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MANUAL

EaUITY

JUEISPRUDENCE
FOB

PKACTITIONERS

STUDENTS,

AND

FOUNDED

STORY

ON

THE

OTHER

AND

WRITERS,

COMPRISING

THE

PRINCIPLES

FUNDAMENTAL
AND

THE

POINTS
"USTJALLT

OP

WOBKS

OCCUEEING

OF

EQUITY

IN

GENEEAL

PEACTICE.

BY

JOSIAH
OF

AUTHOR

"a

SMITH,

W.

COMPENDIUM

OF

"a

THE

manual

lAW

of

OF

AUTHOR

OF

LAW

REPRESENTATIVES,"
PETITIONS,"

INN,

"THE

BARRISTER-AT-LAW,

LAW

"forensic

"THE

FACTS

119

AND
"

120,

LAW
PRACTICE

AND

LONDON

STEVENS

PROPERTY,'

PERSONAL

etc.

WILLIAMS

ACCOUNT,"

OF

AND

law,"

EDITION

E.

LINCOLN'S

OF

"THE

BP:dL

common

FIFTEENTH

SYDNEY

B.C.L., Q.C.,

AND

RELATING

TO

RELATING

FALLACIES,"

ETC.

SONS,
CHANCERY

1900.

LIMITED,
LANE.

LEQXL
TO

^lozni

"
CO.

AGNEW,

BRADBDRV,

LONDON

AND

TONBRIDGE.

LD.,

PRINTERS,

PEEFACE

THE

Since

FIFTEENTH

the

date

Act,

Partnership
Act,

1891

the

Conveyances
and

1894

been

been

decided

the

Judicial

and

Voluntary

Trustee

Acts,

Act,
with

1897,

1896

other

important

many

which

the

Trustees

Act,

passed,

1891

affect

the

the

Children

of

Custody

Act,
;

Edition,

1893
and

statutes,
have

cases

of

subject-matter

Work.

this
In

the

been

to

the

shorten

legislation
recent

The

reader

Act,

I., the
in

incorporated
importance,

been

the
set

and

be

out

and

to

by
A

which

the

Inn,

Jan/uary,

1900.

recent

selection

of the

Work,

from

want

Works

which

on

have,

in the

Land

the
of

on

Transfer

which
account

Act,
been

have
of

their

Appendix.
S. E.

Lincoln's

make

appeared

omitted

to

provisions
text,

the

founded.

and

1893,

feasible,

scope

eases

is referred
to

has

Courts.

1899,

object
other

For

purports

Part

1897,

the

design

necessitated
the

of

where

Equity,

December,

to

added.

Trustee

of

alterations

to

cases

Manual

simplify,

decisions

and

the

of space,

this

and

the

Edition,

principles

appropriate
been

has

this

and

of the

additions

most

of

preparation

statements

of

the

1893

Transfer

have

Fourteenth

Mortmain

the

the

1890;

Act,

Land

the

of

EDITION.

W.

PEEFACE
TO

THE

The

writer

Edition,

was

not

to

give

the

title

that

of

the
he

student
enters

having

subject

same

he

volumes,
in

his

careful

memory

and

the

help

of

experience

practice.

aid

and
and

than

of such

some

it
a

in

is

of

view

during

after

mind,

as

long

of
his

occasions

of

him

to

for

knowledge,
of

the

body

impossible

body

two

points

And

of

his

the

of

would

rapid

the

without

few

work.

fixed

succinct

gained

For

upon

but

he

need

in

amidst

yet

he

many

work

to retain

condensed

and

by

work

read

has

stands

possessed

become

he

principles, well

daily practice:

the

of

the

description

Treatise

smaller

fewer

far

large

accurately

often

guide

of

any

after

"

perusal

constant

by

and

is able

practitioner
points

read

that

of

great disadvantages when

perusal

previously

view

profession.

the

he

purporting

indeed

and
of

under

the

book

of

book

branch

labours
upon

of

book

contrary,

Jurisprudence

by students,
each

the

of any

Equity

want

felt

practitioners in

On

work

little

present

comprehensive

yet

the

greatly

was

the

of

First

the

that

apprehension

existence

of the

leading principles
believed

publishing

unnecessary.

succinct

in

pages,
no

deemed

aware

EDITION.

under
to

be

was

these

of

answering
would

SECOND

Equity,
and

except
or

by

extensive

is founded

Manual

The

LL.D.,

same

the Commentaries

hear

they

n-hich

the

view

that

of

the

been

has

there

Manual

the

taking

And,

as

or

more

crimination.
dis-

whole,

of

process

same

the
and

deliberation

considerable

correct, involved

to be

seemed

subject which

sections,

whole

of

pith

the

words

fewest

mere

expressed

as

passages

on

subject

are

passages

many

extracts, yet the selection of such


in

reports

of the

division

The

although

original. And

is

Commentaries,

to the treatises and

founded.

are

semi-original

relation to the

character, hearing the


as

it is of

(a); and

States

United

the

of

Court

Supreme

of the

on

Joseph Story,

late

the

of

Justices

of the

one

"Commentaries

the

on

Jurisprudence"

Equity

EDITION.

SECOND

THE

TO

PEEFACB

Vi

analysing,

ing,
deducdefining, distinguishing,
arranging,digesting,
qualifying,and commenting, as in the generality

legal

of

the

suppose
been

the learned

engaged
enter

has

into

of the

as

which,

judge

endeavoured

the
unless

At

the

has

to the

And
as

not

reports, in

there
the

himself

appeared

writer's

sulting
con-

while

Commentaries,

light derived

works.

other

regard

Manual,

the

availed

Commentaries,

detail.

enactments

learned

With

the

under

perusal of
recent

well

besides

works

upon

more

written

to have

seems

has

book.

in general, for
necessity,

no

other

the

of his

composition
be

to

judge

treatises,as

of the

of most

small

so

scarcely

which

consideration

of close

upon

will

reader

the

and

amount

bestowed

As

the

treatises

he

had

time

same

the

from

he

has

designed to
he

has

previous

noticed

several

applicableto America,

omitted.

principleof selection,the

to collect

together,under

(a) The third and subsequent editions are also


EquitableJurisdiction of the Court of Chancery.

writer

appropriate

founded

on

Spence's

PREFACE

TO

the

heads,

points

accurately

be

by

known,

Solicitor

every

and

extract,

to

the

form,

mould

of

peculiar

also

obvious

embody
appUcation

variation,

of

would

points

to

the

sure

minds

and

to

dififerent

as

of

are

to

use

and

them

an

necessary

stated

at

and

respecting

itself

of

simple

so

and

law

are

advisable

plain

suggest

of

again

occur

principles

of

Equity

decisions

so

prise
com-

points

seemed

as

the

than

more

be

cases

that

character,

nothing

it

such

examples,

as

it

to

laboured

which

in

likely

not

by

perspicuous

omitting

cases

where

except

and

mind

and

has

Commentaries,

such

and

nature

omitting,

them

that

and

he

concise

pages

in

Counsel,

purpose

the

1,700

instances,

some

that

to

necessary

borne

constantly

into

of

upwards
in

for

essence

and

Conveyancing

and

vii

EDITION.

occurring,

and

and

SECOND

usually

Chancery

every

THE

in

the

work,

without

once,

individuals.
.

J.

W.

S.

CONTENTS.

Introduction.

Sect.

I.

Of

"

the

yaturc

Extent

of Equity

of Equity

Jurisprudence,

and

the

Jurisdiction

1
...

n.

"Of

the

(feneral

Effect of

regards Equity
HI.
"

rV.

"

Of

the

General

Of

the

Division

the

Jurisdiction

Maxims

of Equity

I.

"

EEMBDIAL

n.

"

m.

"

Of

Accident

Of

Mistake

Of

AcTUAi

Acts,

as

Jurisprudence

Jurisprudence.

12
.27

I.

EQUITY.

SPECIMCAXLY

Chap.

and,

of Equity

TITLE
OP

Judicature

SO

TERMED.

28
.35

Fraud

.43
....

IV.

Of

"

Constructive

Fraud

.56
.

TITLE
OP
Chat.

I.

Of

"

II.

EXECUTIVE

Legacies

EQUITY.
Portions

and

90

....

n.

Of

"

Donationbs

Mortis

Causa

97
...

m.

Of

"

Express
SOME

Trusts,

Private

evidenced

by

Document

Written

99
...

rV.

Of

"

Trusts

Charitable

Express

.122
.

V.

"

VI.

"

Of

Implied

Of

Constructive

Trusts

128

Trusts

145
....

VII.

"

Of

Trustees

"

Of

the

Specific
AND

Trusts

standing

in

Eelation

Fiduciary
VIII.

Others

ytND

154

Performance

Duties

not

of

arising

ments
Agreefrom

192

CONTENTS.

III.

TITLE

EQUITY.

ADJUSTIVE

OF

PAGE

Chap.

I.

"

II.

"

III.

"

Of

Account

Of

Administkation

Of

Mortgages,

Sect.

1.

231
....

.Pledges,

"

V.

"

VI.

"

Apportionment

Op

Partnership

Case
1.

of
"

2.

256

Property

298

"

Personal

305
.....

309

Contribution

and

317
...

Certain

Sect.

Real

.....

Liens

Of

"

Of

Of

302

Property
IV.

256

Liens

and

Pledges of

and

Of Mortgages

"

4.

"

Mortgages
Of Equi'table

"

3.

in

Of Legal Mortgages of

"

2.

226

General

Special

Adjustments

Debtors

Of

the

Of

the

Creditors

and

Mutual

Sureties

Bight

and

of

323
.

to

the

Creditor

between

323

Securities

Marshalling of

Securities

the

in

Benefit of

the Release

and
ties
Sure-

if

324
3.

VII.

"

Of

Counter-claim.

Of Set-off or

"

Miscellaneous

certain

Cases

326

count
Ac-

of

330'
VIII.

"

Of

Damages

Compensation

and

IX.

"

X.
XI.

"

"

332

Of

Election

337

Of

Satisfaction

345-

Of

Partition;
DARIES;

and

Settlement

of

ASSIGNMENT

of

Boxm-

of

DoWER

OF

Sect.

1.
2.

3.

"

"

"

Of

Partition

Of

the Settlement

Of

the

353

I."

Of

PEOTECTIVE

Protection
AFFORDED

UP,

AND

OF

Of

THE

Litigation

or

CANCELLING,

SECURING

Protection
THE

Property

Interpleader

357

DISABILITY.

OF

Injury

DELIVERING

DOCUMENTS
.

II."

356'

EQUITY.

prom
BY

Dower

IV.

IRRESPECTIVE

Chap.

of Boundaries

Assignment of

TITLE

OF

353

from
of

Litigation

Another,

359'

respecting
by

means

of

ggg.

xi

CONTENTS.

Oh. m.

Op

"

Protection

from

Litigation,
Bills

Peace

IV.

Of

"

renewed

Decrees

by

itpon

Proceedings

or

to

369

....

Bills

Peace

of

369'
....

Of Proceedingsto

"

or

WiLLS

1.-0/
2.

afforded

of

ESTABLISH

Sect.

repeated

Protection

Loss

from

Wills

establish

Injury

or

by

Injunction
Of

v."

VI."

373,

Protection

Of

BY

Property,

of

SECURITY

REQUIRING

Chap.

I.
II.

"

"

OF

Of

Infants

Of

Married

Sect.

1.

3.

The

c.

"

in

The

which

Some

"

(a).

Husband

and

Wife

Equity, of contracting with,

giving and

granting to, each

other

401

and

Paraphernalia
Wife's Separate Estate in
affectedby the stat. 45 tSs46

75 ; and

405^
.

Cases
Vict,

that Statute

under

Wife's Equity

Maintenance
5.

401

Powers

not

4.

DISABILITY

UNDER

Pin-money
"

384
.

Women

and
"

thereof,

388.

have,

taking

EQUITY.

PERSONS

The

"

382

V.

PEOTBGTIVE

FAVOUR

IN

Eegno

by

Eeceipt

or

TITLE

OF

AbscondExeat

Ne

of

Possession

the

AVAY
OR

Writ

Protection

the

Another's

from
the

by

ment,

371

out

to

of

Settlement

her

or

Property

own

Points

Miscellaneous

407

434
442

APPENDIX.
Trustee
Land

Act,

Transfer

447

1893

Act,

471

1897

475.

INDEX

(a)
unsound

Some

made
observations
are
in the chapter on
mind

subject of persons

of unsound

Equity Jurisprudence,and

mind

therefore

on

transactions

Actual

does

Fraud.
not

is omitted

with
But

of
persons
the
general

properly form
in this Edition.

part of

TABLE

[The

OF

refer

figures

the

to

paragraphs,

where

except

Sworder,

V.

Abdy,

Wiokens,

Ackroyd,
Adair

re,

(Earl of),

436

Ajello

V.

Alderson

V.

"

Aldrich

Agar-Ellis

re,

Aleyn

v.

Alison,
Allan
Allcard
Allen

Belchier,

201

Gott,

477

Alton

v.

220

732

Morris,.

v.

171
857

B.

V.

727

725,
,

32,

148,

152

"

r.

Backhouse

105

v.

Bacon,

450

Bagot

183

Harrison,

Mead,
Jenkins,

Ayres, Re,

Skinner,

Alt,

V.

567

M'Pherson,

V.
V.

White,

506

509,

bridge,
Cam-

V.

168,

Elgey,

493

v.

Austin

Cox, 4'24
Ayles
Aylesford (Earl of)

436
534

556a

III re,
V.

v.

Ayerst

Cooper,

v.

12

Cull.

277

796a

i'.

Trin.

V.

"

762

Gaskill,

V.

"

133

465

Glerkenwell

V.

"

Vestry,

Exparte,
Barry,
V.
22
Worsley,

"

Chesterfield

('.

"

Bank,

Agra

574

196,

715

In

Lascelles,

re,

Smith,

V.

Kensington

Fairfax,

Agar V.
Agar-BUis,

477

439

233

Hives,

I'.

Munn,

295

the

Cox,

v.

Adsetts

In

370

In

Addison

614

parte,

and

Vestry,

v.

Atkinson,

"

Shaw,

Adams

Alt

v.

Smithson,

V.

"

Ashworth

277

Attorney's Act, 1870, Re, 157


Alford, 358"
o.
Attorney- General
V.
Beverley
(Corp.
277
of),

415

Ex

pages,

Charity, Re,

"

Ironworks

Aberaman

the

to

indicated.]

122

897

Be,

not

Ashton's

"B.,Re,191

Abbott

and

otherwise

A.

A.

CASES.

Re,
V.

727

725,

Charlton,

294,

Bagot,

601

473
480.

764,

76

Ames

Anderson
Andrew

v.

Angus
Ann,

V.

Re,

v.

Armstrong,
Arnold

v.

Ashburner,

689,

823

112,

112a

857a
483

Arden,

Re,
Burt,

"

535

804

Fletcher

v.

47, 409

v.
v.

Bailey's
Bailey
Baillie

904b

v.

Bagster
Bahin

488

Cooper,
CUfiord,

Re,

Anthony,
Arden

Abbott,

v.

Bagshaw

345

Taylor,

V.

Winter.

Fackerell,

Hughes,
Barnes,

V.

Hobson,
Baillie,

300

;J72

Settlement,

v.

v.

884

In

re,

216

190
769
50

149
Bainbrigge v. Browne,
Baker
v.
Bradley, 149
V.
Sebright, 767, 763,
"

764

TABLE

XIV

(Lord),Penn

Baltimore

OF

54

v.

CASES.

Beynon
Biddle

Trust, Iii re, 436


Barrett, Be. 468

Blaiklook

Barrington,Re,
Barron
Barrow's
Barrow

v.

Barry,'Agra
"

"

365

V.

Oroskey,

i\

Stevens,

112

Baskoomb

v.

Beckwith,

424

(".Nosworthy,34,338, 376

Basset

Bate, Re, 475


Faber, 853
v.
Batten, Re, 252a
Battison
188'
v. Hobson,
609
Boucb,
v.
Battyany
Baud
V. Fardell, 351
Bayspoole ^'. Collins, 196
Beak
v.
Beak, Beak's Estate, In
Bateman

Beale

Symonds,

v.

Beaumont
Beck

v.

Beddow
Beevor

Major,

V.

"

Luck,

v.

Beioley
V.

Beddow,

K.

Beeoherc.

Bell

OKveira,

Pierce,858,

V.

866

443
313

554

509

Holtby,
and Metropolitan Board

of Works,

In re, Zola,,572b
357

Wyndham,

v.

v.

Houldswortb,

V.

Lytton, 383

Bennison, Re,

v.

Beniaid

Besant,
"

V.

Pollard,

Bonbote

366

v.

Benyon,

714

Minsbull, 235

In re, 796, 799


V.

Wood,

823, 893, 896

Bethell v. Abraham,
Beyfus, Re, 416

707

853

479

313

Henderson, 92, 733

v.

Floyer, 357

V.

Boston, "c. V. Aiisell, 160


Bosville, Glenorcby (Lord)
30, 89, 236, 237
Boswell

Coaks, 604
Botbamley v. Sberson,

v.

V.

Bougbton

V.

499

Bougbton,

re,

681

^x^arie National

Bank, 89
parte, 436

(Countess of)

182

Bown,

Re, 851

Box

Barrett, 695

V.

Boyd V. Allen, 716


Boyes, Be, 234, 235
Boyse v. Eossborough, 131, 754
Bracken, Be, 383
Bank
Bradford
v. Briggs,530

704

Bentink, Be, 635b


Bentley v. Craven, 160
Benwell
v.
Inns, 141

Benyon

England,

Bone

V.

424

"

V.

Ex

Carter, 424

v.

Carter,

Bennett

Bond

Bostock

93

Curre, 381,

V.

Boulton,
Bowen, Be, 278
Bowes, Strath more

496

Bellamy
Benett

Hutchinson,

Provincial

591

re,

WbiflBln,454

V.

Bolton

856

154

372
Fladgate,

V.

V.

439

51, 316

WooUey,

v.

Bloye'sTrust, In

Boulter, In

220

re,

Blatcbford

"

148, 200

Co,, Be,

Widmore,

v.

Bold

v.

Ordnance

Blakely
Blandy

Blytb

454

Baseley, Huguenin

V.

"

634

v.

635a

ttrindle, 686

v.

Blake, Be, 467


Gale, 32, 383a

765

Bank

250

Bisbop, Ex parte,

Willis, 152
Case, 376
Barrow, 871, 891

v.

Mount,

v.

357

Savin,

v.

Biron

Barr's

Hartley,

v.

Bank

"

V.

169

Jackson, 816
Biggs V. Peacock, 716
Birchall, Be, 88
Bird, Iiire,Oriental Commercial

"

"

Cook,

v.

Banner, Ex parte, 131


Barclay,Re, 358b
Barker, Re, 348a
V. Cox, 416
Barnard
Ford, 875
v.
Barnes
Bond, 625
v.
Eoss, 806
V.

Eouse

"

Bradwell

V.

164

Catchpole,372
Braithwaite,Re, 208
v.

Breton's

Estate, In

re,

230, 421,

824

Breton
"

v.
V.

Mockett, 233
Woollven, 824

Briant, Re, 876


Brice v. Bannister, 435,
V.
Stokes, 348, 368
"

Bridger,Be,
"

V.

497

Deane,

202

436

TABLE

Brier, Be,

OF

368a

CASES.

I Carew's

Briggs I'. Penny, 235,


Bright V. Larcher, 477
('. Legerton, 32

287

Ward,

i'.

Britain

Company
Broadbent

i'.

Brocklesby

Investment

Smart,

597

Barrow,

477

t:

"c.

Temperance,

c.

535

Brooke, In

re,

304, 847

"

Brooking v. Maudslay, 732


Broughton
Broughton, 345
Broun
Kennedy, 93
v.

v.

Brown,

GeUatly, 359
Shipley" Co. v. Kough,
V.

"

"

Wilkinson, 416

Geaves, 661
Chancey's Case, 712
ChapKn, Ex parte, 183
Charlesworth
v.
Jennings, 112a
I'.

Chauutler's

Claim,
Estate, 604

foot's

V.

"

v.

Brumridge,

369

Brunton

Electrical,"c.

616

Bryant

Hickley, S06

v.

Bubb

Ex

Telverton,

V.

Hastings, 768
Buccleuch
(Duke of)
Board
Buck

V.

Budge

V.

BuUer

v.

Bute
Butler

V.

v.

politan
Metro-

of Works,

Gummow,

Butler,

Butters,

Byram

440

Christian v. Whitaker, 830a


Christie v. Davey, 770
V.

"

Chubb
Clark

V.

Clarke

v.
V.

"

Taunton, 439
Bolam, 604
Stretch, 856
v.

Leach,

V.

V.

"

re, 796a

Palmer,

Clarksont;.

Clay, Smith

822

639

Franklin, 299
Hilton, 301

In

"

Cleaver

parte, 572a
Tull, 841a

535

Henderson,
v.

517

32

Clayton'sCase,

856

Ex

v.

165

Chilhngworth v. Chambers,
Chilton V. Progress,"c. 773
Chowne
v.
Baylis,435

352

Gumpston,

V.

"

Janssen,

v.

v,

"

Christison

Plunkett, 436
James, 751b

V.

Hasel-

Morgan, 41
Chichester, Coventry v. 705
(Lord) V. Coventry,

parte

v.
Hai-rison,295, 300
Eobson, 435

Buchanan

re

704, 706

Brumridge
v.

In

Dalby, 440

v.

435, 614a

Smith, 806
Tanner, 436

V.

"

87

Caton, 448
Cavander
v. Bulteel, 187
Cave V. Cave, 436
Cavendish
v.
Dacre, 679

Chetwynd

Collins,801

v.

V.

Chesterfield

689

u.

"

V.

Caton

Cheslyn

Se, 83
Brown,

"

Castle

"

y.Eooke,/"i.reBrooke,304
V.
Eounthwaite, 416

"

Powis,

v.

Carr's Trusts, In re, 880


Carter r. Wake, 605, 612
Castell " Brown, Be, 535

681

Mutual

Cooper, 429

r.

Carpmael

Eossiter,448

v.

British

Estate, Be, 178

Carew

"

Bristow

XV

464

Mutual, "c. 844


Edmonson, 32, 333
383
u. Eowland,
Clement
o.
Cheeseman, 220
Clifford,Angus v. i 12
Olive V. Carew, 856
Coates ('. Coates, 712
Cochrane
Willis,87, 424
Cockoroft, Be, 406

Clegg

v.

V.

"

CabaUero

v.

Cabbum,

Be, 467

Cadman

v.

Henty, 190,
Cadman,

Camden

424

805
800

v.
Murray,
Campbell's Trusts, In re, 341
Campbell v. Holyland, 548

Wardlaw,
V.
Cann, 355
Wilson, 112
V.
"Caplen,Be, 230
"

Cann
"

v.

765

u.

Codrington v. Lindsay, 689


Coles V. Peyton, 635
OoUins
V.
Turner, 149, 150
Colonial Bk. v. Whinney, 430
Colverson v. Bloomfield, 782
Conron
v.
Oonron, 305

372

Cook

V.

363

Addison,

Gregson, 469
V.
Eosslyn (Earl of),741
(Duke of) v.
Cookson, Somerset
V.

"

"

791

Cooper, Ex parte,
V.

V.

"

"

"

"

Cordingley

V.

Preetby, 529

V.

Ingram,

"

Daw
TerreU, 592
V.
Bank
of Wbitebaven,
Dawson
v.
555

415
v.

v.

Coverdale

CowgUl

Eastwood,
Ebodes, 753

v.

V.

Cox, Addison
"

"

i'.

436

r.

Bisbop, 438

i'.

Hickman,

637

Owen,

294

Equitable
Building Society,357a, 572b
202

Soutten, 904
Hall, 436

ii.

Dearie

450

22, 762

Woolwicb

V.

Deare

r.

"

V.

Deane, Me,

Coventry v. Chicbester, 705


Coventry, 477

642

Brownrigg,
Day, 436

V.

"

"

Bank

County of Gloucester
Budiy, 786
Cousins, Re, 190

Day

555

Beeson,

V.

"

(Earlof) Eussell,
Grioe, 223
Cosnabam
".
Cotterell v. Stratton, 521
Cork

179, 320,

576

Cheeseborough,

c.

717

Wbitebead,

V.

"

237

Phibbs, 87, 89
376
Wormald,

V.

"

"

313

Kynook,

V.

"

Davies, Me, 844


Davies, 147
V.
Jenkins, 856
V.
V.
Nioolson, 488
Davis V. Davis, 647

Crabtree, 770
Joel, 725

V.

"

CASES.

OF

TABLE

XVI

r.

De

Burgb

De
De

Busscbe
Cordova

De

Hogbton

In

Lawson,

re,

v.

Alt, 33,

v.

De

v.

681

160

Cordova,

88

731

Money, 431,

Delmar, Be, 276a


Denny v. Hancock, 424, 425
(Earl of),
Dering v. Winobelsea

'

Cradock

v.

Ciampton

EaUway

Varna

r.

633

( 'rawford

i'.

Toogood, 413

Credland

-".

Potter,530

Derry v. Peek, 112a


Eobinson,
Devaynes
Devoy v. Devoy, 313

Cricbton, 712

Dewar

Company,

Cricbton

v.

Cross, Be,
Crowtber

v.

Elgood, 162
May, 883
Eutter, 405, 453,
v.
Eletcber, 554

Curteis
Curwen

r.

Cutler, //(

n.

Wormald,
Milburn,
re,

Diggles,Me, 233
Dilkes
Broadmead,
Dillwyn
Llewelyn,
r.

Dimmook

298a
616

Diplook

r.

Di

Sora

Dixie

871

i:

"

D.

Docker
Doe
377

v.
Davison, 190
Danson, lie,341a
Darbey v. Wbitaker, 440

Darby, 647
Darby
Howe
Dartmoutb(Earl of),
Dasbwood
JermjTi, 177a
Magniao, 764
"

d.

Dolan

v.Sdd

435

Dixon,

V.

Muokleston, 592,

855
593

Peacock, 628
Somes, 345
Hiscocks
";;. Hiscocks,
v.

v.

Doering,375

v.

AUman,

763

Macdermot,

V.

Douglas

v.

Hammond,

'".

Doering
Doberty

Daniels

424
Halle'tt,

V.

"

Dagnall, lie, 857


160
Dally V. Wonbam,
Dance
v. Goldingbam,

487
731

PbiUiijps,5.S
Wrigbt, 409

f.

Dixon

v.

685

r.

Perkins, 786

V.

"

Maitland,

v.

Witte v. Palin, 805


Dicks /'. Brooks, 774

De

461

V.

371

r.

v.

Croxton

Cuddee
Cummins

405

"

275

Co., Me, 616

Dowse, Re,

712

Dowling

Betjemann,

Drake
Drosier

V.

r.
v.

Kershaw,
Brereton,

483
352

405

lOOi

G-alton

178
Bmuss,
Provincial
National

V.

Q-ames,

of

Bank
Grarbutt

-y.

Pawcus,

158

v.

Grogan

234

Wolmerhausen

GuUick,

Gynn

McOormiok,

v.

Guthrie

521

England

CASES.

OF

TABLE

XVlll

Walrond,

v.

164

v.

830

Gilbard, 801

v.

Gardiner, Re, 904b


Grarfltt v. Allen, 471
Q-arnbam
Garth

Cotton, 319
Townsend, 79

v.
V.

