residuary devisee, unless the testator 
 has shown an intention to exercise the power for all purposes 
 so as to make the property his own (r) . 
 
 Effect of a General Devise or Bequest. 
 
 By s. 26 of the Wills Act a general devise of land is to be 
 construed to include the customary copyhold and leasehold 
 estates of the testator as well as freehold estates, unless a con- 
 trary intention appear. 
 
 As a consequence of this section it has been held that where 
 there is a gift of all the testator’s personalty to A. and all his 
 land to B., his leaseholds, though strictly speaking personalty, 
 will pass to B. (s). 
 
 Again, by s. 27 of the Wills Act, a general devise of the real 
 estate, or a general bequest of the personal estate, is to be con- 
 strued to include real estate or personal estate which the testator 
 has a power to appoint in whatever manner he may think 
 proper, and operates as an execution of the power, unless a 
 contrary intention appear by the will. 
 
 (r) See Coxen v. Roivland, Re Marten, (1902) 1 Oh. 314. 
 (1894) 1 Ch. 406; Thomas v. (s) Wilson v. Eden (1850), 5 
 McKechnie (1893), 68 L. T. 618; Ex. 752. 
 
 Lapsed devise 
 falls into 
 residue. 
 
 1 Viet. c. 26, 
 s. 25. 
 
 Probably not 
 applicable to 
 appointment 
 under a 
 power. 
 
 General devise 
 
 includes 
 
 freeholds, 
 
 leaseholds, 
 
 and copy- 
 
 holds. 
 
 I Viet. c. 26, 
 
 s. 26. 
 
 Comprises 
 property 
 appointable 
 under general 
 power. 
 
 1 Viet. c. 26, 
 s. 27. 
 
48 (> 
 
 BK. I., PT. VI. WILLS. 
 
 Construction 
 of act. 
 
 Does not 
 apply to 
 appointment 
 under 
 
 special power. 
 
 To show a contrary intention there must be something in 
 the will inconsistent with the view that the general devise or 
 bequest was meant as an execution of the power (£). It has 
 been held that where a general power to appoint property is 
 given, and the instrument giving the power requires the instru- 
 ment executing it to refer to the instrument creating the power, 
 the property will not be deemed to be appointed by general 
 devise or bequest (w) . A will speaks from the death of the 
 testator, as we have seen, so that no contrary intention can be 
 deduced from the fact that the will was executed before the 
 testator received the general power to appoint (x ) . But other 
 circumstances will be taken into consideration. 'Thus, where 
 the testator subsequently to his will made a settlement by 
 which he gave to himself a power to appoint certain property, 
 it was held that a residuary bequest in his will did not operate 
 to execute that power, a contrary intention being deduced from 
 the fact of his reserving the power to appoint subsequently to 
 the execution of his will (y ) . 
 
 The section does not apply to special powers, and a general 
 devise will not operate as an exercise of a special power unless 
 there is an indication in the will of an intention that it 
 shall (z ) ; where, however, there is any indication in the will 
 that the gift is made in pursuance of a power, and the gift is 
 in favour of the objects of the power, the gift may operate 
 as an appointment under the power (a) . But evidence of the 
 state of the testator’s property at the date of the will is not 
 admissible to show an intention to execute a special power 
 by a general gift (&). 
 
 (£) Scriven v. Sandon (1862), 
 
 2 J. & H. 743. 
 
 ( u ) Phillips v. Cayley (1889), 
 
 43 Ch. D. 222. 
 
 (cc) Stillman v. Weedon (1848), 
 16 Sim. 26; Boyes v. Cook (1880), 
 
 14 Ch. D. 53. 
 
 (jj) Thomas v. McKechnie 
 (1893), 68 L. T. 816. 
 
 (z) See Re Mills (1886), 34 
 Ch. D. 186; Foulkes v. Williams 
 
 (1889), 42 Ch. D. 93; and see Re 
 Hayes, Turnbull v. Hayes, (1900) 
 
 2 Ch. 332. 
 
 (a) Pidgely v. Pidgely (1844), 1 
 Coll. 255; Re Milnes, (1899) 
 W. N. 27. 
 
 (5) See Innes v. Sayer (1831), 
 
 3 Mac. & Gr. 606; Re Huddle- 
 stone, Bruno v. Eyston, (1894) 3 
 Ch. 595. 
 
THE CONSTRUCTION OF A WILL. 
 
 487 
 
 The Effect of a Devise without Words of Limitation. 
 
 By s. 28 of the Wills Act, where real estate is devised with- 
 out any words of limitation the words of devise are to be con- 
 strued to pass the fee simple, or other the whole estate or interest 
 which the testator has power to dispose of by will in such real 
 estate, unless a contrary intention appear by the will. A devise 
 of rents and profits will, under this section, pass the fee simple 
 in the land out of which they arise (c). But the section does 
 not apply to estates created by the will itself; so that if a 
 testator creates an annuity by his will and bequeaths it to A., 
 A. will only get an annuity for his life (77) . 
 
 The Meaning of the Words “Die without Issue.’ 
 
 By s. 29 of the Wills Act, in any devise or bequest the words 
 “die without issue,” or “ die without leaving issue,” or “have 
 no issue,” or any other words which may import either a want 
 or failure of issue of any person in his lifetime or at his death, 
 or an indefinite failure of his issue (e), shall be construed to 
 mean want or failure of issue in the lifetime or at the death of 
 such person, and not an indefinite failure of his issue unless a 
 contrary intention appear by the will, by reason of such person 
 having a prior estate tail, or of a preceding gift being (without 
 any implication arising from such words) a limitation of an 
 estate tail to such person or issue or otherwise. But the section 
 is not to extend to cases where such words import that if no 
 issue described in a preceding gift shall be born, or if there 
 shall be no issue who shall live to attain the age or otherwise 
 
 answ r er the description required for obtaining a vested estate by 
 a preceding gift to such issue. 
 
 Before the act a gift of realty to A., and if he should die 
 without issue to B. in fee, would give to A. an estate in tail in 
 the real estate, for the words “die without issue” were con- 
 
 (c) Mannox v. Greener (1872), 
 L. R. 14 Eq. 456. 
 
 ( d ) Nichols v. Hawkes (1853), 
 10 Hare, 342. 
 
 (e) This includes the expression 
 “ die without leaving any male 
 issue”: Re Edwards, (1894) 3 Ch. 
 
 644. 
 
 A devise 
 without words 
 of limitation 
 passes fee 
 simple. 
 
 1 Viet. c. 26. 
 s. 28. 
 
 ‘ ‘ Die without 
 issue.” 
 
 1 Viet. c. 26, 
 a. 29. 
 
 Former 
 meaning’ of 
 the words. 
 
488 
 
 BK. I., PT. VI. WILLS. 
 
 45 & 46 Vicf . 
 c. 39, s. 10. 
 
 Cases of 
 contrary 
 intention 
 
 strued to mean an indefinite failure of issue, and this was the 
 only method of giving effect to such a construction; and since 
 
 A. could at once bar the estate tail and acquire the fee simple, 
 
 B. ran the risk of being totally defeated, even though A. were 
 to have no issue. A gift of personalty to A., and if he should 
 die without issue to B., gave A. an absolute interest, and B. 
 got nothing. By virtue of the above section, A. will now take 
 a fee simple in the real, and an absolute interest in the per- 
 sonal, estate; but this estate and interest will be liable to be 
 defeated by his dying without leaving issue living at his death, 
 and, if this occurs, B. will become entitled as executory devisee 
 and legatee, A. having no power to defeat the gift to him. 
 
 The provision in the Wills Act must now, however, as to land 
 bo read subject to s. 10 of the Conveyancing Act, 1882, under 
 which the gift to B. becomes void directly any of A.’s issue 
 attains twenty-one (/). 
 
 The section in the Wills Act has been held not to apply to 
 a case where property was devised to A., with a limitation over 
 “ if he should die without issue or under twenty-one.” Here 
 “or” was read “ and,” and A. obtained the fee upon his 
 attaining twenty-one (g). Again, a gift to A. and the heirs 
 of his body, and if he should die without issue to B., has been 
 held to confer on A. an estate tail, which he may bar, and thus 
 defeat B. (h ). 
 
 Construction of Devise to Trustees. 
 
 U nlimited 
 devise to 
 trustee passes 
 the fee simple. 
 1 Viet. c. 26, 
 ss. 30 and 31 . 
 
 Sect. 30 of the Wills Act provides that devises to trustees 
 or executors, other than presentations to a church, shall pass 
 the testator’s whole estate, unless a definite term of years, or 
 an estate of freehold, be expressly or impliedly given. And 
 by s. 31 under an unlimited devise when the trust may endure 
 beyond the life of a person beneficially entitled for life, the 
 trustees are to take the fee simple, and not an estate deter - 
 
 (/) The section applies to an 
 executory limitation in defeasance 
 of an equitable fee simple : Re 
 
 Shrubb, (1910) W. N. 143. 
 
 ( g ) Morris v. Morris (1853), 17 
 
 Beav. 198. 
 
 ( [h ) Green v. Green (1849), 3 
 De G. & Sm. 480 ; Dawson v. 
 Small (1874), L. B. 9 Ch. App. 
 651. 
 
THE CONSTRUCTION OF A WILL. 
 
 489 
 
 minable when the purposes of the trust are satisfied. It has 
 been suggested that these two sections were intended to be 
 alternative, and their effect, as read together, is not altogether 
 free from doubt. The better opinion is that the trustees will 
 only take an estate pur autre vie if that is sufficient to enable 
 them to perform their duties, otherwise they take the fee simple. 
 
 No Lapse of Gift in Certain Cases. 
 
 When a gift is made by will, and the object of that gift dies 
 in the lifetime of the testator, the gift lapses and the property 
 falls into the residue; or if the gift is of the residue itself, 
 the lapsed property goes to the heir if realty and the next of 
 kin if personalty. By ss. 32 and 33 of the Wills Act, two 
 exceptions are created to this rule. First, by s. 32, where any 
 person to whom real estate is devised for an estate tail or in 
 quasi-entail dies in the lifetime of the testator leaving issue, 
 who would be inheritable under such entail, and any such issue 
 be living at the death of the testator, the devise will not lapse 
 but will take effect as if the death of such person had happened 
 immediately after the death of the testator, unless a contrary 
 intention appears by the will. Secondly, by s. 33, where any 
 person being a child or other issue of the testator to whom real 
 or personal estate is devised or bequeathed for any estate or 
 interest not determinable at or before the death of such person, 
 dies in the lifetime of the testator leaving issue, and any issue 
 of such person be living at the death of the testator, such devise 
 or bequest will not lapse but will take effect as if the death of 
 such person had happened immediately after the death of the 
 testator, unless a contrary intention appear by the will(i). 
 
 This section has sometimes caused curious results, as the 
 following cases show. 
 
 In Eager v. Furnivall (Ar), property was devised by A. to his 
 daughter B. B. died in A.’s lifetime, leaving issue living at 
 A.’s death; and it was held, that as under the section it must 
 be presumed that B. had died immediately after A., she was 
 
 Exceptions to 
 law of lapse 
 created by 
 1 Viet. c. 26, 
 s. 32. 
 
 s. 33, gifts 
 to issue. 
 
 Illustrations. 
 
 (i) See Johnson v. Johnson (1860), 1 Swab. & Trist. 523. 
 
 (1843), 3 ITare, 157; Re Parker (k) (1881), 17 Ch. D. 115. 
 
490 
 
 Gifts to 
 children as 
 a class. 
 
 Gifts under 
 powers. 
 
 BK. I., PT. VI. WILLS. 
 
 sufficiently seised of the lands to give her husband the right to 
 an estate by the curtesy in them. 
 
 In Re Hensler, Jones v. Hensler (l), A. devised a freehold 
 house to his son B., and left the residue of his realty to C. and 
 
 D. B. made his will, giving all his property to his fatheir. 
 B. died in A.’s lifetime, leaving issue who survived A. And 
 it was held, that as under the section it had to be presumed 
 that A.’s death occurred before B.’s, the house passed to B. 
 under A.’s will, but B.’s gift to A. lapsed, and that therefore 
 
 E. . the heir-at-law of B., was entitled to the property. 
 
 In Re John Scott (m), X. devised real estate to his son A., 
 who predeceased X., leaving a daughter who was living at X.’s 
 death. A. devised his residuary estate to trustees. It was 
 held that, as under the section A. must be deemed to have died 
 after X., on the death of the latter estate duty on the real 
 estate devised to A. was payable twice, viz., once on the death 
 of X., and once on the death of A. 
 
 In Re Griffiths ( n ), it was held that a child of a testator’s 
 son en ventre sa mere and born after his father’s and the 
 testator’s death, is “living” at the time of the testator’s death 
 so as to make s. 33 apply to a gift to the testator’s deceased 
 son. 
 
 The section does not apply to gifts to a class, so that if there 
 is a bequest to children of the testator living at his decease, and 
 one of those children predeceases the testator, although the 
 deceased child may have left issue, the other children will alone 
 be entitled (o); and this is so even though there be but one 
 child ( p ). 
 
 Nor does the section apply to cases where the testator is 
 exercising a special power of appointment, for the words used 
 are “ devised or bequeathed,” not “ appointed.” So that if A., 
 having a power to appoint a sum of money to each of his 
 children, exercises the power in favour of a child who dies in 
 
 (Z) (1881), 19 Cli. D. 612. 16 Beav. 565; Olney v. Bates 
 
 (m) (1901) 1 K. B. 228. (1855), 3 Drew. 319. 
 
 (w) (1911) 1 Ck. 246. (p) Harvey v. Gillow, (1893) 1 
 
 (o) Fullford v . Fullford (1853), Ch. 567. 
 
THE CONSTRUCTION OF A WILL. 
 
 491 
 
 A.’s lifetime, although he leave issue, the appointed gift will 
 lapse (q). But the section does apply when a general power 
 of appointment is exercised in favour of a child referred to 
 by name (r). 
 
 The Rule in Wild s Case. 
 
 Where there is a devise to a person and his “ children,’ or 
 “issue,” and he has no issue at the date of the will, prima 
 facie the words “children” or “issue” are words of limita- 
 tion, and such person will take an estate tail; if he has issue 
 at that time, he and they take joint estates (s). 
 
 This rule, however, only applies in the absence of a contrary 
 intention appearing by the will(£). 
 
 The better opinion appears to be that the rule does not apply 
 to a gift of personalty, and that a gift of' personalty to a person 
 and his children or issue, whether he has any at the date of the 
 will or not, confers joint estates, the words “children” or 
 “issue” being here words of purchase, and not of limita- 
 tion (u). 
 
 Several Legacies to the same Person. 
 
 When a testator by the same instrument gives two legacies 
 to the same person of equal amount there is a presumption 
 that the second legacy is merely a repetition, unless there is 
 an apparent intention to give both. Parol evidence is admis- 
 sible to show such intention, or it may be deduced from the 
 wording of the will itself, as where there was a gift to trustees 
 on trust to pay a legacy of 1,000£. to A., and upon “further ” 
 trust to pay A. 1,000L But if the legacies are not equal, 
 the legatee is entitled to both. If the legacies are given by 
 different instruments, e.g 1 ., one by a will, and the other by a 
 codicil, to the same person, he will take both, whether the 
 
 (g) Ilolyland v. Lewin (1883), 
 
 26 Ch. D. 266. 
 
 (r) Eccles v. Cheyne (1856), 2 
 
 K. & J. 676. 
 
 (s) Wild's Case (1599), 6 Co. 
 
 16 b; Tudor, L. C. Conv. 4th ed. 
 361. 
 
 ( t ) Grieve v. Grieve (1867), 
 L. R. 4 Eq. 180. 
 
 ( u ) See notes to Wild's Case, 
 supra. 
 
 Statement 
 of rule. 
 
 Does not 
 apply to 
 personalty. 
 
 Two legacies 
 by same 
 instrument to 
 same person 
 prima facie 
 substitu- 
 tional. 
 
 If by different 
 instruments 
 prima facie 
 cumulative. 
 
492 
 
 BK. I., FT. VI. WILLS. 
 
 amounts of the legacies are equal or not, unless it appear that 
 the gift by the latter instrument is meant to be substitu- 
 tional (x). But even though they be by different instruments, 
 if they are of the same amount, and are expressed to be given 
 from the same motive, or for the same purpose, they are sub- 
 stitutional, not cumulative (y ) . 
 
 Legacy to Creditor of Testator. 
 
 Satisfaction 
 of debt by 
 legacy. 
 
 Not favoured 
 by the court. 
 
 Where a testator gives to his creditor a legacy of a sum of 
 money equal to or larger than the amount of his debt and in 
 every respect as beneficial as the debt, the legacy is presumed to 
 be given in satisfaction of the debt unless a contrary intention 
 appears (2) . 
 
 But the leaning of the courts is strongly against the appli- 
 cation of the rule, and it does not apply where the debt was 
 contracted subsequently to the date when the will was made (a), 
 or where the testator in the will directs his debts and legacies 
 to be paid (h), or directs his debts to be paid(c). Nor does 
 it apply where the legacy is a share of residue, for this ,is 
 uncertain in amount (d), or where the legacy is not payable 
 at as early a date as the debt(e). In these cases, the legacy, 
 though greater in amount, may not be in every respect as bene- 
 ficial to the creditor as the debt. 
 
 No satisfac- 
 tion of debt 
 by devise. 
 
 Nor is a debt satisfied where the gift by will is of something 
 essentially different in character to the debt, consequently a gift 
 of an estate in land will not satisfy a debt. 
 
 (x) Hooley v. Hatton (1772), 1 
 Bro. 0. C. 390, n.; Wh. & Tud. 
 L. C. Eq. 8th ed. vol. i. 910. 
 
 (y) Benyon v. Benyon (1810), 
 17 Ves. 34. 
 
 ( 2 ) Talbot v. Shrewsbury 
 (1714), Pr. Oh. 394; Wh. & 
 Tudor, L. C. Eq. 8th ed. vol. ii. 
 378. 
 
 (a) Crammer's Case (1698), 2 
 Salk. 508. 
 
 (5) Chancey's Case (1717), 1 
 P. W. 408; Wh. & Tudor, L. C. 
 Eq. 8th ed. vol. ii. 379. 
 
 (c) Bradshaw v. Huish (1889), 
 43 Oh. D. 260. 
 
 ( d ) Crichton v. Crichton, (1895) 
 2 Ch. 853. 
 
 (e) Re Horlock, (1895) 1 Ch. 
 516. But the case of Re Ratten - 
 berry, (1906) 1 Ch. 667, appears 
 to be in direct conflict with this. 
 
THE CONSTRUCTION OF A WILL. 
 
 493 
 
 Rules for ascertaining* Class. 
 
 In the case of a gif t to a class of persons such as the children Rules f . 01 l 
 of a named person, the persons entitled to share in the gift are, w hen classic* 
 in the absence of any indication of a contrary intention, deter- be ascertained, 
 mined by the following rules (/): — 
 
 1. When an immediate gift is made to the children of any 
 person, the class of children to take will be those living at 
 the testator’s death, if any, including a child en ventre sa mere ; 
 if there are no children then existing, those coming into exist- 
 ence subsequently will take. 
 
 2 . If the gift is not to take effect till after it has been enjoyed 
 by a tenant for life, the class will include both children born 
 in the lifetime of the testator, and those who come into esse 
 before the tenant for life dies; if no children are born before 
 the death of the tenant for life, after-born children will be 
 admitted, unless the testator has indicated an intention that 
 the distribution is to be made once for all when the fund falls 
 into possession. 
 
 3 . If the gift is of a reversionary interest the class will be 
 ascertained when the interest falls into possession. 
 
 4 . If the gift is to children to be paid at twenty-one, or to 
 such children as attain twenty-one, the class of children will 
 be fixed at the testator’s death, if any child has attained twenty- 
 one in the testator’s lifetime; if none has, then all born at 
 the testator’s death and coming into existence before the eldest 
 attains twenty -one will take (g ) . 
 
 5 . If the gift is to children who attain twenty-one after a 
 prior life interest, only those will take who are in esse at the 
 death of the tenant for life, or when the eldest attains twenty - 
 one, whichever happens last. 
 
 (/) See Vine r v. Francis (1789), 
 2 Cox, 190; Tudor, L. C. Conv. 
 4th ed. 417, and the notes. As to 
 what is meant by a gift to a class, 
 see judgment of Lord Selborne in 
 Pearks v. Moseley (1880), 5 App. 
 
 Cas. at p. 723. 
 
 (g) A trust for accumulation of 
 income may indicate an intention 
 that this rule is not to be applied : 
 Re Stephens, Kilby v. Betti 
 
 (1903), 73 L. J. Ch. 3. 
 
494 
 
 BK. I., PT. VI. WILLS. 
 
 When Gift by Will Vested and when Contingent. 
 
 Buies as to 
 limitation of 
 contingent 
 gifts : 
 
 (i) Devise of 
 land when 
 vested ; 
 
 A gift by will which is made to take effect on the happening 
 of some future event may be either vested or contingent. 
 Where there is no express direction as to the period of vesting, 
 regard must be had to the following rules in order to determine 
 whether the gift is vested or contingent. 
 
 A devise to a person and his heirs , “ if ” or “ when ” he 
 attains or “ on his attaining ” a specified age is contingent, 
 and he takes no interest till he attains that age, unless a con- 
 trary intention appears in the will(h). But there are ex- 
 ceptions to this rule. First, a devise is vested when an estate 
 prior to the devisee’s is given to some third person either for 
 the benefit of the devisee or for that of some other person, to 
 endure during the minority of the devisee. Accordingly, where 
 A. devised lands to X. till testator’s son B. should attain 
 twenty -one, and when B. attained twenty-one, then to B. and 
 his heirs, it was held that the devise vested in B. upon A.’s 
 death (i) . This is on the ground that the estate given to B . 
 is in fact only a remainder taking effect in its natural order on 
 the determination of the preceding estates (1c) . Secondly, a 
 devise to A. for life, and from and after his decease to B., if 
 or so soon as he shall have attained the age of twenty-one, 
 gives B. ,a vested interest (Z); but a devise of real property 
 to those members of a class who attain twenty-one, the given 
 age being p part of the description of the devisee, is contin- 
 gent, even though preceded by a life estate; so that if none 
 of the class attain twenty-one, the devise over, if any, will take 
 effect (m). Thirdly, if there is a devise with a gift over on 
 
 (h) Grant's Case (1587), 10 Bep. 
 50 a; Phipps v. Ackers (1842), 9 
 01. & E. 583; Andrew v. Andrew 
 (1875), 1 Ch. D. 410; Love v. 
 Love (1881), 7 L. R. Ir. 306; Be 
 Francis , (1905) 2 Ch. 295. 
 
 (i) Boraston's Case (1587), 
 Tudor, L. C. Conv. 4th ed. 427; 
 Manfield v. Dugard, 1 Eq. Ca. 
 Abr. 194, pi. 4. 
 
 ( k ) Per Tindal, C. J., in Phipps 
 v. Ackers (1842), 9 Cl. & E. at 
 p. 591; per Lord Brougham, ibid. 
 at p. 596. 
 
 ( l ) Andrew v. Andrew (1875), 1 
 Ch. D. 410. 
 
 (m) Bull v. Pritchard (1846), 
 5 Hare, 567; Re Jobson, Jobson 
 v. Richardson (1889), 44 Ch. D. 
 154. 
 
THE CONSTRUCTION OF A WILL. 
 
 49 5 
 
 death of the devisee under twenty-one, the devise is vested, on 
 the ground that the testator’s intention appears from the form 
 of the devise that the first devisee should take whatever interest 
 the party claiming under the devise over is not entitled to, 
 which of course gives him the immediate interest subject only 
 to the chance of its being divested if he dies under a ge(n). 
 
 In the absence of any indication of a contrary intention , if 
 a legacy not charged on land be given to a person to be paid 
 or payable at a given age, or at any determinate f uture time, 
 the legacy is vested, the payment only being postponed. But 
 a legacy to a legatee “ if" or “when” he attains a specified 
 age, or “on his attaining ” that age, is contingent (o) . But 
 each part of this rule yields to indications of a contrary in- 
 tention on the part of the testator. Thus, if a legacy is given 
 to A. when he attains a specified age, and there is at the same 
 time a gift of the interest to A. in the meantime, or a direction 
 to apply such interest or any part thereof for his maintenance, 
 or if the legacy is directed to be immediately separated from 
 the rest of the estate, the legacy will vest at once (p). 
 
 Where a legacy of money charged on land is given to the 
 legatee payable at a specified age or other event personal to 
 the legatee the legacy is not raisable if the legatee dies before 
 attaining the given age, or before the event happens (q). This 
 is in consequence of the favour which the law shows to the 
 owner of the inheritance, which caused the courts to refuse to 
 apply the rule applicable to legacies not charged on land laid 
 down by the ecclesiastical courts when they had jurisdiction 
 over the administration of personal estate (r) . 
 
 ( n ) Phipps v. Ackers (1842), 9 
 €1. & F. 583. 
 
 ( o ) Stapleton v. Cheales (1711), 
 Pr. Ch. 317; Tudor, L. C. Conv. 
 4th ed. 438; Hanson v. Graham 
 (1801), 6 Ves. 239; Tudor, L. C. 
 
 440. 
 
 (p) Hanson v. Graham, supra; 
 Be Gossling, (1903) 1 Ch. 448. 
 
 (g) Pawlett v. Pawlett (1685), 
 1 Vern. 321; Tudor, L. C. Conv. 
 4th ed. 434, and notes, especially 
 at p. 468. 
 
 (r) Ibid. 
 
 (ii) Gift of 
 pure per- 
 sonalty when 
 vested ; 
 
 (iii) Legacy 
 charged on 
 land when 
 vested. 
 
496 
 
 BK. I., PT. VI. WILLS. 
 
 When con- 
 dition prece- 
 dent, court 
 favours donee 
 When subse- 
 quent, court 
 construes it 
 strictly. 
 
 Conditions 
 commonly 
 imposed in 
 wills. 
 
 Summary of 
 law as to 
 conditions in 
 restraint of 
 marriage. 
 
 Gifts upon Condition. 
 
 Where a gift by will is conditional, if the condition is pre- 
 cedent, i.e ., is a condition which is to exist or be performed 
 before the property given is to vest, the court will favour the 
 donee, and will hold the gift vested upon a substantial com- 
 pliance therewith; but if it is a condition subsequent, i.e., 
 one upon which the estate or interest given is to divest, the court 
 will construe it strictly, because it tends to defeat a previous 
 gift. 
 
 The conditions which testators most commonly impose are:- — 
 conditions in restraint of marriage; 
 
 conditions restraining alienation, or restricting the full 
 enjoyment of the property given; 
 and conditions involving forfeiture of a gift by a legatee 
 if he shall dispute the will. 
 
 The leading case upon conditions in restraint of marriage is 
 Scott v. Tyler , decided by Lord Tliurlow in 1788 (s). The 
 following is a summary of the rules to be deduced from it and 
 
 o J 
 
 subsequent decisions : — 
 
 (A) Where the Property given is Land or a Charge on Land. 
 
 (a) A condition, whether precedent or subsequent, in general 
 restraint of marriage, is bad, as opposed to public policy, unless 
 annexed to a gift to a widow or widower (£). 
 
 (b) A limitation till marriage and then over, whether bv 
 way of conditional limitation or condition subsequent, is good 
 if the object be not to restrain marriage but to make a pro- 
 vision for the donee while unmarried (w) . 
 
 (c) Where land is given subject to a condition precedent of 
 marriage with the consent of some third person, the consent 
 must be procured before the gift can vest, whether there is a gift 
 over on marriage without such consent or not. But if the con- 
 
 (s) (1788), 2 Bro. Ch. 431; (t) See Allen v. Jackson (1875 . 
 
 Wh. & Tudor, L. C. Eq. 8th ed. 1 Ch. D. 399. 
 vol. i. 560. ( u ) Jones v. Jones (1876), 1 
 
 Q. B. D. 279. 
 
THE CONSTRUCTION OF A WILL. 
 
 497 
 
 sent is arbitrarily withheld by the third person, the gift will 
 vest on marriage without his consent. 
 
 (d) If a gift is subject to be divested by a condition subse- 
 quent on marriage without consent, a breach of the condition 
 will divest the estate, unless the condition becomes impossible 
 to be performed. 
 
 (B) Where the Property given is Personalty . 
 
 The above rules (a) and (b) as to real property apply also to 
 personal property (x). 
 
 (c) A condition precedent, requiring consent to a marriage 
 under twenty -one, is apparently valid (y), and such a condi- 
 tion attached to marriage at any age is apparently good if 
 there is a gift over (z ) . 
 
 (d) A condition subsequent directed against marriage with- 
 out consent is valid if there is a gift over ( a ), but otherwise is 
 in terror em, and the donee will retain the gift though he marries 
 without consent. 
 
 (C) As to both Realty and Personalty . 
 
 A condition imposing a partial restraint on marriage only is Condition 
 good; e.g., a gift to A. on condition that he does not marry restraint of 
 B., or does not marry before a reasonable age (&), or a native marriage, 
 of any particular country (c), or a domestic servant (<$), or a 
 person of a particular religion, as a Papist (e), or a Chris- 
 tian (/), or a person beneath him in life, that is, in social posi- 
 tion (g). But a condition which, though nominally in partial, 
 will probably result in total restraint of marriage will be void ; 
 
 (x) Morley v. Rennoldson 
 (1843), 2 Hare, 570. 
 
 ( y ) Scott v. Tyler, supra. 
 
 (z) See Re Ingall, (1904) 1 Ch. 
 120 . 
 
 (a) Re Whiting's Settlement, 
 (1905) 1 Ch. 96. 
 
 (5) Stachpole v. Beaumont 
 (1796), 3 Yes. 89. 
 
 (c) Perrin v. Lyon (1807), 9 
 East, 170. 
 
 (d) Jenner v. Turner (1880), 16 
 Ch. D. 188. 
 
 (e) Duggan v. Kelley (1847), 10 
 Ir. Eq. R. 295. 
 
 (/) Hodgson v. Halford (1879), 
 11 Ch. D. 959. 
 
 ( g ) Greene v. Kirkwood (1895), 
 
 1 Ir. R. 130. 
 
 G. — C. 
 
 K K 
 
498 
 
 BK. I., PT. VI. WILLS. 
 
 Conditions in 
 restraint of 
 alienation. 
 
 Of life 
 interests. 
 
 as where the condition is that the legatee shall not marry a 
 person who has not freehold property of the annual value of’ 
 500/. (A). 
 
 A condition attached to a gift of land in fee simple or fee 
 tail, or to a gift of the absolute interest in personalty, that the 
 donee shall not alien, is void as being inconsistent with the 
 gift (i ) . On the other hand, a limited condition in restraint 
 of alienation, e.g., a condition not to sell except to a particular 
 class of persons, is good (Jc) . But a condition not to sell ex- 
 cept to one person is bad(Z); and so is a condition by which 
 the devisee in fee is compelled, before selling or leasing the 
 property, to offer it to some person or persons named at a given 
 sum or at a stated rent (m). A restriction against the aliena- 
 tion of property is none the less bad because it is imposed 
 only for a limited time (m). 
 
 But a provision by way of conditional limitation or condition 
 subsequent for cesser of a life interest upon the donee attempt- 
 ing to alienate it, is valid, and the interest will cease even 
 though there be no gift over(^). Thus, a life interest 
 may be given until alienation or bankruptcy, or an interest 
 may be limited to the donee for life, but conditioned to deter- 
 mine on his attempting to alien it(o), or on his bankruptcy, 
 or on the income becoming payable to someone else, e.g ., his 
 trustee in bankruptcy (p). However, even a life interest given 
 to a man cannot be made subject to a restraint against antici- 
 
 ( h ) Keiley v. Monck (1795), 3 
 Ridge. P. C. 205. 
 
 (i) Bradley v. Peixoto (1797), 
 3 Ves. 324; Tudor, L. C. Conv. 
 4th ed. 514; Re Dixon, Dixon v. 
 Charlesworth, (1903) 2 Ch. 351. 
 It is not quite clear whether a 
 limitation to a person in fee until 
 he alienates or becomes bankrupt, 
 and then over — sometimes called 
 a conditional limitation — is valid 
 or not. The point was discussed, 
 but not decided, by Chitty, J., in 
 Re Machu (1882), 21 Ch. D. 838. 
 
 ( k ) Re Macleay (1875), L. R. 
 20 Eq. 186. 
 
 ( l ) Attwater v. Attwater (1853), 
 18 Beav. 330. 
 
 (m) Re Rosher, Rosher v. 
 Rosher (1884), 26 Ch. D. 801. 
 
 (w) Dommett \ . Bedford (1796), 
 3 Ves. 149; Rochford v. Hackman 
 (1852), 9 Hare, 475 ; In re 
 Perkins's Settlement Trusts , 
 
 (1912) W. N. 99. 
 
 (o) Re Crawshay, (1891) 3 Ch. 
 176; Re Porter , (1892) 3 Ch. 481. 
 
 (p) Sartoris v. Sartoris, (1892) 
 1 Ch. 11 ; Re Loftus- Otway , 
 (1895) 2 Ch. 235 ; Blackman v. 
 Fysh (1891), 60 L. J. Ch. 666. 
 
THE CONSTRUCTION OF A WILL. 
 
 499 
 
 pation(g). A testator often wishes that the interest given to 
 a donee may on his becoming bankrupt be applied for the 
 benefit of the donee or his family; but even in the case of a 
 gift of a life interest the strongest expression by a testator 
 of his wish that the donee shall have the personal and exclu- 
 sive enjoyment of the property will not prevent it devolving 
 on his trustee in bankruptcy (g). 'The only mode in which 
 the testator’s intention can be effected is to give the property 
 to trustees with a discretionary power either to give or with- 
 hold it as they think proper. But more than this, the dis- 
 cretion given must be unfettered, so* that it need not be exer- 
 cised in favour of the donee himself; for when a life interest 
 is given over on bankruptcy for the maintenance of the bank- 
 rupt and his family, the trustee in bankruptcy will be entitled 
 to a proportion of the income (r) ; and if the trustees have 
 a discretion to appoint what amount shall be applied to the 
 maintenance of the bankrupt and his family, an inquiry will 
 bo directed as to how much ought to be applied for each, and 
 what would lxave been taken by the bankrupt will pass to his 
 trustee (s). 
 
 In connection with this kind of restrictions it should be noted 
 that when property is given over on alienation by the donee, 
 as a rule only voluntary alienation is meant, not hostile bank- 
 ruptcy (£); but if the words of the will are wide enough jt 
 will include even bankruptcy ( u ) . And when property is 
 
 given over on bankruptcy, this will include a bankruptcy taking 
 place after the date of the will and subsisting at the testator’s 
 death, and even one the proceedings in which commenced 
 before the date of the will if it is subsisting at the testator’s 
 
 ( q ) Brandon v. Robinson 
 (1811), 18 Ves. 429. 
 
 (r) Rippon v. Norton (1839), 2 
 Beav. 63. 
 
 ( s ) Kearsley v. Woodcock 
 (1843), 3 Hare, 195. 
 
 ( t ) Lear v. Leggett (1830), 1 
 Russ. & M. 690; Graham v. Lee 
 
 (1857), 23 Beav. 388. 
 
 ( u ) Cooper v. Wyatt (1821), 5 
 Madd. 482; see also Re Loftus- 
 Otivay, Otway v. Otway, (1895) 2 
 Ch. 235, where a life interest was 
 given over on the owner “ being 
 deprived or being liable to be 
 deprived.” 
 
 K K 2 
 
 Mode to 
 prevent life 
 interest 
 passing to 
 trustee on 
 bankruptcy. 
 
 Alienation 
 may mean 
 hostile bank- 
 ruptcy as well 
 as voluntary 
 alienation. 
 
500 
 
 Of annuities. 
 
 Conditions 
 not to dispute 
 will. 
 
 BK. I., PT. VI. WILLS. 
 
 death (sc)- But if the bankruptcy is annulled before the period 
 of vesting, the forfeiture does not take place (y ) . 
 
 Conditions in restraint of alienation are frequently made use 
 of where annuities are given by will. For although the gift 
 of an annuity with a direction to set apart a fund to secure 
 it will not entitle the annuitant to have it valued and the 
 value paid him (z), yet when a specific sum of money is directed 
 to be laid out in an annuity the capital necessary to produce 
 it vests in the annuitant, and he has the right to call for it, 
 and a mere statement that he is not to do so is of no effect ( a ). 
 Again, if there is a direction to purchase a government annuity 
 of a given amount, the annuitant is entitled to the purchase- 
 money though he die before the time when the annuity was to 
 be purchased ( b ). Nor will a restraint on anticipation deprive 
 the annuitant of the right to the purchase-money, except in the 
 case of a married woman (c) . The only way to exclude the 
 annuitant from any claim to the price of the annuity in lieu 
 of the annuity itself is to limit it with a gift over upon 
 alienation. 
 
 A condition not to dispute a will is valid, and will be 
 effectual to divest the property from the donee if he does 
 dispute it ( d ) ; but in the case of personalty it must be accom- 
 panied by a gift over on non-compliance with the condition. 
 But a condition not to institute legal proceedings as to the 
 estate and effects devised is too general, and is bad (e). 
 
 ( x ) Metcalfe v. Metcalfe, (1891) 
 
 3 Ch. 1. 
 
 (y) Trappes v. Meredith (1869), 
 L. E. 9 Eq. 229 ; Samuel v. 
 Samuel (1879), 12 Ch. D. 152. 
 
 (z) Wright v. Callender (1852), 
 2 D. M. & GL 652. 
 
 (a) Stokes v. Cheek (1860), 28 
 Beav. 620. 
 
 (5) Dawson v. Hearn (1830), 1 
 Euss. & M. 606 ; Re Robbins,. 
 (1906) 2 Ch. 648; (1907) 2 Ch. 8. 
 
 (c) Woodmeston v. Walker 
 (1831), 2 Euss. & M. 197. 
 
 (cZ) Stevenson v. Abington 
 (1863), 11 W. E. 935. 
 
 (e) Rhodes v. Muswell Hill 
 Land Co. (1861), 29 Beav. 560. 
 
THE CONSTRUCTION OF A WILL. 
 
 501 
 
 Meaning of Words and Phrases. 
 
 The following is the meaning which the courts have put 
 upon some of the words, expressions, or phrases most com- 
 monly used in a will. 
 
 ‘‘Wife’’ — “ Husband. — A gift to the wife of A. means 
 the wife whom A. has at the date of the will, and no other, if 
 A. has a wife living at the date of the will (/). A gift to “ any 
 husband with whom my daughter may intermarry” will in- 
 clude a husband who obtains a divorce from such daughter (g) . 
 And a gift to “my wife A.” takes effect although the wife 
 after the date of the will obtains a decree of nullity (Jh) . 
 Where a gift is made to a person as filling a certain character, 
 such as wife or husband, the fact that she or he does not fill that 
 character does not avoid the legacy, unless the character was 
 fraudulently assumed in order to deceive the testator (i ) . 
 
 “ Child ” prima facie means a “legitimate child,” and, in a 
 gift to children generally, evidence will not be admitted to 
 show that the testator may or must have meant illegitimate 
 children (7c). But illegitimate children may take if they have 
 acquired the reputation of being the children of the person 
 named in the gift; if, for instance, the bequest is to “ the 
 children of A., now living,” and A. has no legitimate children, 
 or if A. is dead and has only had illegitimate children (i). 
 Nevertheless, in a gift to children of a living person, illegiti- 
 mate children will not generally be included, even though such 
 person has only illegitimate children at the date of the will, 
 and at the testator’s death there is no possibility of others (m); 
 unless the testator shows plainly that he intends illegitimate 
 
 (/) Re Burrow's Trusts (1864), 
 10 L. T. 184. 
 
 ( g ) Bullmore v. Wynter (1883), 
 22 Ch. D. 619. 
 
 ( h ) Boddington v. Clairat 
 (1883), 22 Ch. D. 597. 
 
 (?) Wilkinson v. Joughin 
 (1872), 41 L. J. Ch. 234; Ander- 
 son v. Berkley, (1902) 1 Ch. 936. 
 
 ( k ) Durrant v. Friend (1851), 
 5 De Gk & S. 343; see also Hill 
 v. Crook (1873), L. R. 6 H. L. 
 265. 
 
 (?) Dover v. Alexander (1843), 
 2 Hare, 275. 
 
 ( m ) Dorin v. Dorin (1875), 
 L. R. 7 H. L. 568; Penrose v. 
 Manning (1890), 63 L. T. 159. 
 
 Grift to wife 
 or husband. 
 
 Grift8 to 
 children. 
 
 When illegiti- 
 mate children 
 can take. 
 
502 
 
 BK. I., PT. VI. WILLS. 
 
 Legitimacy 
 determined by 
 lex domicilii. 
 
 Gifts to 
 children 
 as a class. 
 
 children to take (ri ) . Thus, if they are specially mentioned 
 by name, or if to a, gift to children generally there is added 
 a mention of the illegitimate children by name, they will take. 
 And where a testator described his illegitimate child as “his 
 daughter,” and placed her on a level with his legitimate 
 daughter, providing for every member of his family then living, 
 it was held that the illegitimate child took equally with the 
 legitimate (o) . Again, if property is given “to my daughter 
 A., the wife jof B., and then for the children of my said 
 daughter,” and A. and B. are so related that they cannot by 
 any possibility have legitimate children, the property will go 
 to their illegitimate children, if any (p) . A gift to future 
 illegitimate children is void if made to the illegitimate children 
 of another to be begotten after the testator’s death; but a gift 
 to the future illegitimate children of the testator himself is 
 good (q). 
 
 In determining whether children are legitimate or illegiti- 
 mate, so that they may take or be excluded from a gift in favour 
 of children by will, the law of the country where the children 
 are domiciled is looked to, even though the gift is of real 
 estate (r) . 
 
 Under a gift to children the children of a former marriage 
 will take unless there is apparent an intention to exclude 
 them (s) ; so, also, will children by a subsequent marriage in 
 the absence of such intention. The words “child or children” 
 primarily mean issue in the first generation only, so that grand- 
 children will not take under that description; unless the con- 
 text or the circumstances show that they were intended, as in 
 
 ( n ) Eagleton v. Horner (1887), 
 57 L. J. Ch. 211; Danily v. Platt 
 (1892), 61 L. J. Ch. 415; see as to 
 the last case, Re Frogley, (1905) 
 P. 137 ; see also Re Loveland, 
 (1906) 1 Ch. 542. 
 
 (o) Walsh v. Browne (1890), 62 
 L. T. 899. 
 
 (p) Hill v. Crook (1873), L. R. 
 6 H. L. 265; and see Re Ayles ’ 
 Trusts (1875), 1 Ch. D. 282. 
 
 ( q ) Re Hustle's Trusts (1887), 
 35 Ch. D. 728; Occleston v. Fulla- 
 love (1873), L. R. 9 Ch. App. 147; 
 Re Harrison, Harrison v. Hi g son, 
 (1894) 1 Ch. 561; Re Loveland, 
 (1906) 1 Ch. 542. 
 
 (r) Grey v. Stamford, (1892) 3 
 Ch. 88. 
 
 (,s) Love joy v. C rafter (1865), 
 35 Beav. 149. 
 
THE CONSTRUCTION OF A WILL. 
 
 503 
 
 the case of a gift to the children of a deceased person who has 
 only grandchildren living at the time of the gift(£). A 
 gift among children for their lives and upon the death of any 
 such child before or after the testator to the children of such 
 child does not include a child of a child dead at the date of the 
 will(w); but a gift to children “surviving me” may include 
 those born after the testator’s decease (a;). 
 
 A gift to children may, in the light of attendant circum- 
 stances, mean step-children (y) . 
 
 If there is a gift to A. and B. as tenants in common for 
 their lives, and at their deaths to their children and grand- 
 children, the families will take per stirpes; i.e ., each family 
 will divide between them the share of their parent; but the 
 members of each family will divide that share per capita inter 
 se (z). If the gift to the children is not till after the decease 
 of the survivor of the tenants for life, they will take per 
 capita ( a ) . 
 
 The leaning of the courts is towards holding persons taking 
 under a will to be tenants in common, and not joint tenants; 
 but for the court to bo able to give effect to this leaning there 
 must be words used implying an intention to sever (5); so 
 that where property was given to “ all and every ” the children 
 of X., it was held that the children took jointly, and not in 
 common, as the words could not be taken as implying any 
 intention to sever (c) . 
 
 A “nephew'' or “niece' means prima facie the child of a 
 brother or sister. But if at the date of the testator’s will and 
 at his death lie has no nephew of his own, and there are 
 
 (£) Berry v. Berry (1861), 3 
 Giff. 134. 
 
 {u) Re Wood, Tullett v. Col- 
 ville, (1894) 3 Ch. 381. 
 
 (ic) Re Clark (1864), 3 De G. 
 
 J. & S. 111. 
 
 (y) Re Heseldine (1886), 31 Ch. 
 D. 511; Re Deakin, (1894) 3 Ch. 
 565; Re Jeans (1895), 72 L. T. 
 835. 
 
 (z) Barnaby v. Tassel (1870), 
 L. R. 11 Eq. 363. 
 
 (a) Malcolm v. Martin (1789), 
 3 Bro. C. C. 50; and see Re Stone, 
 Baker v. Stone, (1895) 2 Ch. 196. 
 
 (5) Morley v. Bird (1798), 3 
 Ves. 629; Tudor, L. C. Conv. 4th 
 ed. 876. 
 
 (c) Morgan v. Britten (1871), 
 L. R. 13 Eq. 28; Binning v. Bin- 
 ning (1895), 13 R. 654. 
 
 Step-children. 
 
 Gifts to 
 children of 
 tenants in 
 common. 
 
 Tenancy in 
 
 common 
 
 favoured. 
 
 Gifts to 
 nephews 
 and nieces. 
 
504 
 
 BK. I., PT. VI. — WILLS. 
 
 Gifts to 
 cousins. 
 
 Gifts to 
 grand- 
 children. 
 
 Gifts to issue. 
 
 Gifts to 
 relations. 
 
 nephews and nieces of his wife, they will take under this desig- 
 nation, and evidence that they were not intended will not be 
 admitted (d ) . Great-nephews and nieces are not included 
 unless the intention to include them is evident (e) ; but nephews 
 of the half-blood are included (/) ; and in Ingham v. 
 Ttayner (d), under a gift to “my niece E. W.,” the testator’s 
 wife’s legitimate great-niece, to the exclusion of her illegiti- 
 mate great-niece, was held entitled. 
 
 The word “ cousins means “first cousins,” in the absence 
 of evidence of a different intention (g). 
 
 A first cousin is the child of an uncle or aunt, while a second 
 cousin is one descended from the same great-grandfather or 
 great-grandmother. The children of first cousins stand to each 
 other in the relationship of second cousins; but the children of 
 a testator’s first cousin stand to him in the relationship of first 
 cousins once removed. As a rule, under a gift to a testator’s 
 first and second cousins, first cousins twice removed will not be 
 entitled (h). 
 
 The word “ grandchild ” will not, in the absence of intention 
 to the contrary, include a great-grandchild (i ) . 
 
 The word “ issue is a vague term. Its popular meaning is 
 children; its legal meaning is descendants. In its popular 
 sense it is a designation of persons; in its legal sense it is 
 generally a word of limitation; and in devises of real estate is 
 generally equivalent to “ heirs of the body ” ; in bequests of per- 
 sonalty it is generally a word of purchase. When used as a 
 word of purchase it primarily includes all descendants; but in 
 every case its meaning is determined by the context (1c ) . 
 
 The word “ relations,” too, is a term of very indefinite 
 meaning. In the absence of anything to extend its meaning, it 
 
 (d) Wells v. Wells (1862), 2 
 Swab. & Trist. 607; see also Smith 
 v. One (1892), 61 L. J. Ch. 510; 
 Ingham v. Rayner, (1894) 2 Ch. 
 83. 
 
 (e) Re Blower's Trusts (1871), 
 L. B. 6 Ch. App. 351. 
 
 (/) Grieves v. Rawley (1852), 
 10 Hare, 63; Kitchin v. Myers 
 
 (1886), W. N. 64. 
 
 ( g ) Stoddart v. Nelson (1856), 
 25 L. J. Ch. 116; Stevenson v. 
 Abingdon (1862), 31 Beav. 305. 
 
 ( [h ) Wilks v. Bannister (1885), 
 30 Ch. D. 512. 
 
 ( i ) Stroud, Judicial Dictionary, 
 
 s. v. 
 
 ( k ) Ibid. 
 
THE CONSTRUCTION OF A WILL. 
 
 505 
 
 means next of kin under the Statute of Distributions, and they 
 will take per capita; and the word "relatives’ has a similar 
 meaning (/). Further, the term does not include relations by 
 affinity, or illegitimate relations, unless on the construction of 
 the whole will it is evident that the testator intended to include 
 illegitimate relations (m) . 
 
 The word " family ” generally means children (wi), but is Gifts to a 
 readily controlled by the context, and may mean " heirs” or famll D 
 "next of kin,” where there are no children (o), and may in- 
 clude a wife (p). 
 
 A gift of personalty to the testator’s " heir,” or the "heir” Gifts to heirs, 
 of some other person, will vest the gift in such heir, as having 
 been specially named, or as a persona designata. But the use 
 of the word "heir” will not necessarily confer any interest on 
 such heir; for if the testator’s meaning appears from the will 
 to have been to give a beneficiary an absolute interest, the 
 mention of the word "heir” in the gift will not deprive him 
 of such interest. For example, if there is a gift of chattels to 
 A. for life, and then "to his ‘heirs,’ as he shall give it by 
 will, or if he dies without a will to his ‘right heirs,’ A. will 
 take the absolute interest (q). Similarly a gift of chattels 
 to A. for life, and then to his "heirs,” or after his death to 
 his " heirs,” will not prevent the chattels from passing to his 
 next of kin according' to the Statute of Distributions (r). 
 
 In the case of a devise the word " heirs ” is primarily a word Shelley's Case. 
 of limitation; so that, under the rule in Shelley's Case (s), a 
 devise to A. for life and after his death to his heirs merely 
 defines the estate of A. and gives his heirs nothing. 
 
 (Z) Cruywys v. Colman (1804), 
 9 Ves. 319; Tiffin v. Longman 
 (1852), 15 Beav. 275; Eagles v. 
 Le Breton (1873), L. R. 15 Eq. 
 148. 
 
 (m) Seale-Hayne v. Jodrell, 
 
 (1891) A. C. 304. 
 
 ( n ) Pigg v. Clarke (1876), 3 
 Ch. D. 672. 
 
 (o) Williams v. Williams 
 
 (1851), 20 L. J. Ch. 280. 
 
 (p) Blackwell v. Bull (1836), 5 
 L. J. Cli. 251. 
 
 ( q ) Powell v. Boggis (1866), 35 
 Beav. 535. 
 
 (r) Gitting s v. McDermott 
 (1833), 2 M. & Iv. 69. 
 
 (s) (1581), Tudor, L. C. Conv. 
 4tli ed. 332; see also Van Grutten 
 v. Foxwell,fim) A. C. 658. See 
 more fully in Stroud, Judicial 
 Dictionary, s. v. 
 
506 
 
 BK. I., PT. VI. WILLS. 
 
 Gifts to 
 next of kin. 
 
 Gifts to legal 
 representa- 
 tives. 
 
 Gifts to 
 executors. 
 
 The words “ next of kin ” do not mean persons who would, 
 in case of intestacy, be entitled under the Statute of Distri- 
 butions, but those who, whether of the whole or the half-blood, 
 are nearest in degree of personal propinquity, so that it excludes 
 the children of a deceased brother or sister, if there be a brother 
 or sister living (t). A gift to the next of kin according to the 
 Statute of Distributions will exclude either a husband or wife, 
 and a gift to persons entitled as next of kin, or otherwise under 
 the statute, will not include the husbands of such persons, as a 
 husband “ claims by right paramount,” independently of any 
 statute (u). Where the ultimate trusts of a testator’s real and 
 personal estate are in favour of the right heirs, or the next of 
 kin of the testator, the class to take must be ascertained at the 
 testator’s death (x), and not at the time fixed by the will for 
 distribution (y). 
 
 The phrase “representatives,” or “legal representatives,” 
 
 generally means the executors or administrators, and not the 
 next of kin ( z ). But the testator’s intention, as derived from 
 the whole will, will here again control the meaning; and gifts 
 to them, or even to executors and administrators, have been 
 held to mean the next of kin under the Statute of Distribu- 
 tions as being the persons who “represent” the testator in 
 a popular sense (.a) ; and this is especially the case where the 
 words “share and share alike,” or other like phrases, are 
 used (5). 
 
 A gift to “ executors ” is prima facie a gift to them in that 
 character, and they are not entitled to the legacy if they decline 
 to act or are incapable of acting (c) . But the mere taking out 
 
 ( t ) Tor authorities, see Stroud, 
 Judicial Dictionary, s. v. 
 
 ( u ) Milne v. Gilbert (1854), 23 
 L. J. Oh. 828. 
 
 (x) Bulloch v. Downes (1860), 9 
 
 H. L. C. 1. 
 
 ( y ) Re Ford , Patten v. Sparks 
 (1895), 72 L. T. 5; and see Re 
 Nash, Ball v. Bevan (1894), 71 
 
 L. T. 5. 
 
 ( z ) Cumberlege v. Cumberlege- 
 
 Ware (1890), 45 Ch. D. 269. 
 
 (а) Bridge v. Abbott (1791), 3 
 Bro. C. C. 224; Palin v. Hills 
 (1833), 1 M. & K. 470; Eagleton 
 v. Horner (1887), 57 L. J. Ch. 
 211 . 
 
 (б) Kina v. Cleaveland (1859), 
 4 De G. & J. 477. 
 
 (c) Slaney v. Watney (1866), 
 L. B. 2 Eq. 418; Re Appleton 
 (1885), 29 Ch. D. 893. 
 
THE CONSTRUCTION OF A WILL. 
 
 507 
 
 probate will entitle the executor to the gift, unless he acts 
 fraudulently (d ) . And the presumption is rebutted if a motive 
 is expressed, as if the gift is to “ my friend and executor ” (0), 
 or if the gift consists of a residue (/) . Executors may or may 
 not take a gift to them beneficially. If the gift is made to When they 
 them by name, or subject to certain payments, they will take fioially. 
 beneficially, even where prior legacies have been given to them. 
 
 But if there is a direction that they are to retain their costs, 
 or to distribute the property as may appear just to them, the 
 inference will be that they are not intended to take beneficially, 
 but as trustees for the next of kin (//). Where a legacy is 
 given to A., and if he dies in the testator’s lifetime to his 
 executors or administrators, and A. does so die, his executors 
 will take the legacy as executors for the benefit of A.’s resi- 
 duary legatees, and not as trustees for A.’s next of kin (h). 
 
 The word “ estate ” used alone will be sufficient to carry both Usual 
 real and personal estate, but the context may control its ot ' 
 
 meaning’. Thus, if used in conjunction with the word 
 “effects,” or if the gift of the estate is to trustees on trusts 
 exclusively applicable to personal property, real property will 
 generally not pass. In Stokes v. Solomons (£), however, where 
 the testator devised and bequeathed his estate and effects to 
 A. to be “paid and transferred” to him on attaining twenty- 
 one, though the words “paid and transferred” would seem to 
 apply only to personal estate, it was held, mainly on account 
 of the employment of the word “ devise,” that copyholds also 
 passed. But a different decision was given in Coord v. 
 Holder-mss (k), where the word “devise” was not used. In 
 any case the context may enlarge as well as restrain the effect 
 of the words used. Thus, the expression “personal estates” 
 has been held, in the light of the context, to include realty (/), 
 
 ( d ) Harford v. Browning 
 (1787), 1 Cox, 302. 
 
 (e) Bubb v. Yelverton (1871), 
 
 13 Eq. 131. 
 
 (/) Christian v. Devereux 
 
 (1841), 12 Sim. 264. 
 
 ( g ) For authorities, see Theo- 
 bald, Wills, 7th ed. 347. 
 
 (h) Clay v. Clay (1885), 54 
 L. J. Ch. 648, overruling Palin 
 v. Hills, supra. 
 
 (i) (1851), 9 Hare, 75. 
 
 (k) (1855), 20 Beav. 147. 
 
 ( l ) Doe v. Topfield (1809), 11 
 East, 246. 
 
508 
 
 Effects ; 
 
 Money ; 
 
 Ready 
 money ; 
 
 Securities 
 for money ; 
 
 Income of a 
 fund ; 
 
 BK. I., PT. VI. WILLS. 
 
 and ‘‘real estates” in Middlesex to include leaseholds 
 there (m) . 
 
 The word ‘‘effects” in its natural signification means 
 personal effects and will carry the personalty only, unless the 
 testator shows that he has used it in an inaccurate sense and 
 intended to pass realty as well (w). 
 
 The word “money” in its natural meaning includes cash 
 in the house or at a bank or any other sum due and payable (o). 
 But not choses in action generally, such as government secu- 
 rities, promissory notes not payable to bearer, or stock in the 
 funds, unless its meaning is enlarged by the context, or the 
 testator has, at the date of his will and of his death, no 
 “ money ” properly so called (p). But in every case the mean- 
 ing of the word depends upon the context if there is any which 
 can explain it, and “ money ” has often been construed to mean 
 the residuary personal estate. For instance, when a gift of a 
 legacy or legacies is followed by a gift of the rest of the tes- 
 tator’s money, the whole of his personal estate passes (g). 
 
 “Ready money” includes not only cash in the house, but 
 money in a bank payable on demand; but not notes of hand, 
 promissory notes, or debts due to the testator (r). 
 
 “Securities for money” will not pass an account current 
 at a bank, or on deposit there, shares, bank stock, or mere debts, 
 but it passes a lien for unpaid purchase-money or money lent 
 on mortgage and promissory notes (s) . 
 
 A gift of the “income” of a fund may carry the corpus 
 as well as the income ( t ); hut the bequest of a certain specified 
 
 (m) Greenwell v. Davidson 
 (1888), 58 L. T. 304. 
 
 ( n ) See Camfield v. Gilbert 
 (1803), 3 East, at p. 521; Phillips 
 v. Beal (1858), 25 Beav. 25. 
 
 (o) See Byrom v. Brandreth 
 (1873), L. R. 16 Eq. 475; In re 
 Derbyshire , (1906) 1 Ch. 135. 
 
 (p) Chapman v. Reynolds 
 (1860), 28 Beav. 221; Collins v. 
 Collins (1871), L. R. 12 Eq. 455. 
 
 (q) Re Cadogan (1883), 25 Ch. 
 
 D. 154; In the goods of Bramley, 
 (1902) P. 106. 
 
 (r) Re Powell (1858), Johns. 
 49. And see Re Rodwell, 134 
 L. T. Newspaper, 386. 
 
 (s) See Ogle v. Knipe (1869), 
 L. R. 8 Eq. 434; Callow v. Callow 
 (1889), 42 Ch. D. 559; and other 
 cases cited, Theobald, Wills, 7th 
 ed. 202. 
 
 (£) Humphrey v. Humphrey 
 (1851), 1 Sim. N. S. 536. 
 
THE CONSTRUCTION OF A WILL. 
 
 rm 
 
 sum due upon a particular security will not pass any part of the 
 interest which may be owing at the testator’s death, or at the 
 date of the will. Yet a bequest of a bond, or money owing on 
 a bond, or of a mortgage, will carry arrears of interest due at 
 the testator’s death. A devise of the rents or income of pro- 
 perty may pass the fee simple in land ( u ). 
 
 The word “furniture’ - primd facie means only furniture Furniture; 
 reserved for domestic or personal use ( x ). It will include plate, 
 linen and pictures, but not wines or books, nor goods in a house 
 of business which belong merely to the business. 
 
 The expression “household goods’ comprehends all per- Household 
 sonal chattels that may contribute to the use or convenience goods, 
 of the householder or the ornament of the house, not books or 
 consumable stores, unless a contrary intention appears (y/) . 
 
 The term “household effects’ is of a wider significance, Household 
 
 ^ Greets * 
 
 and used in conjunction with household furniture will include 
 such things as books and consumable stores such as wines ( 0 ), 
 and even motor cars (a). Curiously enough, a telescope has 
 been held to pass as household furniture; and under a bequest 
 of pictures and books in or about the testator’s house, pictures 
 at a dealer’s to be cleaned, and books sent to be rebound, though 
 not in the house at the testator’s death, have been held to pass. 
 
 But a gift of household furniture and effects has been held 
 not to include jewellery (6). 
 
 The term “ goods, chattels, or effects, -- used alone, will Goods, 
 carry all the personal estate, unless their meaning is limited, as or effects ; 
 by describing them in a particular locality or at a particular 
 place, or by prefixing or affixing to them other words. If 
 they follow words of a narrower import, they will be confined 
 to mean property ejusdem generis with the property previously 
 described, unless the bequest is a residuary one. In this last case, 
 i.e., where there is a gift of “residuary estate” or “personal 
 
 ( u ) Mannox v. Greener (1872), 
 L. R. 14 Eq. 456. 
 
 ( x ) Le Farrant v. Spencer 
 (1748), 1 Ves. sen. 97. 
 
 ( y ) Eor authorities, see Stroud, 
 Judicial Dictionary, s. v. 
 
 ( z ) Bourne v. Brandreth (1888), 
 
 58 L. T. 537. 
 
 (а) Re Howe , (1908) W. N. 
 223. 
 
 (б) Northey v. Paxton (1889), 
 60 L. T. 30; see also Re Miller , 
 Daniel v. Daniel (1889), 61 L. T. 
 365. 
 
510 
 
 BK. I., PT. VI. WILLS. 
 
 Residue ; 
 
 Survivor or 
 survivors ; 
 
 estate,” followed by an enumeration of certain specific articles, 
 the specific description will not lessen the effect of the gift as a 
 gift of residue, but will be considered as a defective enumeration 
 of the articles of which the testator thought such residue was 
 comprised (c ) . Where A. “devised and bequeathed” to B. all 
 his goods, chattels and effects, and directed that after his death 
 the furniture, moneys, and “property” to which B. became 
 entitled under his will should be divided among B.’s children, 
 it was held that the will passed A.’s real estate on account of 
 the use of the words “devise” and “property” (d). Railway 
 stock will pass under a gift of railway shares (e), but deben- 
 tures will not include debenture stock (/). 
 
 A gift of “residue” will pass everything not disposed of, 
 whether the testator has attempted to dispose of it or not; and 
 even where it is of a residue “ not otherwise disposed of ” it will 
 mean “not otherwise effectually disposed of ” (g)- It will 
 include lapsed legacies, unless a contrary intention is indicated. 
 Thus, if the residue given is the residue remaining after the 
 payment of certain legacies, and that is the only residue given, 
 it will not include the legacies if they lapse (h). 
 
 A gift to the “survivor or survivors” of several persons 
 may give rise to difficulty, as may be illustrated by the 
 following example: — Suppose property is given equally among 
 A., B. and C., with a gift over of the shares of any of them 
 dying under twenty-one to the survivor or survivors. A. attains 
 twenty-one and dies. Then B. dies under twenty-one. If the 
 word “survivor” is to be construed literally, B.’s share will go 
 wholly to C., to the exclusion of the representatives of A. But 
 it may be construed “ other or others,” when it is necessary to 
 give it that construction to effect the intention (i). There 
 
 (c) See Dean v. Godson (1867), 
 L. R. 3 Eq. 713. 
 
 (d) Hall v. Hall, (1892) 1 Ch. 
 361. 
 
 (e) Morrice v. Aylmer (1875), 
 E. R. 7 H. L. 717. 
 
 (/) Attree v. Hawe (1878), 9 
 Ch. D. 337; Bodman v. Bodman , 
 
 (1891) 3 Ch. 135; contra, Re Her- 
 ring, (1908) 2 Ch. 493. 
 
 ( g ) Green v. Dunn (1855), 20 
 Beav. 6. 
 
 (h) Easum v. Appleford (1840), 
 5 M. & C. 61. 
 
 ( i ) See Wake v. Varah (1876), 
 2 Ch. D. 348. 
 
THE CONSTRUCTION OF A WILL. 
 
 511 
 
 appears, however, to be no general rule as to the construction 
 of the words (fc). 
 
 The class of survivors among whom property is to be divided 
 is to be ascertained at the time designated for the distribution 
 of the property in the absence of any indication of a contrary 
 intention (l). Thus, if property is given to A., B. and G. 
 or tho survivors, those will take who survive the testator. If it 
 is given to A. for life, and after the death of A. to B., C. and 
 D. or the survivors, those will take who survive A., unless A. 
 dio before the testator, when those who survive the testator will 
 take (m). 
 
 Tho expression ‘‘die unmarried,'’ and kindred expressions, Die un- 
 ordinarily mean, when used in wills, “death without ever ln:imed 
 having* been married,” but may also bear the interpretation 
 “not being actually married at any particular time.” The 
 circumstances of each case will determine the meaning which 
 the expression used is to bear. Thus, where property was given 
 to A. and B., and, in tho event of the decease of either of them 
 unmarried, and without leaving lawful issue, to the survivor, 
 it was held that “unmarried” meant “not under coverture at 
 the time of death,” and not “ never having been married ” (ri). 
 
 If there is a gift to A. at twenty-one or on marriage, and a 
 gift over on death unmarried and without issue, this will mean 
 without ever having been married, and the gift over will be 
 defeated if he has married, but has no wife at the testator’s de- 
 cease. But if A. were already married at the date of the testa- 
 tor’s will, the expression could not bear this construction, and 
 the gift over would take effect should he not happen to have a 
 wife at the testator’s death, unless circumstances showed that 
 the testator could be presumed to have intended to refer to the 
 legatee’s making a second marriage (o). But in a gift to A. 
 for life, remainder to his children, and if lie dio unmarried and 
 
 ( k ) Inderwick v. Tatchell, 
 (1901) 2 Ch. 738. 
 
 (l) Cripps v. Wolcott (1819), 4 
 Madd. 11; Stevenson v. Gullan 
 (1854), 18 Beav. 590; Neathway 
 v. Reed (1853), 3 De G. M. & G. 
 18 ; conf. Daniell v. Daniell 
 
 (1801), 6 Ves. 297. 
 
 (m) Spurrellv. Spurrell (1853), 
 11 Hare, 54. 
 
 ( n ) Salisbury v. Ridley (1890), 
 62 L. T. 789. 
 
 (o) See Crosthwaite v. Dean 
 (1868), L. R. 5 Eq. 245. 
 
512 
 
 BK. I.j PT. VI. WILLS. 
 
 without issue, to B., here B. will take if A. has no wife living* 
 and no children at his (A.’s) death, and not merely in the case 
 of A.’s not marrying at all (p). 
 
 “ and ” and “ And ” has sometimes been construed to mean “ or ” in gifts 
 
 “ or ” . • 
 
 over. Thus, in the case of a gift to A., and if he died un,- 
 married and without children, to B., “and” has been read 
 “or,” so that if he does marry but leaves no issue the gift over 
 will take effect (g); but the word will not be so construed if 
 the word “unmarried” has been used by the testator in the 
 sense of “without leaving a widow” (r). Conversely, under 
 the rule known as the rule in Fairfield v. Morgan (s), “or” 
 may be read “ and.” Thus, if property (whether real or per- 
 sonal (£)) is given to A. in fee or absolutely, if he dies leaving 
 lawful issue, but, if he dies under age or without leaving issue, 
 over, “ or ” will be construed “ and.” 
 
 ( p ) See Re Bander's Trusts 
 (1866), L. E. 1 Eq. 675. 
 
 (q) Maberley v. Strode (1797), 
 3 Ves. 450; Bell v. Phyn (1802), 
 7 Ves. 459. 
 
 (r) Re Sander's Trusts, supra. 
 
 (s) (1805), 2 B. & P. N. E. 38. 
 
 (t) Wright v. Marsom, (1896) 
 W. N. 148; and see In re Crutch- 
 ley, (1912) 2 Ch. 335. 
 
• 51:5 
 
 Pt. yii— miscellaneous transactions. 
 
 I. — DEEDS OF DISCLAIMER. 
 
 No one to whom a gift of property is made is bound to accept 
 it. The law allows him the option of taking it or declining 
 it. It is not likely that anybody will want to decline a gift 
 of property which is of value; but it may happen that 
 there are onerous conditions attached to the gift, and in such 
 case the donee has the right of refusing it if he likes. But he 
 may only exercise his right of disclaimer before he has accepted 
 the gift. Having once accepted it, he is no longer at liberty to 
 renounce it. The only course which is then open to him is to 
 get fid of it by some legally recognized form of convey- 
 ance fa). No deed is necessary for the validity of a disclaimer 
 (except, perhaps, in the ease of a married woman disclaiming 
 freeholds not settled to her separate use (see ante, p. 14)), 
 which may be by parol or even by conduct (6), but it is advis- 
 able to disclaim by deed. 
 