"

Skipper, 187

v.

H.

GaskiU, Att.-Gen. v. 12
Gaunt, Speight v. 352a, 357
General Credit Co. v. Glegg, 612
Giacometti
v.
Prodgers,871
Gibbins v. Taylor,
Gibbs V. Harding, 894
Gibson V. Goldsmid, 39
366

Woolgar,
Glenorchy (Lord)

Grace,

(No. 1),

714
Great

Northern

Sanderson,

Railway

Greedy

Lavender,

"

Co.

o40a

v.

v.

Shackle,

740

886

v.

Britten,

V.

Paterson, 230

830

V.
"Wynu, 164
Greenough v. Littler, 538
"

Greenwood
Greer
"

"

v.

GreviUe

Greenwood,
617

v.

Young,

V.

Edmondson,

V.

Wilson,

Gregson, Be,
v.

Randall, 391
V.
Hart, 893, 894
Swaine, 112a, 416
v.
Colman, 554

?A

V.

Mui-rell,302

v.

Yelverton,
Hatten

Greatorix
Green

123

Hartopp
Hartopp, 149
Ex
Hastings,
parte, Bubb

597

Wickham

V.

304

Guest, 122,

v.

V.

Drummond,

V.

"

v.
V.

"

435

Be, 847
Pisher, 247
v.
Mott, 848
Watkins, 302,

Hartland

In re, 801

"

Harman

"

Harding,

V.

"

Harkness,

Harter

James,
parte.,618

Ex

Graham,

331

572a

v.

v.

"

Glyn, Harding
Golding, Ex parte,

436

Harbin

Hart

79, 233, 283

v.

424

Hodgson, 149
v.
Darby (No. 1),345
Harding v. Glyn, 79, 233, 283
Hannah

Harrison

30, 89, 236, 237


Glover, Be, 230

Gordon

Buckmaster,
Hampshire Land Co., Be,
Hancock
v.
Hancock, 830a
Handford, Be, 857

BosviUe,

v.

233

V.

Harris

424

v.

"

"

Gilbard, Gynn v. 801


Gilbert v. Lewis, 830
Gilbertson
Gilbertson, 477
v.
Gilchrist, Ex parte, Armstrong,
Se, 904b
Giles V. True, 486a
Gill's Case, 663
Ginnever, Rowley v. 323
Gjers, Be, 763
Glasse

"

Hamilton, Be,

Seagrim, 493

V.

"

parte, 435
Hall, 200, 733
V.
553a, 579
Heward,
V.
HaHett
Hallett, 620
v.
Halsey v. Brotherwood, 771
Hall, Ex

233

676

Russell, 413

v.

Haygarth "v.Wearing,112a
Doman,

Haynes

v.

Head

Gould,

v.

141a

372

Heald

v.

Hay,

Heard

v.

Heard,

429
904

Hedgeley, Be, 830a


Henry v. Armstrong, 200, 733
Hensman
v.
Eryer, 475
Hentjr Wrey, 201, 203a, 214
HeptiDstallV. Gott, 301
V.

Heron

v.

Heron,

871

HetHng, Be,

663

Browne,

88

v.

768

Hewett,
304

Grey, Be, 851


Griffiths V. Porter, 356.

357a
Be, 857

Hewisonu.

Negus,

Heywood,

Be, 474a

Higginsv. HiU,

137

823

v.

TABLE

Hill

OF

CASES.

XIX

Boyle,431

!'.

I.

Hicken, 663a
Hillard i: PuKord, 76a
Hilton i: Woods, 430
('.

"

Hisoocks

(Doe d.) v.

Imperial Ijoan
Hisoocks,

100

('.

Ingilby

Hitchcock

r.

Hitchman

r.

Hoblj-n

Hoblyn, 149
Pugh, 411
Hodges, 853

r.

Hoddel

,".

Hodges

V.

Hodson

Heuland,

i\

Hoghton

Clendinen, 890
Stewart, 635

Holloway

Eadolifle,409

v.

Sol

Holmesdale
ville-West

(Viscount),Sack-

Hooper v. Smart, 415


D'Hedonville,
Hope
'".

Finch

"

V.

Bolt,

i:

Smith,

445

Janssen, Chesterfield
Jarman's
Jarratt

Jay

708

(Earl of)

165

v.

436

Hopwood,

V.

V.

v.

"

53

Hope, 57, S50a


Hopgood r. Parkin, 257

Hopkinson
Hopwood

V.

200
Couchman,
James, 441, 601
Kerr, 124

c.

"

359

Rylance, 375

/'.

James

(".

"

755

Isaac, 857

V.

James

237

c.

333

Insurance

Co., Be, 343


Inman
v.
Inman, 536
Ion V. Ashton, 480
Irvine v. Sullivan, 234

Jacob
Jacubs

Millage,786

He,

"

Boak

149

804

r.

Credit Association

Coleman,

and

Ivory, /)( re,

Holford, Be,
Holmes

Stone, 419

c.

448

Hoghton,

V.

Co.

Mercantile

"

Estate, In

Aldam,
Robinson,
v.

('.

re, 275

147
830a

Jefterys Jefierys,421

Horlock, Be, 712

v.

179
Jegon V. Vivian, 749
Home-Payne, Hussey,
Jenkins
Jones, 541
Hosking v. Smith, 530
Howe
Dartmouth
V.
(Earl of), Jennings, Charlesworth
c

v.

Hubbard

"

Alexander, 714

Cripps,204

V.

Hughes, Be,
Huguenin

857a

Jones,

V.

"

v.

Johnson

415

Baseley, 148,

152,

Jones,

200

Huish, Be,
V. Tenant,

Hulme
Hirme

830

72

v.

v.
i;.

"

V.
i..

"

V.

"

V.

"

V.

"

"

Hunter

V.

"

"

Hunnings v. Williamson,
Hunt
V.
Furry, 804
754, 755
Pinney
141
Trego r.
"

V.

"

Lopes, 351

v.

Belcher, 460
Walters, 114, 115, 133

v.

Ex

393

Gallagher,856
parte, 132a

Be, 132c

"

712

112a

('.

"

Hudson

-y.

Jordan, 554
Jervis v. Wolferstan, 392a,
Jervoise v. Jervoise,828
JodreU
v.
Jodrell,826

359

Davies, 552, 574


FerreU, 435
Look, 421
Scott,474
Smith, 190
Thomas, 740
WiUiams, 472

Judkin, Rr,

Jupp, Be,

808

841a

tingdon
Huntingdon (Earl of) v. Hun320, 574
(Countessof),
Hurst

Hurst,

V.

Hussey

v.

475

K.

Horne-Payne,

179,

420

Kennreuther

Hutchinson

and

Tennant,

V.

Eossiter,

112a

r.

Grriselbrecht,

504a

Kay

233

Hutton

In re,

Keane

V.

Johnston,
v.

323

Eobarts, 370

TABLE

XX

Keech

Sandford, 333
Keith
V.
Burrows, 63, 607, 608
Kelson
193
v. Kelson,
v'.
400
Burn,
Kemp
v.

Kempson

Ashbee, 149,

v.

Kennard

79

Kennard,

v.

150

Kensington (Lord)?'.Bouverie,

Le

Neve

PoHcy,

In

Leng, Be,

re,

406

Killord

Blaney, 478

V.

LesKe

King-Harman
Kimber

Levy

k.

275

Cayley, 804'

Knight
Knox
"

Kurtz

Money,
Thompson,

v.

Trusts, In

V.

Knight,
Gye, 461

V.

Mackinnon,

V.

re, 79

v.

Allen,

LUes

t".

"

354

592

"

and

"

Co.

Bank

of Australian.

BlackwaH
V,

856

Long V. Bowring,
Longmate v. Ledger,
361
Lopes, Hume
v.
Loughnan, Morley v.

762
.

130
130

Lovett V. Lovett, 754


Low
V. Bouverie, 436
450

Lush's

Trusts, Li re, 887


Lyddon v. Moss, 165

Lyell V. Kennedy, 72, 736


Lyon f Home, 200
Lyons (Mayor of) v. AdvocateGeneral of Bengal, 276
Lytton V. Devey, 776
.

In re,

Goldwire,89
McArthur, 32
Leighton v. Leighton, 709
Lempriere v. Lange,'116

M.

McCarogher
McCormick
"

v.
v.
V.

v.

Railway

Cross, 440,

472

Banking Company,

v.

Somer-

682

Loxley v. Heath,
Lucy's Case, 88
Lumley, Be, 251

v.

V.

Jones,

453

Whiteley, 352, 352a


Brotheridge,848
V. Lechmere, 51,
316
734
Angas,
Hewlett, 535

Lehmann

V.

331

535

Lempriere,830,
Bank
County

856

Legg

Bullock,

EadcHJfe,

v.

NuttaU,

v.

Chartered

and

"

Cooke, 276a

V.

Leeds

Pughe, 825

Londop

v.

V.

V.

352

Lasoelles v. Butt, 720


Laver v. Fielder,450
Lawes
v,
Lawes, 711
Lawton
v. Elwes, 345

V.

608

436

ville,310

Langdale (Lady) v. Briggs, 479


Langley, Be, 402a
Larios
Bonany y Gurety, 451

"

Wilson,

Banks,

Looking v. Paxker, 667


Londesborough(Lord) v.

"

"

197

re,

Credit Company

V.

"

"

Lechmere

and. In

Marine

Lloyd's Bank

Oraddook, 315
V.
Gibson, 35
Lamare
v.
Dixon, 427
Lambarde
v.
Older, 663
Lambe
v.
Eames, 233
V.
Orton, 421
Lambert
v.
Thwaites, 284

Learoyd

!".

Terry, 155

V.

Lister,Poster

888

v.

V.

of Scotland

Siddal, 871

Lloyd

Spenoe, 771

Laing, Be,

V.

Association

545, 555

L.
Lacon

V.

830

v.

Hillman, 154
Mathews, 830
Nobbs, 356

Liverpool

575

v.

I'.

Life

v.

Kinnonl
Kirkwood
Kirwan's

157

Gilbert

"

424

Stogden, 413,

V.

"

Barber, 160
Emberley v. Dick, 443
Kincaid's
Trusts, Inre, 871, 883

Lee

823a

v.

"

re,

187

v.

"

Kilvert's Trusts, In

Neve,

Leonine, 486b
French, 690
Lester v. Poxcroft, 447
Letterstedt
v. Broers, 396
Leonino

600

Kidd, Be,

Lea

Le

v.

Lewis, Be,

629

Kerr's

Lake

CASES.

OF

Whieldon, 707
Garnett, 890'
Grogan, 234

McCreight v. Poster, 407

TABLE

Macdonald

Irvine,

v.

Mcdufl, Se,

Maokay
"

..

Mackintosh

Mackreth,

184

Pogose,

v.

Pox

v.

Maoleod
M'Leod

v.

McManus

706

333

Moore
328

McPherson,

Allen

v.

Maddison

v.

Maggi, He, 472


Magnus v. Queensland
Bank,

National

569a

Mainland
Malcolm

Upjohn,

c.
i\

Marlborough,

179, 320, 575

Munt

Eeays, 717
Westoby, 786

V.

"

Massey

Bowen,

v.

Matheson

v.

r.

v.

V.
V.

Cook,

168

555
496

Lang-

Guarantee

431

Provincial
c.

Games,

Provincial

Bank

v.

Bank

Jackson,
','. Porster, 895
Nelson
Stocker, 112
v.
NeviU's Case, 164
Neville v. Snelling,123, 169

Nqwbery,

In

Newman,

In

"

V.
V.

re, 796
re, 156

Newman,

436

Selfe, 542

In re, 486a
Newmarch,
Newton, Be, 796
Newton, 599
V.
"

of

521

Negus

"

Austin,
Harrison,

v.

190

310
Metcalfe
v. Hutchinson,
Meux
V.
Cobley, 763
Micklethwait
Micklethwait,
v.

Miles
Miller

r.

National

708

Guedalla, 356
Taylors' Company

v.

233

469

United

Myers
Company,

England

Walters,

Attorney-General, 277

767
Mildred

Eaynor,

v.

Life Association

National

('.

Mendes
Merchant

Bank

N.

Porter, 538
Milton, 105, 755

?".

96

715

464

i'.

205

Parker,

Mutlow,

V.

529

ley,436'

"c.

Mayd v. Field, 707


Mayfair, "c. v, Johnston,

Mellor
Meluish

Murrey

r.

148

Pajnae, 88, 108,

Glynes, 851
Goodyear,

c.

Mutlow

648

Nordenfelt,
Nordenfelt, 141a

Meinertzhagen

)'.

MurreU

Mutual

Maxim

Mead, Be, 220


Mecca, The, Be,

V.

Mussoorie

830

Ludwig,

pany,
Com-

r.

Mullings V. Trinder, 424


Mumford
Stohwasser,
v.
Munch
I'. Cookerell, 371

v.

r.

435

Bell, 424
Morton
and Hallett, Be, 343
Moseley v. Simpson, 441, 442
Moss, Lyddon v. 155
v.

Moxon

316

Re, 8(i8

"

856

117

Fowler, 883
Clowes, 541

r.

Martinson

Mortimer

"

Lee, 529

r.

Marshall
Mason

Be.

f.

130, 148

MostjTi ('. Mostyn, 100


West
Mostyn

551

Scott, 435
Mangles r. Dixon, 439
Manningford i'. Toleman,
March, In re, 841
Marsh

450

Cowan,
Wooten,

"

155

Loughnan,

v.

MorreU

Watt, 154
Alderson, 448,

Minett,

V.

Morley

105

Higgins, 156

t;.

"

V.

"

Moore, 220
Morris, 847

r.
V.

"

Morgan

Cooke, 447

r.

/".

"

823a

Symmons, 327,
Annesley, 352
Drummond, 370

r.

Stewart; 727

V.

"

0.

"

413, 424

Homfray, 148, 159


Broughton, 383, 383a
Money
Money, 815
Montague, Be, 323
V. Sandwich
(Earlof),

Childers,204
Hesketh, 416

;".

Haywood,

V.

"

Mohan

Douglas,

v.

Mackenzie

XXI

Milltown
Mitchell

893

Postle, 436

V.

GASES.

Miller v. Sharp, 448


Mills V. Thurgood, 682

359

275

McGrath, He, 796a


McGregor r. McGregor,
McHenry r. Davies, 856
Mack

OF

r'.

OP

TABLE

XXU

Newton

Sherry,

v.

Nioholl

Palmer

384

Jones, 902
Noble
414
Edwards,
('.
Nordenfelt, Maxim, "c.
Norris v. Trazer, 234
i".

Northern

Assam

Tea

CASES.

Locke, 424
Newell, 714
Pankhurst
710
HoweU,
v.
Parfitt V. Lawless, 148
Parker, Re, 635
Clarke, 581
V.
Parkin, Re, 868a

141a

r.

Company,

In re, Ex parte,UniversalLifeAssiu'ance

"

Parkinson

Company,
Company

Whipp,

Great

V.

pany
Com-

Northern

way
Eail-

Pass

Company,

130

Noys

681

Mordaunt,

V.

Fabian, 447,

V.

Parnall

v.

Dimdas,

V.

Paterson

440

Notti'dge
Prince,
V.
Nunn

V.

Pattle
Pawson

448

O.

Turquand,

v.

O'Brien

v.

Tyssen,

Odell, Ex parte,
Odessa

113

Pease

234

v.

Mendel,

424

Fossick, 424
Ogden
Ogilvie Littleboy,200
O'HaUoran
v.
King, 851
Oldham
v.
Stringer,601a
r.

v.

Oliver

Hinton, 534
OUey V. Fisher, 449
Onions v. Cohen, 725
Onslow, Re, 904b
Opera, Limited, Re, 83
v.

Oriental

(Duke of),

341a

Jackson,

v.

423, 492

Somerset

v.

Peckham

449

732

Mortimer,

453, 670
Peake, Re,

506

Tramways

Brown,

V.
v.

Peachy

230

Hornibrook,

V.

352a

369

Murphy,
Scott,494

v.

"

Payne

Oakes

515, 543,

Eailway

r.

535

London

Hanbury,

Pamall, 233
Parsons, Re, 834
Partingtonv. Allen, 352,

Insurance

North

11.

545

439

"

v.

V.

"

v.

582

Taylor, 228

Peek, Derry v. 112a


Pegler v. White, 424
Pelton
V.
Harrison, 857b
Pemberton
v. Marriott, 889
Pembrooke
v.
Friend, 482
Penfold )". Mould, 885
Penn

Baltimore
v.
(Lord),54
Pennington, Re, 183
V.
Brinsop, 770
"

Percival
Perfect

Commercial

Bank

Saving,Inre

Bird, 357

v.

Dunn, 435
Lane, 169
Perry v. Holl, 190
V. Knott, 371
Persse v. Persse, 125
Peterson v. Peterson, 473
v.

v.

"

Financial
Overend
V.

"

Corporation
and

pany,
Com-

164

Ormes
v.
Beadel, 441
O'Eorkew.
Bolingbroke,123, 170
On-ell V. Orrell,685
Osborne
and Eowlett, 343

Ovey,

In

re,

276

Pett, Eobinson

163, 333, 336,

PhilanthropicSociety v. Kemp,
496

In
Phillips,
V.

"

Owen, Re,

v.

345

601b
"

"

re, 817

Beal

(No.

2),387

V.

589
Gutteridge,

V.

Hudson,

749

Mullings, 733
454
V.
Phillips,
PhiUipson v. Kerry, 200
Philpott V. St. George's
V.

"

P.

"

Page V. Cox, 232


Paget V. Ede, 54
"

"

V.

Marshall, 89,

V.

Paget, 320,

Palliser
Palmer

v.
v.

102

277

575
857
Q-u,rney,

Pioard

Hendne,

Piercy v. Fynney,

649

v.

Hine,

856

Pickersgill
v.
Eodger, 687
662

pital,
Hos-

TABLE

OF

Piggott V. Stratton,204
Pike V. Fitegibbon,856
Pilcher

Eawlins,

v.

Eeid

190

V.
V.

"

Porter
Pott

Eice, 330, 529


Eichards, Be, 380, 535
Eichardson

Quilter,162

Eickerson, Be,

Shackle, 876

"

V.

"

V.

Eiley,477

V.

Smith, 82,

"

Powys

'

V.

Eiley v. Hall,
Eipley v. Waterworth,

299

v.

Bubb,

Prole

V.

Soady, 326

Eobertson

Eobey

Cock,

V.

"

pany
"c., Com-

"

Somerset

116

(Duke

Eoebuck

424

Willis,
v.
Bolton,

V.

"

112a

Alfaro, 435,

614b

Jones, 709
294
640

Eedgrave v. Hurd, 112a


Eees
Berrington, 164
V.

V.

"

Eeg.
845

V.

0.

Ingham,

EoUand
Eolls V.

32,

V.
r.

83

Haddocks,
190
v. Hart,

Pearoe,

Smith, 112a, 146


Lord Mayor of London,

141a

220

Hopkinson, 530
Kensington (Lord),90

)'.

Eoper, Be,
Eose

In

"

"

Eouse

V.
)'.

re,

408

485

Miller, 420
Williams, 194

V.

"

535

904b

Watson,

V.

Eosher,

397

Stedman,
Wiokham,

Challis,451

White, 112
Eooper v. Harrison,

424

u.

v.

V.

"

"

Eavenscroft
Eawlins
v.

853

Boustead,

Chadebet, 715

v.

Eogers
"

E.

Eatcliff,Be,

Wheelwright,

179

576

"

v.

Pett, 163, 333, 336,

Eochefoucauld

Eolt

Eanken

V.

V.

"

601

Pusey,

v.

V.

Hospital
(G-overnorsof),295
Lynes, 857b
345

555

of) V. Cookson, 791


Pye, Ex parte, 698
Pym V. Lookyer, 708
Pyrke v. Waddingham,

Eadford
Eamshire

London

('.

"

Kichards, 112,

V.
V.

541

Geldard, 496
Harkin, 356, 366,

v.

Grice, 674

Pryce
Bury,
Prytherch, Be,
Pusey

v.

846

v.

Pulsfbrd

Norris,
Oilier,614
v.

Eobinson

416

Endowment,
i'.

V.

V.

"

426

Cooper, 883
Croft,592

V.

"

372

Pride

Proiit

v.

"

Macauley,

Protector

298a

32

Prees v. Coke, 158


Price Be, 857
"

421

424

Eidler, 183
Eidgway v. Newstead,

294

Blagrave, 763

V.

Smith,

Eoberts, Be, 885

358a

Hill, 548

V.

Delbridge,230,
v.

554

Hulkes,
Merrett,

Powlett

Eidler

183

Poulter

V.

i'.

"

re, 817

V.

!'.

parte, 316
Driver, 637

Potter, In
Powell

Eeynell
Eeynolds

883

Sprye, 145, 430

c.

"

Todhunter,

V.

1'.

c
Grodlee, 298
Be, 402a
Ehodes, Be, 128
Eice v. Noakes, 506

Baddeley, 359

v.

355

Ehoades,

v.

Pooley

Wesley,

v.

Hoare, 216
Eeid, 284, 834,

V.

"

527

Pollard, Be, 853


Pollock, iJe,710
Ex

XXlll

Eehden

Pilling's
Trusts, He, 513,
Pinney v. Hunt, 755
Piper V. Piper, 482
Pledge V. White, 554
Plowden
Gaylord, 830

Poole,

CASES.

Bradford

Banking Co.,

164

EousOlon

V.

EousUlon,

141a

Ginnever, 323
Eichens, 549, 560

Eowley
Eudge V.
Eumney, Be,
v.

343

TABLE

XXIV

OF

Eusseli'.

Eussel, 592
Eussell, Ex parte, Butterwortli,
In

Eussell'sPolicyTrusts, In
Tontine,
Eyan v. Mutual

re, 436

ShiUibeer

Hoimesdale

BuildingSociety
Smelting Company

Tipping,

V.

770

Saltmarsh

v.

SKm
Small

Scarlett

In

re,

(No. 1),
575

(No. 3),558

"

Templer,

V.

"

Scioley Peck, 617


Schroder v. Sckroder,

115

Scott

Hanson,

V.

"

"

684

Societe

Generale

Somerset

416

v.

de

Union

Cox,

295

Paris

436

(Duke of),In

"

re,

Tyler, 139
Twyford,

Speight V. Gaunt, 352a,

v.

V.

Slade,

412

844

Sutcliffe,416
parte Swinre. Ex

c.

In

"

"

banks, 572a

V.

495

357

"

Spioerv. Spicer,871
Spike V. Harding, 721
SpirettV. Willows, 883
Spread v. Morgan, 692, 693
Spurling v. Eochfort, 475

Sharshaw
Shaw
V.

Stanton

V.

Bloxam,

Spencer, Re, 852


V.
Clarke, 436
V.
Pearson, 529

Stainton

Gribbs,628

Bunny,

Cookson,
791

Sharp V. St. Sauveur, 271


Sharps v. Foy, 190, 903
v.

u.

%o1

"

Kattenberg,857

Sbackleton

Sbanks,

571

Sells,90
v.

V.

857

v.

Co., 189, 436

South

Seyton, Re,

"

463
v.

Spashett, 876

Seroka
Seton

O'Grady,

V.

Seaton
SeUs

V.

Smithson, Ackroyd
Snell, In re, 616

V.

V.

"

V.

"

V.

Morley, 557b,
Eayment, 638

V.

"

486a

Tramways

v.

177

799

"

V.

"

744

32

Everett, 386
Hill, 304
Hurst, 248
Lucas, 853

V.

"

796

276

v.

Clay, 32

V.

"

"

Lockwood

v.

Smart,

v.

Smith, Re,

424

Hanson,

v.

Scholefield

Herbert,
AUcard

Croucher, 112a,
V.
Hedgeley, 830a

Smart
558

King, 149, 154


Sawyer, 371

Sawyer v.
Sayers v. CoUyer,

V.

parte, 83
Dennison, 777

v.

284

v.

Scanlan,

Ex

v.

Skinner,

302, 304

Shirley,514a

!'.

294

Sanger
Sanger, 859
Santley v. Wilde, 516,
v.

Prime,

V.

Simmins

Sinnett

Barrett,
Salusbury v. Denton,
Samuel
v.
Ward, 698

Savery

ShropshireUnion Eailways, "c.


Company v. The Q,ueen, 380

Simpson
786

Cooper,

V.

448

"

Simmonds,

Salt, Re, 475


"

424

Silk

436

St. Helen's

Jarvis,
Shipwayw. Ball, 885
v.

668

Birmingham
Shrewsbury and
North
v.
Eailway Company
Western
Eailway Company,

r.

Walden

Eayner,

V.

City of London,

v.

424

(Viscount),237
Saffron

Clayton,

v.

656

Shelley'sCase, 237
Shepard n. Jones, 520

S.

Sackville-West

Co.

Banking

Sheffield
Shelter

184

re,

Eussell, 617a

V.

"

CASES.

545

Poster, 407

Sheddon
v.
Goodrich, 681
Shee V. French, 469

v.

Standing
v.

Garron

Company,

Bowring,
Lambert,

421

StapiltouV. Stapilton,88,
Stead
Steed
Steel

V.
V.
V.

Mellor, 233
Preece, 295

Dixon, 635,

664

314

654

125

OP

TABLE

XXVI

V.

"

Tuff, Re,

823a

Tullett

Armstrong,

V.

852

"

844

"

Turton

521

Wallis

Estate, In

Tussaud's

Jones, 580

V.

Mottram,

Ward
re,

703, 706

159

Colsliead,

Barrett, 383
Smith, 675

V.

Tyars v. Alsop,
Tyler i;. Tates, 168
Tyrrell'sCase, 231

160

436

Eyre,

157

Turner, 219
Tates, 883

V.

"

118, 424

Duncombe,

V.

Warne

Tyrrellv. Bank of London,


Tyson v. Jackson, 431

Morgan,

v.

V.

"

372
300

Auldjo, 889

v.
v.

V.

"

434

642

Symonds,

Walters

767

439

Benson,

v.

Jeffreys,413

V.

V.

Harvey, 118
";;. Wright, 319,

Hancock,

Hirsch, 637

V.

Wallace

V.

"

Drury,

V.

V.

WaU

Old Bank,
884

V.

"

Waller

V.

"

"

"

Collins,149, 150

V.

"

"

Tumbull, Re, 823,


Turner, Ee, 372
"

"

762

Brunswick,
Priester,772

V.

"

"

89

Bennett,
New

656

Bradford

"".

"

V.

v.

Re, 353,

Walker,

Troughton,Ee, 183
Trufcli
Lamprell, 366
Tucker

CASES.

Seebohm,

v.

Warner

772

Jacob, 541

v.

Warrick

College,

Queen's

v.

Oxford, 749
Warren, Re, 853
U.

Warriner

Rogers, 230
v.
Bretnall, 800

v.

Warwioker

Underwood

Wing,

v.

448

TJngleyv. Ungley,

of London

Bank

TJnion

294

v.

gram,
In-

Wassill

V.

Leggatt, 855

Waters

v.

Thorn,

Watson

540a

Munster,

V.

"

Universal

424

435

pany,
ComAssurance
In
reNorthem
Exparte,
Life

Tea

Assam

Upperton

v.

Company,

439

WeaU, Re, Sol


Weaver, Re, 128
Webb

V.

424

Niokolson,

V.

"

Webster
u.

"

West

Vanderberg
Vane

v.

v.