 If two distinct legacies are bequeathed, and one is onerous, 
 the legatee may disclaim it and take the other, but he cannot 
 do so if both the onerous and beneficial properties are included 
 in one gift (c). 
 
 The disclaimer which is most often met with in practice is a 
 disclaimer by a trustee. The disclaimer must be made before 
 the trustee has entered on the duties of his office, he cannot 
 
 (а) Hurst v. Hurst (1882), 21 
 
 Ch. D. 278. 
 
 (б) See Stacey v. Elph (1833), 
 1 My. & K. 195. 
 
 (c) Guthrie v. Walrond (1883), 
 22 Ch. D. 573; Frewen v. Law 
 Life Assurance Society , (1896) 2 
 
 Ch. 511. 
 
 Disclaimer 
 must be before 
 acceptance. 
 
 Disclaimer 
 of legacies. 
 
 Disclaimers 
 by trustees. 
 
 G. — C. 
 
 L L 
 
514 BK. I., PT. VII. — MISCELLANEOUS TRANSACTIONS. 
 
 Disclaimer 
 of power. 
 
 Effect of 
 disclaimer 
 by trustee. 
 
 Form of 
 disclaimer 
 of a trust. 
 
 disclaim after lie lias once done any act indicating an intention 
 to accept the trusteeship (d ) ; and for this reason there should 
 he nothing in the deed of disclaimer in any way resembling a 
 conveyance or release of the trust property, for that would of 
 itself amount to an act of ownership from which an intention 
 to accept the office might be deduced (e). Formerly, the ac- 
 ceptance of an executorship would not of itself prevent the 
 executor from disclaiming real estate which had been devised 
 to him upon trust (/), though by proving the will an executor 
 accepts the trusts of personal property bequeathed to him as 
 trustee; in the case of persons dying since 1897 probably this 
 is the rule with regard to freehold real estate also, as a conse- 
 quence of Part I. of the Land Transfer Act. 
 
 The Conveyancing Act, 1882, s. 6, provides that a person to 
 whom a power, whether coupled with an interest or not, is given 
 may by deed disclaim the power, and that after such disclaimer 
 the power may be exercised by the other person or persons in 
 whom the power was vested. 
 
 The effect of a disclaimer by one of several trustees is that 
 the trust property vests in the other trustees just as if the 
 disclaiming party had never been appointed (g ) . Should the 
 disclaimer not be executed until after the death of the survivor 
 of the trustees who do accept, the legal estate will vest in the 
 heir of the survivor, or, if he died after 1881 and the property 
 is freehold land, in his personal representatives (h ) . If all the 
 trustees, or a sole trustee, disclaim, the property will revest in 
 the person who created the trust or his representative as 
 trustee (?) . 
 
 The deed of disclaimer generally recites the instrument 
 creating the trust, and that the disclaiming party has never 
 accepted or acted in the trusts, and then states that he thereby 
 
 (d) See the somewhat special 
 case of Jago v. Jago (1893), 68 
 L. T. 654. 
 
 (e) Crewe v. Dicken (1798), 4 
 Ves. 97. 
 
 (/) Wellesley v. Withers (1855), 
 4 E. & B. 750. 
 
 ( g ) Adams v. Taunton (1820), 
 5 Madd. 435. 
 
 ( h ) Conveyancing Act, 1881, 
 s. 30. And see Conveyancing Act, 
 1911, s. 8. 
 
 ( i ) Mallot v. Wilson, (1903) 2 
 Ch. 494. 
 
DEEDS OF RELEASE. 01 
 
 disclaims and renounces the office of trustee, and all interest in 
 and power over the trust property. 
 
 The disclaimer must he of the whole of the trusts, since Disclaimer 
 it has been held that a disclaimer of part of the trusts, w hole trust, 
 although distinct and separate from the other trusts accepted, 
 is ineffectual (1c). 
 
 A disclaimer does not require any stamp duty unless made Stamp duty, 
 by deed, when a 10s. stamp must be impressed. 
 
 II. — DEEDS OF RELEASE. 
 
 A solicitor is often called upon to draw a release by cestuis 
 que trustent of their trustees, or by a residuary legatee of the 
 executors. It seems settled that an executor, when all the 
 testator’s affairs have been wound up, is entitled to a release 
 from the residuary legatee on handing over the residue to him; 
 but it is not so clear that a trustee, when the trusts incumbent 
 on him have all been carried out, is entitled to be released by 
 the cestuis que trustent. A trustee, on handing over the trust 
 estate to a cestui que trust, is doing so in accordance with the 
 letter of his trust, and that being so, there is no reason why he 
 should have a claim to a release (l). But where trust moneys 
 have been re-settled, the trustees of the original settlement have 
 been held to be entitled to a release under seal from their cestuis 
 que trustent, though not from the trustees of the new settle- 
 ment; from them they must be content with a mere re- 
 ceipt (m). The cestuis que trustent, however, are often willing 
 to give their trustees a release, although the latter are not en- 
 titled to demand it. 
 
 It is not advisable for a solicitor to act for both the parties to 
 a release; for as a rule dealings between trustee and cestui que 
 
 Trustees not 
 entitled to a 
 release under 
 seal : secus as 
 to executors ; 
 
 when it may 
 be set aside. 
 
 (k) Re Lord and Fullerton's 
 -Contract, (1896) 1 Ch. 228. 
 
 (Z) See King v. Mullins (1852), 
 
 1 Drew. 308. 
 
 (m) Re Cater's Trusts (1858), 
 25 Beav. 361. 
 
 L' L 2 
 
516 
 
 Stamp duty. 
 
 When a 
 disentailing 
 deed is used. 
 
 3 & 4 Will. 4 
 c. 74. 
 
 BK. I., PT. VII. MISCELLANEOUS TRANSACTIONS. 
 
 trust should be at arm’s length (n). And if a release be 
 obtained without a full disclosure of all the circumstances, it 
 may be set aside (o), though until set aside it operates as a bar 
 to all claims (p) . Accordingly, full recitals should be inserted 
 in the deed of release, setting out all the circumstances attend- 
 ing the administration of the trust. But the recitals must be 
 carefully framed, because they may control the generality of 
 the operative words, and the release will only take effect as to 
 the matters set forth in the recitals (q). If any part of the 
 trust funds is to be retained by the trustees as not being yet 
 payable, there should be a proviso that the release shall not 
 extend to the funds so retained, and if anything remains to be 
 done by the trustees, a proviso should be added deferring the 
 operation of the release till it is done. 
 
 The stamp duty on a release of this description is 10s. 
 
 III. — DISENTAILING ASSURANCES. 
 
 A disentailing assurance is most often required when the 
 eldest son of a landed proprietor upon whom the property has 
 been settled by a strict settlement, being a tenant in tail of 
 the property subject to the life estate of his father, is about 
 to be married, and wishes, with the approbation of his father, 
 to re-settle the land in strict settlement for the benefit of his 
 future wife and children. Before he can do this it will be 
 necessary to execute a disentailing deed barring his estate tail 
 in the land and converting it into an estate in fee simple, in 
 accordance with the provisions of the Fines and Recoveries Act r 
 1833. 
 
 (w) Rhodes v. Bate (1866), 
 L. R. 1 Oh. App. 252; Turner v. 
 Collings (1871), L. R. 7 Ch. App. 
 329; Kempson v. Ashbee (1874), 
 L. R. 10 Ch. App. 15. 
 
 ( o ) Ramsden v. Hylton (1751), 
 2 Ves. sen. 305. 
 
 (p) SkillbecJc v. Hilton (1866), 
 L. R. 2 Eq. 587. 
 
 (q) See Payler v. Homersham 
 (1815), 4 M. & S. 423. 
 
DISENTAILING ASSURANCES. 
 
 517 
 
 It will be found on reference to s. 18 of that act that 
 tenants in tail restrained by 34 & 35 Hen. 8, c. 20, or by any 
 other act of parliament, from barring their estates, and tenants 
 in tail after possibility of issue extinct, are specially precluded 
 from exercising the powers conferred by the act. Subject to 
 these exceptions, every tenant in tail can bar his estate tail, but 
 the manner in which he can do so depends on whether his estate 
 is in possession or remainder. Where the estate of the tenant 
 in tail is in possession, he may without the concurrence of any 
 other person bar the entail, so as to defeat the rights not only 
 of his own issue, but also of all persons whose estates were to 
 take effect after the determination of his estate tail (r) . But 
 in the case of an estate tail in remainder, unless the protector 
 of the settlement concurs in the disentailing deed, all the tenant 
 in tail can do is to defeat the rights of his own issue, but not 
 those of persons claiming estates by way of remainder or other- 
 wise. In other words, he acquires an estate of inheritance for 
 so long only as he or any of his issue who would have inherited 
 the estate tail, had it not been barred, remain alive. This 
 estate, which is called a base fee, may, however, be afterwards 
 enlarged into an estate in fee simple (1) by the remainder in 
 fee becoming vested in the owner of the base fee (s) ; or (2) by 
 the tenant in base fee subsequently obtaining the protector’s 
 consent and executing another deed(£); or (3) by executing 
 another deed on the protector’s death (w); or (4) after the 
 expiration of twelve years from the time when the tenant in 
 base fee would have become entitled in possession; for after this 
 lapse of time the rights of the remaindermen and reversioners 
 are barred by the Beal Property Limitation Act, 1874, s. 6. 
 
 The provisions relating to the office of protector and the 
 manner in which his consent is to be given, are contained in 
 ss. 22 to 37 of the Pines and Becoveries Act. As a rule, the 
 
 (r) See Millbank v. Vane, 
 (1893) 3 Cli. 79. 
 
 (s) Tines and Recoveries Act, 
 1833, s. 39. 
 
 (£) Ibid. ss. 19 and 35. 
 
 (■ u ) Pines and Recoveries Act, 
 1833, ss. 19 and 35. A woman 
 
 married since 1882 can do this 
 without the necessity of acknow- 
 ledging the deed or of her hus- 
 band’s concurrence. lie Drum- 
 mond and Davie, (1891) 1 Ch. 
 524. 
 
 Tenants in 
 tail who 
 cannot 
 disentail. 
 
 37 & 38 Viet, 
 c. 57. 
 
 First tenant 
 for life is 
 the natural 
 protector ; 
 
518 
 
 BK. I., PT. VII. MISCELLANEOUS TRANSACTIONS. 
 
 protector is the owner of the first life estate prior to the estate 
 tail, and subsisting under the same settlement, whether such 
 prior estate be encumbered or disposed of or not. This means 
 the beneficial owner, and not a mere owner in trust for 
 others (x ) , nor a tenant in dower, nor a bare trustee (y). If 
 the prior estate is owned under the same settlement by two 
 or more persons, each will be sole protector as to his share ( z ) ; 
 and where a married woman, if single, would be protector, 
 she and her husband are together the protector, unless the estate 
 is settled an the woman for her separate use , when she alone 
 is the protector (a). Having regard to the words italicised, 
 it was considered doubtful whether the husband’s concurrence 
 could be dispensed with in case of property belonging to a 
 married woman for her separate use under the Married 
 Women’s Property Act, 1882, but it is now provided by s. 3 
 of the Married Women’s Property Act, 1907, that where a 
 married woman would, if single, be the protector of a settle- 
 ment which is by virtue of the Married Women’s Property Act, 
 1882, made her separate property, then she alone shall in respect 
 of that estate be the protector of the settlement. The protector 
 is not necessarily the owner of the first preceding life estate; 
 but settlor for by s. 32 the settlor may, by the settlement creating the 
 noYmo^than entail, appoint any number of persons, not exceeding three, to 
 three persons. p e protector, and, by means of a power to be inserted in the 
 settlement, perpetuate the protectorship in any number of per- 
 sons in esse whom the donee of the power shall by deed appoint 
 protector in the place of any person dying or by deed relin- 
 quishing his office. But the number of the persons to compose 
 the protector must never exceed three. In these cases the office 
 will pass to the survivors (6); and if all the protectors die, 
 and the settlement contains no power to perpetuate the pro- 
 tectorship, or, there being such a power, it is not exercised, the 
 tenant for life will thereupon become the protector (c) . If 
 
 ( x ) Re Dudson (1878), 8 Ch. D. 
 628. 
 
 ( y ) Fines and Recoveries Act, 
 1833, s. 27. 
 
 ( z ) Ibid. s. 23. 
 
 (a) Ibid. s. 24. 
 
 (6) Bell v. Holtby (1873), L. R. 
 15 Eq. 178; Re Bayley Worthing- 
 ton, (1908) A. C. 97. 
 
 (c) Clarke v. Chamberlain 
 (1880), 16 Ch. D. 176. 
 
DISENTAILING ASSURANCES. 
 
 519 
 
 the protector be lunatic, the judges in lunacy, or if the protector 
 be an infant having no prior estate, the Chancery Division, will 
 discharge the office; and if the settlor in the settlement declares 
 that the owner of the prior estate shall not he the protector, and 
 does not appoint a protector in his stead, the Chancery Divi- 
 sion will -be protector during the continuance of such prior 
 estate; and generally the court will be the protector when there 
 is a prior estate but no protector (d). 
 
 As we have said, the consent of the protector is necessary to The protec- 
 enable the tenant in tail to create a larger estate than a base 
 fee, and also for the enlargement of a base fee. The protector 
 is subject to no control in the exercise of his power of consent- 
 ing*, and his agreement to withhold his consent is void(e). 
 
 When, however, a married woman is protector, and her 
 husband’s concurrence is required in giving consent, a judge of 
 the King’s Bench Division (/) can, under s. 91 of the act, 
 dispense with his concurrence in a proper case, e.g., while he is 
 abroad or living in separation from his wife. Sects. 42 — 46 
 regulate the way in which his consent is to be given. It may 
 be given by the disentailing deed (g) or by a separate deed to 
 be executed at the same time as or previously to the disentail- 
 ing deed. If it be by a separate deed, such deed must be 
 enrolled at the same time as, or before, the disentailing deed. 
 
 The consent, when once given, is irrevocable. 
 
 Disen tailment cannot be effected by will or contract. It must Disentail- 
 in every case be by deed. Since the Married Women’s Pro- ^effected ^ 
 perty Act, 1882, a married woman can bar the entail without by deed; 
 her husband’s consent, and without a deed acknowledged, if her 
 marriage took place on or after 1st January, 1883, or even 
 though it took place before that date, provided the estate tail 
 was acquired by her after that date. A restraint on anticipa- 
 tion does not prevent her from barring the entail (gg ) . The 
 
 (d) Pines and Recoveries Act, 
 1833, s. 33. 
 
 (e) Ibid . . s. 36. 
 
 (/) Re Ellen Giles (1894), 70 
 B. T. 757 ; and Rules of the 
 Supreme Court, 1883, Order LIV. 
 r. 12 (b). 
 
 ( g ) The consent is effectually 
 
 given notwithstanding the pre- 
 vious execution of the assurance 
 by and the death of the tenant in 
 tail: Whitmore Searle v. Whit- 
 more Searle, (1907) 2 Ch. 332. 
 
 (gg) Cooper v. Macdonald 
 (1877), 7 Ch. D. 288. 
 
520 
 
 BK. I., PT. VII. — MISCELLANEOUS TRANSACTIONS. 
 
 which must 
 be enrolled. 
 
 As to 
 
 disentailing- 
 
 copyholds. 
 
 Money to be 
 invested in 
 entailed 
 estates treated 
 as such. 
 
 Lords Justices of the Court of Appeal have power, under their 
 lunacy jurisdiction, to bar the estate tail of a lunatic so as to 
 give a good title to a purchaser, but not so as to affect the in- 
 terests of persons entitled under the limitations of the settlement 
 to the proceeds of the sale (h ) . The tenant in tail is the proper 
 party to execute a disentailing assurance, even though he has 
 been convicted of felony (i ) . The disentailing deed is not re- 
 quired by the act to be in any particular form; but, in what- 
 ever form it may be couched, it must be enrolled in the Central 
 Office of the High Court within six months of execution. 
 
 The act contains special provisions as to the disentailing of 
 estates tail in copyholds. The general provisions of the act are 
 to apply, except that a legal estate tail is to be barred by sur- 
 render , and an equitable estate tail may be barred either by 
 surrender or deed (1c ) . If the protector’s consent is given by 
 deed, it must be executed at the same time as, or before, the 
 surrender, and produced to the steward, who must indorse such 
 production on the deed, and enter the deed with the indorsement 
 on the court rolls (l). If the consent is not given by deed, 
 it must be given to the person taking the surrender and men- 
 tioned in the memorandum of surrender (m) . Not only must 
 every surrender barring an estate tail be enrolled on the court 
 rolls, but also every deed by which an equitable estate tail is 
 barred must be so entered, and, if the protector consents by a 
 separate deed, it must be executed at the same time as, or 
 before, the disentailing deed, and entered on. the rolls, and be 
 indorsed with a memorandum of such entry (w). The entry 
 on the court rolls must in all cases be made within six months, 
 but disentailing deeds of copyholds require no other enrol- 
 ment (i o ■). 
 
 By the 71st section, lands to be sold, where the purchase- 
 money is subject to be invested in the purchase of lands to be 
 entailed, and money subject to be invested in a similar pur- 
 chase, are to be treated as the lands to be purchased. Any 
 
 (h) Re Pares , (1901) 1 Ch. 708. 
 (0 Re Gaskell and Walter's 
 Contract, (1906) 2 Ch. 1. 
 
 ( k ) Pines and Recoveries Act, 
 1833, s. 50. 
 
 (Z) Ibid. s. 51. 
 
 (m) Ibid. s. 52. 
 
 ( n ) Ibid. s. 53. 
 
 (o) Ibid. s. 54. 
 
DISENTAILING ASSURANCES. 
 
 521 
 
 assurance under this section of leaseholds, or money so cir- 
 cumstanced, must he by assignment by deed enrolled in the 
 Central Office within six months after execution. It has been 
 held that money representing entailed land will not be paid 
 out of court to a tenant in tail capable of disentailing it with- 
 out the execution of a disentailing deed (p 1 ). 
 
 A disentailment is generally carried out by a deed made 
 between the tenant in tail and a grantee to uses, the protector 
 joining (when the estate is not in possession) to give his con- 
 sent, unless it has been given by a separate deed. The tenant 
 in tail conveys the premises to the grantee, to hold them to 
 the grantee and his heirs freed and discharged from the estates 
 tail of the tenant in tail, and all estates, &c. to take effect after 
 or in defeasance of the same, to such uses as the protector and 
 tenant in tail may appoint or to the use of the tenant in tail 
 in fee simple, and if there are prior estates subject to the same. 
 The deed requires a ten shilling stamp only if it does not limit 
 any new estate other than an estate in fee simple in the person 
 disentailing the property; in other cases it must be stamped 
 ad valorem as a conveyance (pip) . 
 
 As we have said, a disentailment is generally effected prior 
 to a re-settlement of the estate on the marriage of the eldest 
 son of the tenant for life. The estate having been disentailed, 
 the father usually charges his life estate with the payment 
 of an annuity to the son during their joint lives, and a jointure 
 for the son’s intended wife should the son predecease him, and 
 the son cuts down his interest in tail to a life estate with a 
 remainder, subject to a jointure for his wife and portions for 
 his younger children, to his children successively in tail, with 
 remainders to his brothers and their children in tail, with an 
 ultimate remainder in fee to the son. The re-settlement will 
 also contain the usual powers and clauses contained in settle- 
 ments as to the management of 1 the estate, trustees, &c., and 
 will be made subject to the charges for pin-money, jointure, 
 and portions created by the former settlement. 
 
 (p) Re Reynolds (1876), 3 Ch. (pp) Finance (1909-10) Act, 
 D. 61. 1910, s. 74. 
 
 How dis- 
 entailraent 
 usually 
 carried out. 
 
 Stamp duty. 
 
 Disentail- 
 ment gene- 
 rally required 
 for purposes of 
 re-settlement. 
 
522 
 
 BK. I., PT. VII. — MISCELLANEOUS TRANSACTIONS. 
 
 IV. — ENFRANCHISEMENT OF COPYHOLDS. 
 
 Enfranchise- 
 ment of 
 copyholds ; 
 
 (a) voluntary: 
 
 (1) at common 
 law ; 
 
 (2) under 
 Copyhold 
 Act, 1894. 
 
 57 & 58 Viet, 
 c. 46 ; 
 
 Enfranchisement of copyhold land may be effected indepen- 
 dently of any statutory authority, if the lord of the manor and 
 the copyholder mutually agree to make it. But, except as 
 stated below, and as authorized by the Settled Land Acts, 1882 
 to 1890, the lord can only make a voluntary enfranchisement 
 when he has the whole fee simple of the land in himself, and 
 is under no disability; and, again, the enfranchisement must 
 be made to the tenant, though it is not necessary in his case 
 that he should have the whole fee; for if he has only a limited 
 interest, and the lord conveys to him the whole fee in the land, 
 the land will become enfranchised, but the tenant will hold 
 the estate for the benefit of persons interested after him. A 
 voluntary enfranchisement is carried out by deed, whereby the 
 lord conveys the land to the copyholder in fee freed from all 
 the incidents of copyhold tenure, and also grants to the tenant 
 the commonable rights appurtenant to the land. The Copy- 
 hold Act, 1894, however, enables the lord, whether he has the 
 whole fee simple of the land or not, with the consent of the 
 Board of Agriculture (Land Commissioners Department), to 
 enfranchise any land, and enables any tenant to accept the 
 enfranchisement, both giving certain notices to persons inte- 
 rested when they have not the absolute interest in the land (q ) . 
 The consideration for the enfranchisement may be charged on 
 the land as a rent-charge, or it may consist of the convey- 
 ance of land, or of a right to mines or minerals subject to the 
 same uses as the lands enfranchised (r) . The enfranchisement 
 is carried out by deed, which does not seem to need entry on 
 the court rolls (s). Where the lord of the manor is a limited 
 owner the consideration money is paid into court or to trus- 
 tees (t), and the Board of Agriculture may direct how the ex- 
 penses of the enfranchisement are to be borne (u ) . If either 
 party is under disability, his guardians, trustees, committee, or 
 
 (g) Copyliold Act, 1894, s. 14. 
 
 ( r ) Ibid. s. 15. 
 
 (s) Ibid. s. 16. 
 
 (£) Ibid. s. 26. 
 ( u ) Ibid. s. 34. 
 
ENFRANCHISEMENT OF COPYHOLDS. 
 
 523 
 
 some person named by the Board of Agriculture, as the case 
 may be, may be substituted for him (x ) . 
 
 Provisions are made for voluntary enfranchisement of land (3) under the 
 the subject of a settlement by the Settled Land Act, 1882, s. 3 Lan(i 
 
 of which enables a person who is a tenant for life under the act 45 & 46 Viet. 
 
 x ^ gg 
 
 to sell the seigniory of any manor, or the freehold of any copy- 
 hold or customary land, with or without any mines, &c., so as 
 to effect an enfranchisement. The tenant for life must observe 
 the same conditions on enfranchising copyholds as he must 
 observe on selling land under the powers conferred by the act. 
 
 Compulsory enfranchisement was formerly provided for by (b) compul- 
 the Copyhold Acts, 1852, 1858, and 1887, but these are now sor 
 repealed and superseded by the Copyhold Act, 1894, under 57 & 58 Viet, 
 which either the admitted tenant or the lord may insist on c ’ 46 ’ 
 enfranchisement by giving the notice thereby prescribed (y), 
 but the tenant cannot require enfranchisement unless he has 
 paid all fines, &c. payable (z). The consideration is to be fixed 
 by valuers appointed under the act, or the question may be 
 referred to the Board of Agriculture, or the parties may agree 
 in writing as to the amount, or may appoint a valuer or valuers 
 to determine it (A). If the lord compels enfranchisement, it 
 is, unless the parties otherwise agree, to be an annual rent- 
 charge (5), redeemable, however, by the tenant at twenty-five 
 years’ purchase (c) . If the tenant enforces the enfranchise- 
 ment, the compensation is to be a gross sum, except when the 
 contrary is agreed, or the land is capable of sufficient identifica- 
 tion, and the compensation amounts to more than one year’s 
 improved annual value of the land (d). A compulsory enfran- 
 chisement is carried out by an award of the Board of Agricul- 
 ture duly confirmed (e). The effect of an enfranchisement 
 under the act is to make the land freehold, but to leave it subject 
 to ( inter alia ) existing leases, commonable rights, settlements, 
 and incumbrances of the land, and to the lord’s rights to mines, 
 and his reversion by way of escheat (/) . The expenses of a 
 
 (x) Ibid. s. 45. 
 
 (y) Ibid. s. 1. 
 
 (z) Ibid. s. 3. 
 
 (а) Ibid. s. 5. 
 
 (б) Ibid. s. 8 (1). 
 
 (c) Ibid. s. 30. 
 
 ( d ) Ibid. s. 8. 
 
 (e) Ibid. s. 10. 
 
 (/) Ibid. ss. 21 to 23. 
 
524 
 
 Registration. 
 
 Conversion of 
 long terms 
 of years — 
 
 44 & 45 Viet, 
 c. 41, s. 65. 
 
 BK. I., PT. VII. — MISCELLANEOUS TRANSACTIONS. 
 
 9 
 
 compulsory enfranchisement will have to be borne by the party 
 requiring enfranchisement ( g ) . Death of either of the parties 
 will not cause the proceedings to abate (h). For the purpose 
 of encouraging the enfranchisement of copyhold land the act 
 provides that, on the admittance of any copyhold tenant, the 
 steward must give him notice informing him of his right to 
 have enfranchisement compulsorily effected by him ( i ) . The 
 Board of Agriculture are to frame a scale of compensation 
 moneys applicable to various cases, but this is only for guid- 
 ance of the parties, and neither is bound to accept it (7c) . 
 Special provisions are made for turning the whole of the copy- 
 holds in a manor into freeholds, where the fines of the manor are 
 certain, and there is a practice for the copyholders in fee to 
 grant derivative interests to persons who are admitted tenants 
 of the manor. Such wholesale enfranchisements are only to be 
 effected where the lord of the manor or one-fourth of the copy- 
 holders request it, and not less than two-thirds of the tenants 
 are in favour of it (7). 
 
 A deed of enfranchisement of lands in Middlesex or York- 
 shire requires registration (m). 
 
 V. — ENLARGEMENT OF LEASEHOLDS INTO FREEHOLDS. 
 
 Sect. 65 of the Conveyancing Act, 1881, makes provision for 
 the conversion into freehold of leasehold land in certain cases, 
 namely, when the term as originally created was for not less 
 than 300 years, and there is a residue unexpired of not less than 
 200 years, without any trust or right of redemption affecting 
 the term in favour of the freeholder or other person entitled in 
 reversion expectant on the term, and without any rent or with 
 merelj' a peppercorn or other rent having no money value, or 
 
 (<j) Copyhold Act, 1894, s. 34 (1). ( l ) Ibid. s. 79(5). 
 
 ( [li ) Ibid. s. 49(1). (m) R. v. Registrar of Deeds 
 
 (i) Ibid. s. 42. for Middlesex (1888), 21 Q. B. D. 
 
 ( h ) Ibid. s. 66. 555. 
 
ENLARGEMENT OF LEASEHOLDS INTO FREEHOLDS. 
 
 525 
 
 having had a rent which has subsequently been released or 
 become barred by lapse of time, or has in any other way ceased 
 to be payable. And by s. 11 of the Conveyancing Act, 1882, 
 the above section is to include any such term, whether having, 
 as the immediate reversion thereon, the freehold or not; but it 
 is not to include (1) any term liable to be determined by re- 
 entry for condition broken; or (2) any term created by sub- 
 demise out of a superior term, itself incapable of being enlarged 
 into a fee simple. 
 
 The following persons are designated by the act as the per- 
 sons who may execute the deed by which the conversion is 
 effected : — 
 
 (i) Any person beneficially entitled to possession of the land 
 
 whether subject to any incumbrance or not; but in case 
 of a married woman with the concurrence of her hus- 
 band, unless she is entitled for her separate use whether 
 with restraint upon anticipation or not and then without 
 his concurrence; 
 
 (ii) Any person in receipt of the income as trustee, or who 
 has the term vested in him on trust for sale whether 
 subject to any incumbrance or not; 
 
 (iii) Any personal representative of a deceased person in 
 whom the term is vested whether subject to any incum- 
 brance or not: 
 
 Any of the above persons may by deed declare that from and 
 after the execution of the deed, the term shall be enlarged into 
 a fee simple, and thereupon such term shall be enlarged into a 
 fee simple, and thereupon the fee will vest in the person in 
 whom the term was previously vested. But the fee simple 
 so acquired will be subject to all the same trusts, powers, exe- 
 cutory limitations over, rights and equities, and to all the same 
 covenants, provisions, and obligations, as the term would have 
 been subject to if it had not been enlarged. This probably 
 means that the enlarged estate will be subject not only to those 
 obligations to which the term was subjected by act of the par- 
 ties, but also to those incident to the altered character of the 
 property by act of law; so that the fee simple, when obtained, 
 will, in addition to such obligations, become subject to all the 
 obligations which by law are incident to a fee simple estate, 
 
 45 & 46 Viet, 
 c. 39, s. 1 1 . 
 
 Who may 
 convert ; 
 
 how effected. 
 
 Effect of 
 conversion : 
 (a) generally 
 
52ti BK. I., PT. YIJ. MISCELLANEOUS TRANSACTIONS. 
 
 but not to a term, e.g., to dower and curtesy. It is also pro- 
 vided that the fee simple, acquired under the section, shall in- 
 clude the fee simple in all mines and minerals which have not at 
 the time of the enlargement been severed or reserved from the 
 
 (b) when lease 
 was settled 
 in strict 
 settlement. 
 
 Decisions on 
 the enact- 
 ment. 
 
 land included, and this even if the term was originally created 
 with impeachment of waste. 
 
 Sub-s. 5 of the section applies to the case where leaseholds 
 have been settled by reference to the freehold land comprised in 
 the same settlement, so as to go along with that land as far as 
 the term permits. If such a term has, under the provisions of 
 the settlement, become vested in any person absolutely, then he, 
 of course, is a person who may, under the description (i) above, 
 enlarge the term into a fee; but if the term has not become thus 
 absolutely vested, then it is provided that on its being enlarged 
 into a fee, it shall (without prejudice to any conveyance for 
 value previously made by a person having a contingent or de- 
 feasible interest in the term) be conveyed and settled in like 
 manner as the freehold land comprised in the settlement, and 
 until so conveyed and settled, shall devolve beneficially as if it 
 had been so conveyed and settled. 
 
 It has been held that an annual rent of three shillings is not 
 a rent having “ no money value” within the meaning of this 
 section, so that a term subject to such rent cannot be enlarged 
 into a fee simple (w). But a silver penny rent is a nominal 
 rent, and does not prevent conversion (o). 
 
 VI. — APPOINTMENTS UNDER POWERS. 
 
 Definition. A power is a right of alienating property exercisable by a 
 person who may or may not have an interest in the property 
 over which lie possesses the power. 
 
 The different Sorts of Powers. 
 
 General 
 and special 
 powers. 
 
 If the donee may appoint the property to whom he pleases, 
 the power is styled a general power; whereas, if he has only 
 
 ( n ) Re Smith and Stott (1883), 
 29 Oh. D. 1009, n. 
 
 (o) Re Chapman and Hobbs 
 (1885), 29 Ch. D. 1007. 
 
APPOINTMENTS UNDER POWERS. 
 
 527 
 
 power to appoint to a particular person or persons, or members 
 of a class, the power is called a special power. 
 
 A power possessed by a person over property in which he has 
 an interest, which will be affected by the exercise of the power, 
 is called a power appendant ; such is a power of leasing vested 
 in a tenant for life; if, by the exercise of it, his interests will 
 not be affected, it is called a power in gross ; such is the power 
 of a tenant for life to jointure his widow out of the property. 
 
 A power possessed by a person over property in which he has 
 no interest is called a power collateral ; such is a power of sale 
 and exchange given to trustees of a settlement who have no 
 estate in the land settled. 
 
 Who can exercise Powers. 
 
 Any person who is sui juris and able to dispose of property 
 can exercise a power over property. With regard to persons 
 not sui juris , an infant may exercise a power collateral over 
 either real or personal property. And apparently an infant 
 can exercise a power in gross and perhaps even a power appen- 
 dant over personal property so long as the exercise of the power 
 does not diminish his interest in the property; but he cannot 
 exercise either kind of power over real property (p) . 
 
 A lunatic cannot exercise a power of appointment; but a 
 married woman can exercise a power without the concurrence 
 of her husband, though apparently if a power be given to a 
 woman to be exercised by her while she is a feme sole, she 
 cannot exercise it if she marries so long as the marriage sub- 
 sists (g). 
 
 (p) See Re D' Angibau (1880), ( q ) Marquis of Antrim v. Duke 
 
 15 Ch. D. 228; see further ante , of Buckingham (1663), 1 Ab. Eq. 
 p. 6. 343. 
 
 Powers 
 appendant 
 and in gross. 
 
 Powers 
 
 collateral. 
 
 Exercise of 
 power by a 
 person not 
 
 sui juris ; 
 
 infant ; 
 
 lunatic ; 
 
 married 
 woman ; 
 
528 
 
 BK. I., PT. VII. — MISCELLANEOUS TRANSACTIONS. 
 
 Donee may 
 reserve power 
 of revocation 
 and new ap- 
 pointment. 
 
 Power given 
 to contingent 
 person. 
 
 When consent 
 necessary. 
 
 Application 
 of perpetuity 
 rule to 
 powers. 
 
 Power of Revocation and new Appointment. 
 
 The donee of a power, whether authorized or not by the- 
 instrument creating the power, may in his appointment reserve 
 a power of revocation and new appointment (r) . But he can- 
 not on a future appointment dispense with the formalities made 
 necessary by the original instrument; for by the revocation the 
 original power revives. Where the power is exercised by deed 
 unless a power to revoke be reserved in the deed exercising 
 the power (s), it cannot be revoked, though there be a power 
 to revoke contained in the instrument creating the power (£);■ 
 and even though the appointment is made to volunteers. 
 
 Power to Contingent Person. 
 
 A general power may be exercised by a contingent person 
 who in the event proves to be the person actually entitled to 
 exercise it (u ) . But a limited power given to a contingent 
 person cannot be exercised until the person to exercise it is 
 ascertained (x ) . 
 
 When a power is to be exercised with the consent of any 
 person, such consent must be obtained prior to execution (y). 
 
 Application of Perpetuity Rule to Appointments under 
 
 Powers. 
 
 In making an appointment pursuant to a power care must 
 be taken that the appointment does not offend the rule against 
 perpetuities. This rule, as we may remind the reader, is 
 that every limitation of property is void by which the vesting 
 of an estate in fee simple in the case of real property, or an 
 absolute interest in the case of personal property, is, or may 
 possibly be, postponed for a longer period than that comprised 
 
 (r) See on this, Adam v. Adam 
 (1777), Oowp. 651; Jones v. Lady 
 Manchester (1673), Ventr. 197. 
 
 (s) As to what will amount to 
 a power of revocation, see Re 
 Harding, Rogers v. Harding, 
 (1894) 3 Ch. 315. 
 
 (t) Worrall v. Jacob (1817), 3 
 
 Mer. 256 ; Hele v. Bond (1717), 
 Pr. Ch. 474. 
 
 (u) Parwell, Powers, 2nd ed. 
 155. 
 
 (x) Ibid. 159. 
 
 {y) Greenham v. Gibbeson 
 (1834), 4 Moo. & Sc. 198. 
 
APPOINTMENTS UNDER POWERS. 
 
 529 
 
 by a life or lives in being, at the date when the limitation comes 
 into operation, and twenty-one years afterwards, provided that 
 the property may then vest in a child en ventre sa mere (z). 
 
 In the application of this rule to appointments under powers Oeneral 
 there is a distinction between general and special powers. A powerb ' 
 general power enables the donee to dispose of the property in 
 any way he pleases, so that the period allowed by the rule for 
 the vesting of future estates is dated not from the creation of 
 the power, but from the time of its exercise. But in the case Special 
 of a special power, though the donee may be able to dispose of P oweis - 
 the fee simple or absolute interest in the property, he cannot do 
 so as if he himself were the owner in fee. The disposition of 
 the property is fettered by the instrument creating the power, 
 so that in making the appointment he can create no future 
 estate which would not have been validly created if limited in 
 the instrument creating the power. And while a special power 
 may embrace objects of any degree of remoteness, and yet not be 
 void merely because attempting to authorize an appointment 
 to persons not necessarily born, or the creation of interests not 
 necessarily within the rule, the appointment under such a power 
 must be strictly confined to such persons as come within the 
 rule, dating the limit from the time when the instrument 
 creating the power comes into operation (a) . 
 
 We have already mentioned that in settlements of personal Power in 
 property a power is given to the life tenants to appoint the Remoter 
 settled funds in favour of the “remoter issue” of the mar- issue.” 
 riage. This enables the husband or wife to appoint a share 
 to the issue of a deceased child, or of a child who has become 
 bankrupt or aliened his interest under the settlement. It might 
 be thought that such a power would be void, as offending the 
 rule against perpetuities, for no issue may be born to the child 
 of the marriage within the time allowed by the rule, i.e., a 
 life or lives in being, and twenty-one years afterwards, and the 
 lives in being are those of the husband and wife; but a valid 
 
 (z) Cadell v. Palmer (1833), 7 (a) See for a discussion of the 
 
 Bligh, N. S. 202; 1 Cl. & F. 372; distinction , Re Thompson, Thomp- 
 
 Tudor, L. C. Conv. 4th ed. 578. son v. Thompson , (1906) 2 Ch. 
 
 199. 
 
 G. — C. 
 
 M M 
 
530 
 
 BK. I., PT. VII. — MISCELLANEOUS TRANSACTIONS. 
 
 Application 
 of pei’petuity 
 rule to ap- 
 pointment 
 subject to 
 restraint. 
 
 Appointment 
 to such uses 
 as child may 
 appoint. 
 
 appointment may be made under the power provided that if it 
 be made in favour of issue not in esse it be expressly confined 
 to those born within twenty-one years from the death of the 
 husband and wife (5). The remoter issue are included, because 
 if a power be to appoint among the members of a particular 
 class, the fund cannot be appointed to a person who is not a 
 member of that class; so that a power to appoint property to 
 the children of the appointor will not enable the donee to ap- 
 point to a grandchild (c) ; nor even to appoint to the executors 
 or administrators of any child who has died (d). When the 
 power only authorizes an appointment among children, an 
 appointment to the issue of a child is valid if the child is of 
 age and is a party to and executes the deed of appointment; 
 this being treated as an appointment to the child and a disposi- 
 tion of it by him in favour of the issue (e). 
 
 Where in the exercise of the usual power in a settlement to 
 appoint among children, an appointment is made to daughters 
 and a restraint upon anticipation is imposed, the restraint will 
 be invalid as transgressing the rule if at the time of the settle- 
 ment the daughters are unborn, though the appointment is 
 otherwise good(/). This must always be so where the settle- 
 ment is ante-nuptial; but the restraint has been held valid 
 when the daughter was, as she may be in the case of a post- 
 nuptial settlement, alive when the settlement creating the power 
 was made. 
 
 A power in the usual form authorizes an appointment to 
 such uses as a child of the marriage shall by deed or will ap- 
 point, for this in effect gives the whole beneficial interest to 
 the appointee (g ) ; it also authorizes an appointment to such 
 uses as a child shall by will alone appoint, if the child is in esse 
 
 (6) See Boutledge v. Dorrill 
 (1794), 2 Ves. 357. 
 
 (c) Alexander v. Alexander 
 (1755), 2 Ves. sen. 640; Tudor, 
 L. C. Conv. 4th ed. 554; Bristowe 
 v. Warde (1794), 2 Ves. 336; see 
 also Brudenell v. Elwes (1801), 1 
 East, 442; Waring v. Lee (1845), 
 8 Beav. 247. 
 
 (<7) Boyle v. Bishop of Peter- 
 borough (1791), 2 Ves. 299. 
 
 (e) Thompson v. Simpson 
 (1841), 1 D. & W. 459. 
 
 (/) Fry v. Capper (1853), 1 
 Kay, 163. 
 
 ( g ) Bray v. Bree (1834), 2 Cl. 
 & F. 453. 
 
APPOINTMENTS UNDER POWERS. 
 
 531 
 
 at the time of the creation of the power (h) ; but if the ap- 
 pointment be to such uses as he shall by will alone appoint, 
 it is void, as offending the rule, where the child is not born at 
 the time of the creation of the power (y), as he would not be 
 in the case of an ante-nuptial settlement. 
 
 An appointment to a class of persons, some of whom cannot 
 take, as being outside the limit allowed by the rule against 
 perpetuities, is void altogether. But if the power itself only 
 authorizes an appointment among objects which are not too 
 remote, while it is the appointment which offends against the 
 rule, it would seem that the appointment will be good as to those 
 persons who may be within the limits of the rule, since it is 
 treated as an appointment to those only who are objects of 
 the power. Where a power is given which is void for remote- 
 ness, limitations in default of appointment are not invalid 
 unless they themselves also offend the rule against perpetui- 
 ties (A;). Finally, powers of sale and exchange, leasing, and 
 such other powers as are usually contained in a settlement, are 
 valid, though there be no express restriction of the exercise of 
 them within the rule against perpetuities ( l ) . 
 
 Defective Appointments. 
 
 In exercising a power, the appointor must take care to comply 
 rigidly with the terms and formalities laid down in the instru- 
 ment giving the power. If he does not, the appointment will 
 be defective and bad in most cases. Thus, if the appointment 
 is to be exercised by a will “ expressly referring to the power,” 
 it will not be well exercised by a general disposition of pro- 
 perty in the will not expressly referring to the power, and 
 s. 27 of the Wills Act, 1837, does not apply to the case, 'as 
 such a power is not a power to appoint “ in any manner the 
 testator may think proper” within the meaning of the sec- 
 
 ( [h ) Phipson v. Turner (1838), 9 ( k ) Peacock v. Frigout, (1893) 
 
 Sim. 227. 1 Ch. 54. 
 
 (0 Wollaston v. King (1869), (l) Lantsburry v. Collier ( 1856), 
 
 L. R. 8 Eq. 165 ; Morgan v. 2 K. & J. 709; Pe Sudeley and 
 
 Gronow (1873), L. R. 16 Eq. 1. Baines' Contract, (1894) 1 Ch. 
 
 334. 
 
 mm2 
 
 Appointment 
 to a class, 
 some of whom 
 are outside 
 the rule. 
 
 Powers of 
 sale, &c. 
 
 Conditions 
 of power 
 must be 
 complied 
 with. 
 
532 
 
 BK. I., PT. VII. MISCELLANEOUS TRANSACTIONS. 
 
 1 Viet. c. 26, 
 s. 10. 
 
 22 & 23 Viet, 
 c. 35, s. 12. 
 
 Non -exclu- 
 sive power. 
 
 Illusory ap- 
 pointments. 
 
 1 Will. 4, 
 c. 46. 
 
 Exclusive ap- 
 pointments. 
 
 37 & 38 Viet, 
 c. 37. 
 
 tion (m) . If, however, the defect consists in having only two 
 witnesses to a deed or will instead of three or more, as required 
 by the instrument creating the power, the appointment is valid 
 by the provisions of the Wills Act, 1837, s. 10, as to wills, 
 and the Law of Property Amendment Act, 1859, s. 12, as to 
 deeds; and with regard to other defects of a formal and not 
 material nature ( e.g ., the appointment being by will instead 
 of by deed), a court of equity will, where the appointee is a 
 wife, child, creditor, charity, or purchaser (which includes a 
 mortgagee and lessee, and possibly an intended husband), up- 
 hold the appointment (n ) . 
 
 Illusory Appointments. 
 
 Prior to the 16th July, 1830, it was necessary under a non- 
 exclusive ” power, i.e ., one which did not give to the appointor 
 an option of excluding any object intended to be benefited by 
 the power, for the appointor to appoint a portion of the fund 
 to every object of the power. At law it was immaterial how 
 small the share appointed to any object might be; but in equity 
 it was necessary to appoint some substantial share, or the ap- 
 pointment was held illusory and void(o). But in 1830 the 
 Illusory Appointments Act, 1830, was passed, by which 
 illusory appointments, i.e., appointments of merely nominal 
 shares, were rendered good in equity as well as at law. Under 
 this statute it was necessary to appoint some share, however 
 small, to each of the objects of the power (o). Now, however, 
 in the exercise of a power of appointment after the 30th July, 
 1874, it is possible entirely to exclude any object of the power, 
 by virtue of the Powers of Appointment Act, 1874, unless 
 there is an express declaration to the contrary in the instrument 
 creating the power. Sect. 1 of the act provides that: — “ No 
 appointment .... made in exercise of any power to appoint 
 any property real or personal amongst several objects shall be 
 invalid at law or in equity on the ground that any object of 
 
 (m) Phillips v. Cayley (1889), 
 43 Oh. D. 222. 
 
 (w) Tollett v. Tollett, Wh. & 
 Tudor, L. C. Eq. 8th ed. vol. ii. 
 
 296. 
 
 ( o ) See the judgment of Jessel, 
 M. R., in Gainsford v. Dunn 
 (1874), L. R, 17 Eq. 405. 
 
APPOINTMENTS UNDER POWERS. 
 
 533 
 
 such power has been altogether excluded but every such ap- 
 pointment shall be valid and effectual notwithstanding that any 
 one or more of the objects shall not thereby or in default of 
 appointment take a share or shares of the property subject to 
 such power.” 
 
 Excessive and Fraudulent Appointments. 
 
 An appointment under a special power may be void as being 
 excessive or as being a fraud upon the power. As regards the 
 former, if the appointment include objects not intended by 
 the terms of the power to be benefited, the appointment will 
 not be altogether void, but it will be void as to the excess only. 
 For example, a gift to an object of the power followed by a 
 gift to a person who is not an object of the power is void only 
 in respect of the gift over(p). And a gift to a stranger to 
 the power followed by a remainder to an object of the power 
 is good as to the gift in remainder, and the property will, 
 during the life of the stranger, go as in default of appoint- 
 ment (g). When an appointment by will of real property is 
 excessive, the cy-pres doctrine is sometimes applied. Thus, if 
 a parent, having a power of appointment over land among his 
 children (not issue), appoints the same by will to his son for 
 life, with remainder to that son’s son in tail, the remainder is 
 void, but the son’s life estate is enlarged into an estate tail; 
 but the rule does not apply to an appointment of personalty 
 nor to one made by deed (r). Besides this, a fund, instead of 
 being directly appointed to an object of the power, may be 
 appointed to a trustee in trust for him (s); or it may be ap- 
 pointed to trustees upon trust to sell and divide the proceeds 
 among the objects (£). 
 
 As regards the fraudulent exercise of a power, the rule is 
 that a special power must be exercised for the benefit of the 
 
 Appointment 
 to stranger 
 to power. 
 
 Cy-pres 
 
 doctrine. 
 
 What is a 
 fraudulent 
 exercise of 
 a power. 
 
 ( p ) Brown v. Nisbett (1750), 1 
 Cox, 13. 
 
 ( q ) Crozier v. Crozier (1843), 3 
 D. & W. 353. 
 
 (r) See Boutledge v. Dorrill 
 
 (1794), 2 Ves. 357; Brudenell v. 
 Elwes (1801), 1 East, 442. 
 
 (s) Thornton v. Bright (1836), 
 2 My. & Cr. 230. 
 
 ( t ) Fowler v. Cohn (1856), 2 
 Beav. 360. 
 
534 
 
 BK. I., PT. VII. MISCELLANEOUS TRANSACTIONS. 
 
 appointee, and not indirectly for the appointor’s own benefit; 
 so that if the power be exercised with an ultimate view to secure 
 some advantage to the appointor, or to any person other than 
 an object of the power, the appointment can be set aside even as 
 against a bond fidle purchaser or mortgagee, unless he acquires 
 the legal estate (u ) . Thus, a father will not he allowed to make 
 an immediate appointment to an infant child with the idea of 
 becoming entitled to the fund as the child’s personal repre- 
 sentative if he should die(aj). But the mere fact that an 
 appointment is made to an infant, that the father, the appointor, 
 will become entitled to the fund on the child’s decease, a;nd 
 that the infant is in no immediate need of the property ap- 
 pointed, will not necessarily render the appointment void (y). 
 Nor is there anything in this doctrine to prevent the release 
 of a power if it is capable of release, though the result may 
 be that the donee of the power will obtain a benefit; for in- 
 stance, in a case in which a father had a power to appoint a 
 fund, of which he was tenant for life, among his children, who, 
 in default of appointment, were, subject to the father’s life 
 interest, entitled to the fund on attaining twenty-one, and 
 there were two children, both of whom attained twenty-one, 
 and so became entitled to the settled funds, subject to the 
 power and the life interest of the father, on the death of one 
 of them intestate it was held that the father might surrender 
 his life estate, release the power of appointment, and divide 
 the settled funds, giving one half to his surviving child, and 
 taking the other half himself as the representative of the 
 deceased child (z ) . 
 
 ( u ) Cloutte v. Storey, (1911) 1 
 Ch. 18. 
 
 ( x ) Lord Hinchinbroke v. Sey- 
 mour (1784), 1 Bro. Ch. Ca. 395; 
 Cunnynghame v. Thurlow (1819), 
 1 Russ. & M. 436; Wellesley v. 
 Mornington (1855), 2 K. & J. 143. 
 (; y ) Henty v. Wrey (1882), 19 
 
 Ch. D. 492; Butcher v. Jackson 
 (1845), 14 Sim. 444 ; Beere v. 
 Hutchinson- Hoy mister (1856), 23 
 Beav. 101; Wellesley v. Morning- 
 ton, supra. 
 
 ( z ) Badcliffe v. Bewes, (1892) 
 1 Ch. 227; followed in Re Somes, 
 Smith v. Somes, (1896) 1 Ch. 250. 
 
APPOINTMENTS UNDER POWERS. 
 
 535 
 
 Release and Disclaimer of Powers. 
 
 Formerly the rule was, that a power appendant and a power All powers 
 
 , , . . , . can now be 
 
 m gross could, but a power simply collateral could not, be re- released and 
 leased («). But by s. 52 of the Conveyancing' Act, 1881, a disclaimed, 
 person to whom a power, whether coupled with an interest or c> 4^ s< 52. 
 not, is given, may by deed release or contract not to exercise the 
 power. This section did not, however, apply to the disclaimer 
 of powers, and this omission was supplied by the Conveyancing 45 & 46 Viet. 
 Act, 1882, s. 6, which provides that a person to whom any c ' 39, 8 ' 6 ‘ 
 power, whether coupled with an interest or not, is given, may 
 by deed disclaim the power, and after disclaimer shall not be 
 capable of exercising or joining in the exercise of the power; 
 but it may be exercised by the others or other, or the survivor 
 of the other persons to whom the power was given, unless the 
 contrary be expressed in the instrument creating the power. It 
 has been held that a power which is coupled with a trust or duty 
 may not be released under s. 52 of the act of 1881, but can only 
 be extinguished by the trustee making a proper and irrevocable 
 appointment ( 5 ). 
 
 The stamp duty on appointments under powers (when not Stamp duty, 
 exercised by will) is ten shillings (c). 
 
 (a) See West v. Burney (1819), (c) See, however, s. 62 of the 
 
 1 Russ. & M. 434. Stamp Act, 1891, and s. 74 of the 
 
 (b) Eyre v. Eyre (1883), 49 Finance (1909-10) Act, 1910. 
 
 L. T. 259. 
 
536 
 
 Part VIII. 
 
 CONVEYANCING COSTS. 
 
 The old 
 system of 
 solicitors’ 
 remuneration 
 for con- 
 veyancing. 
 
 Complete 
 
 statutory 
 
 remedy. 
 
 44 & 45 Viet, 
 c. 44. 
 
 Before the year 1883 solicitors were paid for conveyancing 
 business in this country according to the length of the document 
 drawn, and without regard to the importance of the transaction 
 to which it related or the skill, labour or responsibility involved 
 in its preparation. It is not surprising that the result of this 
 system of remuneration was that legal documents became dis- 
 tinguished for a prolixity and redundancy that smothered 
 the sense under the multitude of words. That such a system — 
 by which a skilled professional man was paid for his intellec- 
 tual labour, like a mere copyist, at the rate of so much for every 
 seventy-two words of a document he prepared — should have 
 been allowed to continue until so late a date as 1883, is remark- 
 able; the more so, having regard to the great reforms which 
 had taken place in preceding years (a ) . Now one of the main 
 objects of the Conveyancing Act, 1881, was to shorten and 
 simplify the documents used in conveyancing; but the pro- 
 moters of that important statute were wise enough to foresee 
 that there was little probability of its attaining this object, 
 unless provision were made, by which solicitors who adopted 
 the statute, and prepared concise and intelligible deeds in re- 
 liance on its provisions, would get paid as highly as solicitors 
 who continued to use the ancient and prolix forms. Accord- 
 ingly, by the Solicitors’ Remuneration Act, 1881, provision 
 was made for the drawing up by a committee, consisting of the 
 Lord Chancellor, the Lord Chief Justice, the Master of the 
 
 (a) See on this subject Christian, Short History of Solicitors, 194 
 et seq. 
 
SOLICITORS 5 REMUNERATION. 
 
 537 
 
 Rolls, the President for the time being of the Law Society, 
 and the President of one of the provincial Law Societies, to 
 be selected by the Lord Chancellor, or any three of them, of 
 a scale or scales to regulate the remuneration of solicitors in 
 conveyancing business. The statute gave wide powers to the 
 persons appointed to draw up the order as to mode and amount 
 of remuneration to be fixed by the scale or scales to be drawn up. 
 
 The order was issued in 1882, and was under the hands of 
 the Lord Chancellor, the Lord Chief Justice of England, the 
 Master of the Polls, and the President of the Liverpool Law 
 Society (it is noticeable that the President of the Law Society 
 did not append his signature to the order), and consists of 
 twelve clauses, followed by two schedules. 
 
 The First Schedule is divided into two parts: Part I. con- 
 tains a scale of charges to be allowed to a solicitor on sales, 
 purchases and mortgages of freehold, copyhold and leasehold 
 property, .according to whether lie is acting for vendor, 
 purchaser, mortgagor or mortgagee. The scale here is based on 
 the amount of the purchase or mortgage money. The scale is 
 followed by twelve rules made to meet special circumstances: 
 Part II. contains two scales of charges, one for leases or agree- 
 ments for leases at rack rent (except mining leases and building 
 leases), and the other for building leases and leases not at rack 
 rent (except mining leases), and for conveyances for a freehold 
 estate subject to a rent. The remuneration here is based on 
 the amount of the rent. This part of the schedule is followed 
 by six rules intended to meet special cases. 
 
 The Second Schedule regulates the remuneration for pre- 
 paring, &c. wills, settlements, mining' leases and other docu- 
 ments, not coming within the first schedule, or with regard to 
 which, although within the first schedule, the solicitor has, as 
 he is empowered to do by the order, elected, before undertaking 
 the business, to be paid by the scale given in this second' 
 schedule. The remuneration allowed by this second schedule 
 is based on the old system of charging, namely, the length of 
 the document, the sheets of abstract, the number of the attend- 
 ances, &c. The schedule, however, in certain cases recognizes 
 
 The remune- 
 ration order. 
 
 The First 
 Schedule. 
 
 The Second 
 Schedule. 
 
538 
 
 BK. I.j PT. VIII. CONVEYANCING COSTS. 
 
 Costs are 
 now based on 
 importance of 
 business. 
 
 44 & 45 Viet, 
 c. 44, s. 8. 
 
 a more liberal scale than that formerly allowed. The second 
 schedule also regulates the remuneration for all business to 
 which Schedule I. relates if the matter falls through and is 
 not completed. 
 
 The order came into operation on the 1st January, 1883, and, 
 as will be gathered from the above brief statement, solicitors are 
 now, for most conveyancing business, paid for their services on 
 a sensible principle, namely, according to the importance of the 
 transaction and the consequent degree of responsibility it 
 involves . 
 
 It is provided by s. 8 of the Remuneration Act, 1881, that 
 a solicitor may, either before, after, or in the course of the 
 transaction of any business, enter into a written agreement 
 with his client (signed by the party to be bound thereby), 
 whereby he may be remunerated by a gross sum, commission 
 or percentage, or a salary or otherwise, and the effect of this 
 agreement will be to prevent the remuneration allowed by the 
 order being applicable; but in other cases the order applies 
 and regulates the remuneration for all kinds of conveyancing 
 business. 
 
 The order is as follows : — 
 
 General Order made in pursuance of the Solicitors ’ Remu- 
 neration Act, 1881 (44 & 45 Viet. c. 44). 
 
 We, The Right Honourable Roundell Baron Selborne, Lord 
 High Chancellor of Great Britain, The Right Honourable J ohn 
 Duke Lord Coleridge, Lord Chief Justice of England, The 
 Right Honourable Sir George Jessel, Master of the Rolls, and 
 Enoch Harvey, Esquire, President of the Incorporated Law 
 Society of Liverpool (being four of the persons in that behalf 
 authorized by the Statute 44th and 45th Victoria, chapter 44), 
 do hereby, in pursuance and execution of the powers given to us 
 by the said statute, and of all other powers and authorities! 
 enabling us in that behalf, order and direct in manner 
 following: — 
 
 1. This order is to take effect from and after the 31st day 
 of December, 1882, except that schedule I. hereto shall not 
 
solicitors’ remuneration. 
 
 apply to transactions respecting real property, the title to which 
 has been registered under the acts of 25 & 26 Viet. o. 53; 
 25 & 26 Viet. c. 67; and 38 & 39 Viet, c. 87. 
 
 2. Subject to the exception aforesaid, the remuneration of a 
 solicitor in respect of business connected with sales, purchases, 
 leases, mortgages, settlements, and other matters of conveyanc- 
 ing, and in respect of other business, not being business in any 
 action, or transacted in any court, or in the chambers of any 
 judge or master, is to be regulated as follows, namely: 
 
 (a) In respect of leases, and agreements for leases, the 
 
 remuneration of the solicitor having the conduct of 
 the business, whether for the vendor, purchaser, 
 mortgagor, or mortgagee, is to be that prescribed in 
 Part I. of schedule I. to this order, and to be subject 
 to the regulations therein contained. 
 
 (b) In respect of leases, and agreements for leases, of the 
 
 kinds mentioned in Part II. of schedule I. to this 
 order, or conveyances reserving rent, or agreements 
 for the same, when the transactions shall have been 
 completed, the remuneration of the solicitor having 
 the conduct of the business is to be that prescribed in 
 Part II. of such schedule I. 
 
 (c) In respect of business not hereinbefore provided for con- 
 
 nected with any transaction the remuneration for 
 which, if completed, is hereinbefore, or in schedule I. 
 hereto, prescribed, but which is not, in fact, com- 
 pleted, and in respect of settlements, mining leases 
 or licences, or agreements therefor, re-conveyances, 
 transfers of mortgage, or further charges, not pro- 
 vided for hereinbefore or in schedule I. hereto, as- 
 signments of leases not by way of purchase or 
 mortgage, and in respect of all other deeds or docu- 
 ments, and of all other business the remuneration for 
 which is not hereinbefore, or in schedule I. hereto, 
 prescribed, the remuneration is to be regulated ac- 
 
540 
 
 BK. I.j PT. VIII. — CONVEYANCING COSTS. 
 
 cording to the present system as altered by schedule 
 II. hereto. 
 
 3. Drafts and copies made in the course of business the 
 remuneration for which is provided for by this order are to be 
 the property of the client. 
 
 4. The remuneration prescribed by schedule I. to this order 
 is not to include stamps, counsel’s fees, auctioneer’s or valuer’s 
 charges, travelling or hotel expenses, fees paid on searches to 
 public officers, on registrations, or to stewards of manors, cost of 
 extracts from any register, record, or roll, or other disbursement 
 reasonably and properly paid, nor any extra work occasioned 
 by changes occurring in the course of any business, such as 
 the death or insolvency of a party to the transaction, nor is it 
 to include any business of a contentious character, nor any 
 proceedings in any court, but it shall include law stationer’s 
 charges (5), and allowances for time of the solicitor and his 
 clerks, and for copying and parchment, and all other similar 
 disbursements. 
 
 5. In respect of any business which is required to be, and 
 is, b} r special exertion, carried through in an exceptionally short 
 space of time, a solicitor may be allowed a proper additional 
 remuneration for the special exertion, according to the circum- 
 stances . 
 
 6. In all cases to which the scales prescribed in schedule I. 
 hereto shall apply, a solicitor may, before undertaking any 
 business (c), by writing under his hand, communicated to the 
 client, elect that his remuneration shall be according to the 
 present system as altered by schedule II. hereto; but if no such 
 election shall be made, his remuneration shall be according to 
 the scale prescribed by this order ( d ) . 
 
 (6) See Re Read, (1894) 3 Cli. 
 238. 
 
 (c) See Re Allen (1887), 34 
 Ch. D. 433 ; Hester v. Hester , 
 ibid. 607; Re Metcalfe (1887), 57 
 
 L. J. Ch. 82; Re Stewart (1889), 
 41 Ch. D. 494. 
 
 (' d ) A local authority or persons 
 in a fiduciary position may assent 
 to such election : In re Evans, 
 (1905) 1 Ch. 290. 
 
solicitors’ remuneration. 
 
 7. A solicitor may accept from his client, and a client may 
 give to his solicitor, security for the amount to become due to 
 the solicitor for business to be transacted by him, and for in- 
 terest on such amount, but so that interest is not to commence 
 till the amount due is ascertained, either by agreement or tax- 
 ation. A solicitor may charge interest at four per cent, per 
 annum on his disbursements and costs, whether by scale or 
 otherwise, from the expiration of one month from demand from 
 the client. And in cases where the same are payable by an 
 infant, or out of a fund not presently available, such demand 
 may be made on the parent or guardian, or the trustee or other 
 person liable. 
 
 8. In this order, and the schedules hereto, the following- 
 words and expressions shall have the meaning ascribed to them 
 in the 3rd sub-section of s. 1 of the Solicitors' Remuneration 
 Act, 1881, viz.: — “Solicitor,” “Client,” “Person.” 
 
 [Schedule I., Part I. 
 
542 
 
 BK. I., PT. VIII. CONVEYANCING COSTS. 
 
 SCHEDULE I., Part I. 
 
 Scale of Charges on Sales, Purchases and Mortgages, and 
 
 Rules applicable thereto. 
 
 
 1. Eor 
 the 1st 
 1,000?. 
 
 2. For 
 the 2nd 
 and 3rd 
 1,000?. 
 
 3. For the 
 4th and 
 each sub- 
 sequent 
 1,000?. up 
 to 10,000?. 
 
 4. For 
 each sub- 
 sequent 
 1,000?. 
 up to 
 100,000?.* 
 
 Vendor’s solicitor for negotiating a sale of 
 
 Per 100?. 
 
 Per 100?. 
 
 Per 100?. 
 
 Per 100?. 
 
 property by private contract (e) 
 
 Vendor’s solicitor for conducting a sale of 
 property by public auction (/), including 
 the conditions of sale — 
 
 20s. 
 
 20s. 
 
 10s. 
 
 5s. 
 
 When the property is sold 
 
 When the property is not sold, then on 
 
 20s. 
 
 10s. 
 
 5s. 
 
 2s. 6d. 
 
 the reserved price 
 
 [N.B. — A minimum charge of 51. to be 
 made, whether a sale is effected or not.] 
 Vendor’s solicitor for deducing title (y) to 
 freehold, copyhold or leasehold property (A), 
 and perusing and completing conveyance 
 (including preparation of contract or condi- 
 
 10s. 
 
 5s. 
 
 2s. 6^. 
 
 Is. 3d. 
 
 tions of sale, if any) 
 
 Purchaser’s solicitor for negotiating a purchase 
 
 30s. 
 
 20s. 
 
 10s. 
 
 5s. 
 
 of property by private contract 
 
 Purchaser’s solicitor for investigating title to 
 freehold, copyhold or leasehold property, 
 and preparing and completing conveyance 
 (including perusal and completion of con- 
 
 20s. 
 
 20 s. 
 
 10s. 
 
 5s. 
 
 tract, if any) (i) 
 
 Mortgagor’s solicitor for deducing title to 
 freehold, copyhold or leasehold property, 
 
 30s. 
 
 20s. 
 
 10s. 
 
 os. 
 
 perusing mortgage and completing- 
 
 30s. 
 
 20s. 
 
 10s. 
 
 5s. 
 
 Mortgagee’s solicitor for negotiating loan (k). 
 Mortgagee’s solicitor for investigating title 
 to freehold, copyhold or leasehold property, 
 
 20s. 
 
 20s. 
 
 5s. 
 
 2s. 6d. 
 
 and preparing and completing mortgage . . 
 Vendor’s or mortgagor’s solicitor for procuring 
 execution and acknowledgment of deed by 
 a married woman 
 
 30s. 
 
 2/. 10s 
 
 20s. 
 
 extra. 
 
 10s. 
 
 
 * Every transaction exceeding 100,000?. to be charged for as if it were for 100,000?. 
 
 (e) See Be MacGoivan, (1891) 
 1 Ch. 105; Be Withall, (1891) 3 
 Ch. 8; Be Bomain, (1903) 1 Ch. 702. 
 
 (/) See Be Beck (1883), 24 
 Ch. D. 608; Be Wilson (1885), 29 
 Ch. D. 790; Drielsma v. Mani- 
 fold, (1894) 3 Ch. 100; Cholditch 
 v. Jones, (1896) 1 Ch. 42. 
 
 (g) The delivery of an abstract 
 of one document only is not a de- 
 duction of title within the mean- 
 ing of this schedule so as to entitle 
 
 the solicitor delivering it to the 
 scale fee. Be Webster and Jones' 
 Contract, (1902) 2 Ch. 551. 
 
 (Ji) See Be Earnshaw Wall, 
 (1894) 3 Ch. 156. 
 
 (i) See Ex parte Mayor of 
 London (1887), 34 Ch. D. 452; 
 Be Bomain, supra. 
 
 (k) Be Weddall (1884), 29 Sol. 
 Jour. 85; Be Eley (1887), 37 
 Ch. D. 40; Be Norris, (1902) 1 
 Ch. 741. 
 
543 
 
 SCALE OF CHARGES FOR SALES, PURCHASES, ETC. 
 
 RULES. 
 
 1. The commission for deducing title and perusing and com- 
 pleting conveyance on a sale by auction is to be chargeable on each 
 lot of property, except that where a property held under the same 
 title is divided into lots for convenience of sale, and the same pur- 
 chaser buys several such lots and takes one conveyance, and only 
 one abstract is delivered, the commission is to be chargeable upon 
 the aggregate prices of the lots. 
 
 2. The commission on an attempted sale by auction in lots is to 
 be chargeable ion the aggregate of the reserved prices. When pro- 
 perty offered for sale by auction is bought in and terms of sale are 
 afterwards negotiated and arranged by the solicitor, he is to be 
 entitled to charge commission according to the above scales on the 
 reserved price where the property is not sold, and also one-half of 
 tire commission for negotiating the sale . When property is bought 
 in and afterwards offered by auction by the same solicitor, he is 
 only to be entitled to the scale for the first attempted sale, and for 
 each subsequent sale ineffectually attempted; he is to charge accord- 
 ing to the present system as altered by Schedule II. hereto. In 
 case of a subsequent effectual sale by auction, the full commission 
 for an effectual sale is to be chargeable in addition, less one -half 
 of the commission previously allowed on the first attempted sale. 
 The provisions of this rule as to commission on sales or attempted 
 sales by auction are subject to the provisions of the Order (?). 
 
 3. Where a solicitor is concerned for both mortgagor and mort- 
 gagee, he is to be entitled to charge the mortgagee’s solicitor’s 
 charges, and one -half of those which would be allowed to the mort- 
 gagor’s solicitor up to 5,000?. and on any excess above 5,000?., 
 one -fourth thereof. 
 
 4. If a solicitor peruses a draft on behalf of several parties 
 
 having distinct interests proper to be separately represented, he 
 is to be entitled to charge 21. additional for each such party after 
 the first. MU 
 
 5. Where a party other than the vendor or mortgagor joins in a 
 conveyance or mortgage, and is represented by a separate solicitor, 
 the charges of such separate solicitor are to be dealt with under the 
 old system as altered by Schedule II. hereto. 
 