Palmer,

Vansittart,Ee, 500,
Vardon's

Trusts, Be,

Vaughan
Venn

v.

382

Wheeler

829a

Vansittart,419

V.

"

Western

".

681

Vanderstegen, 856

Eurze, Ee, 379a

Verity v. Wylde, 617


Viditz V. O'Hagan, 817
Vint V. Padget, 554
W.
W

V.

B
,

England, 405, 819


Smith, 493, 652
v.
Cecil,424
Webster, 436
Williams, 530
Waggon Co. v. West,

434

(Earl)v. Eigden,

Vane

V.

230

767

Barnard,

884

Wellington (Duke of),

V.

"

154, 155

Marshall,

V.

725, 727

Wainford
v.
Heyl, 856
Waite V. Morland, 832
Wake
V.
Conyers, 720

Howell,

v.

304

Re, 904b

"

Whistler

Webster,
City of

v.

White

V.

681

London

Brewery Co., 558


V.
Grane, 806
V.
White, 681
Whitehouse, Exparte, 529, 661
White's Trusts, Re, 276, 284
Whiting V. Buike, 634
Whitney v. Smith, 353
Whittaker
v.
Kershaw, 393, 857
"

"

Wicks

V.

Wiggins
Wilcocks
Wilder v.

Scrivens,555
V.

Horlock, 712

Wilcooks, 316
Pigott,696

V.

TABLE

Wilkins

Sibley,

v.

Wilkinson

"

"

V.

V.

Lindgren,

Williams,

Se,

"

V.

"

V.

Bayley,

Evans,

447,

"

"

V.

Headland,

V.

Williams,

125,
719,

233,
Willis
Wills

Kymer,

V.

V.

Oann

Wilson,
V.

"

"

V.

Estate,'
De

190,

"

"

v.

Holloway,

647

Northampton,
Railway
Thombury,

V.

Wilson,

In

v.

483

re,

247

Mattos,

Wiginton,

Maidstone

692

(Lord),

V.

Pitt,

V.

Vanderplank,

V.

Wright,

438
149

852

112

(Lady),

V.

164

448

Diinsany

V.

v.

V.

754

v.

540a

Worseley

504

X,
"

V.

830

StradUng,

Norris,

v.

Wormsley's

Wright

383

164

Bk.

449

Colman,

Worthington

448

i:

"

"

Wooldridge

725

S.

Hearn,

V.

Wooley

131

Q-iallick,
"

538

Woolam

140

572

".

George,

294

Bull,

V.

"

275

527

233,
Arkle,

Tate,

v.

Wolverhampton

39

Wilkinson,

V.

"

XXVll

Wolmerhausen

424

Powkes,

CASES.

Withington

381

Clements,

v.

OF

Be,

794

"o.

Company,

405

691

"

"

101,

Winslow,

-Be,

WintoTir

Wise,

v.

Be,

535,

894,
York

896

473

Clifton,

V.

682

Toimg,

808
"

Banking

Union

Artley,
Be,
V.

Company

601
649

Young,

477,

530

76

TEXT-BOOKS

OF

EDITIONS

TO.

KEFERRED

Cordery
Dart's

Fry
Kerr

Lewin

Specific

on

Lindley

Smith's

Leading

Smith's

Manual

of

Equity

Conveyancing

Tudor's

Mercantile

and

WiUiams

Wolstenholme's

1890.

Executors,

11th

2nd

4th

3rd

Conveyancing

9th

1898.

1884.

7th

ed.

ed.

1898

1892.

ed.

ed.

7th

ed.

ed.

Oases,

Leading

on

1896.

Law,

Cases,

Bankruptcy,

1892.

1891.

ed.

Common

on

Williams

10th

Cases,

Tudor's

ed.

ed.

Jurisprudence,

Tudor's

WHte

1897.

ed.

Cases,

1888.

1898.

5th

2nd

ed.

1888.

ed.

10th

Infants,

on

Story's

ed.

Partnership,

on

Simpson

ed.

3rd

3rd

Trusts,

on

1899.

6tli

Performance,

Eeceivers,

on

ed.

6tli

Mortgages,

on

1896.

Purotasers,

and

Vendors

Pisher

3rd

Solicitors,

on

ed.

3rd

Cases,

Leading

Brett's

ed.

1897.

1898.

1893.

Acts,

8th

ed.

1899.

MANUAL

EQUITY

JURISPRUDENCE.

INTKODUCTION.

Section

the

Of

Nature

of Equity

Extent

To

and

brevity

is

precision
mixed

the

of

account

nature

and

Jurisprudence,

of Equity

the

explain

I.

the

Jurisdiction.

of

Equity

Jurisprudence

task

great

of

character

the

of

with

Intkod.
'"^^'

difficulty,on
science

and

"

Difficulty
and

immense

the

it is
necessary

time.

same

attention
vast

for

made

The

of

the

these

writer

definition

of

failing to

convey

misleading

or

technical
S.

sense

to

the

to

principal

this, before

features

of

Equity

Jurisprudence,

the
of

impossible

accurate

and

student.

the

term,

But
as

that

the

which

importof the

the

and

one

ance

some

reader's
of

the

it is the

1.

it

any

purpose

doctrines

particular

believes

is

at

this

however,

delineate.

to

pages

for

survey

important,

accomplish

is directed

system,

design

mind

the

to

which

learning

It is most

be

attempt

of

extent

to

give

without

definite

short

either

knowledge,

Equity,

in

distinguished

the
from

Definition

of

!;^^d"jci""

NATURE

Intkod.

"

to be

described
in the

regard thereto,
of

convenience

and

the

where

relief was

rightsenforced
where,

not,

clearlyafford

for the

interested

in the

perhaps

due

the

three

was

in

and

involved

to

were

it may

cognizablein

in

mind

differed

that
from

the

those

which
principles
the
be
more

modes

of

be

matter

in

judged
trust

and

It is

Law

Courts

Equity

in

by

no

than
jurisdiction

only

also be borne

not

of

Equity

only

technical
of

means

the

of relief.
a

of

definition

but in the modes

modes

stated

is still,
broadly

It should

of Common

that

all

therefore

"

jurisdictionof Courts

the

be

elementary

an

Coke, who

and

Equity.

proof, and

of

did not

ever
be, is,how-

exclusivelyor

are

guided them,

therefore

seen

not

might

as

be well

present day.

true, however, that these


matters

(at least

not

for

definition of Lord

at the

Law

Common

litigation.

adopted by Blackstone,

speaking, true

but

community,

conditions

Equity,namely, fraud, accident


which

without

be enforced

adequate relief,or

present, and

things

of

preservation of the rightsof

long

short

whereof

multiplicityof suits)

or

or

property

too

treatise like the

that

respect

definition,exact though it may

above

add

relief

in

Chancery

general class

originallydid

or

any

necessary

The

in

the

to

qualificationsor

such

of

some

might

or

circuity of action

without

to

Law,

relations

society,and

of

particularrights,the

to such

could

make

within

yet modified

complex

Court

the

by

came

at

ments
enactlegislative

Law,

to the

inconvenience

or

as

Courts

in

particularrights

sought

detriment

and

be

may

justice,or equity

of natural

artificial state

an

formerly administered
cases

larger sense,

in the rules of the Common

due

the

embodied

not

larger sense,
or

by

portion

EQUITY.

OF

or
equity in
justice,

natural
"

EXTENT

AND

in

of

the

trial,

It will
sense

is

jurisprudence.

NATURE

AND

and

the

that

its

than

scientific.

EXTENT

EQUITY.

OP

of defining it
difficulty

is due

the

to

Inteod.

fact

"

originand

development

Indeed

the true

as
Equity jurisdiction

be

only

ascertaiaed

by

limits in each

actual
within

"

its remedial
in the

be done
I. In

the

at

historical rather

are

of

extent

present administered

can

enumeration
specific

particularclass

and
justice,

subsequent

of

of its

falling

cases

this will

accordingly

2.

pages.

is synonymous

Equity

largersense,

and

nature

with

Equity jurisTSriKlGIlCG

justice. (See

natural

technical

of the

sense

term, has

different

otherwise

an

justiceare, by

this and

every

the

generalrules

to meet

and

inconvenience

which

kindness,

or

the

large portionof

larger

Equity iu

the technical

always
jurisdiction,

equityin
as

far

would

as

the

permit,on

Chancery ;

and

adopted the
bound

to pay

had

same

14

natural

in

in

same

the

(See

(d).) 3.

n.

equityin

justice,or

ments
enactlegislative

therefore
of the

excluded

from

Besides,

term.

have, in the exercise of their

and

natural

have

of the remedies

the

consideration,or,

Sp. 447,

regard to

larger sense,

the nature

where

good consideration.

sense

Courts

Law

attempting

charity,gratitude,

valuable

portion is

that

the Common

as

comprised

is

sense,

; and

duties

" 1, 2, 8, note, and "

Also

disposed

the mischief

arise from

is deemed

least,on what

St.

on

"aturia^

of framing
difficulty

would

often

construction

or
justice,

proceeded,

they administered

doctrines

as

the

Court

of statutes

of

both

of interpretation,
as being
principles

regard to

the intention

of the

legislature.
b2

IS

Botsynony-

of jnstioe.

matters

positiveengagements,

even

founded

not

they are
at

the

them, and from

such

enforce

and

narrower

civilised nation, leftto be

other

any

and

much

the

Equity Jurisprudenceof

foro conscientice,from

to
judicially

Equity,in

signification.
Many

natural

of in

But

St. " 1, 2.)

Inteou.
Skct

Thus,

EXTENT

AND

NATUBE

portion of natural

"

and

from

Equity

technical

in the

the

that, on

So

enactments
the

on

extent

hand, is it carried

other

the

in

even

applied

always appliedin

it is not

qualified(as

shall

we

and

enactments
the varied

portion of

is left to

con-

The

sense,

is

because, in addition

probably

inconvenience
from

ensue

public Courts,
the power
Another
eluded

of

by which

the

attempting

to

larger

ment
greater detri-

to

would

it in

enforce

the

and

to the decision

the various

ordinarilyinfluenced

are

"'

the

community

leavingit

conscience, and

mankind

first,that

foro conscientice,

in

all cases,
to

from

general

;
"

motives

secondly,
J'

111-

in

that another

portionof

en?otnients.
larger sense,
Another

thirdly,that

ministered

equityin

of

than

to

of propounding
difficulty

the

to

preciserules, applicableto
and

this

administered

be

and

things. 5.

or
justice,
equityin

natural

left to

the

and

in

legislative

to

Law,

of

to be

truth, then, appears

largeportionof

science.

subsistingorder

of the

Equity,

section and

Common

complicated relations

the

form, but is

regard

rliles of the

the

and

convenience

due

in

of

system
third

in the

And

unmodified

an

see

subsequent pages) by

the

; nor,

unlimited

an

Equity.

in

lative
legis-

Law

to

out

of

system

it is

to which

cases

either from

of Common

the rules

or

or
justice,
equity

excluded

not

was

(See

term.

4.

hand, natural

one

larger sense,

in the

of the

sense

excluded

also

portion is, therefore,

this

Law;

rules of the Common

the

engraftedinto

is

larger sense,

St. " 7,8, 9, 15,20, 34.)

portion

the

equity in

justice,or

I.

"^-^

EQUITY.

OF

Law^^

That which

^^"

the

Common

is included
another

Law

or

in

was

Courts, and

equityin

or
justice,
equityin

natural

always

administered

is denominated

larger sense,

and

justice,or

portion,therefore,of

the

the

legislativeenactments

portion of

larger sense,

and, fourthly,only

justice,
Equityln
the

natural

by

Law

natural

that

in

NATUEE

Introd.

AND

of relief which

EXTENT

afforded

was

EQUITY.

OF

Courts

Law

by Common

I.

Sect.

inadequate, but

was

in

the

which

Chancery

of

Court

assumed

could
on
jurisiliotion
of

account

the

rrive

quacy formance
of tile

ov

of

Common

Law

breach

thereof.

There

to avoid

complete

multiplicity

obtain

of the

also

than

the

in

be

had

which

in order

but

of
multiplicity

or

and

adequate

Law,

at

for the

8.

suits

to

was

for

the

Chancery

the

various

could

due

way

St.

" 26"28.)
these

adequate
Law,

the

three

and

Courts.

sity
neces-

for

of

rights

the

; whereas

case

their

decrees

to all

of all who

and
in

were

property in litigation. (See

of

used

Chancery

exclusive
in

all of

the

to

assert

an

in

could

had

which
not

plain,

be

had

at

and

concurrent

jurisdiction. Indeed,
last class

exclusive

of these

in

cases,

jurisdiction,by

injunctionagainst proceedings in

other

11.

necessityfor
to the
jurisdiction

discovery furnished

Court

of

discovery ;

settled form,

might arise,

classes of eases,

The

account

adapt

complete remedy

Court

granting an

more

10.

if not

Equity

of

which

of the

care

practicallyan
some,

could

interested in the

any

In

Courts

circumstances

take

in

do

defendant, irrespective

the

plaintiffor

peculiar circumstances

the

could not

Courts

positivejudgment

the

Law

by
9.

(See St. " 496, 621, 853, 854.)

Common

the

be done

complete justicecould

Equity.

pronounce

of

of the

only give daraages

cases

; whereas

suit in

either

on

times

former

(See St. " 30, 33.)

it,circuityof action

Again

take due

rightsnfall

or

in

specific
perr

care

could

relief could

necessary

to

Courts

were

action, ov

or

; whereas

contract

the

enforce

often

circaityof

of suits

would

For

relief.

preciselyappropriate

example, Equity

inade-

legalrelief

the

great varietyof

cognizance of

cases.

the

suit

frequently entertained

Chancery

For

the

for

the

it for

ground

for relief in

Court, having acquired


purpose
the

of

purpose

discovery,
of

relief.

NATURE

AND

(St. " 691, 692.)

EXTENT

And

OF

EQUITY.

under

although

the

Intkod.

present

Skc'i'

practice,since
the

Queen's

the

Bench

discovery of

of

Court.

And

in

Chancery

old

still

and

Acts

right
exists,
Eules
D.

C.

Gaskill, 20

v.

Law

Courts

Courts

if it was

so

no

of

or

of

could

In

3.

such

give

the Common

whether

doubtful

some

relief,the Court

of

Law

Chancery

that

procure

could

and

could

Chancery

provide the

used

have

Law

Common

Where

Courts

could

of the

of action

or

of the

property

in

it

they

been

of

Equity

jurisdiction,

to

Court

to
auxiliaryjurisdiction

that

with

Courts

the

that

Chancery,

evidence.

Law

Common

of all who

were

controversy. Equity had

could

take

interested
no

the

where

in

it

jifrisdicti

circuity

without

and

of suits,and
multiplicity

rights

relief.

Courts

always afford adequate relief without


Court

obtaining

Chancery
the

cases

could
able

Law

these

In
an

of

Court

Common

the

clear

was

Courts

doubt-

15.

(See St. " 64 k, 673.)


4.

the

which

obtain.
to

the

properly Where

Law

relief,had

which

not

most

was

the Common

due

evidence

obtain, but

formerly

matter

afforded

have

ov

such

cases

cognizable at Law,

always

^^'

jurisdiction.14.

had

of due
*

the

(See St. " 64 i, 81

Equity.

"

relief.

circumscribe

to

power

such

gave

account

the

thou^

even

on

denial
"

unless
jurisdiction,

subsequently

have

Courts

13.

Sp. 16.)
And

Law

adequate relief,the Court

concurrent

Courts

could

they

Common

enactment,
legislative

jurisdictionof

care

the

Chancery

the

afford

exercised

Common

aid

that

'-^

of

compel

to

power

Judicature

where

not

prevented by

of

the

Att.-Gen.

cases

did
originally

of

Courts

12.

509.)

For

held

Court

by

(See

have

been

the

modified

though

Acts, the

Division

it has

discovery,yet
of

Judicature

due
the

jurisdiction.

NATURE

(See

iNTEOD.
''''"

St.

EXTENT

AND

"

684

33,

"

EQUITY.

OF

686

c,

Sp.

408,

420;

'"

Sp.

16.

16.)

in

ousted

the

members

the

of

Courts

And

of

and

Nor,

could

which

It

Equity

subject
Acts.

be
and

of

19.

the

that

have

those

society

Parliament

Building
such

or

disputes

or

leaving

from

occasioning

inconvenience

to

which

rights

of

without

them

Equity

of

Courts

classes

enforced

mischief

than

be

disposed

that

of

in

18.

conscientice.

will

to

judicially

results

of

or

observed,

as

general

greater

foro

be

not

Act

provides

the

of

and

arbitration.

by

'jurisdiction

any

the

the

society

officials

where

Act,

already

as

the

alike

between

friendly

constituted,

is

general

disputes
other

of

in

are

internal

or

itself,

settled

be

Equity

any

Societies

Friendly
shall

or

it

which

under

building

society

the

of

case

itself,

society

and

Law

seen

from

Common

very

the

Law

great

next

section

Jurisdictions
alteration

that
have

by

the

both

the

been

the

Judicature

EFFECT

OF

JUDICATURE

Section
Of

the General

Efect of

Equity
"The
relate

prudence, which
do

make

not

with

not

first Act
which
into

the

Law
one

enables
with

Court.

High

and

of

Judge
of Law

And

Court

be

of

Equity

in

sation
organi-

as

But

whatsoever

as

entitled to in

in
respectively
all
possible,

such

is

by

of that

24

to deal

divided

now

Act

concurrently

section

the

certain

34

section
the
on

Court

such

shall

seem

of

the

any

respect of

any

cause

matter;

or
so

partiesrespectively
may

in

of

enables

24

of

reasonable

the
to

terms

just,all

such

partiesthereto
and

so

legal

every

by

them

that, as

controversy between
be

the

Appeal

properlybrought forward

matters

the

Superior Courts

by

as

and

them

to

and

Equity arising between

(7) of

Justice

equitableclaim

said

and

assigned to particularDivisions

conditions

may

They

C. 309.)

section

Court

far

so

'-^

the remedies

Justice, which

and

Juris-

separatelyadministered

were

of that

iNTRon.

to

fusion

only with

Divisions."

every

is

of Law

different

Equity
Court

High
"

the

Sub-section

remedies

as

deal

not

entirely

this Manual.

is only

grant, either absolutelyor

and

or

Acts

parties,except

business

1875, almost

rightsof parties. (12 A.

matters

same

and

fusion

fusion

regards

as

Jurisprudence.

subjectof

The

consolidates

into three

"

the

Acts,

Practice, and

general

any

and

and

is the

Jurisprudence.
;

and

Acts, 1873

Pleading

to

II.

the Judicature

Jurisdiction

Judicature

ACTS.

far
the

completelyand finally

"

^^"

10

EFFECT

iNTEOD.

OF

determined, and

multiplicityof legal proceedings

all

of such

concerning any

88, 89, 90, and

Courts,

the

to

25

(of which

by

of law

only

which
and

of

also makes
in

all

in the

the

Law

the

with

Equity

Section
and

causes

of

Equity
the

to
"

prevail

34

places in

is any

pertain

this

Manual,

that

rally
"gene-

particularly

conflict

the

or

variance

of Common

rules

matter, the

same

rules

of

20.

(11).
to

the

Chancery

for

any

of

assigns
matters

and

in

Jurisprudence,

of

hereinbefore

there

reference

shall

makes

Equity (4),

not

of 1875)

interest

important enactment,

matters

rules

Act

beneficial

proper

replaced

by operation

merger

no

specificpoints

mentioned, in which
between

in

merge

noticed

are

of the

section 10
be

tions
sec-

to Inferior

powers

(1) is repealed and

estate, the

other

And

jurisdiction.Section

their

shall

any

not

in

changes

of

extent

there

would

which

give similar

91

sub-section

that

provides

avoided."

matters

provisionin

similar

ACTS.

JUDICATURE

the

Division

all

followingpurposes:

"

The

administration

of

the

estates

of

deceased

persons.
The

dissolution

of

partnership or

partnerships or

other

redemption

The

raisingof portions or

The

sale

and

foreclosure

The

execution

The

rectification

deeds
The

or

any

other

or

contracts

other

lien

charges
of
or

settingaside

written

purchasers
for leases.

of

mortgages.

of trusts, charitable

specificperformance
and

of

distribution

property subjectto

taking

accounts.

The

or

the

the

on

land.

proceeds

of

charge.
or
or

private.
cancellation

of

instruments.
of contracts
of

real

between

estates,

dors
ven-

including

EFFECT

The

OF

partition

JUDICATUEE

sale

or

of

11

ACTS.

real

Introd,

estates.

Sect.

The

wardship

of

infants

and

the

of

care

infants'

estates.

Since

the
the

to

other

Act

Chancery

those

Division

arising

Settled

under

Land

20

will

It

than

be

that

the

been

either

leave

to

to

Chancery

Division

whenever

its

minor

partners,
and

of

the

the

inventions

rice

compliments."

it

'

.have

has

the

Infants

20

b.

little

be

may

mutual

said

Acts

and

or

to

utilised

from

has

other

the

turn

predominant
been

more

already

Division

borrowed

with

versa,

it

heretofore,

as

into

does

Judicature

the

Chancery

themselves

cases

or

of

matters

indeed

and

effect

"

34

Division

Chancery

jurisdiction
general

section

that

the

Divisions

few

e.g.,

Acts,

Guardianship

the

a.

to

its

within

statutes

Conveyancing

and

noticed

assign

assigned

been

various

by
the

Acts,

1886.

Act,

have

matters

partner
;

or

its

acknowledgments

in

other

'

II.

12

GENERAL

MAXIMS.

III.

Section
the General

Of
In

Intkod.
III.

Sect.

as

addition

Maxims

those maxims

to

well in Common

and

besides

of Equity Jurisprudence.

Law

various

Courts
other

apply to particularparts
certain

are

in

bear
I.

No

remedy.

is

in

as

of the

upon

Equity,

of

in

which

terms

Equity system,

there

peculiar to Equity which

reading or

that

maxim,

in Courts

and

rightlyto understand,

greatestuse

mind, whether

I. It

wrong

without

acted

are

maxims

general maxims

it is of the

which

practice. 21.

in

will not

Equity

to

suffer

be

to

wrong

without

remedy,

expressed: Equity will


a

It will

remedy.

that

this maxim
of

aimed

at

existed
at

and

evident

lies at the

supplying

trusts.

But

made

the

Common
of

root

very

regarded

be

suffer

it is sometimes

as

from

of

which

Law, and

in

at

time

one

particularit
doctrine

it will also appear

in that

large proportion

system which

defects

modern

first section

the

foundation

the

be without

rightto

Equity Jurisprudence, as

in the

the

not

or

from

section,that this

the

maxim

of

lies

uses

tions
observamust

be

to rightswhich
referringexclusively
come
within a class of rightsrecognised at Law, or
capable
of being judicially
enforced
without
occasioning a
as

greater detriment
would

foro
for

result

from

conscientice.

which

Equity,

there
as

in

inconvenience

or

leaving them
For
is

the

there

no
cases

are

remedy,
of

to

to the

be

disposed of

still many

either

damnum

publicthan
in

real wrongs
at

Law

or

in

absque injuria,

14

MAXIMS.

GENERAL

Intkod.
Sect.

in the

supplyinga remedy
IV.

Equity

follows

would

Although Equity

IV.

it is

the

Law.

in

regard

in

all

the

by

children

of younger

favour

caused

in proper

entitled to the

otherwise
would

be

other

inequitableto
to

person,

having

use

descended

technical

Secondly, that

by

in

was

regard

estates

Law,

as

rules

the

of

canons

of words

of Law.

Limitation

of

The

is it

are

of limitation

Statute

Equity is

as

since it

the

'

means

(See

analogies

rules

the

be

Common

rules

legalestates

which

by

regulated at
of

for

of

struction
con-

; and

brought

it

within

legal proceedings

is true in both

the above

universallytrue,

application.Where
the

or

upon

intended.

same

maxim.

neither

claim

of

28.

kind.
maxim

Thus, it appliesto

descent, and

period prescribed

similar

the heir-at-law

follows

generallyrequiresproceedings to
the

hardship

equitableestates, rights,

to

interests

and

the

the

heir-at-law, or any

never

and interests the

estates
equitable

legal

governed

advantage as

interests.Equity adopts and

furnished

is

27.

infra,par. 31.)
and

terms, be

property

the

allow

of Law

primogeniture.

of

made

cases,

defrauding others, which

of

rule

and

interposed in

never

mitigate

to

of persons

in favour

trustee

in

may,

has

of the

rigour

the

by

Equity has,

But
a

descent, and

on

canons

rules

rules

example, Equity

for

applicable. Thus,

the

follows

those

to which

cases

to be;

seem

legal estates, rights,

to

interests. Equity adopts and


in

would

of this maxim

meaning

First; that

the Law.

Equity follows

that

26.

(See St. " 64.)


true

mentioned, yet

above

cases

maxim

well-known

The

the

Law

the

beyond

go

III.

Law
much

rule

is direct

bound

at

or

senses

by

it

but in

least of universal

either of the
and

Common

applicable,a Court
as

Court

of Common

or

of

GENERAL

La^Y, and

can

little

as

15

MAXIMS.

justifya departure from

it.

Introd.
Sfct

But,

the other

on

it

hand,

Equity only follows

so

far

on

peculiarcircumstances,

as

Court

upon

with

the

render

the maxim

to

be observed

that

that

by

which

accordance

that

Equity will
29.
follows the

Equity

although

the

illustration
maxim
?ftl^e

limitations

"

equitableestates

in

created

are

by

way

manner

case

will create

an

such

yet

case,

always

would

of

kind

same

constructive

of trust

in the

assimilation

one

other

does

not

Maxim

*"

For, in

'

of trusts

case

executory, there

analogy,forming
in

because
actual

limitations,such

created,

are

the

cases

many

in

mode

property

be

assurance,

and

according

to

settled

by

intent
would

what

" Tu.

763

Li reference
the

Law

grounded
"

to

and

far

such

be

wishes

the
the
or

construed

rather

than

operation of
limitations

final instrument.
; Lord

to

as

to be

party,

actual

much

so

settlement,

are

strict

tial
substan-

legalestates

trust

future

the

in

the
tained
con-

(As to these

Glenorchy

v.

Bosville,

seq.) 30.
that Equity
qualification

to the

only as
on

et

which

the

some

be the

post, par. 237

trusts, see
2 Wh.

formal

of

of

not

intimations

the words

therefore

no

assimilation

are

by

or

author

words, supposing them


in

those

the

the

according to

words

instructions

as

which
to

as

often

is

for such

ground

executory

all respects.

the

does

tnLtJ'''^^

created

237).

{post, par.

executory

6Cl.ltGCl

same

tail in

estate

an

of the

the

legalestates, so that,

create

estate

in

place in regard to equitableestates

take

way

construed

are

limitations

what

example,

for

by

similar

as

236)

regard to

trusts

of trust

GX

{post,par.

executed

"

it incumbent

remedy.

III

^^

Law

grounded

interpose in

to

to be without

wrong

it may

which

previouslymentioned,

In reference

Law,

claims
sacrificing

Equity

of

maxim

suffer

not

without

can

the

as

it

can

without

follows

claims
sacrificing

peculiar circumstances

as

above

Illustrations

fioationldd
"^

^^^ writer's

statement

of

16

Intiiod.
Sect.

the

observed, that Equity follows

mentioned, it maybe

III.

Law

in

that

rule

to the

regard

the true
of

meaning
the maxim.
Law

MAXIMS.

GENEBAL

be

may

primogeniture,although

of

so

greatest hardship

the

productiveof

it is

in which

instance
particular

in any

followed

rule

of

primogeni-

ture

the

towards

the

operation of

the

whilst
But

these

of

rule, may

be

eldest

the

son

relief

to

against

the

in

eldest

which
provision,

neglect of
eldest

the

He

entailed

fact that

their parent
in

other

can

children

provision

which

relief could

be

the

right

to

the

Equity

reference

any

has

no

been

provided

not

in

such
a

of

to do.

power

But

should, by parol,promise his father

portions,if
raise

be

if they had

as

So

Equity

Limitations.

289

et

will

where

nugatory.
of

deemed

way

executed

Statute

would

not

liable at

support

Law

at

in

the

; Toilet

cases

(21 Jac. I.

c.

act
v.

under

that
No

Court

eldest
his

son

sisters'

felled to

Law, he would
in

the land.
a

of

to be

them,

charged on

often

(St. " 64

seq.) And

Limitations

liable to pay

an

to pay

direct timber

been

younger

which

if

not

them, although

Equity
Powers.

he

by

this, without

as

Law,

for

him.

appointed
case

the

obligation,

strip him,

to

rule

no

and

give the

can

has

Law

son

or

stances
circum-

the

to

family;

himself, and

the

descended

of the

the eldest

directly
derogatingfrom
of

culpable

equity,
againstthe

have

given

the

of

want

or

no

equitable right

no

absence

create

impose on

divest

Equity, to

the

demanding

arisep from

members

they

younger

can

estate, without
of the

mere

has

sion,
provi-

afHuence.

the

of

mere

by

creatingan

and

son,

have

may

parent,

son.

placed in

favour

The

of Equity.
interposition
a

left without

be

may

family who,

peculiarcircumstances

not

are

equitable right
children

members

younger

the

in

same

(St. " 64.)

power

defectively

would

be

Toilet,2 Wh.
the

old

wholly
"

Statute

Tu.
of

16), Equity often interfered,

GENERAL

17

MAXIMS.

notwithstandingthe ti,mefixed by

the

Statute

Inteod.

had

Sect.

it would

have

been

allowed

Statute to be

the

statutorybar
appliedat
not

overturn

enactment.

to
inequitable

when

as

till the

(St."64 a.) But althougb,


follow the

not

Law, yet it did

or

destroythe general applicationof

It

only

instances, where

refused

there

'"

have

person

discovered

not

was

Law.

Equity did

cases,

bar;

perpetrateda fraud, which


in these

III.
'-

expired,where

apply it

to

peculiar

were

in

the

particular

circumstances

creatingan

equitableright to relief,demanding the


of the Court in its support, and capable
interposition
of

being

the

of the enactment
general application

So

far

enforced

acted

St.

64

"

V.
.,

that
"

tibus, cequitassubvenit

of any

Statutes
where

Allcard

the

of

has

of

D. M.

"

to

injusticeto
in the

s.

keep

G. 787.)

cases

many

always

unreasonable

C.

D.

196.)

be

it alive.
In

145
And

the

persons

to

in prosecuting

in
acquiescence
959

a, 1284

the

mere

act to

assertion

give effect to
it) will

enforce

{Clegg v. Edmondson,-

case

of

who

had

Rochefoucauldv.

laches, it would

impossibleto interfere,without

third

V. VigiUmtihus,non
dormientibas.

is, that

refused

laches

gross

by takinglegalproceedingsto

avail

the

been

claim, unaccompanied by any

it (as
not

1 Ch.

which

oi

rights. (St. "

of adverse

Boustead, (1897)

1.1-1./1/

meanmg

Limitation, has

there

dormien-

laches, and, independentlysiibvenit

Skinner, 36

v.

like

apply. (See

non
vigilantibus,

:-!

or
rights,
longand

the assertion

relief in

not

"

discountenances

interfere

did

question.

Statute, Equity

refused

Statute

maxim

Equity

in

31.

a.)

It is

the

derogating from

the

it and

upon

which

to

all

at

derogating from

from

by analogy
cases

without

in

doing

acquiredinterests

property during the interveningperiod. Thus,

right of

creditor to make

legateesrefund
c

may

18

MAXIMS.

GENEEAL

Introd.

by laches.

be lost

{Ridgway

Netvstead, 2 Gif. 492

v.

III

Sect
'"

'-"

Lehmann

inasmuch

his

as

follow

under

ordinary circumstances,

grant

Gale, 32

stale demands,

to

C. D.

571.)

where

the

rights,for nothing
but

Equity
been

emblem
and

the

evidence

no

D.

F. "
"If

J.
a

be

act

person

any

determined

who

right of
as

accord

and

It

"

the

to

he

one

cuts

innocence

Legerton, 2

v.

he

or

the person

be heard
the

assent

very

has

different
then

to

being

mitted,
com-

complain

the

upon

in

general rule, cannot


release

be

of

completed
part

matter

him

in

abstained

is

act

by

of the

is to be

legalconsiderations.

vested

satisfaction,
or

ting
commit-

ting
commit-

have

to its

assents

once

of

right,stands

otherwise

afterwards
when

seeing another

course

right is infringed,the

action

events

the

{Bright

in the

or

might

knowledge

on

of

reasonable

respect

right,and

whose

interference

periodwhen

induce

'

reallyto

as

But

act.

the

assailed.

it,to believe that

without

the

with

that

he cannot
the

his

32.

the act, and


from

its aid

sleptupon

with

infringingupon

manner

which,

might protect innocence,

out

commit,

to

the

is entitled,

faith, and

while

having

person

an

depictedas carryinga scythe

which

617.)

about

person

such

is

he metes

longer

can

to

refuses

has

party

of

duty

Clay, 3 Bro. C. C. 460, n.)

v.

Time, who

the other

with

is

the

Equity

call forth

can

hour-glass,that

an

his debt

creditor

beautifullyremarked,
of

down

it

conscience, good

diligence. {Smith
has

have

equitable relief

that

not

v.

which

assets

make

will

Court

{Blake

Since,

496.)

Equity, equitable considerations, if

sufficiently
weighty,
to

Ch.

providing for

without

in

right only

E.

right to

distributed

been

L.

Arthur,

Mc

v.

which,

at all

divested without

under

seal.

Mere

GENEEAL

submission

the

to

injury for

under

statute

action cannot

the

refusingrelief

take

under

l)yitself constitute
would

promise

be

take

not

to such

without

binding." (De

not

Intuob.
"

for

ground

the

legalproceedings

any

to him

could

not

for
proceedings,

consideration, and

Bussche

the

promise by

injurydone

bar

afford

express

would

the

of

particularcircumstances
an

he

redress

to

it may

even

injured that

person

of the

right,although

such

away

some

it is clear that

and

short

for the enforcement

of laches

name

time

any

^^

period limited by
rightof

19

'

MAXIMS.

the

fore
there-

Alt, 8 C. D. 286,

v.

33.

314.)
VI.

Where

there

is

equal Equity, the

Law

must

vi.
there

.,

prevail ;

other

-o

,1

Ti.!,-,

words, if the

defendant

claim

the

protectionof Equity, equal to the claim which


has
to its assistance,there Equity will
plaintiff

not

interpose,but

consideration

notice of the adverse

the

of

defence

2 Wh.

Tu.

"

150

Another

VII.

et

seq.)

c, 436

if he
title,

apparent

an

self
to avail him-

chooses
time

proper

valuable

; Basset

and
v.

in

Nosicorthy,

34.

this principle.Equity leans

on

it

incident

of the

it is true

chance

that

of

an

each

being
end

with

attended

G4

jointtenant^may

of

to

chance
the

as

Equality

stronglyagainst

drawn

the

joint purchase
"'' '""'tg'^g''-

inseparable

have

soon

equalitybetween

as

equal

an

but

survivor, yet this is

the

VII.

f.)jiiJ^'i^^

rightof survivorship. For, although

equalityin point
is

is

the

is, that Equality is Equity,

maxim

jointtenancy, as

there

the

at

from

prevail!^

fere
to inter-

Equity delightethin Equality, (St. "

or, that

Acting

if he

(St. " 64

mode.

proper

purchased

has

and
possession,

in

Equity refuses

without

equal

Equity, the

it stands.

as

fide purchaser for

possessionor

owner

matter

bond

against a
is in

that

this account

It is upon

the

is

,.

has

to the

will leave

where

one

them
c2

an

dies,
:

on

from

20

MAXIMS.

GENERAL

Introd.
Sect.

whole

the

to

that

event

the

equal certainty of having

accrues

share,

or

far

so

considered

in

Equity

of

the

whole

having

an

absolute

equal

therefore,

take

the

acting

them,

of

hold

will

Equity,

the

to

952

et

of the
thd

this

limitations

of the

Law,

as

who

comes

into

Equitycome

Equity
a

with, clean

must

delivery up

hands.
Illustration
from

and

to
an

himself

he

is, that

with

come

of

portionate
pro-

"

Tu.

illustration

Equity

follows

clean

cancel,

who

So

aside,

set

that

obtain

or

of

account

on

into

comes

hands.

instrument
has

he

if
the

fraud,

guilty of wilful participation

been

in

fraudulent
transaction.

in

his

allowing it
727.)
Qualification

The

however

fraud,

Equity
the

stand.

not

interpose
against public

is

fraud

public policy
to

will

would

be

(See St. "

defeated

695

by

post, par.

36.
rule

misconduct
in the

the

behalf, unless

policy,and

of the maxim.

maxim

seeks

person

that

the

advanced

2 Wh.

another

maxim,

for

is

explained. 35.

above

Another

so

Gibson,

furnishes

either

share

money

v.

in

Equality

to

as

the

; Lake

seq.) And

VIII.

He

of

amount

(See St. " 1206

him.

by

the

of

trustee

deceased,

the

of
representatives

estate,

an

money

that

survivor

true

persons

death

the

on

maxim

the

on

of

mortgage

or

unequal proportions, Equity,

the

be

if two

mortgage

purchase

chance

property purchased.
to

And

is

permit,

equal

an

the

of

share

equal

an

will

than

of the

amount

is

is considered

former

advance

the

case

none

or

jointlypurchase, or
and

the

far better

just equality.

and

drawn

And

which

justice of

the

as

The

must

survivor.

proportionateto

share

purthase-money advanced,

VIII.

the

III.

must

in

be

regard

understood
:

to the

foregoingexample,
gross,

which

and

to

matter
not

is unconnected

refer
in

to

wilful

as
litigation,

to any
with

misconduct,
the

matter

22

GENERAL

Introd.

Sect.

in

not

e.g.,

MAXIMS.

of

favour

{Chetwynd

volunteers.

v.

III.

Conversion.

As

directed

as

they

directed
at

circumstances.

{Post, par.

in

partiesinterested
their deaths

take

to

the

for

or

could

have

have

have
should

given

given, and

object,it

be real

the

them,

to

is

conversion

must

favour

will not

be

rightlymade,

of

cannot

be

convenient
Court

follow, unless

reconversion.

made.

as

the

would

property

it be

permitted.
all the

being

consent

unless

will

consents

conversion

parties to

of

reason

be considered

will

personal,which,

or

the

such

option of determiningwhether

conversion

in

whether

of

by

if any

cause,

judge

to

that

consents

purchase

to

the

where

obtained, the

otherwise, the

were

the

been

been

paramount

If this

other

some

itself

upon

ought

actual

is, either

according

required by the instrument,

as

purchase

the

to

which

plain,

is

but

made,

be

into

And

409.)

articles

marriage

should

conversion

obtained

some

general

that

"

time,

future

immediately, or
intention

property

land

in

are

converted

be

to

land, and

money,

species of

that

regarded
are

into

directed

money

of

purchase

the

turned

be

to

maxim,

of this
in

employed

41.

596.)

consequence

be

to

C. D.

31

Morgan,

And

clearly
when

of

consequences

there

be

(Brett's L.

equity

an

C,

127

et

seq.) 42.
Where
of the
way,

to

money

who

person

the

cease.

Where
there is

converted

is

absolutelyentitled

operation

(2

Sp. 270.)

the
some

by

of

the

gets into the hands

rule

of

person

any

act

to it either

conversion

will

46.

property is outstandingin

property, whether
person,

be

who

taken
from

is
as

trustee, but

absolutelyentitled

to the

realtyor personalty,such

which

his intention

may

be

GENERAL

collected,may

28

MAXIMS.

declare

his election in what

quality it

Inteod.
^T'PT

Wh.

"

(2 Sp. 271

327

et

property passes

as

lies

Tu.

those

on

another

if

As

than

that it would

equal, priorityof

time

time

is

between

other

of time

XII.

Where

one

have

been

shall be

(Lechmere

In

the

is bound

man

in

fulfilment

construed

of

"

Tu.

covenant

on

Wh.

407

"

the
Tu.

sum,
an

his

wife

her

or

or

intestacy, if equal

covenanted

to
; if

be

paid,is

less, as

or

to

on

priority

50,
act, and

he

considered

to

an

obligation,it
of

acts
;

xii.

Equity

Intention
toMfiia"

the

right to put
399

the

that, on

relative

to

has,

one

others.

Blandy

v.

seq.) 51.

et

distributive

finds,

equities

other,

his

covenantor,

their

being
it is

it

on

preference

if the
the

of

because

construction

Lechmere,

case

of

to ;

merits, that

of

to do

done

2 Wh.

Widmore,

until

{Post, par. 529.)

capable

v.

resorted

relative

equitythan

better

"?'"'^-

contest

to the other

one

words, that

is

so

in

ground

which

favourable

most

their

other

is immaterial.

does

But

respects equal : and

grounds, a

respects pltlorlS^

equity: qui

preference

sufficient

or, in

them,

better

Quiprior

only equitable interests,

last

of

other

no

in all other

are

if converted.

other

priorityof time,

examination

an

there

of

all

prefer the

not

ground

mere

upon

is the

will

in

jure.

est

having

persons

i.e.,the Court
the

to take it in

have

gives the

tempore, potior

priorityof

onus

having only equitableXI.

persons

equitiesare

between

the

47.

between

est

and

election

an

interests, if their

prior

election is made, the

an

show

'"

Ashburner, 1

v.

actuallyconverted,

would

character

XI.

; Fletcher

seq.) Until

who

Sp. 272.)

(2

TTT
'

shall be taken.

shall

death

of the

Where
ai
distributive

receive

share, in

the

greater than
be considered

gross
of

case

the
as

part performance. But

sum

share

'nobhgati
by

formance
per-

where

is

covenant,

24

MAXIMS.

GBNEEAL

the

Introd.

secured

Loss
be borne

must

the

death

is not

on

share

XIII.

is, that

covenant

{lb.; and

see

XIII.

It is

"

whenever

by person
occasioningit. the act

or

third

innocent

of two

who

has, however

such

third

innocently,put

proximate
of

the

to

be

would

of

even
a

to

do, but

to do

person

XIV.

Rules

foreign

as
or

colonial

property

or

It may

situate

in

the

be the

neglect

what

himself

his

duty

prevented

liable for such

him

nor

omission

mere

have

the

to

Keith

the

loss.

Burrows,

v.

53.

734.)

rule, that

But

363.)

it is not

Lindley, J., in

of

Walters,

v.

itself and

person

wPiich

something

of

power

neglect of

The

stranger.

sufficient to render

(See judgment

to

to the

which, if done, would

not

1 C. P. D.

the

by

the loss

affected by it and

respect

to

duty

some

by

loss,is

in

prudent

the

{Hunter

merely

not

it in

it must

loss,and

person

general public,and

bear

transaction

in the

of the

must

56 L. J. Ch.

Hope,

v.

be

cause

duty

some

it.

to occasion

person

neglect must

the

one

suffer

must

persons

that

person,

Equity, that

in

and

Law

at

part performancSi

or

52.

316.)

both

rule

tive
distribu-

the

covenantor,

performance

post, par.

one

of

of the

L. E. 7 Ch. 75 ; French

XIV.

paid

be

shall

annuity

an

III.

Sect.

be

in

observed

place, that it is

this

although

the

property in controversybe

country

out

of

the

jurisdictionof

the

contracts.

Court, whether

Court, in

yet the

within

are

the

afford relief,
so

against

the

property.

all

English

far

it

as

be

can

and

Wh.

not

Ewing, Brett's

Orr

be

brought for

L.

"

Tu.

C. 1.)

Court, will

directlyagainst
1352
755

Thus,

et
a

partitionof land situate

jurisdiction
; for

parties

proper

of the

not,

or

afforded,by proceeding

(See St. " 1290"1300,


1

dominions
the

where

cases

persons,

V.

of the

the

territorial process

Baltimore,

Lord

out

within

the

Court

the

; Penn

seq

v.

Ewing

suit cannot
in

cannot

country
award

GENERAL

commission

But

and

be

may

profitsof

specificperformance

of

land.

being

the

jurisdictionto

And

colonies.

the

Court

the
sales

under

advantage

"of

right

in

one

Eq. 118.)

18

to
indirectly

and

haul
over-

even

the

fraud

has

able
grossly inequit-

(St. " 1294;

of
jurisdiction

the

another

of

disposed

of

law

the

of

case

the

tribunal.

remedy
the

law

the

of

Sp. 14.)

domicile,

property

here

up

whole

others

which

can

Eq. 175.)

the
But

must

country
contracts

be
will

Court

matter

be

it is

with

the

"

is to

where

country

Courts.

contracts

upon

the

follows

giving

need, for instituting


any

Colonial

Baillie, L. E.

(2

will leave

that

of account,

matters

jurisdictionof
in

given by

the

country,

by

immovable

or

the

by

directions, in

V.

tribunal

special circumstances,

land

to

instance, with

"entertain

reside.

E.

taken.

convenientlydisposed of

The

of land

Yet, if that question is mixed

situate.

Baillie

between

55.

"determined

more

decree

judgments, where

rightto personal property

the

for

been

be

to

(2 Sp. 10.)

but

as

judghiehts, or

under

excepi

matter

The

far

jurisdictionin

competent

the

such

Ede,.L.

so

is within

matter

Court,

the

54.

Sp. 9.)
a

closure
fore-

depriving

in personam,

mortgagee

v.

those

has

for

respecting
And

foreign Courts,

of

in those

intervened

and

gone

judgments

made

If

or
Jurisdiction,

agreement

an

of the

account

an

of the

make

(Paget
has

{d).)

n.

personal right to redeem,

English mortgagor

of

for

decree

of his

mortgagor

"Court has
an

Sp. 8,

(St. " 1291, 1300, 743, 744.)

decree
the

Intkod.
'-

maintained
out

such

"

(St. " 1292;

land

rents
a

there.

suit

25

MAXIMS.

(2 Sp. 12

ceedings
pro; see

56.
be

which

that

where
are

the

is

parties

generally

"

'"

26

GENEEAL

Inteod.
Sect.

construed

according

MAXIMS.

the

to

law

the

of

they
will

made.

were

be

not

of

the

of

the

(2

Sp.

the

of

it

(if

art

exist,
the

ordinary

PhUlipps,

both

L.

M.

is

by
be
G.

law

foreign

Court,

translation

of

the

terms

of

and,

if

with

And,
the

any

this
itself

contract

{Bi
58.

any

fourthly,

construction,
law.

57.

731.)

of

construction.

633.)

the

evidence

case

of

law

English

an

thirdly,
the

the

enforced.

in

made

interprets

624,

by

explanation

foreign

of

"

first,

rules

then

C.

D.

to

contract

and

sought
8

to

the

by

valid

made,

is

an

any)

Court

H.

is

obtains,

secondly,

principles
10

it

language,

peculiar

any

rules

assistance,

it,

applicable

of

rule,

Hope,

foreign

contains

law

general

was

it

v.

interpret
;

contract

instrument

evidence

on

Hope

in

it

which

written

to

foreign

such

and

order

which

in

country
in

it

14

13,

as

unless

enforced,

country

Where

'^

And,

country

which

in

place

"

Ill,

Sara

v.

DIVISION

OF

Section

the

Of
The

subject

veniently,
the

and

following

distinctive

Of

Executive

III.

Of

Adjustive

IV.

Of

Protective

V.

Of

(a)

that,

Now

concurrently
"

certain

Court
of
more

Law,

is,

as

the

appropriate

the

or

of

force

favour

Acts,

Judicature
Bench

assigned

division
which

to

it,

to

Equity

of

disability.

of

of

persons

60.

assigned

the
the

in

Queen's

the

being

division
than

the

of
in

matters

auxiliary jurisdiction,

more

termed.

so

irrespective

Equity,

matters

above

the

to

afforded,

specifically

Equity,

virtue

regards

Equity.

administered

particular

under

Equity.

disability.

by

relief

Inteod.

con-

effected.

be

Equity,

Protective
under

the

of
to

treated

according

designated

be

may

properly,

most

sought

(a).

Jurisprudence

characteristics

Eemedial

II.

of Equity

Equity

heads,

Of

IV.

Division

perhaps

objects

general
I.

of

27

EQUITY.

Law

and
each

of

and

destroyed.

Equity

would

are

Divisions
every

"

concurrent,
is

Equity

Division

Court

jurisdiction
into

and

Chancery

as

well

as

to

be

seem

exclusive,

and

'

TITLE

I.

I.

CHAPTEE

ACCIDENT.

OF

Tit.

I.

'-'"""

^-

of

Accident,

the

usual

referable

not

occurrence

Definition

in

accident,

An

Termed.

Equity, Specificallyso

Of Remedial

to

in

the

term,

is

be

defined

an

61.

design.

remediable

as

of

sense

Equity,

may

cLCClQGlllj*

be

to

attributable
Illnstratiou

of^

reduction

Thus,

in

stock.

the

to

jjg secured
Act

mistake,

to

in

sufficient

by

provide

accident

the

Law!

II.

'^

I.
*

^"^

culpability
the

sufferer

so

that

by

the

ment
investis

annuity,

relieve

will

Equity

remedy

to

reduction
the

the

answer

which

cases

there

was

the

of

cases

many

always

which

cases

by will

decreeing

the

residuary legatees.-

63.

could

be

other

accident

obtained
in

remedy

no

remedy

no

(St. " 79.)


in

public stock

subsequent

against

up

in

directed

stock,
to

may

made

are

On

the

of

62.

hand,

Law

at

Equity.

there

are

in

which

and

in

(St. " 79.)


many

due

such

64.
ia

cases

^"

able,

as

be

to

There

the

stock,

and

veliei

II.

Accidents

annuity

liabilityfor

executors,

(St. " 93.)


Accidents

an

insufficient
from

deficiency

I.

for

not

occurrence,^

misconduct.

or

investment

Parliament

of

neglect,
an

such

by

injurious

of

case

becomes
an

and

unforeseen

an

of

1.

No

65.

relief

can

be

had

either

legal

or

equitable.

Thus,
win

be

granted

where

the

accident

of
n

arose

from

it

the

seeking relief,or

gross

his

neglect
agents.

or

fault

of

(St. " 105.)

the

66.

party

30

ACCIDENT.

Tit.

I.

Cap.

I.

will
as

where

afforded

will be

the

to

(see St. " 105 a, 106)

defectivelyexecuted

will is

being mere

defectively

heir

volunteers, they have


of

next

or

kin, or

under

devisees

legatees or

little equity as

as

less,inasmuch

even

for,
the

fortioret

as

executed.

be

latter will not


"

away

; as

the

law

must

could
due

not,

prevail." 69,

originally

affected
party prejudicially

the

the

respect of

in

if it could

Chancery,

of

Court

blame

from

free

was

accident, relief

take

interested,and

all persons

rights of

of the

care

not, give adequate relief,and

did

or

the

is,that

maxim

Equity.

in

vested

Courts

Law

Common

the

where

III. But

Ill Accidents
in
remediable

taken

equity is equal, the

the

where

has

legalright which

the

therefore

and

(Co. Litt. 338 a) :

hominis

legisquam
eequiorest dispositio

granted by the

was

granted without

be

derogatingfrom any positiveagreement, or violating


And
in another person.
any equal or superiorequity
of Law

although Courts
formerly they

they

in

discovery
cases

still have

1. Li

1. Jurisdiction

is not

thereby

the

Court

of

destroyed,
lost,or

Chancery Division) to compel

suppressed

to have

to

Law

limited extent

very

somewhat

and

by the

the

Under
same

; and

preliminary

compelled discoveryonly
of the Common

conferred

were

Procedure

of

was

seem

71,

the Judicature

power

Chancery Courts
Court,

Law

the

discoverywould

by virtue

larger powers

Common

repealed.
have

Courts

Chancery (now

this

peculiarto Equity.

Common

The

universal, because

been

assistance

of

70.

destroyed, lost,or suppressed deeds,

of

cases

but

away,

jurisdiction. (See St. " 28,

concurrent

jurisdictionof

the

of

deeds, and

taken

i, 79, 81, 85, 89, 101, 105, 106, 109.)

64

for

not, yet the originaljurisdiction

could

Equity

of

Courts

of

grant relief where

now

can

Act,

Law,
them

on

1854,

now

Acts, however, they

compelling discoveryas

subjectto the Orders

litigant,either

in

the

and

Chancery

the

Eules

Courts

ACCIDENT.

in

or

the

Common

discoveryhe
in

or

could

Equity,

either

Law

at

Law

in

or

in these

But

addition

to

8 A. C. 223

of these

all

along been
of

mentioned

the

obtain

cannot

it

able

to

of limited

Common

extent

Law

have

case

enjoy
deed,

the

of

equitablerelief

where

the

has

been

either

deed

that

destroyed

of
was

has^juriad
f'onfor
those

relief
cases.

destroyed, or

so

; for

there

decree

the

shall
plaintiff
shall

73.

concerning land

is

the

lost,and

discovery,and

and

produce the

(St." 84.)

not

hold

its destruction.

to be

party

established

it, Equity will afford relief;

there

was

remedy

no

jurisdictionin Equity

lost bond

given

profert. And

at

the

profert at

; because

Law,

at Law.

(St.

Law,

the

on

until
account

decree

to

recent

pay-

period no

of the want

of

Law

defendant

does

not

destroy

(St." 81, 82.)


had

not

the

the

And

ancient

besides,

protectionof

Jurisdiction

lost bonds.

subsequent practiceof dispensing

in Equity.
jurisdiction
at

been

until the defendant

case

is

2. There

with

or

in

74.

"84.)

relief

Instances

\n

Equity (which formerly could

possessionunder
a

be

may

plaintiffavers

only concealed
that

Law),

land

for in such

ment

it has

in

possessionseeks

in his

in

been

defendant, but that he (the plaintiff)

been

admit

or

So if
in

the

whether

in

made

be

suehllfes!

have

""

be obtained

may

jurisdiction

for, in

Courts

administer, and

instances

it has

whether

of

doing complete justice. (St. " 83, 84.)

by

not

"

now.

the Court

"

knows

"

Williamson,

v.

of
jurisdiction

the

cases

the

concealed

i.

entitled to it

not

was

Tit.

^^^

either at Law

Chancery Division) for relief,in

relating to land

deed

had

all the

72.

the

other

Among

obtain

can

Hunnings

discovery,was

some

habit

he

Equity, he

cases,

Chancery (now

the

where

D. 459.)

B.

Q.

10

Courts,

formerly have

but

(LyellY.Kennedy,

31

the

ACCIDENT.

32

Tit.

I.