 6. Where a conveyance and mortgage of the same property are 
 completed at the same time, and are prepared by the same solicitor, 
 he is to be entitled to charge only half the above fees for investi- 
 gating title, and preparing the mortgage deed, up to 5,000?., and, 
 on any excess above 5,000?., one-fourth thereof, in addition to his 
 full charges upon the purchase -money and his commission for 
 negotiating (if any). 
 
 7. Fractions of 100?., under 50?., are to be reckoned as 50?. 
 Fractions of 100?., above 50?., are to be reckoned as 100?. 
 
 (?) See Re Beck (1883), 24 Pinsent & Co. (1890), 44 Oh. D. 
 Ch. D. 608 ; Ward v. Holmes 303. 
 
 (1886), 32 Ch. D. 209; Re Smith, 
 
 Sales in 
 separate lots. 
 
 Attempted 
 sales — 
 Sale after 
 previous 
 abortive 
 auctions. 
 
 Solicitor 
 acting for 
 both mort- 
 gagor and 
 mortgagee. 
 
 Perusal of 
 drafts for 
 several 
 persons. 
 
 Solicitor 
 acting for 
 person joining 
 in convey- 
 ance, «fec. 
 Conveyance 
 and mortgage 
 prepared by 
 same solicitor. 
 
 How fractions 
 of 100?. to be 
 charged. 
 
544 
 
 Remunera- 
 tion iu small 
 cases. 
 
 Sale subject 
 to incum- 
 brances. 
 
 Transfers of 
 mortgages — 
 F urther 
 charges. 
 
 Commission 
 for conduct- 
 ing sales, &c 
 
 Charges 
 allowed where 
 no commission 
 charged for 
 negotiating- 
 sales, &c. 
 
 BK. I., PT. VIII. — CONVEYANCING COSTS. 
 
 8. Where the prescribed remuneration would, but for this pro- 
 vision, amount to less than 51. the prescribed remuneration shall 
 be 51., except on transactions under 100/., in which cases the remu- 
 neration of the solicitor for the vendor, purchaser, mortgagor, or 
 mortgagee, is to be 3/. (m). 
 
 9. Where a property is sold subject to incumbrances, the amount 
 of the incumbrances is to be deemed a part of the purchase-money, 
 except where the mortgagee purchases, in which case the charge of 
 his solicitor shall be calculated upon the price of the equity of 
 redemption. 
 
 10. The above scale as to mortgages is to apply to transfers of 
 mortgages where the title is investigated, but not to transfers 
 where the title was investigated by the same solicitor on the 
 original mortgage or on any previous transfer; and it is not to 
 apply to further charges where the title has been so previously 
 investigated. As to such transfers and further charges the re- 
 muneration is to be regulated according to the old system as 
 altered by Schedule II. hereto. But the scale for negotiating 
 the loan shall be chargeable on such transfers and further charges 
 where it is applicable. 
 
 1 1 . The scale for conducting a sale by auction shall apply only 
 in cases where no commission is paid by the client to an auctioneer. 
 The scale for negotiating shall apply to cases where the solicitor of 
 a vendor or purchaser arranges the sale or purchase and the price, 
 and the terms and conditions thereof, and no commission is paid by 
 the client to an auctioneer, or estate or other agent. As to a mort- 
 gagee’s solicitor, it shall only apply to cases where he arranges and 
 obtains the loan from a person for whom he acts. In case of sales 
 under the Lands Clauses Consolidation Act, or any other private or 
 public act under which the vendor’s charges are paid by the pur- 
 chaser, the scale shall not apply (n). 
 
 12. In cases where, under the previous portion of this schedule, 
 a solicitor would be entitled to charge a commission for negotiating 
 a sale or mortgage, or for conducting a sale by auction, and he shall 
 not charge such commission, then he shall be entitled to charge the 
 rates allowed by the first column on all transactions up to 2,000/., 
 and to charge in addition those allowed by the second column on all 
 amounts above 2,000/. and not exceeding 5,000/., and further to 
 charge those allowed by the third column on all amounts above 
 5,000/. and not exceeding 50,000/., instead of the rates allowed up 
 to the amounts mentioned in those columns respectively. 
 
 (m) See Re Thomas, Evans v. 
 Griffiths, (1900) 1 Ch. 454. 
 
 (n) See Re Beck (1883), 24 
 Ch. D. 608; Re Wilson (1885), 29 
 Ch. T). 790; Re Merchant Taylors' 
 Co. (1885), 30 Ch. D. 28; Burd 
 v. Burd (1889), 40 Ch. D. 608; 
 
 Re MacGowan, (1891) 1 Ch. 105; 
 Re Withall, (1891) 3 Ch. 8 ; 
 Drielsma v. Manifold, (1894) 3 
 Ch. 100; Re Bur dekin, (1895) 2 
 Ch. 136 ; Cholditch v. Jones, 
 (1896) 1 Ch. 42. 
 
545 
 
 SCALE OF CHARGES FOR LEASES, ETC. 
 
 SCHEDULE I., Part II. 
 
 Scale of Charges as to leases, or agreements for leases (o') at rack 
 rent (other than a mining lease or a lease for building 
 purposes, or agreement for the same). 
 
 Lessor’s solicitor for preparing-, settling, and completing lease and 
 counterpart: — 
 
 Where the rent does not 
 
 exceed 100? 
 
 Where the rent exceeds 
 100?. and does not ex- 
 ceed 500? 
 
 Where the rent exceeds 
 500? 
 
 Lessee’s solicitor for perus- 
 ing draft and completing . 
 
 \ 71. 10s. per cent, on the rental, but 
 \ not less in any case than 5?. 
 
 ( 71. 10s. in respect of the first 100?. 
 
 < of rent, and 21. 10s. in respect of 
 I each subsequent 100?. of rent. 
 
 , 71. 10s. in respect of the first 100?. 
 V of rent, 21. 10s. in respect of each 
 100?. of rent up to 500?., and 1?. 
 I in respect of every subsequent 
 { 1001. 
 
 One -half of the amount payable to 
 the lessor’s solicitor. 
 
 Scale of Charges as to conveyances in fee or for any other freehold 
 estate , reserving rent, or building leases, reserving rent, or 
 other long leases not at rack rent (except mining leases), 
 and agreements for the same respectively : — 
 
 Vendor’s or lessor’s solicitor for preparing, settling, and complet- 
 ing conveyance and duplicate or lease and counterpart: — 
 
 Amount of Annual Rent. 
 
 Amount of Remuneration. 
 
 Where it does not exceed. . hi. 
 Where it exceeds hi. and ) 
 
 dues not exceed ) 
 
 Where it exceeds 51 1. but I , 
 does not exceed ) 0 
 
 Where it exceeds 150/. 
 
 hi. 
 
 ( The same payment as on a rent of hi., and 
 \ also 20 per cent, on the excess beyond hi. 
 I The same payment as on a rent of -50/., and 
 i 10 per cent, on the excess beyond 50/. 
 
 ( The same payment as on a rent of 150/., and 
 \ 5 per cent, on the excess beyond 150/. 
 
 Where a varying rent is payable, the amount of annual rent is 
 to mean the largest amount of annual rent. 
 
 Purchaser’s or lessee’s soli- 
 citor for perusing draft 
 and completing 
 
 ( One-half of the amount payable to 
 l the vendor’s or lessor’s solicitor. 
 
 (o) See Re Emanuel and Sim- McGarel, (1897) 1 Ch. 400; Re 
 monds (1886), 33 Ch. D. 40; Re Gray, (1901) 1 Ch. 239. 
 
 Negus, (1895) 1 Ch. 73 ; Re 
 
 G. — C. 
 
 N N 
 
546 
 
 BK. I., PT. VIII. CONVEYANCING COSTS. 
 
 Charges for 
 abstract of 
 title. 
 
 Solicitor 
 engaged for 
 both parties. 
 
 Mortgagor or 
 mortgagee 
 joining in con- 
 veyance. &c. 
 A third person 
 joining in con- 
 veyance, &c. 
 
 Consideration 
 consisting 
 partly of rent 
 and partly of 
 payment 
 down. 
 
 Fractions 
 of 51 . 
 
 RULES APPLICABLE TO PART II. OF SCHEDULE I. 
 
 As to all Leases or Conveyances at a Rent or Agreements for 
 the same, other than Mining Leases and Agreements therefor. 
 
 1. Where the vendor or lessor furnishes an abstract of title, it 
 is to be charged for according to the old system as altered by 
 Schedule II. 
 
 2. Where a solicitor is concerned for both vendor and purchaser, 
 or lessor and lessee, he is to charge the vendor’s or lessor’s soli- 
 citor’s charges, and one-half of that of the purchaser’s or lessee’s 
 solicitor. 
 
 3. Where a mortgagee or mortgagor joins in a conveyance or 
 lease, the vendor’s or lessor’s solicitor is to charge 11. 1$. extra. 
 
 4. Where a party other than a vendor or lessor joins in a con- 
 veyance or lease, and is represented by a separate solicitor, the 
 charges of such separate solicitor are to be dealt with under the old 
 system as altered by Schedule II. 
 
 5. Where a conveyance or lease is partly in consideration of a 
 money payment or premium, and partly of a rent, then, in addition 
 to the remuneration hereby prescribed in respect of the rent, there 
 shall be paid a further sum equal to the remuneration on a pur- 
 chase at a price equal to such money payment or premium (p). 
 
 6. Fractions of 51. are to be reckoned as 51. 
 
 SCHEDULE II. 
 
 Instructions for and Drawing and Perusing Deeds, Wills, 
 
 AND OTHER DOCUMENTS. 
 
 Such fees for instructions as, having regard to the care and 
 labour required, the number and lengths of the papers to be 
 perused, and the other circumstances of the case, may be fair and 
 reasonable. In ordinary cases, as to drawing, &c., the allowance 
 shall be: — 
 
 For drawing 2s. per folio. 
 
 For engrossing 8 d. ,, ,, 
 
 For fair copying 4 d. ,, ,, 
 
 For perusing Is. ,, ,, 
 
 Attendances. 
 
 s. d. 
 
 In ordinary cases 10 0 
 
 In extraordinary cases the taxing master may increase or 
 diminish the above charge if for any special reasons he shall 
 think fit (</)- 
 
 (v) See He Hobson (1890), 45 (q) See He Mahon and Saver, 
 
 Ch. D. 71. (1893) 1 Ch. 507. 
 
DECISIONS ON THE REMUNERATION ACT AND ORDER. 
 
 547 
 
 Abstracts of Title (where not covered by the above Scale) (r). 
 
 s. d. 
 
 Drawing each brief sheet of 8 folios 6 8 
 
 Fair copy 3 4 
 
 Journeys from Home. 
 
 In ordinary cases for every day of not less than seven £ s. 
 
 hours employed on business or in travelling 5 5 
 
 Where a less time than seven hours is so employed, .per 
 
 hour 0 15 
 
 In extraordinary cases the taxing master may increase or 
 diminish the above allowance if for any special reasons he shall 
 think fit. 
 
 (Signed) Selborne, C. 
 
 Coleridge, C. J. 
 
 G. Jessel, M. R. 
 
 E. Harvey. 
 
 Decisions on the Remuneration Act and Order. 
 
 Be Beck , Be Cartington Estate ((1883), 24 Ch. D. 608). — 
 A vendor’s solicitor is entitled to commission for conducting 
 the sale, and a proper sum for auctioneer’s charges, where the 
 property was offered by public auction but not sold, and after- 
 Avards sold by private contract. 
 
 Be Lacey ((1883), 25 Ch. D. 301). — The Court of Appeal 
 decided that the scale charge could only be made where the 
 work mentioned in the scale has been in substance done. Con- 
 sequently in this case it was held that where the purchaser 
 dispenses with an investigation of the title, and the title 
 is not deduced, the remuneration must be according to 
 schedule II., and not according to the scale allowed in Part I. 
 of schedule I. 
 
 Stanford v. Boberts ((1884), 26 Ch. D. 155). — Notwith- 
 standing the language of the Solicitors’ Remuneration Act, 
 1881, and of the Remuneration Order, Kay, J., held that the 
 scale charge allowed for conveyancing business applied to con- 
 
 ( r ) See Be Lacey (1883), 25 Ch. D. 301; Be Field (1885), 29 
 ■Ch. D. 608 ; Fleming v. Hardcastle (1885), 52 L. T. 851. 
 
 N N 2 
 
548 
 
 BK. I.j PT. VIII. — CONVEYANCING COSTS. 
 
 veyancing work done by a solicitor in connection with an action 
 in the Chancery Division. This rule was adopted by the Court 
 of Appeal in Fleming v. Hardcastle ((1885), 52 L. T. 851),. 
 infra. 
 
 lie Weddall, Farlcer v. Parker ((1884), 29 Sol. Jour. 85). — 
 A solicitor is entitled under rule 11 of schedule I., Part I. 
 {ante, p. 544), to charge a “ negotiating fee ’ where the mort- 
 gagee has been introduced to the mortgagor by another person. 
 In this case one A., solicitor for the mortgagor, wrote to B. 
 asking him if he knew of anyone ready to advance 2,00(B. on 
 mortgage. B. wrote to C., his mother-in-law, and stated that 
 he had gone into the proposed security. C. wrote to Messrs. 
 Weddall asking for their advice. Messrs. Weddall investi- 
 gated the matter, had the property valued, and ultimately, the 
 inquiries being to their satisfaction, C. advanced the money. 
 Pearson, J., held that Messrs. Weddall were entitled to the 
 negotiation fee. 
 
 Re FieM ((1885), 29 Ch. D. 608).— The Court of Appeal 
 decided that a solicitor could not, in addition to the scale charge 
 for a lease, claim separate remuneration for interviews and at- 
 tendances, including journeys, which resulted in the agreement 
 for the lease, and led to the heads of the terms upon which the 
 lease was prepared. 
 
 Re Wilson ((1885), 29 Ch. D. 790). — The Court of Appeal 
 decided that if a solicitor employs a surveyor, to whom the 
 taxing master allows remuneration for preparing plans, divid- 
 ing the property into lots, &c., he (the solicitor) is not entitled 
 to the scale fee for conducting the sale of the property, for in 
 such a case the surveyor lias done, and been paid for, much 
 of what properly constitutes the conduct of a sale. Whether 
 the employment of an auctioneer merely to conduct the sale 
 in the auction room is sufficient to deprive the solicitor of the 
 “conducting fee” is, the court said, a question more difficult 
 to answer, looking to the words of the order, which provides 
 that the remuneration prescribed by schedule I. is not to in- 
 clude auctioneer’s or valuer’s charges. (See also Mood v. Cal- 
 
DECISIONS ON THE REMUNERATION ACT AND ORDER. 
 
 549 
 
 vert (1863), 55 L. T. 53; Drielsmci v. Manifold , (1894) 3 Ch. 
 100; and Cholditch v. Jones , (1896) 1 Ch. 42, infra.) 
 
 In Fleming v. Hardcastle ((1885), 52 L. T. 851) the Court 
 of Appeal decided several points: (1) The act and order 
 apply to conveyancing business in connection with an action 
 in the Chancery Division. This follows Stanford v. Roberts 
 {supra). (2) The scale fee applies even though the title to the 
 whole of the property has not been thoroughly investigated, 
 provided the investigation has proceeded as far as necessary. 
 (Compare Re Lacey , supra.) (3) In a case where the pur- 
 chaser’s solicitor prepares the contract for sale, he is entitled 
 to charge for it under schedule II. in addition to charging the 
 usual scale fee for investigating the title, &c., because the scale 
 fee in favour of the purchaser s solicitor does not include the 
 preparation of the contract. 
 
 In Re Merchant Taylors'’ Company ((1885), 30 Ch. D. 28), 
 the Court of Appeal decided that rule 11 of schedule I., 
 Part I. of the order applies so as to entitle a solicitor to charge 
 the scale fee on a re-investment in land of money paid into 
 court under the Lands Clauses Consolidation Act. 
 
 Ward v. Holmes ((1886), 32 Ch. D. 209). — The provision in 
 schedule I., Part I. of the order, under which a solicitor who, 
 after an attempted ineffectual sale by auction, subsequently 
 carries through a successful sale, is entitled to a full commis- 
 sion for an effectual sale less one-half the commission allowed 
 on the unsuccessful attempt, only applies where the same soli- 
 citor acts on both occasions; and when there is a change of 
 solicitor the new solicitor will not get any costs for the abortive 
 sale, which must be dealt with under rule 2 (c) of the general 
 order. 
 
 Re Emanuel and Simmonds ((1886), 33 Ch. D. 40).— The 
 scale allowance for leases includes any preliminary agreement 
 for the lease, so that a solicitor who prepares such an agree- 
 ment for a lease, and then the lease, is only entitled to the scale 
 charge . 
 
 Re Allen ((1887), 34 Ch. D. 433). — The election under 
 clause 6 of the general order {ante, p. 540) to charge on the 
 
550 
 
 BK. I.j PT. VIII. — CONVEYANCING COSTS. 
 
 old plan must be made before the business is undertaken. It 
 is too late to elect after writing a letter as preliminary to the 
 business. 
 
 Ex parte Mayor of London ((1887), 34 Ch. D. 452). — There 
 may be an “ investigation into title' which will entitle a 
 solicitor to charge therefor, although no abstract of title is 
 produced, as is done in ordinary cases. 
 
 Hester v. Hester ((1887), 34 Ch. D. 607). — It is too late 
 to elect to receive the old remuneration after having done any 
 work in the matter for which a charge could be made did the 
 scale not apply. (See also Re Steivart ((1889), 41 Ch. D. 
 494, infra.) 
 
 Re Metcalfe ((1887), 57 L. J. Ch. 82). — It is too late to 
 elect to receive the old remuneration after conferring with the 
 client as to the mode of sale and title. 
 
 Re Eley ((1887), 37 Ch. D. 40). — A solicitor who merely 
 introduces the parties between whom a loan is afterwards ar- 
 ranged cannot claim the negotiating fee. (But see Gradwell 
 v. Aitchison (1893), 10 Times L. R. 20, ante, p. 253.) 
 
 Re Robertson ((1887), 19 Q. B. D. 1).— A solicitor making 
 advances to a client on the security of real property cannot 
 charge Is. per folio for perusing the title deeds. 
 
 Re Martin ((1889), 41 Ch. D. 381). — The remuneration of a 
 lessor’s solicitor does not cover negotiations carried on by him, 
 as to letting the property, with persons other than the person 
 to whom the lease is ultimately granted. 
 
 Re Stewart ((1889), 41 Ch. D. 494). — “Undertaking busi- 
 ness,” within rule 6 of the general order, means not merely 
 accepting the retainer, but entering upon the work, i.e., doing 
 something for which the solicitor is entitled to make a charge. 
 
 Newbould v. Bailward ((1888), 14 App. Cas. 1). — When on 
 a sale the auctioneer’s commission is paid by the client, rule 11 
 does not deprive the solicitor of all remuneration for work done 
 in respect of the conduct of the sale, but he is entitled for such 
 work as on a quantum meruit. (See also Burd v. Burd ((1889), 
 
DECISIONS ON THE REMUNERATION ACT AND ORDER. 
 
 551 
 
 40 Ch. D. 628) and Drielsma v. Manifold ((1894) 3 Ch. 
 
 100 ).) 
 
 Salthouse v. Reade ((1889) W. N. 26). — The taxing master 
 may increase or diminish the charges not only for “attend- 
 ances’ but for drawing documents, and “documents’ includes 
 particulars of sale. 
 
 Re Montague , Scott and Baker ((1889) W. N. 40). — An 
 agreement with the client as to remuneration under sect. 8 of 
 the Solicitors’ Remuneration Act, 1881, must be for a lump 
 sum, or a commission in lieu of, and not in addition to, the 
 solicitor’s remuneration. 
 
 Re Smith, Pinsent & Co. ((1890), 44 Ch. D. 303). — The 
 cost of an attempted ineffectual sale of property, when there is 
 no probability of the sale being effected for years to come, 
 should be taxed under rule 2 of the general order. 
 
 Re Robson ((1890), 45 Ch. D. 71). — When a lease is granted 
 partly in consideration of a premium and partly of a rent, the 
 lessor’s solicitor is entitled to the scale fee under rule 5 in 
 respect of the premium, even though no abstract of the lessor’s 
 title is furnished to the lessee. 
 
 Re Palmer ((1890), 45 Ch. D. 291). — A mortgagor who em- 
 ploys a solicitor to negotiate a loan is a “ client ” within s. 1 
 of the act. 
 
 Re Mahon and Sayer ((1893) 1 Ch. 507). — In taxing con- 
 veyancing costs the taxing master should allow 10s. for 
 ordinary attendances, and more or less for an extraordinary 
 attendance. (2) For drawing case for counsel, the taxing 
 master should allow 2s. per folio under schedule II., Part II. 
 
 Drielsma v. Manifold ((1894) 3 Ch. 100). — Where a soli- 
 citor does all the work in connection with a sale by auction 
 except taking the bids, and the auctioneer is paid a fixed sum 
 for each lot sold, and a fixed sum for each lot unsold, such 
 payments constitute a “commission” within rule 11 of sche- 
 dule I., Part I., and prevent the solicitor charging his client 
 with the conducting fee, though he is entitled to charge a 
 quantum meruit for the work done. 
 
BK. I., PT. VIII. — CONVEYANCING COSTS. 
 
 Re Earnshaiv Wall ((1894) 3 C'h. 156). — The scale fee ap- 
 plies on the sale of an advowson in gross, such property being 
 freehold within the meaning of schedule I., Part I. 
 
 Re Read ((1894) 3 C'h. 238). — Where a purchaser of land 
 resells a part before completion, his solicitor is entitled to charge 
 the scale fee on the whole of the original purchase-money if the 
 purchase and resale are in substance separate and distinct 
 transactions. The case also decides that the cost of a ‘‘plan” 
 copied by a law stationer on a conveyance is a law stationer’s 
 charge within the meaning of clause 4 of the general order. 
 
 Re Hagan's Estate ((1894) 1 Ir. P. 503). — In determining 
 what is a “building lease” within the general order regard 
 must be had to the circumstances of the contract, the subject- 
 matter of the demise, and the nature and extent of the expendi- 
 ture to be made. 
 
 Re Negus ((1895) 1 Ch. 73).— An agreement in writing for 
 a tenancy of less than three years is a lease or an agreement for 
 a lease within schedule I., Part II., so as to entitle the solicitor 
 to the scale charge allowed by that schedule, but there must be 
 deducted from the lessor’s solicitor’s charges to be paid by the 
 lessee a sum representing the costs of the counterpart. This 
 case was followed in Re Gray , (1901) 1 Ch. 239. 
 
 Re Burdekin ( (1895) 2 Ch. 136). — Rule 11 {ante, p. 544) 
 applies to a sale to a local board for the purposes of the Public 
 Health Act, 1875, even though the agreement provides for the 
 payment of costs over and above those mentioned in s. 82 of the 
 Lands Clauses Act, 1845. 
 
 Re Bir chain d Co. ((1895) 2 Ch. 786). — A deed whereby a 
 company conveys its property to trustees to secure to the holders 
 of a proposed issue of debentures the amount of their advances 
 where no debentures are issued and no money is raised thereon, 
 is not a “completed mortgage ” within the meaning of 
 clause 2 (a) of the general order. 
 
 Cholditch v. Jones ((1896) 1 Ch. 42). — Where a purchaser 
 in pursuance of the conditions of sale pays a fee to the auc- 
 
DECISIONS ON THE REMUNERATION ACT AND ORDER. 
 
 553 
 
 tioneer, the solicitor for the vendor cannot claim the conducting’ 
 fee. 
 
 Re Sanders' Settlement ((1896) 1 Ch. 480). — xX grant of a 
 new easement is not a, “ conveyance of property within 
 schedule I., Part I., of the order, and the scale fee prescribed 
 by the schedule does not govern the remuneration of the 
 solicitor in relation to such a transaction. Schedule I., Part I., 
 applies to cases in which an existing property or right is trans- 
 ferred, not to cases in which a new right or easement is created 
 for the first time. 
 
 Still v. Webb ((1897) 1 Ch. 144). — Where the sale of a 
 leasehold house is carried out by way of underlease a solicitor 
 is not entitled to the scale charge under Part II. of schedule I., 
 but his remuneration depends on the work done. 
 
 Re McGarel ((1897) 1 Ch. 400). — The scale charge to which 
 a solicitor for a lessor is entitled when the rent reserved by a 
 lease is 350 1. is 12 1. 10s. only — that is to say, he is, under 
 Part I. of schedule I., entitled to 71. 10s. for the first 100?., 
 21. 10s. for the second 100?., and 21. 10s. for the third 100?., 
 and nothing for the 50?. In other words, a percentage charge, 
 though allowed for sums under 100?. up to the first 100?. of 
 rent, is not allowed afterwards. 
 
 Re Grey and Curtice ((1899) 1 Ch. 121).— The scale fee 
 allowed under schedule I., Part I., for investigating the title 
 to freehold property and preparing and completing conveyance 
 includes the costs of registering the conveyance in the Middle- 
 sex Registry. 
 
 Re Baillie & Co. ((1899), 15 Times L. R. 277). — Where A. 
 purchases property from X., and at once resells it to B., and X. 
 conveys the property directly to B., A/s solicitor is not entitled 
 to two scale fees — one for acting for B. as purchaser and 
 another for acting for him as vendor — but to the scale fee for 
 acting for A. as vendor and a remuneration for any work done 
 acting for him as purchaser. 
 
 Re Thomas, Evans v. Griffiths ((1900) 1 Ch. 454). — Where 
 freehold property held under one title is sold by auction in lots, 
 
554 
 
 BK. I.j PT. VIII. — CONVEYANCING COSTS. 
 
 and separate abstracts are delivered to the respective purchasers, 
 the sale of each lot is a separate transaction within rule 8 of 
 schedule I., Part I. {ante, p. 544), and the prescribed remu- 
 neration to which the solicitor for the vendor is entitled is 
 31. in respect of each transaction under lOOL 
 
 Re Norris ((1902) 1 Ch. 741). — A solicitor is entitled to the 
 scale fee for negotiating a mortgage even in cases in which he 
 himself advances the mortgage money. 
 
 Re Webster and Jones ((1902) 2 Ch. 551). — A vendor’s 
 solicitor who on a sale of leasehold property simply delivers an 
 abstract of the lease under which the vendor holds, does not 
 “deduce” title, and is consequently not entitled to charge the 
 scale fee. 
 
 Re Romain ((1903) 1 Ch. 702). — To be entitled to the scale 
 fee for negotiating a purchase or sale, a solicitor must sub- 
 stantially do the whole of the negotiation, and to be entitled 
 to the scale fee for investigating title and preparing and 
 completing conveyance on a purchase, or on a sale for deducing 
 title and perusing and completing conveyance, he must do 
 respectively all those things. 
 
 Re Baylis ((1907) 2 Ch. 54). — Where a lease contains a 
 covenant by the lessor to grant renewals “ at the request, cost 
 and charges of” the lessee, the lessor must be indemnified 
 against costs reasonably incurred in investigating the title of 
 a lessee applying for a renewal, such costs not being covered 
 by the scale fee for “preparing, settling and completing a 
 lease and counterpart” under the General Order of 1881 . 
 
 Re Simmons' Contract ((1908) 1 Ch. 452). — The owners 
 of five houses granted separate leases of them on the same day 
 to the same lessee, each lease containing an option to purchase. 
 If the lessee exercised the option he was to pay all the legal 
 and other expenses of the lessors as vendors. 'The lessee exer- 
 cised his five options by one letter, received one abstract of 
 title, and asked for one conveyance, including all the houses. 
 The vendor’s solicitor cannot charge scale fee for deducing title 
 and perusing and completing conveyance in respect of each 
 house. 
 
555 
 
 Book II. 
 
 CONVEYANCING 
 
 UNDER THE 
 
 LAND TRANSFER ACTS. 
 
 INTRODUCTION. 
 
 The cumbrousness of the existing system of transferring 
 interests in land in England — the difficulty, expense and delay 
 which the investigation of the title of the transferor required 
 by the system involves, while still not affording a complete 
 safeguard against fraud, has for generations past caused re- 
 formers to cast about for some simpler and less expensive 
 method of procedure. The alternative put forward has always 
 been registration of land of some kind or another ( a ) . Of 
 systems of land registration there are two principal kinds: — 
 (1) Registration of assurances , i.e., the entry on a public regis- 
 ter of conveyances, mortgages and other deeds or instruments 
 by which the transfer of land is effected under the old system 
 of conveyancing; and (2) Registration of title, i.e., a system 
 under which the mere entry of a person upon a public register 
 as the owner of land gives him the legal title without any con- 
 veyance such as is now necessary, and enables him to deal with 
 
 (a) For a history of the subject, see Morris, Land Registration, 
 W. Clowes & Sons, London, 1895. 
 
 L und regis- 
 tration 
 has two 
 meanings : 
 
 (1) Regis- 
 tration of 
 assurances ; 
 
 (2) Regis- 
 tration of 
 title. 
 
556 
 
 BK. II. REGISTRATION OF TITLE. 
 
 Object of 
 registration 
 of deeds. 
 
 Object of 
 registration 
 of title. 
 
 History of 
 the subject. 
 
 25 & 26 Viet, 
 c. 53. 
 
 Failure of 
 first act. 
 
 the land by way of sale, mortgage, or otherwise, without the 
 necessity of proving on each occasion that he is in fact the 
 proprietor. 
 
 A system of registration of assurances has been in force in 
 certain localities of England for 200 years or more in the shape 
 of the Middlesex and Yorkshire Registries, while registration 
 of particular classes of assurances, in whatever part of the 
 country the land to which they relate is situate, has been 
 made requisite by various statutes, such as the Pines and 
 Recoveries Act, 1833, and the Mortmain and Charitable Uses 
 Act, 1888. This system cannot be said to have done anything 
 to cheapen the transfer of land ; on the contrary, it has probably 
 added a good deal to its expense. Its only object is to give 
 public notice of the way in which the land has been dealt with, 
 with a view to affording a safeguard against fraud. 
 
 The system of registration of title is a more modern concep- 
 tion, the object of which is to make the transfer of land as 
 nearly as possible as cheap and easy as the transfer of stocks 
 and shares and other personal property. It is this system that 
 we have now to discuss. 
 
 The idea seems to have been first suggested by Mr. T. G. 
 Fonnereau, a London solicitor of some distinction in his time, 
 in his reply to the general inquiry issued by the Real Property 
 Commission appointed in 1828 to inquire into the evils of the 
 then existing' system of conveyancing (5) ; but the system was 
 not adopted into our law until 1862, when Lord Westbury suc- 
 ceeded in passing the act 25 & 26 Viet. c. 53, entitled “ An 
 Act to facilitate the Proof of Titles and the Conveyance of 
 Real Estate,” which became known in consequence as Lord 
 Westbury’s act. 
 
 The system of registration of title established by this act 
 proved a complete failure in practice. So far from facilitating 
 the transfer of land, the delay and expense involved in regis- 
 tering under it were many times greater than under the 
 ordinary system of private conveyance, while it offered no 
 
 (6) See Second Report of the of Fonnereau’s life, see “Law 
 Real Property Commissioners, 11, Notes,” vol. xxii. 46. 
 
 97, and 220. For a short account 
 
INTRODUCTION. 
 
 557 
 
 security whatever against fraudulent entries on the register. 
 Only 410 titles were ever registered under it, and during the 
 later years of its operation the business of the registry came 
 almost to a standstill. 
 
 The failure of Lord Westbury’s act resulted, in 1868, in 
 the appointment of a royal commission, which, after a lengthy 
 inquiry into its defects, issued a report in 1870 suggesting 
 various amendments. Several attempts to give effect to the 
 report were made, but without success, till, in 1875, Lord 
 Cairns obtained the assent of Parliament to the Land Transfer 
 Act, 1875. 
 
 This act, however, was no more successful than its prede- 
 cessor, and it became evident that the public would never volun- 
 tarily adopt the system. Its advocates therefore proposed that 
 it should be made compulsory. With this object various bills 
 were introduced into parliament between 1887 and 1895. Each 
 of these bills proposed to make the system universally com- 
 pulsory, and was open to other serious objections, and each 
 was vigorously opposed, principally by the Law Societies and 
 Bankers’ Associations. The bill of 1895 was, in consequence 
 of this opposition, referred to a select committee of the House 
 of Commons, and as a result of their deliberations, in the year 
 1897 a new bill was introduced, which conceded most of the 
 objections which had been urged against the others, and this 
 duly passed and became the Land Transfer Act, 1897. 
 
 Sect. 20 of the act provides that the area within which 
 registration is to be made compulsory is to be defined by order 
 in council, and before any such order is made, a draft is, six 
 months jmeviously, to be submitted to the council of the count}’ 
 which is to be affected, and must obtain the approval of the 
 council before becoming effective. Pursuant to this provision 
 orders have been made and are now in force applying the system 
 compulsorily to the administrative county of London (which 
 expression includes the City), as will be found more fully 
 explained below ( c ) . 
 
 The whole of the law on the subject is now contained in 
 the acts of 1875, 1886, and 1897, and the rules of 1903, 1907, 
 
 The Laud 
 Transfer Act, 
 1875. 
 
 38 & 39 Viet, 
 c. 87. 
 
 Proposal to 
 make the 
 system com- 
 pulsory. 
 
 The Land 
 Transfer Act, 
 1897. 
 
 60 & 61 Viet, 
 c. 65. 
 
 The compul- 
 sory clause. 
 
 Summary of 
 authorities. 
 
 (c) pp. 653 et seq. 
 
558 
 
 BK. II. REGISTRATION OF TITLE. 
 
 The Land 
 Registry and 
 its officers. 
 
 Powers of the 
 registrar : 
 
 generally. 
 
 To administer 
 oaths, issue 
 summonses, 
 allow costs, 
 and compel 
 production of 
 documents. 
 
 and 1908, made under their provisions. In the following pages, 
 where not otherwise stated, reference to a section by number 
 is to a section of the act of 1875, and reference to a rule by 
 number is to the rules of 1903 (d). 
 
 The Land Registry. 
 
 Provision is made by ss. 5, 106, and 107 of the act of 1875, 
 for the establishment of the land registry, and for the appoint- 
 ment and qualifications of the registrar and other officers, and 
 for an office seal. The present registry is situate in Lincoln s 
 Inn Fields, London. The registrar must be a barrister of not 
 less than ten years’ standing, and an assistant registrar must 
 be either a barrister or solicitor or certificated conveyancer of 
 not less than five years’ standing. 
 
 Subject to the provisions of the act, the registrar conducts 
 the whole business of registering land under the act; he may 
 frame and cause to be printed and circulated or otherwise pro- 
 mulgated such forms and directions as he may deem requisite 
 or expedient for facilitating proceedings (e) ; and wide powers 
 as to extending time, relaxing general rules, and so forth, are 
 given him by rule 341, and of settling doubtful or disputed 
 questions by rule 337. 
 
 By s. 109, the registrar or any officer of the registry office 
 authorized by him in writing, may administer an oath or take a 
 voluntary declaration for any of the purposes of the act, and 
 the registrar may, by summons under the seal of the office, 
 require the attendance of all such persons as he may think fit 
 in relation to the registration of any title; and may also, by 
 a like summons, require any person having the custody of any 
 map, survey, or book made or kept in pursuance of any act of 
 parliament to produce such map, survey, or book for his in- 
 spection; he may examine upon oath any person appearing 
 before him and administer an oath accordingly; and he may 
 allow to every person summoned by him the reasonable charges 
 
 (d) These rules, which came into of 1898, June, 1899, and February, 
 force on the 1st January, 1904, 1903. 
 
 rescind the Land Transfer Rules (e) s. 108. 
 
THE LAND REGISTRY — DISTRICT REGISTRIES. 
 
 559 
 
 of his attendance. Any charges allowed by the registrar in 
 pursuance of this section are deemed to be charges incurred in 
 or about proceedings for registration of land, and may be dealt 
 with accordingly. If any person, after the delivery to him 
 of such summons, wilfully neglects or refuses to attend or to 
 produce such documents as he may be required to produce, or 
 to answer such questions as may be lawfully put to him by 
 the registrar, he incurs a penalty not exceeding twenty pounds, 
 to be recovered on summary conviction; but no person is re- 
 quired to attend in obedience to any summons or to produce 
 documents unless the reasonable charges of his attendance and 
 of the production of such documents be paid or tendered to 
 him (/) . 
 
 And by s. 8 of the act of 1897, the registrar has the same 
 power of compelling production of land certificates and office 
 copy documents, and by rule 333 he has like powers with regard 
 to the issue of summonses in respect to any proceeding in the 
 registry . 
 
 Neither the registrar nor any of his subordinates is liable to 
 any action in respect of any act bond fide done or omitted in the 
 exercise of the powers of the acts or rules (g ) . 
 
 By s. Ill of the act of 1875, and s. 22 (2) of the act ;of 
 1897, provision is made for the making of rules. These are to 
 be made by the Lord Chancellor, with the advice and assistance 
 of the registrar, a judge of the Chancery Division of the High 
 Court to be chosen by the judges of that division, and three 
 other persons — one to be cbosen by the general council of the 
 bar, one by the Board of Agriculture, and one by the council 
 of the Law Society. The matters in respect of which rules may 
 be made are set out in ss. Ill and 112 of the act of 1875, and 
 s. 22 (6) of the act of 1897. 
 
 To compel 
 production of 
 land certifi- 
 cates. 
 
 Indemnity of 
 registrar. 
 
 Rule Com- 
 mittee. 
 
 District Registries. 
 
 Provision is made by ss. 118 to 122 inclusive of the act of 
 1875 for the creation of district registries, the qualifications of 
 
 Power to 
 establish 
 district 
 registries. 
 
 (/) s. 110; see also rules 332 and 333. 
 
 (g) s. 86. 
 
EK. II. REGISTRATION OF TITLE. 
 
 560 
 
 district and assistant district registrars, a seal for the district 
 registry, the powers of, and appeals from, a district registrar, 
 &c. No district registry, however, has as yet been created; and 
 it is not likely that any will be created while compulsory regis- 
 tration is confined to the administrative County of London. 
 
 The Register. 
 
 Consists of 
 
 three 
 
 portions. 
 
 The Property 
 Register. 
 
 The Pro- 
 prietorship 
 Register. 
 
 The Register consists of three portions, called the Property 
 Register, the Proprietorship Register, and the Charges Regis- 
 ter. The title to each registered property bears a distinguishing 
 number (h). 
 
 The Property Register contains the description of the land 
 comprised in the title, with a reference to the general map or 
 to the filed plan thereof, and such notes as have to be entered 
 relating to the ownership of the mines and minerals; to exemp- 
 tion from any of the liabilities, rights, and interests mentioned 
 in s. 18 of the act of 1875, as amended by the act of 1897 (i); 
 to easements, rights to profits a prendre , conditions and cove- 
 nants for the benefit of the land, and other like matters (k ) . 
 When pieces of land are added to or are removed from the pro- 
 perty, the addition or removal is, where it is practicable, noted 
 in the Property Register and shown on the general map or 
 marked upon the filed plan (Z). In the case of leasehold land, 
 there is entered on the Property Register a reference to the 
 registered lease, and such particulars of the lease, and of the ex- 
 ceptions or reservations therefrom (if any) as the applicant may 
 desire, and the registrar approve, and a reference to the lessor’s 
 title, if registered (m) . 
 
 The Proprietorship 1 Register states the nature of the title, 
 and contains the name, address, and description of the proprie- 
 tor of the land, and cautions, inhibitions, and restrictions af- 
 fecting his right of disposing thereof ( n ) . 
 
 (/#.) Rule 2 amended by rules of 
 1907. 
 
 (7) See as to these below, p. 580. 
 (7r) Rule 3 amended by rules of 
 1907. 
 
 (7) Rule 4 amended by rules of 
 1907. 
 
 (m) Rule 5. 
 
 (??) Rule 6. 
 
THE REGISTER. 
 
 561 
 
 The Charges Register contains incumbrances prior to regis- 
 tration, and subsequent charges, and other incumbrances (in- 
 cluding notices of leases and of estates in dower or by the 
 curtesy), and such notes as have to be entered relating to cove- 
 nants, conditions, and other rights adversely affecting* the land; 
 and also contains all such dealings with registered charges and 
 incumbrances as are capable of registration (o) . Charges and 
 other incumbrances may, if the registrar thinks fit, be entered 
 in a separate book, and if so entered are referred to in the 
 Charges Register. Subsequent dealings therewith are regis- 
 tered by being entered in the book wherein the charge or incum- 
 brance is registered (p) . 
 
 When there are several entries in the register affecting por- 
 tions of the land comprised in a title or charge, a plan may be 
 made showing the portions affected by each entry, and such 
 plan may be referred to in the register (g) . 
 
 Any landowner who desires it may have the register of his 
 title bound in a separate volume on such terms (if any) as the 
 registrar may think fit (r) . 
 
 An index map which shows the position and extent of every 
 registered property by means of a tint of colour, together with 
 the number of the title under which it was first registered, is 
 kept in the registry. There is a separate index map of lease- 
 hold titles and of lands affected by the registration of incor- 
 poreal hereditaments; but where the position and extent of a 
 registered property are shown in the general map and parcels 
 book, these are not shown in the index map. An index of pro- 
 prietors’ names in alphabetical order, showing the numbers of 
 the titles, charges, or incumbrances of which the several persons 
 appearing in it are proprietors, is also kept. It is kept up to 
 date by cancelling the obsolete names and numbers, as well as 
 by making all necessary additions from day to day (s ) . A list 
 is also kept of pending applications to enter land in the register. 
 
 (o) Rule 7. 
 
 (p) Rule 8. 
 
 (q) Rule 10. 
 
 (r) Rule 11. 
 
 ( s ) Rule 12 amended by rules 
 of 1907. 
 
 The Charges 
 Register. 
 
 Several 
 entries 
 affecting one 
 title. 
 
 Separate 
 
 register. 
 
 Indexes. 
 
 G. — C. 
 
 0 O 
 
562 
 
 BK. II. REGISTRATION OF TITLE. 
 
 Errors and 
 alterations. 
 
 General map 
 and parcels 
 book. 
 
 How far open 
 to public 
 inspection. 
 
 showing the parish or place, the name of the applicant, and the 
 number of the application in each case (t). 
 
 Provision is made for the correction of errors and making 
 alterations in the register, plans and documents (u ) . 
 
 The ordnance map on the largest scale published is the basis 
 of all registered descriptions of land (x ) ; but there is also kept 
 in the registry a series of maps which together are called the 
 Land Registry general map, each of which is either (a) an 
 extract from the ordnance map revised and corrected to such 
 extent as may be necessary; or (b) a map based on, and uni- 
 form with, the ordnance map, and so constructed that every 
 parcel shown on it can be accurately located on the ordnance 
 map (y). There is also kept a book called the parcels book, 
 containing the reference numbers of the parcels shown on the 
 general map, and showing with regard to each of such parcels 
 the numbers of the titles and of the cautions against first regis- 
 tration (if any) relating to it (z ) . Provision is made by the 
 rules for preparing maps and plans, fixing and defining boun- 
 daries, and generally describing land on the register (a) . 
 
 The index maps, general map, parcels book and the list of 
 pending applications (but no other book, map, plan, or docu- 
 ment) are open to general public inspection at any time during 
 office hours. The index of proprietors’ names is open to the 
 inspection of the registered proprietors only; but if any person 
 satisfies the registrar that he is interested generally in the pro- 
 perty of any proprietor — for instance, as his trustee in bank- 
 ruptcy, or his executor or administrator — he may inspect that 
 index also (5). 
 
 What Property may be Registered. 
 
 Freehold and 
 
 leasehold 
 
 land. 
 
 The acts do not apply to Scotland or Ireland, and land 
 cannot be registered unless it is of freehold tenure or is lease- 
 hold held under a lease which is either immediately or 
 mediately derived out of land of freehold tenure; but for the 
 
 (t) Rule 13. 
 
 ( u ) Rules 15, 16 and 17 
 
 (x) Rule 269 of 1907. 
 
 (y) Rule 269a of 1907. 
 
 (z) Rule 269b of 1907. 
 
 (a) See rules 270 to 282 as 
 amended by the rules of 1907. 
 
 (b) Rule 14 and rule 269c of 
 1907. 
 
WHAT PROPERTY MAY BE REGISTERED. 
 
 563 
 
 purposes of the act customary freehold, in any case in which 
 an admission or any act by the lord of the manor is necessary 
 to perfect the title of a purchaser from the customary tenant, 
 is not to be deemed to be land of freehold tenure (c) . 
 
 It will be seen from this section that it is not every species 
 of interest in land that can be registered. Copyholds and cus- 
 tomary freeholds to which an admission by the lord of the 
 manor is necessary form a very important exception. To them 
 the act does not apply, and they continue to be transferred in 
 the accustomed manner. An important qualification is, how- 
 ever, made to this by schedule I. of the act of 1897, which 
 provides that: — If at any time land is found to have been 
 registered with absolute or qualified title contrary to the pro- 
 visions of this section, the registration shall not be annulled, 
 but shall be deemed an error not capable of rectification under 
 the principal act, and any person suffering loss thereby shall 
 be indemnified accordingly. 
 
 The following is a list of the estates and interests in land 
 and other real property which are capable of registration: — 
 
 (a) Freehold land, except such customary freeholds as are 
 
 mentioned in the section above set out(c). 
 
 (b) Freeholds intermixed with copyholds, a note being made 
 
 on the register to the effect that it is doubtful whether 
 the land is freehold or copyhold, and that the regis- 
 tration is made without prejudice (d). 
 
 (c) Leasehold land , held under a lease or sub-lease (other 
 
 than a term created for mortgage purposes) for life, 
 or for years, of which twenty-one are still unex- 
 pired, derived out of freehold land (e). 
 
 (d) Manors, advowsons, rents, tithes, and other incorporeal 
 
 hereditaments, mines and minerals severed from the 
 land, cellars, flats, and similar hereditaments, and 
 undivided shares in land (/) . 
 
 (c) Act of 1875, s. 2. act of 1897, sched. I. 
 
 (d) Act of 1875, s. 67, and rule (/) Act of 1875, s. 82, act of 
 
 87. 1897, sched. I., and rules 71 to 77. 
 
 (e) Act of 1875, ss. 2 and 11, 
 
 o o 2 
 
 Copyholds 
 and cus- 
 tomary free- 
 holds cannot 
 be registered 
 
 Estates and 
 interests 
 capable of 
 registration. 
 
564 
 
 BK. II. REGISTRATION OF TITLE. 
 
 Beneficial 
 
 owners. 
 
 Trustees and 
 others having 
 a power of 
 sale. 
 
 (e) Settled land (g). 
 
 (f) Land granted subject to » covenants and a perpetual rent . 
 
 In many parts of the country, especially in the West 
 and North, land is commonly granted, and also sub- 
 granted, in fee simple, for building purposes at per- 
 petual rents and sub-rents instead of on lease. Either 
 the land or the rent can in such a case be regis- 
 tered ( h ). 
 
 Who may apply for Registration of Freeholds. 
 
 Sect. 5 of the act of 1875 prescribes that the following per- 
 sons may apply to be registered: — 
 
 (1 .) Any jaerson who has contracted to buy for his own bene- 
 fit an estate in fee simple in land, whether subject 
 or not to incumbrances, provided the vendor consents 
 to the application; 
 
 (2.) Any person entitled for his own benefit at law or in 
 equity to an estate in fee simple in land, whether 
 subject or not to incumbrances; and 
 
 (3.) Any person capable of disposing for his own benefit by 
 way of sale of an estate in fee simple in land, whether 
 subject or not to incumbrances. 
 
 There may also be registered — 
 
 (4.) Any person holding land on trust for sale, and any 
 trustee, mortgagee, or other person having a power 
 of sale, may be registered — with the consent of the 
 jDersons (if any) whose consent is necessary to the 
 exercise of the trust or power (i). In such case the 
 costs are to be deemed costs incurred in the execution 
 of the trust or in pursuance of the power (A;); 
 
 ( g ) Act of 1875, s. 68, act of 
 1897, s. 6, and rules 78 to 82. 
 
 (A) Act of 1875, s. 82. 
 
 ( i ) In the case of land held for 
 charitable uses, which cannot be 
 sold without the consent of the 
 Charity Commissioners or Board 
 of Education, the administering 
 
 trustee, with the consent of the 
 Charity Commissioners or Board 
 of Education, as the case may be, 
 or the Official Trustee of Charity 
 Lands, may be registered. See 
 rules 83 to 86. 
 
 (k) Act of 1875, s. 68, infra > 
 pp. 630, 631. 
 
WHO MAY APPLY FOR REGISTRATION OF FREEHOLDS. 
 
 565 
 
 (5.) Any two or more persons entitled for their own benefit 
 concurrently or successively, or partly in one mode 
 and partly in another (Z); and 
 
 (6.) A “ tenant for life’ under the Settled Land Acts has 
 the option either to have the settled land registered in 
 his own name, or, where there are trustees with powers 
 of sale, in the names of those trustees, or, where there 
 is ,an (Overriding power of appointment of the fee 
 simple, in the names of the persons in whom that 
 power is vested. The beneficiaries must be protected 
 by the registration of “restrictions” regulating 
 dealings with the land and the disposal of the pur- 
 chase-moneys on any sale. If the trustees of the 
 settlement do not do this, the registrar must (m ) . 
 
 In any of these cases the applicant may apply to be himself 
 registered, or to have registered in his stead any nominee or 
 nominees as proprietor or proprietors of such freehold land (n). 
 
 How to apply for Registration of Freeholds. 
 
 A person who has bought a piece of land in fee simple and 
 desires to have his title registered may be registered with either 
 an absolute or possessory title; but if the vendor has not yet 
 executed the conveyance his consent to the registration must be 
 obtained (o). 
 
 (a) With Absolute Title. 
 
 A person desiring to. register his land with an absolute title 
 must proceed as follows: — 
 
 He must deliver at the registry either: — 
 
 (i) a written application to the effect of Form 1, or, 
 
 (ii) if the registrar thinks fit, the draft entries for the 
 
 register, approved by the applicant or his solicitor (p ) . 
 
 (l) Ibid. s. 69 ; Act of 1897, (n) Act of 1875, s. 5, as 
 
 s. 14, and rule 77. amended by act of 1897, s. 14. 
 
 (m) Act of 1897, s. 6, and rules (o) Act of 1875, s. 5. 
 
 78 to 82. (p) Rule 18 of 1908. 
 
 Joint owners. 
 
 Tenants 
 for life. 
 
 Nominees. 
 
 Method of 
 application 
 for registra- 
 tion. 
 
 Procedure on 
 application 
 for registra- 
 tion with 
 absolute title. 
 
566 
 
 BK. II. REGISTRATION OF TITLE. 
 
 The form is as follows: — 
 
 Land Registry. 
 
 Land Transfer Acts, 1875 and 1897. 
 
 I, A. B., of &c., hereby apply for registration as proprietor, with 
 absolute (or possessory) title, of the freehold property in the parish 
 of in the county of described in the accompanying 
 
 conveyance (or other instrument , as the ease may be) dated the 
 of , made between C. D. of the one part and myself (or 
 
 E. F. of, &c.) of the other part (or shown and edged with red on 
 the accompanying plan, or other particulars sufficient to enable the 
 property to be fully identified on the ordnance map or land 
 registry general map), and I declare as follows: — 
 
 1. (Where the applicant is a purchaser on sale.) I purchased 
 
 the property from the said C. D. on the of , and paid 
 
 the whole of the purchase money of £ to him (or otherwise 
 
 as the case may be), G. H., of , solicitor, acting as my 
 
 solicitor in the matter. 
 
 or ( when the applicant is not a purchaser on sale) 
 
 I have been in possession (or receipt of the rents and profits) of 
 the property for upwards of years. 
 
 2. I am entitled for my own benefit to the fee simple in the 
 property (or otherwise as the case may be) and am not aware of 
 any contract or agreement for sale, or of any mortgage, charge, 
 lien, lease, agreement for lease, restrictive covenant, or other in- 
 cumbrance (if so, except as stated in the said conveyance or in 
 the schedule hereto) affecting the property or any part thereof. 
 
 3. I am not aware of any question or doubt affecting the title 
 to the property or any part thereof, or of any matter or thing 
 whereby the title is or may be impeached, affected, or called in 
 question in any manner whatsoever. 
 
 4. The deeds and documents mentioned in the accompanying list 
 signed by me and dated, &c., are all the deeds and documents 
 relating to the title which I have in my possession or under my 
 control, including opinions of counsel, abstracts, contracts, and 
 conditions of sale, requisitions, replies, and other like documents 
 in regard to the title. 
 
 Note. — The application may be signed by the applicant or 
 (except where a nominee is to be registered) by his solicitor. The 
 declaration may be signed by the applicant or his solicitor, or 
 in part by the applicant, and in part by his solicitor, the necessary 
 alterations in either case being made in the form. 
 
 The Schedule, if necessary , 
 
 (to contain short particulars of the contracts, incumbrances, leases , 
 do., if any, referred to in the declaration.) 
 
HOW TO APPLY FOR REGISTRATION OF FREEHOLDS. 
 
 567 
 
 Tlio application must (unless the registrar otherwise directs) 
 be accompanied by — 
 
 (i) all such original deeds and documents relating to the 
 
 title as the applicant has in his possession or under 
 his control, including opinions of counsel, abstracts 
 of title, contracts for or conditions of sale, requisi- 
 tions, replies and other like documents, in regard to 
 the title, and 
 
 (ii) a copy or sufficient abstract of the latest document of 
 
 title, not being a document of record, and 
 
 (iii) sufficient particulars, by plan or otherwise, to enable 
 
 the land to be fully identified on the ordnance map 
 or land registry general map, 
 
 and a list in duplicate of all documents delivered at the registry 
 must be left with them (q ) . 
 
 If the applicant for registration desires to annex conditions 
 to the land under the provisions of s. 84 of the act of 1875, as 
 amended by the act of 1897, such conditions must be stated in 
 or delivered with the application (r) . When the application 
 is for registration in the name of a nominee, or is made by a 
 purchaser, the consent in writing of the nominee, or of the 
 vendor or his solicitor, must be delivered with the applica- 
 tion (s). Where any land comprised in an application for 
 registration is below high-water mark at ordinary spring tides, 
 the fact must be stated in the application, and such notices 
 (if any) as may be required by s. 66 of the act of 1875 must 
 be served through the registry ( t ). 
 
 The registry fees, according to the ad valorem scale, pre- 
 scribed by the Fee Order dated the 9th November, 1908 (it), 
 must be j:>aid in land registry fee stamps at the time of making 
 the application, or such deposit on account made as the registrar 
 may require. 
 
 Applications delivered at the registry are entered in a book in 
 the order in which they are delivered, and numbered accord- 
 ingly O). 
 
 (q) Rule 19 of 1908. (^) Tlie fee order is given be- 
 
 (r) Rule 20 of 1908. low, p. 659. 
 
 (s) Rule 21 of 1908. (cc) Rule 23 of 1908. 
 
 (0 Rule 22 of 1908. 
 
 Title deeds 
 and abstract 
 to be deli- 
 vered. 
 
 Additional 
 requirements 
 in special 
 cases. 
 
 Registry fees. 
 
 Entry of 
 application. 
 
568 
 
 BK. II. REGISTRATION OF TITLE. 
 
 Examination 
 of title. 
 
 Where exami- 
 nation of title 
 dispensed 
 with. 
 
 Advei’tise- 
 ment of 
 application. 
 
 Tho title shown by the documents accompanying the appli- 
 cation will then be examined by or under the superintendence 
 of the registrar in accordance with the usual conveyancing 
 practice, and he may make such searches and further inquiries 
 and give such notices to tenants and occupiers and other persons 
 as he may deem expedient (?/). The whole or any portion of 
 the examination of the title may be referred by the registrar, if 
 he thinks fit, for the opinion of one of the examiners of title 
 mentioned in rule 313, and the registrar may act on such 
 opinion (z ) . All searches and inquiries which the registrar may 
 consider necessary in the examination of, or in relation to, the 
 title will be made by such person and in such manner as the 
 registrar directs (a). The registrar has power to order produc- 
 tion of deeds not in the applicant’s possession (6); and doubtful 
 questions arising in the course of the examination of the title 
 may be referred to the court (c). 
 
 Where either (1) the land has been sold or purchased under 
 an order of the court, or (2) has been registered with possessory 
 or qualified title for six years, the first proprietor having been 
 a purchaser on sale, or (3) it appears to the registrar that the 
 title has been sufficiently investigated on a transaction for value, 
 the examination of the title may be modified in such manner as 
 the registrar may think fit (d ) . 
 
 Generally, before any registration is completed with abso- 
 lute title, an advertisement must be inserted in the London 
 Gazette and in such local or other newspaper or newspapers and 
 in such manner as may be fixed by the registrar in each 
 case(e). The advertisement must give the name and address 
 of the person to be registered, the short description of the land, 
 and the situation thereof, and require objections (if any) to be 
 made before the expiration of a stated period not less than one 
 month from the appearance of the advertisement in the London 
 Gazette (/) . If, hoAvever, the land be situate in a district in 
 which registration of title is compulsory on sale, and the appli- 
 
 (?/) Rule 24 of 1908. 
 
 (» Rule 25 of 1908. 
 
 (a) Rule 26 of 1908. 
 
 (5) See act of 1875, ss. 71 and 
 109, infra, p. 632. 
 
 (c) See act of 1875, ss. 74 to 77, 
 infra, p. 633; and see rule 337. 
 
 (d) Rule 27 of 1908. 
 
 (e) Rule 28 of 1908. 
 if) Rule 29 of 1908. 
 
HOW TO APPLY FOR REGISTRATION OF FREEHOLDS. 
 
 569 
 
 cant is a purchaser on a sale completed within the year pre- 
 ceding the application, an advertisement need not, unless the 
 registrar thinks it necessary or advisable, be issued: — 
 
 (a) where the land is subject to the jurisdiction of the 
 
 Middlesex or Yorkshire Registries of deeds, and the 
 title does not depend on proof of pedigree. 
 
 (b) where, within two years before the date of the appli- 
 
 cation, the land has been offered for sale by public 
 auction and has been sold at or after such auction. 
 
 (c) where the value of the land does not exceed 500 1. 
 
 (d) where the land is identical with or included in the land 
 
 described in and conveyed by a title deed dated more 
 tjian twelve years before the application, and dealt 
 with by the subsequent documents of title (if any), 
 and the registrar is satisfied that possession, or re- 
 ceipt of the rents and profits, has been continuously 
 enjoyed in accordance with the title from the date of 
 such title deed, and the subsequent title does not 
 depend on proof of pedigree (g ) . 
 
 Any person may, by notice in writing, signed by himself Right of any 
 or his solicitor and delivered at the registry before the com- object to 
 pletion of the registration, object to the registration. The registration, 
 notice must state concisely the grounds of the objection and 
 give an address in England or Wales of the person objecting, 
 to which all notices and other communications for him may be 
 sent through the post (4). The registrar must thereupon give 
 notice to the applicant of the objection, and the title must 
 not be registered until the objection has been withdrawn or 
 otherwise disposed of. The applicant may obtain an ap- 
 pointment before the registrar for the hearing of any objec- 
 tion, and the objector must have at least seven clear days’ 
 notice of such appointment ( i ) . The registrar hears and de- 
 termines the objection, subject to appeal to the court. If the 
 objector does not appear at the time appointed, his objection 
 
 ( g ) Rule 30 of 1908, par. (d), is applicable on the registration of 
 only applicable to freehold land; leaseholds in par (e). 
 there is an equivalent provision ( h ) Rule 31 of 1908. 
 
 (i) Rule 32 of 1908. 
 
570 
 
 BK. II. REGISTRATION OF TITLE. 
 
 Completion of 
 the registra- 
 tion. 
 
 must be treated as withdrawn unless the registrar allows 
 another appointment to be made. At the hearing of the objec- 
 tion any party may be heard in person or by his counsel or 
 solicitor (Jc ) . Where any person objecting to registration de- 
 sires to have any entry for his protection made in the register, 
 he must proceed in the same manner as is directed with respect 
 to applications made under rule 215, unless the applicant for 
 registration consents to the entry being made (Z). 
 
 No registration with absolute title can be made until and 
 unless the registrar approves of the title (m ) ; and in all cases 
 the entries for the register and the plan must be drawn or 
 settled by the registrar, and, unless he thinks it unnecessary, 
 approved by the applicant or his solicitor (n). Further, where 
 the estate of the first registered proprietor is or may be subject 
 to a restraint on alienation, the registrar must enter a restric- 
 tion protecting any such restraint in such manner and form 
 as he thinks fit (o) . If the registrar is of opinion that an 
 absolute title may be registered at the expiration of a certain 
 period or on the occurrence of a particular event, he may (un- 
 less the applicant upon notice objects) enter a note of the fact, 
 and, on the expiration of that period, or on proof to his satis- 
 faction of the occurrence of the event, he may, if he think fit, 
 register the title as absolute accordingly. In the meantime 
 the title must be registered in the then proper manner (p) . 
 Incumbrances, conditions, and other burdens (including fee 
 farm grants, or other grants reserving rents or services) to 
 which the land may be subject, must be entered in the register 
 in accordance with the title produced; and may be entered 
 either directly, or by reference to the instruments by which 
 they are created, or by setting out extracts therefrom (q). 
 When all objections (if any) have been disposed of, and the 
 time fixed by the advertisements, and notices (if any), has 
 
 (k) Buie 33 of 1908. 
 
 (Z) Rule 34 of 1908. 
 
 (m) Rule 35 of 1908. 
 
 (n) Rule 40 of 1908. 
 
 (o) Rule 41 of 1908. 
 
 (p) Rule 42 of 1908. 
 
 ( q ) Rule 43 of 1908. The regis- 
 
 trar may require a statutory de- 
 claration that all instruments and 
 facts affecting the title have been 
 disclosed. See s. 70 of the act of 
 1875 and rule 44 of 1908. There 
 is no stamp duty on this statutory 
 declaration. See rule 327. 
 
HOW TO APPLY FOR REGISTRATION OF FREEHOLDS. 
 
 571 
 
 expired, and it has been determined with what title the regis- 
 tration is to be made, and the requirements of ss. 70 and 72 
 of the act of 1875 have been complied with, the registration 
 will be completed as of the day on which and of the priority 
 in which the application was delivered, and the documents of 
 title, other than such as have under the rules to be retained 
 in the registry, will be delivered to the applicant. The land 
 certificate will thereupon be prepared, and will either be de- 
 livered to the proprietor, or be deposited in the registry, as 
 the proprietor may prefer (r) . 
 
 Where the land included in any application for registration 
 is subject to the jurisdiction of the Middlesex or Yorkshire 
 registries of deeds, the registration is deemed, for the pur- 
 pose of removing the land from that jurisdiction, to have taken 
 place at the beginning of the day on which the application is 
 delivered at the land registry, and prior to any registration 
 on that day of a memorial in the local deed registry (s) . 
 
 The first registration of any person as proprietor of freehold 
 land with an absolute title will vest in the person so registered 
 an estate in fee simple in such land, together with all rights, 
 privileges, and appurtenances belonging or appurtenant thereto, 
 subject as follows: — 
 
 (1.) to the incumbrances, if any, entered on the register; 
 and 
 
 (2.) unless the contrary is expressed on the register, to such 
 liabilities, rights, and interests, if any, as are by the 
 acts declared not to be incumbrances (£); and 
 
 (3.) where such first proprietor is not entitled for his own 
 benefit to the land registered as between himself and 
 any persons claiming under him, to any unregistered 
 estates, rights, interests, or equities to which such 
 persons may be entitled, 
 
 but free from all other estates and interests whatsoever, 
 including estates of the crown (u ) . 
 
 ( r ) Rule 47 of 1908. (t) See as to these s. 18 of the 
 
 (s) Rule 48 of 1908. act of 1875. 
 
 (u) s. 7 of the act of 1875. 
 
 Registration 
 of land in 
 Middlesex or 
 Yorkshire. 
 
 Effect of 
 registration 
 with absolute 
 title. 
 
572 
 
 BK. II. REGISTRATION OF TITLE. 
 
 Procedure on 
 application 
 for registra- 
 tion with pos- 
 sessory title. 
 
 Power of 
 registrar to 
 offer absolute 
 title in lieu 
 of possessory. 
 
 Eifect of 
 registration 
 with posses- 
 sory title. 
 
 (b) With Possessory Title. 
 
 A person requiring to be registered with possessory title must 
 proceed in exactly the same way as if he were applying to be 
 registered with absolute title (a?). Having left the documents 
 specified above at the registry, where the documents afford 
 primd facie evidence of the applicant’s right to apply for regis- 
 tration as first proprietor, the registration must be completed 
 with possessory title accordingly (y) . Where the applicant has 
 no documents of title in his possession or under his control a 
 statutory declaration by the applicant in Form 4 in the first 
 schedule to the rules may, if the registrar be satisfied on inquiry 
 or otherwise that the applicant is in possession or receipt of 
 the rents and profits of the land, be taken as primd facie evi- 
 dence of his right to apply for registration as first proprietor ( 2 ) . 
 It will be observed that no examination of the title is necessary 
 before registration Avith possessory title; if, however, on an 
 application for registration with a possessory title, the registrar 
 observes that the documents produced are sufficient to enable 
 registration to be made with absolute title, he may, after com- 
 pleting the registration with possessory title, inform the appli- 
 cant that he proposes (subject to such conditions, if any, as 
 may be required) to convert the title into an absolute title, and 
 may, if the applicant does not object , convert the title into 
 absolute accordingly (a). If the applicant objects, of course 
 nothing further is done, but if he does not make any objection 
 the matter proceeds in manner described above as if this appli- 
 cation had been for registration with absolute title (5). 
 
 The registration of any person as first registered proprietor of 
 freehold land with a possessory title only does not affect or 
 prejudice the enforcement of any estate, right, or interest 
 
 (a?) See rules 18 to 23 of 1908 
 inclusive, ante, p. 565. 
 
 (y) Eule 37 of 1908. 
 
 ( 2 ) Eule 38 of 1908. Generally 
 he must also produce the title 
 deeds to be marked so as to give 
 notice to a purchaser or other 
 person dealing with the land of 
 
 the fact of the registration. See 
 s. 72 of the act of 1875 as amended 
 by schedule I. of the act of 1897, 
 and see rules 45 and 46 of 1908. 
 (a) Eule 39 of 1908. 
 
 (5) See rules 24 to 35 and 40 to 
 47, ante, pp. 568 et seq. 
 
HOW TO APPLY FOR REGISTRATION OF FREEHOLDS. 
 
 573 
 
 adverse to or in derogation of the title of such first registered 
 proprietor, and subsisting or capable of arising at the time of 
 registration of such proprietor; but, save as aforesaid, has the 
 same effect as registration of a person with an absolute 
 title (c) . 
 
 (c) Qualified Title. 
 
 It may happen that upon the examination of the title it 
 appears to the registrar that the title can be established only 
 for a limited period, or subject to certain reservations; in this 
 event the registrar may, on the application of the party 
 applying to be registered, by an entry made in the register, 
 except from the effect of registration any estate, right, or 
 interest arising before a specified date, or arising under a 
 specified instrument or otherwise particularly described in the 
 register, and a title registered subject to such excepted estate, 
 right, or interest is called a qualified title. The registration 
 of a person as first registered proprietor of land with a qualified 
 title has the same effect as the registration of such person with 
 an absolute title, save that registration with a qualified title 
 will not affect or prejudice the enforcement of any estate, right, 
 or interest appearing by the register to be excepted (d ) . 
 
 If it appears to the registrar upon the examination of the 
 title that a qualified title only ought to be entered on the 
 register, and the applicant on being informed thereof requests 
 in writing that such qualified title be entered, the registrar will 
 frame the proper entries for the register, and will obtain the 
 applicant’s approval of them, and register the qualified title 
 accordingly, whether the application was for registration with 
 absolute or with possessory title (e). 
 
 Evidence of Registration of Freeholds. 
 
 On the entry of the name of the first registered proprietor of 
 freehold land on the register, the registrar must, if required, 
 
 (c) s. 8 of the act of 1875. (d) s. 9 of the act of 1875. 
 
 (e) Rule 36 of 1908. 
 
 Cases in which 
 applicant can 
 he registered 
 with qualified 
 title. 
 
 Completion of 
 registration 
 with qualified 
 title. 
 
 Land certifi- 
 cates. 
 
574 
 
 BK. II. REGISTRATION OF TITLE. 
 
 Kinds of 
 leases capable 
 of registra- 
 tion. 
 
 Lease subject 
 to prohibition 
 against 
 alienation. 
 
 Sub-lease, &c. 
 
 deliver to him a certificate, called a land certificate, which must 
 state whether the title of the proprietor therein mentioned is 
 absolute, qualified, or possessory (/) . This is a very im- 
 portant document, and must be produced to the registrar on 
 every entry in the register of a disposition by the registered 
 proprietor of the land to which it relates (g). 
 
 What Leaseholds may be Registered. 
 
 A separate register is kept for the registration of leaseholds, 
 and the only kind of leasehold land which can be placed on the 
 register is that held under 
 
 (1) A lease for life or lives, or determinable on a life or 
 
 lives; or 
 
 (2) A lease for a term of years, of which more than twenty - 
 
 one are unexpired, 
 
 whether subject or not to encumbrances (h ). 
 
 Leasehold land held under a lease containing an absolute 
 prohibition against alienation cannot be registered; and lease- 
 hold land held under a lease containing a prohibition against 
 alienation, without the licence of some other person, cannot be 
 registered until and unless provision is made in the prescribed 
 manner for preventing alienation without such licence by entry 
 on the register of a restriction to that effect or otherwise (7). 
 
 A sub-lease is, and a term created for mortgage purposes is 
 not, to be deemed a lease within the meaning of this sec- 
 tion (1c ) . A lease and a reversionary lease thereon belonging 
 to the same person are deemed to create one continuous term 
 for the purpose of this section (?) . 
 
 (/) s. 10 of the act of 1875; and 
 see rule 47 of 1908; and infra , 
 pp. 634 et seq. 
 
 (g) s. 8 (1) of the act of 1897. 
 
 (h) s. 11 of the act of 1875. 
 
 (i) Ibid.; see also rule 62, infra, 
 p. 578. 
 
 (k) Schedule I. of the act of 
 1897. 
 
 {1) Rule 66. 
 
HOW TO APPLY FOR REGISTRATION OF A LEASE. 
 
 575 
 
 Who may apply for Registration of Leaseholds. 
 
 Any of the following persons; that is to say: — Beneficial 
 
 (1) any person who has contracted to buy for his own 
 
 benefit leasehold land held under a lease of the 
 kind above mentioned; and 
 
 (2) any person entitled for his own benefit, at law or in 
 
 equity, to leasehold land held under any such lease; 
 and 
 
 (3) any person capable of disposing for his own benefit 
 
 by way of sale of leasehold land held under any 
 such lease; 
 
 may apply to the registrar to be registered, or to have regis- 
 tered in his stead any nominee or nominees as proprietor or 
 proprietors of such leasehold land. Provided that in the case 
 of land contracted to be bought, the vendor consents to the 
 application (m). 
 
 How to apply for Registration of a Lease. 
 
 An application for registration of leasehold land is made Procedure, 
 in the same manner as has been described above in the case of 
 freehold land(w). The lease itself, if in the possession or 
 under the control of the applicant, and in all other cases a 
 copy or extract, or other sufficient evidence of its contents, 
 must be delivered with the application (o). Application may 
 be made for the registration of leasehold land with absolute 
 title, with good leasehold title, or with possessory title (p). 
 
 (a) With Absolute Title. 
 
 No person can be registered as proprietor of leasehold land Evidence of 
 with absolute title until and unless the title both to the lease- t ^ ree " 
 hold and to the freehold , and to any intermediate leasehold that required, 
 may exist, is approved by the registrar (g). 
 
 (m) s. 11 of the act of 1875. As 
 to application for registration by 
 trustees and others having a 
 power of sale, joint owners, and 
 persons interested in settled land. 
 
 see ante, p. 564, and infra, pp. 
 630, 631. 
 
 {n) See rules 18 to 48 of 1908. 
 
 (o) Rule 51. 
 
 (p) Rule 52. 
 
 (q) Rule 53 of 1908. 
 
576 
 
 BK. II. — REGISTRATION OF TITLE. 
 
 Effect of The registration of any person as first registered proprietor 
 
 of leasehold °f leasehold land with an absolute title is deemed to vest in such 
 
 title absolute person the possession of the land comprised in the registered 
 
 lease relating to such land for all the leasehold estate therein 
 
 described, with all implied or express rights, privileges, and 
 appurtenances attached to such estate, but subject as follows: — 
 
 (1) to all implied and express covenants, obligations, and 
 
 liabilities incident to such leasehold estate; 
 
 (2) to the incumbrances (if any) entered on the register; 
 
 (3) unless the contrary is expressed on the register, to such 
 
 liabilities, rights, and interests as affect the leasehold 
 estate and are by the act declared not to be incum- 
 brances in the case of registered freehold land (r) ; 
 and 
 
 (4) where such first proprietor is not entitled for his own 
 
 benefit to the land registered as between himself and 
 any persons claiming under him, to any unregistered 
 estates, rights, interests, or equities to which such 
 persons may be entitled, 
 
 but free from all other estates and interests whatsoever, in- 
 cluding estates of the crown (s) . 
 
 When good 
 leasehold 
 title regis- 
 tered. 
 
 (b) With Good Leasehold Title. 
 
 It is practically impossible in most cases for the ordinary 
 occupation lessee to show the title to the freehold owing to the 
 provisions of s. 2 of the Vendor and Purchaser Act, 1874, and 
 this has led to the introduction of a new species of title to 
 leasehold property — a good leasehold title — which is inter- 
 mediate between an absolute and a possessory title. No per- 
 son can be registered as proprietor of leasehold land with good 
 leasehold title until and unless the title to the leasehold in- 
 terest is approved by the registrar ( t ) . The procedure on 
 applications for absolute title apply with the necessary modi- 
 fications to applications for good leasehold title also (u). 
 
 (/•) See s. 18 of the act of 1875, modified by rule 55. 
 infra , pp. 579, 580. ( t ) Rule 53 of 1908. 
 
 (s) s. 13 of the act of 1875, as ( u ) Rule 54. 
 
HOW TO APPLY FOR REGISTRATION OF A LEASE. 
 
 577 
 
 Where the original lessee is registered as first proprietor, the 
 title may be entered as a good leasehold title on his satisfying 
 the registrar that he has not encumbered or dealt with the land 
 in any way except as disclosed, and no advertisement is 
 necessary (x). 
 
 The registration of a person as first proprietor of leasehold 
 land with a good leasehold title will not affect or prejudice the 
 enforcement of any estate, right or interest affecting or in 
 derogation of the title of the lessor to grant the lease, but save 
 as aforesaid has the same effect as registration with an absolute 
 title (x). 
 
 (c) With Possessory Title. 
 
 The registration of a person as first proprietor of leasehold 
 land with a possessory title will not affect or prejudice the 
 enforcement of any estate, right, or interest (whether in respect 
 of the lessor’s title or otherwise) adverse to or in derogation of 
 the title of such first registered proprietor, and subsisting or 
 capable of arising at the time of the registration of such pro- 
 prietor; but, save as aforesaid, has the same effect as registra- 
 tion with an absolute title (ij ) . 
 
 (d) Qualified Title. 
 
 Where on examination it appears to the registrar that the 
 title, either of the lessor to the reversion, or of the lessee to the 
 lease, can be established only for a limited period, or subject 
 to certain reservations, the registrar may, upon the request in 
 writing of the person applying to be registered, by an entry 
 made in the register, except from the effect of registration any 
 estate, right, or interest arising before a specified date, or 
 arising under a specified instrument, or otherwise particularly 
 described in the register, and a title registered subject to any 
 such exception is called a qualified title (z). 
 
 The registration of a person as first proprietor of leasehold 
 land with a qualified title will not affect or prejudice the en- 
 forcement of any estate, right, or interest appearing by the 
 
 ( x ) Rule 56. 
 
 G. — C. 
 
 (z) Rule 58 of 1908. 
 
 Effect of 
 registration 
 with good 
 leasehold 
 title. 
 
 Effect of 
 registration 
 of leasehold 
 with posses- 
 sory title. 
 
 When quali- 
 fied title 
 registered. 
 
 Effect of 
 registration 
 with qualified 
 title. 
 
 ( y ) Rule 57. 
 
 P P 
 
578 
 
 BK. II. REGISTRATION OF TITLE. 
 
 register to be excepted, but saving this has the same effect 
 as registration with an absolute title (a). 
 
 (e) Generally. 
 
 Sub-leases. 
 
 Several leases. 
 
 Lease held 
 subject to 
 covenant 
 against 
 assignment. 
 
 Notice to be 
 given to 
 freeholder. 
 
 Lease already 
 subsisting. 
 
 Where any intermediate leasehold estate exists between the 
 freehold reversion and the leasehold estate which is the subject 
 of registration, the words “lessor” and “lease” must be read 
 as including, and also applying to, a sub-lessor and a sub- 
 lease (5). 
 
 Where several leases are vested in the same proprietor, they 
 may, on his application in writing, and with the approval of the 
 registrar, be registered under one number, or may be grouped 
 under various numbers as may be considered most convenient 
 for the purpose of saving expense and facilitating future trans- 
 actions (c). 
 
 On the registration of any leasehold land held under a lease 
 containing a prohibition against alienation without licence, all 
 estates, rights, interests, powers, and remedies under such lease, 
 arising upon, or by reason of, any alienation without licence 
 must be expressly excepted from the effect of registration (d) . 
 
 Where a lease affecting land already registered is registered, 
 notice of the registration must be given to the registered pro- 
 prietor of the freehold land or of the superior lease out of 
 which the lease is granted, as the case may be; and if no valid 
 objection be made within fourteen days after servioe of the 
 notice, or if the registered proprietor of the freehold or of the 
 superior lease consents in writing (by himself or his solicitor) 
 to the application, the lease will be noted against the title to the 
 freehold or to the superior lease in the same manner as notices 
 of leases have to be entered under ss. 50 and 51 of the act of 
 1875, and the rules (e). 
 
 Where, on the registration of freehold or leasehold land, it 
 appears that there is a lease or sub-lease, as the case may be, 
 already registered affecting the same land, a reference to such 
 
 (а) Rule 59. 
 
 (б) Rule 60. 
 (c) Rule 61. 
 
 (d) Rule 62. 
 
 (e) Rule 63. 
 
EVIDENCE OF REGISTRATION OF A LEASE. 
 
 579 
 
 lease or sub-lease must, if the registrar so direct, be entered 
 in the charges register (/) . 
 
 Provision is made by the rules for closing the leasehold title 
 on determination of the lease (g). 
 
 Evidence of Registration of a Lease. 
 
 On the entry of the name of the first registered proprietor of 
 leasehold land on the register, the registrar must deliver to 
 him a land certificate in the prescribed form; which must state 
 whether the title of the proprietor is absolute, good leasehold, 
 qualified, or possessory (h). The same remarks apply to this 
 as in the case of freeholds (■ i ) . 
 
 Provisions relating to both Freehold and Leasehold Land. 
 
 If in the course of the examination of a title objection is 
 made to the registration, the registrar has jurisdiction to hear 
 and determine any such objection (fc), subject to an appeal to 
 the court in the manner and on the conditions prescribed by 
 the rules (l). If the registrar, upon the examination of any 
 title, is of opinion that the title is open to objection, but is 
 nevertheless a title the holding under which will not be dis- 
 turbed, he may approve of such title, or may require the appli- 
 cant to apply to the court, upon a statement signed by the 
 registrar, for its sanction to the registration; and the regis- 
 trar may accept as evidence recitals, statements, and descrip- 
 tions of facts, matters, and parties in deeds, instruments, or 
 statutory declarations not less than twenty years old (m). 
 
 Liability of Registered Land to Easements, &c. 
 
 It is provided by s. 18 of the act of 1875 as amended by 
 schedule I. of the act of 1897 that all registered land is. unless 
 
 (/) Rule 64. 
 
 (g) See rules 218, 220, 221 and 
 222 . 
 
 ( (h ) See s. 10 of the act of 1875, 
 s. 8 of the act of 1897, and rule 
 65. 
 
 P 
 
 (i) See as to land certificates 
 generally, infra, pp. 634 et seq. 
 
 ( h ) See also rule 337. 
 
 ( l ) See rules 296 to 312, inclu- 
 sive. 
 
 (m) s. 17 of the act of 1875. 
 
 Closing lease 
 hold title. 
 
 Land certifi 
 cates. 
 
 Power of 
 registrar to 
 determine 
 disputed 
 questions 
 arising on 
 registration 
 of title. 
 
 Liabilities, 
 rights, and 
 interests not 
 
580 
 
 BK. II. REGISTRATION OF TITLE. 
 
 to be deemed 
 incumbrances 
 on registered 
 land. 
 
 the contrary is expressed on the register, to be deemed to be 
 subject to such of the following liabilities, rights, and interests 
 as may be for the time being subsisting in reference thereto, 
 and such liabilities, rights, and interests are not to be deemed 
 incumbrances within the meaning of the act; (that is to say), 
 
 (1.) liability to repair highways by reason of tenure, quit- 
 rents, crown rents, heriots, and other rents and 
 charges having their origin in tenure; and 
 
 (2.) succession duty, land tax, tithe rent-charge, and pay- 
 ments in lieu of tithes, or of tithe rent-charge; and 
 
 (3.) rights of common, rights of sheep walk, rights of way, 
 watercourses, and rights of water, and other ease- 
 ments ; 
 
 (4.) rights to mines and minerals created previously to the 
 registration of the land or before 1st January, 1898; 
 
 (5.) rights of entry, search, and user, and other rights and 
 reservations incidental to or required for the purpose 
 of giving full effect to the enjoyment of rights to 
 mines and minerals, or of property in mines or 
 minerals created previously to the registration of the 
 land or before 1st January, 1898; 
 
 (6.) rights of fishing and sporting, seignorial and manorial 
 rights of all descriptions, and franchises; 
 
 (7.) leases or agreements for leases and other tenancies for 
 any term not exceeding twenty-one years, or for any 
 less estate, in cases where there is an occupation under 
 such tenancies ; and 
 
 (8.) estate duty, liability to repair the chancel of any church, 
 liability in respect of embankments, sea and river 
 walls, and drainage rights, customary rights, public 
 rights, and profits a prendre, and, subject to the 
 provisions of s. 12 of the act of 1897, rights acquired 
 or in course of being acquired under the Limitation 
 Acts . 
 
 Provided as follows: — 
 
 (a) Where it is proved to the satisfaction of the registrar 
 that the land is exempt from land tax or tithe 
 rent-charge, or from payments in lieu of tithes, 
 or of tithe rent-charge, the registrar may notify the 
 
LIABILITY OF REGISTERED LAND TO EASEMENTS, ETC. 
 
 581 
 
 fact on the register in the prescribed manner upon 
 application being made in manner provided by rule 
 212; and 
 
 (b) The Commissioners of Inland Revenue must, upon the 
 
 application of the proprietor of the land upon such 
 declaration being made, or such other evidence 
 being produced as the commissioners require, and 
 upon payment of the prescribed fee, grant a cer- 
 tificate that at the date of the grant thereof no 
 succession duty is owing in respect of the land, 
 and the registrar must in the prescribed manner 
 notify such fact on the register, and such notifica- 
 tion will be conclusive evidence of the fact so noti- 
 fied in respect of succession duty (n ) ; and 
 
 (c) where it is proved to the satisfaction of the registrar 
 
 that the right to any mines or minerals is vested in 
 the proprietor of land registered or about to be 
 registered, the registrar may register such proprie- 
 tor in the manner prescribed by rule 213 as pro- 
 prietor of such mines and minerals as well as of 
 the land; and 
 
 (d) where it is proved to the satisfaction of the registrar 
 
 that the right to any mines or minerals is severed 
 from any land registered or about to be registered, 
 the registrar may on the application of the person 
 entitled to any such mines and minerals register 
 him as proprietor of such mines and minerals in 
 manner hereafter mentioned, and upon such regis- 
 tration being effected must enter on the register of 
 the land a reference to the registration of such 
 other person as proprietor of such mines and 
 minerals (o). 
 
 Where the existence of any such liabilities, rights, or interests, 
 as are mentioned in this section, is proved to the satisfaction of 
 the registrar, the registrar may , if he think fit, enter on the 
 register notice of such liabilities, rights, or interests in the 
 prescribed manner, and he must do so in all cases where the 
 
 When notice 
 to be entered 
 on register. 
 
 ( n ) See also rules 208 to 211. (o) See also rule 214. 
 
582 
 
 BK. II. REGISTRATION OF TITLE. 
 
 Application 
 for entry on 
 register of 
 notice of in- 
 cumbrances. 
 
 Succession 
 and estate 
 duties. 
 
 When a 
 charge on 
 registered 
 land. 
 
 When pur- 
 chaser of 
 registered 
 land put on 
 inquiry. 
 
 abstract of title on first registration or on registration as quali- 
 fied or absolute (sic) discloses the existence of any such lia- 
 bilities as are mentioned in sub-ss. (4) and (5). Where an 
 easement is registered as an incumbrance, the dominant and 
 servient tenements must be defined, if practicable and required 
 by the parties. Notice of a power of re-entry and of a right 
 of reverter may be entered on the register under this paragraph . 
 
 Any person may apply to have notice of any of the above- 
 mentioned incumbrances entered on the register, the applica- 
 tion (except in respect of death duties and mines and minerals) 
 being made in writing and in manner prescribed by rule 215. 
 
 By the act of 1897, s. 13 (1), on every application to register 
 land with an absolute title , or to register a transmission of 
 land, the registrar must inquire as to succession duty and estate 
 duty. 
 
 (2.) If, on such application, it appears that there is, or is 
 capable of arising, any such liability to succession duty or estate 
 duty as would affect the purchaser from the person to be regis- 
 tered as proprietor if the land were unregistered, the registrar 
 must enter notice of the liability on the charges register in the 
 prescribed manner. 
 
 (3.) Succession duty and estate duty will not — 
 
 (a) unless so noted on the register; or 
 
 (b) unless in the case of a possessory title the liability to 
 
 the duty was, at the date of the original registra- 
 tion of the land, subsisting or capable of arising; 
 or 
 
 (c) unless in the case of a qualified title the liability to 
 
 the duty was included in the exceptions made on 
 such original registration of the land; 
 affect a bond fide registered purchaser for full consideration in 
 money or money’s worth, although he may have received ex- 
 traneous notice of the liability in respect thereof. 
 
 As there is no provision for entering up a liability to estate 
 or succession duty on application for registration with a posses- 
 sory title, a purchaser of land so registered will for some years 
 to come have to examine the earlier title in order to ascertain 
 whether any claim to duty has arisen, and if so, whether it has 
 been discharged. He will, however, be safe after the expiration 
 
THE EFFECT OF ADVERSE POSSESSION OF REGISTERED LAND. 
 
 583 
 
 of twelve years from the time when the claim to either duty 
 arose (p) . 
 
 Provision is made for entering a notification of the discharge Entry of 
 
 . discharge 
 
 of any incumbrance, notice of which has been entered on the 0 f incum- 
 
 register (q) . branoes ' 
 
 When a lease or agreement for a lease which is noted in the Determina- 
 
 •, m . « , • tion of leases 
 
 register as an incumbrance expires by effluxion oi time, or of re gi 8 tered 
 (when the term granted is for, or is determinable on a life or land - 
 lives) by the falling in of the last life, or otherwise comes to 
 an end, any party interested may apply to have its determina- 
 tion noted in the register (r). 
 
 The Effect of Adverse Possession of Registered Land. 
 
 A title to registered land adverse to or in derogation of the Adverse 
 
 title of the registered proprietor cannot be acquired by any registered ° f 
 
 length of possession, and the registered proprietor may at any lanc ^ entitles 
 . . „ possessor to 
 
 time make an entry or bring an action to recover possession oi rectification 
 
 the land accordingly. But where a person would, but for the ° fre o lster - 
 provisions of the acts, have obtained a title by possession to 
 registered land, he may apply for an order for rectification of 
 the register under s. 95 of the act of 1875, and on such applica- 
 tion the court may, subject to any estates or rights acquired 
 by registration for valuable consideration in pursuance of the 
 acts, order the register to be rectified accordingly. This will 
 not prejudice, as against any person registered as first proprietor 
 of land with a possessory title only, any adverse claim in re- 
 spect of length of possession of any other person who was in 
 possession of such land at the time when the registration of 
 such first proprietor took place (s) . 
 
 ( p ) See s. 12 of the Customs and 
 Inland Revenue Act, 1889, and 
 s. 8 (2) of the Finance Act, 1894, 
 ante, pp. 116, 117. 
 
 {q) See s. 19 of the act of 1875, 
 schedule I. of the act of 1897, and 
 rules 216 and 217. 
 
 (r) See rules 219 to 222, inclu- 
 sive. 
 
 (s) s. 12 of the act of 1897. See 
 as to the construction of this sec- 
 tion, Brickdale and Sheldon, Land 
 Transfer Acts, 2nd ed. 327. 
 
584 
 
 BK. II. REGISTRATION OF TITLE. 
 
 What 
 evidence of 
 vendor’s title 
 purchaser of 
 registered 
 land can 
 require. 
 
 No advantage 
 if title posses- 
 sory only. 
 
 Transfers and other Dealings with Registered Land. 
 
 It has always been claimed that the system of registration of 
 title permits of the conveyance, mortgage, or other dealing 
 with land far more cheaply and expeditiously than the old 
 system of conveyancing, since no investigation of title is neces- 
 sary. This is only true, however, subject to the qualifications 
 stated in s. 16 of the act of 1897, which provides that: — 
 
 A purchaser of registered land cannot require any evidence of 
 title, except — 
 
 (i.) the evidence to be obtained from an inspection of the 
 register or of a certified copy of, or extract from, the 
 register ; 
 
 (ii.) a statutory declaration as to the existence or otherwise 
 of matters which are declared by the acts not to be 
 incumbrances (t); 
 
 (iii.) if the proprietor of the land is registered with an 
 absolute title , and there are incumbrances entered on 
 the register as subsisting at the first registration of 
 the land, either evidence of the title to those incum- 
 brances, or evidence of their discharge from the 
 register; 
 
 (iv.) where the proprietor of the land is registered with a 
 qualified title , the same evidence as above provided in 
 the case of absolute title, and such evidence as to any 
 estate, right, or interest excluded from the effect of 
 the registration as a purchaser would be entitled to 
 if the land were unregistered; 
 
 (v.) if the land is registered with a possessory title , such 
 evidence of the title subsisting or capable of arising 
 at the first registration of the land as the purchaser 
 would be entitled to if the land were unregistered. 
 
 When sufficient time has elapsed for all titles to become 
 absolute, the claim made in favour of the system may be 
 justified, but the last-mentioned provision practically nullifies 
 for the present the advantage of registration, since a large 
 
 (t) See ante , pp. 579, 580. 
 
TRANSFERS AND OTHER DEALINGS WITH REGISTERED LAND. 
 
 58 5 
 
 majority of the titles registered are possessory only. For a 
 considerable number of years to come, therefore, the registra- 
 tion of the title to land will only add to the cost of conveyanc- 
 ing. It is the recognition of this fact which has induced the 
 authorities to endeavour to hasten the process of registering 
 absolute titles by making the rules authorizing the registrar 
 to accept six years’ [possessory or qualified title as sufficient 
 evidence for registration of absolute title, and requiring the 
 applicant for registration to produce his title in every case, 
 so that even though he only applies for registration with pos- 
 sessory title, the registrar may convert the title into an absolute 
 title if the applicant does not object (w). 
 
 Where the vendor of registered land is not himself registered 
 as proprietor of the land or of a charge giving a power of sale 
 over the land, he must, at the request of the purchaser and at 
 his own expense, and notwithstanding any stipulation to the 
 contrary, either procure the registration of himself as proprietor 
 of the land or of the charge, as the case may be, or procure a 
 transfer from the registered proprietor to the purchaser (%). 
 But when leaseholds have been registered under the Land Trans- 
 fer Acts, and a mortgage by sub-demise of the term less one day 
 has been created and not registered, the mortgagee selling under 
 his statutory power of sale is not the vendor of registered land 
 within this sub-section, and the purchaser cannot require him 
 either to be registered as proprietor or procure a transfer from 
 the registered proprietor to the purchaser (y ) . 
 
 In the absence of special stipulation, a vendor of land 
 registered with an absolute title cannot be required to enter 
 into any covenant for title, and a vendor of land registered with 
 a possessory or qualified title can only be required to covenant 
 against estates and interests excluded from the effect of regis- 
 tration, and the implied covenants under s. 7 of the Con- 
 veyancing and Law of Property Act, 1881, must be construed 
 accordingly ( z ) . 
 
 (u) See rules 27 and 39 of 1908, 
 ante , pp. 568, 572. 
 
 (as) s. 16 (2) of the act of 1897. 
 
 (y) Re Voss and Saunders' Con- 
 tract, (1911) 1 Ch. 42. 
 
 (z) s. 16 (3) of the act of 1897. 
 
 Pui’chaser of 
 registered 
 laud can 
 require vendor 
 to register. 
 
 What 
 
 covenants for 
 title purchaser 
 of registered 
 land can 
 require. 
 
586 
 
 BK. II. REGISTRATION OF TITLE. 
 
 Form of 
 transfer. 
 
 How a Transfer of Registered Freeholds is made. 
 
 When the purchaser of registered land has satisfied himself 
 of the vendor’s title in accordance with the provisions above 
 mentioned, he must prepare a form of transfer. The form, 
 which can be obtained from the registry, will depend on the 
 nature of the transfer (a) ; in the case of an ordinary sale 
 of the whole of the land comprised in a title it will be as 
 follows : - — 
 
 Form 20. — Instrument of Transfer of Land. ( Rule 126.) 
 
 Land Registry. 
 
 Land Transfer Acts, 1875 and 1897. 
 
 District 
 
 Parish 
 
 No. of Title 
 
 {Date.) In consideration of pounds (£ ) (the receipt, &c.) 
 
 I, A. B., of, &c., hereby transfer to 0. D., of, &c., the land comprised 
 in the title above referred to. 
 
 Signed, sealed, and delivered by \ 
 
 the said A. B., in the presence \ {Signature of A. B.) (Seal.) 
 of E. E., of, &c. ) 
 
 Note. — Where the transfer is made under section 9, sub-section 6 of 
 the act of 1897, and deals with part only of the land comprised in a 
 title, or is made under rule 96, the number of the title must be left 
 blank, and instead of the words “ the title above referred to ” a refer- 
 ence to the last preceding document of title containing a description 
 of the land must be inserted. 
 
 When the consideration is advanced by different persons in separate 
 sums, or does not consist, or wholly consist, of money, its nature, or 
 the separate payments made, may be concisely stated. 
 
 When the transfer is to two or more jointly, no addition need be 
 made to the form. 
 
 Where it is to two or more as tenants in common, one of the follow- 
 ing forms may be used: “to C. D. and E. E. in equal shares,” “to 
 0. D. four-fifths, and to E. E. one-fifth of,” and so on. Where the 
 transferor retains a share, add the words “ and I the said A. B. retain 
 share or shares.” 
 
 The amount of the consideration should be stated in words, and 
 repeated in figures — as, for instance, “ three hundred and seventy 
 pounds (£370).” 
 
 {a) See rules 126 to 156. 
 
HOW A TRANSFER OF REGISTERED FREEHOLDS IS MADE. 
 
 587 
 
 Different forms are provided for: — 
 
 (a) Transfer of part of the land comprised in a title (6); 
 
 (b) Transfers to give effect to a settlement (c); 
 
 (c) Transfer of land without the mines and minerals, or 
 
 with certain specified mines and minerals, or 
 excepting only certain specified mines and min- 
 erals (d \) ; 
 
 (d) Transfer of mines and minerals, or some of them, 
 
 without the land (e); 
 
 (e) Transfer in exercise of a power of sale in a regis- 
 
 tered charge (/) ; 
 
 (f ) Transfer of land to a company or corporation (g) ; 
 
 (g) Transfer of land for charitable uses (h ) ; 
 
 (h) Transfer to ecclesiastical corporation (i ) ; 
 
 (i) Transf er of land with restrictive conditions (1c ) ; 
 
 (k) Exchanges (l ) ; and 
 
 (l) Partitions (m). 
 
 Special provisions are likewise made for transfers in con- 
 sideration of a rent or subject to an existing rent(w), and 
 under the Lands Clauses Consolidation Act (o). 
 
 With regard to all these forms, however, a wide discretion is 
 given to the registrar to allow alterations and additions and to 
 allow other forms to be used when they cannot be conveniently 
 adapted (p). 
 
 For the purpose of introducing the implied covenants under 
 the Conveyancing and Law of Property Act, 1881, a person 
 may, in a registered disposition, be expressed to execute, 
 transfer, or charge as beneficial owner, as settlor, as trustee, as 
 mortgagee, as personal representative of a deceased person, as 
 
 ( b ) Rule 127, form 21. 
 
 (c) s. 6 (3) of the act of 1897, 
 rules 128 and 129, forms 22 to 27. 
 
 (< d ) Rule 134, forms 28, 29 and 
 
 30. 
 
 (e) Rules 135 and 136, forms 31, 
 32 and 33. 
 
 (/) Rule 137, form 34. 
 
 ( g ) Rule 144, form 36. 
 
 ( h ) Rule 145, form 37. 
 
 (i) Rules 147 to 149, forms 38, 
 39 and 40. 
 
 ( k ) Rule 153, form 41. 
 
 (Z) Rules 154 and 155, form 42. 
 
 (m) Rule 156, form 43. 
 
 (n) Rules 130 to 132. 
 
 (o) Rule 151. 
 
 (p) Rules 97 and 98; see also 
 rules 100, 103 and 341. 
 
 Forms of 
 transfer in 
 special cases. 
 
 Registrar may 
 allow other 
 forms. 
 
 How and 
 when implied 
 covenants for 
 title under 
 Conveyancing 
 Act may be 
 introduced. 
 
588 
 
 BK. II. REGISTRATION OF TITLE. 
 
 Transfer to ) e 
 under seal aud 
 attested. 
 
 44 & 45 Viet, 
 c. 41, s. 8. 
 
 Authority to 
 pay purchase- 
 money to 
 vendor’s 
 solicitor. 
 
 Stamp duties 
 on transfers. 
 
 Transfer and 
 
 committee of a lunatic so found by inquisition, or under an 
 order of the court; and an instrument of transfer or charge, 
 and any instrument affecting registered land or a registered 
 charge may be worded accordingly, but no reference to such 
 implied covenants can bo entered in the register (q). But it 
 must be remembered that the vendor of land registered with 
 an absolute title cannot be required to enter into any covenant 
 for title, and a vendor of land registered with a possessory 
 or qualified title can only be required to covenant against 
 estates and interests excluded from the effect of registration, 
 and the implied covenants under the Conveyancing Act must 
 be construed accordingly (r). 
 
 The transfer must be executed as a deed by the transferor in 
 the presence of a witness, who must attest the execution by 
 signing his name, and adding his address and description (s ) . 
 The provisions of s. 8 of the Conveyancing Act, 1881, apply 
 to transfers of registered land, so that the purchaser can have 
 the execution of the transfer attested by some person appointed 
 by him, who may, if he thinks fit, be his solicitor (t). 
 
 It seems that the purchaser cannot safely pay the purchase- 
 money to the vendor’s solicitor without a written authority, 
 since s. 56 of the Conveyancing Act does not apply to the 
 case, there being no receipt for the consideration money in the 
 form of transfer; this difficulty, however, can be avoided by 
 inserting the ordinary receipt in the form, and this should 
 always be done in practice. 
 
 The transfer must be stamped with the proper Inland 
 Revenue stamp in accordance with the Stamp Act, 1891 (u). 
 In case of dispute as to the sufficiency of the stamp, on a 
 written undertaking being given by the applicant or his solici- 
 tor to furnish evidence within a fixed time that it is sufficiently 
 stamped, the instrument can be noted at the land registry so 
 as to preserve its priority while the dispute is being settled (x). 
 
 When stamped, the transfer must be taken or posted to the 
 
 ( q ) Rule 99. 
 
 (r) s. 16 (3) of the act of 1897. 
 
 (s) Rules 107 to 109. 
 
 (£) s. 9 of the act of 1897. 
 
 (u) See s. 83 of the act of 1875. 
 (a?) Rule 124. 
 
HOW A TRANSFER OF REGISTERED FREEHOLDS IS MADE. 
 
 589 
 
 registry with the ad valorem registry fee stamps (y) affixed land certi- 
 
 . , , . rn ficate to be 
 
 (or if sent by post with banker s draft, postal or post omce pro duced at 
 
 order, cheque ( z ) or bank notes therefor), accompanied in either re 8‘ istr 7- 
 case by the vendor’s land certificate ( a ) . No written application 
 for registration need accompany it, but if sent by post it 
 should be enclosed in a letter giving the name and address of 
 the sender, and directions as to the return of the land certifi- 
 cate. Notice of the transfer will then be sent to the person by 
 whom it purports to be executed, and, where the instrument 
 purports to be a conveyance or transfer in exercise of a power 
 of sale contained either in a mortgage jirior to the registration 
 of the land or in a registered charge, notice will also be sent 
 to the proprietor of the land and to the proprietors of all sub- 
 sequent charges. The notice states that the person to whom it 
 is addressed will have three clear days from the posting of 
 the notice within which to lodge objections. In the absence 
 of any objection the registration may be comple ted at the ex- 
 piration of the limited period (5). 
 
 The transfer will be completed by the registrar entering on Completion 
 the register the transferee as proprietor of the land transferred. of transfer ' 
 Upon completion the registrar must, if required, deliver to the 
 transferee a land certificate; he must also, in cases where part 
 only of the land is transferred, if required, deliver to the trans- 
 feror g land certificate, or return him the old certificate en- 
 dorsed, showing the land retained by him (c). 
 
 Since the legal estate does not pass to the purchaser until his Payment of 
 transfer is registered, strictly speaking he cannot safely pay his }^^ ase ’ 
 purchase-money to the vendor until this has been done. Prac- 
 tically, in most cases there will no doubt be very little risk in 
 paying it in exchange for the transfer duly executed and the 
 land certificate, but theoretically, at any rate, there is a risk, 
 especially having regard to the three days’ interval between 
 delivering the documents at the registry and the registration of 
 
 ( y ) See Fee Order, 9th Novem- 
 ber, 1908. 
 
 ( 2 ) When fees are paid by 
 cheque the registration will not 
 be completed until due time has 
 
 been allowed for the cheque to be 
 cleared. (Fee rule 3.) 
 
 (a) Rules 111 to 113 and s. 8 (1) 
 of the act of 1897. 
 
 (&) Rule 118. 
 
 (c) s. 29 of the act of 1875. 
 
590 
 
 BK. II. — REGISTRATION OF TITLE. 
 
 Raising of 
 purchase- 
 money by 
 mortgage. 
 
 Transfer of 
 land subject 
 to rent. 
 
 Estate of 
 transferee for 
 value when 
 title absolute. 
 
 the transfer required by rule 118. When part only of the 
 land comprised in a title is transferred, the difficulty is accen- 
 tuated (d). The only way 'to avoid this is either (1) to complete 
 at the registry; (2) to deposit the purchase-money with an 
 independent person, such as a solicitor, or banker, to hold for 
 both parties until completion; or (3) to require the vendor 
 to obtain the registration of the purchaser first and to pay 
 the purchase-money on production of a land certificate issued 
 in the purchaser’s name(e). 
 
 Under s. 9 (6) of the act of 1897, a person who has bought 
 registered land may transfer or charge the land before being 
 himself registered. So that there is nothing to prevent a pur- 
 chaser of registered land raising the purchase-money by regis- 
 tered charge, as is often done by a mortgage under the 
 present system of conveyancing (/) . 
 
 Provisions as to transfers of land in consideration of or sub- 
 ject to a rent are made by rules 130 to 132. 
 
 Effect of Registration of Transfer of Freeholds. 
 
 (a) Where the transfer is far valuable consideration, and is 
 I of freehold land registered with an absolute title. 
 
 A transfer for valuable consideration of freehold land re- 
 gistered with an absolute title, when registered, confers on the 
 transferee an estate in fee simple in the land transferred, 
 together with all rights, privileges, and appurtenances belong- 
 ing or appurtenant thereto, subject: 
 
 (1.) to the incumbrances, if any, entered on the register; 
 and 
 
 (2.) unless the contrary is expressed on the register, to such 
 liabilities, rights and interests, if any, as are by the 
 acts declared not to be incumbrances (g ) ; 
 
 ( d ) See rule 157 ; as amended 
 by the rules of 1907 this appears 
 to be intended to make a provision 
 to meet the difficulty. 
 
 (e) Brickdale & Sheldon, Land 
 Transfer Acts, 2nd ed. 31, 39. 
 
 (/) See rules 104 and 105. 
 
 (g) See, as to these, s. 18, ante, 
 pp. 579 et seq. 
 
EFFECT OF REGISTRATION OF TRANSFER OF FREEHOLDS. 
 
 591 
 
 but free from all other estates and interests whatsoever, includ- 
 ing estates and interests of the crown (h). 
 
 In the absence of anything to the contrary in the register or 
 in the transfer, the word “land” in this and the succeeding 
 sections (30 to 33) includes the mines and minerals if parcel 
 thereof ( i ). 
 
 (b) Where the transfer is for valuable consideration , and is 
 of freehold land registered with a qualified title. 
 
 A transfer for valuable consideration of freehold land re- 
 gistered with a qualified title has, when registered, the same 
 effect as a transfer for valuable consideration of the same land 
 registered with an absolute title, save that such transfer does 
 not affect or prejudice the enforcement of any right or interest 
 appearing by the register to be excepted ( tc ). 
 
 (c) Where the transfer is for valuable consideration, and is 
 of freehold land registered with a possessor ij title. 
 
 A transfer for valuable consideration of freehold land re- 
 gistered with a possessory title does not affect or prejudice the 
 enforcement of any right or interest adverse to or in derogation 
 of the title of the first registered proprietor, and subsisting or 
 capable of arising at the time of the registration of such pro- 
 prietor; but, save as aforesaid, has when registered the same 
 effect as a transfer for valuable consideration of the same land 
 registered with an absolute title (l). 
 
 (d) Where the transfer is voluntary and is of freehold land. 
 
 A transfer of freehold land made without valuable considera- 
 tion is, so far as the transferee is concerned, subject to any 
 unregistered estates, rights, interests, or equities subject to 
 which the transferor held the same, but, save as aforesaid, has, 
 
 (h) s. 30 of the act of 1875. (£) Schedule I. of the act of 
 
 Compare the provisions of s. 98, 1897. 
 
 infra, p. 646. (&) s. 31 of the act of 1875. 
 
 ( l ) s. 32 of the act of 1875. 
 
 Meaning 1 of 
 “ laud.” 
 
 Estate of 
 transferee for 
 value when 
 title qualified. 
 
 Estate of 
 transferee 
 for value 
 when title 
 possessory. 
 
 Estate of 
 
 voluntary 
 
 transferee 
 
592 
 
 BK. II. — REGISTRATION OF TITLE. 
 
 Procedure. 
 
 Completion 
 of transfer. 
 
 when registered, in all respects, and in particular as respects 
 any registered dealings on the part of the transferee, the same 
 effect as a transfer of the same land for valuable considera- 
 tion (m). 
 
 How the Transfer of Registered Leaseholds is made. 
 
 The assignment of a registered leasehold is carried out in 
 much the same way as the conveyance of a freehold. A form 
 of transfer must be obtained from the registry, which must be 
 filled up, executed, and attested as above described (ri ) . The 
 form varies slightly according to whether the whole or part 
 of the land comprised in the title is to be assigned. In the 
 former case it is as follows: — 
 
 Form 35 . — Instrument of Transfer of Leasehold Land. 
 
 ( Rule 138.) 
 
 As form 20, adding at the end “ for the residue of the term granted 
 by the registered lease.” 
 
 Where it is intended to negative the covenants implied by section 39 
 of the act of 1875, or rule 139, the following words may be added to 
 the form: — 
 
 “The covenant by the transferor (or transferee, or the covenants by 
 the transferor and transferee) implied by section 39 of the act of 1875 
 (or rule 139) is (or are) not to be implied.” 
 
 This, when executed and attested, must be stamped with the 
 Inland Revenue and registry fee stamps, and taken or sent by 
 post to the registry with the land certificate. Notice will be 
 given to the assignor as before, and registration will not be com- 
 pleted till three days from the posting of the notice (o ) . The 
 transfer will then be completed by the registrar entering up 
 the transferee as proprietor of the land transferred, but until the 
 entry is made the transferor is deemed to remain proprietor of 
 the land (p) . 
 
 and rules 107 to 125, and 138 and 
 139. 
 
 (m) s. 33 of the act of 1875. 
 
 ( n ) See pp. 586 et seq. 
 
 (o) See s. 8 of the act of 1897 
 
 (p) s. 34 of the act of 1875. 
 
EFFECT OF REGISTRATION OF TRANSFER OF LEASEHOLDS. 
 
 593 
 
 Effect of Registration of Transfer of Leaseholds. 
 
 (a) Where the transfer is for valuable consideration, and 
 
 is of leasehold land registered with an absolute or 
 qualified title. 
 
 A transfer for valuable consideration of leasehold land regis- 
 tered with an absolute title or qualified title is, when regis- 
 tered, deemed to vest in the transferee the possession of the 
 land transferred for all the leasehold estate described in the 
 registered lease relating to such land, with all implied or ex- 
 pressed rights, privileges, and appurtenances attached to such 
 estate, but subject: 
 
 (1.) to all implied and express covenants, obligations, and 
 liabilities incident to such estate; and 
 
 (2.) to the incumbrances (if any) entered on the register; 
 and 
 
 (3.) unless the contrary is expressed on the register, to such 
 liabilities, rights, and interests as affect the leasehold 
 estate and are by the acts declared not to be incum- 
 brances in the case of registered freehold land ; 
 but free from all other estates and interests whatsoever, in- 
 cluding estates and interests of the crown. Save that where any 
 estate, right or interest is excepted from the effect of registra- 
 tion, the transfer will not affect or prejudice the enforcement of 
 any estate, right or interest appearing by the register to be so 
 excepted (g) . 
 
 In the absence of anything to the contrary in the register or 
 the transfer, or in the lease, the word “land’ in this and the 
 three succeeding sections includes the mines and minerals if 
 parcel thereof (r) . 
 
 (b) Where the transfer is for valuable consideration and is 
 
 of leasehold land registered with a good leasehold 
 title . 
 
 A transfer for valuable consideration of leasehold land regis- 
 tered with a good leasehold title has, when registered, the effect 
 
 ( q ) s. 35 of the act of 1875 as (r) Schedule I. of the act of 
 read with rule 140. 1897. 
 
 Estate of 
 transferee 
 for value 
 when title 
 absolute or 
 qualified. 
 
 Meaning of 
 “ land.” 
 
 Estate of 
 transferee for 
 value when 
 
 G. — C. 
 
 Q Q 
 
594 
 
 BK. II. REGISTRATION OE TITLE. 
 
 title good 
 leasehold. 
 
 Estate of 
 transferee for 
 value when 
 title pos- 
 sessory. 
 
 Estate of 
 
 voluntary 
 
 transferee 
 
 That rent 
 paid and 
 covenants 
 performed 
 
 given by s. 35 of the act of 1875 to such a transfer of land 
 registered with a declaration that the lessor had an absolute 
 title to grant the lease under which the land is held, save that 
 it will not affect or prejudice the enforcement of any estate, 
 right or interest affecting or in derogation of the title of the 
 lessors to grant the lease (s) . 
 
 (c) Where the transfer is for valuable consideration , and 
 is of leasehold land registered with a possessory title. 
 
 A transfer for valuable consideration of leasehold land regis- 
 tered with a possessory title has, when registered, the same effect 
 as a transfer for valuable consideration of the same land regis- 
 tered with an absolute title, save that the transfer will not 
 affect or prejudice the enforcement of any right or interest 
 (whether in respect of the lessor’s title or otherwise) adverse 
 to or in derogation of the title of the first registered proprie- 
 tor, and subsisting or capable of arising at the time of the 
 registration of such proprietor (t) . 
 
 (cl) When the transfer is voluntary and is of leasehold land. 
 
 A transfer of leasehold land made without valuable con- 
 sideration is, so far as the transferee is concerned, subject to 
 any unregistered estates, rights, interests, or equities subject 
 to which the transferor held the same; but, save as aforesaid, 
 has, when registered, in all respects, and in particular as 
 respects any registered dealings on the part of the transferee, 
 the same effect as a transfer of the same land for valuable con- 
 sideration (u ) . 
 
 Implied Covenants on the Transfer of Registered Leaseholds. 
 
 On the transfer of leasehold land, unless there be an entry on 
 the register negativing such implication, there is implied: 
 
 (1.) on the part of the transferor a covenant with the 
 transferee that, notwithstanding anything by such 
 transferor done, omitted, or knowingly suffered, the 
 
 (s) Rule 141. 
 (0 Rule 142. 
 
 {u) s. 38 of the act of 1875. 
 
HOW A MORTGAGE OF REGISTERED LAND IS MADE. 
 
 595 
 
 rent, covenants, and conditions reserved and contained 
 by and in the registered lease, and on the part of the 
 lessee to be paid, performed, and observed, have been 
 so paid, performed, and observed up to the date of the 
 transfer; and 
 
 (2.) on the part of the transferee a covenant with the trans- 
 feror, that he, the transferee, his executors, adminis- 
 trators, or assigns, will pay, perform, and observe the 
 rent, covenants, and conditions by and in the regis- 
 tered lease reserved and contained, and on the part 
 of the lessee to be paid, performed, and observed, and 
 will keep the transferor, his heirs, executors, and ad- 
 ministrators, indemnified against all actions, suits, 
 expenses, and claims on account of the non-payment 
 of the said rent or any part thereof, or the breach of 
 the said covenants or conditions, or any of them (x). 
 
 All or any of the above covenants may, if it is desired, be 
 negatived by adding suitable words to the instrument of 
 transfer, and in that case an entry negativing the implied 
 covenants must be entered in the register. If it is desired to 
 substitute modified covenants for those implied, the necessary 
 additions may be made to the transfer (y ) . The transferor 
 may, for instance (subject to s. 16 (3) of the act of 1897), be 
 made to transfer as '‘beneficial owner,” and then the covenants 
 implied by the use of these words on the assignment of a lease 
 will be implied (z ) ; in this case the covenant by the trans- 
 feror set out in s. 39 will be unnecessary. 
 
 How a Mortgage of Registered Land is made. 
 
 Mortgages of registered land are of three classes: — 
 
 1. Mortgages by registration of a charge. 
 
 2. Mortgages to building societies; and 
 
 3. Equitable mortgages by deposit of the land certificate. 
 
 These require to be considered separately. 
 
 (®) s. 39 of the act of 1875. (z) Rule 99. 
 
 •(y) Rule 138. 
 
 That trans- 
 feree will 
 indemnify 
 transferor in 
 respect 
 thereof. 
 
 Variation of 
 
 implied 
 
 covenants. 
 
 Kinds of 
 mortgages. 
 
 Q Q 
 
 0 
 
596 
 
 BK. II. REGISTRATION OF TITLE. 
 
 (1) Mortgages by Registration of a Charge. 
 
 Registered 
 proprietor 
 may charge 
 land. 
 
 Procedure to 
 obtain regis- 
 tration of a 
 charge. 
 
 Every registered proprietor of either freehold or leasehold 
 land may in the manner prescribed by the rules charge such 
 land with the payment at an appointed time of any principal 
 sum of money either with or without interest, and with or 
 without a power of sale to be exercised at or after a time ap- 
 pointed (a). Charges so created are subject to the provisions 
 of the principal act in respect of qualified or possessory 
 titles (b). 
 
 The appropriate form of charge (of which there are several 
 according as the charge is to be on the whole or part of the 
 land registered or is to secure an annuity or future advances) 
 must be obtained from the registry (c), and prepared, executed, 
 and attested in the same way as a transfer (d) . The ordinary 
 form is as follows: — 
 
 Form 44 . — Instrument of Charge. ( Rule 158.) 
 
 (Heading as in Form 20.) 
 
 {Date.) In consideration of pounds (£ ), I, A. B., of, &c., 
 
 hereby charge the land comprised in the title above referred to with 
 the payment to 0. D., of, &c., on the of , 19 , of the 
 
 principal sum of £ , with interest at per cent, per annum, 
 
 payable [half-yearly, quarterly] on the of , &c. in every 
 
 year. 
 
 (To be executed as Form 20.) 
 
 Note .— Where the charge is made under section 9, sub-section 6 of 
 the act of 1897, and deals with part only of the land comprised in a 
 title, or is made under rule 96, the number of the title must be left 
 blank, and instead of the words “ the title above referred to ” a refer- 
 ence to the last preceding document of title containing a description 
 of the land must be inserted. 
 
 Where the consideration is advanced by different persons in separate- 
 sums or does not consist, or wholly consist, of money, its nature, or the 
 separate payments made, may be concisely stated. 
 
 The amount of the consideration should be stated in words, and 
 
 («) s. 22 of the act of 1875. 
 
 (5) Schedule I. of the act of 
 1897. By rules 175 to 181 the 
 provisions of the acts are adapted 
 to incumbrances created prior to 
 
 registration and to sub-mortgages. 
 
 (c) Rules 158 to 162. 
 
 ( d ) See rules 97 to 110, ante, 
 pp. 586 et seq. 
 
HOW A MORTGAGE OF REGISTERED LAND IS MADE. 
 
 59 
 
 repeated in figures — as, for instance, “ three hundred and seventy 
 pounds (£370).” 
 
 Where the charge is to two or more jointly, no addition need be made 
 to the form. 
 
 Where the money is to be held in separate shares, the following 
 variation may be used: — 
 
 After “payment to” insert “ C. D., of, &c., and E. F., of, &c., on 
 the of , 19 , of the respective principal sums of 
 
 and with interest ” &c., as in the above form. 
 
 Any of the following special stipulations may also be added at the 
 end of the charge. 
 
 A. — Stipulations negativing the covenants implied in charges by 
 sections 23 and 24 of the act of 1875 (e). 
 
 (1.) No covenant is hereby implied to pay the principal or interest 
 secured by the charge. 
 
 (2.) No covenant is hereby implied as to payment of rent or per- 
 formance or observance of the covenants or conditions of the regis- 
 tered lease, or as to indemnity in respect thereof. 
 
 B. — Stipulations in charges excluding the provisions of sections 25 
 to 27 of the act of 1875 (e), and altering the priority of charges 
 under section 28 of the same act. 
 
 (1.) The creditor shall have no power to enter on the land. 
 
 (2.) The creditor shall have no power to enforce foreclosure or sale 
 of the land. 
 
 (3.) The creditor shall have no power of sale. 
 
 (4.) The creditor may exercise the power of sale without notice. 
 
 (5.) This charge shall rank pari passu with a charge of even date 
 to of to secure or shall be the [first, second, third, 
 
 &c., as the case may 6e] in order of priority of three charges of even 
 date, one of which is to of to secure , another is to 
 
 of to secure , and the other is this charge, or shall 
 
 have priority to a charge dated, &c., registered, &c., in favour of A. B., 
 of, &c., for {or otherwise as the case may be). 
 
 C. — Miscellaneous Stipulations . 
 
 (1.) The interest to be secured by the charge shall be reduced to 
 per cent, in every (half-year, quarter, &c.) in which it is paid within 
 days after it becomes due. 
 
 (e) The registration of an in- these sections, to be deemed a 
 strument of charge negativing or sufficient negative or contrary 
 modifying the provisions of these entry on the register. (Rule 159.) 
 sections is, for the purposes of 
 
598 
 
 BK. II. REGISTRATION OF TITLE. 
 
 Form of 
 charge may 
 be modified. 
 
 Covenants for 
 title and con- 
 solidation. 
 
 Charge of 
 part of land. 
 
 (2.) None of the principal secured by the charge shall be called in 
 till the of 19 unless the interest shall fail to be paid within 
 days after it becomes due. 
 
 (3.) None of the principal secured by the charge shall be paid off 
 till the of 19 unless the proprietor of the charge shall be 
 
 willing to accept it. 
 
 (4.) If the interest secured by the charge shall be paid within 
 days after it becomes due the principal shall be payable by instalments 
 of each, to be paid on the of and the of 
 
 in every' year, the first of such instalments to be paid on the of 
 
 19 . 
 
 Provided that on failure of payment of any instalment within 
 days after it becomes due, the whole of the principal remaining owing 
 on the said security shall become payable at once. 
 
 Provided nevertheless that the whole or any part (not less than 
 at any one time) of the above-mentioned principal may be paid off on 
 giving one calendar month’s notice in writing of the intention to do so, 
 and on paying up all arrears of interest that may be due at the time 
 of such payment of principal. 
 
 Such alterations or additions may be made as are necessary 
 or desired and the registrar allows, provided that they are not 
 inconsistent with the principles on which the register is to be 
 kept (/) . The mortgagor can be made to give covenants for 
 title by the use of the appropriate words under s. 7 of the 
 Conveyancing Act, 1881 (g). And the right of consolidation 
 may be reserved; but the charge is not on that account to be 
 registered against any other land than that specifically de- 
 scribed in it (Ji ) . 
 
 Where part only of the land comprised in a title is included 
 in a charge, the part charged must be identified by a plan 
 signed by the person making the charge, and by or on behalf 
 of the person in whose favour the charge is made, or if the part 
 charged is clearly defined on the filed plan, it may be identified 
 by reference to that plan. Where the part dealt with is clearly 
 defined on the general map, the instrument may define it by 
 reference to that map instead of by means of an accompanying 
 plan (i ) . 
 
 (/) Rules 97 and 100. p. 605. 
 
 ( g ) Rule 99. (i) Rules 162 and 101 as 
 
 (A) Rule 169, and see infra, amended by the rules of 1907. 
 
599 
 
 EVIDENCE OF REGISTRATION OF A MORTGAGE. 
 
 Where the money is advanced by two or more persons, but Advance ^ 
 not on joint account, they will be entered either as joint pro- persons not on 
 prietors of the charge as a whole, or as proprietors as tenants i olljt account, 
 in common, according to their intention appearing in the charge 
 or in writing under their hands. If no such intention appears, 
 they will be entered as tenants in common ( k ) . 
 
 When the charge is properly executed and attested, the proper Completion of 
 Inland Revenue stamp, if any, should be impressed on it, and 
 the land registry stamps affixed (l). The charge, together with 
 the mortgagor s land certificate , if any (m), and a copy of the 
 instrument of charge (n) should then be left at, or sent by 
 post to, the land registry without delay. Notice will then be 
 given to the person by whom the charge purports to be executed, 
 and in the absence of any objection, the registration may be 
 completed at the expiration of three clear days from the posting 
 of the notice (0). 'The charge is completed by the registrar 
 entering on the register the person in whose favour the charge 
 is made as the proprietor of such charge, and the particulars 
 of the charge, and of the power of sale, if any (p). 
 
 Evidence of Registration of a Mortgage. 
 
 A certificate of charge must then be prepared and handed to Certificate 
 the mortgagee or, if he prefers, deposited in the registry (q). of char & e - 
 It must be produced to the registrar on every entry in the regis- 
 ter of a disposition by the registered proprietor of the charge 
 to which it relates (r) . 
 
 Before issuing a certificate of charge the registrar may re- Form of 
 quire to be lodged in the registry a statement signed by the mort- 
 creditor or his solicitor declaring whether the creditor will or g*gee holds 
 will not during the continuance of the charge allow the land cate . 
 certificate to remain in the custody of the registered proprie- 
 
 ( h ) Rule 163. 
 
 ( l ) See Fee Order, 9th Novem- 
 ber, 1908. 
 
 (m) s. 8 (1) of the act of 1897. 
 
 ( n ) Rule 158. 
 
 ( 0 ) Rules 111 and 118. 
 
 fp) s. 22 of the act of 1875. 
 
 (q) See s. 22 of the act of 1875, 
 s. 8 (4) (i) of the act of 1897, and 
 rule 259, infra, p. 634. See also 
 rule 259a of 1907. 
 
 (r) s. 8 (1) of the act of 1897. 
 
600 
 
 BK. II. REGISTRATION OF TITLE. 
 
 tor of the land, and unless a statement to the effect that the 
 creditor will allow it to remain in his custody is lodged, the 
 certificate of charge will consist merely of an office copy of the 
 charge endorsed with a certificate of its registration (s). 
 
 Alteration of Registered Mortgages. 
 
 Procedure 
 to obtain 
 alteration of 
 charge. 
 
 The registrar may, on the application or with the consent of 
 the registered proprietor of the land, and of the proprietors of 
 all registered charges (if any) of equal or inferior priority, alter 
 the terms of a charge (t). An application to alter the terms 
 of a registered charge must be in form 47 of the first schedule 
 to the rules, and must be executed by the registered proprietors 
 of the charge, and of the land, and of every charge of equal or 
 inferior priority prejudicially affected by the alteration (u). 
 
 Implied Covenants by the Registered Mortgagor. 
 
 Covenant to 
 pay principal 
 and interest. 
 
 In case of 
 leaseholds, 
 to pay renc 
 and perform 
 covenants. 
 
 Where a registered charge is created on any land there is 
 implied on the part of the person creating it, unless there be an 
 entry on the register negativing such implication (cc), a cove- 
 nant with the registered proprietor for the time being of the 
 charge to pay the principal sum charged, and interest, if any, 
 thereon, at the appointed time and rate; also a covenant, if the 
 principal sum or any part thereof is unpaid at the appointed 
 time, to pay interest half-yearly at the appointed rate on so 
 much of the principal sum as for the time being remains un- 
 paid (y). 
 
 Where a registered charge is created on leasehold land there 
 is implied on the part of the person creating it, unless there 
 bo an entry on the register negativing such implication (z), 
 a covenant; with the registered proprietor for the time being of 
 the charge, that the person creating it will pay, perform, and 
 observe the rent, covenants, and conditions by and in the regis- 
 
 (s) Rule 259 b of 1907. 
 
 ( t ) s. 9 (5) of the act of 1897. 
 
 (w) Rule 165. 
 
 ( x ) The registration of an in- 
 strument of charge negativing or 
 
 modifying the provisions of these 
 sections is a sufficient entry on 
 the register. (Rule 159.) 
 
 (y) s. 23 of the act of 1875. 
 
 (z) See rule 159, supra. 
 
RIGHTS OF THE REGISTERED MORTGAGEE. 
 
 601 
 
 tered lease reserved and contained, and on the part of the lessee 
 to be paid, performed, and observed, and will keep the pro- 
 prietor of the charge, his heirs, executors, and administrators, 
 indemnified against all actions, suits, expenses, and claims, on 
 account of the non-payment of the said rent, or any part 
 thereof, or the breach of the said covenants or conditions, or 
 any of them (a ) . 
 
 Either of the foregoing covenants can be negatived by in- 
 serting a stipulation to that effect in the form of charge (&), 
 and where the mortgagor is made to convey as beneficial owner, 
 the latter covenant being unnecessary should always be nega- 
 tived. 
 
 Rights of the Registered Mortgagee. 
 
 Subject to any entry to the contrary on the register (c), the (fi To take 
 registered proprietor of a registered charge may, for the pur- h osse88 n> 
 pose of obtaining satisfaction of any moneys due to him under 
 the charge, at any time during the continuance of his charge, 
 enter upon the land charged, or any part thereof, or into the 
 receipt of the rents and profits thereof, subject nevertheless 
 to the right of any persons appearing on the register to be 
 prior incumbrancers, and to the liability attached to a mort- 
 gagee in possession (d). 
 
 Subject to any entry to the contrary on the register (c), the fi 1 ) To fore- 
 registered proprietor of a registered charge may enforce a fore- 
 closure or sale of the land charged, in the same manner and 
 under the same circumstances in and under which he might 
 enforce the same if the land had been transferred to him by 
 way of mortgage, subject to a proviso for redemption on pay- 
 ment of the money named at the appointed time (e). Where 
 he obtains an order for foreclosure absolute, the order or an 
 office copy of it must be delivered to the registrar, who must 
 thereupon enter the proprietor of the charge as proprietor 
 (subject to prior charges) of the land, the equity of redemption 
 in which is foreclosed. The certificate of charge and, if re- 
 
 fa) s. 24 of the act of 1875. 
 (6) See ante , p. 597. 
 
 (c) See rule 159, supra. 
 
 (d) s. 25 of the act of 1875. 
 
 (e) Ibid. 
 
602 
 
 BK. II. REGISTRATION OF TITLE. 
 
 (iii) To sell. 
 
 (iv) To insure. 
 
 (v) To appoint 
 a receiver. 
 
 (vi) To cut 
 and sell 
 timber. 
 
 Power to 
 transfer on 
 sale. 
 
 Power of 
 leasing 
 
 Power to 
 assign charge. 
 
 Disadvantage 
 of a regis- 
 tered charge. 
 
 quired by the registrar, the land certificate, must accompany 
 the application (/). 
 
 The provisions of ss. 19, 20, 21 (except sub-ss. 1 and 4), 
 22, 23, and 24 of the Conveyancing Act, 1881, also aj:>ply to 
 registered charges (g ) ; so that the proprietor of a registered 
 charge will also have power (i) to sell, (ii) to insure, (iii) to 
 appoint a receiver, and (iv) while in possession to cut and sell 
 timber upon the terms and subject to the conditions therein 
 mentioned. 
 
 Subject to any entry to the contrary on the register, ;the 
 registered proprietor of a registered charge with a power of sale 
 may, at any time after the expiration of the appointed time, 
 sell and transfer the land on which he has a registered charge, 
 or any part thereof, in the same manner as if he were the 
 registered proprietor of such land (h ) . 
 
 The acts contain no provision giving either a mortgagor or 
 mortgagee power to make leases. It seems to be generally 
 assumed that s. 18 of the Conveyancing Act, 1881, applies 
 and enables either mortgagor or mortgagee while in possession 
 to make leases to the extent there specified (i). 
 
 Nothing contained in any charge can (i) take away from the 
 registered proprietor thereof the power of transferring it by 
 registered disposition or of requiring the cessation thereof to 
 be noted on the register, or (ii) affect any registered dealing 
 with land or a charge in respect of which the charge is not 
 expressly registered or protected (1c ) . 
 
 It will thus be seen that the position of a mortgagee under 
 a registered charge is very similar to that of a legal mortgagee 
 of unregistered land, but there is one important difference. A 
 mortgagee of unregistered land acquires the legal estate and 
 has all the rights of legal ownership, and if he takes possession 
 he becomes, after twelve years without acknowledgment, full 
 owner in equity as well as at law, all rights and title of the 
 
 (/) Rule 164. 
 
 ( g ) s. 9 (2) of the act of 1897. 
 
 (Ii) s. 27 of the act of 1875; see 
 also s. 8 (4) of the act of 1897. 
 
 (i) Rule 203, infra , p. 619, 
 seems to confirm this view, at any 
 rate so far as the mortgagor is 
 
 concerned. It is also suggested 
 that the section applies in Cherry 
 and Marigold, Land Transfer 
 Acts, 17, and in Brickdale and 
 Sheldon, Land Transfer Acts, 
 2nd ed. 322. 
 
 (7r) s. 9 (4) of the act of 1897. 
 
RIGHTS OF THE REGISTERED MORTGAGEE. 
 
 603 
 
 mortgagor and all persons claiming under him being completely 
 extinguished. The mortgagee under a registered charge, how- 
 ever, does not obtain the legal estate. This being so, it 
 is not clear that even on taking possession the mortgagee 
 could bring an action of ejectment against a trespasser — 
 a matter which may be of importance if he has to realize 
 his security by taking possession or by foreclosure. Nor 
 is it clear that a registered chargee as such has the extended 
 power of sale given by the Conveyancing Act, 1911. The 
 disadvantage which the non-possession of the legal estate 
 involves may be in part removed by taking a conveyance of it 
 either by inserting such a conveyance in the form of charge, or 
 better by a separate deed of conveyance in the ordinary form 
 of a mortgage deed (7). In practice this is often done and is 
 sufficient to jmss the legal estate (m). But this will not enable 
 the mortgagee to acquire full ownership by any length of pos- 
 session, owing to the provisions of s. 12 of the act of 1897 (n). 
 After he has been in possession twelve years without acknow- 
 ledgment he may apply, under s. 95 of the act of 1875, to the 
 court to rectify the register, but the court has a discretion 
 whether it will make the order or not, and even if it gives 
 him an order, his estate will be subject to any estates or rights 
 acquired by registration for valuable consideration, and in any 
 case he must incur the expense of the application to the court. 
 A mortgage of registered land may also be effected by tbe 
 mortgagee insisting upon being registered as proprietor of the 
 land, and also taking a mortgage off the register in the ordinary 
 form. It seems, however, that in such a case the instrument 
 of transfer will require a separate stamp, though the mortgage 
 deed has already been stamped. 
 
 (1) See Brickdale and Sheldon, 
 Land Transfer Acts, 157, 2nd ed. 
 169. It is better to have a separate 
 deed because (1) the mortgagee 
 will keep this; he does not keep 
 the charge; and (2) he clearly be- 
 comes a mortgagee by deed within 
 the meaning of s. 18 of the Con- 
 veyancing Act, 1881, and so en- 
 titled to make leases while in 
 
 possession. See opinion of Mr. 
 Cherry, Law Notes, vol. xxiii. 177, 
 and Cherry and Marigold, Land 
 Transfer Acts, 17. See also Law 
 Notes, vol. xxiii. 245. 
 
 (m) Capital and Counties Bank 
 v. Rhodes, (1903) 1 Ch. 631; see 
 also Sol. Jour. vol. xlvii. 335. 
 
 ( n ) Ante , p. 583. 
 
604 
 
 BK. II. REGISTRATION OF TITLE. 
 
 Priority. 
 
 Tacking. 
 
 Procedure on 
 transfer of 
 registered 
 charge. 
 
 Priorities of Registered Mortgages. 
 
 Subject to any entry to the contrary on the register, regis- 
 tered charges on the same land rank as between themselves 
 according to the order in which they are entered on the register, 
 and not according to the order in which they are created (o). 
 
 It seems to follow from this that the doctrine of tacking has 
 no application to mortgages of registered land(p). But the 
 order of priority inter se admits of being varied by an appro- 
 priate entry (g). 
 
 Transfer of Registered Mortgages. 
 
 The registered proprietor of any charge may transfer it to 
 another person as proprietor (r). For this purpose a form 
 of “ Instrument of Transfer of Charge must be obtained from 
 the registry (s). The form is as follows: — 
 
 Form 49. — Instrument of Transfer of Charge. { Rule 168.) 
 
 (Heading as in Form 20.) 
 
 {Date.) In consideration of , I, A. B., of, &c., hereby transfer 
 
 to C. D., of, &c., the charge dated {date), and registered {date), of 
 which I am the registered proprietor. {If 'part only of the money 
 secured is transferred add: as to the sum of pounds £ .) 
 
 (To be executed as Form 20.) 
 
 Note. — Where the charge is transferred to two or more as tenants 
 in common, words to that effect should be added stating the sum trans- 
 ferred to each: see note to Form 20. 
 
 This must be prepared, executed, and attested as described 
 
 (o) s. 28 of the act of 1875. 
 
 {p) This view is also expressed 
 in Brickdale and Sheldon, Land 
 Transfer Acts, 2nd ed. 169, but it 
 is there put on the ground (1) that 
 the legal estate remains in the 
 mortgagor (which, however, is not 
 now usually the case); and (2) 
 that the puisne mortgagee could 
 
 not plead ignorance of a mesne 
 incumbrance entered on the re- 
 gister, and endorsed on the mort- 
 gagor’s land certificate. 
 
 {q) Further provisions with re- 
 ference to priorities are contained 
 in rules 171 to 173. 
 
 ( r ) s. 40 of the act of 1875. 
 
 (s) Rule 168. 
 
DISCHARGE OF REGISTERED MORTGAGES. 
 
 605 
 
 in the case of other forms (t). The transferor may, if re- 
 quired, be expressed to transfer as beneficial owner or other- 
 wise, so as to introduce the covenants implied by s. 7 of the 
 Conveyancing Act, 1881 (u). The proper Inland Revenue 
 stamp (if any) should then be impressed on the form, and land 
 registry fee stamps ( x ) affixed, and the transfer, together with 
 the certificate of charge, if any (?/), should be left at, or sent 
 by post to, the land registry without delay. 
 
 Notice will be given to the person by whom the transfer 
 purports to be executed (z), and in due course the transfer will 
 be completed by the registrar entering the transferee on the 
 register as proprietor of the charge transferred; the registrar 
 must also, if required, deliver to the transferee a fresh certifi- 
 cate of charge, but the transferor is deemed to remain proprie- 
 tor of the charge until the name of the transferee is entered 
 on the register (a ) . 
 