Cap.

1.

to
plaintiff

of the

oath

it is often

bond

party giving a
Common

Court

Law

the

of

of

judgment

offer may

the

bond

of

oases

securities.

Law

would

because

no

allowed

of

such

to relieve

such

for, in

party

the

to

great change

been

remedy

executors.

case,

at any

indemnity

at

in

always

4. Another
on

them

in

pay

full,and

due

(Edivards

debts

or

the

v.

Freeman,

the

of the

relief will be

absence

76

there

the

was

an

in

was

relief

Law
J.

"

because
in such

Wms.

cases.

give

executor,

legacies,
pays

relieved

there

would
an

estate

of

76.

701.)

where

was

of

Equity,

account

on

the Court

the

P.

Bills

now

some

turns

executor, if he

caution, will be

Fulford.AC.B.SSd.)
5. In

in which

afterwards
Here

at

1 K.

of accident

various

when

rate

exchange,

Maidstone,

insufficient.

with

There

complete remedy

ground

was

jurisdictionin

See

86.

70.)

bill of

instance

the

having to

of

Lord

V.

s.

oyer

bill,constituting
a
ground

to give
jurisdiction

was

relief

in

the

lost

security,

no

where
insufficient,
or

Act, 1882,

destruction

be

jurisdiction. (St. " 85,

(Wnght
Payments

in such

offer of

the

and

necessary,

also

was

on

negotiableunsealed
; and

at Law

no

due

money

securities

remedy

however,

by

other

or

profert was

Exchange

4.

of

payment

negotiablenote

of

defective

sometimes

cases

of the

have

to

seem

enforce

to

Equity

5. Relief

part

of

lost unsealed

cases

as

75.

There

3.

3. Jurisdiction

that

many

undergo

may

formerly

indemnity, yet

an

circumstances

indemnity

(St. " 82.)


in

the

meantime,

of

unsatisfactoryin

be

and
on

of the

terms

it has

although

required the previousoffer


an

insist

could not

and,

the

indemnity ;

Again,

loss.

of the

fact

grant relief upon

to

proper

the

has

out

of
to

acted

against liability.
447

Hilliard

a.

of. any

countervailing
equity,

granted in Equity in the

case

of

defective

83

ACCIDENT.

execution

by

of

mere

ordinary

an

of the very

only

be

(a), where

power
and

assurance,

where

of the power.

essence

given

favour

it is created

But

such

objects,viz.:

purchaser(includinga mortgagee

lessee), or

creditor, or

of

an

intention
in

clearlyappears
execution
But

intended

child.
legitimate

writing,will

will

non-execution

of

deprivingthe

deemed

interposein

mere

donee

of

the

the donee

of the power,

grandchild or

the

been

has
control

power,

donee

the

be found

has

kept
that

so

it from

could

he

required.

Nor

Statute, at

the

the

consent

of

Nor

will

execution

of

an

persons

whose

by

by will,be supported,as

(a) See the


execution
S.

stat.

22

"

23

mere

the

beyond
prescribed
interested

the

ties
formali-

Vict.

the

constitute

Statute,

consent
absolute

an

that
c.

35,

12,

is

the

with

or

required.

deed, instead

would
s.

the

is created

power

they

objectof

apparent policy and

of

party executing the

where

least

Equity dispense with

can

the

creatingthe

ascertain

not

of

an

deed

the

regulationsprescribedwhere
by

the

where

; or

of

or

compliance with

where

the

Equity

mother,

circumstances

; as

having possessionof

person,
power,

from
impossible,

in

(exceptin
or

be

in favour

relation,or

strict

would

will

power,

husband

remote

more

of

of

discretion

Nor

husband), father,

could not

witnesses

of

of

or

volunteer, except where


power

defective

case

that
of

right

execution

the

; for

power

defective

intended

tion
manifesta-

mere

be

support a

an

providedit

the exercise of the power.

of

or

the power,

regard to

case

77.

not

and

husband,

the

to execute

of the power.

Equity

And

will

rehef

charity,or
wife, or

i.

the defect is not

of certain

an

Tit.

be
as

to

repugnant
the

mode

of powers.
D

of

non-exeoution

"fP"^^"^^-

34

ACCIDENT.

Tit.
Cap.

I.

the

to

power

since

it

would

like

revocable

be

not

I.
_

78.

will.

But

where

will

the

relief,

grant
the

of

the

equitable

an

will

Equity

also

has

power

these

"

Tu.

335

Wh.

the

this

relief

Sugd.

Pow.,
Tu.

289

v.

Morgan,

St.

C.

of

(See,
"

to

as

94

98,
"

Toilet

Glyn,

v.

31

And

execution

88"175;

Harding

was

it.

fraud.

powers,

ed.

donee

the

the

by

7th

non-execution

exercise

where

prevented

the

Equity

trust,

case,
to

respecting

Chetwynd

of

case

obligation

been

"

with

coupled

in

grant

propositions

169"177;
Toilet,

in

even

because,

power:

under

is

power

D.

596.)

v.

Wh,

79.

35

CHAPTEE
or

A
to

MISTAKE,

be

which

1-1

in

be defined

Equity,may

I.

Tit.
'"

would

would,

which

omission

MISTAKE.

remediable

as

act

an

II.

have

not

not

been

done,
1

have

or

surprise, misplaced confidence,

'-

"

"

Definition of
mistake.

J!

occurred, but

inadvertence, mental
ignorance,forgetfulness,

an

from

petence,
incom-

tion.
imposi-

or

80.
The

the

from

to be

followingpropositionsappear
cases

subject:
"

the mistake

I. Where
is the

the

on

by

person

deducible

is

whom

unilateral,and the sufferer

it

made,

was

granted,unless there is some


givesrise to a presumption that

relief will not

circumstance

be

there has

I. Mistake
sufferer alone.

which

been

some

mental
influence,misrepresentation,
imposition,

undue

abused (see St. " 110,


or confidence
imbecility,
surprise,

137)

and

interfere

as

this is the case.

where

even

bond

againsta

regard
that

maxim

where

at

such

large, this
a

mistake

the

as

Poivell

v.

is

see

is

of

one

law

considered

presumption

as

above

(St. " 111,

excusat.

understood

be

law, it is

Smith, L. E.

principleof

to

of

matters

ignorantialegisnon

ignorance of
occurrence

in

mistakes

to

113, 116, 138, 140;


But

(St. " 139, and

VI., par. 34, cuite.) 81.

Maxim
In

fide purchaserfor valuable

notice.

consideration, without

Equity will not

Eq. 85.)

14

title,arisingfrom
of

by

such

the

constant

community

sufficient

mentioned,

to
so

d2

afford
as

to

Mistake

in

MISTAKE.

36

Tit.
^^^-

entitle the

I.

82.

137.)

law

has

Court

The

well

as

as

there be

unless

of

full

C. D.

Ingham,

the

Unless

351

Court, in which

D.

C.

And

matter

in

regard

granted

will be

is

mistake
act

Gas.

the

on

by

such

of

the

was

the

fact which

care

like nature, and

fact

would

as

ignorance

of

the

is usual

of which

the

its

from
be

not

in

foreign law

to the
own

ascertained
transactions,

other

party

150,

is deemed

was.

person.

51.). 84.
ignorance
"

because

tact;

But

Vendor's
value.

material

was

legalobligationto inform the mistaken

law.

foreign
to

Ch.

fact, relief

of

doubtful

not

was

diligenceor

And
.

ot

as

Brown,

re

presumption, where

same

(See St. " 117, 118, 140, 141, 146"148,

mistake

; In

808

the

repaid.

be

to

v.

seq.)

et

officer of

an

in matters

to mistakes

unilateral,and

nature, and

Ignorance of
foreignlaw.

80

Opera, Limited, (1891)

re

contract, and

or

under

(Rogers

ordered
D.

ment
pay-

83.

154.)
in

B.

Q.

16

In

597;

to

it will be

case

(Ex parte Simmonds,


32

Lead.

made

be

payment

back.

recovered

over

knowledge,

such

with

Brett's

the

facts, and

of all the

be

afterwards

it cannot

paid

been

has

acquiesced in

conduct

of the

reason

money

knowledge

been

has

"

When

of them.

one

with

by

parties,

the

between

fiduciaryrelation

equitysupervenes

some

or

relieve

it will not

relief ; but

such

is any

fact, if there

in

againstmistakes

in

againstmistakes

relieve

to

power

equitableground for

or

128,

(See St. " 121"125,

to relief.

party

""

no

person

(St. " 140.)

ignorance,

the

on

presumed

is

to

know

85.
of

part

the

vendor

of
'

Circumstances

property,
form

mutual

i_

"

tending
of which

ground

for

confidence.

the

to

enhance

vendee

relief,where

was

the

value

aware,

it is not

(St. " 149.) 86.

of

the

will

not

case

of

38

MISTAKE.

Tit.

I.

Cap.

St.

" 130"132

there

case,

is

should

an

ignorance

of

the

To

render

be

not

is

in

the

material

and

without

to

necessary

Re

in the

(Greenwood

C.

88.

inter

vivos

there

or

Law,

the

v.

C. D.

692.)

in

give validity to

are

adoption

Birchall, 16

mistake

known

disclosure

instrument

an

each

by

full

4 A.

Cordova,

must

title, as

sufficient.
;

or

favour.

facts

and

judgment

than

their

in

parties intended,

it other

parties

disclosure

rights

by mistake

what

mistake

De

the

binding, there

full

S. 28

"

J.
v.

Where

not

acts

D.

Cordova

IV.

tion
Correc-

but

not

the

of

regards knowledge

the

is

all

that

surprise

of

nature

very

existing

their

influence

intention

requisite that

to

compromise

; De

the

other, of all such

to

Greemvoocl,
41

; and

doubts

relative

the

honest

instrument, or
in regard

presumption

family compromise

the

to

them,

of

written

the

only good faith,

calculated

in

for

equality as

on

to

mistake

223)

it

be

party

a,

Stapiltmt

because, in

Tu.

abused

made

transaction

room

confidence

or

of

G. 356

"

"

Stapilton,1 Wh.

V.

IV.

4 D. M.

Lucy's Case,

II.

is

any

or

instrument

thereto.

have

been

omitted, and

by admissible

out

admitted

^ature

of

Equity

will

the

rectify the

Goldwire,

Wh.

H.

Fhihhs, L. E.
V.

Marshall,

34

C.

D.

754)

28
;

"

165

equal

to

it,as

Sp. 195),
that

of

v.

D.
as

from

the

other

deed.

Bosville

and

Legg

L.

against

Cooper

C.

Tucker

person

the

157,

84

honCi

plaintiff(St. " 176)


want

v.

Paget

Bennett,
fide purchaser

notice

having

rule, supply anything for the

v.

consideration,without
or

the

152,

763, 770

255;

is

or

(St. "

149, Brett's

except

clearlymade

of

rest

mistake

Tu.

"

C.

is

evident

the

Glcnorchy
L.

for valuable

is

or

from

or

Lord

mistake

satisfactoryevidence,

record,

case,

159, 166, 168;


V.

and

the

on

the

equity

an

(St.

nor

will

of which

39

MISTAKE.

the

legislaturehas

for that

would

enactment.
But

be

defeat

to

order

enable

to

ante-nuptialsettlement
be

must

been

has

all the

of
K.

inserted

Thompson
D.

F.

been

or

upheld

husband

its

cannot

marriage

it rectified.

Equity

Equity,

he

apply to

favour

the

correction

would

(2 Sp. 886

Bonhote

v.

voluntary deed therefore


rectified on
the unsupported

268

defect
a

the

before

have

to

91.

196.)

supply

or

volunteer

even

though
the

with

(1895)

Henderson,

will not,

133, 147

; Bonhote

evidence

parties consent.

all the

Phillipsonv. Kerry,
Beav.

of

knowledge

inconsistent

be

33

ment
settle-

92.

202.)

unless

115.)

"

mistake, and

mere

not

have

Court

the
Beav.

35

Bennett,

from

the

agreement

notice

gave

in

arisen

113

so

90.

executed it with

deed

is

Law,

an

he

remedy

in

as

proceedingsto

v.

42 ;

Elwes,

v.

the

take

to

it has

Ch.

Sm.

property has, however,

will hesitate

when

deed.

in

should

{Eaton

omission

an

he

that

tion
inten-

Kensington,

(St."

mistake.

though

contents,

of

(St. " 136.)

rectified,where
of

the

instrument

an

view

convey

executed.
defectively

which

parties intended, although

rectifythe

sometimes

Lord

v.

it

part,

something

where

mistaken

leave

to

the

rectify an

to

Sells,1 Dr. "

v.

And

the

will not

bond

Sells

J. 667.)

under

Court

it contains

parties. {Rooke

what
substantially
framed

Court

Whitmore, 1 J. " H. 268; Elwes

v.

"

the

by mistake, contrary to

J. 753, 764

"

policy of

very

by striking out

that

proved

the

void ;

instrument

89.

(St. " 177.)

in

the

declared

v.

32 Beav.

Thompson

628
v.

as

(St. 164

Whitmore,

Henderson, supra.) 93.

settlor

the

of

; Broun

rule, be

v.

e,

176;

Kennedy,
1 J. "

H.

Tit.

I.

"

MISTAKE.

40

Tit.
^^^-

""

of

ment

affords

circumstance

preliminary contract, that very


ground for presuming
of itself some
of

change
from

or

there

When

marriage, as
it must

be

purports

to

or

that

taken

to

Goldwire,

V.

articles

reformed,

as

and

purchaser

gives

articles,the
the

valuable

; and

different

interests

would

give

parties and

the

on

will

settlement

volunteers, but

mere

for

Court

are

marriage,

after

or

of

between

articles

binding instrument

estates

formable
con-

parties. {Legg

settlement

the

the

it

be

their representatives

not

consideration

against

as

without

notice.

95.

(lb.)
And

as

it is

regards

rule

of

Statute

of

admissible

from,

to

of

admissibilityof

Common

Frauds,

Law,

that

the

vary
But

upon

evidence,

independently of

parol evidence

add
disannul, substantially

qualify,or

cases

the

the

St. " 153, 158.)


that

the

which

construction

showing

make

If the

770.)

in effect the

are

those

from

Tu.

"

and

settlement

if the

the

Wh.

articles,

mistake, the

the

of

if it

But

of the

from

can

articles,

the

settlement, and
intention

real

marriage

before
the

the

alone

settlement

arisen

has

the

reform

before

satisfactoryevidence

and

the

of

settlement

in pursuance

be executed

will

Court

to

agreement.

new

as

discrepancy

the

it appears

if it is different from

is clear

if there

it,

in pursuance

and
the

general rule

to ; and

looked

be

articles

are

recital in

94.

(St. " 160.)

originalcontract.

some

merely

to be

intended

intentional

an

circumstances,

attendant

some

been

have

unless, from

purpose,

the

differs from

settlement

or

conveyance

final instru-

the

where

bp observed, that

It should

I.

written

to, subtract

instrument.

principleit

accident, mistake,

is not

and

(See

would

fraud

seem
are

(in

41

MISTAKE.

instances

many

least)

at

be

to

deemed,

in

Equity,

Tit.

I.

'"

this

to
"exceptions

remarks

of Sir J.

19 Beav.
\.

he

and

the

the

intended

to be

and

will

VII.

of powers,
in

VIII.
in

the

the

of

what

to

was

instrument

facts

has

mistake

material

of

the

to

98.
defects

supply

ground

of

in

the

tion
execu-

mistake, in the

preceding chapter under

cases

the

head

99.

parol evidence

in

title,

any

97.

an

a clear
Equity will rectify

admitted,
as

the

had

release

where

will, if it is apparent

But

V.

the

he

its terms

contemplation

the

(St. " 167.)

on

Accident.

of

property, to

to

cancelled, under

will also

Equity

mentioned

that

ignorance of the

it.

general in

(St. " 146.)

relieve
or

up

in

rights under

notes

Mnrrai/v. Parker,

party

the

confines

released.

delivered

party,

in

so

within

Court

Equity

been

rights of

not

was

bargain,
VI.

is

wholly ignorant

was

which

Eomilly, M.R.,

instrument

an

release

which

(St. " 155, 156, 161,

96.

398.)

Where

to

as

rale.

is

however,

cases

of

devisee

Mostyn,

to

Hiscocks, Tud.

remove

in

L.

Lead.

face

of

the

C.

name

155

Eeal

Cas.

latent

legatee. (St. "


H.

the

on

omission

or

the

will.

generallyinadmissible.

mistake

or

mistake

ambiguity,

descriptionof

or

179

It is

181

"

d.

Doe

Mostyn

Hiscocks

Prop.,4th

ed.

v.

489.)

100.
IX.

will

Equity

written

contract

is

of the transaction.
a

joint loan

to

made

bond

joint and
5 H.

fairlypresumable
And
or

hence, where

several.

L. Cas. 40.)

mistake

from

Court

there

101.

has been

they
make

will

(St. " 162, 163

in

the nature

obligors,and

more

jointlyliable, the

only

Wilson,

two

where

grant relief

Wilson

are

the
v.

"

'-

"

MISTAKE.

12

Tit.

X.

I.

is

remedy

the

unilateral,

is

mistake

the

Where

^"
'"

Court

the

but

rescission,

but

rectification

not

give

may

"

"^

f"writte"n'

to

the'^'mrndof""eant
mistake

or

Paget

V.

fraud

(St.

is

Statute

bind,

but

(Sugd.

1873,

and
s.

34(3).

cancellation

assigned

36

for

matters

of

to

10th

P.,

stat.

the

that

say

"

the

deeds

written

ch.

Vict.

3,

s.

66,

c.

rectification,
or

Chancery

other

written

Division.

aside.

avoid

an

case,

whatever

shall

bind."

not

8,

pi.

32.)

s.

34

(3),

setting

102.
all

a.

causes

aside,

instruments,
102

shall

agreement

or

of

former

influence

no

of

cases

to

the

Statute

the

agreement

ed.,
37

in

164

set

totally
for,

in

And

within

has

unwritten

an

"

it

"

entirely

be

cases

vary

(St.

255.)

matter

Frauds

not

that

the

in

to

does

D.

easier

of

V.

By

TheJudi-

C.

plaintiff

the

rescission.

will

an

than

agreement

"it

28

Indeed,

it

since

of

instrument

694.)

"

lieu

Marshall,

the

Frauds,

the

in

give

to

what

taking

of

option

the

defendant

or

are

48

CHAPTEE
OF

The

ACTUAL

of fraud

modes

III.

FRAUD.

infinite

are

"

and

it has

been

said,that Courts of Equity have, very wisely,


never
down,

as

what
general proposition,

fraud, or any generalrule,beyond which

tit.
^^^'

laid

shall constitute

^gfl^"e\r"

theywill

*"

not go,

the

the

upon

the

equityof

the

made

is

It

should

Courts

with

In accordance
is here

of fraud, lest other

ground

the

usually and

this remark

the

under

fraud

actual
,

"

artifice

or

used

"

i_

to

written

other

set aside

remedy

is

the
to

of

9th ed. 464

does

been

by fraud, or
such
in

; Allen

v.

Milton, 3 C. D.
not

go

to

particularclause,

of

actual fraud.

"

J.

deceive

or

cancellation

the

the
or

establish
the

Probate
note

27, 33.)

where

of deeds

to
jurisdiction

M'Pherson,

whole

the

assigned by

cases,

(St. " 184, and

Court.

v.

deception Definition

any

entertain

vested
exclusively

Meluish

fraud
some

into

treated

cheat,

instruments, has

will obtained

High

Executors,
191

general.

Chancery Division, to which

suppressed by fraud; for, in


of the

in

104.

Act, will not

Judicature

to be

J.

settingaside, or
or
rectification,

the

*^''*"''-

Constructive

and

circumvent,

of the

Courts

The

be defined

may

(See St. " 186.)

another.

or

of

103.

Fraud.
An

Fraud

of Actual

names

extent

'he
ground of

attempt

and

general, or

remedial

no

accuratelydivided, however,

large classes, designated,defined,

two

avoiding

(St." 186.)

definition of fraud

give a

to

of

means

be found."

of
spirit

I.
"^"

proper

Division
Wms.
1 H.

But

will, but
the

will

fraud

on

L. C.

where

only
is in

Jurisdiction
f,.aud.

44

FEAUD.

ACTUAL

Tit.
Cap.

unduly obtaining the

I.

of kin

next

to the

to declare

the

(St. "

In

440

of fraud

cases

and

in

in

the

of these

some

fraud

cases,

rule, as well

105.

sale

cognizable
chattels

of

adequate relief

cases

at Law.

(St. " 184,

106.

note.)

It is

is

kin.

of

next

ed. 467.)

9th

Executors,

on

be, and constantlyis,obtained

could

of

in

; as

personal :
and

Wms.

for the

trustee

great varietyof other

Law

at

executor

circumstances

of these

hold

probate, Equity will lay

Evidence

of the

consent

TII.

at Law

in

as

Equity, that

fraud

fraud.

is not

be

to

neither

Law

at

fraud

proved,
which

such
where

fraud

881, 887.)

fraud.

the

I. Of

which

frauds.
a

consideration

irrespectiveof

on

any

the

different

any

fraud

be

must

suit

in

grounds.
proved,

are

tions
allega-

proved.

Payne,

{Moxon

v.

108.
were

different instances
on

only notice

heads

if it

unnecessary

the
few

conduct

in
peculiarity

in

ground
of them

109.

receive that denomination

of the

and

relief,although other

shall

followingtwo

frauds

in

granted in Equity

We

been

Terry

fraud

given

all the

enumerate

degree

always

; Re

of

107.

be

impossible,and

relief will be

of actual

of

not

has

fraud, the

will

hand,

lower

Law

allegationsof

are

be

on

other

positive proof

(See St. " 190

made,

plaintiffwill obtaui

possible,to

actual

is

case

material

It would

Division

relief

no
a

L. E. 8 Ch.

under

is based

is
And

required at

Equity.

case

and

of

which

Equity

Contract, 32 C. D. 14.)

When

the

in

upon

White's

that

the

on

indispensablynecessary.

acted

But

in

nor

proof than

of

But,

presumed.

of the

from

guiltyparties,

the condition

of the

injured parties. 110.


II. Of

mainly

frauds
or

in

which

great

receive
measure

that
from

denomination
a

consideration

FRAUD.

ACTUAL

46

Tit.

^="^

I.
'"

(St. " 191, 197, 198)

the other
may

properly impute

care

or

discretion

to

and

Equity Jurisprudence to

of

{lb.)

But,

of

the

on

made

has

Hurd,

ground

C.

D.

the

truth

(Central

And,

where

the

or

Co.

is

made

false
its

is

by inquiry.

intimation

or

knowing

proved

14

or
wilfully

he

or

upon

it, and

he

cases

make

without

whether

person

is misled

it to
it

was

Mining

such

that

belief in

it be true
So that
a

or

if

false representation

reasonable

or

the

knew

it is shown

not, makes

third

L.

Swaine, 7 C. D.

C. p. 374.)

all

Silver

v.

made

A.

2 H.

whether

River

when

been

v.

answer

relief,whether

L. 64 ; Hart

representation,and
act

of

; Reese

another, with

that

was

112.

careless
recklessly,

to

supposing

no

obligationto

ground

(St." 193

whether

it

Kisch, L. E.

an

assertion

{Derry v. Peek,

person,

does

representationhas

false.

it is

learned

v.

it without

fraud

truth, or

such

the

made

For

42.)

got

of fraudulent

cases

been

under

Smith, L. E. 4 H.

v.

in

And

(St. " 217, 218.)

false.

not

to whom

the person

Venezuela

Misrepresentationis

true

representationis

have

might

party

be false, or

cases

many

this principle
fortiori,
appliesin

disclosure.

party who

are

concealment

wilful

Railway of

99.)

that

13.)

p.

representationor
that

sit to

guilty of negligence. {Redgrave

been

20

not

carelessness.

encourage

hand, there

other

effect of false

the

in which

rid

the

on

agents

injuredparties,by ordinary
have
prevented. It is no part

could

care,

proper

his

the

injurieswhich

redress

or

does

Court

(St. " 199, 200 a). For, the

ordinary

of

want

part of himself

the

on

loss

the

party injured

if the

; or

trust

to

presumed

be

could

neither

which

regard to

in

parties,and

both

inquiry of

the

to

equally open

ground

would

act

third

thereby,the

for

upon

person
person

ACTUAL

misleading will

47

FRAUD.

be made

answerable

for it.

[Huttonv.

Tit.
'"'''

Rossiter, 7 D.
"2 Gif.

M.
D.

37 ; 1

Johns.

H.

"

It seems,

F.

however,

support

into

enter
of

other

the

made
D. "

not

by

Eq.

12
as

320

; Hart

have

we

material

1 ; supra,

v.

induced
the

by

party who

enforce

it,yet other

Haygarth

persons

L. 325,

he
representation,
of

such

Wearing,

it is not,

And

to

L. E,

action for

an

must

deed

or

that

Hurd,

v.

a.

is not

void,

but

party defrauded
the

fraud

they

may

v.

only
; and

cannot

in consequence

{Oakes

fraud

the

signed

or

discovered

of

it,

enforce

Turquand,

113.

through

deed,

112

rights which

346.)

made

355

Charlesworth

v.

have

may,

L.

Gif.

42.)

guiltyof

defrauded.

"executed

to

contract

{Redgrave

fraud

against the party

person,

induced

the

4 Gif. 485

of the

was

and

acquire interests

B.

Q.

representation

Wickham,

112.)

option

the

If

been

the

untrue.

par.

though

E. 2 H.

good defence

misrepresentation

have

to

sentation
misrepre-

contract, that if the party defrauded

representationwas

at

has

sufficient defence

the

contract

tinguished
dis-

Clifford,

v.

Co., (1891)

diligencehe might

due

be

may

Swaine, 7 C. D.

used

voidable

Equity

is entitled to have

95 ;

had

in

Baring,

v.

v.

seen,

rescission of the

"20 C. D.

{Rawlins

Jennings, 34 Beav.

V.

{Angus

person

merely

Trail

deceit

though

party, he

good.
J. 304

for

where

aside, and

set

Eq. 294.)

negligent,as

Consolidated

contract

Croskey,

v.

Bolton, L. E.
that

Croiicher,

v.

Barnj

fraudulent

not

Balkis

v.

And

614).

clear

449, 464),

(Tomkinson

518

v.

action

though

p.

J.

; Slim

fraudulent, misrepresentationwill

an

2 Ch.

(1891)

"

1 ; Ramshire

from
not

G. 9, 23, 24

"

of

another, has

receipt,containing a

suffer from

receiptby

the fraudulent
such

use

other person.

i.

"'-

Tit.

than

rather

I.

"

Walters, L. E. 7 Ch. 75

v.

fraud

the

obtained

by

innocent

of the

ment.

which

v. Templer,
(Scholejield

to communicate
for which

220

217,

94

incumbrances

underwriters
the risk

increase

lease of

he

declared

Lange,
And

if

not

title,and

lessee
may

may
refuse

elect to

the

that

or

purchaser

to

as

is not

of the value

(St;" 207,

n.

Walters

it will be

case

{Lempriere

part the

v.

not

disclose the

is

(Mostyn

fact,the

v.

no

And

he

title,and

West

Mostyn

117.

bound

of the
v.

there

the

lessor has

repudiate the lease.

145.)

knowledge

implied representation

of the lessor.

remainder.