 Discharge of Registered Mortgages. 
 
 The registrar must, on the requisition of the registered pro- 
 prietor of any charge, or on due proof of the satisfaction there- 
 of, notify on the register in the prescribed manner by cancelling 
 the original entry or otherwise the cessation of the charge, and 
 thereupon the charge shall be deemed to have ceased (&). 
 This also applies to part discharges (c) . For this purpose a 
 form of “discharge” should be obtained from the registry 
 and signed by the chargee, and taken or sent to the registry. 
 But the registrar is at liberty to accept and act upon any other 
 proof of satisfaction of a charge which he may deem suffi- 
 cient ( d ). 
 
 It seems clear that a chargee of registered land cannot take 
 advantage of the doctrine of consolidation without expressly 
 reserving the right, but it appears from rule 169 that the right 
 
 (t) See ante, pp. 586 et seq. 
 
 ( u ) Rule 99. 
 
 (x) See Fee Order, 9th Novem- 
 ber, 1908, infra, p. 659. 
 
 ( y ) s. 8 (1) of the act of 1897. 
 
 (z) Rule 118. 
 
 (a) s. 40 of the act of 1875. 
 (5) s. 28 of the act of 1875. 
 
 (c) Schedule I. of the act of 
 
 1897. 
 
 (d) Rule 166. 
 
 Completion. 
 
 Procedure on 
 payment off 
 of registered 
 charge. 
 
 Consolidation. 
 
606 
 
 BK. II. REGISTRATION OF TITLE. 
 
 Notice of 
 payment off. 
 
 may be reserved in the charge; even then, however, the charge 
 must be registered against both or all the lands affected in order 
 to make it effective (e). 
 
 The acts contain no provision with regard to the length of 
 notice of intention to pay off to be given by the mortgagor to 
 the mortgagee, but, presumably, the ordinary rule that he must 
 give six months’ notice or pay six months’ interest in lieu of 
 notice will apply. 
 
 Ordinary 
 form of mort 
 gage to be 
 used in case 
 of building 
 society mort- 
 gagee, 
 
 and in case 
 of friendly 
 and industrial 
 and provident 
 societies ; 
 
 but must be 
 registered. 
 
 Mortgage 
 retained by 
 building 
 society. 
 
 (2) Building Society Mortgages. 
 
 The above is the usual course of procedure, but the case of 
 mortgages to a building society is the subject of special provi- 
 sions, it being provided by s. 9 (3) of the act of 1897 that — 
 
 Every registered proprietor of land may charge it, in favour 
 of a building society under the Building Societies Acts, by 
 means of a mortgage made in pursuance of or consistent with 
 the rules of that society, and the mortgage shall be deemed a 
 charge made in the prescribed manner, and shall be registered 
 accordingly . 
 
 In practice this provision is extended under the general dis- 
 cretion given to the registrar by rule 311 to friendly societies 
 and industrial and provident societies, so that where the mort- 
 gagee is a building society, or friendly, industrial, or provident 
 society, the mortgagor, instead of filling up the forms men- 
 tioned above, will execute a mortgage in the ordinary form, 
 except so far as it may be varied by the rules of the society. 
 
 This must be taken or sent to the registry accompanied by a 
 copy of the rules of the society certified as correct by the solici- 
 tor or secretary, and must be registered in lieu of the form of 
 charge mentioned above. 
 
 Upon the registration of a charge in favour of a building 
 society, friendly society (including a branch society), or indus- 
 trial and provident society, the instrument of charge may, if 
 it is so desired, be delivered to them after registration upon 
 their delivering at the registry a copy verified by the signature 
 of the secretary as being a correct copy, which copy will be 
 
 (A s. 9 (4) of the act of 1897 ,ante, p. 602. 
 
EQUITABLE MORTGAGES. 
 
 607 
 
 admissible for all purposes as sufficient evidence of the contents 
 and execution thereof, without the production of the original 
 charge. The copy need not be stamped, and must be filed 
 in the registry (/) . In this case the instrument of charge 
 must be indorsed with a certificate of registration, and the in- 
 strument so indorsed will be treated for all purposes as the 
 certificate of charge. It must be indorsed with notes of trans- 
 fers, part discharges, and other dealings, and when the charge 
 is wholly discharged must be delivered up, cancelled, and re- 
 tained in the registry (g) . 
 
 When all moneys intended to be secured by any mortgage or 
 charge to or in favour of any building society, friendly society 
 (including a branch society), or industrial and provident society 
 have been fully paid or satisfied, an instrument of discharge in 
 the form provided by the rules, under the seal of such society 
 if incorporated, or under the hands and seals of the trustees for 
 the time being of or acting in that matter for such building or 
 friendly society, or other the proper officers thereof, if such 
 society is not incorporated, and attested by the secretary, or 
 under the hands and seals of two members of the committee 
 of an industrial and provident society, if unincorporated, and 
 attested by the secretary, will have the same effect and opera- 
 tion in vacating the mortgage, or charge, and in vesting the 
 estate, and otherwise, as a receipt indorsed on such mortgage or 
 charge duly made, signed, and attested in such form and 
 manner, and by such persons as is prescribed by, and other- 
 wise in conformity with the provisions of s. 5 of 6 & 7 Will. 4, 
 c. 32, s. 42 of the Building Societies Act, 1874, s. 43 of the 
 Industrial and Provident Societies Act, 1893, and s. 53 of the 
 Friendly Societies Act, 1896, respectively (Ji). 
 
 (3) Equitable Mortgages. 
 
 The methods above set out are the only ways in which a 
 legal mortgage of registered land can be created; but by 
 s. 8 (4) of the act of 1897, “ The registered proprietor of any 
 
 Discharge of 
 building 
 society 
 mortgage. 
 
 Deposit of 
 certificate 
 equivalent to 
 deposit of 
 title deeds. 
 
 (/) Rule 121. 
 ( g ) Rule 122. 
 
 { [h ) Rule 167. 
 
608 
 
 BK. II. REGISTRATION OF TITLE. 
 
 Notice of 
 deposit of 
 certificate. 
 
 Notice of 
 intention to 
 deposit 
 certificate. 
 
 freehold or leasehold land or of a charge may, subject to any 
 registered estates, charges, or rights, create a lien on the land 
 or charge by deposit of the land certificate or office copy of 
 registered lease, or certificate of charge; and such lien shall, 
 subject as aforesaid, be equivalent to a lien created by the 
 deposit of title deeds or of a mortgage deed of unregistered 
 land by an owner entitled in fee simple or for the term or 
 interest created by the lease for his own benefit, or by a mort- 
 gagee beneficially entitled to the mortgage. 7 7 
 
 Any person with whom a land certificate or certificate of 
 charge is deposited as security for money may by registered 
 letter, or otherwise in writing, give notice to the registrar of 
 such deposit, and of his name and address; he must describe 
 (by reference to the county and parish or place and number of 
 the title) the land to which the certificate relates, and on receipt 
 of such notice the registrar must enter the same in the Charges 
 Register, and give a written acknowledgment of its receipt. 
 Such notice will operate as a caution under s. 53 of the act 
 of 1875 (t). 
 
 Further, a person applying for registration as proprietor of 
 land or of a charge may, whether the land or charge is already 
 registered or not, create a lien on the land or charge equivalent 
 to that created by the deposit of a certificate by giving notice 
 in writing, signed by himself, to the registrar, that he intends 
 to deposit the land certificate or certificate of charge when 
 issued with another person as security for money (fc). The 
 notice of such intended deposit must state the name and address 
 of the person with whom the certificate is to be deposited, and 
 must describe the land or charge to which the certificate relates 
 by reference to the county and parish or place and number of 
 the title or (in the case of unregistered land) by reference 
 to the deed or document by which the land was last dealt with, 
 or otherwise to the satisfaction of the registrar. On receipt 
 of such notice the registrar must enter the same in the register 
 and give a written acknowledgment thereof (?) . A notice of 
 intended deposit will operate as a caution under s. 53 of the 
 
 (i) Rule 243. 
 (k) Rule 244. 
 
 (?) Rule 245. 
 
ANNUITIES AND LAND CHARGES. 
 
 609 
 
 act of 1875. The certificate must, when issued or re-issued, 
 be delivered by the registrar to the person named in that behalf 
 in the notice (m) . 
 
 Notice of deposit or intended deposit of a certificate cannot Dealing 
 be entered while another such charge is on the register, nor as dfter llotlC( 
 to part only of the land or charge to which the certificate 
 relates (n). If while a notice of deposit or intended deposit is 
 on the register the certificate is left in the registry for any 
 purpose, it will be dealt with notwithstanding the notice, and 
 will be returned to the person leaving it, or as he may in 
 writing direct (o) ; but so long as a notice of such deposit is 
 on the register, no new certificate can be issued under s. 8, 
 sub-s. 3, of the act of 1897, nor can any new certificate be 
 issued under sub-s. 4 of the same section on a sale under a 
 charge subsequent in priority to the notice of deposit without 
 notice similar to that under a caution (p ) . 
 
 The notice of deposit, or of intended deposit, may bo with- Discharge, 
 drawn from the register on a written request or consent signed 
 by the person entitled to the lien created by the deposit or 
 notice or his successor in title; accompanied in each case by 
 the land certificate, or certificate of charge (q ) . The lien 
 created by the deposit of a certificate or by notice to the regis- 
 trar under rule 244 will be subject to any unregistered estates, 
 rights, or interests protected by caution or other entry on the 
 register at the time of the creation of the lien, and in the case 
 of good leasehold qualified or possessory title, to estates, rights, 
 and interests excepted from the effect of registration (r) . 
 
 Annuities and Land Charges. 
 
 Every registered proprietor of land may charge it in manner Annuities, 
 prescribed by rule 160 with an annuity or other periodical 
 payment, and the provisions of the acts with regard to charges 
 apply to such a charge for an annuity (s) . 
 
 (m) Rule 246. 
 
 (n) Rule 247. 
 
 (o) Rule 248. 
 
 (p) Rule 249. 
 
 (q) Rule 250 of 1907. 
 
 (r) Rule 251. 
 
 (s) s. 9 (3) of the act of 1897 
 
 G. — C. 
 
 It R 
 
610 
 
 BK. II. REGISTRATION OF TITLE. 
 
 Statutory- 
 land charges. 
 
 Applicant for 
 registration 
 may transfer 
 or charge 
 before regis- 
 tration. 
 
 Etfect of such 
 transfer, &c. 
 
 Must be 
 accompanied 
 by application 
 for registra- 
 tion. 
 
 Priority 
 
 notice. 
 
 Every land charge arising under an act of parliament is 
 deemed to be created by the person registered as proprietor of 
 the land at the date of the charge, and may be registered ac- 
 cordingly; but the covenants by the proprietor of the land 
 under ss. 23 and 24 of the act of 1875 will not be implied, 
 and the proprietor of the charge will not by virtue of such 
 registration be entitled to any rights under ss. 25, 26 or 27 
 of that act to which he would not otherwise have been en- 
 titled (t). 
 
 Transfers and Charges before Registration. 
 
 Where a person having the right to apply for registration 
 as first proprietor of land desires to transfer or charge the land 
 before he is himself registered as proprietor, he may do so in 
 the manner, and subject to the conditions, which would be 
 applicable if he were in fact the registered proprietor. 
 
 Subject to any prior rights obtained by registration under 
 the acts and rules, a transfer or charge so made, when completed 
 by registration, has the same effect as if the person making it 
 were registered as proprietor. 
 
 But a charge will not be accepted for registration until an 
 application has been made for the registration of the land to 
 which it relates, and if the application for registration of the 
 land is subsequently refused, or withdrawn, or abandoned, the 
 registration of the charge will be annulled (u ) . 
 
 Any applicant for registration may also secure priority for 
 an application which he intends to subsequently make. Buie 95 
 provides that a person entitled to apply for registration as first 
 proprietor of land (whether his application requires the consent 
 of any other person or not) or his solicitor, or with his consent 
 in writing any other person or his solicitor, may lodge at the 
 registry a notice (to be called a priority notice) in form 18 in 
 the first schedule, reserving priority for a specified application 
 intended to be subsequently made, and a written acknowledg- 
 ment of the receipt of the notice shall be given him. If within 
 
 (t) Rule 170. For definition of (u) Rule 96. See Fee rule 8, 
 “land charge,” see rule 1 (3). infra , p. 665. 
 
TRANSMISSION OF LAND AND CHARGES BY OPERATION OF LAW. 
 
 611 
 
 fourteen days from the lodgment of the notice, or within such 
 further time as the registrar shall think fit, an application is 
 made in accordance with the notice and is accompanied by the 
 acknowledgment, it shall be dealt with in priority to any other 
 application affecting the same land which may have been made 
 in the meantime. On the expiration of the period fixed as 
 aforesaid for the operation of the notice it may be cancelled. 
 
 Transmission of Land and Charges by operation of Law. 
 
 (1) On Death. 
 
 On the death of the sole or sole surviving registered pro- 
 prietor of land or a charge since 1897, his personal repre- 
 sentatives have the option either to be themselves registered as 
 proprietors ;and then afterwards to transfer the land to the 
 beneficiaries (in which case no fee is chargeable unless the trans- 
 fer is for valuable consideration), or without being themselves 
 registered to execute an instrument of assent or transfer under 
 ss. 3 (1) and 9 (6) of the act of 1897; or an instrument 
 of appropriation under s. 4 (1) of the same act, which will 
 enable the person in whose favour it is made (subject to possible 
 prior charges under the will) to be registered as proprietor in 
 place of the testator or intestate (x ) . Assuming that the per- 
 sonal representatives adopt the former alternative, on pro- 
 duction of the probate or letters of administration, the per- 
 sonal representative named in the probate or letters must be 
 registered as proprietor in the place of the deceased proprie- 
 tor, with the addition of the words, “ executor or executrix (or 
 administrator or administratrix) of [name'] deceased,” and if 
 an executrix or administratrix is a married woman, that fact 
 must be stated (y). 
 
 All that it is necessary to do is to take the probate or letters 
 of administration with a form of application for its registration 
 to the registry, and pay the ad valorem fee (z) in land registry 
 stamps. 
 
 (x) See ss. 41 and 42 of the act ( y ) Rule 183. 
 of 1875, ss. 1 — 5 of the act of 1897, ( z ) See Fee Order, 9th Novem- 
 
 and rules 183 to 185. her, 1908, par. c. 
 
 R R 2 
 
 Personal 
 representa- 
 tives may be 
 registered or 
 may transfer, 
 &c. 
 
 Probate or 
 administra- 
 tion must be 
 produced. 
 
612 
 
 BK. II. REGISTRATION OF TITLE. 
 
 Registration 
 of several 
 executors. 
 
 Transfer by 
 personal 
 representa- 
 tives. 
 
 Duty of 
 personal 
 representa' 
 tive when 
 property 
 settled by 
 will of 
 deceased. 
 
 Procedure 
 where 
 deceased a 
 tenant for 
 life. 
 
 When, after one executor has been registered as proprietor 
 under the preceding rule, another executor applies to be regis- 
 tered as proprietor jointly with him, the registrar must, after 
 notice to the other executor or executors, make the necessary 
 alteration in the register upon production by the executor ap- 
 plying of the probate obtained by him; or if he has not proved 
 the will, of a statement in writing, signed by him, that he has 
 accepted the executorship and desires to be registered accord- 
 ingly (a). 
 
 If, on the other hand, the personal representatives adopt the 
 second alternative mentioned above, on the production of — 
 
 (a) the probate or letters of administration with the will an- 
 
 nexed and of an instrument of assent or appropriation 
 in either of the forms 51 or 52 in the first schedule 
 to the rules; or 
 
 (b) a transfer by the personal representative and of the 
 
 probate or letters of administration, 
 the devisee or legatee named in the assent or appropriation, or 
 the transferee named in the transfer, must be registered as 
 proprietor of the land or charge in place of the deceased pro- 
 prietor (b). 
 
 Where a settlement is created by the will of, or otherwise 
 arises in consequence of the death of, a sole registered pro- 
 prietor, the personal representative must, at the proper time, 
 with the consent of the tenant for life (if of full age) deliver 
 at the registry, together with the probate or letters of adminis- 
 tration, ;a written application for the registration of a pro- 
 prietor, with the proper restrictions, according to the principles 
 stated in s. 6 of the act of 1897 and rule 80; and thereupon 
 the registration will be made accordingly; and, if the parties 
 desire it, the probate, or settlement, or a copy or abstract 
 thereof, may be deposited in the registry for safe custodj" and 
 future reference (c ) . 
 
 Where the deceased proprietor was himself a “ tenant for 
 life” within the meaning of the Settled Land Acts, or, it is 
 thought, a person having the powers of a tenant for life, his 
 
 (а) Rule 184. 
 
 (б) Rule 185. 
 
 (c) Rule 186. 
 
TRANSMISSION OF LAND AND CHARGES BY OPERATION OF LAW. 
 
 613 
 
 personal representatives have no duty in regard to the matter. 
 
 In this case it is the duty of the trustees of the settlement (if 
 any) to apply for the registration of his successor or successors 
 with such restrictions or inhibitions (if any) as may be re- 
 quired (d). 
 
 When the trustees of a settlement apply, on the death of a Whentrustees 
 tenant for life, for the registration of a successor under the apply ’ 
 settlement, they and their solicitor must make a statutory de- 
 claration to the effect that the deceased proprietor was tenant 
 for life, and that they are the trustees of the settlement, and 
 that the person for whose registration they are applying is the 
 successor under the settlement, and that the restrictions applied 
 for are those proper to be entered, or that no restrictions are 
 required (e). In any case under this rule in which the regis- 
 trar requires that the declaration shall be accompanied by a 
 certificate of counsel to the like effect, such certificate to his 
 satisfaction must be produced (/) . When such declaration 
 (and certificate if required) are produced, the registrar cannot 
 require production of the settlement or any further evidence; 
 but when they are not produced he must inquire into the 
 terms of the settlement and must satisfy himself that the 
 proper entries are made on the register ( g ). 
 
 On the death of a tenant for life registered as proprietor of When 
 • trustees do 
 
 land, if the trustees of the settlement neglect to apply for the not apply 
 registration of the new proprietor in his place, or if there are 
 no such trustees, any person interested under the settlement 
 may apply for the registration of a new proprietor. The regis- 
 trar must thereupon inquire into the terms of the settlement, 
 and settle draft entries for the register on the jM’inciples stated 
 in is. 6 of the act of 1897 and rule 80 in regard to settled 
 land, and must give notice thereof to the trustees of the settle- 
 ment (if any) and to the succeeding tenant for life, and to such 
 other persons (if any) as he may think fit, and if no valid 
 objection is made thereto must enter the new proprietor accord- 
 ingly ( h ). 
 
 (d) s. 6 (4) of the act of 1897. 
 
 (e) Rule 187. 
 
 (/) Rule 188. 
 
 (g) Rule 189. 
 
 ( h ) Rule 190. 
 
614 
 
 BK. II. REGISTRATION OF TITLE. 
 
 Procedure on 
 death of one 
 of several 
 joint pro- 
 prietors. 
 
 Procedure 
 on death of 
 trustee in 
 bankruptcy. 
 
 Trustee in 
 bankruptcy 
 or official 
 receiver 
 entitled to be 
 registered. 
 
 Procedure on 
 registration 
 of official 
 receiver. 
 
 Procedure on 
 registration 
 of trustee. 
 
 If one of several joint proprietors of land or of a charge die, 
 his name will be withdrawn from the register on proof of 
 death, or on production of probate or letters of administration, 
 together with such other evidence (if any) as the registrar may 
 require (i). 
 
 On the death of a proprietor registered as official receiver 
 or trustee in bankruptcy, his personal representatives will not 
 be registered, but proceedings must be taken in accordance with 
 rule 198 (k). 
 
 (2) On Bankruptcy. 
 
 Upon the bankruptcy of a registered proprietor of any land 
 or charge, or on the liquidation of his affairs by arrangement, 
 his trustee is entitled to be registered as proprietor in his 
 place (Z). But not until it is certified in the prescribed manner 
 by the court having jurisdiction in bankruptcy that the land 
 or charge is part of the property of the bankrupt divisible 
 amongst his creditors. The official receiver is entitled to be 
 registered pending the appointment of a trustee (m ) . 
 
 On production to the registrar of an office copy of an order 
 of a court having jurisdiction in bankruptcy adjudging a pro- 
 prietor bankrupt, or directing the estate of a deceased proprietor 
 to be administered under s. 125 of the Bankruptcy Act, 1883, 
 together with a certificate signed by the official receiver that 
 any registered land or charge is part of the property of the 
 bankrupt, or deceased proprietor, divisible amongst his credi- 
 tors, the official receiver may be registered as proprietor in 
 the place of the bankrupt or deceased proprietor (w). When 
 the official receiver has been registered as proprietor and some 
 other person is subsequently appointed trustee, such person may 
 be registered as proprietor in the place of the official receiver, 
 on production of an office copy of the certificate by the Board of 
 Trade of his appointment as trustee (o). If the official re- 
 ceiver has not been registered as proprietor, the trustee may be 
 
 (i) Rule 191. 
 
 (k) Rule 192. See rule 198, 
 p. 615, infra. 
 
 ( l ) s. 43 of the act of 1875. 
 
 (m) Schedule I. of the act of 
 1897. 
 
 (?i) Rule 193. 
 
 (o) Rule 194. 
 
TRANSMISSION OF LAND AND CHARGES BY OPERATION OF LAW. 
 
 615 
 
 registered as proprietor on production of office copies of the 
 order adjudging the proprietor bankrupt, and of the certificate 
 of the appointment of the trustee, with a certificate signed by 
 the trustee that the land or charge is part of the property of 
 the bankrupt, divisible amongst his creditors (p) . Where the 
 official receiver or trustee in bankruptcy is registered as pro- 
 prietor, the words “ official receiver,” or “trustee of the pro- 
 perty ( of [name], a bankrupt,” must be added in the register (q). 
 
 If any registered land or charge is vested in the trustee under 
 the provisions of a scheme of arrangement approved by a court 
 having jurisdiction in bankruptcy, the official receiver or other 
 trustee may be registered as proprietor in like manner as a 
 trustee in bankruptcy, upon production of an office copy of the 
 scheme of arrangement; a certificate signed by the official 
 receiver or such other trustee, that the registered land or charge 
 was part of the property vested in him under the j:>rovisions of 
 the scheme; and, in the case of a trustee, other than the official 
 receiver, an office copy of the certificate by the Board of Trade 
 of his appointment as trustee (r). 
 
 When a trustee in bankruptcy, or trustee under the provisions 
 of such scheme of arrangement, who has been registered as 
 proprietor, vacates his office as trustee by reason of a receiving- 
 order having been made against him, or by release, resignation, 
 death, removal from office, or any other cause, the official re- 
 ceiver may be registered as proprietor; or if some other person 
 be appointed trustee, such person may be registered as proprie- 
 tor on production of an office copy of the certificate of his 
 appointment as trustee (s). 
 
 Where the official receiver or a trustee has been registered as 
 proprietor, and, by reason of any act or omission or order, his 
 estate and interest in the property has become divested, he may 
 give notice to the registrar in form 53 in the first schedule to 
 the rules, which notice will be entered on the register, together 
 with a general restriction against dealings until further order. 
 On such entry being made the official receiver or trustee will be 
 exonerated from all such liability (if any) as may affect him in 
 
 Where 
 registered 
 land included 
 in scheme of 
 arrangement. 
 
 Official 
 receiver or 
 trustee vacat- 
 ing office. 
 
 Notice of 
 cesser of 
 interest of 
 official 
 receiver or 
 trustee. 
 
 ( p ) Rule 195. 
 (g) Rule 196. 
 
 (r) Rule 19V. 
 
 (s) Rule 198. 
 
BK. II. REGISTRATION OF TITLE. 
 
 HI 6 
 
 respect of the property by reason of his name being entered on 
 the register as proprietor. When such notice has been entered 
 on the register an entry may be made under rule 151 without 
 notice to the registered proprietor, or inquiry as to his execution 
 of a transfer (t). 
 
 Liquidation I n the liquidation of a company, any resolution or order 
 
 of a company. . 
 
 appointing a liquidator may be hied and referred to on the 
 register, and, when so registered, is deemed to be in force until 
 it is cancelled or superseded on the register ( 11 ). 
 
 Transfer, &c. The official receiver or trustee may transfer or charge land 
 nation re ^ 1S ' or deal with a charge belonging to the bankrupt without being 
 himself registered as proprietor (x). 
 
 Effect of Registration of Transmissions. 
 
 Transmission 
 is subject to 
 existing 
 rig-hts. 
 
 Any person registered in the place of a deceased or bankrupt 
 proprietor holds the land or charge in respect of which he is 
 registered upon the trusts and for the purposes to which the 
 same is applicable by law, and subject to any unregistered 
 estates, rights, interests, or equities subject to which the de- 
 ceased or bankrupt proprietor held it; but, save as stated, he 
 is in all respects, and in particular as respects any registered 
 dealings with the land or charge, in the same position as if he 
 had taken the land or charge under a transfer for a valuable 
 consideration (y). 
 
 The Method of protecting Unregistered Dealings with 
 
 Registered Land. 
 
 Effect of 
 
 unregistered 
 
 dispositions. 
 
 The general principle of the acts is that, with regard to all 
 land brought under their provisions, some person must be regis- 
 tered (as in the case of consols and the like) as absolute owner , 
 either of the freehold or leasehold interest; the person so regis- 
 tered is called in the acts the registered proprietor. 
 
 The registered proprietor is alone entitled to transfer or 
 charge registered land by a registered disposition; but, subject 
 
 (cc) s. 9 (6) of the act of 1897, 
 and rules 104 and 105. 
 
 (y) s. 46 of the act of 1875. 
 
 (t) Rule 199. 
 
 ( u ) Rule 200. 
 
UNREGISTERED DEALINGS WITH REGISTERED LAND. 
 
 617 
 
 to the maintenance of his estate and right, any person, whether 
 the registered proprietor or not, having a sufficient estate or 
 interest, may create estates, rights, interests, and equities in 
 the same manner as he might do if the land were not regis- 
 tered (z ) . Similarly the registered proprietor is alone entitled 
 to transfer a registered charge by a registered disjmsition; but, 
 subject to the maintenance of his right, unregistered interests 
 in a registered charge may be created in the same manner and 
 with the same incidents, so far as the difference of the subject- 
 matter admits, in and with which unregistered estates and in- 
 terests may be created in registered land (a). The power con- 
 ferred by this section includes power to sever the mines and 
 minerals from the surface (b). 
 
 In furtherance of the same principle, s. 83 (1), as amended 
 by schedule I. of the act of 1897, provides that neither the 
 registrar nor any person dealing with registered land or a 
 charge is to be affected by notice of a trust, express or con- 
 structive; and references to trusts are, as far as possible, to be 
 kept off the register. If, therefore, the owner of registered land 
 desires to make it the subject of a settlement, he may do so just 
 as if the land were unregistered (c) ; but the settlement cannot 
 be placed on the register; the estates and interests of the par- 
 ties taking under the settlement must be protected by notices, 
 cautions, inhibitions, or other restrictions as in the act men- 
 tioned (d). Again, any of the parties interested under such 
 a settlement may deal with their interests, but such dealings 
 cannot be entered on the register, they can only be protected 
 as above. As a consequence of this principle the register is not 
 a mirror of the title, and there will, therefore, frequently be 
 subsisting a considerable number of substantial interests in 
 land, either incapable of direct registration or for various 
 reasons purposely left unregistered. Any person entitled to 
 
 (z) s. 49. The effect of this 
 section is discussed by Cozens- 
 Hardy, L. J., in Capital and 
 Counties Bank v. Rhodes, (1903) 
 1 Ch. at p. 655 et seq. 
 
 ( a ) s. 49 of the act of 1875. 
 
 (5) Schedule I. of the act of 
 1897. 
 
 (c) s. 49, above. 
 
 ( d ) See ss. 53 to 59 of the act 
 of 1875. 
 
 No notice of 
 a trust to be 
 entered on 
 the register. 
 
618 
 
 BK. II. REGISTRATION OF TITLE. 
 
 Right of 
 lessee to 
 register notice 
 of a lease. 
 
 When notice 
 of lease ought 
 to he regis- 
 tered. 
 
 Lessee must 
 obtain order 
 
 any such, interest may protect it from being impaired by any 
 act of the registered proprietor by — 
 
 Notices , 
 
 Cautions , 
 
 Inhibitions, and 
 Restrictions, 
 
 as in the acts mentioned (e) . 
 
 Notice of Leases. 
 
 The acts give no power to the registered proprietor as such 
 to grant a lease by registered disposition or otherwise. But any 
 lessee or other person entitled to or interested in a lease or 
 agreement for a lease of registered land — 
 
 where the term granted is for a life or lives, or 
 is determinable on a life or lives, or 
 exceeds twenty-one years, or 
 
 where the occupation is not in accordance with such 
 lease or agreement, 
 
 may apply to the registrar to register notice of such lease or 
 agreement, and when so registered every registered proprietor 
 of the land, and every person deriving title through him, 
 excepting proprietors of incumbrances registered prior to the 
 registration of such notice, are to be deemed to be affected with 
 notice of such lease or agreement as being an incumbrance on 
 the land in respect of which the notice is entered (/) . 
 
 Leases and agreements for terms not exceeding twenty-one 
 years, if the tenant is in occupation thereunder, do not require 
 to be noted as incumbrances against the lessor’s title (<7); but 
 other leases ought to be noted under this provision, since they 
 will otherwise be liable to extinction on a transfer for value 
 of the land, if the proprietor be registered with an absolute 
 title (h). 
 
 In order to register notice of a lease or agreement for a lease, 
 
 (e) s. 49 of the act of 1875. (< 7 ) s. 18 (7) of the act of 1875. 
 
 (/) s. 50 of the act of 1875, and (h) See ss. 30 and 35 of the act 
 
 schedule I. of the act of 1897. of 1875. 
 
UNREGISTERED DEALINGS WITH REGISTERED LAND. 
 
 619 
 
 if the registered proprietor of the land does not concur in such 
 registry, the applicant must obtain an order of the court 
 authorizing the registration and must deliver the order to the 
 registrar, accompanied with the original lease or agreement or a 
 copy, and thereupon the registrar must make a note in the 
 register identifying the lease or agreement or copy so deposited, 
 and the lease or agreement or copy so deposited will be deemed 
 to be the instrument of which notice is given; but if the regis- 
 tered proprietor concurs in such registry, notice may be entered 
 in such manner as may be agreed upon (i ) . 
 
 An application to register notice of a lease or agreement for 
 a lease under the provisions above mentioned may be made 
 either by the lessee or by any person entitled to or interested in 
 the lease or agreement or by the registered proprietor of the 
 land against which the notice is to be entered. The application 
 must: be accompanied by the lease or counterpart, or by the 
 agreement or duplicate, as the case may be, also by a copy or 
 full abstract thereof, and a copy or tracing of the plan (if any) 
 thereon. Except where the application is made by the regis- 
 tered proprietor, it must be accompanied also by either the 
 consent of such registered proprietor in writing signed by him- 
 self or his solicitor or by an order of the court authorizing 
 the registration of the notice. Consent to the registration of a 
 notice of a lease or agreement may be given either before 
 or after its execution (1c ) . Where the lease or sub-lease, of 
 which notice is so given, is by way of security for money ad- 
 vanced or to be advanced, the land certificate of the lessor or 
 sub-lessor must be produced and endorsed with a note of the 
 entry (l). Where after the creation of an incumbrance a lease 
 is executed which would, apart from the Land Transfer Acts, 
 1875 and 1897, be binding on the incumbrancer, and notice of 
 such lease is registered under s. 50 of the act of 1875, the notice 
 will be effectual against the incumbrancer notwithstanding that 
 his incumbrance was registered before the registration of the 
 notice (m). If the lease or agreement comprises only part of 
 the land in the title, and does not contain sufficient particulars 
 
 of the court 
 unless lessor 
 concurs. 
 
 Procedure on 
 registration 
 of notice of 
 a lease. 
 
 (i) s. 51 of the act of 1875. 
 (k) Rule 201. 
 
 ( l ) Rule 202. 
 
 (m) Rule 203. 
 
620 
 
 BK. II. REGISTRATION OF TITLE. 
 
 Determina- 
 tion of lease 
 to be noted. 
 
 (by plan or otherwise) to enable such part to be clearly shown 
 on the filed plan of the land, the applicant (with the concur- 
 rence of all other necessary parties, if any) must furnish the 
 necessary information (n ) . The notice in the register must 
 refer to the filed copy or abstract of the lease or agreement, 
 and give the term, and may include such other short particulars 
 as can be conveniently entered. Where the lease or agreement 
 confers a right of pre-emption this will be noted in the regis- 
 ter. The lease or agreement will be marked with a note of 
 the entry and will be returned to the applicant (o) . If the 
 lease or counterpart or the agreement or duplicate is not pro- 
 duced, a statutory declaration by the applicant or his solicitor, 
 stating the reason of the non-production and verifying the 
 copy or abstract, must be furnished (p). 
 
 When the determination of a lease registered as a leasehold 
 title is noted on the register and the leasehold title is closed, if 
 such lease has been noted as an incumbrance on the superior 
 title, the note will be cancelled or an entry made that the lease 
 has determined (q ) . On the determination of a lease not regis- 
 tered as a leasehold title but noted in the register as an incum- 
 brance on the superior title, or on the determination of an 
 agreement for a lease so noted, any person interested may apply 
 to have the determination noted in the register. Upon the 
 production of such evidence as satisfies the registrar that the 
 lease or agreement has determined, the note in the register 
 will be cancelled, or an entry made of its determination (r). 
 Where the proprietor of any land comprised in a leasehold 
 title becomes by any means the proprietor of the land com- 
 prised in the title against which the lease is noted as an incum- 
 brance, or where a lease or agreement for a lease, noted as an in- 
 cumbrance only, is vested in such proprietor, the registrar may, 
 unless the contrary appears, treat the lease as merged, in which 
 case the note will be cancelled accordingly (s ) . Where under 
 the above rules an entry is to be made of the determination of 
 a lease or agreement for a lease, or a note is to be cancelled, the 
 
 ( n ) Rule 204. 
 
 (o) Rule 205. 
 
 (p) Rule 206. 
 
 (<?) Rule 218. 
 
 (r) Rule 219. 
 
 (s) Rule 220. 
 
UNREGISTERED DEALINGS WITH REGISTERED LAND. 
 
 621 
 
 lease or agreement must be produced, and marked with notice 
 of the entry and the land certificate of the title closed, and the 
 certificates of charge (if any) thereon must be delivered up 
 and cancelled (if). 
 
 The above rules apply so far as circumstances admit when 
 a lease or agreement for a lease has determined as to a part 
 only of the land demised thereby or comprised therein (w). 
 
 Notice of Estates in Dower or by the Curtesy. 
 
 Any person entitled to an estate in dower or by the curtesy 
 in any registered land may apply to the registrar to register 
 notice of such estate; and the registrar, if satisfied of the title 
 of the applicant, must register notice of the same accordingly; 
 and when so registered, the estate will be an incumbrance 
 appearing on the register, and must be dealt with accord- 
 inglj (x). 
 
 Application under the above section to register notice of an 
 estate in dower or by the curtesy in any registered land must 
 be in the form 54 in the first schedule to the rules, and must 
 show concisely the existing rights of the several persons inte- 
 rested in the land affected by the application. The evidence 
 in support of the application must be delivered therewith, and 
 the matter will be proceeded with as the registrar directs. 
 Notice of an estate in dower or by the curtesy will be entered 
 in the charges register as an incumbrance (■ y ) . 
 
 Cautions against registered Dealings. 
 
 A caution merely entitles the cautioner to notice of any 
 attempted dealing with the property. It may affect the whole 
 or part of the land. It is suitable for the protection of a lis 
 pendens or other claim not admitted by the registered pro- 
 prietor of the land. 
 
 Any person interested under any unregistered instrument, 
 or interested as a judgment creditor, or otherwise, in any 
 registered land or charge, may lodge a caution with the regis- 
 
 Right of 
 tenant in 
 dower or by 
 curtesy to 
 enter notice 
 thereof. 
 
 Procedure. 
 
 Effect of a 
 caution. 
 
 Who may 
 lodge a 
 caution . 
 
 ( t ) Rule 221. 
 
 (u) Rule 222. 
 
 (as) s. 52 of the act of 1875. 
 (y) Rule 207. 
 
622 
 
 BK. II. REGISTRATION OF TITLE. 
 
 Form of 
 caution . 
 
 Cautioner 
 entitled to 
 notice of 
 proposed 
 registered 
 dealings. 
 
 trar to the effect that no dealing with such land or charge be 
 had on the part of the registered proprietor until notice has 
 been served upon the cautioner. The caution must be supported 
 by an affidavit or declaration made by the cautioner or his 
 agent. But a person interested under a lease or agreement for 
 a lease of which notice has been entered on the register, or 
 entitled to an estate in dower, or estate by the curtesy, of which 
 notice has been so entered, is not entitled to a caution in respect 
 of the lease or estate in dower or by the curtesy (z ) . 
 
 A caution lodged under this section must be in form 58 in 
 the first schedule to the rules; and a caution against the regis- 
 tration of a possessory or good leasehold or qualified title as 
 good leasehold or qualified or absolute must be in form 59 in 
 the schedule. The caution must be signed by the cautioner 
 or his solicitor, and must contain an address for service in the 
 United Kingdom, and the declaration in support of the caution 
 must be in form 15 in the schedule, or to the like effect, and 
 must contain a reference to the land or charge to which it 
 applies, and to the registered number of the title, and must 
 also state the nature of the interest of the cautioner in such 
 land or charge (a) . It is not necessary that the land to which 
 a caution relates should be described therein in any particular 
 manner, if sufficient particulars are given by plan or otherwise 
 to identify on the proper ordnance map or on the general map 
 the land to which the caution is intended to apply (5). 
 
 After a caution has been lodged the registrar cannot, without 
 the consent of the cautioner, register any dealing with the land 
 or charge until he has served notice on the cautioner, warning 
 him that his caution will cease to have any effect after the 
 expiration of fourteen days (or such other period, not being 
 less than seven days, as the registrar may direct) next ensuing 
 the date at which such notice is served; after the expiration 
 of such time the caution will cease unless an order to the con- 
 trary is made by the registrar, and upon the caution so ceasing 
 
 ( z ) s. 53 of the act of 1875. this section. (Rule 242.) 
 
 The Ecclesiastical Commissioners (a) Rule 326. 
 
 are to be deemed to be persons (b) Rule 227 as amended by the 
 
 interested within the meaning of rules of 1907. 
 
UNREGISTERED DEALINGS WITH REGISTERED LAND. 
 
 623 
 
 the land or charge will be dealt with in the same manner as 
 if no caution had been lodged (c) . 
 
 Any consent given under this section by the cautioner must Cautioner’s 
 be signed by him or his solicitor (d ) . The notice required ^eipt'of ° n 
 by the section must be served on the application at any time notice, 
 in writing of the registered proprietor of the land or of a charge 
 to which a caution relates, or when a dealing affecting such 
 land or charge is brought in for registration without the con- 
 sent of the cautioner . The period to be limited by the notice 
 must be fourteen days, or such other period (not being less 
 than seven days) as the registrar may under special circum- 
 stances direct. The notice must be in form 60 in the first 
 schedule to the rules (e). At any time before the expiration 
 of the period limited by the notice, or extension of it granted 
 by the registrar, the cautioner may show cause why the caution 
 should continue to have effect, or why the dealing should not 
 be registered — as, for instance, that it has been obtained by 
 fraud or mistake, or that it is inconsistent with a prior dealing 
 or with some adverse right or equity (/) . Cause may be shown 
 either by the cautioner appearing before the registrar or by 
 his delivering a statement in writing, signed by him or his 
 solicitor, setting forth the grounds on which cause is shown. 
 
 The registrar may thereupon either order that the caution shall 
 thenceforth cease to have effect and that the entry thereof on 
 the register be cancelled, or he may appoint a time for the 
 registered proprietor or the applicant for registration, as the 
 case may be, and the cautioner, and such other persons (if 
 any) as he may deem expedient, to appear before him. After 
 hearing all such persons, and serving such notices (if any) as 
 he thinks necessary, the registrar must make such order in the 
 matter as he thinks just, as, for instance, that the caution shall 
 continue to have effect, or that it shall cease to have effect, and 
 that the entry thereof on the register be cancelled, or that the 
 registration be refused either with or without an inhibition 
 against registration at any future time, or that it be completed 
 forthwith, oT after ail interval, or that it be completed con- 
 
 (c) s. 54 of the act of 1875. 
 
 ( d ) Rule 228. 
 
 (e) Rule 229. 
 (/) Rule 230. 
 
624 
 
 Registered 
 dealings 
 delayed on 
 bond being 
 given. 
 
 Expiry of 
 caution. 
 
 Compensation 
 for improper 
 lodging of 
 caution. 
 
 Withdrawal 
 of caution. 
 
 Right of 
 appeal. 
 
 Court or 
 registrar 
 may prohibit 
 
 BK. II. REGISTRATION OF TITLE. 
 
 ditionally or with some modification, or subject to the prior 
 registration of a dealing in favour of the cautioner, or subject 
 to some notice, condition, restriction, or inhibition under the 
 acts. The registrar may refer the matter, at any stage, or any 
 question arising thereon, for the decision of the court (g ) . 
 
 If before the expiration of the period the cautioner, or some 
 other person on his behalf, appears before the registrar, and 
 gives sufficient security to indemnify every party against any 
 damage that may be sustained by reason of any dealing with 
 the land or charge being delayed, the registrar may, if he 
 thinks fit, delay registering any dealing with the land or charge 
 for such further period as he thinks just (A). 
 
 When the notice required by a caution has been given in 
 respect of the whole of the land comprised in it, and the period 
 named in the notice has expired, the caution will, unless the 
 registrar otherwise directs, be deemed to be exhausted, and will 
 bo withdrawn from the register (i) . 
 
 If any person lodges a caution without reasonable cause, he is 
 liable to make to any person who may have sustained damage 
 such compensation as may be just; such compensation is re- 
 coverable as a debt by the person who has sustained damage 
 from the person who lodged the caution (k) . 
 
 A caution may at any time be withdrawn upon an applica- 
 tion for that purpose in form 61 in the first schedule to the 
 rules, signed by the cautioner or his solicitor, and the entry on 
 the register will then be cancelled : but any liability under the 
 act of 1875 of a cautioner to indemnify or make compensa- 
 tion will not be affected by the withdrawal (7). 
 
 Any person aggrieved by any act done by the registrar in 
 relation to cautions may appeal to the court in the prescribed 
 manner (m ) . 
 
 Inhibition against registered Dealings without Order of Court. 
 
 The court, or, subject to an appeal to the court, the registrar, 
 upon the application of any person interested, may, after direct- 
 
 (< 7 ) Rule 231. 
 
 ( h ) s. 55 of the act of 1875. 
 
 (i) Rule 232. 
 
 (&) s. 56 of the act of 1875. 
 (0 Rule 233. 
 
 (m) s. 56 of the act of 1875. 
 
UNREGISTERED DEALINGS WITH REGISTERED LAND. 
 
 625 
 
 ino* such inquiries (if any) to be made and notices to be given registered 
 
 ° ' . ^ ' , • . , dealings. 
 
 and hearing such persons as the court or registrar thinks expe- 
 dient, issue an order or make an entry inhibiting for a time, or 
 until the occurrence of an event to be named in such order or 
 entry, or generally until further order or entry, any dealing 
 with any registered land or registered charge. The court or 
 registrar may make or refuse to make any such order or entry, 
 and annex thereto any terms or conditions they think fit, and 
 discharge such order or cancel such entry when granted, with 
 or without costs, and generally act in the premises in such 
 manner as the justice of the case requires. Any person 
 aggrieved by any act done by the registrar in pursuance of this 
 section may appeal to the court in the prescribed manner (n). 
 
 An application for an inhibition under s. 57 of the act of Procedure 
 1875 must either be accompanied by the consent in writing of inhibition 
 the registered proprietor of the land, or must be supported 
 by the statutory declaration of the applicant and such other 
 evidence (if any) as the court, or the registrar, as the case 
 may be, may deem necessary (o) . In the absence of any such 
 consent by the registered proprietor, notice of the applica- 
 tion will be given to him, and, if necessary, an appointment 
 will be made for hearing it (p). Where an inhibition was 
 originally entered in pursuance of an order of the court appli- 
 cations to discharge or cancel the same must be made to the 
 court, and in other cases to the registrar. They may be made 
 by any person , aggrieved by the inhibition (q) . 
 
 Special provisions for the entry of an inhibition and its Inhibition 
 operation in the case of land in the hands of an incumbent of church lands 
 a benefice are made by the rules (r) . 
 
 Power of Registered Proprietor to impose Restrictions . 
 
 Where the registered proprietor of any land or charge Registered 
 desires to place restrictions on transferring or charging such may^lace 
 
 ( n ) s. 57 of the act of 1875. 
 The Ecclesiastical Commissioners 
 are to be deemed to be persons 
 interested within the meaning of 
 this section. (Rule 242.) 
 
 G. — C. 
 
 (o) Rule 234. 
 
 (p) Rule 235. 
 
 (q) Rule 236. 
 
 (r) See rules 237 to 239. 
 
626 
 
 I3K. II. REGISTRATION Or TITLE. 
 
 restrictions 
 on register. 
 
 Registrar to 
 enter restric- 
 tions in 
 register. 
 
 Procedure to 
 
 obtain 
 
 restriction. 
 
 Restriction 
 can only be 
 put on with 
 consent of 
 proprietor. 
 
 land or charge, lie may apply to the registrar to make ail entry 
 in the register that no transfer shall be made of or change 
 created on such land or charge, unless the following things, or 
 such of them as he may determine, are done; i.e ., 
 
 unless notice of any application for a transfer or for the 
 creation of a charge is transmitted by post to such address 
 as he may specify to the registrar: 
 unless the consent of some person or persons, to be named by 
 such proprietor, is given to the transfer or the creation of a 
 charge : 
 
 unless some such other matter or thing is done as may be 
 required by the applicant and approved by the regis- 
 trar (s) . 
 
 The registrar must thereupon, if satisfied of the right of the 
 applicant to give such directions, make a note of them on the 
 register, and no transfer can be made or charge created except 
 in conformity with the directions; but it is not the duty of the 
 registrar to enter any of the above directions, except upon the 
 prescribed terms as to payment of fees and otherwise, or to enter 
 any restriction that he may deem unreasonable or calculated to 
 cause inconvenience; and any such directions may at any time 
 be withdrawn or modified at the instance of all the persons for 
 the time being appearing by the registry to be interested, and 
 are also subject to be set aside by the order of the court ( t ). 
 
 An application for a restriction on transferring or charging 
 land or a charge must be in form 64 in the first schedule to 
 the rules and must state the particulars of the restriction re- 
 quired to be entered on the register, and be signed by the appli- 
 cant or his solicitor, and must be proceeded with as the registrar 
 directs; an application to withdraw or modify any restriction 
 must be in form 65 in the schedule, and be signed by all 
 persons for the time being appearing by the register to be 
 interested in the restriction, or their solicitors. 
 
 A restriction, owing to its wide adaptability, is perhaps the 
 most useful of all modes of checking the action of the proprie- 
 tor when necessary and proper. It can, however, only be put on 
 
 (s) s. 58 of the act of 1875, and ( t ) s. 59 of the act of 1875. 
 
 schedule I. of the act of 1897. 
 
CAUTION AGAINST ENTRY OF LAND ON REGISTER. 
 
 627 
 
 by tho proprietor himself, or with his consent or concurrence, 
 and is in all cases subject to the approval of the registrar. 
 
 Restrictions will be required in the case of a settlement where 
 the tenant for life is registered as the proprietor and there are 
 trustees, restraining transfer except on payment of the purchase- 
 money to the trustees and the like(w); or where the trustees 
 of the settlement are registered as the proprietors, restraining 
 transfers except with the consent of the tenant for life (x). 
 
 Cautions , Inhibitions and Restrictions generally. 
 
 Application may be made to the registrar for an order under 
 an inhibition or restriction in anticipation of an intended 
 dealing, and the registrar may on any such application make 
 an order that the dealing be registered either unconditionally 
 or subject to such limitations or conditions as he may think ht. 
 The order need not be entered on the register, but must be filed, 
 and so long as it is in force must be shown to any persoin 
 searching the register (?/). 
 
 Caution against Entry of Land on Register. 
 
 In order to enable any person interested in land to protect it 
 from an adverse registration, it is provided that any person 
 having or claiming such an interest in any land which is not 
 already registered as entitles him to object to any disposition 
 thereof being made without his consent, may lodge a caution 
 with the registrar to the effect that the cautioner is entitled to 
 notice in the prescribed form, and to be served in the pre- 
 scribed manner, of any application that may be made for the 
 registration of such land ( z ) . 
 
 A caution lodged under this section must be in form 14 in 
 tho first schedule to the rules, and must be signed by thje 
 cautioner or his solicitor, and contain an address for service in 
 the United Kingdom, and must refer to, and be accompanied 
 by, sufficient particulars, by plan or otherwise, to identify on 
 
 (u) See forms 6 and 7 in the ( y ) Rule 241. 
 
 schedule to the rules. (z) s. 60 of the act of 1875. 
 
 (x) See form 8, ibid. 
 
 Cases in which 
 
 restrictions 
 
 used. 
 
 Power to 
 sanction 
 anticipated 
 dealing not- 
 withstanding 
 restriction . 
 
 Any person 
 
 interested 
 
 may enter 
 
 caution 
 
 agaiust 
 
 registration. 
 
 Procedure to 
 obtain caution 
 agaiust 
 registration. 
 
628 
 
 BK. II. — REGISTRATION OF TITLE. 
 
 Caution must 
 be supported 
 by declara- 
 tion. 
 
 Cautioner 
 entitled to 
 notice of 
 proposed 
 registration 
 of land. 
 
 Withdrawal 
 of caution. 
 
 Penalty for 
 improperly 
 
 the ordnance map or the general map the land to which the 
 caution relates ( a ). In the case of a manor or an advowson or 
 other incorporeal hereditament, the names of the county and 
 parish or place and such other particulars (if any) as the regis- 
 trar may deem necessary must be furnished (5). 
 
 The caution must be supported by a declaration in form 15 
 in the first schedule to the rules, which must be delivered with 
 the caution (c). 
 
 After a caution has been lodged in respect of any land 
 which has not already been registered, registration cannot be 
 made of such land until notice has been served on the cautioner 
 to appear and oppose the registration, if he thinks fit, and the 
 prescribed time has elapsed since the date of the service of the 
 notice, or the cautioner has entered an appearance, which may 
 first happen ( d ). The period to be limited by the notice to be 
 served on the cautioner is fourteen days, or such other period 
 (not being less than seven days) as the registrar may, under 
 special circumstances, direct. The notice must be in form 16 
 in the first schedule to the rules (e). At any time after the 
 notice has been served, the cautioner may, by writing signed 
 by himself or his solicitor, consent to the registration, and the 
 consent may be either absolute or conditional on some special 
 entry being made on the register (/) . 
 
 The caution may at any time be withdrawn in respect of the 
 whole or any part of the land to which it relates upon an appli- 
 cation for that purpose in form 17 in the schedule, signed by 
 the cautioner or his solicitor, or the person entitled to the benefit 
 of the caution or his solicitor. Where the withdrawal is in 
 respect of a part only of the land the application must refer to, 
 and be accompanied by, sufficient particulars, by plan or other- 
 wise, to identify on the ordnance map or the general map the 
 part to which the withdrawal relates ( g ). 
 
 If any person lodges a caution with the registrar without 
 reasonable cause, he is liable to make to any person who may 
 
 (а) Rule 88 as amended by the 
 rules of 1907. 
 
 (б) Rule 89. 
 
 (c) s. 61 of the act of 1875, and 
 rule 90. 
 
 ( d ) s. 62 of the act of 1875. 
 
 (e) Rule 91. 
 
 (/) Rule 93. 
 
 ( g ) Rule 92 as amended by the 
 rules of 1907. 
 
CROWN LANDS. 
 
 629 
 
 have sustained damage such compensation as may be just, and 
 such compensation shall be deemed to be a debt due to the 
 person who has sustained damage from the person who has 
 lodged the caution (A). 
 
 A caution lodged in pursuance of these provisions does not 
 prejudice the claim or title of any person, and has no effect 
 whatever except as mentioned (i). 
 
 The registrar may, if he think fit, allow any person interested 
 in the land to inspect the caution and the statutory declaration 
 lodged in support of it (1c ) . 
 
 Crown Lands. 
 
 With respect to land or any interest in land vested in his 
 Majesty, his heirs or successors, either in right of the crown or 
 of the duchy of Lancaster, or otherwise, or vested in any public 
 officer or body in trust for the public service, the public officer 
 or body having the management (if any), or, if none, then 
 such person as the crown may by writing under the sign 
 manual appoint, may represent the owner for all the purposes 
 of the acts; and with respect to land or any interest in land 
 belonging to the duchy of Cornwall, such person as the Duke of 
 Cornwall for the time being may in writing appoint, may act 
 as and represent the owner of such land or interest for all the 
 purposes of the acts ( l ) . 
 
 If it appears to the registrar that any land, application for 
 registration whereof is made to him, comprises land below high- 
 water mark at ordinary spring tides, he must not register the 
 land until he is satisfied that at least one month’s notice in 
 writing of the application has been given to the Board of 
 Trade; and in case of land in the county palatine of Lancaster, 
 also to the proper officer of the duchy of Lancaster; and in 
 case of land in the counties of Cornwall or Devon, also to the 
 proper officer of the Duke of Cornwall; and in all other cases 
 also to the commissioners of his Majesty’s woods, forests, and 
 
 lodging 
 
 caution. 
 
 Caution not 
 to prejudice 
 any claim. 
 
 Inspection 
 of caution. 
 
 Person may 
 be appointed 
 to act as 
 owner of 
 crown lands 
 for purposes 
 of the acts. 
 
 Land below 
 
 high-water 
 
 mark. 
 
 (h) s. 63 of the act of 1875. 
 C) s. 64 of the act of 1875. 
 
 (&) Rule 94. 
 
 (?) s. 65 of the act of 1875. 
 
630 
 
 BK. II. REGISTRATION OF TITLE. 
 
 Freeholds 
 intermixed 
 with copy- 
 holds. 
 
 Trustees or 
 mortgagees 
 may sell by 
 medium of 
 the registry 
 
 land revenues (m) . But this does not apply to registration with 
 a possessory title (n) . 
 
 As to Proceedings on and before Registration. 
 
 Registration of Lands of Different Tenures. 
 
 If it appears that any land, application for registration of 
 which is made, comprises land of freehold tenure and also land 
 of a tenure other than freehold intermixed and undistinguish- 
 able, the registrar may register the land, but must enter notice 
 on the register of the facts relating to the tenure of the land, 
 and the tenure of the portion of the land other than freehold 
 will remain unaffected by the registration (o) . The note entered 
 in the register must be to the effect that it is doubtful 
 whether the land is of freehold or of copyhold tenure, and that 
 the registration is made without prejudice to any right that 
 may arise if it is subsequently ascertained that the land is of 
 copyhold tenure (p) . 
 
 Powers of Trustees for Sale to apply for Registration. 
 
 Any person holding land on trust for sale, and any trustee, 
 mortgagee, or other person having a power of selling land, 
 may authorize the purchaser to make an application to be 
 registered as first proprietor with any title which a proprietor 
 is authorized to be registered with under the act, and may con- 
 sent to the performance of the contract being conditional on his 
 being so registered, or may himself apply to be registered as 
 such proprietor with the consent of the persons (if any) whose 
 consent is required to the exercise by the applicant of his trust 
 or power of sale; and the amount of all costs, charges, and 
 expenses properly incurred by such person in or about such 
 application must in all cases be ascertained by the registrar, 
 and is to be deemed to be costs, charges, and expenses pro- 
 perly incurred in the execution of his trust or in pursuance of 
 
 (m) s. 66 of the act of 1875. 1908. 
 
 (w) Schedule I. of the act of (o) s. 67 of the act of 1875. 
 
 1897. See, however, rule 22 of (p) Rule 87. 
 
PROCEEDINGS ON AND BEFORE REGISTRATION. 
 
 631 
 
 his power; and such person may retain or reimburse the same 
 to himself out of any money coming to him under the trust or 
 power, and will not be liable to account in equity (q). 
 
 Registration of Part Onmers. 
 
 Any two or more persons entitled for their own benelit, Part owners 
 J 1 may be regis- 
 
 concurrently or successively, or partly in one mode and partly tered as joint 
 in another, to such estates, rights, or interests in land as P ro P rietur;5 - 
 together make up such an estate as would, if vested in one 
 person, entitle him to be registered as proprietor of the land, 
 may apply to the registrar to be registered as joint proprietors, 
 in the same manner and with the same incidents, so far as cir- 
 cumstances admit, in and with which any individual proprie- 
 tor may he registered (r ) . 
 
 Instruments , dc. to be Disclosed on Registration of Title. 
 
 Before the completion of the registration of any land in On applica- 
 respect of which an examination of title is required, the vendor tratio^w^th^" 
 and his solicitor, in cases where the applicant is a person who absolute title, 
 has contracted to buy such land, and in all other cases the declaration of 
 applicant for registration and his solicitor, must each, if re- tul1 disclosure 
 
 11 ° 7 / required, 
 
 quired by the registrar, make an affidavit or declaration that 
 
 to the best of his knowledge and belief all deeds, wills, and 
 instruments of title, and all charges and incumbrances affect- 
 ing the title to the land which is the subject of the application, 
 and all facts material to such title, have been disclosed in the 
 course of the investigation of title made by the registrar. The 
 registrar may require any person making an affidavit or decla- 
 ration in pursuance of this section to state in his affidavit or 
 declaration what means he has had of becoming acquainted with 
 the several matters referred to in this section; and if the regis- 
 trar is of opinion that any further or other evidence is neces- 
 sary or desirable, he may refuse to complete the registration 
 until such further or other evidence is produced (s ') . 
 
 (q) s. 68 of the act of 1875. (s) s. 70 of the act of 1875. See 
 
 (r) s. 69 of the act of 1875, and rule 44 of 1908. 
 s. 14 (1) of the act of 1897. 
 
632 
 
 BK. II. REGISTRATION OF TITLE. 
 
 Registrar 
 may order 
 production of 
 deeds. 
 
 Right of 
 appeal. 
 
 Penalty for 
 
 disobeying 
 
 order. 
 
 Production of 
 title deeds to 
 be marked 
 with notice of 
 registration. 
 
 Production of Deeds on Registration of Title. 
 
 When an application has been made to the registrar for 
 the registration of any land, if any person has in his possession 
 or custody any deeds, instruments, or evidences of title relating 
 to or affecting such land, to the production of which the 
 applicant or any trustee for him is entitled, the registrar may 
 require such person to show cause, within a time limited, why 
 he should not produce such deeds, instruments, or evidences of 
 title to the registrar, or otherwise; and, unless cause is shown to 
 the satisfaction of the registrar within the time limited, such 
 deeds, instruments, and evidences of title may be ordered by 
 the registrar to be produced at the expense of the applicant, at 
 such time and place, and in such manner, and on such terms as 
 the registrar thinks fit(f). 
 
 Any person aggrieved by any order of the registrar under 
 this section may appeal in the prescribed manner to the court, 
 which may annul or confirm the order of the registrar with or 
 without modification (if). 
 
 If any person disobeys any order of the registrar made in 
 pursuance of this section, the registrar may certify such dis- 
 obedience to the court, and thereupon such person, subject to 
 such right of appeal as aforesaid, may be punished by the court 
 in the same manner in all respects as if the order made by the 
 registrar were the order of the court (t). 
 
 A person cannot be registered as proprietor of land until, 
 if required by the registrar, he has produced to him such docu- 
 ments of title as will, in the opinion of the registrar, when 
 stamped or otherwise marked, give notice to any purchaser 
 or other person dealing with the land of the fact of the regis- 
 tration, and the registrar must stamp or mark the documents 
 accordingly, or until he has otherwise satisfied the registrar 
 that the fact of registration cannot be concealed from a pur- 
 chaser or other person dealing with the land ( u ) . But in the 
 case of registration with a possessory title, if it is proved to the 
 satisfaction of the registrar by the statutory declaration of the 
 applicant’s solicitor or otherwise that any document of title 
 
 ( t ) s. 71 of the act of 1875. 
 
 {u) s. 72 of the act of 1875. 
 
PROCEEDINGS ON AND BEFORE REGISTRATION. 
 
 633 
 
 cannot be produced, he may complete the registration without 
 such production, and where the deeds are numerous the registrar 
 may act on a declaration by the solicitor of the applicant to the 
 effect that all the lands included in the application are dealt 
 with by the deeds produced, and that the deeds produced are all 
 the deeds necessary to be marked to give notice to any person 
 dealing with the land of the fact of registration (sc) . 
 
 Doubtful Questions arising on Title. 
 
 Whenever, upon the examination of the title to anv land, 
 the registrar entertains a doubt as to any matter of law or fact 
 arising thereon, he may, upon the application of any party 
 interested, refer ia, case for the opinion of the court, with power 
 for the court to direct an issue to be tried before any jury for 
 the purpose of determining any fact; the registrar may also 
 name the parties to such case, and the manner in which the 
 proceedings in relation thereto are to be brought before the 
 court to which such case is referred ( y ) . 
 
 The opinion of the court to whom any case is referred by 
 the registrar is conclusive on all the parties unless the court 
 permits an appeal to be had ( z ) . 
 
 Where any infants, married women, idiots, lunatics, persons 
 of unsound mind, persons absent beyond seas, or persons yet 
 unborn are interested in the land in respect of the title to 
 which any question arises as aforesaid, any other persons 
 interested in such land may apply to the court for a direction 
 that the opinion of the court to whom the case is referred is to 
 be conclusively binding on the infants or others (a) . 
 
 The court must hear the allegations of all parties appearing 
 before it. It may disapprove altogether or may approve, either 
 with or without modification, of the directions of the registrar 
 in respect to any case referred as to the title of land; it may 
 also, if necessary, appoint a guardian or other person to appear 
 
 (a?) Schedule I. of the act of 
 1897, and rules 45 and 46 of 1908. 
 
 (y) s. 74 of the act of 1875. The 
 procedure on applications to the 
 court is regulated by rules 296 to 
 
 312 inclusive, as amended by the 
 rules of 1908. 
 
 (z) s. 75 of the act of 1875. 
 
 ( a ) s. 76 of the act of 1875. 
 
 Registrar 
 may refer 
 doubtful 
 matters to 
 the court. 
 
 Decision of 
 the court 
 conclusive. 
 
 Application to 
 court in case 
 of persons 
 under dis- 
 ability. 
 
 Court may 
 bind interests 
 of persons 
 under dis- 
 ability. 
 
BK. II. 
 
 REGISTRATION OF TITLE. 
 
 Form of Land 
 Certificate. 
 
 on behalf of any infants, married women, idiots, lunatics, 
 persons of unsound mind, persons absent beyond seas, or unborn 
 persons; and if the court is satisfied that the interests of the 
 persons labouring under disability, absent, or unborn, will be 
 sufficiently represented in any case, it must make an order 
 declaring that all persons, with the exceptions (if any) named 
 in the order, are to be conclusively bound, and thereupon all 
 persons with such exceptions (if any) as aforesaid, will be 
 conclusively bound by any decision of the court having cogni- 
 zance of the case in which such persons are concerned (6). 
 
 As to Land Certificates and Certificates of Charge. 
 
 A land certificate is in the following form: — 
 
 Form 66 . — Land Certificate. ( Rule 258.) 
 
 Land Registry. 
 
 Land Transfer Acts, 1875 and 1897. 
 
 This is to certify that the freehold (or leasehold) land in the parish 
 of and county of ( here fill in a short description of the 
 
 land, or reference to the filed plan) is registered with absolute (quali- 
 fied, good leasehold, or possessory) title under No. . Copies of the 
 entries in the register (and of the filed plan of the land) are within. 
 
 Dated the of , 19 . (l.s.) 
 
 Note . — The description of the property to which the certificate re- 
 lates must be adapted to that by which it is described in the register. 
 When the registration is of a possessory title only, the certificate is to 
 contain the following notice: “ The possessory title hereby certified does 
 “ not affect or prejudice the enforcement of any estate, right or interest 
 “ adverse to or in derogation of the title hereby certified, which was 
 “ subsisting or capable of arising on the day of , being the 
 
 “date of first registration.” 
 
 The form may be modified under special circumstances in such 
 manner as the registrar may deem necessary. 
 
 Where under rule 271 a plan is not filed, the form shall be altered 
 accordingly. Where the land is described by reference to the general 
 map the form shall also be altered as may be required. 
 
 Cancelled entries need not be copied, but may be referred to as 
 “ cancelled ” only. 
 
 (6) s. 77 of the act of 1875. 
 
LAND CERTIFICATES AND CERTIFICATES OF CHARGE. 
 
 635 
 
 It is made up in divisions corresponding to the divisions of 
 the register so as to leave room for the addition thereto of 
 subsequent entries in the register. For this purpose fresh pages 
 may be added to the certificate from time to time as ma}^ be 
 necessary (c). 
 
 A certificate of charge certifies the registration of the charge 
 and contains (1) an office copy of the charge, (2) a description 
 (if no description is contained in the charge) of the land 
 affected, (3) the name and address of the registered proprietor 
 of the charge, and (4) a list of the prior incumbrances (if 
 any) appearing pn the register. There are also> added such 
 further particulars, if any, as the registrar thinks fit, and the 
 Land Registry seal is affixed to it. Notes of subsequent 
 dealings affecting the charge are from time to time entered 
 on the certificate ( d ). 
 
 A land certificate or certificate of charge is primct facie 
 evidence of the several matters therein contained (e). Where 
 an office copy of an entry in the register or of the filed plan 
 of the land or of any document filed in the registry is annexed 
 to any certificate, for the purposes of this section it is deemed 
 to be contained in the certificate itself (/). 
 
 On the first registration of freehold or leasehold land, and 
 on the registration of a charge, a land certificate or certificate of 
 charge is prepared and either delivered to the proprietor or 
 deposited in the registry as he may prefer ( g ) . Any one of 
 two or more persons registered as tenants in common of land or 
 of a charge may, at his option, have a separate certificate; 
 but only one certificate will be issued unless there be a request 
 for two or more(^). Whenever a certificate is delivered out 
 of the registry a receipt must be signed by the recipient (i ) . 
 Except in the cases mentioned in s. 8, sub-ss. 3 and 4 of the 
 act of 1897, and in cases falling under rules 152 and 164, no 
 new certificate can be issued unless the existing certificate is 
 delivered up to the registrar to be cancelled (Jc). 
 
 (c) Rule 258. ( g ) s. 8 (4) (i) of the act of 
 
 (d) Rule 259. 1897. 
 
 (e) s. 80 of the act of 1875. (h) Rule 261. 
 
 (/) Rule 260. (0 Rule 262. 
 
 (&) Rule 263. 
 
 Form of 
 certificate 
 of charge. 
 
 Certificate 
 primd facie 
 evidence. 
 
 Must be pre- 
 pared on first 
 registration . 
 
636 
 
 BK. II. REGISTRATION OF TITLE. 
 
 Certificate to 
 be produced 
 in all dealings 
 with regis- 
 tered land. 
 
 Purchaser 
 entitled to 
 certificate on 
 completion. 
 
 Renewal of 
 certificate. 
 
 So long as a land certificate or certificate of charge is out- 
 standing, it must be produced to the registrar on every entry in 
 the register of a disposition by the registered proprietor of the 
 land or charge to which it relates, and on every registered 
 transmission or rectification of the register, and a note of ever}' 
 such entry, transmission, or rectification must be officially 
 indorsed on the certificate, and the registrar has the same 
 powers of compelling the production of certificates as arc con- 
 ferred on him by ss. 109 and 110 of the act of 1875 as to the 
 production of maps, surveys, books, and other documents (l ) . 
 But where a certificate cannot be produced at the registry with- 
 out disproportionate trouble, expense, or delay, the registrar 
 may authorize an officer of the registry, or a solicitor, to in- 
 spect it elsewhere, at the expense of the applicant, and to make 
 the proper indorsement (if any) thereon, and to authenticate 
 the same on behalf of the registry (m). Further, on any appli- 
 cation for registration made by or with the consent of the 
 registered proprietor of the land or of a charge or incumbrance, 
 the registrar may require the production of the land certificate 
 or certificate of charge or incumbrance, and, may refuse to pro- 
 ceed with the application until the certificate is produced ( n ). 
 