1 C. P. D.

which

lessee has obtained

an

part to which

keep the

Company,
But

aside

are

communicate

not

lands, and he knows, and

the lessor does


set

that there

it,or

116.

leases

know,

estate,

an

circumstances

if

on

option

675.)

person

lessee does
no

at the

C. D.
a

house

Richards,

v.

sells

does

; or

fraud,

(St. " 204, 207,

of full age ; in which

was

void
12

(St." 216)

to

purchaser is ignorant

all facts and

furnished

that

insured

if the

; or

equitable obligation

vendor

the

J. 433

"

circumstances

and

title to

no

valuable

4 D.

Pulsford

it,of which

on

(St. " 208)

has

he

if

As

96.)

"

765

only

115.

grant rehef.

Sp.

that

knowing

to the

will

114.
been

is not

some

other, it amounts

the

to

facts

legal or

some

Equity

Beav.

17

conceals

person

he is under

214,

given

Walters, L. E. 7 Ch. 75.)

v.

If

2.

Conceal-

has

has

what

of

another, if he

of

fraud, but

consideration.

default,.

or

ante, par. 53.)

himself

avail

may

person

Hunter

negligence

containing such representation.

trusted to the document

{Hunter

has, in the ordinary

who

person

business, without

of

course

"

third

'"

2.

FRAUD.

ACTUAL

48

to

communicate

property

Morgan,

3 D.

to the

P. "

his

vendor
J. 7I8)

ACTUAL

for it is the business

cientlyto

of the

estimate

4-9

FRAUD.

the

vendor

worth

to know

of

B., of which

he

knows

conceal

his

knowledge

contract

to

purchase the

the

is worth

estate

would

httle is

sufficient

be

to mislead

if

the

other

hand

warranty

some

is

purchaser
unknown

In

by

the

as

we

this
tends

Lord

178, per

unless

to be

that
to

were

broad

in

than

that
be

often

advantage which

admissions

or

denials

to

of

which

this is
do

unto

the

of

be

suit.

not

unto

others

us.

But

observance

with

if
of

would
For

the

it

party
of the

disclose.

ascertained
So

he

required

reallyaware

was

he did

only
in

doubt

municate
com-

all material

experienced.

now

other

defect

could

do

enforce

matter

the

For

should

we

is

whether

frequently,that

119.

greater inconvenience

far

wronged,
or

vendor,

bound
of

be

may

the

to

knowledge

to

which
a

it known

should

attempt
a

quality,the

or

party is

that

representation
mis-

some

disguisethe thing sold,

ignorant.

they

rule,

is

by the other, or

golden maxim,
would

there

its character

his

is, in

emptor

purchaser. (St. " 212.)

other

the

the other

Equity

would

caveat

defects

discoverable

facts, not

ensue

maxim

foro conscientice,each

knows

very

be allowed

not

notwithstanding there

bound,

to the

to

so

Jac.

and

to

as

intrinsic

material
and

dropped which

will
principle

artifice to

or
or

But

the

applicationof

is

pricewhich

(St. " 205.)

Harvey,

the

applied;

cases,

many

into

enter

consideringthe mine,

singleword

v.

land

ignorant,should

B., for

of

i.

118.

Eldon.)
On

estate

the vendor, the

in the

fact, and

affect the

to

be

to

the

good.

operate. (Turner

to

of

without

contract

principle
; and

B.

Tit.

property.

own

mine

suffi-

'-

of his

Thus, if A., knowing that there is

and

And,

from

that, in order

his
to

'"

FRAUD.

ACTUAL

50

Tit.
^'"'-

I.

fraud
this, proceedings for relief against

determine

"^'

knowledge, which

existence of that

supposed fraud, and absolutelynecessary


could be
proved before any ground for relief

be

in many

And

said to exist.

draw

To
as

disclose

not

of the

nature

3.

Inade-

3.

Even

before

the

170),

mere

other

in
inequality

itself

ground
M.

Guest, 6 D.
is

the

the

with

his

And

perhaps

the

only

purchase ;

another

proposals of

the

be

ordinarilyused

in

Act, 1867

of

price,or

the

For

value

of

v.

things

on

numberless

.man

be

induced

may

for

would

to

by

dependent
other

reasons,

particular time, for

may

any

; Harrison

lowness

he

care

to

not

of Eeversions

it.

or
exigencies,

and

ought

or

244

G. 424.)

inducement

the

(St. "

"

the

person

constitute

avoid

property at

that for which

seem

not

Besides,

or

lessness
care-

bargain,did

and
always fluctuating,

difficulties

party could

inadequacy

to

circumstances.

of

would

course

known,

other

Sales

quacy.

{post, par.

and

121,

transactions.

similar

the

with

discover

expected to

as

fact, which, from

have

must

which

and

known,

have

he

morals

sound

grant relief,if

material

any

case,

true

will

Equity

that

to be to hold

does

would, perhaps, give

encouragement

the

the
negligence,

and

120.

other.

the

to

or

party,

one

avoiding frequent

with

and
litigation,

fruitless

him

principleof

the

compatible

be

by

distinction which

effect to

much

would

disclosed

not

was

or

defect

the

to the

known

to be

advantage, admitting it

be the

would

there

cases

in ascertainingwhether
difficulty

same

was

very

of the

essence

to

the

of

was

the

to

uncertainty as

total

in

taken

be

often

would

have

of the
the

sold it.

have

to

less

part
than

(St. " 245.)

pricemay

purchaser

by

to

have

been

make

simply accepted

the
the

vendor, instead of being the originator

of the

transaction,

negotiating it,like
fraudulent

concerned
beina;
actively
'^
"'

of

or

'

whose

man

inadequacy

or

conscience, and

impositionor
And

where

nature,

D. M.

G. 424

Fry

persuasion;
without

he

of sudden

acquisition
; if

C.

15

D.

Equity

will not

placed in
not

be

statu

given

inasmuch

as

(St. " 250.)


Where

Fry

the

the

as

make

of

use

into

strong

C.

the

of

case

251

is

; O'Rorke

Snelling,
But

312.)

be

instance, will

marriage

cannot

if he

v.

D.

tage
advan-

partiescannot

relief,for

Such

or

stances
circum-

and
or

Nevill

Lane, 40

v.

he

unexpectedrightand

or

814

act,

an

; if

to act, in

of his necessities ;

C.

if

friends

illiterate person,

Court

settlements
the

unmarry

parties.

123.

purchase is

consideration, the
stand

; post, par.

disinterested

relieve where

in

Guest, 6

of the consequences

an

quo.

; see

is not allowed

understanding. (St."

679;

246

v.

drawn

suddenly

A.

most

importunatelypressed;

emergency

Bolinghroke,2

the

Harrison

is called upon

taken

been

of weak

person
V.

is

consult

he is

suspicious

(St. "

for deliberation

if he

to

he

counsel, before

in

fraud.

of

ground

Lane, 40 C. D. 312

v.

is

permitted

has

of

in such

and

being fullyaware

is not

fraud.

placed confidence

if he

furnish

must

of

time

party injured;
in whom

the

evidence

of
ingredients

Cranworth

As, if proper

those

the

on

inadequacy

presumption

"

to shock

conclusive

influence

other

are

of Lord

171.)
the

undue

will interfere

gross

remarks

gain

unconscionable-

an

bargain, as
to

Cap.

there

vehement

the

to

Tit.

in

122.

be such

amount

some

Equity

case,

in

design is

another.

advantage over

Still,
however, there may
ness

51

FRAUD.

ACTUAL

set

conveyance

securityfor

what

aside

for

will
has been

inadequacy of
be

ordered

with

advanced
E

to

I.
hi.

52

FRAUD.

ACTUAL

Tit.

I.

Cap.

interest.

(1 Wh.

Tu.

"

323

Kerr, 40 C. D.

v.

"

124.

461.)
Deeds

of

exempt

from

the

of

nature

rules

the

when

in

would
is

held

invalid

the

on

(St. " 217


Williams
As

294.

4.

of

marriage.

deeds

Where

nature,

Tu.

of

parents, guardians,

that

will

be

ment.
concealFin.

"

279

378

; L.

E.

see

also

Stapilton

Brett's

223;

they

Ch.

Lead.

Cas.-

with

manifest

of the

other

mainly
of the

persons,

the

confidential

consent
persons,

object

partieswhose

marriage. (St. " 257.)

are

consideration

the

on

the

of

by the fraudulent, corrupt, or

refusal

denomination

bestowed

marry

other

or

defeated

the

II. There

shall

suffer

not

to be

required to
II. Second

fraudulent

Sm.

"

giftsand legaciesare

unconscientious

fiSs.

"

on

condition

"^

this

condition

Equity

of

Wh.

Dr.

will

they

Persse, 7 CI.

v.

if there

125.

293.)
Eefasal

to

Stapilton, 1

V.

; Persse

facts

of

ground

Williams,

v.

binding

are

; but

(St. " 132)

material

of

; and

sideration
con-

strangers the like agreements

be enforced

not

are

of the

adequacy

deeds

mere

concealment

any

the

other

between

cases

family arrangements

to

as

applicableto

4.

; James

III.

frauds

or

in

126.

which

great

receive

that

from

measure

peculiar condition

is

consent

of

the

the

injured

parties. 127.
With
1.

On

persons

1.

regard to these

In

the

Case

"

of contracts

or

other

acts, however

mind.

"

of unsound

solemn,

j.

of persons

of unsound
the

benefit

But

who

it is not
of those

it

there

is not
to

seen

persons.

subservientto

where

idiots,lunatics,or

are

mind, wherever, from

transaction, there

faith, or

make

",

is

be

evidence

will

nature

or

set it

just rightsand

good faith,and

wise
other-

of entire

just in itself

Equity

their

the

the

v.

of

good

for

the

aside, or
interests.

contract

or

54

FRAUD.

ACTUAL

Tit.

I.

(St. " 239

fj-ee agency.

Boyse

Rossborough-,

v.

'"

"

L.

H.

"

200.)

So

behind

respect

by

debtor

in

prison,

Q_ ^

to

set

the

all contracts

stances

of

extreme

if

And,

free agency

in

oppression
(St. " 239.)
6.

On

5.

infants.
some

their

services
them
be

may,

by

degree

for

infant, he

may

Where

can

void

^^
Mie^fA^t*''

(a).
*^^

is not

induced

Sadler,

10

with

the
while

person

slightest

circum-

distress

may

account

on

will

manner,

justifythe

to

Law,

at

contracts

and

to do.

it

it

advantage

even

for

quality, or

for wages,

either

render

so

Court

of

some

attendant

it.

on

131.

Infants
cases,

and
as

contract

fraudulent

or

been

imposition, it

or

in like

entirelyoverpower

v.

is the

there

necessity

setting aside

has

thereby

by

.',

CD.

17

of securities

watches

made

and

aside.

in

purposes

debt

[Flojoer

suspect oppression

Contract

proof

might

was

Court

necessity.

go

proceedings, it

the

imprisonment;

ground

the

the creditor

And

572.)

to

Blythe,

which

prosecuting.

jealousy

under

extreme

from

jy

utmost

or

that

L.

for

receipt

where

criminal

to

to show

abstain

illegalthe
debtor

admit

Re

H.

power

made

was

circumstances

liable

has

to

parte Banner,

his

from

refuse
claim

render

under

"

sufficient
to

{Ex
to

contracted
the

the

it where

of

creditor

and

E.

L.

Bayley,

v.

Bankruptcy

of

judgment

But

480.)

or

Court

the

extortion.

of

Williams

C. 2, 49;

or

by

But

in

the

benefit

avoid
never

which

it,as
be

to

well

the Law

for

his

the
at

of

requires
may

prejudice

Law

as

benefit

to

hiring of

contract

in

suitable

contracts

general, where
or

themselves

necessaries

by

acts

bind

in
it is

of

an

Equity.
utterly

132.
^*^*"*^

^'^ ^

^^

^'^'^**^- ^^'

^-

^' ^* ^^ enacted

ACTUAL

that

"

all contracts, whether

be

to

necessaries),and
be

entered
lent

of money

supplied,or

infant
the

rules

such

as

of

charge

upon

person

pay

promise
such

shall

the

It

Court

that

third

Hives, 33
292.)

this enactment

into which

an

statute, or

by

be

be

Beav.

full

full

after

of

age

any

Act, 1855,

and

within

{Edwards

v.

v.

by

is not

will

the

with
made

Court

of the

infant

an

settlement

infant

the

132 b.

age."

settlement

for

consideration

new

any

but

age.

be

an

lutely
abso-

binding

reasonable

Carter, (1893)

Forrester, (1893)

suffer

shall be

by

the

the

commit

52 ; Hunter

v.

fraud

it in
fraud.

of

one

of

sufferer who

the

innocently, put
to

when

that

observed

must

person

person

133.

to

c.

persons

conduct, however
the

of

132
here

innocent
person,

for

during infancy, whether

Jones, Faiiington

; Re

may

after

only voidable,

but

461.)

made

sanction

the

coming

C. 360

2 Ch.

contracts

during infancy, or

Settlement

repudiated by
of

contracted

binding marriage

without
void

time

goods

brought whereby

ratification after full

or

of the

unless

for

promise made

any

not

Infants'

sanction

A.

shall

or

make

infant

'"

the

(Ex parte Jones,

shall be

made

contract

or

Under

upon

ratification

promise

can

for

Equity, enter, except

or

action

debt

any

any

there

future

voidable.

are

No

"

2,

any

to

age

I-

12-2.) 132a.

section

By

than

contract

any

Law

Law

by

lent, or

always, that

existingor

any

Common

now

C. D.

18

by

TiT'

stated with infants, shall

Provided

invalidate

infants

by

be

to

or

all accounts

not

may,

into

supplied (other

absolutelyvoid.
shall

by specialtyor by simple

'-

contract, henceforth
repayment

55

FRAUD.

the

two
third

by

his

power

{Adsetts

of
v.

Walters, L. E. 11 Eq.

Case

where

iimooent
""^*

^^J-i^"^

56

IV.

CHAPTER

Cap.

frauds

Constructive

I.

Tit.

IV.

if

or,

would
generallypermitted,
and

public welfare,
accident

mere

therewith,

Four

nothing

to

I. Frauds

Chapter

be

may

public policy.
fraud

upon
and

not

1.

operate

brokage

justifiable

is

what

classes

four

the

the

in

ground

present

"

of constructive

public policy, against agreements,


transactions, which, although they
as

frauds

upon

135.

visions,
promay

individuals, would,

if

welfare

of

the

Thus,

Marriage brokage contracts, which


whereby

contracts.

may

chargeable

person

noticed

be

arranged in

community.

1.

Marriage

been

design, or

to
generallypermitted,be prejudicial,

the

the

into

have

may

evil

or

than

granted,on

is

I. Relief

on

yet

the

of

more

will

which

cases

of construc-

tive
frauds.

individuals,

on

134.

allowable.
The

classes

opinion

the

in

amount,

selfish

any

sions,
omis-

clearly resolvable

not

are

"or

to
prejudicial

be

mistake, and

or

with

unconnected

or

acts, statements,

are

operate as virtual frauds,

which

Definition.

FRAUD.

CONSTRUCTIVE

OF

to

engages

person

are

give

ments
agree-

another

remuneration, if he will negotiatea marriage for him,


are

void,

as

tending

ill-advised,and
therefore

based

on

that
and

back

they
money

are

which

matches

mutual

against public policy.

utterlyvoid
recovered

not

to introduce

deemed

And

affection, and

they

are

incapable of

paid under

again in Equity, whether

are

them
the

may

so
firmation;
con-

be

marriage

CONSTRUCTIVE

is

equal

an

Tu.

"

The

rules

same

influence

into

another,

over

encourage

deceive

be

distinguishedfrom

and

agreements

the

But

for

using

testato^"'^

naake

such

must

heirs

and

them

; for

fraud

to suppress

truly be

cannot

tend

cases

between

(St. " 265

contracts

between

estate

his devisee.

upon

'^- Agreements

to

said

to dis-

not

impose

intention, if he does

testator's

similar

the

and

Hic/c/insv.

137.

Hill, 56 L. T. 426.)
3. On

i.

^^^-

other

scheming, and

generallymade

are

influence

restriction

any

Tit.

and

for such

agreements

share

to

him

obligor;

injure others.

other relatives

appomt

induce

to

bonds

reward

spiritof artifice and

undue

as

of the

to

and

applied to

are

entered

for the benefit

such

(St. " 260"263

one.

136.

573.)

agreements

will

unequal

an

57

^^''-

1 Wh.
2.

or

FRAUD.

ground,

secret

made

contracts

with

^-

p"traots

to facilitate
.

other

guardians, or

parents, or

peculiar relation

to

The

4.

giving their

or

(St. " 266, 267

treaty of marriage, by concealment

the

and

aside.

marriage

of his

order that

her

bond

Tu.

"

On

the

expressly m

operate

is

"

restramt

restricted

and

that

/.

oi

the

unreasonably

man

sister let her

intended
the

bond

"

marriage

restrained

have

appear

138

in

the

a.

if it is

11

whom

set

....

generally,

party upon

on

on

was

is void

contract

Frauds

i-

husband,

post, par. 181.)

see

upon

tation,
misrepresen-

where

repayment,

hand,

other

persons,

portion might

the

by

on

for

(St." 268"270
.

so

consent

Wh.

; 1

or

So

persons.

insisted

was

she gave

5.

the

privatelyin

large as

as

other

treaty for

money

remuneration

principle applieswhere

same

mislead

is

marriage

void.

receive

marriage.

138.

573.)

held

it, are

to

the

promoting

parties,whereby, on

to

are

in

standing

persons

of the

one

treaty of marriage, they


for

or

it it

it is to
choice

of

5.

Conti-acts

or

conditions

i" restraint

of

IJJco^g^tl;
with

the

duty

I.

Tit.
Cap.

276"283

" 274,

St.

marriage (see

of married

shall not

or

any

person

who

is

(St. "

; 1 Wh.

283

A contract

trade.

void,

from

carryingon

from

for

from
303
24
liule.

in his
the

using
Trego

in

limited

reasonable.

secret

Beav.
The

12

general restraint

in

reasonably

for

necessary

a
or

person

may

within

be restrained
distance

certain

particularplace,or with particularpersons,

be
a

But

trade

reasonable

E.

discourage industry, enterprise,

to

justcompetition.

and

L.

party seeking protection,are

the

tending

as

is

what

beyond

or

protectionof

^^le

then

husband

her

conditions

and

So, Contracts

of trade,
"Irestraint
of

woman

140.

Eq. 604.)
6.

occupation.

or

Wilkinson,

v.

lawyer, or

married

place where

any

or

139.

imposed on

(Wilkinson

is bad.

physician,or

shall not

or

town,

same

535"576.)

Tu.

condition

or

the

particulartrade

"

to reside at

cease

resides

Contracts

clergyman,

except of

person

any

residingin

marry

(St. " 280)

year

of age,

fiftyyears

till

Tyler,

v.

shall not

woman

gg^^^^g of 5OOL

^^^

marry

person

marry

to

9,3^ ^hat

^j^^ j^^^ ^^^^

^^^

r[,y_ 535)

Scott

IV.

^ ,^^

6.

FRAUD.

CONSTRUCTIVE

58

time, provided that

And

trade

person

may

(St. "

secret.

292

Htnit, (1896) A. C. 7

v.

tract
con-

lawfully sell

restrict himself

business, and

or

the

or

Brett's L. C. 300,
; Benwell

v.

hms,

141.

307.)

rule in such

cases

is, that

the contract

there

no

must

be

Contractmust
lie reasonable,

reasonable

beyond

must

be

limited

prohibitionis only
it has

which

in
further
of

the

though

each
than

been
ease

is

to space

as

void

made

when
are

; and

the

that the
an

the

it will
as

tract
con-

unlimited

circumstances
The

restraint

for the reasonable

if not

be unlimited

rule

unreasonable.

is, whether

is necessary

covenantee;
it may

that

be

to space.

in
tion
ques-

extends

protection

enforced

even

{Rousillon v.

OONSTEUCTIVE

BoiisiUon,14
"('"(".
V.
and

C.

difference of
of

is

the

reasonable

Haynes

Upon

7.

from

(1899)

of the rules

2 Ch.

adopted by
of

for

the

pubHc offices are

of character
9. So

(1892)

Courts

trust

void, as

held

and

who

other

So

for the
as

which

contracts

champerty (St. "

M.

"

G.

660), and

securities founded

p"bii!jf"

commission

granted in
the

transaction
the

in

into

s.

respect

have
294

weaken

tending to
of

the

crimi-

Law,

by

9.

is

or

tendency

Eeynell

criminal
Proceedings.

to

Sprye,

v.

and

lo.

thereof.

the

of

ease

parties are
Equity

will

transaction

public policy,the

fact

'*i"ierations.

(St.

distinction in the relief


In

illegalcontracts.
alike

give
is

involved
no

in

general

an

relief to either

illegal
; but

repudiated as being against

that

the

party seeking relief is

cham-

cOTrapTcon

contrary to the moral


evasion

the

on

Suppres-

144.

agreements, bonds,

of what

be noticed

may

Contracts

offioe^!'^

145.

" 296"297.)
here

procuring

corrupt considerations, that is,

on

municipal Law,

where

con-

7. Contracts

(St.

suppression of

preventive influence

are

encourage

where

or

introduce

diminishing the certaintyof punishment.

And

which

(St. " 295.) 143.


qualifications.

beneficial

or

a.

void.

unfit for them

are

agreements

are

tending to

the

the

Ch.

in furtherance

buying, selling,or

prosecutions (St. " 294),

on

in

141

13.)

public

justice,are

nal

D.

Cas.

142.

publicoffices persons

partial

is unreasonable

of

i.

possible, sever

Haddocks,

violations

upon

Contracts

10.

nature

general and

what
v.

Doman,

administration

" 294.)
8.

the

analogous principles,agreements

fidence,or
the

in

Tit.

'^'"'' ^^''

C. 535, where

will, where

(Rogers
v.

founded

are

of

Court

restraint.

346

A.

Nordenfelt Guns,

discussed; Brett's Lead.

are

the

59

; Maxim

covenants

trade

And

303.)
what

351

Nordenfelt,(1894)

restraint

of

D.

FKAUD.

60

Tit.

I.

Cai'.

IV.

be

between
and

publicinterest requiresthat the relief should


given, and it is given to the public through the

void

transactions

by

it is deemed

a.

contract

any

positiveLaw

145

(St. " 298.)

Wherever

voidable

being

reason

the

party.
Distinction

material, the

is not

participscriminis
that

as

FEAUD.

CONSTRUCTIVE

or

of public policy,
principles

upon

confirmation

of

incapable

is void, either

conveyance

or

it

being

regards

maxim.

confirmation.

ah

Quod

initio

turns

or

rescinded, and

it is

if

confirmed

examination

valid, except where,


the

See

Reese

H.

L.

Frauds
case

party

of

contrary intent.

II. With

in

it

Davies

parties,it
the

full

upon
will

Infants'

Co.

Mining

until

remain

Belief

Act,

(St."

306.

Smith, L. E.

v.

to

deed

in
altogether,

acts

it in

upon

the absence

(Jarratt

of evidence

Alclam, L. E. 9 Eq.

v.

Daries, L. E. 9 Eq. 468.)

v.

regard

to

part,

transactions

147.

inter

vivos, where

of

in the
persons
confidential

a
or

relations

where

confirms

valid

146.

that

463
II.

Silrer

is

confirmation.

incapableof

River

64.)

And

the

is

contract

the

under

as

advantage,

deliberatelyand

by

voidable,

merely

it

imposition, there

or

tenvporis

tractu

undue

of

circumstances

upon

surprise,

it is

where

But

convalescit.

non

valet, in

non

of

reasonable
a

confidence

is

peculiar influence

is

reposed in another
possessed by

him

person,

in

quence
conse-

"

of

makes

standing
of

use

obtain

that

not

however

be

confidence

such

confidential

no

such

Baseley, 1 Wh.
Payne, L.

the

relation
Tu.
8

Ch.

had

had

247

881;

that

his

influence

such

any

been

L.

Mitchell

of

to

the

advantage,
would

have

reposed, or

existed.

Brett's

he

influence, he

transaction

confidence

"
E.

retain

to

relation,and

at the expense

under

or

unimpeachable

if

or

himself

him

permitted

been

V.

confidential

advantage to

an

party confidingin
will

in

no

(Huguenin
C. 78
v.

v.

Moxon

Homfray,

62

Tit.

I.

"

proved. {Hannah

be

Bradley,

v.

of

actual

{Tamer

situation

permit
stand,

to

short,

on

the
on

And

or

if the

the
the

part of

the

and

abused,
in

betrayed, except
(St. " 317"320
247;

Allcard

;
v.

Loughnan, (1893)
2Ch.578.)

152.

or

the

v.

Skinner, 36
736

the

to

unless

absolute

good

quasi guardians

advisers
where

confidence

Huguenin

1 Ch.

to

case

of

is

151.

medical

case

period

guardian ;

most

guardian.

to every

the

fullest deliberation

principlesapply

same

religion,and

acquired

the

wards

estate, still remains

the

part of the ward, and

will

after

attached

of the

demonstrate

confidential advisers, as
of

duties

the control

circumstances

faith

or

ceased,

sort under

some

the

not

occurred

intermediate

the

tive
rela-

Equity

guardians and

have

ceased, if the

329

general

And

other.

is

there

150.

occasions

between

all

influence

the

guardianship,the

of

they

especiallyif

15.)

is

transactions

given, unless

Ch.

each

when

even

office have
in

with

such

149.

259.)

Beav.

21

parties

transactions

has

minority

the

of

deal

to
inability
not

existence

the

parental

Collins, L. E. 7 Ch.
10

an

ment
settle-

the

for

exercise

did

be

v.

Ashhee, L. E.

v.

During

2.

Guardifin.

will

But

597.)

doing, after

so

19 ;

Beav.

30

reasonable, will be

impugn

to

in

relief

no

fraud.

Kempson
2

seeking

person

ceased,

has

son

father

the

reasonably prompt

not

and

{Hartop-p v. Hartopp,

influence.
a

G.

fair and

family estates, if

supported, though
If

father

between

arrangement

"

M.

D.

ness
straightforward-

its

Hodgson,

v.

father,

the

paid to

money

will be void unless

the transaction

Baker

the

and

of age,

coming

son
'-

"

FRAUD.

CONSTRUCTIVE

is

or

influence

and

and

wife.

Baseley, 1 Wh.

; Barron

145;
v.

is

reposed

husband

C. D.

ters
minis-

"

Morley

Tu.
v.

Willis, (1899)

But
and

when
fair

growing
time

and

settlement

it has

of

out

has

full

been

intervened

then
upon

no

objectioneven

the

latter.

his client ; but

confidence

in

the

over

he
solicitor,
or

advice and

the

he has

taken
that

but
position,

client's interest
client

dealing with

on

the

is

on

client
the

; the

will treat the

(St. "

310"313
L.

King,

5 H.

is

agent

an

without
the

C. 627, 655, 656.)


a

conflict.

{In
a

his

because
re

solicitor

in the

Cas.
And

can

necessary

and

duty and

of

of
a

Savery

his

purchaser,

interest
"

he

v.

solicitor who

of the value

that

show

74

fraud.

partiesinterested

the

sale

instead

name

of

case

imposition

or

the

Bloi/e's Trust, 1 Mac.

purchase, yet if,


purchases

It is not

become

sale cannot

of the

circumstances

if

Lead.