 Where a land certificate has been issued, the vendor must 
 deliver it to the purchaser on completion of a purchase, or if 
 only a part of the land comprised in the certificate is sold, he 
 must, at his own expense, produce, or procure the production 
 of, the certificate in accordance with this section for the com- 
 pletion of the purchaser’s registration. Where the certificate 
 has been lost or destroyed, the vendor must pay the costs of 
 the proceedings required to enable the registrar to proceed with- 
 out it (o). 
 
 The registrar may, upon the delivery up to him of a land 
 certificate or of a certificate of charge, grant a new land certifi- 
 cate or certificate of charge in the place of the one delivered 
 up (p). 
 
 A new land certificate, or certificate of charge, may also be 
 
 Loss or 
 
 (?*) s. 8 (1) of the act of 1897. 
 
 (m) Rule 264. 
 
 ( n ) Rule 265. 
 
 (o) s. 8 (2) of the act of 1897. 
 
 (p) s. 79 of the act of 1875. 
 
LAND CERTIFICATES AND CERTIFICATES OF CHARGE. 
 
 637 
 
 granted by the registrar in place of a certificate which has been 
 lost or destroyed, but not until the applicant has filed with the 
 registrar a statutory declaration and such other evidence (if 
 any) as the registrar may think necessary, stating the fact and 
 circumstances of the loss or destruction of the former certifi- 
 cate or office copy, nor until at least one advertisement of the 
 application in the London Gazette and three advertisements 
 in a London daily morning newspaper have been published at 
 intervals of not less than seven days, and three advertisements 
 in a local newspaper circulating in the district in which the 
 land is situate, and such indemnity (if any) given as the regis- 
 trar thinks fit (g). 
 
 Where a transfer of land is made by the registered proprietor 
 of a charge, in exercise of the power of sale conferred by the 
 charge, it may be registered, and a new land certificate may be 
 issued to the purchaser, without production of the former land 
 certificate, but the certificate of charge (if any) must be pro- 
 duced or accounted for in accordance with this section. Sub- 
 ject to any stipulation to the contrary the proprietor of a regis- 
 tered charge is not entitled to have custody of the land certifi- 
 cate, or to require a land certificate to be applied for (r) . It 
 must be remembered, however, that he cannot get his charge 
 registered in the first instance without producing the land cer- 
 tificate. and lie must, therefore, stipulate to have it handed to 
 him by the mortgagor for this purpose. 
 
 When a certificate is produced on the closing of a title or the 
 discharge of a charge or incumbrance, it will be retained in 
 the registry and cancelled ( s ). The registrar has power to re- 
 tain a certificate produced under s. 8 of the act of 1897 for the 
 purpose of making* an entry thereon. On the registration of 
 any transaction for which the production of a land certificate 
 or certificate of charge is required, the certificate will, before 
 it is re-issued, be made to correspond with the register (t). 
 A certificate may be deposited in the registry with written 
 directions that it is to be held for a specified purpose only. 
 
 Subject to the last rule a certificate so> deposited will not be 
 
 ( q ) s. 8 (3) of the act of 1897. (s) Rule 266. 
 
 (r) s. 8 (4) of the act of 1897. ( t ) Rule 267. 
 
 destruction of 
 certificate. 
 
 Land certifi- 
 cate not 
 necessary in 
 case of sale by 
 registered 
 mortgagee. 
 
 General 
 powers with 
 reference to 
 certificates. 
 
638 
 
 BK. II. REGISTRATION OF TITLE. 
 
 used, or be deemed to be in the registry for any other purpose 
 without the written consent of the person by whom such direc- 
 tions were given, or his successor in title or his solicitor ( u ) . 
 
 Registration 
 of advowsons, 
 rents, tithes, 
 mines, &c. 
 
 How applica- 
 tion for 
 registration 
 of manors, 
 &c. made. 
 
 Manor. 
 
 Rent and 
 tithe-rent 
 charge. 
 
 Special Hereditaments. 
 
 The registrar may register the proprietor of any advowson, 
 rent, tithes impropriate, or other incorporeal hereditament of 
 freehold tenure, and also the proprietor of any mines or 
 minerals where the same have been severed from the land, in 
 the same manner and with the same incidents in and with 
 which he is empowered to register land, or as near thereto as 
 circumstances admit (x). 
 
 The rules provide that application for registration of manors, 
 advowsons, rents, tithes, or other incorporeal hereditaments, 
 mines and minerals severed from the land, cellars, flats, and 
 other similar hereditaments, and undivided shares in land, must 
 be made according to the rules above prescribed in the case of 
 absolute ;and possessory titles respectively, and must be pro- 
 ceeded with in the same manner, subject only to such modifica- 
 tions as the nature of the case may require and the registrar 
 may (approve (y) . 
 
 On the registration of a manor the applicant must leave in 
 the registry a plan of the lands (if any) alleged to be the 
 demesne lands of the manor, other than lands held by copy of 
 court roll, unless he leaves a reference to the general map show- 
 ing with sufficient accuracy the land affected by liis application, 
 in which case a plan will not be necessary ( z ). 
 
 On the registration of a rent or tithes, or rent-charge in lieu 
 of tithe, the applicant must leave in the registry, with the 
 application, a plan of the lands out of which they are issuing, 
 so far as they can be conveniently identified and described, or 
 such pther information as may be necessary for identifjdng 
 such lands, so far as practicable, on the ordnance map or general 
 
 ( u ) Rule 268. (y) Rule 71. 
 
 ( x ) s. 82 of tlie act of 1875, and ( z ) Rule 72 as amended by the 
 
 schedule I. of the act of 1897. rules of 1907. 
 
SPECIAL HEREDITAMENTS. 
 
 639 
 
 map, but a reference to the general map as above renders a plan 
 unnecessary (a ) . 
 
 On the registration of mines and minerals severed from the Mines, 
 land, a jolan showing as accurately as is practicable the surface 
 under which the mines and minerals lie, or a reference to the 
 general map showing the land affected by the application must 
 be deposited in the registry, together with such other plans, 
 sections, and further descriptions (if any) as the registrar may 
 deem necessary for the purpose of identifying such mines and 
 minerals, and also together with full particulars of any appur- 
 tenant rights of access, or rights incidental to the working of 
 the mines and minerals that may be subsisting and intended 
 to be entered in the register (&). 
 
 On the registration of a proprietor of a flat or floor, or part F1 ^ts, floors 
 of a flat or floor, of a house, or of a cellar or tunnel or other 
 underground space apart from the surface, a plan must be fur- 
 nished of the surface under or over which the tenement to be 
 registered lies, or a reference to the general map showing the 
 land affected by the application must be left, and such further 
 verbal or other description as the registrar may deem necessary, 
 together with notes of any appurtenant rights of access, in 
 common with others or not, or obligations affecting other tene- 
 ments for the benefit of the tenement the title to which is 
 being registered (c). 
 
 Before completing any registration under the two last rules Notices 
 with an absolute, qualified, or good leasehold title, notices must reqmred ' 
 be given in the case of mines and minerals to the owners and 
 to the occupiers of the land under which they lie, and in the 
 case of cellars, flats and other similar hereditaments to the 
 owners and to the occupiers of the other tenements immediately 
 above and below and (where in the same building) adjoining 
 laterally to the tenement which is the subject of the applica- 
 tion, and to such other persons (if any) as the registrar may 
 direct (d). 
 
 (a) Rule 73 as amended by the (c) Rule 75 as amended by the 
 
 rules of 1907. rules of 1907. 
 
 ( b ) Rule 74 as amended by the ( d ) Rule 76. 
 rules of 1907. 
 
640 
 
 BK. II. REGISTRATION OF TITLE. 
 
 Joint owners 
 of undivided 
 shares. 
 
 Fee farm and 
 other rents. 
 
 Persons 
 dealing with 
 registered 
 land not to be 
 affected by 
 notice of 
 trusts. 
 
 Several 
 
 proprietors 
 
 On the registration of two or more persons as proprietors of 
 undivided shares in land, the registration will be made under 
 one title, unless the registrar otherwise directs, and the share 
 held hy each proprietor will be specified in the proprietorship 
 register. If the shares are registered under separate titles, the 
 share to which each title relates will be stated in the property 
 register (e). 
 
 The registrar may also in the prescribed manner register any 
 fee farm grant, or other grant, reserving rents or services to 
 which the fee simple estate in any freehold land may be subject, 
 with such particulars of the land or services, and the conditions 
 annexed to the non-payment or non-performance or otherwise 
 of such rent and services as may be prescribed, and any record 
 so made shall be conclusive evidence as to the rents, services, 
 and conditions so recorded, and such fee simple estate as last 
 aforesaiu shall be subject thereto accordingly (/). 
 
 General Provisions. 
 
 The object of the system of registration is to enable the 
 person whose name appears on the register to deal freely with 
 the land of which he is registered as proprietor, and to enable 
 any one to deal with him as if he were the beneficial owner. It 
 is therefore provided that neither the registrar nor any person 
 dealing with registered land or a charge is affected with notio? 
 of a trust, express, implied or constructive; and references to 
 trusts must, as far as possible, be excluded from the register (g). 
 Consequently, if a trustee of land becomes registered as pro- 
 prietor, any person can safely take a conveyance or transfer 
 from him, whether he has notice of the trust or not; unless, of 
 course, the cestui que trusts obtain an order inhibiting the 
 transfer, as they will have an opportunity of doing if it is an 
 improper one, and the proper cautions and restrictions have 
 been entered up on their behalf (h ) . 
 
 Any number of persons may be entered as joint proprietors 
 
 (c) Rule 77. ( g ) s. 83 (1) of the act of 1875, 
 
 (/) s. 82 of the act of 1875. and schedule I. of the act of 1897. 
 
 ( h ) See ante, pp. 621 et seq. 
 
GENERAL PROVISIONS. 
 
 641 
 
 of the same land or as owners of undivided shares in it (i ) ; 
 but in order to further safeguard the interests of cestuis que 
 trusteni — joint proprietors being very commonly trustees — it is 
 provided that “ upon the occasion of ,the registry of two or 
 more persons as proprietors of the same land or of the same 
 charge, an entry may be made on the register to the effect 
 that when the number of such proprietors is reduced below a 
 certain specified number no registered disposition of such land 
 or charge shall be made, except under the order of the court; 
 or of the registrar, after inquiry into title, subject to an appeal 
 to the court. Subject to general rules, wherever registered 
 land or a charge is to be entered in the names of two or more 
 joint proprietors, the registrar shall make such entry under 
 this sub-section as may be prescribed, unless it is shown to his 
 satisfaction that the joint proprietors are entitled for their own 
 benefit ” (1c). The rules provide, however, that an entry under 
 this section need only be made where the deed or instrument, 
 by virtue of which the joint proprietors are registered, shows 
 an intention that the survivor shall not have power to dispose 
 of the land or charge, or where the registrar for any special 
 reason considers that such an entry would be desirable; but 
 such an entry may be made at any time with the consent of 
 the joint proprietors (?). When such an entry is made and 
 the joint proprietors have been reduced to the number specified, 
 the registrar must, before entering on the register any disposi- 
 tion by the registered proprietor, require the production of the 
 equitable title; and may give such notices to the persons, or 
 one or some of them equitably entitled, as he deems ex- 
 pedient (m). 
 
 Previously to registering any proposed purchaser as first pro- 
 prietor of any land or to registering any disposition of land, it 
 is the duty of the registrar to ascertain that all such stamp 
 duties have been satisfied as would be payable if the land 
 had been conveyed by an unregistered disposition to such pro- 
 
 ( i ) s. 14 of the act of 1897, and and schedule I. of the act of 1897. 
 rule 77. ( l ) Rule 224. 
 
 (k) s. 83 (3) of the act of 1875, (m) Rule 225. 
 
 G. — C. 
 
 of same land 
 or charge. 
 
 Registrar to 
 see that all 
 stamp duties 
 paid. 
 
 T T 
 
642 
 
 BK. II. REGISTRATION OF TITLE. 
 
 Succession 
 duty on 
 devolution of 
 registered 
 charges. 
 
 Restrictive 
 conditions as 
 to user may 
 be annexed to 
 registered 
 land. 
 
 Restrictive 
 
 conditions 
 
 only cun be 
 
 registered 
 
 aya’nst 
 
 freeholds. 
 
 Procedure. 
 
 posed purchaser, or the disposition to be registered had been 
 an unregistered disposition (n ) . 
 
 The provisions of the act with respect to the liability of regis- 
 tered land to succession duty and to the grant of a certificate 
 by the Commissioners of Inland Revenue in respect of the 
 exemption from succession duty, and to the notification of such 
 exemption on the register, and to the effect of such notification, 
 apply with the necessary variations to a registered charge under 
 the act (o). 
 
 Restrictive Conditions. 
 
 There may be registered as annexed to any registered land 
 a condition that the land or any specified portion of it is not to 
 be built on, or is to be or not to be used in a particular manner, 
 or any other condition running with or capable of being legally 
 annexed to land, and the first proprietor and every transferee, 
 and every other person deriving title from him, will be deemed 
 to be affected with notice of such condition; nevertheless, any 
 such condition may be modified or discharged by order of the 
 court, on proof to the satisfaction of the court that such modifi- 
 cation will be beneficial to the persons principally interested 
 in the enforcement of such condition. This applies to any 
 restrictive condition capable of affecting assigns by way of 
 notice (p). 
 
 Generally speaking, only negative or restrictive conditions 
 can be thus registered in the case of freehold land: conditions 
 involving the expenditure of money or the doing of any work 
 on the land cannot be annexed to the title, but must depend on 
 personal agreements between the parties (q ) . 
 
 An application to register restrictive conditions, if made at 
 any other time than on first registration or on a transfer, must 
 state the conditions to be registered, and must be signed by the 
 
 (n) s. 83 (7) of the act of 1875. 
 
 (o) s. 83 (8) of the act of 1875. 
 
 (p) s. 84 of the act of 1875, and 
 schedule I. of the act of 1897. The 
 section does not entitle a person 
 to enforce restrictions which he 
 
 would not have been able to en- 
 force if the land had not been re- 
 gistered: Wille v. St. John, (1910) 
 1 Ch. 84. 
 
 ( q ) See ante, pp. 152 et seq. 
 
PROVISIONS RELATING TO PERSONS SUBJECT TO DISABILITY. 
 
 643 
 
 applicant; and if he is not the registered proprietor of the land, 
 by such proprietor also; and the signatures must be attested. 
 The concurrence of the proprietor of a registered incumbrance 
 or charge may be expressed in writing signed by him and 
 attested, and an entry will be made in the register of his con- 
 currence. In the absence of such entry the proprietor of a prior 
 charge or incumbrance will be unaffected by such conditions. 
 A copy of the conditions or of the document containing them 
 must be delivered at the registry (r) . 
 
 Once a condition is registered there is great difficulty in 
 removing it, and the power must therefore be carefully used. 
 
 Provisions relating to Persons subject to Disability. 
 
 Married Women. 
 
 Where a married woman, entitled for her separate use, and 
 not restrained from anticipation, is desirous of giving any 
 consent, or becoming party to any proceeding under the acts, 
 she is to be deemed an unmarried woman, but when any other 
 married woman is desirous of so doing she must be examined in 
 the manner prescribed by rules 338 to 340, and it must be 
 ascertained that she is acting freely and voluntarily, and the 
 court may, where it sees fit, appoint a person to act as the next 
 friend of a married woman for the purpose ( s ). 
 
 Infants and Lunatics. 
 
 Where any person who (if not under disability) might have 
 made any application, given any consent, done any act, or been 
 party to any proceeding in relation to any land or charge under 
 the acts is an infant, idiot, or lunatic, the guardian or com- 
 mittee of the estate respectively of such person may make such 
 applications, give such consents, do such acts, and be party to 
 such proceedings, as such person respectively, if free from dis- 
 ability, might have made, given, done, or been party to, and 
 may otherwise represent such person for the purposes of the 
 acts; where there is no guardian or committee of the estate, 
 or where any person is of unsound mind or incapable of manag- 
 
 (s) s. 87 of the act of 1875. 
 
 Difficulty of 
 
 removing 
 
 restrictions. 
 
 Married 
 woman 
 entiiled for 
 separate use 
 free from 
 restraint to 
 have same 
 power as 
 feme sole. 
 
 Guarlian of 
 iufant or 
 enmmittee or 
 guardian of 
 lunatic to act, 
 
 (r) Rule 223. 
 
 T T 2 
 
644 
 
 BK. II. REGISTRATION OF TITLE. 
 
 Incumbent, s 
 subject to 
 restriction. 
 
 Every person 
 on register 
 to furnish 
 address. 
 
 Service of 
 notices. 
 
 Notice to be 
 returned if 
 addressee not 
 
 found. 
 
 Purchaser not 
 affected by 
 
 in g his affairs, but has not been found lunatic under an inqui- 
 sition, the court may appoint a guardian of such person for 
 the purpose (t) . 
 
 Incumbents of Benefices. 
 
 Special provisions are made in respect of dealings with regis- 
 tered land held by the incumbent of a benefice and placing 
 restriction on dispositions of such land ( u ) . 
 
 As to Notices. 
 
 Every person whose name is entered on the register as pro- 
 prietor of land or of a charge, or as cautioner, or as entitled 
 to receive any notice, or in any other character, must furnish 
 to the registrar a place of address in the United Kingdom ( x ). 
 This will be his address for service. Any person may have 
 two addresses entered in the register, to each of which all 
 notices and other communications to him may be sent (y) . 
 
 Every notice required to be given to any person must be 
 served personally, or sent through the post in a registered letter 
 marked outside “Office of Land Registry,” and directed to 
 such person at the address furnished to the registrar, and unless 
 returned, and in the absence of evidence of its actual delivery, 
 will be deemed to have been received by the person addressed 
 within seven days, exclusive of the day of posting ( z ) . 
 
 The postmaster general must give directions for the imme- 
 diate return to the registrar of all letters marked as aforesaid, 
 and addressed to any person who cannot be found; and on the 
 return of any letter containing any notice, the registrar may 
 either require further notice to be given or may authorize sub- 
 stituted service of the notice, or he may proceed without notice 
 if he thinks fit ( a ) . 
 
 A purchaser for valuable consideration will not be affected by 
 
 ( t ) s. 88 of the act of 1875. 
 
 ( u ) See s. 15 of the act of 1897, 
 and rules 237 to 239. 
 
 ( x ) s. 89 of the act of 1875. 
 
 ( y ) Rule 326. 
 
 (z) s. 90 of the act of 1875, and 
 rules 322 to 324. 
 
 (a) s. 91 of the act of 1875, and 
 rule 325. 
 
RECTIFICATION OF THE REGISTER. 
 
 645 
 
 the omission to send any notice directed to be given by the 
 acts, or by the non-receipt thereof ( b ). 
 
 Specific Performance. 
 
 Where a suit is instituted for the specific performance of a 
 contract relating to registered land, or a registered charge, the 
 court having cognizance of the suit may cause all or any parties 
 who have registered estates or rights in the land or charge, or 
 have entered up notices, cautions, or inhibitions, to appear and 
 show cause why the contract should not be specifically per- 
 formed, and the court may direct that any order made by the 
 court in the suit shall be binding on such parties or any of 
 them (c) . 
 
 All costs incurred by any parties so appearing in a suit to 
 enforce against a vendor specific performance of his contract to 
 sell registered land or a registered charge shall be taxed as 
 between solicitor and client, and, unless the court otherwise 
 orders, be paid by the vendor (eZ) . 
 
 Rectification of the Register. 
 
 Subject to any estates or rights acquired by registration in 
 pursuance of the acts, where any court of competent juris- 
 diction has decided that any person is entitled to any estate, 
 right, or interest in or to any registered land or charge, and as 
 a consequence the court is of opinion that a rectification of the 
 register is required, the court may make an order directing the 
 register to be rectified in such manner as it thinks just (e). 
 
 Subject to any estates or rights acquired by registration in 
 pursuance of the acts, if any person is aggrieved by any entry 
 made or by the omission of any entry from the register, or if 
 default is made, or unnecessary delay takes place in making 
 
 (6) s. 92 of the act of 1875. 
 
 (c) s. 93 of the act of 1875. 
 
 ( d ) s. 94 of the act of 1875. 
 
 (e) s. 95 of the act of 1875. For 
 form of order in a case where a 
 foreclosure order had foreclosed a 
 
 mortgage by deed of registered 
 land without foreclosing the 
 contemporaneous instrument of 
 charge, see W ey mouth v. Davis, 
 (1908) 2 Ch. 169. 
 
 omission to 
 send notice. 
 
 Power of 
 court in suit 
 for specific 
 performance 
 to order 
 parties to 
 appear. 
 
 Costs to be 
 paid by 
 vendor. 
 
 Court may 
 order register 
 to be rectified. 
 
 Who may 
 apply. 
 
64G 
 
 BK. II. REGISTRATION OF TITLE. 
 
 Registrar to 
 obey orders 
 of court. 
 
 Fraudulent 
 
 dispositions 
 
 void. 
 
 Criminal 
 offences under 
 the acts. 
 
 any entry in the register, any person aggrieved by such entry, 
 omission, default, or delay may apply to the court for an order 
 that the register may be rectified; and the court may either 
 refuse such application with or without costs, to be paid by the 
 applicant, or it may, if satisfied of the justice of the case, make 
 an order for the rectification of the register (/) . 
 
 The registrar must obey the order of any competent court in 
 relation to any registered land on being served with the order 
 or an official copy (g ) . 
 
 Effect of Fraudulent Entries on Register. 
 
 Any disposition of land or of a charge on land, which if 
 unregistered would be fraudulent and void, will, notwithstand- 
 ing registration, be fraudulent and void in like manner (Ji ) . 
 But this is subject to the provisions of the acts with respect 
 to registered dispositions for valuable consideration (i ) ; the 
 effect of which seems to be, that upon a transfer for value by 
 a person who claims under registered disposition which is 
 fraudulent and void, the transferee gets a good title notwith- 
 standing the defect in the title of the transferor. This, 
 however, is again subject to the provision that where a regis- 
 tered disposition would, if unregistered, be absolutely void, the 
 register is to be rectified, and the person suffering loss by the 
 rectification will be entitled to indemnity (k). 
 
 Further, it is made a misdemeanour, punishable on indict- 
 ment with two years’ imprisonment with or without hard 
 labour, or a fine not exceeding 500 1., 
 
 (i.) To suppress or attempt to suppress, or be privy to the 
 suppression of any document or fact with intent to 
 conceal the title or claim of any person, or to sub- 
 stantiate a false claim (Z). 
 
 (ii.) Fraudulently to procure or attempt to procure, or be 
 privy to the fraudulent procurement, of any entry on 
 the register or of any erasure from or alteration of it: 
 and any entry, erasure, or alteration so made by fraud 
 
 (/) s. 96 of the act of 1875. 
 ((/') s. 97 of the act of 1875. 
 ( h ) s. 98 of the act of 1875. 
 
 (i) Ibid. 
 
 (h) s. 7 (2) of the act of 1897. 
 (Z) s. 99 of the act of 1875. 
 
RIGHT TO INDEMNITY FOR ERRORS IN REGISTER. 
 
 647 
 
 will be void as between all parties or privies there- 
 to (m). 
 
 (iii.) Wilfully to make a false statement in any affidavit 
 or declaration required or authorized to be made by 
 the acts or rules (w). 
 
 No proceeding' or conviction for any act declared by the act 
 to be a misdemeanour will affect any remedy which any person 
 aggrieved by such act may be entitled to, either at law or in 
 equity (o). 
 
 Nothing in the act contained will entitle any person to refuse 
 to make a complete discovery by answer in any legal proceeding, 
 or to answer any question or interrogatory in any civil pro- 
 ceeding, in any court; but no answer to any such question 
 or interrogatory will be admissible in evidence against such 
 person in any criminal proceeding under the acts (p ) . 
 
 Right to Indemnity for Errors in Register. 
 
 It is obvious that, notwithstanding the provisions with 
 respect to fraud above stated, mistakes and erroneous entries 
 in the register are certain to occur from time to time, in which 
 case one of two innocent parties must suffer. Provision is made 
 for this by s. 7 of the act of' 1897, which gives the injured party 
 a right of indemnity. The section is as follows: — 
 
 “ (1.) Where any error or omission is made in the register, 
 or where any entry in the register is made or procured 
 by or in pursuance of fraud or mistake, and the error, 
 omission, or entry is not capable of rectification under 
 the principal act, any person suffering loss thereby 
 shall be entitled to be indemnified in the manner in 
 this act provided. 
 
 “ (2.) Provided that where a registered disposition would if 
 unregistered be absolutely void, or where the effect 
 of such error, omission, or entry would be to deprive 
 a person of land of which he is in possession, or in 
 receipt of the rents and profits, the register shall be 
 
 Civil remedies 
 not affected 
 by conviction. 
 
 Offences not 
 
 privileged 
 
 from 
 
 discovery. 
 
 Persons 
 suffering loss 
 by errors in 
 or omissions 
 from register 
 to be indem- 
 nified. 
 
 (m) s. 100 of the act of 1875. 
 
 (n) s. 101 of the act of 1875. 
 
 (o) s. 102 of the act of 1875. 
 
 (p) s. 103 of the act of 1875. 
 
648 
 
 BK. II. REGISTRATION OF TITLE. 
 
 rectified, and tlie person suffering loss by the rectifi- 
 cation shall be entitled to the indemnity. 
 
 “ (3.) A person shall not be entitled to indemnity for any 
 loss where he has caused or substantially contributed 
 to the loss by his act, neglect, or default, and the 
 omission to register a sufficient caution, notice, in- 
 hibition, or other restriction to protect a mortgage 
 by deposit or other equitable interest, or any estate 
 or interest created under section forty-nine of the 
 principal act, shall be deemed neglect within the 
 meaning of this sub-section. 
 
 “ (4.) Where the register is rectified under the principal act 
 by reason of fraud or mistake which has occurred in 
 a registered disposition for valuable consideration, and 
 which the grantee was not aware of and could not bv 
 the exercise of reasonable care have discovered, the 
 person suffering loss by the rectification shall likewise 
 be entitled to indemnity under this section. 
 
 “ (5.) The registrar may, if the applicant desires it, and 
 subject to an appeal to the court, determine whether a 
 right to indemnity has arisen under this section, and, 
 if so, award indemnity. In the event of an appeal 
 to the court, the applicant shall not be required to 
 pay any costs except his own, even if unsuccessful, 
 unless the court shall consider that the aj)peal is un- 
 reasonable . 
 
 “ (6.) Where indemnity is paid for a loss, the registrar, on 
 behalf of the crown, shall be entitled to recover the 
 amount paid from any person who has caused or sub- 
 stantially contributed to the loss by his act, neglect, 
 or default. 
 
 “ (7.) A. claim for indemnity under this section shall be 
 deemed a simple contract debt, and for the purposes 
 of the Limitation Act, 1G23, the cause of action shall 
 be deemed to arise at the time when the claimant 
 knows, or but for his own default might know, of 
 the existence of his claim. This section shall apply 
 to the crown in like manner as it applies to a private 
 person.” 
 
RIGHT TO INDEMNITY FOR ERRORS IN REGISTER. 
 
 649 
 
 For the purpose of providing the indemnity ay able under 
 this section, an insurance fund has been established, raised by 
 setting apart at the end of each financial year a portion of the 
 receipts and fees taken in the registry; any deficiency in the 
 fund being temporarily made good out of the consolidated 
 fund from time to time (q). 
 
 The provision of this insurance fund was held out as one of 
 the advantages of the system of registration established by 
 the acts, but it appears to afford little or no protection to the 
 public. The only reported case in which a claim has been made 
 upon the fund is that of Attorney -General v. Odell (r). In 
 this case Mr. Odell left at the registry what purported to be 
 a transfer of a charge registered in the name of Mrs. Connell 
 and in due course ho was registered accordingly as the proprie- 
 tor of the charge. It subsequently transpired that the transfer 
 had not been executed by Airs. Connell, but was a forgery by 
 her solicitor, who had misappropriated the purchase-money 
 paid by Odell. There was no negligence on Mrs. Conlnell’s 
 part, and Odell acted in perfect good faith, and could not 
 have detected the forgery by the exercise of any reasonable 
 care. On the discovery of the fraud Mrs. Connell obtained an 
 order for the rectification of the register, and Odell applied for 
 indemnity, but the Court of Appeal held that he was not en- 
 titled to it on the ground, first, that he had “caused or con- 
 tributed to ” his loss by bringing to the registry what he im- 
 pliedly warranted was a genuine document, and second, that 
 he had no “transfer” from “the registered proprietor of the 
 charge” within the meaning of s. 40 of the act of 1875, and 
 consequently had not “suffered loss by the rectification.” The 
 result appears to be that there will in practice be very few 
 cases in which a claim to indemnity for rectification of the 
 register can be maintained, and having regard to the oppor- 
 tunities for fraud which the system of the registry affords (s), 
 persons dealing with registered land appear to run greater risk 
 of loss than exists under the common law system of convey- 
 ancing. 
 
 (q) See s. 21 of the act of 1897. ton, J., in Marshall v. Robertson 
 
 (r) (1908) 2 Oh. 47. (1905), Sol. Jour. vol. 1. 75. 
 
 (s) See remarks of Warring- 
 
 Insurance 
 
 fund. 
 
 Difficulty in 
 
 obtaining 
 
 indemnity. 
 
650 
 
 BK. II. REGISTRATION OF TITLE. 
 
 Local Registries. 
 
 Land regis- 
 tered under 
 the Acts 
 exempted 
 from the 
 registry of 
 deeds. 
 
 Land situate within the jurisdiction of the Middlesex and 
 Yorkshire registries, if registered at the land registry, becomes 
 exempt from the jurisdiction of the county registries as from 
 the date of registration, and no document executed, and no 
 testamentary instrument relating to any registered land coming 
 into operation subsequently to such date is required to be regis- 
 tered in any of the local registries (£). But this does not 
 apply to estates and interests excepted from the effect of regis- 
 tration under a possessory or a qualified title (m), or to an un- 
 registered reversion on a registered leasehold, or to dealings 
 with incumbrances created prior to the registration of the 
 land (jc). 
 
 Power to Remove Land from the Register. 
 
 Registered 
 proprietor 
 may remove 
 land from the 
 register. 
 
 The registered proprietor of land not situated in a district 
 where the registration of title is compulsory may, with the 
 consent of the other persons (if any) for the time being 
 appearing by the register to be interested therein, and on 
 delivering up the land certificate or office copy of the registered 
 lease and certificates of charge (if any), remove the land from 
 the register. After land is removed from the register no 
 further entries are to be made respecting it; but the last 
 registered proprietor of the land or a charge may, for a period 
 of two years from the removal, inspect the register and have 
 office copies of the entries. After that period no inspection 
 can be made or office copy obtained without the order of the 
 registrar. If the land so removed from the register is situate 
 within the jurisdiction of the Middlesex or Yorkshire regis- 
 tries, it will again be subject to such jurisdiction as from the 
 date of the removal («/). 
 
 (£) s. 127 of the act of 1875. (a?) Schedule I. of the act of 
 
 ( u ) As to which, see ante , pp. 1897. 
 
 572 et seq. ( y ) s. 17 of the act of 1897, and 
 
 rule 295. 
 
651 
 
 INSPECTION, SEARCHES, AND COPIES OF REGISTER. 
 
 Inspection, Searches, and Copies of Register. 
 
 The register is strictly private; no search (except of the 
 general index map) can be made without the written authority 
 of the registered proprietor or his solicitor (z). 
 
 Any entry in the register, and any document in the custody 
 of the registrar and referred to in the register, may be inspected 
 by or under the authority of the registered proprietor of the 
 land or of any charge or incumbrance thereon (a ) . The pro- 
 perty register and the filed plan of any title may be inspected 
 by any person interested in the land or in any adjoining land, 
 or in a charge or incumbrance thereon. Other entries in the 
 register and documents referred to therein and the statutory 
 declaration in support of a caution may be inspected by any 
 person interested, on giving three days’ notice to the registered 
 proprietor or on satisfying the registrar that, by reason of the 
 death of a sole registered proprietor, or for any other sufficient 
 reason, he cannot obtain the requisite authority for or consent 
 to such inspection, and that such inspection is reasonable and 
 proper (5) . The registered proprietor of the land, or of a charge 
 or incumbrance, may by an instrument in form 67 in the first 
 schedule to the rules, or to the like effect, authorize an appli- 
 cation to be made to the registrar for information as to the 
 entries in the register at or prior to the date of such authority. 
 A copy of the authority may be filed in the registry. The 
 registrar must at any time furnish to any person producing the 
 authority such information as to the state of the register at the 
 date mentioned in the authority as may be reasonably re- 
 quired (c). Except as above provided, inspection of books and 
 documents is in the discretion of the registrar (d ) . Every in- 
 spection must be made in the presence of an officer of the regis- 
 try, and every copy or note of, or extract from, any register 
 or document in the custody of the registrar must be made by 
 the person inspecting in pencil only. No ink may be used (e). 
 
 ( z ) s. 104 of the act of 1875, and 
 s. 22 (7) of the act of 1897. 
 
 (а) Rule 284. 
 
 (б) Rule 285. 
 
 (c) Rule 286. There is a fee 
 
 of 5s. payable. See Fee Order, 
 9th November, 1908, par. k. 
 
 ( d ) Rule 287. 
 
 (e) Rule 288. 
 
 Register 
 
 private. 
 
 Searches, 
 how and by 
 whom made. 
 
652 
 
 BK. II. REGISTRATION OF TITLE. 
 
 Official 
 
 searches. 
 
 By telegraph. 
 
 Any person authorized to inspect the entries in the register 
 relating to any title, charge, or incumbrance, may apply to 
 the registrar in writing, signed by himself or his solicitor, to 
 make an official search (describing the nature of the search 
 required) against such title, charge, or incumbrance, and to 
 issue a certificate of the result; and the registrar, on receipt 
 of such application, will make the search and issue the certifi- 
 cate accordingly. The certificate of the result of such search 
 will be in form 68 in the first schedule to the rules (/) . 
 
 The registered proprietor of any land, charge, or incum- 
 brance, may apply to the registrar by telegraph to search 
 whether any caution, restriction, inhibition or notice has been 
 entered against any such land, charge, or incumbrance since a 
 date to be named ; which date must not be earlier than the date 
 of the land certificate or certificate of charge held by the appli- 
 cant, or, where such certificate has been re-issued, the date on 
 which it was last re-issued (g ) . The application must give the 
 number of the title and the parish or place under which it is 
 registered, and in the case of a charge or incumbrance must 
 give a sufficient description thereof, and must be signed by the 
 registered proprietor (or by his solicitor, describing himself as 
 such, and giving the name of the proprietor), and must give 
 the name and address of the person to whom the answer is to 
 be sent. The fee for the search must be sent by the same 
 telegram, and the reply must be prepaid (Ji). Upon the receipt 
 of such an application the search will be made forthwith, and 
 the result, “yes’’ or “no," will be sent by telegram to the 
 person named in that behalf in the application, repeating the 
 number of the title, the parish or place, the date at which the 
 search commences, and, in the case of a charge or incumbrance, 
 the description (i) . When a solicitor or other person obtains 
 an official certificate of the result of a search, he will not be 
 answerable in respect of loss that may arise from any error 
 therein. When the certificate is obtained by a solicitor acting 
 for trustees, executors, or other persons in a fiduciary position, 
 those persons also will not be so answerable (k). 
 
 (/) Rule 289. For the fees pay- ( h ) Rule 291. 
 
 able, see Fee Order, 9th Novem- (i) Rule 292. 
 
 her, 1908, par. k. ( k ) Rule 293. 
 
 ( g ) Rule 290. 
 
COMPULSORY REGISTRATION. 
 
 653 
 
 An office copy of any entry in the register, or of any docu- Office copies, 
 ment in the registry, must, upon an application in writing by 
 any person who is entitled to inspect such entry or document, 
 be issued to him or his solicitor (l ) . 
 
 Compulsory Registration. 
 
 Haying now explained the system of registration of title, we Orders in 
 have to deal with the provisions by which its adoption is made b^made^ 
 compulsory. Sect. 20 of the act of 1897 provides that it may . 
 
 J- ^ ... registration 
 
 be declared by order in council that as regards any county or compulsory 
 part of a county, mentioned or defined in the order, registra- on sale ' 
 tion of title to land is to be compulsory on sale. Before any 
 such order is made, a draft is, six months previously, to be 
 submitted to the council of the county which is to be affected. 
 
 Within three months after receipt of the draft, the county 
 council, at a meeting specially summoned for the purpose, and 
 at which two-thirds of the whole number of the council are 
 present, may by a simple majority resolve that in their opinion 
 compulsory registration of title would not be desirable for the 
 district which they represent. If no such resolution is passed, 
 and the order becomes operative, no other order can under any 
 circumstances be made until the expiration of three years from 
 its date. 
 
 After the expiration of the three years the compulsory area Extension 
 may be further extended, but only to a county or part of a of^compulsoy, 
 county the council of which, at a special meeting at which two- 
 thirds of the whole number of the council are present, shall 
 request such extension (m) . 
 
 Pursuant to this provision a draft order Avas made in the Acts applied 
 month of November, 1897, applying the act to the administra- London! 3 ° 
 
 , tive county of London. This was considered by the London 
 County Council at a meeting held on the 15th February, 1898, 
 and adopted subject to the act not being made to apply to 
 the whole of London at once, but being made to take effect 
 progressively. 
 
 ( l ) Rule 294. 
 
 (m) s. 20 (8) of the act of 1897. 
 
654 
 
 BK. II. REGISTRATION OF TITLE. 
 
 Dates of 
 operation of 
 orders in 
 council. 
 
 Consequent upon this resolution, orders in council dated the 
 18th July, 1898, 20th October, 1898, 28th November, 1899, 
 9th March, 1901, 10th December, 1901, and 6th March, 1902, 
 have been made making registration compulsory on sale in the 
 several portions of the county mentioned in the first column, on 
 and after the respective days mentioned in the second column 
 of the following schedule: — 
 
 The Schedule. 
 
 Portions of the County. 
 
 Days on and after which 
 registration of tide to laud 
 is to be compulsory on sale. 
 
 The parishes of Hampstead, Saint Pancras, Saint 
 Mary It bone, and Saint George’s, Hanover Square. 
 The parishes of Shoreditch, Bethnal Green, Mile End 
 Old Town, Wappiny. Saint George’s in the East, 
 Shadwell, Ratcliff, Limehouse, Bow, Bromley, and 
 Poplar. 
 
 1st January, 1899. 
 
 1st March, 1899. 
 
 The remainder of the county (not including the city 
 of London) north of the centre line of the river 
 
 1st October, 1899. 
 
 Thames, except North Woolwich. 
 
 
 The parishes of Christ Church, Southwark, Saint 
 George the Martyr, Camberwell, Horselydown, 
 Lambeth, Bermondsey, Newington, Rotherhithe, 
 Saint Olave and Saint Thomas, Southwark, and the 
 detached part of the parish of Streatham situate 
 between the parishes of Lambeth and. Camberwell. 
 
 1st January, 1900. 
 
 The parishes of Battersea, Clapham, Putney, Tooting 
 Graveney, Wandsworth, and the remainder of the 
 parish of Streatham. 
 
 1st May, 1900. 
 
 The remainder of the county except the city of 
 London. 
 
 1st November, 1900. 
 
 The city of London 
 
 1st July, 1902. 
 
 When 
 registration 
 compulsory 
 and penalty 
 for non- 
 registration. 
 
 In the compulsory area registration of title is compulsory: — 
 (1) On sale of freehold land, otherwise the purchaser will 
 not under any conveyance on sale executed on or 
 after the day specified acquire the legal estate. 
 The expression “ conveyance on sale” means an 
 instrument executed on sale by virtue whereof 
 there is conferred or completed a title under which 
 an application for registration as first proprietor 
 of land may be made under the act of 1875 ( n ); 
 and 
 
 (n) s. 20 (2) of the act of 1897. 
 
COMPULSORY REGISTRATION. 
 
 65 
 
 (2) On sale of a lease or underlease having at least forty, 
 years to run, or two lives yet to fail in, and a 
 grant of a lease or underlease for a term of forty 
 years or more, or for two or more lives executed 
 after the day specified in the order and capable 
 of registration (o), otherwise the assignment or 
 grant, as the case may be, will operate only as an 
 agreement, and will not pass any legal estate to 
 the assignee or lessee. But in this case, where the 
 assignees or lessees will be trustees of a settlement 
 for the purposes of the Settled Land Acts, 1882 
 to 1890, this does not prevent the legal estate from 
 passing to the trustees provided the tenant for life 
 or the person having the powers of the tenant for 
 life under the settlement be registered as proprie- 
 tor of the land comprised in the assignment or 
 lease within one calendar month from the date 
 thereof or within such further time as the regis- 
 trar allows (p). The expressions “assignment” 
 and “ grant of a lease or underlease ” apply to any 
 instrument by virtue whereof there is conferred or 
 completed a title under which an application for 
 registration as first proprietor of leasehold land 
 may be made, not being an assignment or surrender 
 to the owner of the immediate reversion executed 
 on or after the 1st of January, 1909, and contain- 
 ing a declaration that the term is to merge in the 
 reversion (g) . 
 
 The title with which a proprietor of land is registered in Registration 
 pursuance of the compulsory clauses must not be less than a p^essory 
 possessory title; but this does not prevent any person from title, 
 being registered with any other title if the registrar is satisfied 
 with his title (r) . 
 
 ( q ) Rule 70 as amended by the 
 rules of 1908. 
 
 (r) s. 20 (3) of the act of 1897. 
 
 (o) See ante, p. 574. 
 
 (p) Rules 68 and 69. 
 
656 
 
 BK. II. — REGISTRATION OF TITLE. 
 
 Solicitors’ 
 Remunera- 
 tion Act and 
 Order do not 
 apply. 
 
 Solicitors’ Remuneration for Work done in the Land 
 
 Registry. 
 
 Except as mentioned below, neither the ordinary scales of 
 costs nor the Solicitors’ Remuneration Act and Order apply to 
 transactions in the registry. 
 
 The remuneration of solicitors is regulated by the rules, the 
 provisions of which are as follows: — 
 
 All costs incurred in any proceeding in the registry shall 
 be in the discretion of the registrar, having regard to the pro- 
 visions as to costs contained in the acts and these rules; and 
 shall, unless the parties otherwise agree, be taxed as the regis- 
 trar shall direct by the taxing officers of the Supreme Court. 
 Any order made by the registrar as to costs may be enforced 
 in the mode provided by s. 73 of the act of 1875 with respect 
 to costs, charges, and expenses incurred in or about proceed- 
 ings for registration of land (s) . The remuneration of solici- 
 tors in, or incidental to, or consequential on the registration 
 of land and transactions in the registry shall be regulated in 
 the matters hereinafter mentioned as follows (£): — 
 
 (B.) For conversion (except under rule 37 or rule 42) of a 
 possessory or qualified title into an absolute or good leasehold 
 title, where the solicitor has acted for the applicant on the 
 occasion of a transfer for value, or charge, or transfer for value 
 of a charge; the remuneration shall be (in addition to the 
 remuneration otherwise payable for the transfer, charge, or 
 transfer of charge) that prescribed in the second schedule 
 hereto. 
 
 (C.) For every completed transfer, charge, exchange, or par- 
 tition of registered land, or of a registered charge: — 
 
 (i.) Where no title outside the register is investigated, 
 the remuneration shall be that prescribed in Part II. 
 of the second schedule hereto. 
 
 (ii.) Where title outside the register is investigated, the 
 Remuneration Order, 1882, excepting Part I. of 
 schedule I. to that order, shall regulate the remune- 
 
 ( t ) Rule 336 as amended by the 
 rules of 1908. 
 
 (,s) Rule 334. 
 
solicitors’ remuneration for work in land registry. 
 
 6 
 
 ration for the preparation and investigation of the 
 title and for completing the transaction on the 
 register . 
 
 (D.) In applying the scales in the second schedule to the 
 Land Transfer Rules, 1903, to the case of a transfer of regis- 
 tered freehold land wholly or partly in consideration of a rent, 
 the remuneration shall be calculated upon the value of the rent 
 taken at twenty-five years’ purchase, plus the amount of the 
 money payment or premium, if any. Provided that the re- 
 muneration for registration, where no title is investigated, shall 
 not exceed the charges of the solicitor of the grantee under 
 the Remuneration Order, 1882, for perusal of the draft con- 
 veyance and for completion. 
 
 (E.) In all cases in which a solicitor would be entitled to 
 charge under Part I. of Schedule I. of the Remuneration Order, 
 1882, for negotiating a sale, purchase, or loan, or for conduct- 
 ing a sale by auction, he shall be entitled to make the same 
 charges in respect of a similar transaction respecting registered 
 land. 
 
 (F.) The remuneration hereby authorized shall not include 
 the disbursements, extra work, business, or proceedings which 
 under s. 4 of the Remuneration Order, 1882, are not to be 
 included in the remuneration prescribed by Schedule I. to that 
 Order. 
 
 (G.) When a solicitor is concerned for the proprietor of land 
 and also for a person taking a charge thereon, he is to be en- 
 titled to receive the charges of the solicitor of the person 
 taking the charge, and one-half of those that would be allowed 
 to the proprietor’s solicitor up to 5,000Z., and on any excess 
 above 5,000L one-fourth thereof. 
 
 (H.) If the solicitor conducting the business acts on behalf 
 of several parties having distinct interests proper to be sepa- 
 rately represented, he is to be entitled to make for each such 
 party after the first, an additional charge not exceeding 21. 2s. 
 in each case. 
 
 (I.) In all cases to which the scales fixed herein or in the 
 second schedule hereto apply, a solicitor may, before under- 
 
 G. — c. 
 
 u u 
 
658 
 
 BK. II. REGISTRATION OF TITLE. 
 
 taking the business, by writing under his band communicated 
 to the client, elect that bis remuneration shall be according to 
 the Bemuneration Order, 1882, excepting Schedule I. to that 
 Order. 
 
 (J.) In all transactions the remuneration for which is not 
 hereby provided for, the Bemuneration Order, 1882, excepting 
 Part I. of Schedule I. to that Order, shall regulate the remu- 
 neration of the solicitor. 
 
 THE SECOND SCHEDULE. 
 
 Solicitot^s Remuneration . (Rzde 336.) 
 
 PABT I. O). 
 
 PABT II. 
 
 Scale of Charges for Transfers , Charges , Exchanges , and Partitions 
 of Registered Land or a Registered Charge ( x ). 
 
 Value of Land or Amount of Charge. 
 
 Scale of Charges. 
 
 Not exceeding 1,000/ 
 
 10s. 6d. for every 100/. or part of 100/. 
 
 Exceeding 1,000/. and not exceed- 
 ing 20,000/. 
 
 5/. os. for the first 1,000/. and 1/. Is. 
 for every subsequent 2,000/. or 
 part of 2,000/. 
 
 Exceeding 20,000/. and not ex- 
 ceeding 40,000/. 
 
 1 51. 15s. for the first 20,000/. and 
 1/. Is. for every subsequent 4,000/. 
 or part of 4,000/. 
 
 Exceeding 40,000/. 
 
 21/. for the first 40,000/. and 1/. Is. 
 for every subsequent 10,000/. or 
 part of 10,000/. up to a maximum 
 of 26/. os. 
 
 ( u ) Part I. was annulled by the 
 rules of 1908. 
 
 ( x ) This heading was amended 
 by the rules of 1908. 
 
SECOND SCHEDULE. 
 
 659 
 
 The Land Transfer Lee Order, dated 9th November, 1908, made 
 IN PURSUANCE OF SECTION 112 OF THE LAND TRANSFER ACT, 1875, 
 and of Section 22 of the Land Transfer Act, 1897. 
 
 Land Eegistry. 
 
 Land Transfer Acts, 1875 and 1897. 
 
 I, The Eight Honourable Eobert Threshie Baron Loreburn, Lord 
 High Chancellor of Great Britain, with the consent of the Treasury and 
 with the advice and assistance of the Honourable Sir Matthew Ingle 
 ■Joyce, Knight, a J udge of the Chancery Division of the High Court of 
 Justice, chosen by the Judges of that Division, Charles Lortescue 
 Brickdale, Esq., Begistrar of the Land Eegistry, Philip Spencer 
 Gregory, Esq., Barrister-at-Law, chosen by the General Council of the 
 Bar, James William Clark, Esq., one of His Majesty’s Counsel, chosen 
 by the Board of Agriculture, and Eichard Pennington, Esq., Solicitor, 
 chosen by the Council of the Law Society, by virtue and in pursuance 
 of the Land Transfer Acts, 1875 and 1897, and of all other powers and 
 authorities enabling in that behalf, do make the following General 
 Eules for the purpose of carrying the said Acts into execution. 
 
 Dated this 9th day of November, 1908. 
 
 Loreburn , C. 
 
 Subject to the Eules hereinafter contained, the following fees shall 
 be charged for the several matters hereunder specified. 
 
 (A.) Entry of first proprietorship of land (except as in para- 
 graph D) : — 
 
 Value of Land. 
 
 
 Lee. 
 
 Not exceeding 100/ 
 
 
 12s. 
 
 Exceeding 100/. but not exceeding 325/. 
 
 1/. 
 
 , , 325/. , , , , 
 
 1,000/. 
 
 Is. 6d. for every 25/., or part 
 of 25/. 
 
 o 
 
 o 
 
 t—H 
 
 3,000/. 
 
 3/. for the first 1,000/., and Is. 
 for every 25/. or part of 25/. 
 over 1,000/. 
 
 „ 3,000?. „ 
 
 10,000/. 
 
 7 /. for the first 3,000/., and Is. 
 for every 50/. or part of 50/. 
 over 3,000/. 
 
 „ 10,000/ 
 
 
 14/. for the first 10,000/. and 
 Is. for every 100/. or part of 
 100/. over 10,000/. 
 
 (B.) (i.) Eegistration of — 
 
 (a) charges, except charges by way of additional or substituted 
 security where the original security is or was a registered 
 charge, and 
 
 U TJ 
 
 O 
 
BK. II. REGISTRATION OF TITLE. 
 
 660 
 
 (b) transfers of land, except as in paragraph (D) and not being 
 
 by way of partition or exchange, and 
 
 (c) transfers of charges, 
 
 made for valuable consideration other than marriage, and 
 
 (ii.) Entries and corrections in the register under rule 151 of the 
 Land Transfer Rules, 1903, and 
 
 (iii.) Removal of land from the register. 
 
 Value of Land or Amount of Charge. 
 
 Fee. 
 
 Not exceeding 50,000? 
 
 Is. 6c?. for every 25?. or part of 25?. 
 
 Exceeding 50,000/. and not ex- 
 ceeding 100,000?. 
 
 For the first 50,000?. at the rate afore- 
 said, and 1?. 10s. for every 1,000?. 
 or part of 1,000?. over 50,000?. 
 
 Exceeding 100,000?. ... 
 
 As for 100,000/. 
 
 (C.) (i.) Registration of — 
 
 
 (a) Transmissions, and 
 
 
 (b) Transfers and charges not falling within paragraphs (B) and 
 (D), and 
 
 (ii.) Rectification of the register under the 95th section of the act of 
 1875, and 
 
 (iii.) Entries and corrections in the register under rules 155 and 
 156: — 
 
 Is. per 100?., or part of 100?., of the capital value of the interest 
 dealt with; with a maximum of 21. 
 
 (D.) (i.) Entry of first proprietorship of leasehold land, where the 
 original lessee or his personal representative is the applicant, and 
 (ii.) Entry of first proprietorship of freehold land on the occasion 
 of a grant wholly or partly in consideration of a rent, and 
 
 (iii.) Registration of a transfer of freehold land on a like occa- 
 sion: — 
 
 (1.) (a) In all cases except mining leases and leases at rack rent: — 
 
 Amount of Annual Rent. 
 
 Fee. 
 
 Not exceeding 5? 
 
 10s. 
 
 Exceeding 5?. and not exceeding 50/. ... 
 
 10s. for the first 51. and 2s. for 
 every 51. or part of 51. over 51. 
 
 Exceeding 50?. and not exceeding 150?.... 
 
 1 ?. 8s. for the first 50?. and Is. for 
 every 51. or part of 51. over 50?. 
 
 Exceeding 150? 
 
 21. 8s. for the first 150?. and 6d. 
 for every 51. or part of 51. over 
 150?. 
 
SECOND SCHEDULE. 
 
 (b) Leases at rack rent: — 
 
 
 Amount of Annual Rent. 
 
 Fee. 
 
 Not exceeding 100/. 
 
 Exceeding 100/. and not exceeding 500/. 
 Exceeding 500/ 
 
 3s. for every 20/. or part of 20/., 
 but not less in any case than 
 10s. 
 
 15s. for the first 100/. and Is. 
 for every 20/. or part of 20/. 
 over 100/. 
 
 1/. 15s. for the first 500/. and 
 Is. for every 50/. or part of 
 50/. over 500/. 
 
 (c) Where the lease, grant, or transfer is partly in consideration 
 
 of a money payment or premium, and partly of a rent, then, 
 in addition to the fee in respect of the rent, there shall be 
 paid a further sum equal to the fee which would be payable 
 on the first registration or transfer, as the case may be, if 
 the value of the land were equal to such money payment or 
 premium. 
 
 (d) Where a varying rent is payable, the amount of annual rent 
 
 means the largest amount of annual rent payable. 
 
 (2.) Mining leases: — five pounds. 
 
 (E.) Entry of a notice, under section 50 of the Land Transfer Act, 
 1875, of a lease or sub-lease by way of security for money: — 
 
 (a) Where a charge for the money secured by the lease or sub-lease 
 
 has already been registered, or is delivered together with the 
 notice: — 
 
 (i) If the amount secured does not exceed 1,000/., one 
 shilling for every 100/. or part of 100/. of the amount secured. 
 
 (ii) If the amount secured exceeds 1,000/., ten shillings. 
 
 (b) In other cases: — 
 
 The same fee as for the registration of a charge for the amount 
 secured by the lease or sub-lease. 
 
 (E.) Conversion of a possessory title into a qualified good leasehold 
 or absolute title: or of a qualified title into a good leasehold or absolute 
 title: or of a good leasehold into an absolute title, except in cases com- 
 ing under either rule 39 or rule 42 of the general rules, and in, cases 
 where the application for conversion is made after the payment of the 
 fee prescribed in paragraph B (i) (b) for a transfer for value of land, 
 in which cases no fee shall be charged: — 
 
 The same fee as prescribed in paragraph A for entry of first 
 proprietorship of land, subject to such abatement (if any) 
 
662 
 
 BK. II. REGISTRATION OF TITLE. 
 
 as the registrar shall deem reasonable, in any case in which 
 the full fee appears to him excessive, having regard to the 
 amount of time and labour involved. 
 
 In cases coming under the 14th paragraph of the first schedule to the 
 Land Registry (Middlesex Deeds) Act, 1891, the amount of any fee 
 paid on registration with possessory title shall be allowed for. 
 
 (Gr.) Registration of proprietorship of an incumbrance prior to re- 
 gistration, except where registered on the entry of first proprietorship 
 of land with absolute title, good leasehold title, or qualified title; and 
 of a transfer or transmission of such incumbrance: — 
 
 The same fee as for registration of a charge, or of a transfer 
 or transmission thereof respectively. 
 
 (II.) A land certificate or certificate of charge, except on first re- 
 gistration or on any other occasion when required by the acts or rules 
 to be issued free of charge: — 
 
 Where the value of the land or amount of the charge £ s. d. 
 
 does not exceed 1,000?. ... ... ... ... 0 10 0 
 
 Where it exceeds 1,000?. ... ... ... ... 1 0 0 
 
 and in either case such further fee as the registrar shall prescribe for 
 copies of plans — if any. 
 
 (I.) Altering a land certificate or certificate of charge to correspond 
 with the register, except where such alteration is required by the acts 
 or rules to be made free of charge, or is made at the same time as some 
 entry in the register: — 
 
 Where the value of the land or amount of the charge 
 does not exceed 1,000?. 
 
 Where it exceeds 1,000?. 
 
 altering or preparing copies of plans — if any. 
 
 (j.) 
 
 (1.) Registering an inhibition 
 (2.) Alteration or withdrawal of an inhibition 
 (3.) Registering a caution, restriction, or priority 
 notice 
 
 (4.) Alteration or withdrawal of a caution or re- 
 striction ... 
 
 (5.) Annexing conditions to land 
 (6.) Discharging or altering conditions 
 (7.) Entering notice of an estate in dower or by the 
 curtesy 
 
 (8.) Entering a note or notice under the 18th section 
 of the act of 1875 
 
 £ 
 
 s. 
 
 d. 
 
 0 
 
 5 
 
 0 
 
 0 
 
 10 
 
 0 
 
 iribe for 
 
 £ 
 
 s. 
 
 d. 
 
 1 
 
 0 
 
 0 
 
 0 
 
 10 
 
 0 
 
 0 
 
 10 
 
 0 
 
 0 
 
 5 
 
 0 
 
 0 
 
 5 
 
 0 
 
 0 
 
 5 
 
 0 
 
 0 
 
 5 
 
 0 
 
 0 
 
 5 
 
 0 
 
SECOND SCHEDULE. 
 
 (9.) An entry negativing or altering implied cove- 
 nants, powers, or priorities 
 
 (10.) Filing a supplementary statement of incum- 
 brances 
 
 (11.) Entering notice of a lease or sub-lease (not 
 being a lease or sub-lease by way of security 
 for money) 
 
 (12.) Any entry or cancellation on the register for 
 which the registrar considers a fee should be 
 chargeable and for which no other fee is pre- 
 scribed 
 
 (13.) Entering an additional address for service 
 
 (14.) Entering notice of deposit or intended deposit 
 of a certificate ... 
 
 £ s. d. 
 0 5 0 
 0 5 0 
 
 0 5 0 
 
 0 5 0 
 0 2 6 
 
 0 10 
 
 (1.) Preparing or settling a statement for the court.. 0 10 0 
 
 (2.) Examination of a married woman by an officer 
 
 of the registry ... ... ... ... ... 0 10 0 
 
 (3.) Comparing abstracts with deeds by officers of 
 
 the registry — per hour ... ... ... ... 0 10 0 
 
 (4.) Perusing draft document submitted to the re- 
 gistrar for approval ... ... ... ... 0 5 0 
 
 (5.) Certificate of result of official search: — 
 
 (a) of the register — per title ... ... ... 0 5 0 
 
 (b) of the index of proprietors’ names — per 
 
 name ... ... ... ... ... 0 5 0 
 
 (c) of the index map ... ... ... ... 0 5 0 
 
 and if the land in respect / Such further fee, according 
 
 of which the search ) to the time and labour 
 
 is made exceeds an ) employed, as the registrar 
 
 acre ... ... ...\ shall prescribe. 
 
 (6.) Furnishing information under rule 286 ... 0 5 0 
 
 (7.) A summons ... ... ... ... ... 0 5 0 
 
 (8.) Inspection of any document not referred to on 
 
 the register ... ... ... ... ... 0 5 0 
 
 (9.) Taking an affidavit or declaration ... ... 0 1 6 
 
 (10.) Each exhibit thereto ... ... ... ... 0 1 0 
 
 (11.) Office copies 3c?. per folio, with a minimum fee 
 
 of 0 2 6 
 
 (12.) Copies of plans ... ... Such charges, according to 
 
 time and labour employed, 
 as the registrar shall pre- 
 scribe. 
 
BK. II. REGISTRATION OF TITLE. 
 
 (>t>4 
 
 Rules. 
 
 1. Where the amount of a fee is immediately ascertainable, it shall 
 be paid on the delivery of the application . 
 
 2. Where the amount of a fee is not immediately ascertainable, or 
 where expenses for advertisements or otherwise will be incurred by 
 the registry, such deposit on account shall be made as the registrar 
 shall require. 
 
 3. All fees shall be paid in land registry stamps, impressed or 
 adhesive, as laid down in the order in that behalf made under the 
 Public Offices Fees Act, 1879. Land registry stamps shall be purchas- 
 able in the registry, and may be paid for by bankers’ draft or by postal 
 or post office order or by cheque drawn to the order of the land registry 
 or the registrar or assistant registrar, or in Bank of England notes or 
 cash. Provided that when the fees are paid by cheque the registration 
 shall not be completed until due time has been allowed for the cheque 
 to be cleared, and that if the cheque is not honoured, the application 
 for registration shall be cancelled and the document tendered for regis- 
 tration returned to the applicant. Remittances by post not exceeding 
 Is. may be made in postage stamps. 
 
 4. The above fees include, in the matters to which they relate, all 
 necessary stationery and mapping done in the registry; the preparation, 
 issue, endorsement, and deposit of certificates, wherever such issue, 
 endorsement, or deposit is obligatory; discharges of incumbrances; the 
 filing of auxiliary documents (if any) ; and all other necessary costs of 
 and incidental to the completion of each registration or transaction. 
 
 They also include, in districts where registration of title is compul- 
 sory, any surveying that may be necessar}^ to enable the land to be 
 identified on the ordnance map or land registry general map. But 
 where boundaries are to be noted on the register as “ accurately de- 
 fined,” such additional charges may be made to cover the cost of the 
 necessary inquiries, mapping, surveying, and notices as the registrar 
 shall in each case deem reasonable. 
 
 5. If in the course of any proceeding the registrar consults counsel, 
 or applies to a solicitor or other person (other than the applicant or his 
 solicitor, agent, or servant) to produce a document, certificate, or plan, 
 or to supply a copy thereof, or to do any act, or to furnish any infor- 
 mation, or if he directs service of a notice, publication of an advertise- 
 ment, or the making of a survey, journey, or inquiry, the costs so 
 incurred shall be defrayed as follows: — 
 
 (a) In the case of an application for first registration with posses- 
 
 sory title, they shall be defrayed by the registry; 
 
 (b) In any other case they may, if the registrar shall think fit, be 
 
 defrayed by the registry, but otherwise shall be defrayed by 
 
SECOND SCHEDULE 
 
 the applicant: provided that in no case shall an applicant 
 be chargeable with costs incurred without his consent. 
 
 6. For the purposes of this order — 
 
 (a) In the case of the registration of land or of any transfer of 
 
 land on the occasion of a sale, the value of the land shall 
 be determined by the amount of the purchase money. 
 
 (b) In the case of the registration of land or of any transfer of 
 
 land not upon a sale, the value of the land shall be ascer- 
 tained by the registrar at such sum (not exceeding twenty 
 times the annual value of the property, as assessed for the 
 purposes of the enactments relating to income tax) as in 
 his opinion the property would fetch if sold in the open 
 market at the time when the registration is made. In 
 ascertaining such value the registrar may accept as evidence 
 a statement in writing as to the capital or annual value of 
 the property signed by the applicant, or his solicitor, or any 
 other person, who in the registrar’s opinion is competent 
 to make such a statement. 
 
 7. Where a first registration takes place on the enfranchisement of 
 a copyhold, or on the purchase of a leasehold by the reversioner, or of a 
 reversion by the leaseholder, or on any other like occasion, the fee may, 
 if the registrar shall think fit, be calculated on the value of the interest 
 last acquired, and not upon the value of the applicants’ combined 
 interests in the land. In such case no entry of value need be made in 
 the register. 
 
 8. Where a charge is delivered for registration, together with an 
 application for first registration of land, no fee shall be paid in respect 
 of such charge. 
 
 9. The fee for an entry (except the entry of a notice of deposit or 
 intended deposit) in, or withdrawal from, the register affecting several 
 titles shall, where the same person is registered as proprietor of all the 
 titles be the same as for an application respecting one title only. In 
 other cases an extra fee of 2s. 6d. shall be charged for every title 
 affected after the first. 
 
 10. The fee for first registration of leasehold land shall include the 
 entry of a notice of the lease against the lessor’s title, if registered. 
 
 11. On the first registration of the title to a rent the value shall, in 
 the absence of evidence to the contrary, be taken at twenty times the 
 amount of one year’s rent. 
 
 On the registration of a transfer of freehold land on the occasion of 
 a grant wholly or partly in consideration of a rent, there shall be paid, 
 in addition to the fee payable under paragraph D in respect of the 
 transfer of the land, such fee as may be payable under paragraph A in 
 respect of the registration of the first proprietorship of the rent. 
 
BK. II. REGISTRATION OF TITLE. 
 
 666 
 
 12. Where a charge by the transferee under a transfer for value is- 
 delivered for registration together with the transfer, the fee for the 
 charge, if payable under paragraph B, shall be reduced to one-half. 
 
 13. If it shall appear to the registrar, on an application under 
 rule 151 of the Land Transfer Rules, 1903, that such application Jias 
 not been rendered necessary by the voluntary act of the applicant or 
 of any of his predecessors in title, the registrar may make such abate- 
 ment in the fee as he may think reasonable. 
 
 14. No fee shall be payable for any entry of, or in respect of a 
 caution, inhibition, restriction, condition, note, or notice of any kind by 
 the acts or rules made necessary on (a) the first registration of land, 
 or (b) any registration for which an ad valorem fee is payable. 
 
 15. Where an instrument or application affecting two or more titles 
 or charges is registered as to some or one only of the titles or charges- 
 affected thereby, the fee payable shall be the same as that which would 
 have been payable if it had been registered as to all the titles or charges 
 affected by it. If the instrument or application is afterwards regis- 
 tered as to any other titles or charges a further fee of 2s. 6d. shall be 
 paid for every title or charge so affected. 
 
 16. Where a charge or incumbrance is also secured on unregistered 
 land or other property as well as registered land, the amount of the 
 charge shall for the purpose of this order be reduced to the sum which 
 bears the same proportion to the whole sum secured that the value of 
 the registered land bears to the value of the whole security. 
 
 17. The fee on a charge by way of additional or substituted security 
 shall not exceed that upon a charge for a sum equal to the value of the 
 land after deducting the amount secured on it by registered charges 
 at the date of the registration of the additional or substituted charge. 
 
 18. The fee for the registration of a charge to secure future advances 
 — that is to say, money to be lent, advanced, or paid, or which may 
 become due upon an account current either with or without money 
 previously due — shall be regulated as follows: — 
 
 (a) Where the total amount received or to be ultimately recover- 
 
 able is in any way limited, the fee shall be the same as that 
 for the registration of a charge to secure the amount so 
 limited. 
 
 (b) Where the total amount is unlimited, the fee shall be the same 
 
 as that for the registration of a charge to secure the amount 
 which the Inland Revenue ad valorem duty impressed 
 thereon extends to cover; and if further Inland Revenue 
 duty is subsequently impressed, the fee for noting that fact 
 in the register shall be the difference between the fee for a 
 charge to secure the amount covered by the duty previously 
 
SECOND SCHEDULE. 
 
 667 
 
 noted in the register, and the fee for the registration of a 
 charge to secure the total amount covered by the whole 
 
 duty. 
 
 19. Where land subject to a registered charge or incumbrance is 
 transferred discharged from the charge or incumjbrance, and a new 
 charge in favour of the proprietor of the old charge or incumbrance is 
 delivered on the same day as the transfer, the fee payable on the regis- 
 tration of the transfer shall be calculated on the consideration expressed 
 to be paid in the transfer after deducting the amount of the new charge 
 or charges. 
 
 20. Where, on the cessation of a charge, a new charge affecting the 
 same land is delivered in favour of the proprietor of the former charge, 
 the fee payable on the new charge, in so far as the amount secured does 
 not exceed the former charge, shall be calculated at the rate stated in 
 
 paragraph (0). 
 
 21. Where two or more rules allowing abatement of fees are applic- 
 able to the same case, their effect shall not be cumulative, but the 
 applicant may elect which one of them shall be applied. 
 
 22. In this order the word “land ” includes both freehold and lease- 
 hold land, and every hereditament the title to which may be registered 
 under the Land Transfer Acts. 
 
 The word “ charge ” includes “ sub-charge.” 
 
 23. The Land Transfer Lee Order, 1903, is hereby revoked. 
 
 24. This order may be cited as the Land Transfer Lee Order, 1908, 
 and shall come into operation on the first day of January, 1909. 
 
 We concur in the above order, 
 
 J. Herbert Lewis, 
 
 Cecil Norton, 
 
 Two of the Lords Commissioners of 
 His Majesty’s Treasury. 
 
 14th November, 1908. 
 
( 669 ) 
 
 INDEX. 
 
 A. 
 
 Absolute title, 565. See under Regis- 
 tration of Title. 
 
 Abstract of title, 96. 
 abstract, the, 96. 
 acknowledged deeds, 104. 
 