; Brett's

for

protect the

of constructive

one

as

fully explainingto

property ;
And

case

pressure

establishing
perfectfairness
is no
such proof.
if there

solicitor; and

Equity

sufficient

in the

fraud

been

the

professional

to

done

have

has
of

onus

much

as

on

client,and

and

of his

stranger.

there

that

to establish

done

would

he

as

fairness

the

from

of solicitor

he has

the

the client had

advantage

no

great
before

will be thrown

to relieve him

all

of the
are

in

G. 494, 497.)
is entitled to

openly purchasing, he

trustee

3. Solicitor.

strong influence

proving

of

that

relation

to

be dissolved

must

onus

show

assistance

is

conferred

give rise

to very

transaction

must

arising from

the

the

proprietyof

that

solicitor,or

the whole

or

there

guardian,

must

client,the relation

the contract,
and

the

feel

to

incapable of contracting with

the relation

as

ward

153.

(St. " 230.)

solicitor is not

3.

sufficient

bounty being

I^

transactions

and

the

the

to

all

made,

of

completely independent

of

allow

to

Tit'

entirelyceased,

has

guardianship

the

63

FRAUD.

CONSTRUCTIVE

or

agent, without

64

FRAUD.

CONSTRUCTIVE

Tit.

^^^'

I.^ disclosingthe

fact,

purchase

such

no

^^'

3 A.

Watt,

While

in any

himself

he

3 Drew.

306

Ternj and

solicitor

fund

in

fund

or

Morgan

as

declared

void,

by

agreement

interest

unless

client

that

client

acquiesced,after

the

Law

after proper
4 De

G.

confirmed
D.

M.

Beav.
An
gross

by

"

J. 104.)

sum

done,

was

decided
business

But

paid

formerly
an

his

held

solicitor

be maintained

"

charge,
of the

the
the

or

relation,

subject. (Lyddon

the
a

deed

executed

client.

be

{Stumj)v. Gaby,

Waters

see

v.

by

solicitor,if voidable, may

between

shall be

that

it

Law.

Thorn,

v.

22

155.

547, 559.)

agreement

was

such

But

will of the

623.

And

termination

upon

of his

the

G.

"

the

it,was

recover

the

not

no

recovering the

allow

to

on

solicitor informed

the

allowed

advice

client in favour

client

cent,

policyof

346.)

his bill of costs, could

on

all events, not

Moss,

Sim.

15

above

the

per

for

the

to

contrary

as

much

so

v.

client to allow

solicitor to

another

{Strangev. Brennan,
an

of

remuneration

employing

part of

the

on

; Lih's

638

On

Q. B. 679.)

commission

Court,

client, beyond the

6 C. D.

Minett,

v.

agreement
a

gain

remuneration
professional
v. Judge,
(St. " 312 ; Tomsnn

Wife, (1895)

principle,an

and

not,

fair

just and

client,make

of his

expense

is entitled.

to which

at

shall

solicitor

his

and

him

the

at

of the

amount

that

exists,

relation

between

transaction

v.

or,
personally or through his wife, accept a gift,
whatever, in respect of the subject of any
way

either

to

McPherson

630;

154.

C. 254.)

the

C.

L.

H.

Hillman,

(Leivis V.

stand.

can

and

solicitor and

for costs

for business

still is valid.

agreement

to

hereafter to be done,

client,that

pay
was

already

But
gross

void ; and

it
sum

was

for

that if

CONSTRUCTIVE

solicitor takes

account, he should
of the

full

himself.

Newman,

re

I.
'"

Beav.

"

good advice,

capacity to judge

30

Tit.

an

fairness

of the

that the client had

opportunity and

{In

services,without

evidence

preserve

agreement, and

had

or

for his

sum

gross

65

FRAUD.

196

for

Morgan

v.

Higciins,1 Gif. 277.) 156.


Under
.

the
1

stat.

applicable

to

veyancing

and

remuneration

as

the

and

in

by agreement

under

the

agreement
This

(Ward

agent.

agreement

must

reasonable

in

be

v.

not

Vict.

45

past

or

is

is

The

Attorneys

and

Solicitors

to

con-

^ot, 1870.

is

which

44, the

future

services

the amount

subject to taxation

appliesbetween
between

not

c.

but
writing,

solicitor

solicitor and

Eijir, 15 Ch. D. 130.)

understood

by

the

{Re Stuart, Ex

amount

business,

"

solicitor for

ordinary client,but

town

business, but

44

which

28,

c.

"

stat.

bill of costs.

Vict.

34

non-contentious

of

be fixed

payable

"

L-

contentious

regulated by

may

33

!_

The

client and

be

parte Cathcart,

(1893) 2 Q. B. 201) ; but it is suf"cient if it be signed by


the client only {Re

agreement is

The

284).

Frape, Ex

and
parties,

third

does

parte Perrett, (1893) 2 Ch.


to affect the

not

not

relieve the

interests

of

solicitor from

for negligence. An improper agreement


responsibility
be

may

set aside

judge, who
months

of

(1870)

,.,,,,

which

1 Ch.

may

be

to

and
S.

bound

to
petition

the Court

agreement within

agreement

it, is champerty.

on

D.

relates

ment

an

or

be

573.)

By
to

the

stat.
I

!_"

in

thereby or

44

remuneration

receive

"
1

45

be

ten

Vict.

allowed
c.

44,

business,

agent, between
of the

The

Solicitors'

Remuneration

"

writing,signedby
his

twelve

{Re Attorneys Act,

interest may

non-contentious

made

client for the

And

or

that if the solicitor

property in dispute,he shall

taxation.

on

An

payment.

cent,

per

reopen

may

the

recovers

motion

on

an

agree-

the person

solicitor

solicitor
F

by

^gt^

^gsi,

Tit.

I.

Cap^

by commission

or

sum,

gross

._

^^. otherwisB,
gg^jg^j.y^

If

circumstances' without

humble

was

{Frees

mortgagee.
and

apply
principles

5. Similar

.5. Doctor.

if the

donor

elects to abide

its

B. D.

An

6.

will

agent

he

property which

secret

to

the
cient
suffi-

prevent

{Mitchelly.
R.

Alsojh 37 W.

v.

property

to

another, without
the

purchase
either

in
rather

goods

state

than

their

considered

of the latter.

Kimher

75 ;
v.

purchaser

of

or

buy

to

if

of his

or

reap

the

if

an

agent
name,

be, the principalmay

may

profit made

any

agents from

temptation

employers.

of

property

fact, or

claim

to deter

of

sell for his

principalin another

may

any

agent sells his

an

principal,as

for another
as

vendor

disclosingthe

; in order

purchase

Beav.

his

repudiateit,or

agent

to

So that

fair the transaction

however

permitted

is authorized

principal. (St. " 315.)

to

be

death.

Tyars

be

not

advantage by becoming

the

would

all events

gift,at
; cf.

587

ceased, and

has

gift,that

the

and

159.

889.)

own

645, 649;

in all other

in this and

set aside after the donor's

being

Homfraij, 8 Q.

Agent.

by

of the

confirmation

the

adviser

medical

confidential relation

cases,

it

that

upon

Ch.

R.

to

But

patient. (St. " 314.)

his

is thrown

the

158.

post, par. 169.)

see

L.

Coke,

v.

in

man

showing

and

right transaction,

fair and

is

legal advice,

any

the transaction,
justifying

of

onus

conveyance

the mortgagor

mortgagor, and

the

157.

fit.

obtains

mortgagee

by

percentage, or

or

partiesthink

the

as

solicitor and

from

6.

FRAUD.

CONSTRUCTIVE

66

to

And

if

selves
placingthem-

benefit
an

by

themselves

agent employed

purchases for himself,he will be.

the trustee

(St. " 316,

Tyrrell v. Bank
Barber, L. E.

of his
1211a

employer, at
;

option

Bentlei/v. Craven, 18

of London,
8 Ch.

the

56 ; De

10

H.

L.

Bussche

C. 26
v.

Alt,

cU:

in all transactions

Ansell,

v.

C. T". 339.)

39

and openly entered


directly

between

principaland agent, the utmost


required; so that the agent must not

is

within

facts
the

his

of his

judgment

(St. " 315,


; De

154

is

him, he

his cestui

que

allowed

make

the

the cestui que

pai-takeof

trustee

of the

trust

II.

Lewin

c.

YI.

although

been

no

by

at

within

person

trust

the

no

of

the
or

accounting
actual

for

would

ed. 296

; see

VII. div. XII.)


from

self
him-

is made

his cestui que


there

the

has

part

security

cestui que

trust

time, set aside the purchase

Court, and

require a

the

where

cent., and

the

for

guardianship.

purchase

trust, the

notice, by such

at 4.1.per

of

estate

he is

which

protectionand

repaying the pricewhich

interest

party

advantage on

or

cestni que

the trustee,
with

of the

from

trustee

want

reasonable

to
application

by
a

of the

if

And

are
profits

And

c.

trust

of

concerns

public auction, unless

of the trustee, and

may,

div. IV. and

profit

any

trust.

case

the

the

being charged
possession,

sold it to

the cestui que

trustee

trustee

profitswithout

ance
re-convey-

has

trustee

person,

or

gave,

an

with

purchaser

interest,
with

'"

temptation

or

Trusts, 10th

on

fraud, concealment,

part

purchase the

estate

the

benefits

were

Beav.

33

obtain

bounty

value.

advantage

all

circumstances

his co-trustee.

trust,

the

if it

valid

cannot

from

or

on

the

any

160.

managing

belong to

to

price or

remove

whatever

same

infra.Tit.

to

influence

of any

trust, but

(St. " 321, 322

on

in

he acts, except under

whom

danger

permitted to

never

himself

to

will

obtained
not

the

"

I.

faith

conceal

Wonliam,

v.

trustee, and

to the

into

good

might

Alt, 8 C. D. 286.)

guard against

advantage

or

Dalh/

see

v.

being taken by
from

principalas

316a;

Bussche

7. To

which

knowledge

Tit.

"

Boston,

And

286.

8 C. D.

67

FRAUD.

CONSTRUCTIVE

if in

or,

occupation
F

Trustees,

68

Tit.
Cap.

I.

rent ;

if the re-sale produces

requirea re-sale,and,

may

or

IV.

if less, he
ed.

6th
St.

agents,
trustee.s,and
solicitors of

banki-uptor
insolvent,

Lewin

52;

In

affirm

may

order

cestui

(Dart. V.

Trusts, 10th

on

trust

que

the re-sale,but

adopt

first sale.

the

prevent the

to

of information

themselves

concealing it
restriction

the

gave,

ed.

P.

"

551, 560;

161.

" 322.)

8.

trustee

first sale and

repudiatethe

may

Counsel,

the

than

more

8.

FRAUD.

CONSTRUCTIVE

from
the

on

temptation
their

for

those

for whom

right

of

of

availing

benefit,and

own

they act,

the

same

other

purchase applies to

auctioneers,
and

creditors.

bankrupt's

9.

And

9.

Executors

have

consulted

Pooley

it may

strators.
regard

to

been

be

the

to

as

Quilter,2 D. " J. 327

v.

sale.

; Crowthery.

162.

laid

be

executors

permitted

benefit from
business
2 Wh.

"

Tu.

In

10.

Directors

down

as

general

will be
the

Debtor,
creditor,

11.

II.

and

with

rule

or

the

Entire

omits

enters

into

v.

the

transact

; Robinson

director

promoter

or

to make

positionas

Pett,

of

profit

promoter, and

or

for any
a,

secret

any

director

to account

and

to do

prove

322

to derive

163.

be allowed

good

surety,or

may

they

will

they

profitso made

b; Williams

to

Account,

on

a,

creditor

surety.

which

(St. "

(St. " 323,

company.

163

in

manner

of his

circumstances

any

office.

compelled

243.)

under
manner

will not

virtue

administrators, that

or

606.)

like

company

by

the

of their

and promoters.

and

of

admini-

not

10.

solicitors

estate, auctioneers, and

Elcjood,34 C. D. 698.)
or

situations

insolvent's

or

creditors, who
(St. " 322

confidential

agents, trustees, and

counsel,

to

as

similar

in

standing

persons

any

faith

sureties.
act

is bound

injurious
any

is

which
to

to

required between
And
he

do, and
the

if
is

that

the

creditor

required to
act

surety, or

with
stipulations

debtor

debtor

do

by

omission

or

if

does

creditor
unknown

70

FBAUD.

CONSTRUCTIVE

Tit.

I.

Cap.

The

be sued.

can

why

reason

simple release

of the

IV.

principaldebtor discharges the surety is,that it would


be a fraud on the principal
debtor to profess to release
him, and
him

sue

then
; but

on

the

effect to the
release

as

L.

E.

of the

Ch.

"

into
to

J. 745.)
a

compel

But

of

other
with

the

by paying

amount

the sureties

them

(1893)
III.
in

III.

Frauds

case

of

persons

peculiarly

L.

E.

2 Ch.

Ch.

514.)

of persons

of

whom,

liable to be

imposed

may
not

207

see

part

valid

Tucker
are

debt

1.

has

for

to

from

due,

given

their

come

become

has

charge
dis-

Laing,

v.

them

liability

Wooldriclgev,
judgment in Green v.
;

Wolmershauseii

Gullicl;

v.

from

of those

classes

their peculiar

circumstances,
undue advantage
incapacity,

(Ead of Chesterfield
v. Janssen,
165.
Thus,

Bargains with

unless

the

rests, can
and

vene,
inter-

164.

mental

"witliexpectant

heirs,

the

readilybe taken, even where the transaction could


be impeached if entered
into by partiesotherwise

289.)
Bargains

of

to

as

entitled

who

Case,

not

so

situated.

1,

give

contract

laches,

Belief will be granted in favour

of any
irrespective

on.

the

on

(St. " 327, 499

Norris, L. K. 6 Eq. 410; and

Wynn,

a
one

exonerate

debt.

will

equitydoes

to

debtor, or any

the

Court

no

principaldebtor."

any

Equity, after

indemnity,to

an

delay

some

not

the

surety. (St. " 326;

Court

the

is

Mellish, L.J., in NevilVs

unaccompanied

K.

creditor

the

partiesby construingthe
sue

Mere

47.)

delay,will

to

not

Sir G.

of

the

is that

principaldebtor, and

creditor, at least if

such

bargain

would

remedy against the surety, there

covenant

(Judgment

in turn

surety, who

the

intention

the

sue

where

his

is to retain
fraud

to

expectant heirs will be

purchaser,
show

that

reasonable, or

1 Wh.

whom

on

the

that

the

transaction

the

onus
was

bargain was

set

"

Tu

aside,

probandi

fair,just

fullymade

CONSTRUCTIVE

known

to and

71

FEAUD.

approved by

the

to whose

person

Tn-

estate

1,

'"

the

expectant heir

hoped

to

'"

it is

because

succeed;

the

from
policyof Equity to prevent designing men
whose
interests are
taking advantage of persons

future, and

therefore

apt to be

under-estimated

improvidently disposed of, especiallyby


the
the

thoughtless,and

whom

the

of the

property

ancestor

oblige the

heir

If the

will

does

or

allowed

rules

repeal of
of

(Miller
K.

the

difficulties at home.

of

full information

on

bargain,confirms
the

as

the

rights or

injuriouslyaffected,

are

the

repudiate

bargain.

665;

laws

has

altered

not

the

dealings with expectants.


Eq. 641, 646 ; Tijlerv. Yates,

to

as

Cook, L. E. 10
Ch.

strangers,

necessities,

his

by which

to

usury

Court

the

v.

disappointed,

167.

(St. " 345, 346.)


The

from

his

the

other, party

be

not

which

hands

act

any

by

the

and
deliberately,

of the

property

L.

it is also

166.

343.)

rightof settingaside

transaction,

sitous,
neces-

person

are

heir, after being relieved from

absolutelyand
to his

at

to disclose

(See St. " 334"340,

other

or

expected

was

and, by cutting off relief

he

; and

objectof Equity to discouragetransactions

the intentions

to

the young

the

or

L. E.

of Ai/Irsfordv. Monis,

Earl

490.) 168.

8 Ch.
The

relief is afforded

same

to

and

remaindermen

andremaindermen

unless

reversioners,

transaction

the

fair,just,and

was

bargain was

fullymade

parents

other

who
an

had

or

the

purchaser

means

v.

Cook, L. E.

extends

to

the

case

the

that

the

in

loco

their

parentis,

obviating the necessityof such

alienation of their future

Beynon

or

10

(St." 334

interests.

Ch.

of money

389.)
lent

on

The

"

and

, ,

that

approved by

standing

persons
of

reasonable,
to and

known

show

can

340 ;

relief also

unconscionable

reversioners.

72

Tit.

Cap.

I.

terms,

fully understood

not

to

borrower,

the

by

IV.
.

C.

Siiellimi,15

where

purchase

is made

advice.

the

By

stat.

is enacted

fraud

interest

in

opened

"

kind

O'Rorke

aside

merely

that

these

Act

no

in these

out

of

the

312

; Earl

the

still
be

need

be

of

use

the

{Fry

give
a

in

to

ground

for

more

arising

power

Lane,

v.

rise

nothing

Morris, L. K.

v.

(See

prohandi

onus

therefore

circumstances.

of Aylesford

in this

170.

814.)

may

cases

unconscientious

an

purchase'

acquired" (s.2).

alters

and

value
under-

of

beneficial interest

any

C.

undervalue

of fraud

relief ; for fraud


than

be

2 A.

way

'

be

hereafter

of contract, conveyance,

by which

or

Act), it

reversionary

ground

word

kind

every

and

presumption

40

Ch.

C. D.

484,

171.

490.)
On
.

similar
j.

Securities

of

by

heirs

and

an

agreement

principlespost-obitbonds

the

i-,

like nature

other

to pay
obligor,

and

interest

on
sum

thereon, on

decease

he

are

set

expectants.

made,

the

whose

312

fide and

bond

any

the

on

property may

in

cases;

2.

no

D.

C.

shall

estate

"the

Bolingbroke,

v.

This

of

dealing,of

personal

assignment under

Post-obit

at

man

(Sale of Eeversions

or

real

include

shall

in any

bonds, "c., by
expectants.

the

having

40

purchase, made

No

(s. 1) ; and

"

or

relief will be

ignorant

Lcme,

v.

c.

unfair

or

set

or

Vict.

31

that

without

Act

(Fry

are

(Nevill v.

vendor

the

as

possessionif

in

and

poor

life.

V.

169.

322.)

"

from

undervalue,

independent

such

like

the

property is

the

considerable

J.

579.) And

D.

even

positionin

father's

his

on

given

expectations,except

without

person,

founded

2.

FRAUD.

CONSTBUCTIVE

the

and

aside, when

receiptof

the money

the

the death

of the person

expects

become

made

post-obit bond

exceedmg
to

other

sum

so

entitled

is

by

received

to

upon
some

property.

73

FRAUD.

CONSTRUCTIVE

(St. " 34'2.) Even

the

sale

of

T"'-

post-obit

bond

at

unless

the

however,

auction

public

sale

precautions

terms

advertisements.

and

these

of

contracts

that

paying

be

not

Where

3.

with

in

the

is

lender

maxim

and

under

circumstances

undue

influence,

persons

down

the

indicative
of

of

to

sailors

Common

4.

just

credulous, and

in

them

all

class of

appears

advantage

has

Where

5.

in

cut

173.

generous,
that

against

bargain,

or

heirs

5.

Disposition

by

contracts
any
undue

174.

attaining

after

Common

treats

any

(St. " 332.)

4.

they

wherever

wages,

shortly

person,

the

or

taken.

been

or

expectant

young

r"^^-

of

parents

men

his

majority,makes

gift,sale,

relative, it will be

having

had

fullest

the

the

terms, in the

though

were

fair,but yet

been

obtained.

par.

149.)

175.

not

so

of

grantor

the

on

subject,

disinterested advice
case

of

advantageous

{Savery v. King,

5 H.

a
as

L.

sale

or

might

person

after

""J""t.v-

or

deliberatelyafter

information

separate, independent,and

even

favour

the

aside, unless

intentionallyand

it

makes

lessor

set

lease,

or

Sales to

expectants
at exorbitant

at

lives, Equity

their

respectingtheir prize money


inequality

their

3.

-,

connive

extremely

so

generally afforded

relief is

and

to

(St. " 348.)

amount.

light as

same

and

prices,

loco "parentis,
Equity has

improvident

the

to

being

require guardianship

to

imposition,or

intention

an

standing in

claim

who

goods

sold

exorbitant

at

profuse expenditure,unknown
other

he

expectant heirs,

or

the

172.

young

other

equitably

that

have

others

If,

upon

equity. (St. " 344.)


and

usual

(St. " 347.)

\Yith the

tradesmen

validity,

the

granted, except

to which

do

equity must

it

give

perfectlyfair

are

entitled,in accordance
seeks

\Yill not

free, fair, and

was

respects relief will

and

i,

'-

lease,
have

C. 627, ante,

74

FBAUD.

CONSTRUCTIVE

1.

Tit.

^"

omission

"

something

Where

IV.

made, which

is

said

is

or

done,

as

operates

imspective
any

of

con-

fidential

relation,or

nothing

than

more

selfish

any "'

artifice,
liability'tr
imposition.

advantage,
omission,
the

on
1.

of

fair
to

knowingly produces
is misled

who

statement,

to

injureanother

ground
2

married

or

knowing

has

good title,the

real

his title to it.


aware

person,

some

the

of the

act,
is

design

his

own

384
a

will not

of

an

mits
per-

person,

the

And

person,

vendor

be allowed

(St. " 385, 389.)


existence

390

"

third

an

the

property,

suppositionthat
owner

guilty

thereby, on

of
to

either

though

even

(See St. "

owner

is

who

person

yet

to

where

instrument

under

he

might reasonablyhave supposed that he took


interest,
neglectsto make
inquiriesas to
proper

fact,and encourages

person

the

strangerto deal

respecting property

interested

by

as

the

assert

which

the

under

purchases

such

instance, where

be

sell it

another,

on

and

any

suffer

fraud.

to

to

with

shall

For

576.)

not,

or

good faith, but

or

latter alone,

woman,

himself

another

who

the

of constructive

Sp. 575,

duty

to benefit the

case

or

rightly considered,

connected

or

thereof, in such
infant

moral

been

have

not

may

impression

omission, when

plain

himself

injured thereby;

and

or

to

contrary

act, statement,

some

false

or

Thus,

176.

fraud.

beneficiallyto

whether

omission,

by

person,

reasonable

kind, relief will be granted

other

of constructive

ground

justitiaole

act, statement,

allowable

an

some

obtain

to

attempt

than

more

i.-"

"

i_,

the

in

amount,

may

or

or

Where

1.

Jiisleading.

to

or

design,

party, to nothing

of the

opinion

Avith

neglect, unconnected

mere

evil

or

arise from

it may

although

individual, then

an

upon

on

fraud

virtual

frauds

some

or

under

such

transaction.

in

which

instrument,

he

(See St. " 387.)

with

he

another

himself

will be
And

is

bound

where

CONSTEUCTIVE

lease

granted

was

lent, and
asked

the lessor,before
the lender

by

lease, and
he

that
same

he

had

held

of the

had

makes

make
of

is

Equity

in Dashtvood

invalidity

F. "

J. 518

contract,

faith of

the

position,enters

D.

Ch.

to

Court

which

the

(Bacon, V.-C,

perform."

12

of

eye

engagement

an

for

or

annuity,or

an

in the

That

to

matter

present payment
of

it

making

man

177

776.)

a.

agreements whereby
Upon analagous principles,

2.

persons

that

agreements

such

where

agreements

V.

293

Emiiss,

under-bidders

auction

to

(St. " 293.)


vendor

under

may,

But

puffers
the

under

in the

On

stat. 30

particularsor

dice
preju-

general.

valid

even

26

Beav.

187

the

other

hand,
at

employed

are

price,the
the

be

person

to

in

be

an

order of the Court.

the

Coll. 243.)

or

enhance

to

held

Caretv's Estate,

Re

tend

of auctions

now

are

to

property

sale ; and

2.

ground

thereby injurethe

value

sale is made

the

(See St. "


Galton

and

character

at

the

on

the

cause

may

proceeds of

in the

interested
the

to be void

under-value, and

an

other

against each

bid

to

formerly held

were

such

sold at

not

agree

auction,

But

the

no
representation,

will.

Jermyn,

v.

value, the lessor

own

payment

it is bound

making

man

his

that

of the

lease to the

1 D.

Croucher,

it is for

provisionby

for

the
obligation,

an

perform

continuance

the

another

arisingfrom

alters

man

it is, whether

what

grant such

to

on
representation,

deed, incurs
to

"

affirmative, forgetting

assigned it

v.

granted,was

i.

177.

112a.)

is bound

if

who

another
a

the

Tit.

was

money

was

intended

previouslygranted

man

which
into

in

security. (Slim

If

he

liable for the loss

ante, par.
"

the lease

whether

answered

person,

was

securityof which

the

on

75

FRAUD.

sale
"

will

31 Vict.

be
c.

an

void.

48,

conditions of sale.

Frauds

on

76

himself

to

reserve

either

in person

the

by

or

Uncon-

of the

^.s the

3_

scientious

Statute

against fraud,

set

as

up

Act, 1893,

designed as

was

resulted

the

Re

the

Davis

v.

pro-

1 Ch.

(1897)

If clandestine

And

which

may

has

is

who

attempts

been, it will

shelter

to

196.)

179.

marriage

himself

(See St. " 330,


2 Ch.

Whitehead, (1894)
C. 311;

been

not

chargeable with

Statute.

the

be

to

fraud.

to have

ought

4 A.

Home-Payne,

v.

Boustead,
4.

he

provisionsof

Marlborough,

Hussey

it

as

case

of

contract

against the party

omission, in

allowed

support

fraud,

writing

be

never

circumstances

any

from

into

behind

Clandestine

from

enforced

be

it will

protection and

where

reduced

133

Rochefoucauld

contracts

;
v.

designed

are

tracts.
con-

to

impose

parties,so

parents

on

in

jiarentis or

intentions

such

contracts

the

5.

on

in

the

loco

relation

to

the

of
disposition

will

be

set

as

if

they

same

aside,
had

treaty

of

after

where
account

doing

acts

into.

those

acts,

husband

of the

latter

consent

gives a

; and

the

acts

secret

St. " 268

of the

intended

to

to

agreements,
commit
"

272.)

in

for the

intended

done

As

marriage, on

being
bond

be

virtually

otherwise

or

marriage. (See

injuredparties,

those

to consent

such

entered

required

parent declines

brother

procure

property,

equitieswill

been

not

marriage, render

derogate from
upon

their

the

or

to defeat

180.

persons,

fraud

the

in

peculiar

unavailing,by enteringinto other


or

standing

So, relief will be granted to the

where
on

persons

disappointtheir bounty, or

(See St. " 275.)


marriages.

or

other

some

to

as

their

be held

5. Frauds

of Frauds

Statute

tection

have

marriage

similar provision

Goods

of

Sale

auction,

an

use

hence,

4.

And

agent.

one

at

178.

58.

s.

bid

to

right

in the

is contained

3.

FRAUD.

CONSTRUCTIVE

debt, and

debts, to

husband

then

78

CONSTRUCTIVE

Tit.
'-

Stat.