 Acts of Parliament, 103. 
 
 annuities charged on property, 111. 
 
 attestations, proof of, 101. 
 
 awards, proof of, 104. 
 
 bankruptcy, 108. 
 
 births, proof of, 106. 
 
 charges, as to, 111. 
 
 charities, as to, 113. 
 
 children, birth of, proof of, 106. 
 
 conveyances, voluntary, 118. 
 
 copyhold customs, proof of, 107. 
 
 copyholds, 105. 
 
 costs of, 546. 
 
 criminal liability as to, 99. 
 
 Crown grants, 105. 
 death, proof of, 106. 
 death duties, proof of payment of, 
 107. 
 
 deed, enrolled, proof of, 104. 
 deed, lost, proof of, 103. 
 deeds, production of, 100. 
 deeds, proof of, 101. 
 deeds, recitals in, 101. 
 defects, notice of, 120. 
 delivery of, 96. 
 disentailing assurances, 104. 
 disputes between vendor and pur- 
 chaser, 124. 
 
 documents, proof of, 101. 
 easements, 120. 
 enfranchised copyholds, 105. 
 enrolled deeds, 104. 
 estate duty, 117. 
 
 estate tail, barring of, evidence of, 
 108. 
 
 evidence by which title proved, 101. 
 execution, &c. of abstracted 
 deeds, 101. 
 
 execution of deed, proof of, 101. 
 
 matters of fact, 105. 
 
 proof of proceedings in Courts, 
 
 108. 
 
 Abstract of title — continued. 
 examination of, 100. 
 expense of, 99. 
 expired leases, 98. 
 facts, evidence of, 105. 
 frauds, as to, 99. 
 
 High Court, proof of proceedings 
 in, 108. 
 identity, 105. 
 imj)ortance of, 96. 
 increment value duty, as to, 118. 
 incumbrances, as to, 120. 
 intestacies, proof of, 107. 
 joint tenants, 113. 
 land tax, proof of redemption of, 
 107. 
 
 leases, expired, 98. 
 leases, proof of, 119. 
 leases, surrendered, 119. 
 legacies, 111. 
 lost deeds, 103. 
 lunacy, as to, 109. 
 manner of preparing, 99. 
 marriage, proof of, 106. 
 marriage settlements, 118. 
 mortgages, 98. 
 mortgages, outstanding, 96. 
 non-disclosure in, criminal liability 
 for, 99. 
 
 notice, as to, 120. 
 outstanding legal estate, 112. 
 parcels, identity of, 105. 
 pedigree, proof of, 106. 
 perfect abstract, purchaser’s right 
 to, 96. 
 
 powers of attorney, 103. 
 preparation of, 99. 
 private Acts of Parliament, 103. 
 proceedings in Court, proof of, 100. 
 production of deeds, 100. 
 proof of abstracted deeds, 101. 
 proof of title, 96. 
 purchaser, disputes with, 124. 
 purchaser’s duty as to, 100. 
 purchaser’s rights as to, 97, 101. 
 redemption of land tax, proof of, 
 107. 
 
 registration, proof of, 102. 
 rent-charges, as to, 111. 
 
670 
 
 INDEX. 
 
 Abstract of title — continued. 
 
 requisitions, as to, 111. 
 
 root of title, 98. 
 
 seisin, proof of, 105. 
 
 settlements, voluntary, 118. 
 
 solicitor’s duty on receipt of, 100. 
 
 stamps, as to, 102. 
 
 succession duties, 112. 
 
 surrendered leases, 119. 
 
 tithes, as to, 107. 
 
 title, defects in, notice of, 120. 
 
 title, proof of, 96. 
 
 title, root of, 98. 
 
 vendor, disputes with purchaser, 
 124. 
 
 vendor, presumptions in favour of, 
 109. 
 
 verification of, 101. 
 voluntary settlements, 118. 
 waiver of objections to title, 123. 
 wills, 104. 
 
 woman past child-bearing 1 , pre- 
 sumption as to, 110. 
 
 Acknowledged deeds, 12, 14. 
 abstract of, 104. 
 proof of, 104. 
 searches for, 163. 
 
 Acknowledgments, 
 
 deeds retained, 170. 
 married women, by, 12, 14. 
 
 Actions, 
 
 damages in, 88. 
 
 landlord, by, 322. 
 
 specific performance, 80, 89. 
 
 Acts of Parliament, as conveyances, 103. 
 
 Actual notice, abstracts of title, in, 121. 
 
 Administrators, 
 
 compounding claims by, 393. 
 convicts, of, conveyance by, 17. 
 leases by, 302. 
 sales by, 27. 
 
 Admittance, copyholds, to, 174. 
 
 And see under Copyholds. 
 
 Adverse possession, effect of, of regis- 
 tered land, 583. 
 
 Advertisements, registration of title, on, 
 568. 
 
 Advowsons, sale of, 48, 638. 
 
 Affidavit on registration, bill of sale, 
 285. 
 
 Agents, 
 
 contract for sale by, 37. 
 leases by, 302. 
 purchase and sales by, 37. 
 
 Agreement, 
 
 building 35. 
 lease, for, 305. 
 sale, for, 33. 
 
 And see under Contracts. 
 
 Agricultural holdings, 351. 
 
 Agricultural leases, 351. 
 allotments, 359. 
 buildings, removal of, 356. 
 capital money applicable for, 356. 
 compensation under, 352. 
 cottage gardens, 359. 
 cottage gardeners’ compensation, 
 359. 
 
 disturbance, compensation for, 354. 
 emblements, 359. 
 fencing, removal of, 356. 
 fixtures, removal of, 356. 
 fixtures, tenants’, 356. 
 game, damage by, compensation for, 
 354. 
 
 game, right to kill, 360. 
 ground game, 360. 
 improvements, compensation for, 
 352. 
 
 improvements, compensation for, 
 tenants’ rights to, 352. 
 landlord, entry by, 357. 
 landlord, rights of, 357. 
 market gardens, 358. 
 mortgagee taking possession, 355. 
 notices to quit, 357. 
 tenant, rights of, 352. 
 
 Aliens, 16, 203. 
 
 mortgages by, 203. 
 sales by, and to, 16. 
 wills of, 459. 
 
 All estate clause in deeds, 138. 
 
 Allotments and cottage gardens com- 
 pensation, 359. 
 
 Alterations, 
 
 deeds, in, requisitions on, 101. 
 mortgage registered, 598. 
 
 Annuitant, 
 
 joining in conveyance, 111. 
 rights of, 500. 
 
 Annuities, 
 
 conditions as to, in wills, 500. 
 gift of, 500. 
 
 registered land, charge of, 609. 
 
INDEX. 
 
 67 1 
 
 Annuities — continued. 
 
 registration of, 157, 194. 
 requisitions as to, 111. 
 rights as to, 500. 
 satisfaction of, 111. 
 searches for, 157. 
 will, by, 500. 
 
 Ante-nuptial settlements, 449. 
 
 And see under Settlements. 
 
 Appeals, registration of title, 624, 632. 
 
 Appointment, 
 
 executors, 467. 
 guardians, 468. 
 trustees, 395. 
 trustees, settled land, 437. 
 
 Appointments under powers, 526. 
 
 application of perpetuity rule, 528, 
 530. 
 
 children, for, 530. 
 class, to, 531. 
 
 conditions of power, compliance 
 with, 531. 
 
 contingent person, to, 528. 
 daughters, to, 530. 
 defective, 531. 
 definition of, 526. 
 different sorts of, 526. 
 disclaimer of, 535. 
 excessive appointments, 532. 
 exclusive appointments, 532. 
 fraudulent, 533. 
 general powers, 526, 529. 
 illusory, 532. 
 infants, by, 527. 
 lunatic, by, 527. 
 married women, by, 527. 
 perpetuity rule, application of, to, 
 528, 530. 
 
 powers, collateral, 527. 
 release of, 535. 
 remoter issue, as to, 529. 
 revocation, power of, 528. 
 sale, powers of, 531. 
 stamp on, 535. 
 
 who can exercise powers, 527. 
 
 Arbitration, submission to, by trustees, 
 393. 
 
 Arrangement, deeds of, searches for, 158. 
 
 Assignments, 175. 
 
 absolute, meaning of, 177. 
 agreement for, 181. 
 assignee, position of, 176. 
 business, 182. 
 choses in action, 177. 
 
 And see under Choses in Action. 
 
 Assignments — continued. 
 contents of, 181. 
 copyholds, 174. 
 costs of, 186. 
 covenants in, 176. 
 deed, contents of, 176. 
 distringas as to, 180. 
 formalities of, 175. 
 goodwill, 182. 
 leaseholds, 175. 
 lessee, position of, after, 176. 
 notice of, 177, 179, 181. 
 policy of assurance, 181. 
 stamps on, 183. 
 stop orders as to, 180. 
 title, covenant for, 175. 
 
 Assurances, 
 
 disentailing, 163, 195, 516. 
 
 See under Disentailing Assur- 
 ances. 
 
 registration of, 555. 
 
 See under Registration of Title. 
 
 Attestation, 
 
 bills of sale, 273, 276. 
 deeds, 165. 
 proof of, 101. 
 wills, 462. 
 
 Attorney, 
 
 admittance to copyholds by, 174. 
 power of, deeds executed under, 102. 
 
 Attornment clause in mortgages, 238. 
 
 Auctions, 
 
 bid, vendors right to, 57. 
 biddings at, 56. 
 biddings, retraction of, 57. 
 conditions relating to, 56. 
 deposit, the, 58. 
 
 Frauds, Statute of, as to, 59. 
 varying conditions of sale at, 80. 
 
 Awards, proof of, 104. 
 
 requisitions as to, 104. 
 
 B. 
 
 Bankruptcy, 
 
 bill of sale, effect of, on, 292. 
 disclaimer, notice of, 85. 
 lessee, of, 319, 332. 
 party, registered title, 614. 
 proof of, 108. 
 purchaser, 85. 
 searches for, 160. 
 vendor, 84. 
 
672 
 
 INDEX. 
 
 Bargains and sales, enrolment of, 194. 
 
 Benefices, provisions as to, 644. 
 
 Beneficiaries, covenants by, 141. 
 
 Biddings at auctions, 56. 
 
 See tinder Auctions. 
 
 Bills of sale, 263. 
 absolute, 272. 
 address of parties in, 285. 
 affidavit for, 285. 
 after-acquired chattels, 271. 
 apparent possession, 273. 
 assignments for benefit of creditors, 
 not, 267. 
 
 attestation of, 273, 276. 
 
 affidavit as to, 285. 
 bankruptcy, effect of, 292. 
 cases on construction of definition 
 of, 265. 
 
 cases relating to, 278. 
 charge on chattels, agreement for, 
 as, 267. 
 
 chattels, after-acquired, 271. 
 chattels, debentures are not, 268. 
 chattels, definition of, 269. 
 chattels, personal, 269. 
 chattels, removal of, 292. 
 chattels, schedule of, 275. 
 consideration, the, 277, 283. 
 construction of, 265. 
 contents of, 274. 
 costs of, 296. 
 
 crops, 271. ! 
 
 date of, 285. 
 definition of, 264. 
 distress, power of, is, 267. 
 entry of satisfaction, 293. 
 exceptions in 1882 Act, 274. 
 execution, affidavit as to, 285. 
 execution of, 273. 
 explanation of, before execution, 
 273. 
 
 fixtures, 270. 
 form of, 295. 
 goods, pledge of, 269. 
 goods, sale of, 291. 
 goods, schedule of, 275. 
 grantor must be owner of goods, 
 275. 
 
 grantor, occupation of, 286. 
 grantor, residence of, 285. 
 grantor, rights of, after removal, 
 292. 
 
 hiring agreement as, 266. 
 index of, 288. 
 inventory of goods as, 266. 
 licence to distrain is, 266. 
 licences as, 266. 
 
 Bills of sale — continued. 
 machinery, 270. 
 malicious registration of, 290. 
 meaning of, 263. 
 occupation of grantor, 286. 
 omission to register, 289. 
 payment under, 284. 
 personal chattels, what are, 269- 
 plant, 271. 
 pledge of goods, 269. 
 power of distress is, 267. 
 registration, malicious, 290. 
 registration of, 285. 
 registration, omission of, 289. 
 registration, time for, 288. 
 removal of goods, 292. 
 reputed ownership clause, 292. 
 requirements of 1878 Act, 272. 
 requirements of 1882 Act, 274. 
 re-registration, 289. 
 re-registration, omission as to, 289.. 
 residence of parties to, 285. 
 risks of, 294. 
 sale, restraining, 291. 
 sale under, 291. 
 satisfaction, entry of, 293. 
 schedule of chattels to, 275. 
 searches, 293. 
 seizure under, 291. 
 solicitor, attestation by, 273. 
 special clauses in, cases as to, 280. 
 stamps on, 296. 
 
 statutory form, bill must be in, 277. 
 statutory form of, 295. 
 successive, as to, 288. 
 table of cases as to, 278. 
 time for registration of, 288. 
 trade machinery, 270. 
 transfer of, 289. 
 
 transfer of, registration not neces- 
 sary, 289. 
 
 void, what are, 278. 
 what are, 264. 
 what are not, 267. 
 witnesses to, 273, 276. 
 
 Birth, proof of, 106. 
 
 Board of Trade, bankruptcy certificate 
 by, 108. 
 
 Breach, 
 
 contract, remedies for, 88. 
 covenants, 144. 
 
 Building agreements, 35. 
 
 leases by tenant for life, 422. 
 
 Building society, 
 
 mortgages, discharge of, 607. 
 reconveyance of, 258. 
 
INDEX. 
 
 673 
 
 Building 1 society mortgages- -continued. 
 registered title, 606. 
 stamp as to, 262. 
 
 Business, 
 
 assignment of, 182. 
 carrying on, by executor, 475. 
 covenant not to carry on, 335. 
 meaning of, 335. 
 sale of, 182. 
 
 vendor, position of, on sale, 182. 
 
 C. 
 
 Capacity of parties, 5. 
 
 Capital money, 425. 
 
 application of, for improvements, 
 431. 
 
 application of, under sect. 63... 425. 
 liow dealt with, 428. 
 improvements with, 431. 
 investments for, &c., 428. 
 to whom paid, 426. 
 what is, 425. 
 
 And sec under Settled Land 
 Acts. 
 
 Certificates, 
 
 Board of Trade, 108. 
 charge, 599, 635. 
 land registry, 599, 635. 
 redemption of land tax or tithe, 79. 
 result of search, 164, 652. 
 
 Cestui que trust, sale to trustee, 29. 
 
 Charge, certificate of, land registry, 599, 
 635. 
 
 Charges, what are within covenant to 
 pay rates, 325. 
 
 Charities, 20. 
 
 conveyances by, restrictions on, 20. 
 conveyances to, 21. 
 gifts to, 21. 
 
 registration of conveyances to, 194. 
 sales by, 20. 
 sales to, 21. 
 
 succession duty payable by, 113. 
 Chattels, 
 
 removal of, under bill of sale, 292, 
 settlement of, 411. 
 
 Child, sale to parent by, 30. 
 
 Child-bearing, woman past, presumption 
 as to, 110. 
 
 Children, 
 
 advances for, by will, 472. 
 gifts to, by will, 490, 501. 
 illegitimate, 501. 
 portions for, 406. 
 provisions for, in wills, 501. 
 trust for, in settlements, 382. 
 younger, portions for, 406. 
 
 Choses in action, 177. 
 
 assignee, risks of, 179. 
 
 priority of, 179. 
 assignment of, 177. 
 distringas on, 180, 244. 
 meaning of, 178. 
 mortgage of, 243. 
 notices of assignment of, 179. 
 sale of, 177. 
 stop orders on, 180. 
 
 Client, 
 
 notice to solicitor affects, 122. 
 sale by, to solicitor, 31. 
 
 Common, rights of, 580. 
 
 Company, 
 
 conveyances to, 19. 
 
 liquidation of, registered title, 616 
 
 Compensation, 
 
 copyholds, enfranchisement of, 522 
 cottage gardens, 359. 
 disturbance, for, 354. 
 drainage, for, 359. 
 fencing, for, 356. 
 game, damage by, 354. 
 land registry, errors in, 624, 629 
 misdescription, for, 45, 63. 
 
 Completion of purchase, 165. 
 
 acknowledgment as to deeds, 170. 
 apportionments at, 168. 
 choses in action, 177. 
 conveyances, special, 173. 
 copyholds, as to, 174. 
 deed, execution of, 165. 
 escrow, deed as, 165. 
 goodwill, assignments of, 182. 
 increment value duty stamp, 167. 
 leaseholds, as to, 175. 
 policies of assurance, as to, 181. 
 purchase-money, payment of, 167. 
 special cases, 173. 
 steps subsequent to, 188. 
 undertaking as to deeds, 169. 
 vendor, trustees, 168. 
 witnesses, 166. 
 
 Conditions, 
 
 gifts upon, 496. 
 legacies, upon, 496. 
 registration of title, 642. 
 
 G.— 
 
 C. 
 
 X X 
 
674 
 
 INDEX. 
 
 Conditions of sale, 48. 
 abstract as to, 49. 
 alteration of, at sale, 80. 
 apportionment, rent, 80. 
 assurances by vendors, 72. 
 auctioneer as stakeholder, 58. 
 auctions, sale by, 56. 
 biddings, as to, 56. 
 common form, 56. 
 compensation for errors, 63. 
 completion of the purchase, 69. 
 concurrence of parties, cost of, 73. 
 contract, open, inconveniences of, 
 56. 
 
 contract, rescission of, 67. 
 contract, signature of, 59. 
 copyholds, 51. 
 covenant to produce, 54. 
 
 Crown, grants by, 77. 
 deeds, missing, 79. 
 deeds, executed under powers, 78. 
 deeds, expense of production of, 53. 
 deeds, lost, 49. 
 
 deeds not in vendor’s possession, 53. 
 deeds, production of, 49. 
 deeds, retention of, by vendor, 55. 
 deeds, unstamped, 65. 
 default by purchaser, 75. 
 default, wilful, meaning of, 70. 
 deposit, as to, 58. 
 devise, 78. 
 
 documents, production of, 49. 
 documents, unstamped, 65. 
 easements, as to, 62. 
 enfranchised copyholds, 51. 
 errors, 63. 
 
 estate, outstanding, 78. 
 
 exchanged lands, 76. 
 
 expense of production of deeds, 53. 
 
 general, 56. 
 
 identity, as to, 61. 
 
 inclosed lands, 76. 
 
 increment value duty, 73. 
 
 incumbrances, as to, 79. 
 
 interest on purchase-money, 70. 
 
 land tax, 79. 
 
 Land Transfer Acts, 76. 
 lands exchanged, 76. 
 lands inclosed, 76. 
 lease, as to, 50, 51. 
 leaseholds, 77. 
 
 legal estate outstanding, 78. 
 lost certificates of land tax, &c., 79. 
 lost deeds, 49. 
 misdescription, as to, 63. 
 misdescription, compensation for, 
 63. 
 
 objects of, 48. 
 
 outstanding legal estate, 78. 
 
 parties concurring, expenses of, 73. 
 
 Conditions of sale — continued. 
 position of parties after, 82. 
 possession, as to, 72. 
 power of attorney, deed executed 
 under, 78. 
 
 prior title, inquiry into, 52. 
 production of deeds, 49. 
 production of deeds, expense of, 53. 
 purchase, completion of, 69. 
 purchase-money, interest on, 69. 
 purchase-money, pajnnent of, 69. 
 purchaser, default by, 75. 
 receipt on deed not indorsed, 78. 
 recitals 20 years old, 51. 
 registered titles, 76. 
 relating to property sold, and iden- 
 tity, 61. 
 
 rent, apportionment of, 80. 
 requisitions, 65. 
 rescission of contract, 67. 
 re-sell, right to, 75. 
 retraction of biddings, 57. 
 root of title, a will, 78. 
 sale, variation of, 80. 
 settlements, as to, 60. 
 special, 76. 
 stakeholder, the, 58. 
 stamps, as to, 65. 
 sub -leases, 51. 
 tenancies, as to, 62. 
 tithe certificate, lost, 79. 
 title, as to, 60. 
 title, commencement of, 60. 
 title deeds, production of, 49. 
 title, defects in, 60. 
 title, length of, 48. 
 title, registered, 76. 
 underleases, as to, 50. 
 unstamped documents, 65. 
 variation of, at sale, 80. 
 vendor, assurances by, 72. 
 vendor, right to bid, 57. 
 vendor, right to re-sell, 75. 
 verbal variation of, 80. 
 voluntary settlements, 60. 
 wilful default, meaning of, 70. 
 will, as to, 60. 
 
 Consent, parties joined to give, 129. 
 
 Consideration, 
 
 bill of sale, 277, 283. 
 deeds, in, 132. 
 leases, 309. 
 
 money, receipt for, condition as to, 
 78. 
 
 Consolidation, mortgage, 219, 249. 
 
 Constructive notice, abstract of title, 
 
 121 . 
 
INDEX. 
 
 675 
 
 Contracts, 
 
 breach of, remedies for, 88. 
 boarding- houses, as to, 34. 
 building, 35. 
 
 furnished lodgings, as to, 34. 
 
 lease, for, 36, 305. 
 
 open, 48. 
 
 private, 82. 
 
 rescission of, 67. 
 
 stamps on, 94. 
 
 Contracts for sale, 33. 
 agents, by, 37. 
 bankruptcy of party, 84. 
 breach of, remedies for, 88. 
 chattels, 35. 
 clover, 34. 
 contents of, 35. 
 crops, 33. 
 
 death of either party, 85. 
 debentures, 34. 
 
 disclaimer of, in bankruptcy, 85. 
 easements, as to, 34. 
 effect of, on parties, 82. 
 fires, as to, 83. 
 fixtures, 34. 
 
 Frauds, Statute of, as to, 35, 38. 
 
 furnished lodgings, as to, 34. 
 
 goods, 35. 
 
 growing crops, 33. 
 
 hops, 34. 
 
 infants’, 7. 
 
 land, 33. 
 
 land, what is an interest in, 33. 
 lease, specific performance of, 90. 
 letters as, 37. 
 lien, parties’, 92. 
 lien, purchaser’s, 92. 
 lien, vendor’s, 92. 
 married women’s, 13, 16. 
 open, inconvenience of, 56. 
 part performance of, 38. 
 particulars for, 35. 
 parties, position of, after, 82. 
 parties to, 35. 
 
 parties to, description of, 35. 
 position of parties after, 82. 
 preparation of, 82. 
 private, 82. 
 
 purchaser, death of, 88. 
 remedies for breach of, 88. 
 requisites of, 35. 
 rescission of, 67. 
 
 rescission of, condition as to, 67. 
 
 signing of, 36. 
 
 specific performance, 89. 
 
 stamps on, 94. 
 
 tenant’s fixtures, 34. 
 
 timber, 33. 
 
 vendor, death of, 85. 
 
 what it must contain, 35. 
 
 Conveyance, 
 
 Acts of Parliament, private* as, 103. 
 
 aliens, by and to, 16. 
 
 charities, to, 20. 
 
 charities, to, registration of, 194. 
 
 choses in action, 177. 
 
 colleges, for, 23. 
 
 consideration in, 132. 
 
 convicts, by, 16. 
 
 copyholds, 174. 
 
 corporations, by, 17. 
 
 costs of, 186, 542. 
 
 disentailing, 195. 
 
 estoppel, doctrine of, 131. 
 
 farm, 136. 
 
 felons, by, 16. 
 
 form of, 153. 
 
 fraudulent, 449. 
 
 gateway, 136. 
 
 general words in, 137. 
 
 house, 135. 
 
 infants’, 5. 
 
 lunatics’, 8. 
 
 manor, 135. 
 
 married women, by, 10. 
 mines, 137. 
 museiun, for, 22. 
 operative words in, 134. 
 parcels in, 134. 
 park, for, 22. 
 
 parties to whom made, 130. 
 partners, to, 130. 
 persons not parties, 131. 
 recitals in, 131. 
 religious bodies, to, 23. 
 rivers, 136. 
 schools, for, 23. 
 
 special kinds of property, 173. 
 stamps on, 183. 
 sub-purchaser, to, 128. 
 tender of, before action, 90. 
 tenement, 136. 
 traitors, by, 16. 
 trustees, by, 26. 
 university, for, 23. 
 water, 136. 
 
 Working Classes Act, under, 24. 
 And see under Deeds and Land 
 Transfer. 
 
 Conveyancing Act, 1881, 
 
 sect. 2, mortgagees’ powers, 175, 
 223, 225, 255, 343. 
 sect. 3, expenses as to documents 
 not in vendor’s possession, 50 
 —53, 55, 77, 98, 100, 132, 208. 
 deeds forming part of anterior 
 title, 100. 
 
 sect. 4, on death of vendor, personal 
 representative can convey, 51, 86. 
 
 x x 2 
 
676 
 
 INDEX. 
 
 Conveyancing Act, 1881 — continued . 
 sect. 5, discharging incumbrances, 
 79. 
 
 sect. 6, general words, &c., 138. 
 sect. 7, implied covenants, 142, 175, 
 176, 222, 245, 255, 386, 585, 598. 
 sect. 8, execution of deed in pur- 
 chaser’s presence, 166, 283, 588. 
 sect. 9, acknowledgment and under- 
 taking as to deeds retained, 170. 
 sects. 10 — 12, assignment of rever- 
 sion on leases, 316, 345. 
 sect. 13, grants of underleases, 50, 
 306. 
 
 sect. 14, forfeiture of leases, 241, 
 308, 335, 340—344. 
 sect. 15, transfer of mortgages, 221. 
 sect. 17, abolishes consolidation, 
 220 . 
 
 sect. 18, leasing mortgaged pro- 
 perty, 233, 236, 237. 
 sect. 19, cutting timber, 222, 223. 
 sects. 19 — 22, and 67, mortgagee’s 
 power of sale, 223, 250. 
 sects. 19, 24, receivers, 230. 
 sect. 25, sales by mortgagee, 219, 
 251. 
 
 sects. 26 — 29, statutory mortgages, 
 245. 
 
 sect. 30, devolution of mortgaged 
 estates, 259. 
 
 sect. 41, infant’s lands, 6, 298. 
 
 sect. 42, management of infant’s 
 
 lands, 411. 
 
 sect. 43, maintenance, &c. of infant 
 cestui que trust, 386. 
 sect. 44, rentcliarges, 403, 406. 
 
 sect. 46, execution of deeds under 
 
 power of attorney, 103, 298. 
 sect. 49, the word “ grant,” 134, 
 298. 
 
 sect. 51, words of limitation, 140. 
 sect. 52, release of powers, 535. 
 sects. 54, 55, receipts, 55, 78, 133. 
 sect. 56, authority to receive pur- 
 chase-money, 167, 168. 
 sect. 61, joint account clause in 
 mortgages, 213. 
 
 sect. 63, grant of easements, 138. 
 
 Conveyancing Act, 1882, 
 sect. 3, notice, 121. 
 sect. 4, leases, 51. 
 sect. 6, disclaimer of powers, 514, 
 535. 
 
 sect. 7, acknowledged deeds, 11. 
 sects. 8, 9, irrevocable powers, 78, 
 102, 166. 
 
 sect. 12, transfer of mortgages, 221. 
 
 Convicts, 16, 203. 
 
 conveyances by, 17. 
 
 Convicts — con t in ued . 
 mortgages by, 203. 
 property of, 16. 
 
 Co-owners, 
 
 sales by, 144. 
 
 sale by, under Settled Land Act r 
 418. 
 
 Copies, land registry, for, 567. 
 
 Copyholders, leases by, 304. 
 
 Copyholds, 14, 174, 522. 
 
 abstract of, proof of, 104. 
 
 admittance to, 174. 
 
 attorney, admittance by, 174. 
 
 conveyance of, 174. 
 
 covenant to surrender, 175. 
 
 enfranchised, conditions as to, 51 _ 
 
 enfranchisement of, 522. 
 
 enfranchisement, proof of, 105. 
 
 fines, 174. 
 
 joint tenants, 175. 
 
 leases of, 304. 
 
 mortgage of, 240. 
 
 proof as to, 104. 
 
 sale of, 14. 
 
 surrender of, 175. 
 
 tenant for life, 175. 
 
 tenants in common, 175. 
 
 Corporations, 17. 
 
 leases by and to, 300. 
 sales by, 17. 
 sales to, 18. 
 
 Costs, 536. 
 
 abstract of title, 546. 
 
 agreements for leases, 545. 
 
 assignments, 186. 
 
 attempted sales, 543. 
 
 bills of sale, 296. 
 
 building leases, 545. 
 
 cases as to, 547. 
 
 conducting sales, 542, 544, 547. 
 
 conveyances, 542. 
 
 deeds as to, 546. 
 
 fractions of 100Z., 543. 
 
 further charges, 544. 
 
 journeys from home, 547. 
 
 land registry, 645, 656. 
 
 Lands Clauses Acts, under, 199. 
 leases, 369, 545. 
 mortgages, 208, 252, 542. 
 negotiating fee, 542, 544. 
 person joining in conveyance, 543. 
 purchases, 542. 
 
 reconveyance of mortgage, 257. 
 registration of title, 645, 656. 
 Remuneration Act, decisions under,. 
 547. 
 
 Remuneration Order, 537. 
 rules as to, 543, 546. 
 
INDEX. 
 
 677 
 
 Costs — continued. 
 
 sales, 542, 547. 
 sales, attempted, 543. 
 sales, conducting", 542, 544, 547. 
 sales, in separate lots, 543. 
 sales, negotiating, 542, 544. 
 separate lots, sales in, 543. 
 settlements, 456. 
 small cases, 544. 
 
 specific performance, registered 
 titles, 645. 
 
 transfer of mortgage, 257. 
 wills, &c., 546. 
 
 Cottage gardens compensation, 359. Bee 
 under Agricultural Leases. 
 
 Courts, 
 
 proof of proceedings in, 108. 
 rolls, searches in, 155. 
 
 Covenants, 141. 
 
 affirmative, 152. 
 assign, not to, 331. 
 bankruptcy, effect of, 319, 332. 
 beneficiaries, by, 141. 
 breaches of, 144. 
 construction of, 145. 
 co-owners, by, 142, 144. 
 
 Crown, sales by, 144. 
 
 enforcement of, 150. 
 
 equity of redemption, sale of, 146. 
 
 free from incumbrances, 145. 
 
 further assurance, 145. 
 
 good right to convey, 144. 
 
 goodwill, assignment of, 182. 
 
 heirs bound by, 145. 
 
 husband, by, 142. 
 
 implied, 142. 
 
 incumbrances, against, 145. 
 
 release of, 143. 
 insure, to, by mortgagor, 222. 
 land, not running with, 148. 
 landlord, by, 326. 
 lease, sale of, 147. 
 leaseholds, as to, 141. 
 leases, in, 147. Bee under Leases, 
 lunatic, committee of, 141. 
 marriage settlements, 377. 
 mortgagee, sale by, 141. 
 mortgages, life policies, 244. 
 mortgagor, by, 222. 
 mortgagor, by, to repay, 209. 
 not to assign, 331. 
 not to underlet, 331. 
 parties, joining of, for, 143. 
 pay rent, 600. 
 
 personal representative, by, 141. 
 purchaser’s, 146. 
 quiet enjoyment, for, 144. 
 rates, payment of, 312, 323. 
 registered title, 600. 
 
 Covenants — continued. 
 
 rent, to pay, 600. 
 repair, to, 222, 326. 
 repayment by mortgagor, for, in 
 mortgages, 212. 
 restrictive, 147. 
 reversion, sale of, 147. 
 running with the land, 316. 
 settle after-acquired property, 377. 
 settlements, 377. 
 special cases, in, 143. 
 statutory provisions, as to, 142. 
 tenant for life, by, 144. 
 title, for, 141. 
 trustees, by, 143. 
 trustee-vendor, by, 141, 143. 
 two classes of, 141. 
 underlet, not to, 331. 
 usual, by vendor, 141. 
 vendor’s, 141. 
 wife, by, 142. 
 
 Creditors, 
 
 conveyances to defeat, 452. 
 gifts to, by will, 492. 
 legacy to, 492. 
 
 Crops, 
 
 bill of sale of, 271. 
 compensation for, 358. 
 sale of, 33. 
 tenant’s right to, 358. 
 
 Crown, 
 
 covenants on sale by, 144. 
 debts, registration of, 155. 
 debts, searches for, not necessary, 
 
 155. 
 
 grants, proof of, 105. 
 land, grant of, by, condition as to, 
 77. 
 
 lands, registration of, 629. 
 leases by and to, 300. 
 sales by, 144. 
 
 Curtesy, estates in, notice of, 621. 
 
 D. 
 
 Damages, breach of contract, 88. 
 
 Date, i 1 
 
 bills of sale, 285. 
 deeds, 127. 
 lease, 308. 
 wills, 478. 
 
 Daughters, 
 
 cross remainders in favour of, 410. 
 portions for, 406. 
 
 Death, 
 
 mortgagee, 256. 
 
 party, registered title, 614. 
 
678 
 
 INDEX. 
 
 Death — continued . 
 
 presumption as to, 106. 
 proof of, 106. 
 
 proof of, for Land Registry, 615. 
 purchaser, 88. 
 tenant for life, 612. 
 trustee in bankruptcy, 615. 
 vendor, 85. 
 
 Debentures, when not bills of sale, 268. 
 Debts, 
 
 judgment, tacking of, 247. 
 legacy in satisfaction of, 492. 
 will, charge of, on realty by, 469. 
 will, direction by, to pay, 469. 
 
 Declarations, 
 
 births, &c., 106. 
 registration of title, in, 622. 
 
 Deeds, 127. 
 
 acknowledged, 12, 104, 163. 
 acknowledged, searches for, 163. 
 acknowledgment as to, 170. 
 all estate clause in, 138. 
 alterations in registered mortgage, 
 600. 
 
 appurtenances, 138. 
 arrangement, of, searches for, 158. 
 attestation of, 165. 
 bankruptcy, sale under, 129. 
 concurrence of trustees to, 128. 
 consideration, the, 132. 
 contents of, 127. 
 
 conveyance for persons not parties, 
 130. 
 
 co-owners, sale by, 130. 
 
 Court, sales by order of, 129. 
 covenants for title, 129. 
 covenants in, 141. And see under 
 Covenants. 
 
 Crown, sale by, 144. 
 
 date of, 127. 
 
 delivery of, 165. 
 
 disclaimer, of, 513. 
 
 disentailing, 516. 
 
 ditches, as to, 136. 
 
 doctrine of estoppel, 131. 
 
 easements, passing’, 138. 
 
 enrolled, 104. 
 
 escrow as, 165. 
 
 estoppel, doctrine of, 131. 
 
 evidence, recitals for, 131. 
 
 exceptions in, 139. 
 
 execution of, 165. 
 
 execution, presumption of, 109. 
 
 execution of, how proved, 101. 
 
 farm, meaning of, 136. 
 
 fixtures, as to, 137. 
 
 form of, 153. 
 
 Deeds — eon tin ned. 
 
 gateway, meaning of, 136. 
 general words in, 137. 
 grant, meaning of, 134. 
 habendum, the, 140. 
 highways, as to, 136. 
 house, meaning of, 135. 
 implied covenants, 142. 
 incumbrances on property, 154. 
 incumbrances, release of, 143. 
 indorsed, 78. 
 land, meaning of, 136. 
 leaseholds, as to, 141. 
 legal appurtenances, 138. 
 liquidator, sales by, 129. 
 lost, proof of, 103. 
 lost, requisition as to, 103. 
 manor, meaning of, 135. 
 messuage, meaning of, 135. 
 minerals, as to, 137. 
 mines, as to, 137. 
 mortgage on property, 128. 
 mortgagor, concurrence of, 128. 
 operative words in, 134. 
 order of Court, under, 129. 
 parcels, the, 134. 
 parties to, 127. 
 parties to whom made, 130. 
 partners, conveyance to, 130. 
 payment of purchase-money, 167. 
 persons not parties, 130. 
 pool, meaning of, 136. 
 production of, 101. 
 protector of settlement, concurrence 
 of, 129. 
 
 purchase, form and contents of, 127. 
 purchase-money, payment of, 167. 
 purchaser, conveyance by direction 
 of, 128. 
 
 purchasers, covenants by, 146. 
 recitals in, 130. 
 
 registration of, purchaser must see 
 to, 102. 
 
 release, 515. And see under Re- 
 lease. 
 
 reservations in, 139. 
 
 rights of mortgagee, 601. 
 
 river beds, as to, 136. 
 
 sealing of, 165. 
 
 signature to, 165. 
 
 statutory covenants, 142. 
 
 sub-purchaser, conveyance to, 128. 
 
 technical words in, 135. 
 
 tenant for life, concurrence of, 129. 
 
 tenant for life, party to, 129. 
 
 tenement, meaning of, 136. 
 
 timber, as to, 137. 
 
 title, covenants for, 129. 
 
 trustees, concurrence of, 128. 
 
 trustees, sale by, 143. 
 
INDEX 
 
 679 
 
 Deeds — continued . 
 
 undertaking, as to, 170. 
 unstamped, conditions as to, 65. 
 vendor’s covenants, 141. 
 water, meaning of, 136. 
 will, beneficiaries joining, 129. 
 witnesses to, 167. 
 words, general, in, 137. 
 words, technical, in, 135. 
 
 And see under Conveyances; 
 Title Deeds. 
 
 Defences, action for specific perform- 
 ance, 91. 
 
 Delivery, 
 
 abstract, 96. And see under Ab- 
 stract of Title, 
 deed, 165. 
 
 Deposit, 
 
 conditions of sale as to, 58. 
 forfeiture of, 75. 
 
 land certificate, as to registered 
 titles, 608. 
 notice of, 608. 
 
 title deeds, 249. See under Equit- 
 able Mortgages. 
 
 Devise, 
 
 general, what it includes, 487. 
 lapsed, 485. 
 
 limitation, without words of, 487. 
 title, beginning with, 78. 
 
 Die unmarried, 
 
 settlements, in, meaning of, 384. 
 will, in, meaning of, 511. 
 
 Die without issue, meaning of, 487. 
 
 Disabilities, 
 
 copyholds, as to, 522. 
 legal, 5. 
 
 redemption actions, 226. 
 registered titles, 633, 643. 
 
 Disclaimer, 513. 
 
 bankruptcy, of contract in, 85. 
 
 deeds of, 513. 
 
 effect of, by trustee, 514. 
 
 form of, of trust, 514. 
 
 legacy, 513. 
 
 power, of, 514. 
 
 stamp on, 515. 
 
 trustees, by, 513. 
 
 Discovery of documents, registered 
 titles, 647. 
 
 Disentailing assurances, 163, 195, 516. 
 copyholds, 520. 
 enrolment of, 195, 520. 
 natural protector under, 517. 
 searches for, 163. 
 stamp on, 521. 
 when used, 516. 
 
 Disputes, 
 
 registered titles, 579. 
 
 vendor and purchaser, between, 124. 
 
 Distress, 239, 322. 
 
 mortgages, as to, 239. 
 
 District land registries, 559. 
 
 District registries for registration of 
 titles, 559. 
 
 Distringas, 180. 
 
 Disturbance, tenancy, compensation for, 
 347. 
 
 Doctor, 
 
 gift to, 31. 
 purchases by, 31. 
 
 Documents, discovery of, registered 
 titles, 647. 
 
 Dower, estates in, 621. 
 
 Drainage, compensation for, 359. 
 Dumpor’s case, 345. 
 
 E. 
 
 Easements, 34. 
 
 contract to grant, 34. 
 land, when appurtenant to, 137. 
 quasi, 138. 
 registered titles, 579. 
 
 Effects, meaning of, in will, 508. 
 
 Elegit, writ of, effect on lands, 158. 
 
 Emblements, right to, 359. 
 
 Enfranchisements, 522. 
 compulsory, 523. 
 copyholds, 522. 
 registration of, 524. 
 settled estates, 523. 
 
 And see under Copyholds. 
 
 Enlargement, leaseholds to freeholds, 
 524. 
 
680 
 
 INDEX. 
 
 Enrolment, 
 
 annuity, grant of, 194. 
 charitable conveyances, 194. 
 deeds, 104. 
 
 disentailing deeds, 195. 
 fees for, 194. 
 office, search in, 163. 
 proof of, 104. 
 time for, 194. 
 
 Entailed estates, proof of bar of, 108. 
 
 Entry, power of, to landlord, to view 
 repairs, 315. 
 
 Equitable, 
 
 mortgages, 249. 
 costs of, 252. 
 form of, 250. 
 how created, 249. 
 power of sale in, 250. 
 receiver, appointment of, 251. 
 waste, liability of tenant for life 
 for, 404. 
 
 Equity of redemption, 215. 
 
 Errors, 
 
 conditions of sale as to, 63. 
 discovered after completion of pur- 
 chase, 64. 
 
 Escrow, delivery of deed as, 165. 
 
 Essence of contract, condition as to time 
 being, 67. 
 
 Estate, 
 
 duties, 582. 
 
 meaning of, in will, 507. 
 
 Estoppel, doctrine of, 131. 
 
 Evidence, 
 
 acknowledged deeds, 104. 
 awards, as to, 104. 
 copyholds, as to, 104, 105. 
 
 Crown grants, 104. 
 enrolled deeds, 104. 
 execution, &c. of deeds abstracted, 
 101 . 
 
 facts, of, 105. 
 identity, of, 61. 
 
 proceedings in court of justice, 108. 
 recitals are, 131. 
 registration of deeds, 103. 
 wills, 104. 
 
 Examination of title. See under 
 Abstract of Title. 
 
 Exceptions and reservations, 139. 
 
 Exchanges of land, 76. 
 
 Execution, 
 
 bills of sale, 273. 
 deeds, 165. 
 wills, 462, 479. 
 
 Executors, 
 
 appointment of, 467. 
 
 business, carrying on, by, 475. 
 
 disclaimer by, 513. 
 
 duties, as to wasting property, 476. 
 
 gifts to, 506. 
 
 leases by, 302. 
 
 mortgages by, 203. 
 
 position of, as to residue, 478. 
 
 who may be, 468. 
 
 Expense of production of deeds not in 
 vendor’s possession, 101. 
 
 F. 
 
 Facts, proof of, 105. 
 
 Falsa demonstratio non nocet, maxim, 
 135. 
 
 Falsification of pedigree, penalty for, 
 99. 
 
 Family, provision in will for, 471. 
 Farm, meaning of, 136. 
 
 Fees, 
 
 enrolment, 194. 
 registration of title, 659. 
 
 Felons, 
 
 sales by, 16. 
 wills of, 459. 
 
 Fiduciary capacity, sales by persons in, 
 29. 
 
 Fiduciary relation, sales by persons in, 
 29. 
 
 Fire, destruction of property by, after 
 contract, 83. 
 
 Fixtures, 
 
 bill of sale of, 270. 
 contract for sale of, 34. 
 
 Flats, registration of, Land Registry, 
 639. 
 
 Foreclosure, 218, 601. 
 
 Forfeiture, 
 
 equity of redemption, 215. 
 leases, 338. 
 
 none now in felony, &c., 16. 
 
INDEX 
 
 681 
 
 Forms, 
 
 absolute title, registration of, 566. 
 application, register of title, 566. 
 bill of sale, 295. 
 certificate of charge, 635. 
 charge, under Land Transfer Act, 
 596. 
 
 charge, transfer of, 604. 
 conveyance, 153. 
 deed, 153. 
 
 land certificate, 634. 
 
 Land Registry, 566, 586, 592, 596, 
 604, 634. 
 lease, 349. 
 mortgage, 240. 
 
 reconveyance, 260. 
 statutory, 246. 
 purchase deed, 153. 
 registration of title, for, 566, 586, 
 592, 596, 604, 634. 
 statutory mortgage, 246. 
 transfer of charge, 604. 
 transfer of land, 586. 
 transfer of leasehold land, 592. 
 
 Frauds, 
 
 abstract of title, as to, 99. 
 registration of title, 646. 
 
 Frauds, Statute of, 
 
 auctions, how complied with, 59. 
 contracts, what within, 33. 
 
 Fraudulent, 
 
 concealment by mortgagor, 218. 
 conveyances, 452. 
 
 Freeholds, enlargement of leaseholds 
 into, 524. 
 
 Furniture, meaning of, in will, 509. 
 
 Further advances, 
 
 mortgage to secure, 212. 
 tacking of, 247. 
 
 Further assurance, covenant for, 145. 
 
 G. 
 
 Game, 
 
 damage by, compensation for, 354. 
 Ground, Acts, 360. 
 poisoning of, 362. 
 rights as to, 360. 
 tenant’s right to, 360. 
 
 Gateway, right of, 136. 
 
 Gavelkind lands, 6. 
 
 General devise, what it includes, 485. 
 General legacies, 464. 
 
 Gifts, 
 
 charities, to, 22. 
 children, 501. 
 children, illegitimate, 501. 
 conditional, 496. 
 cousins, to, 504. 
 creditors, &c., to, 492. 
 executors, to, 506. 
 family, to a, 505. 
 grandchildren, to, 504. 
 heirs, to, 505. 
 husband, to, 501. 
 issue, to, 489, 504. 
 legal representatives, to, 506. 
 nephews and nieces, to, 503. 
 next of kin, to, 506. 
 relations, to, 504. 
 requisitions as to, 111. 
 step-children, to, 503. 
 tenants in common, to, 503. 
 wife, to, 501. 
 
 Gifts over, life interest in settlements, 
 384. 
 
 Good right to convey, covenant as to, 
 
 144. 
 
 Goods, chattels, or effects, meaning of, 
 509. 
 
 contract for sale of, 35. 
 meaning of, 35. 
 
 Goodwill, 
 
 assignment of, 182. 
 covenants on sale of, 172. 
 customers, dealings with, 182. 
 customers, soliciting, 182. 
 name, use of, 182. 
 purchaser, precautions by, 182. 
 trade, covenant in restraint of, 173. 
 vendor, position of, 182. 
 
 Grandchildren, gifts to, by will, 504. 
 
 “ Grant,” conveyance, in, not necessary, 
 134. 
 
 Ground game, rights as to, 360. 
 Growing crops, sale of, 33. 
 
 Growing timber, sale of, 34. 
 
 Guardian, 
 
 appointment of, by will, 468. 
 gift to, 30. 
 purchases by, 30. 
 
 H. 
 
 Habendum, 
 
 leases in, 309. 
 use of, 140. 
 
682 
 
 INDEX. 
 
 Habitable repairs, meaning- of, 328. 
 Hares, Ground Game Act, as to, 360. 
 Heirs, 
 
 covenantor, of, &c., 140. 
 gifts to, by will, 505. 
 
 High Court, proof of proceedings in, 
 108. 
 
 Highways, repair of, 580. 
 
 Hiring agreement, when not a bill of 
 sale, 266. ! 
 
 Hops, growing, contract for sale of, 34. 
 
 Hotchpot clause, 
 
 settlements of personalty, 383. 
 settlements, strict, 407. 
 
 House, meaning of, 135. 
 
 Household effects, meaning- of, 509. 
 goods, meaning of, 509. 
 
 Housing of Working Classes Act, land- 
 lord’s liability under, 315. 
 
 Housing, Town Planning, &c. Act, 315. 
 
 Howe v. Dartmouth rule, 476. 
 
 Husband, estate of, by curtesy, 15. 
 
 Hypothecation, letters of, 268. 
 
 I. 
 
 Identity, 
 
 condition as to, 61. 
 parcels, proof of, 105. 
 property, registered title, 598. 
 
 Idiots. See under Lunatics. 
 
 Impeachable for waste, when tenant for 
 life is, 405. 
 
 Improvement of Land Acts, 435. 
 
 Improvements, 
 
 capital money, with, 431. 
 compensation for, to tenants, 352. 
 raising money for, 435. 
 tenant for life, by, Settled Land 
 Act, 434. 
 
 Inclosed lands, conditions as to, 76. 
 Inclosure Act, 
 
 awards under, proof of, 104. 
 exchanges under, 76. 
 
 Income, 
 
 accumulation of, 411. 
 application of, for maintenance, 
 386. 
 
 Inconsistent clauses in wills, 482. 
 
 Incorporation, documents relating to 
 sale, 37. 
 
 Increment value duty, 73, 118, 370. 
 stamp, 167. 
 
 Incumbrances, 
 
 concealment of, 99. 
 conditions as to, 79. 
 
 Land Registry, 579. 
 
 Land Registry, discharge of, 583. 
 redemption of, 79. 
 requisitions as to, 120. 
 search for, 154. See under Searches, 
 shifting* of, by tenant for life, 417. 
 tacking, 247. See under Mortgages. 
 
 Indemnity, 
 
 clause, settlements, 393. 
 sale of leases, 147. 
 
 Indorsed receipt, 133. 
 
 Infants, 5. 
 
 applications to Court as to, 643. 
 
 contracts, 7. 
 
 conveyances by, 5. 
 
 conveyances to, 7. 
 
 disabilities of, 445. 
 
 lands, 445. 
 
 leases, 298. 
 
 maintenance of, by trustees, 385. 
 management of lands by trustees, 
 445. 
 
 mortgages, 202. 
 
 provision as to, on registered titles, 
 643. 
 
 purchase by, 7. 
 sales by, 5. 
 sales to, 7. 
 
 Settlements Act, 6. 
 settlements by, 373. 
 specific performance bj r , 90. 
 
 Inhibitions, Registered Titles, 625. 
 
 Inquiries as to title. See under Abstract 
 of Title and Conditions of Sale. 
 
 Instalments, repayment of mortgage by, 
 
 212 . 
 
 Insurance, 
 
 covenant for, in leases, 330. 
 fund, registered titles, 649. 
 mortgaged property, 222, 229. 
 purchaser’s position as to, 83. 
 
INDEX. 
 
 683 
 
 Interesse termini in land, 310. 
 Interest, 
 
 arrears, recovery of, on mortgage, 
 
 210 . 
 
 covenant for payment of, in mort- 
 gage, 209. 
 deposit on, 59. 
 land, in, what is, 33. 
 purchase-money, on, G9. 
 
 Intestacy, proof of, 107. 
 
 Inventory of goods, when bill of sale, 
 268. 
 
 Investments, 
 
 capital money, Settled Land Act, 
 426. 
 
 trustees, 387. 
 
 And see under Trustees. 
 
 Issue, 
 
 die without, meaning of, 487. 
 gifts to, 489, 504. 
 
 J. 
 
 Joint account clause, mortgages, 213. 
 Joint tenants, 
 
 admittance of, to copyholds, 175. 
 how far mortgagees are, 213. 
 
 Jointure, how secured, 405. 
 
 Judgment debts, tacking of, 247. 
 
 Judgments, 
 
 how far, affect lands, 155. 
 searches for, 155. 
 
 Judicature Act, 
 
 assignment of choses in action, as 
 to, 177. 
 
 waste, as to, 404. 
 
 K. 
 
 Kin, next of, 
 
 gifts to, by will, 506. 
 
 L. 
 
 Land, 
 
 covenants running with, 316. 
 
 Crown, 77. 
 
 exchanged, 76. 
 
 interest in, what is, 33. 
 
 judgments, how far, affect, 155. 
 
 Land — continued . 
 
 meaning of, 136. 
 
 Statute of .Frauds, what is, within 
 sect. 4. ..33. 
 writs affecting, 158. 
 
 Land certificates, 634. 
 
 Land charge, what is, 158. 
 
 Land charges, 158. 
 searches for, 158. 
 
 Land Clauses Act, 196. See under Lands 
 Clauses. 
 
 Land Commissioners, duties of, as to 
 enfranchisement, 522. 
 
 Land Registry, 555. See under Regis- 
 tration of Title. 
 
 Land Tax, 
 
 liability as to, 580. 
 
 loss of redemption certificate, 79. 
 
 proof of redemption of, 107. 
 
 Land Transfer Acts, 
 
 conveyancing under, 555. See under 
 Registration of Title. 
 
 Landlord, 
 
 actions by, 322. 
 
 consent of, to assigning lease, 331. 
 
 covenants by, 310, 337. 
 
 distress by, 322. 
 
 enter and view, right to, 315. 
 
 forfeiture by, 338. 
 
 re-entry by, 326, 338. 
 
 remedies of, 321. 
 
 repairs, not liable for, 313. 
 
 repairs by, covenant for, 326. 
 
 restrictive covenants by, 337. 
 
 Landlord and Tenant, 297. See under 
 Leases. 
 
 Lands Charges, &c. Act, 164. 
 
 Lands Clauses Consolidation Acts, 196. 
 compensation, application of, 197. 
 compensation under, 197. 
 copyholds, as to, 199. 
 lands, surplus, 197. 
 mortgages, redemption of, 199. 
 notice to treat, 197. 
 objects of, 196. 
 outline of, 196. 
 price, fixing of, 200. 
 procedure under, 176. 
 promoters, estates vested in, 199. 
 remedies under, 200. 
 sales under, 196. 
 
684 
 
 INDEX 
 
 Lands Clauses Consolidation Acts — 
 continued. 
 
 specific performance under, 200. 
 summary of procedure under, 196. 
 surplus lands, disposal of, 199. 
 treat, notice to, 197. 
 
 Lapse, 
 
 devise, of, 485. 
 
 Wills Act, provisions of, 472. 
 
 Lease. See under Leases. 
 
 Leaseholds, 
 
 assignee, position of, 176. 
 assignment of, 176. 
 enlargement of, into freeholds, 524. 
 mortgage of, 241. 
 mortgage of, covenant on, 242. 
 
 Leases, 297. 
 
 administrators, by, 302. 
 agents, by, 302. 
 agreements for, 305. 
 agricultural, 351. 
 agricultural holdings, 351. 
 agricultural leases, 351. See under 
 Agricultural Leases, 
 assessments, meaning of, 324. 
 assign, covenant not to, 331. 
 assignee of, 176. 
 assignment of, 176. 
 attorney, power of, under, 303. 
 bankruptcy of lessee, 319, 332. 
 breach of contract, for, remedies for, 
 305. 
 
 breach of covenants in, 329. 
 building, 419. 
 
 business, covenant not to carry on, 
 
 335. 
 
 by whom prepared, 308. 
 capacity of parties, 297. 
 charges, meaning of, 325. 
 companies, by and to, 300. 
 compensation for improvements, 
 352. 
 
 conditions for forfeiture, 338. 
 conditions for re-entry, 338. 
 conditions on grant or sale of, 50, 
 77. 
 
 consent, lessor’s, to assign, 331. 
 consideration in, 309. 
 contents of, 308. 
 contract for, 305. 
 
 contract for sale of, specific per- 
 formance of, 89. 
 copyholders, by, 304. 
 corporations, by and to, 300. 
 costs of, 369. 
 
 cottage gardens compensation, 359. 
 
 Leases — continued . 
 covenants in, 311. 
 
 breach of, remedy for, 329. 
 business, covenant not to carry 
 on, 335. 
 
 enter and view, 315. 
 
 express, 320. 
 
 generally, 311. 
 
 implied, 312. 
 
 insurance, for, 330. 
 
 keep in repair, to, 313. 
 
 lessee, by, 312. 
 
 lessor, by, 310, 337. 
 
 not to assign, 331. 
 
 not to underlet, 331. 
 
 quiet enjoyment, 312. 
 
 rates, &c., payment of, 312, 323. 
 
 rent, to pay, 312, 320. 
 
 repair, to, 312. 
 
 restrictive, 318, 335. 
 
 running with the land, 315. 
 
 running with the reversion, 316. 
 
 taxes, to pay, 312, 323. 
 
 trade, not to carry on, 335. 
 
 usual, 319. 
 
 usual, what are, 319. 
 usual, what are not, 319. 
 
 And see under Covenants. 
 Crown, by, 300. 
 
 damages under, measure of, 329. 
 date of, 308. 
 definition of, 297. 
 determination of, option for, 310. 
 disputes under, 306. 
 distress for rent, 322. 
 
 Dumpor’s case, 345. 
 duration of term, fixing of, 310. 
 duties, meaning of, 324. 
 ecclesiastical corporations, 300. 
 emblements, tenant’s right to, 359. 
 enter and view, right to, 315. 
 executors, by, 302. 
 fixtures, tenant’s, rights to, 356. 
 forfeiture, 
 
 costs as to, 342. 
 game, damage by, 354. 
 mining lease, 344. 
 notice as to, 342. 
 relief for, 340. 
 forfeiture of, 338. 
 form and contents of, 307. 
 form of, 349. 
 game, ground, as to, 360. 
 ground game, 360. 
 habitable repair, meaning of, 328. 
 habendum, the, 309. 
 idiots, by and to, 299. 
 impositions, meaning of, 324. 
 improvements, compensation for, 
 352. . 
 
 indemnity to vendor on sale of, 141. 
 
INDEX. 
 
 685 
 
 Leases — continued. 
 
 infants, by and to, 297. 
 insurance, covenant for, 330. 
 investigation of title for, 305. 
 legal charges for, 369. 
 lessee, I 
 
 bankruptcy of, 319. 
 covenants by, 311. 
 lessor, 
 
 covenants by, 347. 
 
 restrictive, by, 337. 
 re-entry by, 338. 
 repairs by, 314, 326. 
 title of, investigation of, 305. 
 l im ited owners, by, 303. 
 lunatics, by and to, 299. 
 market gardens, 358. 
 married women, by, 299. 
 mortgage of, 233. 
 mortgagee, by, 233. 
 mortgagor, by, 233. 
 notice of, on registration of title, 
 618. 
 
 notices to quit, 357, 364. 
 obligations of parties to, 311. 
 operative words in, 309. 
 option to determine term, 310. 
 outgoings, meaning of, 324. 
 owners, limited by, 303. 
 parcels in, 309. 1 
 
 parties, 
 
 capacity of, 297. 
 obligations of, in absence of ex- 
 press covenants, 311. 
 
 parties to, 308. 
 partnership tenancy, 310. 
 persons non compos, 299. 
 powers, as to, 
 
 in mortgages, 233. 
 in settlement, 418. 
 powers under, 302. 
 preparation of, 307. 
 property tax, as to, 312. 
 quiet enjoyment, covenant for, 312, 
 347. 
 
 quit, notice to, 357, 364. And see 
 under Quit. 
 
 rates, covenant to pay, 312, 323. 
 landlord’s, 325. 
 meaning of, 323. 
 
 &c., payment of, 312, 323. 
 recitals in, 308. 
 reddendum, the, 311. 
 re-entry, 
 
 conditions for, 338. 
 demand for, where required, 
 339. 
 
 effect of waiver of right of, 
 345. 
 
 notices as to, 342. 
 operation of proviso for, 339. 
 
 Leases — continued. 
 
 r e - e nt r y — co n t in ued. 
 relief as to, 340. 
 
 underlessees, rights as to, 
 341. 
 
 waiver of right to, 345. 
 registration of, in Land Registry, 
 575. 
 rent, 
 
 action for, 322. 
 
 covenant for payment of, 312, 
 320. 
 
 deductions, 321. 
 distress for, 322. 
 forfeiture for non-payment of, 
 344. 
 
 landlord’s remedies for, 322. 
 payment of, 320. 
 remedy for, 322. 
 reservation of, 312. 
 when due, 320. 
 where it is payable, 320. 
 repair, 
 
 breach of covenant for, 329. 
 
 measure of damage, 329. 
 habitable, 328. 
 tenantable, meaning of, 328. 
 repairs, 
 
 covenant for, 313, 326. 
 landlord, by, 326. 
 lessor, by, 314. 
 tenant, by, 313, 327. 
 requisitions as to, 119. 
 restrictive covenants, 318, 335. 
 reversioners, by, 304. 
 running with land, covenant, 315. 
 settled estates, 303, 418. 
 solicitor, costs, employment of, 342. 
 stamps on, 367. 
 strict settlement of, 418. 
 surrender of, 362, 421. 
 surveyor, employment of, cost of, 
 342. 
 taxes, 
 
 covenant to pay, 312, 323. 
 tenant, remedy of, against 
 landlord for non-pay- 
 ment, 325. 
 
 what are usual, 323. 
 
 tenant, 
 
 compensation to, 352. 
 fixtures of, 356. 
 repairs by, 313, 327. 
 tenant for life, by, 303, 418. 
 tenant for years, by, 304. 
 tenantable repair, meaning of, 328. 
 term, 
 
 commencement of, 310. 
 duration of, 310. 
 fixing of, 310. 
 option to determine, 310. 
 testatum, the, 309. 
 title, lessor’s, investigation of, 305. 
 
686 
 
 INDEX. 
 
 Leases — continued. 
 
 trade, not to carry on, 335. 
 trustees, by, 301. 
 under powers, 302. 
 underlease, covenant not to, 331. 
 underlessee, relief for, 341. 
 underlet, covenant not to, 331. 
 unsound mind, persons of, 299. 
 usual covenants, 
 what are, 319. 
 what are not, 319. 
 view, lessor’s right to, 315. 
 voidable, 298. 
 waiver, what is, 345. 
 will, tenant at, by, 304. 
 years, tenants for, by, 304. 
 
 And see under Registration of 
 Title. 
 
 Leaseholds, 
 
 enlargement of, to freeholds, 524. 
 mortgage of, 241. 
 
 Leasing, powers of, mortgaged property, i 
 233. 
 
 Legacies, 464. 
 
 ademption of, 464. 
 annuities, of, 500. 
 bankruptcy as to, 499. 
 bequest of, 470. 
 charged on land as, 495. 
 charities, 22. 
 child, to, 489, 501. 
 conditions, upon, 496. 
 contingent, 494. 
 creditors, to, 492. 
 cumulative, 491. 
 debt, satisfaction of, by, 492. 
 demonstrative, 464. 
 disclaimer of, 508. 
 duty on, 470. 
 general, 464. 
 husband, to, 5 j 01. 
 land, charged on, 494. 
 land, of, 494. 
 
 legal representatives, to, 506. 
 life interests, 498. 
 money charged on land, 495. 
 nephew, to, 503. 
 niece, to, 503. 
 
 particular purpose, for, 496. 
 personal property, 497. 
 realty, 497. 
 relatives, to, 504. 
 requisition as to, 111. 
 residuary, 465. 
 satisfaction of debts, for, 492. 
 several to same person, 491. 
 specific, 464. 
 various kinds of, 464. 
 vested, 494. 
 
 vested and contingent, 464. 
 wife, to, 501. 
 
 And see under Wills. 
 
 Legacy duty, 
 
 Act, 112. 
 
 free from, in wills, 470. 
 
 I 
 
 Legal charges. See under Costs. 
 
 Legal estate, outstanding, 78. 
 
 I 
 
 Legal representatives, gifts to, 506. 
 
 Legitimacy, proof of, 106. 
 
 Lessors and lessees, 297. See under 
 Lease. 
 
 Letters, 
 
 contract by, 37. 
 hypothecation, of, 268. 
 
 License to take possession, 266. 
 
 Liens, 92. 
 
 purchaser’s, 92. , 
 vendor’s, 92. 
 
 Life interests, conditions as to, 498. 
 
 Life policy, 
 
 assignment of, 181. 
 mortgage of, 244. 
 settlement of, 399. 
 
 Limitation, Statute of, 
 
 contracts, effect of statute as to, 93. 
 land, money charged on, 218. 
 legacies, as to, 112. 
 mortgages, redemption of, 218. 
 
 Limited owners, leases by, 303. 
 
 Lis pendens, 156. 
 
 registration of, 156. 
 searches for, 156. 
 
 Livery of seisin, proof of, 105. 
 
 Loans, 
 
 improvement of settled estates, for, 
 435. 
 
 trustees and executors, by, 203. 
 
 Local registries, land transfer, 650. 
 
 Lodgings, furnished, contracts as to, 34. 
 
 Lord St. Leonards’ Act, concealment of 
 incumbrances, &c., 98. 
 
 Lost, 
 
 deed, proof of, 103. 
 documents, conditions as to, 79. 
 evidence of redemption, 79. 
 land certificate, 79. 
 requisitions as to deeds, 103. 
 
INDEX. 
 
 687 
 
 Lunacy Act, 1890. ..109. 
 orders, 109. 
 
 proceedings, proof of, 109. 
 
 Lunatics, 8, 202, 299, 633, 643. 
 
 application to Court as to, 643. 
 committee, 
 
 powers of, 9. 
 sales by, 9. 
 conveyances by, 8. 
 conveyances to, 10. 
 leases by and to, 299. 
 mortgages by, 202. 
 provisions as to registered titles, 
 633, 643. 
 sales by, 8. 
 sales to, 10. 
 wills of, 458. 
 
 M. 
 
 Maintenance, clause for, in settlements, 
 386. 
 
 Manor, 
 
 meaning of, 135. 
 
 registration of, on registered title, 
 638. 
 
 Maps, land transfer, 562. 
 
 Market gardens, 358. 
 
 Marriage, 
 
 conditions in restraint of, 496. 
 proof of, 106. 
 
 Marriage settlements, 372. See under 
 Settlements. 
 
 Married women, 
 
 acknowledgment by, 12, 14. 
 
 anticipation, restraint on, 11, 377. 
 
 applications to Court as to, 643. 
 
 appointment by, 12, 527. 
 
 bare trustee, as, 12. 
 
 chattels, sale of, 14. 
 
 child-bearing, when past, 110. 
 
 contracts of, 13, 16. 
 
 conveyances to, 15. 
 
 copyhold land of, 14. 
 
 deeds by, 11. 
 
 disabilities of, 12. 
 
 disclaimers by, 14. 
 
 exercise of power by, 527. 
 
 freehold land of, 12. 
 
 leaseholds, sale of, 14. 
 
 leases by and to, 299. 
 
 mortgages by, 202. 
 
 past child-bearing, 110. 
 
 powers; sales under, 12. 
 
 provision as to registered titles, 643. 
 
 Married women — continued. 
 
 restraint on, 11, 377. 
 reversionary interests of, 12, 14. 
 sales by, 10. 
 sales to, 15. 
 
 separate property of, 11. 
 wills of, 458. 
 
 Maxims, 
 
 Caveat emptor, 44. 
 
 Falsa demonstratio non nocet, 135. 
 Dans locum contractui, 42. 
 
 Medical man, sales to, 31. 
 
 Memorandum of deposit title deeds, 249. 
 
 Messuage, meaning of, 135. 
 
 Middlesex Registry, 161, 188. 
 registration in, 188. 
 searches in, 162. And see under 
 Searches, 
 stamps in, 190. 
 wills, as to, 189. 
 
 Minerals, right to, 580. 
 
 Mines, 
 
 conveyance of, 137. 
 lease of, 420. 
 registration of, 639. 
 reservation of, 137. 
 right to, 580. 
 
 Minister, 
 
 gifts to, 30. 
 purchase by, 30. 
 
 Misdescription, compensation for, 45, 63. 
 
 Misrepresentation in particulars of sale, 
 41. 
 
 Money, meaning of, in will, 508. 
 Mortgagee. See under Mortgages. 
 
 Mortgages, 201. 
 
 abortive, costs of, 209. 
 
 abstracting, 98. 
 
 actions as to, 210. 
 
 actions on covenant to repay, 210. 
 
 agreement for, 207. 
 
 aliens, by, 203. 
 
 arrears of interest, 210. 
 
 attornment clause in, 238. 
 
 bankruptcy, effect of, 242. 
 
 Bills of Sale Act, effect of, 239. 
 building society, 258, 606. 
 business premises, 205. 
 capacity of parties, 202. 
 choses in action, 243. 
 
688 
 
 INDEX. 
 
 Mortgages — continued. 
 
 companies, by, 203. 
 consolidation of, 219, 249. 
 consolidation, risks of, 220. 
 contents of, 209. 
 contract for, 208. 
 contributory, 205. 
 conveyance to mortgagee, 214. 
 convicts, by, 203. 
 copyholds, 240. 
 copyholds, transfer of, 256. 
 corporations, by, 203. 
 costs of, 208, 252. 
 covenant, actions on, 214. 
 covenant for repayment, 209. 
 covenants by mortgagor, 222. 
 covenants in, 209. 
 covenants, title for, 222. 
 date of, 209. 
 
 deed, preparation of, 209. 
 definition of, 201. 
 disadvantages of second, 246. 
 discharge of, registered, 605. 
 distress clause in, 239. 
 equitable, 205, 249. And see under 
 Equitable Mortgagefs. 
 equity of redemption, 215. 
 felons, by, 203. 
 
 fixtures, mortgagee’s right to, 224. 
 foreclosure, 218. 
 form of, 209, 240. 
 form of, in special cases, 240. 
 fraudulent concealment by mort- 
 gagor, 218. 
 
 further advances, 212. 
 future advances, 212. 
 ground rents, 205. 
 how made, registered land, 596. 
 implied covenants in registered 
 mortgage, 600. 
 infants’, 202. 
 
 instalments, repayment by, 212. 
 insurance, 222, 229. 
 insurance moneys, application of, 
 229. 
 
 interest on, 209. 
 arrears of, 210. 
 compounding, 212. 
 punctual payment of, how in- 
 sured, 211. 
 
 investigating title, 207. 
 
 joint account clause, 213. 
 
 leaseholds, 241. 
 
 leases, grant of, 233. 
 
 leasing, power as to, 233. 
 
 life policies, 244. 
 
 limitation, period of, 210. 
 
 loan, proportion of, to security, 206. 
 
 lunatics, 202. 
 
 married women, 202. 
 
 Mortgages— continued. 
 mortgagee, 
 
 accounts of, 253. 
 conveyance to, 214. 
 death of, 256. 
 fixtures, duties as to, 224. 
 foreclosure by, 218. 
 insurance by, 229. 
 leases by, 233. 
 power of sale, 223. 
 powers of, 222. 
 receiver, appointment of, 230. 
 repairs by, 222. 
 sales by, 34, 219. 
 second, 205, 239. 
 timber, cutting by, 233. 
 transfers by, 221. 
 mortgagor, 
 
 concurrence of, in transfer, 253. 
 covenants by, 222. 
 fraudulent concealment by, 218. 
 insurance by, 222. 
 leases by, 233. 
 
 redemption by, loss of right to. 
 218. 
 
 repairs by, 222. 
 title of, 208, 222. 
 transfer, right as to, 253. 
 notice to pay off, 217, 225. 
 form of, 225. 
 to whom given, 225. 
 parties, capacity of, 202. 
 parties to, 209. 
 pay covenant to, 209. 
 persons in a fiduciary position, 203. 
 persons of unsound mind, 202. 
 policies, 244. 
 
 power of sale, 219, 223, 227. 
 power to insure, 222, 229. 
 powers of mortgagee, 222. 
 proviso for redemption, 215. 
 receiver, appointment of, 230. 
 
 advantages of appointing, 232. 
 distress by, 231. 
 powers of, 230. 
 removal of, 231. 
 remuneration of, 231. 
 
 And see under Receiver, 
 recitals in, 209. 
 reconveyance of, 260. 
 costs of, 260. 
 form of, 260. 
 leaseholds, 260. 
 
 parties to, after death of mort- 
 gagee, 259. 
 proviso for, 215. 
 stamps on, 262. 
 
 redeem, notice of intention to, 217. 
 redeem, right to, 216. 
 redeem, who can, 216. 
 
INDEX. 
 
 689 
 
 Mortgagees — con t in ued. 
 
 redemption, equity of, proviso for, 
 215. 
 
 loss of right to, 218. 
 proviso for, 215. 
 registered, alterations in, 600. 
 registration of, evidence of, 599. 
 repairs, 222. 
 
 repairs, covenant for, 222. 
 repayment by instalments, 212. 
 repayment, covenant for, 209. 
 repayment of, 209. 
 sale, power of, 219, 223. 
 sale, when it arises, 223. 
 
 under, 219. 
 second, 205, 239. 
 
 disadvantages of, 246. 
 second testatum, 214. 
 security, value of, 206. 
 specific performance! of contract for, 
 208. 
 
 stamps on, 261. 
 statutory, 245. 
 
 form of, 246. 
 sub-mortgage, 206. 
 tacking, doctrine of, 247. 
 
 restriction on, 248. 
 tenant for life, by, under Settled 
 Land Act, 418. 
 testatum, first, 209. 
 testatum, second, 214. 
 timber, cutting and selling, 233. 
 title, abortive investigation of, 209. 
 covenant for, 222. 
 investigation of, 207. 
 of mortgagor, 207. 
 traitors, 203. 
 
 transfer of, 221, 253, 604. 
 copyholds, 256. 
 costs of, 257. 
 mortgagor a party, 255. 
 mortgagor, concurrence of , 253. 
 mortgagor not a party, 254. 
 parties to, after death of mort- 
 gagee, 256. 
 statutory, 256. 
 
 See under Transfers, 
 trustees, by, 203. 
 valuation for, 207. 
 value of security, 206. 
 valuer, selection of, by trustee, 206. 
 who can redeem, 216. 
 
 Mortgagor. See under Mortgages. 
 
 Mortmain, 21. 
 
 forfeiture under, 21. 
 institutions exempt from, 23. 
 parks, provision as to, 22. 
 requirements under, 21. 
 working classes’ dwellings, as to, 19. 
 
 Municipal corporations, 
 conveyances by, 17. 
 leases, 300. 
 
 Museum, sale for, 22. 
 
 N. 
 
 Naturalization Act, effect of, 16. 
 
 Nephews, gifts to, by will, 503. 
 
 Next of kin, gifts to, by will, 506. 
 
 Nieces, gifts to, by will, 503. 
 
 Non-production, deeds, 101. 
 
 Notice, 
 
 actual, 121. 
 annuity, as to, 157. 
 assignment of chose in action, 179. 
 assignment of policies, 182. 
 bankruptcy, disclaimer in, 85. 
 constructive, 121. 
 defects in title, of, 120. 
 enfranchise, right to, 522. 
 estates by curtesy, 621. 
 estates in dower, 621. 
 generally, 120. 
 implied, 121. 
 interest, claim to, 70. 
 land, registered counties, in, 161. 
 Lands Clauses Act, under, 197. 
 law as to, lands in registered 
 county, 161. 
 
 lease on registration of title, 618. 
 mortgagee, by, prior to sale, 225. 
 payment off mortgage, 225. 
 purchaser, as to interest, 70. 
 quit, 357. 
 
 quit, notice to, agricultural hold- 
 ings, 357. And see under Quit. 
 second mortgage, 247. 
 tenant’s, removal agricultural fix- 
 tures, 357. 
 
 treat, under Lands Clauses Act, 197. 
 trust, registration of title, 617. 
 trustees, to, 179, 438. 
 
 O. 
 
 Objections to title, waiver of, 123. 
 Observations on title, 111. 
 
 Official receiver, registration of title by, 
 
 614. 
 
 Operation of law, surrender of lease b}', 
 363. 
 
 G. — C. 
 
 Y Y 
 
690 
 
 INDEX. 
 
 Operative, 
 
 part of deed, how affected by re- 
 citals, 130. 
 
 words in conveyances, 134. 
 words in leases, 309. 
 
 <f Or,” meaning of, in will, 512. 
 
 “ Other,” or “ others,” meaning of, in 
 will, 510. i 
 
 Outlawry, no forfeiture by, 16. 
 
 Outstanding legal estate, 
 conditions as to, 78. 
 getting in of, 112. 
 
 P. 
 
 Parcels in conveyance, 134. 
 
 Parent, 
 
 gift to, by child, 30. 
 income of settled property, payment 
 to, 385. 
 
 jmrchase by, 30. 
 
 Parks, conveyances for, 22. 
 
 Parliament, Acts of, 
 
 conveyances, as, 103. 
 
 proof of, 103. ! 
 
 Parol variation of conditions of sale, 80. 
 
 Parson, | 
 
 gifts to, 30. ; 
 
 purchase by, 30. ! 
 
 Part performance of contract, 38. 
 
 Particulars of sale, 41. 
 
 compensation for errors, 45. 
 
 compensation for, how assessed, 46. 
 
 defects in, 44. 
 
 fact, matters of, in, 41. 
 
 false statements in, 42. 
 
 misrepresentation in, 42. 
 
 objects of, 41. 
 
 plans as to, 47. 
 
 points in, 41. I 
 
 preparation of, 41. 
 
 rescission, ground for, 42. 
 
 Parties, 
 
 capacity of, 5. 
 
 conveyance for benefit of persons 
 not, 130. 
 
 conveyance, to whom made, 130. 
 deeds, to, 127. I 
 
 disabilities of, 5. 
 disqualified, 5. 
 
 Partitions, 416. 
 
 Patient, 
 
 gifts by, 31. 
 sale by, 31. 
 
 Payment, 
 
 purchase-money, 167. 
 rent, covenant for, in mortgage, 
 600. 
 
 Pedigree, 
 
 falsification of, penalty for, 99. 
 proof of, 106. 
 
 Performance, specific, 89, 645. 
 
 See tinder Specific Performance. 
 
 Perpetuity rule, 
 
 application of, in wills, 473. 
 
 Personal chattels, within Bills of Sale 
 Acts, 269. 
 
 Personal property, settlement of, 380. 
 
 Personalty, settlement of, 380. 
 
 Persons non compos mentis, 8, 202, 299, 
 633, 643. And see under Lunatics. 
 
 Pin-money, how secured, 402. 
 
 Plant, bill of sale of, 271. 
 
 Poison, destruction of game by, 362. 
 Policies, 
 
 life, assignment of, 181. 
 
 notice of, 181. 
 mortgage of, 244. 
 premiums, payment of, by trustees, 
 399. 
 
 sale of, 181. 
 settlement of, 399. 
 
 Pool water, effect of conveyance of, 136. 
 Portions, children, for, 406. 
 
 Possession, 
 
 taking of, by purchaser, 72, 123. 
 taking, of goods under bill of sale, 
 291. 
 
 Possessory title, registration of, 577, 
 655. See under Registration of Title. 
 
 Post-nuptial settlements, 449. 
 
 Power, 
 
 disclaimer of, 514. 
 distress in mortgages, 238. 
 sale in mortgages, 223. 
 
INDEX. 
 
 691 
 
 Powers, 
 
 appendent, 527. 
 
 appointment, settlements in, 383. 
 appointments under, 526. See 
 under Appointments under 
 Powers. 
 
 attorney, of, deeds executed under, 
 
 102 . 
 
 collateral, 527. 
 contingent person, to, 528. 
 deeds executed under, 102. 
 defective, 531. 
 different kinds of, 526. 
 disclaimer of, 535. 
 excessive, 533. 
 general, 529. 
 illusory, 229. 
 infants, by, 527. 
 insurance, of, 532. 
 leases under, 302. 
 lunatics, by, 527. 
 married women, exercise of power 
 by, 527. 
 
 new trustee on appointment, 394. 
 perpetuity rule, application of, 528. 
 receivers, under mortgages, 230. 
 release of, 535. 
 
 remoter issue, in favour of, 529. 
 
 revocation of, 528. 
 
 sale, as to, 531. 
 
 sale by mortgagee, 228. 
 
 stamp duty on, 535. 
 special, 529. 
 
 trustees, settlements in, 387. 
 who can exercise, 527. 
 
 Powers of attorney, 
 
 deeds executed under, 102. 
 irrevocable, 103. 
 
 Premises, description of, in conveyances, 
 134. 
 
 Premiums, life policy, trustee’s powers 
 as to, 399. 
 
 Presumptions, doctrine of, between 
 vendor and purchaser, 109. 
 
 Priority, chose in action, assignees of, 
 
 179. 
 
 Private Acts of Parliament, 
 as conveyances, 103. 
 proof of, 103. 
 
 Private contracts for sale. 
 
 See under Contracts and Sales. 
 
 Proceedings, Court, proof of, 108. 
 
 Production, 
 deeds, 101. 
 expense of, 101. 
 place for, 101. 
 
 Prohibitions, registration of title, 624. 
 Property, vesting of, in trustee, 376. 
 Proviso, 
 
 redemption, for, of mortgages, 215. 
 re-entry, in leases, 338. 
 
 Puffer, employment of, at auctions, 57. 
 
 Purchase, 
 
 completion of, 165. See under 
 Completion of Purchase, 
 contract for, 33. See under Con- 
 tracts and Sales, 
 deeds, 
 
 execution of, 165. 
 form and contents of, 127. See 
 under Deeds, 
 infants, by, 5. 
 money, payment of, 167. 
 persons in fiduciary capacity, 26. 
 
 Purchase-money, 
 
 condition of sale as to, 58, 69. 
 deposit on, 58. 
 interest on, 70. 
 
 Lands Clauses Act, under, 197. 
 payment of, 167. 
 
 purchaser, on death of, 85. 
 
 Purchaser, 
 
 bankruptcy of, 85. 
 contract open, 56. 
 contract for sale, position of, after, 
 82. 
 
 covenants by, 146. 
 
 death of, 88. 1 
 
 disputes by, with vendor, 124. 
 
 expenses of producing deeds, 101. 
 
 goodwill, 182. 
 
 infants as, 7. 
 
 interest, liability for, 70. 
 
 lien of, 92. i 
 
 lunatic as, 8. 
 
 mortgagee, from, 219. 
 
 persons of unsound mind, 8. 
 
 policy of assurance, of, 181. 
 
 possession, when entitled to, 72, 123. 
 
 sub-purchaser, conveyance to, 128. 
 
 tenant for life as, 436. 
 
 tenant for life, from, 416. 
 
 Q. 
 
 Qualified title, land transfer, 573, 577. 
 
 Quiet enjoyment, 
 
 covenant for, 144. 
 
 in leases, 312, 347. 
 notice of, 349. 
 
 Y Y 2 
 
692 
 
 INDEX. 
 
 Quit, notice to, 357. 
 
 agricultural holdings, 357. 
 agricultural tenancies, 357. 
 expiration of, 365. 
 form of, 365. 
 how given, 366. 
 length of, 364. 
 monthly tenancy, 367. 
 quarterly tenancy, 367. 
 service of, 366. 
 weekly tenancy, 367. 
 withdrawal of, 366. 
 
 R. 
 
 Rabbits, provisions of Ground Game 
 Act, 360. 
 
 Rates, 312, 319, 323. 
 
 covenant to pay, 312, 319, 323. 
 deduction of, 321. 
 landlord’s, 326. 
 meaning of, 323. 
 tenant’s, 326. 
 
 tenant’s remedies for non-payment 
 of, 325. 
 
 Real Property Amendment Act, 
 deeds, as to parties to, 130. 
 
 “ grant,” 134. ; 
 
 Receipt, 
 
 clause, settlements, in, 392. 
 consideration money, for, 133. 
 indorsed, 133. 
 proof of, 78. 
 
 rent, production of, on sale, 78. 
 Receiver, 
 
 advantages of appointment of, 232. 
 appointment of, by mortgagee, 230, 
 602. 
 
 distress by, 231. 
 equitable mortgage, of, 251. 
 moneys received by, application of, 
 by, 231. 
 powers of, 230. 
 
 rates, &c., payment of, by, 231. 
 removal of, 231. 
 remuneration of, 231. 
 
 Recitals, 130. 
 
 deeds, in, when evidence, 131. 
 leases, in, 308. 
 proof by, 105. 
 releases, in, 516. 
 
 Reconveyance, 257. 
 costs of, 260. 
 form of, 258, 260. 
 leaseholds, 260. 
 mortgages, 257. 
 
 Reconveyance — continued . 
 
 parties to, after death of mort^ 
 gagee, 259. 
 personalty, 260. 
 stamps on, 262. 
 statutory, 260. 
 
 Rectification of register, land transfer, 
 645. See under Registration of Title. 
 
 Reddendum in lease, 311. 
 
 Redemption of mortgages, 215. 
 equity of, 215. 
 land tax, 107. 
 loss of right to, 218. 
 proviso for, 215. 
 tithes, 107. • 
 
 who entitled to, 216. 
 
 Re-entry, 
 
 conditions for, in leases, 338. 
 waiver of right to, 345. 
 
 Register counties, 
 
 registration of conveyances in, 188. 
 searches in, 161. 
 
 Registered titles, 555. 
 
 See under Registration of Title. 
 
 Registers, land registry, 560. 
 
 See under Registration of Title. 
 
 Registration, 
 
 annuities, 157, 194. 
 bankruptcy proceedings, 160. 
 bargains and sales, 194. 
 bills of sale, 285. 
 charge, 191. 
 charities, as to, 194. 
 conveyance to charities, 194. 
 county registers, 188. 
 deeds, 188, 195. 
 deeds of arrangement, 158. 
 disentailing deeds, 195. 
 judgments, 155. 
 
 land, 555. See under Registration 
 of Title. 
 
 land charges, 158. 
 land, orders affecting, 158. 
 lien, 191. 
 lis pendens, 156. 
 memorials, 188. 
 method of, 188. 
 
 Middlesex, in, 188. 
 rent-charges, 638. 
 requisitions as to, 102. 
 special cases of, 194. 
 stamp duty on, 193. 
 wills, 192. 
 writs, 158. 
 
 Yorkshire, in, 191, 571. 
 
INDEX. 
 
 693 
 
 Registration of title, 555. 
 
 absolute title, registration of, 565. 
 abstract for, 567. 
 advertisement for, 568. 
 application, entry of, 567. 
 declaration on, 622. 
 effect of registration with, 571. 
 fees for, 567. 
 form for, 566. 
 
 instruments to be disclosed on, 
 631. 
 
 objection to, 569. 
 title, examination of, 568. 
 abstract of title, when required, 
 567. 
 
 adverse possession, effect of, 583. 
 advertisement, as to, 568. 
 advertisements required on, 568. 
 advowsons, 638. 
 
 alteration of registered mortgage, 
 600.. 
 
 annuities, 609. 
 
 appeal from registrar, 624, 632. 
 applications pending, index, inspec- 
 tion of, 562. 
 
 area for, compulsory, 557. 
 assurances, registration of, 555. 
 bankruptcy of registered owner, 
 614. 
 
 official receiver, registration by, 
 614. 
 
 benefices, provisions as to, 644. 
 beneficial owners, by, 564. 
 bond, by cautioner, 624. 
 building society mortgages, 606. 
 
 discharge of, 607. 
 cautioner, notice to, 622. 
 cautions, as to, 621. 
 affidavit for, 622. 
 against entry on register, 627. 
 against registration, 621. 
 appeals, as to, 624. 
 bond, the, 624. 
 cautioner, procedure by, 621. 
 compensation for, 624, 629. 
 declaration for, 622. 
 effect of, 621. 
 expiry of, 624. 
 form of, 622. 
 inspection of, 629. 
 lodgment of, 629. 
 notices under, 622, 628. 
 penalty for improper, 628. 
 procedure as to, 621. 
 who may lodge, 621. 
 withdrawal of, 624, 628. 
 certificates, 
 
 charge, 635. 
 destruction of, 636. 
 form of, 634. 
 land, production of, 636. 
 land, form of, 634. 
 
 Registration of title — continued. 
 certificates — continued . 
 loss of, 636. 
 powers as to, 637. 
 preparation of, 635. 
 production of, 636. 
 purchaser’s right to, 636. 
 renewal of, 636. 
 result of search, 652. 
 charge, 
 
 certificate of, form of, 635. 
 completion of, 599. And see 
 under Mortgage, 
 registration of, 638. 
 evidence of, 599. 
 charges register, 561. 
 children, unborn, application to 
 Court as to, 634. 
 
 church lands, inhibitions for, 625. 
 common, rights of, 580. 
 company, liquidation of, 616. 
 compensation for improper caution, 
 624, 629. 
 
 completion of, 570. 
 compulsory registration, 653. 
 conditions annexed to land, 561. 
 conditions, restrictive, 642. 
 consolidation for, 598. 
 copyholds cannot be registered, 563. 
 copies for, 567. 
 costs of, 656. 
 costs, 
 
 registrar’s power as to, 558. 
 specific performance, 645. 
 covenants, implied, on transfer 
 registered leaseholds, 594. 
 title, for, 598. 
 criminal offences, 646. 
 
 Crown lands, 629. 
 curtesy, estates in, 621. 
 death of joint owner, 614. 
 party, 611. 
 proprietor, 611. 
 registration on, 611. 
 tenant for life, 612. 
 trustee in bankruptcy, 614. 
 declaration supporting caution, 622. 
 deeds, 
 
 production of, on, 631. 
 registration of, object of, 556. 
 declaration as to, 631. 
 deeds to be disclosed on registra- 
 tion, 631. 
 
 deposit, land certificate, 607. 
 
 notice of, 618. 
 disabilities, 633, 643. 
 discharge of incumbrances, 583. 
 discharge of mortgages, 607. 
 discovery of documents, 558, 647. 
 disputes, as to, 579. 
 district registries, 559. 
 
694 
 
 INDEX. 
 
 Registration of title — continued . 
 documents, 
 
 discovery of, 558, 647. 
 production of, 558. 
 doubtful questions on title, 633. 
 dower, estates in, 621. 
 easements, 579. 
 
 effect of registration with absolute 
 title, 571. 
 
 entry of application, 567. 
 entry, fraudulent, 646. 
 equitable mortgages, 607. 
 
 deposit of certificate for, 608. 
 discharge of, 609. 
 errors, as to, 647. 
 
 in register, indemnity for, 647. 
 estate duties, 582. 
 estates which can be registered, 563. 
 evidence of, 573, 579. 
 
 vendor’s title, on transfer, 584. 
 evidence of registration of free- 
 holds, 573. 
 
 evidence on registration of lease, 
 579. 
 
 evidence, registration of mortgage, 
 599. 
 
 examination of title, 568. 
 
 questions on, 633. 
 fee farm rents, 640. 
 fees on, 659. 
 fees, table of, 659. 
 fishing, rights of, 601. 
 flats, as to, 639. 
 floors, as to, 639. 
 foreclosure, as to, 601. 
 forms, 
 
 absolute title, for, 566. 
 application, of, 566. 
 charge, of, 596. 
 mortgage, 596. 
 transfer, 586. 
 transfer of charge, 604. 
 transfer of leaseholds, 592. 
 frauds, as to, 646. 
 fraudulent entries in register, 646. 
 freeholder, notice to, 578. 
 freeholds, 
 
 absolute title, registration of, 
 565. 
 
 absolute title, registration of, 
 form of, 566. 
 effect of transfer of, 590. 
 evidence of registration of, 573. 
 registration of, 565. 
 registration of, how to apply 
 for, 565. 
 
 registration of, who may apply 
 for, 564. 
 
 transfer of, how made, 586. 
 Gazette,, advertisement in, 568. 
 
 Registration of title — continued. 
 general provisions as to, 640. 
 guardian, appointment of, 643. 
 hereditaments, special, 638. 
 highways, repair of, 580. 
 history of, 555. 
 how to apply for, 565. 
 identity of property, 598. 
 idiots, applications to Court as to, 
 633. 
 
 provision as to, 643. 
 incumbents of benefices, 644. 
 incumbrances, 580. 
 discharge of, 583. 
 
 indemnity for errors in register, 
 647. 
 
 indexes, the, 561. 
 infants, as to, 643. 
 inhibitions, 625. 
 
 how obtained, 625. 
 inspection of register, 562, 651. 
 instruments to be disclosed on, 631. 
 insurance fund, 649. 
 interests capable of registration, 
 563. 
 
 interrogatories, as to, 647. 
 issues, trial of, 633. 
 joint owners, by, 565, 640. 
 joint proprietors, death of one, 614. 
 land below water-mark, 629. 
 land certificates, 573, 634. 
 land charges, 610. 
 land of different tenures, 630. 
 land registry, the, 558. 
 officers of, 558. 
 registrar, indemnity of, 559. 
 registrar, powers of, 558. 
 rule committee, 559. 
 land tax, liability as to, 580. 
 lease, 575. 
 
 absolute title, with, 575. 
 evidence of registration of, 579. 
 generally, 578. 
 how to apply for, 575. 
 land certificate, of, 634. 
 notice of, 618. 
 possessory title, 577. 
 qualified title, 577. 
 
 leasehold, title with, 576. 
 
 evidence of title required, 575. 
 
 leaseholds, 574. 
 
 beneficial owners, registration 
 by, 575. 
 
 how to register, 575. 
 land, meaning of, 593. 
 registration of, 562. 
 transfer of, effect of, 592. 
 transfer of, form of, 592. 
 transfer of, how made, 592. 
 
INDEX. 
 
 695 
 
 Registration of title— continued. 
 leaseholds — continued . 
 
 transfer of, implied covenants, 
 594. 
 
 what may be registered, 574. 
 who may apply for, 575. 
 leases, several, 578. 
 letters of administration, registra- 
 tion of, 611. 
 lis pendens, 621. 
 local registries, 650. 
 lunatics, as to, 633, 643. 
 manors, as to, 638. 
 maps, 562. 
 maps, as to, 562. 
 married women, as to, 633, 643. 
 meaning of, 555. 
 
 Middlesex, in, 571. 
 minerals, rights to, 639. 
 mines, as to, 639. 
 
 mortgagee, appointment of receiver 
 by, 602. 
 
 cutting and selling timber, 602. 
 foreclosure, right to, 601. 
 insurance by, 602. 
 leasing, power of, 602. 
 receiver, appointment of, 602. 
 rights of, 601. 
 sales by, 602. 
 taking possession by, 601. 
 transfers by, 602. 
 mortgages, 596. 
 
 alteration of, 600. 
 assignment of, 602. 
 building society, 606. 
 certificate of, 599, 634. 
 charge, certificate of, 599. 
 charge, completion of, 599. 
 completion of, 599. 
 consolidation of, 598, 605. 
 covenant, for payment of prin- 
 cipal and interest, 600. 
 covenant for title, 598. 
 disadvantages of, 602. 
 discharge of, 605, 609. 
 equitable, 607. 
 
 evidence of registration of, 599. 
 
 freeholds, 573. 
 fees on transfer, 605. 
 foreclosure of, 601. 
 form of, 596. 
 form of transfer, 604. 
 
 stamp on, 605. 
 how made, 595. 
 instrument of charge, 596. 
 leases under, 602. 
 mortgagee, powers of, 601. 
 mortgagee, rights of, 601. 
 payment off of, 605. 
 payment off, notice of, 605. 
 
 Registration of title — continued. 
 mortgages — continued. 
 priorities of, 604. 
 registered, alteration of, 600. 
 registration of a charge, by, 
 596. 
 
 registration of, evidence of, 
 599. 
 
 stipulations as to, 597. 
 tacking, 604. 
 title, covenant for, 598. 
 transfer of, form of, 604. 
 transfer, stamp on, 605. 
 mortgagor, implied covenants by, 
 600. 
 
 non-registration, penalty for, 654. 
 notices to applicant, of objections, 
 568. 
 
 cautioner, to, 628. 
 estates by curtesy, 621. 
 estates in dower, 621. 
 freeholder, to, 578. 
 generally, 644. 
 lease, of, 618. 
 marking deeds with, 632. 
 omission to send, 645. 
 service of, 644. 
 trusts, of, 640. 
 
 oath, administration of, by regis- 
 trar, 558. 
 object of, 556. 
 objections to, 569. 
 office copies of entries, 653. 
 official receiver, registration by, 
 614. 
 
 official searches, 652. 
 order, disobeyance of, penalty for, 
 632. 
 
 for registration, 619. 
 owners, part-, by, 631. 
 part-owners, by, 631. 
 penalty for disobeying order, 632. 
 penalty for non-registration, 654. 
 personal representatives, by, 612. 
 persons subject to disability, 643. 
 plans, alteration of, 562. 
 possessory title, registration with, 
 572, 577, 655^ 
 
 effect of registration with, 572. 
 procedure for, 572. 
 powers, trustees’, as to, 630. 
 priority for, 610. 
 probate, registration of, 611. 
 proceedings on and before, 630. 
 production of deeds on, 631. 
 prohibitions, 624. 
 
 property, what may be registered, 
 572. 
 
 protection of property, method of, 
 616. 
 
696 
 
 INDEX 
 
 Registration of title — continued . 
 provisions as to disputes, 579. 
 qualified title, 573, 577. 
 questions arising on title, 633. 
 receiver, appointment of, 602. 
 rectification of register, 645. 
 register, the, 560. 
 
 alterations in, 562. 
 caution against entry of land 
 on, 627. 
 charges, 561. 
 copies of, 653. 
 correction of, 562. 
 errors in, 562, 647. 
 fraudulent entries in, 646. 
 indemnity for errors in, 647. 
 indexes, 561. 
 inspection of, 562, 651. 
 local, 650. 
 map, the, 562. 
 office copies from, 653. 
 omissions in, 647. 
 ordnance map, 562. 
 private, 651. 
 property, 560. 
 proprietorship, 560. 
 rectification of, 645. 
 removal of land from, 650. 
 restrictions on, 625. 
 searches in, 651. 
 separate, 561. 
 
 registrar, appeal from, 624, 632. 
 indemnity of, 559. 
 powers of, 558. 
 title, examination by, 568. 
 registration, meaning of, 556. 
 registries, district, 559. 
 registries, local, 650. 
 registry fees, 567. 
 removal, land from register, 650. 
 remuneration for, 645, 656. 
 rent-charges, 638. 
 repairs, liability as to, 580. 
 restrictions by proprietor, 625. 
 restrictive conditions, 642. 
 
 removal of, 643. 
 rule committee, 559. 
 rules, 664. 
 searches, 651. 
 
 certificate of result of, 652. 
 official, 652. 
 telegraph, by, 652. 
 service, notices, 644. 
 settlement, trustees, by, 612. 
 several proprietors, 640. 
 shares, undivided, 640. 
 solicitor’s remuneration, 645, 656. 
 special hereditaments, 638. 
 specific performance, 645. 
 costs of, 645. 
 
 Registration of title — continued . 
 sporting rights, 580. 
 stamp on transfers, 588. 
 stamps, registrar’s duty as to, 641. 
 succession duty, liability as to, 582, 
 642. 
 
 summonses, under, 558. 
 telegraph, searches by, 652. 
 tenant for life, by, 565. 
 death of, 612. 
 registration by, 565. 
 tenures, different, 630. 
 timber, cutting and selling, 602. 
 tithes, 638. 
 title, 555. 
 
 absolute, registration of, 565. 
 abstract of, 96. 
 deeds, delivery of, 567. 
 doubtful questions on, 633. 
 evidence of vendor’s, 584. 
 examination of, 568. 
 examined by registrar, 568. 
 possessory registration of, 572. 
 qualified, 573. 
 questions arising on, 633. 
 registration of, 555. 
 transfers, 584. 
 
 completion of, 589. 
 effect of registration of, 590, 
 593. 
 
 execution of, 588. 
 form of, 586. 
 freeholds, 
 
 effect of, 590. 
 how made, 586. 
 land, 584. 
 
 land certificate on, 586. 
 leaseholds, 592. 
 
 effect of registration of, 
 593 
 
 form of, 592. 
 how made, 592. 
 implied covenants on, 594. 
 stamp on, 588. 
 voluntary, 591. 
 
 transmissions, by operation of law, 
 611. 
 
 bankruptcy, in, 614. 
 death, on, 611. 
 effect of, 616. 
 
 liquidation of company, 616. 
 trust, notice of, 617. 
 trustee, death of, 614. 
 trustee in bankruptcy, registration 
 by, 614. 
 
 trustees of settlement, by, 614. 
 powers as to, 630. 
 registration by, 614. 
 tunnels, as to, 639. 
 undivided shares, 640. 
 unregistered dealings, protection of, 
 616. 
 
INDEX 
 
 697 
 
 Registration of title — continued . 
 
 vendor’s title, of, evidence of, 584. 
 what property may be registered, 
 562. 
 
 Yorkshire, in, 571. 
 
 Registry Acts, 161. 
 
 conveyances excepted from, 193. 
 outline of, 161. 
 stamps, as to, 190 — 193. 
 
 Reimbursement clause, settlements, 393. 
 
 Relations, gifts to, by will, 504. 
 
 Release, 
 
 deeds of, 515. 
 
 executor’s right to, 515. 
 
 powers, 535. 
 
 recitals in, 516. 
 
 setting aside of, 515. 
 
 stamp on, 516. 
 
 trustee not entitled to, 515. 
 
 Religious bodies, sales to, 23, 30. 
 
 Remedies, breach of contract, for, 88. 
 
 Remuneration, 
 
 Act, decisions under, 547. 
 solicitors’. See under Costs. 
 
 Rent, fee farm, registration of, 640. 
 
 Rent-charges, registration of, 638. 
 
 Repair, 
 
 covenant for, 326. 
 damages for non-repair, 329. 
 habitable, 328. 
 landlord, by, 326. 
 mortgagee, by, 222. 
 remedy as to, 329. 
 tenantable, 328. 
 
 Requisitions on title, 101, 111. 
 acknowledged deeds, 104. 
 alterations, deeds, in, 101. 
 annuities, 111, 120. 
 attestation, as to, 101. 
 awards, inclosure, 104. 
 bankruptcy, as to, 120. 
 charges as to, 111. 
 conditions as to, time for making, 
 65. 
 
 copyholds, assurances, 104. 
 death duties, as to, 112. 
 defects in title, 120. 
 drains, as to, 119. 
 easements, as to, 120. 
 enrolled deeds, 104. 
 estate duty, as to, 117. 
 execution of deeds, 101. 
 
 Requisitions on title — continued. 
 general, 111. 
 gifts, as to, 111. 
 inclosure awards, 104. 
 increment value duty, 118. 
 incumbrances, as to, 120. 
 leases, 119. 
 legacies, 111. 
 
 legal estate, outstanding, 113. 
 lis pendens, 120. 
 local authorities, as to, 120. 
 marriage settlements, as to, 118. 
 notice as to, 120. 
 
 Public Health Act, as to, 120. 
 
 rent-charges, 111. 
 
 roads, as to, 119. 
 
 settlements, 118. 
 
 succession duties, as to, 112. 
 
 surrenders, 119. 
 
 time for, 65. 
 
 voluntary settlements, 118. 
 waiver of, 123. 
 
 And see under Abstract of 
 Title. 
 
 Re-registration, bills of sale, 289. 
 
 Restraint against anticipation, 
 
 married woman’s interest subject to, 
 11, 372. 
 
 Retirement of trustees, 397. 
 
 Reversioners, leases by, 304. 
 
 Reversion, sale of, 49. 
 
 Reversion duty, 370. 
 
 by whom payable, 371. 
 
 Revocation, 
 
 appointments under powers, 528. 
 clause of, in wills, 467, 479. 
 
 Rules, 
 
 land registry, 664. 
 
 Solicitors’ Remuneration Order, 
 537. 
 
 S. 
 
 Sale, conditions of, 48. 
 
 See under Conditions of Sale. 
 
 Sale, particulars of, 41. 
 
 See under Particulars of Sale. 
 
 Sales, 
 
 administrators, by, 27. 
 advowsons, 48, 638. 
 agents, by, 37. 
 aliens, by, 16. 
 bankruptcy of party, 84. 
 barrister., to, from client, 30. 
 
698 
 
 INDEX 
 
 Sales — continued . 
 business, 182. 
 charities, by and to, 20. 
 chattels, personal, 14. 
 choses in action, 177. 
 committee of lunatic, by, 9. 
 companies, by, 19. 
 conditions of, 48. See under Con- 
 ditions of Sale. 
 
 contacts for sale, 33. See under 
 Contracts, 
 convicts, 16. 
 co-owners, by, 144. 
 corporations, by, 17. 
 
 Crown, by, 144. 
 death of purchaser, 88. 
 death of vendor, 85. 
 executors, by, 27. 
 felons, by, 16. 
 
 fiduciary capacity, persons acting 
 in, 29. 
 
 guardian, by, 30. 
 idiots, by, 8. 
 infants, 5. 
 
 Lands Clauses Act, under, 196. 
 
 And see under Lands Clauses, 
 lunatics, by, 8. 
 
 married women, by, 10. And see 
 under Married Women, 
 medical man and patient, as to, 31. 
 minister, to, 30. 
 mortgagee, by, 34, 219. 
 mortgagor, by, 31. 
 parent and child, 30. 
 particulars of, 41. See under Par- 
 ticulars of Sale. 
 
 persons in fiduciary capacity, 26. 
 persons non compos mentis, 8. 
 purchaser, death of, 88. 
 receipt, production of, 78. 
 religious bodies, to, 23. 
 reversions, 49. 
 
 Settled Land Acts, 416. 
 solicitor and client, 31. 
 tenant for life, by, 416. 
 tenant for life, to, 436. 
 timber, by mortgagee, 233. 
 traitors and felons, 16. 
 trustees, by, 26. 
 universities, to, 23. 
 vendor, death of, 85. 
 ward, by, 30. 
 water, 136. 
 
 And see tinder Contract. 
 
 Satisfaction, 
 
 annuities, &c., 111. 
 bills of sale, 293. 
 
 Schools, conveyance for, 23. 
 
 Seal, deeds, to, 165. 
 
 Searches, 154. 
 
 acknowledged deeds, 163. 
 annuities, 157. 
 
 application for official searches, 
 164. 
 
 arrangement, deeds of, 158. 
 
 bankruptcy, 160. 
 
 bills of sale, 293. 
 
 certificate of result of, 164, 652. 
 
 county registers, 161. 
 
 court rolls, 163. 
 
 deeds of arrangement, 158. 
 
 disentailing deeds, 163. 
 
 land charges, 158. 
 
 land registry, 161. 
 
 lis pendens, 156. 
 
 Middlesex Registry, in, 161. 
 mode of searching, 163. 
 mortgagee selling, 155. 
 necessity for, 154. 
 official searches, 164. 
 orders affecting land, 158. 
 registration of title, for, 163. 
 requisition for, 164. 
 solicitor, when not liable for, 164. 
 special, 155. 
 
 title, registration of, 163. 
 trustee selling, 155. 
 usual, 155. 
 where made, 154. 
 writs, 158. 
 
 Yorkshire Registry, in, 162. 
 
 Second mortgages, 205, 246. 
 
 Securities for money, meaning of, 508. 
 
 Seisin, proof of, 105, 110. 
 
 Seizure of goods under bills of sale, 291. 
 
 Separate property, married women, con- 
 veyance of, 10. 
 
 Service, 
 
 notice to quit, 366. 
 notices by mortgagee, 225. 
 
 Settled Land Acts, 412. 
 
 appointment of trustees, 437. 
 building leases, as to, 419. 
 capital money, 425. 
 
 application of, 425. 
 investment of, 428. 
 list of investments for, 428. 
 what is, 425. 
 commissioners, 
 
 reports to, 434. 
 certificate of, 435. 
 contracts, tenant for life, by, 436. 
 conveyance, power to execute, 424. 
 copyholds, 425. 
 lease of, 422. 
 
INDEX. 
 
 699 
 
 Settled Land Acts — continued . 
 
 deeds, execution of, power as to, 
 424. 
 
 dedication of property for streets, 
 &c., 422. 
 
 definition of settled land, 413. 
 definition of tenant for life, 414. 
 definition of trustees, 415. 
 enfranchisements under, 417. 
 exchanges under, 416. 
 general provisions under, 441. 
 heirlooms, sale of, 423. 
 improvements, 431. 
 
 raising money for, 435. 
 incumbrances, shifting of, 417. 
 infants, as to, 445. 
 investments, list of, 428. 
 leases under, 418. 
 building, 419. 
 copyholds, 422. 
 mining, 420. 
 
 option to purchase in, 420. 
 renewal of, 418. 
 surrender of, 421. 
 under, 303, 418. 
 leasing, powers of, 418. 
 lessee, option of purchase to, 420. 
 limited owners, 444. 
 
 who are, 444. 
 list of investments, 426. 
 lunatics, as to, 446. 
 married women, as to, 446. 
 minerals, reservation of, 420. 
 mines, as to, 420. 
 mining leases, 420. 
 mortgage, notice of intention to, 
 439. 
 
 mortgages, powers as to, 423. 
 notice, waiver of, 439. 
 objects of, 412. 
 
 open spaces, dedication of property 
 for, 422. 
 partitions, 416. 
 power of sale, 416. 
 powers, exercise of, 416. 
 purchase-money, dealing with, 416- 
 purchase, option of, in lease, 420. 
 sale, power of, 416. 
 sales under, 416. 
 settled land, definition of, 414. 
 settlement, meaning of, 413. 
 settlement upon trust for sale, 447. 
 several owners, sales by, 418. 
 streets, dedication of property for, 
 422. 
 
 surrender of leases, 421, 
 tenant for life, 
 
 contracts by, 436. 
 dealings by, with estate, 436. 
 definition of, 414. 
 leases by, 303. 
 
 Settled Land Acts — continued. 
 tenant for life — continued. 
 mortgages by, 423. 
 powers of, 415. 
 sales by, 417. 
 sales to, 436. 
 
 timber, cutting and selling, 
 423. 
 
 waste by, 435. 
 
 who is, 414. And see under 
 Tenant for Life, 
 timber, 
 
 cutting of, 423. 
 sale of, 423. 
 trustees, 
 
 appointment of, 437. 
 definition of, 415. 
 number of, 437. 
 protection of, 438. 
 receipts by, 438. 
 re-imbursement of, 438. 
 who are, 415. 
 trustees’ provisions, 437. 
 waiver of notice, 439. 
 waste, as to, 405, 435. 
 
 Settlements, 372. 
 
 accumulation clause, 386. 
 advancement clause, 385. 
 after-acquired property, 377. 
 agreement for, 376. 
 ante-nuptial, 449. 
 appointment, new trustees, 394. 
 appointment, power of, for second 
 husband, 385. 
 avoidance of, 449. 
 building leases, 419. 
 capacity of parties to, 373. 
 capital, investment of, 428. 
 capital moneys, 425. 
 
 improvements with, 431. 
 chattels, 411. 
 children, 
 
 advances for, 385. 
 portions for, 406. 
 claims, 
 
 compounding of, 393. 
 settlement of, 393. 
 consideration for, 449. 
 construction of, 452. 
 contract for, 376. 
 contracts, tenant for life, by, 436. 
 conveyances, power to execute, 424. 
 copyholds, leases of, 422. 
 costs of, 456. 
 covenants for title, 379. 
 covenant to settle after-acquired 
 property, 377. 
 creditors, to defeat, 449. 
 custody of deeds, 405. 
 date of, 380. 
 
700 
 
 INDEX. 
 
 Settlements — continued ' . 
 daughters, as to, 410. 
 death of husband, 382, 409. 
 death of wife, 382. 
 deeds, custody of, 405. 
 deeds, power to execute, 424. 
 definition of, 413. 
 die without having been married, 
 meaning of, 384. 
 enfranchisements, 416. 
 forms of, 380. 
 fraudulent, 449. 
 heirlooms, sale of, 423. 
 hotchpot clause, 383, 407. 
 husband, 
 
 bankruptcy of, 382. 
 covenants by, 379. 
 death of, 382, 409. 
 improvements, 431. 
 income, 
 
 accumulation of, 411. 
 how treated, 429. 
 indemnity clauses, 393. 
 infants, by, 373. 
 introductory, 372. 
 investigating title of settlor, 376. 
 investment clauses, 387. 
 investments, 387. 
 
 trusts for, variation of, 391. 
 issue, default of, 384. 
 jointure clause, 405. 
 leaseholds, 410. 
 leases, 
 
 building, 419. 
 copyhold property, 422. 
 mining, 420. 
 
 option to purchase, in, 420. 
 powers as to, 418, 422. 
 surrender of, 421. 
 leasing, power of, 418, 422. 
 life estate of settlor, 404. 
 life policy, 399. 
 limitations of strict, 402. 
 maintenance clause, 386. 
 marriage, 372. 
 marriage, on, 449. 
 
 Married Women’s Property Acts, 
 effect of, 372. 
 meaning of, 372. 
 minerals, 420, 422. 
 
 reservation of, 420. > 
 
 mines, as to, 405, 420. 
 mining leases, 420. 
 mortgages, 423. 
 
 foreclosure of, 430. i 
 
 options to purchase, 420. 
 object of, 372. 
 on trust for sale, 400. 
 open spaces, dedication for, 422. 
 parents, advances for, 385. 
 parties to, 380. 
 partitions, 416. 
 
 ! Settlements — continued. 
 
 personalty, form of, 380. 
 pin-money, as to, 402. 
 policy, of, 399. 
 portion term, trusts of, 407. 
 portions, 
 
 division of, 406. 
 lapsing of, 409. 
 
 portions for younger children, 406. 
 post-nuptial, 449. 
 power of appointment, 383. 
 powers in, 443. 
 preparation of, 376. 
 property, after-acquired, 377. 
 property, transfer of, to trustees, 
 376. 
 
 purchase, option to, 420. 
 realty, 400. 
 receipt clause, 392. 
 recitals in, 380. 
 re-imbursement clauses, 393. 
 rent-charges, 403. 
 repairs, as to, 405. 
 retirement of trustees, 397. 
 revocation of, 453. 
 sale of heirlooms, 423. 
 sale, power of, 416. 
 sales by tenant for life, 447. 
 sales by trustees, 448. 
 sales under, 416, 447. 
 settled land, 
 
 definition of, 413. 
 meaning of, 414. 
 
 Settled Land Acts, object of, 412. 
 settlor, investigating title of, 376. 
 sham, 449. 
 
 solicitor’s duty as to, 453. 
 solicitor trustee, 394. 
 sons, younger, who are, 408. 
 stamps on, 454. 
 strangers, on, 449. 
 streets, dedication for, 422. 
 strict, 400. And see under Tenant 
 for Life and Settled Land Acts, 
 strict form of, 401. 
 surrender of leases, 421. 
 tenant for life, 
 
 contracts by, 436. 
 definition of, 414. 
 disabilities of, 445. 
 infant, 445. 
 
 limited owners having powers 
 of, 444. 
 lunatic, 446. 
 married woman, 446. 
 powers of, 415. 
 sales by, 447. 
 who is, 414. 
 
 term of years, object of, 401. 
 timber, as to, 423. 
 title, covenants for, 379. 
 title deeds, custody of, 405. 
 
INDEX. 
 
 701 
 
 Settlements — continued . 
 
 transfer of property under, 376. 
 trust for sale, 400, 447. 
 trustee, 
 
 a solicitor, 394. 
 appointment of, by Court, 437. 
 appointment of new, 394. 
 death of, 396. 
 
 new, appointment of, 394. 
 solicitor, 394. 
 trustee clauses, 387. 
 trustees, decrease in number of, 396. 
 trustees, definition of, 415. 
 trustees, different sets of, 395. 
 trustees, discretion of, 391. 
 trustees, increasing number of, 395. 
 trustees, new, powers of, 396. 
 trustees, number of, 437. 
 trustees, receipts of, 438. 
 trustees, retirement of, 397. 
 trustees, separate sets of, 395. 
 trustees, transfer of property to, 
 376. 
 
 trustees, vesting property in, 376. 
 trustees, who are, under Settled 
 Land Acts, 415. 
 
 trusts for sale, settlement upon, 447 . 
 
 trusts of, 381. 
 
 usual trusts of, 381. 
 
 vesting property in trustees, 376. 
 
 void, 374. 
 
 voidable, 374. 
 
 voluntary, 118, 449. And see under 
 Voluntary Settlements, 
 waste, as to, 405. 
 what are, 413. 
 
 wife, covenant by, to settle pro- 
 perty, 379. 
 wife, death of, 382. 
 younger children, portions for, 406. 
 younger sons, who are, 408. 
 
 Sewers rate, liability of tenant for, 323. 
 Shares, 
 
 meaning of, in will, 510. 
 vesting of, in new trustees, 399. 
 
 Signature, 
 
 bills of sale, 273. 
 contracts, 36, 59. 
 deeds, 165. 
 wills, 462. 
 
 Solicitors, 
 
 abstracts, duty as to, 100. 
 attestation of bill of sale by, 273. 
 costs of, as trustee, 394. 
 costs of, for conveyancing, 536. 
 duty of, as to voluntary settlement, 
 453. 
 
 Solicitors — continued. 
 
 liability of, as to searches, 154. 
 notice to, 122. 
 purchases and sales by, 31. 
 sales to, by himself, 31. 
 
 Solicitors’ Remuneration Acts, 
 decisions under, 547. 
 outline of, 536. 
 
 Special conditions of sale, 76. See under 
 Conditions of Sale and Requisitions. 
 
 Special searches, 155. See under 
 Searches. 
 
 Specific legacies, 464. 
 
 Specific performance, 89, 645. 
 
 costs of, on registered titles, 645. 
 damages in lieu of, 90. 
 defences to action for, 91. 
 discretion of Court as to, 90. 
 remedy by, 89. 
 
 Spencer’ s case , 318. 
 
 Spring traps, use of, 353. 
 
 Stamps, 183. 
 
 acknowledgment and undertaking 
 as to deeds, 186. 
 appointments, on, 535. 
 assignment, 262. 
 bill of sale, 296. 
 bonds, on, 261. 
 
 building society mortgage, 262. 
 consideration, the, 132. 
 consideration under 500/., 185. 
 contracts for sale, 94, 185. 
 conveyances, 185. 
 conveyance to sub-purchaser, 185. 
 copyholds, sale of, 186. 
 debentures, on, 261. 
 declaration on appointment, new 
 trustees, 456. 
 denoting, 186. 
 disclaimers, 515. 
 disentailing assurances, 521. 
 duties, rates of, 183. 
 exemptions from, 262. 
 
 Land Registry, in, 190. 
 leases, 367. 
 
 memorials, on, 190, 193. 
 mortgages, 261. 
 penalties, as to, 133. 
 purchaser, risks of, as to, 102. 
 re-conveyance, on, 362. 
 releases, 262. 
 renunciation, on, 262. 
 re-surrender, on, 262. 
 
702 
 
 INDEX. 
 
 Stamps — continued. 
 
 sale of stocks, on, 185. 
 settlements, 454. 
 surrenders, on, 262. 
 transfer of mortgage, 262. 
 transfers, on, 185, 588. 
 undertakings, on, 186. 
 vesting orders, 456. 
 voluntary conveyance, 184. 
 warrant of attorney, on, 261. 
 warrant to vacate, on, 262. 
 Yorkshire Registry, in, 193. 
 
 Statute of Frauds. See under Frauds. 
 
 Statutory mortgages, 245. 
 form of, 246. 
 
 transfers of mortgages, 256. 
 
 Stock, assignment of, 181. 
 
 Stocks and shares, vesting of, in new 
 trustees, 399. 
 
 Stop orders, 180. 
 
 Streets, dedication by tenant for life, 
 422. 
 
 Strict settlements, 400. 
 
 Sub-purchaser, conveyance to, 128. 
 
 Succession duty, 107, 112. 
 
 payable by charities, 113. 
 rates of, 113. 
 when payable, 115. 
 
 Successor, who is, 113. 
 
 Suggestio falsi, ground for setting aside 
 sale, 42. 
 
 Snppressio veri, when misrepresenta- 
 tion, 43. 
 
 Supreme Court, proof of proceedings in, 
 108. 
 
 Surplus lands, disposal of, under Lands 
 Clauses Acts, 199. 
 
 Surrender, 
 
 copyholds, 175. 
 leases, 362. 
 
 Surveyor, 
 
 choice of, by trustees, 207. 
 employment of, by solicitor, 548. 
 
 Survivor, meaning of, in will, 510. 
 
 T. 
 
 Tacking, <247. 
 
 doctrine of, 247. 
 
 judgment cannot be tacked, 248. 
 
 mortgages, 247. 
 
 restrictions as to, 248. 
 
 right to, 247. 
 
 Taxes, 312, 319, 323. See under Rates. 
 
 Tenant at sufferance, 304. 
 at will, leases by, 304. 
 
 Tenant for life, 
 
 building leases, by, 419. 
 capital money, 425. 
 contracts by, 436. 
 conveyances by, 424. 
 copyholds, as to, 425. 
 dealings of, 436. 
 deeds, execution of, by, 424. 
 definition of, 414. 
 disabilities of, 445. 
 forfeiture, as to, 442. 
 heirlooms, sale of, 423. 
 improvements by, 434. 
 improvements, raising money for, 
 435. 
 
 infant, 445. 
 
 investments, as to, 426. 
 land in trust for sale, 447. 
 lease, surrender of, 418, 421. 
 leases by, 303, 418, 422. 
 limited owners having powers of, 
 444. 
 
 lunatic, 446. 
 married woman, 446. 
 mines, as to, 420. 
 mining leases, as to, 420. 
 mortgages by, 423. 
 powers of, 416. 
 sale, power of, 416. 
 sales by, 416. 
 sales to, 436. 
 
 settlement, powers in, 443. 
 streets, as to, 422. 
 timber, cutting and sale of, 423. 
 trustee for all parties, is, 442. 
 waste bjr, 435. 
 who is, 414. 
 
 And see under Settled Land Acts. 
 
 Tenant for years, 
 leases by, 304. 
 repairs, liability of, for, 313. 
 when within Settled Land Act, 444. 
 
 Tenant in fee simple, 444. 
 
INDEX. 
 
 703 
 
 Tenant in tail, after possibility of issue, 
 <fec., 444. 
 
 Tenantable repair, meaning of, 328. 
 Tenants, 
 
 compensation for, 355. 
 copyholds, admittance to, 174. 
 covenant to repair by, 326. 
 fixtures, contract for sale of, 34. 
 game, right to, 360. 
 mortgaged property, 235. 
 
 And see tender Covenants; Leases. 
 
 Tenants in common, 
 
 gifts to persons, by will, 503. 
 how far mortgagees are, 213. 
 Settled Land Act, under, 414. 
 
 Tender of conveyance before action, 90. 
 
 Tenement, meaning of, 136. 
 
 Term of lease, provisions as to, 310. 
 
 Terms of years, 
 
 object of, in strict settlements, 405. 
 See under Satisfied Terms. 
 
 Third mortgages, tacking of, 247. 
 
 Timber, 
 
 cutting, by mortgagee, 233. 
 
 by tenant for life, 423. 
 growing, sale of, 34. 
 sale of, 34. 
 
 by mortgagee, 233. 
 
 Time, 
 
 contract, breach of, to sue for, 91. 
 
 when essence of, 67. 
 requisitions, for, 67. 
 
 Tithes, 48. 
 
 Act, 1891... 323. 
 
 Commissioners, 107. 
 free, proof of, 107. 
 redemption of, evidence of, 79. 
 
 Title, 
 
 abortive investigation of, costs of, 
 209. 
 
 defects in, 120. 
 observations on, 111. 
 registration of, 555. See under 
 Registration of Title, 
 requisitions on, 111. 
 
 See under Requisitions on Title, 
 verification of, 101. 
 
 Title deeds, 
 
 absence of, how far notice of charge, 
 
 120 . 
 
 acknowledgment and undertaking 
 as to, 170. 
 deposit of, 249. 
 
 memorandum of deposit of, 249. 
 production of, 100. 
 expense of, 101. 
 place for, 101. 
 
 Trade, 
 
 carrying on of, by executor, 475. 
 meaning of, 335. 
 
 Trade fixtures, removal of, 356. 
 
 Trade machinery, bill of sale of, 270. 
 
 Traitors, 
 
 sales by, 16. 
 wills of, 459. 
 
 Transfer, 
 
 bills of sale, 289. 
 fees on, 589. 
 
 mortgagor’s right to, 253. 
 powers conferred by Settled Land 
 Act, 415. 
 stamps on, 588. 
 
 Transfer of land, 555. See undei' Regis- 
 tration of Title. 
 
 Transfers, 
 
 copyholds, of, 256. 
 costs of, 257. 
 mortgages, 253. 
 
 mortgagor, concurrence of, 255. 
 parties to, after death of mortgagee, 
 256. 
 
 statutory, 256. 
 
 Treat, notice to, under Lands Clauses 
 Act, 197. 
 
 Trust property, devise of, 491. 
 Trustees, 
 
 acknowledgment, &c. as to title 
 deeds, 170. 
 advances by, 203. 
 appointment of, 394. 
 by the Court, 437. 
 for purposes of Settled Land 
 Act, 437. 
 new, 394. 
 
 arbitration, submission to, by, 393. 
 borrowing powers to, 203. 
 capital money, receipt for, 438. 
 claims, settlement of, 393. 
 completion of purchase by, 168. 
 compounding claims by, 393. 
 concurrence of, on sale, 129. 
 
704 
 
 INDEX. 
 
 Trustees — continued . 
 
 concurrence of, to conveyance, 129. 
 conditions of sale by, 28. 
 conversion of wasting property by, 
 476. 
 
 conveyance by, 141. 
 covenant by, as vendor, 141. 
 decrease of, 396. 
 death of, 613. 
 
 before testator, 396. 
 deeds, undertaking as to, 170. 
 devise to, passes fee, 488. 
 disclaimer by, 513. 
 discretion of, 391. 
 dying before testator, 396. 
 how far vendor is, for purchaser, 
 82. 
 
 increase in number of, 395. 
 indemnity clause, 393. 
 investments by, 387. 
 land, advances on, 203. 
 leases by, 301. 
 life policy, of, 399. 
 management, powers of, 411. 
 mortgages to and by, 203. 
 new, appointment of, 394. 
 new, vesting property in, 398. 
 notices to, 179, 438. 
 number of, 437. 
 payment of money, 168. 
 policy, settlement of, 399. 
 powers of borrowing, 203. 
 powers of new, 396. 
 powers of sale, 447. 
 powers to appoint new, 397. 
 powers to compound claims, 393. 
 property vesting in, 376, 398. 
 protection of, 438. 
 provisions as to, 437. 
 purchases by, 29. 
 receipts by, 392, 438. 
 reimbursement of, 393, 438. 
 release, are not entitled to, 515. 
 retirement of, 397. 
 sales by, 26, 448. 
 sales to, 29. 
 separate sets of, 395. 
 
 Settled Land Acts, 415. 
 
 settlement of life policy, 399. 
 
 settlements, 387. 
 
 solicitor, 394. 
 
 statutory powers of, 437. 
 
 strict settlements, 402. 
 
 tenant for life is, when selling, &c. 
 
 under Settled Land Act, 437. 
 vesting property in, 376, 398. 
 wasting property, duty as to, 476. 
 
 Trusts, 
 
 outline of a strict settlement, 401. 
 settlement of personalty, 381. 
 
 U. 
 
 Ultimate trusts, settlements of per- 
 sonalty, 383. 
 
 Underlease, 
 
 conditions on grant or sale of, 51. 
 mortgage by, 241. 
 
 Underlessee, liability of, as to covenants 
 in head lease, 318. 
 
 Underletting, covenant against, 331. 
 
 Undertaking, 
 
 safe custody of deeds, for, 170. 
 stamp on, 186. 
 
 Undisposed-of residue, under will, 478. 
 Unmarried, meaning of, 384. 
 Unstamped deeds, condition as to, 65. 
 
 V. 
 
 Vendor, 
 
 bankruptcy of, 84. 
 bidding by, 57. 
 covenants by, 141. 
 death of, 85. 
 
 deeds, production of, 100. 
 
 expense of, 101. 
 disputes with purchaser, 124. 
 expense of producing deeds, as to, 
 101. 
 
 goodwill, position of, 182. 
 lien of, 92. 
 
 obligations of, under open contract, 
 48. 
 
 position of, after contract, 82. 
 retainer of title deeds by, 169. 
 
 Vendor and purchaser, 48. 
 disputes between, 124. 
 leases, sale of, 50. 
 open contract, as to, 48. 
 
 Verification of title, 101. See under 
 Abstract of Title and Eequisitions on 
 Title. 
 
 Vested legacies, 494. 
 
 V esting, 
 
 order, stamp on, 456. 
 property in new trustees, 398. 
 property in trustees of a settlement, 
 376. 
 
INDEX 
 
 705 
 
 Voluntary settlements, 118, 449. 
 agreements for, 453. 
 avoidance of, 449. 
 consideration for, 449. 
 costs of, 456. 
 married women’s, 372. 
 
 requisitions as to, 118. 
 stamps on, 454. 
 
 And see under Settlements. 
 
 W. 
 
 Waiver, 
 
 objections to title, 123. 
 right of re-entry, 345. 
 
 Ward, 
 
 gift to guardian by, 30. 
 sale to guardian by, 30. 
 
 Waste, liability of tenant for, 404. 
 
 Wasting property, executor’s duty as to, 
 476. 
 
 Water, conveyance of, 136. 
 
 Wife, 
 
 death of, effect of, on settlement, 
 
 382. 
 
 gifts to, by will, 501. 
 
 meaning of, 501. 
 trusts for, in settlement of, 381. 
 ultimate trust of, in settlements, 
 
 383. 
 
 Wills, 457. 
 
 accumulation of income, 473. 
 acknowledgment of, signature to, 
 462. 
 
 advancement for children, 472. 
 ademption of legacy, 464. 
 alienation, 
 
 condition in restraint of, 498, 
 meaning of, 498. 
 aliens, of, 459. 
 
 alterations after execution, 463. 
 ambiguities in, 481. 
 
 “ and,” construction of, 512. 
 annuities, 500. 
 
 appointment of executors, 467. 
 appointment of guardians, 468. 
 appointment to children, 471. 
 attestation of, 462. 
 bankruptcy, as to, 499. 
 bequest, lapse of, 485. 
 bequest of legacies, 470. 
 
 British subjects abroad, 460. 
 business, carrying on of, by execu- 
 tor, 475. 
 
 capacity of parties, 457. 
 change of domicil, 461. 
 charge on land, 49 5. 
 
 Wills — continued . 
 
 charging debts on roalty, 469. 
 chattels, meaning of, 490, 501. 
 children, 
 
 advancement for, 472. 
 appointments to, 471. 
 death of, 473. 
 gifts to, 489, 501. 
 illegitimate, gifts to, 501. 
 provisions for, 501. 
 class, rules for ascertaining, 493. 
 clause of revocation, 467. 
 conditions in, 496. 
 construction of, 479. 
 contents of, 467. 
 copyholds, as to, 477. 
 costs of, 546. 
 cousins, legacy to, 504. 
 creditors, legacy to, 492. 
 date from which it takes effect, 483. 
 date of, 478. 
 
 date of operation of, 483. 
 debts, 
 
 charge of, on realty, 469. 
 direction to pay, 469. 
 trusts for payment of, 470. 
 devise, general, effect of, 485. 
 devise, lapse of, 485. 
 devise to trustee, construction of, 
 488. 
 
 devise without words of limitation, 
 487. 
 
 die unmarried, meaning of, 511. 
 die without issue, meaning of, 487. 
 direction to pay debts, 469. 
 domicile, change of, 461. 
 effects, meaning of, 508. 
 estate, meaning of, 507. 
 evidence as to, 481. 
 execution, alterations after, 463. 
 execution of, 462, 479. 
 executors, appointment of, 467. 
 executors, duties of, 475. 
 
 wasting property, as to, 476. 
 executors, gifts to, 506. 
 executors, leases by, 302. 
 executors, position of, as to residue, 
 478. 
 
 executors, who may be, 468. And 
 see under Executors, 
 family, gifts to, 505. 
 family, meaning of, 505. 
 family, provisions for, 471. 
 felons, of, 459. 
 
 “ foot or end,” meaning of, 461. 
 form of, 460. 
 
 fund, income of, gift of, 508. 
 furniture, meaning of, 509. 
 futurity, effect of words of, 493. 
 general devise, what it includes, 
 485. 
 
 <4. — C. 
 
 Z Z 
 
INDEX. 
 
 706 
 
 Wills — continued . 
 
 general legacies, 461. 
 gifts, 
 
 children, to, 489, 501. 
 
 children, illegitimate, to, 501. 
 
 condition, on, 496. 
 
 contingent, 494. 
 
 cousins, to, 504. 
 
 creditors, to, 492. 
 
 executors, to, 506. 
 
 family, to a, 505. 
 
 generally, 470. 
 
 grandchildren, to, 504. 
 
 heirs, to, 505. 
 
 husband, to, 501. 
 
 in restraint of marriage, 496. 
 
 issue, to, 489, 504. 
 
 land, 494. 
 
 lapse, as to, 472. 
 
 lapse of, when none, 489. 
 
 legal representatives, to, 506. 
 
 nephews, to, 503. 
 
 next of kin, to, 506. 
 
 4 nieces, to, 503. 
 
 over, provisions as to, 473. 
 powers under, 490. 
 relations, to, 504. 
 residue of, 510. 
 tenants in common, to, 503. 
 upon condition, 496. 
 vested, 494. 
 
 when vested or contingent, 494. 
 wife, to, 501. 
 
 goods, chattels, or effects, meaning 
 of, 509. 
 
 grandchildren, gifts to, 504. 
 guardians, appointment of, 468. 
 heirs, gifts to, 505. 
 hotchpot, as to, 471. 
 house, meaning of, 135. 
 household effects, meaning of, 509. 
 household goods, meaning of, 509. 
 Howe v. Dartmouth rule, 476. 
 husband, gifts to, 501. 
 illegitimate children, 501. 
 
 “ in his presence,” meaning of, 462. 
 income, accumulation of, 473. 
 income of a fund, meaning of, 508. 
 inconsistent clauses in, 482. 
 infants, 457. 
 interlineations in, 463. 
 issue, gifts to, 489, 504. 
 issue, provision for, 473. 
 land, charge of legacy on, 495. 
 lands in Yorkshire, registration of, 
 192. 
 
 lapse, provisions to prevent, 472. 
 lapsing of devises, 485. 
 leases under, 464. 
 
 Wills — continued . 
 
 legacies, 464, 470. 
 
 ademption of, 466. 
 bankruptcy, effect of, 499. 
 bequest of, 470. 
 children, to, 489, 501. 
 grand, to, 504. 
 illegitimate, to, 501. 
 condition, upon, 496. 
 contingent, 494. 
 cousins, to, 504. 
 creditors, to, 492. 
 demonstrative, 464. 
 executors, to, 506. 
 generally, 470. 
 grandchildren, to, 504. 
 heirs, to, 505. 
 husband, to, 501. 
 land, of, 494. 
 lapse of, 472. 
 lapse of, when none, 489. 
 legal representatives, to, 506. 
 nephews, to, 503. 
 next of kin, to, 506. 
 nieces, to, 503. 
 relations, to, 504. 
 residue of, 510. 
 specific, 464. 
 
 tenants in common, to, 503. 
 various kinds of, 464. And see 
 under Legacies, 
 vested, 494. 
 wife, to, 501. 
 
 legal representatives, gifts to, 506. 
 limitation, devise without words of, 
 487. 
 
 lunatics, 458. 
 
 married women, 458. 
 
 meaning of “in his presence,” 462. 
 
 mistakes in, 482. 
 
 money, meaning of 508. 
 
 nephews, gifts to, 503. 
 
 next of kin, gifts to, 506. 
 
 nieces, gifts to, 503. 
 
 obliterations in, 463. 
 
 operation of, date of, 483. 
 
 “or,” construction of, 512. 
 other or others, meaning of, 510. 
 parties, capacity of, 457. 
 perpetuity rule, 473. 
 persons unborn, provision as to,. 
 473. 
 
 phrases, meaning of, 501. 
 powers, gifts under, 490. 
 property, wasting, 476. 
 provision for testator’s family, 471. 
 ready money, meaning of, 508. 
 realty, charge of debts on, 469. 
 registration of, 191. 
 
INDEX. 
 
 707 
 
 Wills- -continued. 
 
 relations, gifts to, 504. 
 representative, meaning of, 506. 
 residue, meaning of, 510. 
 residue, undisposed of, 478. 
 revival of, 479. 
 revocation of, 467, 479. 
 rules for construction, 480. 
 Saunders and Vautier rule, 474. 
 securities for money, meaning of, 
 508. 
 
 shares, meaning of, 510. 
 signature to, 462. 
 
 acknowledgment of, 462. 
 attestation of, 462. 
 solicitor, duty of, 471. 
 specific legacy, 464. 
 stepchildren, as to, 503. 
 survivor, meaning of, 510. 
 tenants in common, gifts to, 503. 
 test of validity of, 460. 
 testator, signature of, 461, 479. 
 testator’s family, provisions for, 
 471. 
 
 trade, carrying on of, by executor, 
 475. 
 
 traitors, of, 459. 
 trustees, devise to, 488. 
 trustees, position of, as to residue, 
 478. 
 
 unborn persons, provision for, 473. 
 undisposed of residue, 478. 
 validity of, test of, 460. 
 wasting property, executor’s duty 
 as to, 476. 
 
 Wills — continued. 
 
 wife, gift to, 501. 
 
 Wild’s case, rule in, 491. 
 witnesses to, 479. 
 words, meaning of, 501. 
 
 Witnesses, 
 
 bills of sale, 273. 
 deeds, 165. 
 wills, to, 479. 
 
 Women, married, 
 
 past child-bearing, proof of, 110. 
 sales, by, 10. 
 wills of, 458. 
 
 And see under Married Women. 
 
 Working classes’ dwellings, conveyances 
 for, 19, 24. 
 
 Worship, places of, conveyances for, 23. 
 Writs affecting land, 158. 
 
 Y. 
 
 Years, tenants for, leases by, 304. 
 
 Yorkshire Registry, 
 caveats in, 192. 
 fees in, 193. 
 
 registration in, 191, 571. 
 searches in, 162, 164. 
 stamps, 193. 
 wills, 192. 
 
 LONDON: PRINTED BY C. F. ROWORTH, 88, FETTER LANE, E.C.