I.

deeds

fraudulent
^-

defeat

which

5.

delay creditors

or

lands

of
dispositions

their

of

goods

or

just rights

13 Eliz.
.,,,,,

c.

and

FRAUD.

utterly void.

are

to defeat

delay creditors

or

the

within

other

; Re

216

words,

bond

in

the

that

have

must
induce

been

the

Court

settlement
time

that

L.C.)

But

deprive

the

then

if the

existing debts

settlor

such

instance

settlements
of creditors

debts

that

also

may

made

the

on

at the

v.

also
eve

has

of

up

to

as

of the
at

the

of

the

paying

is to
certain

aside, though

set

to

the

L.

E.

time

of

date
Ch.

of

the

the

538.)

been

impeach

the settlement,

making
if

they

can

applied in paying off


the

date

Pope, supra.)
the

settlor

be set aside not only at the

may

existingat

were

(Freeman
creditors

of

by subsequent creditors

their money

which

who

settlement

means

Pope,

v.

but the

74, per Hatherley,

the

it will be

(Freeman

but
show

C. D.

perfectly solvent

was

settlement.
And

the

said

yet is it

creditors

were

effect of
of

raise

be

may

intention

persons

settlement

(Ridlerv. Ridler, 22

settlor

the

the

settlor.

will

largelyindebted

so

defraud

the

sideration
con-

defeat creditors

to

insolvency;

time

in

or

Upon

suffice,nor

not

believe

to
to

was

making

of

T. 427),

for valuable

tending

will

the

at

direct

ton,
Penning-

of indebtedness

absolute

to prove

necessary

L.

voluntary settlements, it

indebtedness

mere

for

against creditors.

amount
as

; Ea'

exist (see Re

to

void

of fraud

of

case

void where

Trotujhton,21

be

question what

presumption

only be

104

conveyances

fide conveyance

will not
the

will

teiui

to be fraudulent

But

319.)

is shown

to defraud
Mor.

D.

consideration

valuable

design

C.

26

Chaplin,

"parte

deemed

are

which

conveyances

{Ex parte Elliott,2 C. D.

statute.

"

Voluntary

settlor

of the

And

settlement

ment.
settle-

subsequent
which

entering upon

some

is

hazardous

79

FRAUD.

CONSTRUCTIVE

enterprise in which

he

Tit.

debts

contemplates

Cap.
-,

and

,.^
diiiiculties.
,

(ilr

be shown

for

which

bj^extrmsic

valuable

liussdl, In

'parte

infra.) A deed, however,


may

is

Butterworth,

re

apparentlyvoluntary,

evidence

consideration, and

to have

be

may

been

against creditors.

(Pott

76.)

And

necessarilyvoid

deed

is not

Act, merely because

(Alton

who

man

the

in the

of those

reach

the

of

out

be

aside

set

such

became
L.

E.

19

C. D.

14

Eq.

trade

in

Ex

E.

Ch_

settlements

from

of creditors
v.

who

Douglas,

Butteru-orth,

re

under

voidable

47, if the

s.

is

into

to

beyond
a

settlor

arrangements

party

into

the
are

to

the

becomes

the

from
others

that situation
may
to the

pohcy

be

debtor

of the Law
even

received,

which

prevents

of freedom

to

or

have

considered

others

entirelyvoid,

composition

creditors, obtained

other

the

with the debtor

which

chief inducements
on

the

what

contract

being put

fraud

security,either

or

existingdemands

character,

(Mackay

also

are

creditor, who

person,

enters

his

of

184a.

benefit

third

hazardous

Russell, In

'parte

bulk

creditors, shortly

behalf

on

his creditors

the

his

property

ment,
voluntary settle-

takes

of

of his

cannot,

184.

deed, has, unknown


any

that

of

suit

Act, 1883,

bankrupt.
If

106

588.)

Bankruptcy

it is

defeat

trade

become

after the settlement.

Voluntary

8.

So

reach

in

bulk

may

settlor

the

engaging

before

the

who

tradingoperations.

property

may

so, take

doing

whereby

the

this

L.

into

contemplates going

of

eve

out of the

him

under

183.

622.)

or

Coll.

or

Harrison,

v.

as

Todhuntcr,

v.

designed to prefer

particularcreditor.

made

supported

such

on

I.
IY.

as

sign the

; and
as

such

from
one

of

deed,
secret

against the

8.

Frauds

on

80

FRAUD.

CONSTRUCTIVE

Tit.

assenting debtor,

I.

^
"

"

St.

under

paid

money

So

trustee, by which
held

in trust

and

between

agreement

an

the

the trustee, will be


the

conveyanor'^"

Where

settlement, veyance,
with

notice

or

takes

notice

settlement, with

to

instance

mortgage,

debt

of

186.

(St. " 380.)

person

to be

bankrupt,

of

the

at

even

his

or

the

of

or
Con-

legal or

of
",

another's

extinction

to the

rescinded,

himself.

bankrupt

to the

annuities

certain

to pay

and

debtor

bankrupt is

of the

estate

apply the surplus

to

185.

bankrupt

(See

back.

be recovered

may

Sp. 357"360.)

; 2

379

" 378,

them

; and

friends

his

sureties,or

his

or

"

title,or

(St. " 395, 396


et

persons

to

postponed

and

other

title will be

own

their

to

title of

equitable
his

that

to

; Le

of

Neve

that

knowing
made

it

of the

the

in

if
principle,

same

2 Wh.

of the
be

the

regards

share,

the

and

in

of

his

175

property,

him

of

the

to

the

(St." 395.)
when

that

he

the

right

he

the

has

partnership ;

to that

postponed
his

property,

title of

of

notice

trust

mortgagee,

Tu.

"

equitable mortgage

an

partner, knows

possession of

must

raise

them.

from

mortgage

equitablemortgage.

securityfrom

notice

will

subservient

transferee

by depositof the title-deeds,the

amount

his

takes

property,

same

made

Neve,

subject to

was

equitable mortgage

on

Le

v.

seq.) Thus, if a person

the

And,
takes

firm

are

constructive
and

other
to be

his claim

partner,

recouped

as

in

respect of partnership debts paid off by him, whether


contracted

before

Bulteel, L.
not

whom
had

be

E.

Ch.

postponed
he

had

contracted

no

after the

or

{Carander

legalmortgagee

will

prior equitable mortgagee

v.

of

notice, merely because the mortgagor

to execute

equitablemortgagee.
135.) 187.

But

79.)

to

mortgage.

legalmortgage

(Garnhajn

v.

to the

Skipper,34

prior
W

CONSTRUCTIVE

Notice

the

For, the

being only

to

secret

time

of

be

not

avail

permitted to

and

mortgagee

or

purchase or mortgage,

priorunregisteredconveyance

any

will

of his

and

conveyances

incumbrances, if a subsequentpurchaser

Eegistration

the

subsequent purchasers

secure

notice, at the

in

lay

property

objectof

against prior

mortgagees

Tit.

same

Cap.

where

even

registercounty.

has

the

"'

consequence

Acts

with

attended

formerly

was

81

FRAUD.

mortgage, he

or

himself

his

of

title

against the prior conveyance

or

than

registered.(St." 397.)

he would

But

same

Yorkshire

the

by

as

to notice.

reference

Notice

constitute

person

actual

rank

2 Ch.

of

14

(2

Q.

Sp. 753

B.

D.

everythingto
mere

{Jones
C. D.

Bailey

want

Smith,

437

; Nat.

v.

Barnes,

in the

course

of

Tramioays

v.

imputed notice,whatever
of justice
for the purposes
put

person

any

constructive

of

notice

that

blindness, will not


V.

given by

inquiry might have led.


caution, as distinguishedfrom

which
of

depends

or

inquiry,is

on

to

189.

424.)

ordinary prudence

be

Generale

sufficient,to

deemed

it

least where

; Societe

whatever

notice,

Actual

property,and

be

wilful

law.

binding notice, at

regardsconstructive

to

constructive, i.e.,

or

interested in the

treaty.

But

fraud

{Battisonv. Hobson, (1896)

construction

is sufficient,or

of

of

without
registration

only, must

Union,

is

absence

communication

oral

As

the

either

be

may

imputed by

the

the

now

188.

403.)

on

this is not

of their

dates

the

more

any

EegistriesAct, 1884, 1885,

in

registeredassurances
according to

were

in Yorkshire

regards land

as

case,

if the

mortgage,

Ha.

Prov.

impute notice

55 ; Williams
Bank

(1894) 1

Ch.

v.

v.

to

person.

Williams, 17

Jackson, 33

25 ; Brett's

L.

C. D.

1 ;

C. 311 ;
G

I.
IV.

82

FRAUD.

CONSTEUCTIVE

Tit.
'-

and

I.

Conv.

see

Act, 1882,

3.) Thus,

s.

'"

between

rule, aa

purchaser

.a

completed

has

who

general

as

the

the

occupierof

purchase by taking a

conveyance,

and

the

if

purchases property

purchased land,

which

he

than

knows

the party in such


this

with

the

rule

extends
of the

the

of

purchase

equitiesare

subsequent
be

249

Conquest, (1895)
to

Thus,

where

brewer

it

it

that

to

held

that

from

the

the

notice

person

that

brewer

could

not

L.

is notice of the title of the


tenant

instrument

his rent

pays

under

thereunder.

which

(See

general rule,

notice

Wh.

purchaser
of

the

to any

specificperformance.

; and

"

Tu.

226.)

or

other

of

person

the

447.)

another

is notice

and

of

Ch.

latter

acts

contents

tenancy,

under

he

of

bound

not

was

E.

one

beer

term

of his

occupier holds

an

of his

discovered

enforce

Henty,

v.

not

tenant, and

for

the terms

does

v.

in contract.

sale

purchaser

tenant

vendor

that

the

the

to

public-house

of

as

; Ebbetts

afterwards

another

(Caballero
But

it for

chaser
pur-

Davison, 16

v.

225

of

occupation

use

leased

was

to ascertain
and

in the

was

the

this rule

of sale

which

occupier

still rests

purchase it, but

to

was

it

years,

the matter

the conditions

Tu.

"

But

377.)

intending to

contracted
that

where

cases

stated that
a

Oh.

the

{Daniels

Wh.

; 2

of

the
when

under

lease

possession,because

property.

the

inquired

Ves. 433

; 17

apply

in

have

to

his interest in the


Ves.

for

contract

to

equitiesunder

to

property by the occupier,even

the occupier may

ought

land

equitiesconnected

to

as

in the

have

piay

occupier,but

agreements, such

equitieswhich

all the

by

only

not

another

occupationof

the

in

occupation

tenancy

collateral

the

be

to

person

vendor, he is bound

the

and

all

And,
has

notice
of the

rights
as

structive
con-

instrument

under

which

whom

he contracts,

Under

But

of
registration

the

mortgage will
notice

of

existence

he

the
To

Sp. 763.)

; 2

402

(St." 401,

deemed

mere

tive
construc-

collateral

to

second

had

from
actual

no

second

mortgage.

constitute

tive
construc-

notice, it is sufficient if it is brought home


counsel, in the

agent, solicitor,or

Vict.

46

"

(see stat. 45

the fact to the

L. E.

person
the
And

15 ; Re

Eq.

17

(1894)
who

the

where

the

employed

25)

the

circumstance

is

transaction does
solicitor of both

only
not

71 ;

E.

has

Ch.

Ap.

the

estate, and
the

the

mortgagor's

with

Sp. 761.)

solicitor

of

notice
But
in

him

to affect both

the
of

the

acting

necessarilyconstitute
as

times

effectingdifferent

affected

one

35).

different

at

same

(2

parties,so

408

Bailey v.

transactions, each

several

incumbrances.
of

municated
com-

give the notice, concealed

employed

puisne incumbrancers

prior

C. D.

solicitor in
the

is

Maxfield v. Burton,

Foy, L.

have

have

not

he, colludingwith

; or

to

upon

there

principalor client (St."

mortgagor

incumbrancers
in

v.

same

incumbrances

the

would

Cousins, 31

bound

was

{Sharpe

fact

solicitor

Ch.

unless

to the

transaction

same

3)

s.

Hart, L. E. 6 Ch. 678

v.

Barnes,

he

certaintythat

moral

Rolland

39,

c.

259.)

prior mortgagee

when

mortgage,

the

Ch.

of
registration

prevent

400

188) the

{ante, par.
is not

yet

(St. "

Eq. 53;

11

mere

not

third

of

E.

conveyance

that

tacking a

will, and

or

subsequent purchasers,as

notice to
so

deed

Yorkshire

in

except

effects ;

L.

Rawlins,

V.

Cap.

appointee,

or

of its contents.

repudiate a knowledge
Piklit'i-

trustee

or

T'^'

the party with


"^
"'

ordinary circumstances,a

under

claim

cannot

executor

as

derives his power.


man

which

claims, or under

he

88

FRAUD.

CONSTRUCTIVE

the

parties
G

}"
IY.

84

FRAUD.

CONSTRUCTIVE

Tit.
Cap.

I.

with notice of the facts.

{Perry

Holl, 2 D. F. " J.

v.

IV.

190.

38.)
A

of

purchaser

from

otherwise
of his
who

the

had

notice

notice

no

latter

would

is

and

in his hands

"

P. 6th

lent
10, Fraudu-

Another

10.

; 2

(St. " 409, 410


; 2 Wh.

Tu.

"

Sp.

with
be

754

notice
safe

Dart.

in
V.

191.

134.)

of the doctrine

instance

valuable

would

man

no

had

latter

be affected

not

otherwise

ed. 1023

purchaser

the

and

; for

benefit

full

fide purchaser for

bond

; for

purchase.

notice

if

an

purchases

the

And

another,

sells to

consideration, the title will

any

enjoy

not

unexceptionable title.

own

he

fide purchaser without

prior bond

protected if

be

will

equitable claim,

of

notice

legal estate, with

of constructive

dealing
with
or

executors

fraud

notice

arising from

from
trators.

Such

executors.

notwithstandingit
trust

or

equity in

purchaser
not

may
the

is

unlawful

But

purchases

Wh.
Frauds

11.

Stat.

11.

The

order

the

423,
896

to

to

they are
if the

purpose,

Tu.

"

presumed

580,

ordinarilyvalid,

with

of the

executor
that

know

dischargethe
legallyliable
into

estate

purchase
581;

will

Elliot

27 Eliz.
of voluntary

deeds,
against
subsequent
or
purcha.sers
as

mortgagees.

; for

the

the

sale

debts of

before
that

be

all

the

for

money

an

aside.

set

Merryman,

v.

seq.) 192.

et

objectof

the

statute

27

Eliz.

the

4, in the

peculiar

some

purchaser knows

converting the

(St. " 422,

under

be

hands

required in

claims.

executor

case

in

seen

are

be affected

the

cannot

be

purchases

may

testator, to which

other

e.

be

may

adminis-

c.

4,

to

was

give full protection to subsequent purchasers against


volunteers
under
mere
prior conveyances.
By virtue
of that Act, therefore,a prior
deemed
was
conveyance
void, as against a subsequent purchaser
whether

with

or

without

to enforce

valuable

such

notice, and

or

even

prior conveyance,

mortgagee,
after proceedings
if not

consideration, although it might be

on

bond

FBAUD,

CONSTRUCTIVE

86

Tit.

I.

^'"'-

^^-

There
of

case

giftto

exceptionto the generalrule, in the


notice of a
charity,that if a purchaser had
this

was
a

charitable

of it from

subject to it; though,


not

have

had

if he

no

fair voluntary

and

children

this

extent, that

notice, and

had

-also

was

almost

the
his

he

although

deemed

was

concurrence

did

not

Bayspoole v. Collins,L.
As

in

settlements

receipt of

on

rence
concur-

settlement,

consideration,

3 D.

"

J. 186

196.

228.)

post-nuptial

and

pre-nuptialarticles,or

of

portion,or

additional

an

on

the

which

wife, having interests, giveup something,

and

they

settlements

of

consideration, and

for valuable

good against subsequent purchasers, or against

course

the

priorvoluntary grantees, as
6th

Compendium,

Lister, 6 C. D. 87.)
A

Smith,

v.

6 Ch.

E.

pursuance

husband
are

joinedin

pre-nuptial settlements

to

sion
provi-

substantiallypart with anything.

; Atkinson

290

(See 2 Sp. 288,

whose

valuable

to

supporting

of

person

essential

partiesdeemed

rule

consideration of the

Therefore, if

settlement.

the

to

wife

fide consideration,

bond

any

of

favour

sufficient for the purpose

was
itself,

the

in

exception

an

195.

(2 Sp. 289.)

settlement

to the meritorious

in addition

ed.

though

of the

in

may

marriage,he

held that

In

(Smith's
Foster

re

and

197.

not

is the

be

is within

he could

(2 Sp. 291"298.)

be.

may

objectof

settlement, is not

he

case

2395

par.

collateral relation,who

limitation

was

took

he would
purchased from a purchaser with notice,
the same
protectionas he would have againstan

ordinary voluntary conveyance.

for

of it,he

notice

had

purchaser who

notice

purchased without

or

use,

not

198.

within

mere

the

the contract

an

ulterior

volunteer

consideration
; but

yet it

prevailagainsta purchaser.

CONSTRUCTIVE

But
in

the

upon

Statute

Tit.

have

I.

'-

great

been

measure

importance by
which

the

June, 1893,

have

been

actual

in

In

12.

made

835

by voluntary donation,
if the

he

be

shall

without

any

benelit

Eliz.

12.

i"'raudsm

another, it is voluntary

from

that

obtains,

person

be called in

establish

to

deemed

of 27

meaning

in which

transaction

able

be

seq.) 199.

et

before

which

henceforth

the

transaction

necessary,

made

and

fide

shall

within

Tu.

"

every

should

bond

intent
void

(2 Wh.

4.

regards sales

as

voluntary conveyance

no

fact

and

'"

relevancyand

Voluntary Conveyances Act, 1893,

fraudulent

fraudulent

their

deprived of

provides that, save

29th

c.

decisions

all these

now

87

FEAUD.

fjf^insTth

question,that

the

giving donors

person

them-

selves.

him

the

and

with

if this

benefit

E.

what

of

knowledge

not

established, the

Beav.

misapprehension

Wh.

such

And

53).

the

that

be

Lyon

of

to

the

donor,

to

advise; and
will in

power

donor

in

such

to

show

but
been

any

that

the

unusual

brought

understood.
248.)

C.

29

Couchman,

200.

to

D.

C.

212.)

usual
clauses
the

v.

18

want

must

Want

to

reserve

solicitor

so
parties,

of

of such

D.
It

668;

such

advice,

is

not

;
v.

necessary

explained;

were

be

James

shown

to

have

notice, explained,and

M^dlinfis,L.

E.

7 Ch.

of

of
power
revocation.

Hall, L. E. 8 Ch. 430

clauses

donor's

{PliilUpsv.

the

absence

the

{Hall

Armstrong,

v.

both

acting for

case,

general,in

be fatal to the deed.

Henry

Little-

advised

to be

ought

solicitor

or

if the

circumstances

the

where

et

Home,

aside

set

be

247

v.

revocation, it is the duty of the

power

will

Tu.

"

are

doing

was

(Ogilviev.
merely trifling

was

N.

boii,(1897) W.

he

628

it will not

but

Eq. 655);

deliberately,

transaction

Baseley, 1

v.
{Hitijucniii

Phillqjsonv. 'Kerry, 32

seq. ;

L.

voluntarilyand

so

full

is

aside

set

did

244,

FRAUD.

CONSTRUCTIVE

88

'I'lT. I.

IV.

Cap.
13.

lent
Fraudu-

appoint-

fraud

that

the

upon

ments.

there

Appointment
whereby a

L. C. 155.)

benefit

power

is

secured

to tlie

appointor.

the

purpose

of

securing

some

some

others

not

objectsof

the

objects of

of the
that

though
hold

fund

(St. "

255

Brett's

L.

Where

Aleyn

Bridger

Deane,
Where

creditors

in favour

of

genera]

his

upon

over

former,

Wh.

part to,

the

power.

Tu.

"

308

the persons

entitled to be

are

C. D.

42
a

put in the

exercised.

been

not

exercises

against a

one

appointee should

exercised
fraudulently

Deanr,

person

to

201.

if it had

v.

Equity

objectsof

Bdrhier,

its exercise

position as

in

the

to

make

not

are

v.

is

power

fund

or

ment
appoint-

understanding

an

that the

or

or

an

fund

appointsa

the

for,

trust

C. 155.)

injured by
same

lend

for

or

himself

to

set aside

under

the

to

terms

such

power,

power,

of whom

some

persons

of

in

benefit

power

due

the

upon

will be

good security;

on

the

the

is to

latter

the

of

donee

the

particular

debt

appointor,or

the

where

Wrey, Brett's

v.

having

of

payment

in

appointeeby

as

reasonably

benefit of others, makes

for the

is fraudulent, and

Eights

(Henty

infer
unless

power

upon

person,

exercised

appointment

an

if

Hence

be

to

fraud

conclusion.

other

to any

come

is

as

will not

Court

cogent facts that it cannot

such

are

it is considered

the

But

power.

appointment

an

exercise it bond Jide

must

power

designed; otherwise

end

for the

of

donee

The

13.

202.

9.)

general power

of

ment
appoint-

volunteer, it will be deemed

creditors,who

will in

(Re

fraud

Equity become

entitled

appointee.
the

to

money

share
power

and

the

hands

of the

appointee.

(St.

203.

" 169.)
An

in

appointment
is

given

to

is
one

valid

now
or

though only
of the

more

(Illusory
Appointments Act,
though

an

object of

the

power

nominal

objectsof

Will.
is

IV.

c.

the

46);

altogether

CONSTRUCTIVE

excluded

"

(37

Vict.

38

89

FRAUD.

And

37.

e.

Tit.

frauds

to

as

on

Cap.

powers

Hentji

see

If

14.

with

contract

things

as

which

him,

has

he

265

Hudson

v.

15.

his

which

buying

is

cuiTence

J.

432.)

interest

necessary.

205.

Ch.

such

flaw

from

of

an

{Miirrell

v.

the

in

order

to

title,

vendor's

Goodyear,

by

as

whose

con-

Eesciud-

15.

in

heir-at-law

v.

purchase

abstract;

the

D.

C.

204.

into

in

Stratton,
43

265.)

contract,

state

tion
considera-

the

Childcrs,

entered

has

discovered

the

up

benefit

as

the

considera-

to

act,

own

(Pigc/ott

(1896)

^^ifch

contract.

con-

determining

v.

Putting

i4.

|^^

interest

an

valuable

his

forth

of

state

of

by

contract.

rescind

own

has

he

held

so

Mackenzie

who

cannot

to

Ciipps,

person

contract,
turn

33

the

by

formed

for

liberty,

at

has

into

J.

"

created

a.

into

enter

actual

an

enjoyment

interest,

he

entering
F.

D.

not

that

which

for

is

from

things

the

for

203

155.)
to

representing

himself

he

derogate

by

C.

L.

another

induced

security

sideration,

of

has

man

Brett's

Wrey,

v.

i.
IV.

D.

order

to

gawinthe''
title.

90

II.

TITLE

Equity.

Executive

Of

1.

CHAPTER
OF

Tit.

"

Classes

LEGACIES

ii.

of

general, and
of

bequest
debt,

be divided

may

particulararticle,or

5001.

"

stock,"

lOOL

or

legacy is general when


article

or

all others

of the

ring," or

"

of

Cent.

that

is

Thus,

"

bequest

it

be

not
was

so

abate

intended.

payment

general legacywill
bequeathed

is

construed

if, after payment


for

of

is

practicalimportance, as

; but

of
of

bequest of

"

500L

"

as

ticular
par-

diamond
A
a

legacy
general

out

to

out

of my

New

legacy.

unless
specific

it is

distinctions

specific
legacy will

debts, the
all

or

A."

pointed

demonstrative

These
a

same

of

of

nature

the

if the article

destroyed or

by

general legacy.

or

ring,"

me

distinguishedfrom

it is in the

"

the

bequest

particular fund

Annuities

legacywill

clear

when

there

satisfyit."

stock," is

to

a
as

kind, as

same

is demonstrative

legacy,but

of money

of

diamond

owing

it is not

sum

.500L

all others
my

is

of money,

sum

"

of

bequest

specific,

classes^-

specificlegacy

distinguishedfrom

as

31. per

into three

demonstrative.

description,as
"my

PORTIONS.

AND

LEGACIES

assets

are

legacies,while
or

alienated

sum

by

are

not

sufficie
ina

specifically
the

testator,

91

LEGACIES.

the

legateeis

entitled

not

testator's estate.
abate

not
which

it is

the

exhausted, and
fund

fund

for

lies,

at

which

is

fund

is not

Ti'^'- H-

of

out

adeemed

only regarded

(1 Wh.

payment.

the

Tu.

"

as

786

seq.)
action

No

legacies, unless
(St. " 591)

it is the

But

the

to

be

chattels, the

legatee,who
Law

applied at
has

been

because

the

A
to

similar

be

might

have

without

and

Common

required ;

recovered

(St. " 592.)

rule

charged
could

on

not

Courts

And

in

of

And

even

and

there

land,

take

due

Equity
where
was

or

no

could

not

the

of

her

of

case

the

an

though merely
jurisdiction,

or

Common

the interests
an

exclusive
assented

executor

actual

tion
applica-

impose

on

terms

as

legacies such

or

concurrent

his

actual
of

wife,

family.

her

trust,

legacy
Courts

Law
of all

parties,

jurisdiction.
to the

trust, yet they


a

husband

to

legacy given

asserted

the

the

disapprovedof (St." 591)

where

care

the

to be

attempted

constructive,

or

in

for the

Law

at

that, for example,


a

specific
legacy

was

provisionfor

any

implied,

express,

so

as

immediately

Courts

Law

there

be generous.

but
pecuniary legacies,

doubted

making

to

action

an

parties recovering these

might

whether

permittedto

vests

maintain

may

delivers

pays,

see

assented

property

thereof.

recovery

has

debts, and

debts, inasmuch

the

he is

them

him, and

testator's
he

Jurisdiction.

recover

to

in

vest

legacies,to

justbefore

after the executor

the

of the

to

assented

assets

sufficient left to pay

must

man

has

all the

payment

Law,

of the executor, before

assents

will be

Common

executor

because

duty

or

over,

the

the

liable to the

are

of

is

from

legacy does

general legacy,until the

payable

primary

demonstrative

the failure of that

by
et

like

And

compensation

to

legacy,

acquired

;
jurisdiction

92

LEGACIES.

Tit.

II.

Cap.

I.

because

the

trustee

for

ground

of

executor

considered

was

equitable interference
be

interpositionof Equity might


account

distribution

or

which

assistance

or

incompetent
the

by
and

of

suit in

other

portions or
No

"

suit

1873,

of the

were

And

land, and

charges on
the

of

raising

the execution

206.

Division.

Chancery

the

legaciesor

causes

estates

the

taking of accounts,

assigned to

for

Courts

(a), all

34

s.

an

relief

other

some

administration

the

persons,

of trusts, are
No

Act,
the

for

matters

obtain

(See St. " 593"602.)

afford.

to

the

because

Law

Common

of

universal

requiredto
or

kind

a
a

and

of assets,
the

Judicature

deceased

forms

legatees, which

the

as

distribution

of residues

Probate

be

can

Division.

77,

c.

Courts

County

brought
23

s.

virtue

by

; 38

in the
"

of the

Probate

39 Vict.

stat.

c.

Division

77,

52 Vict.

51 "

11, sub-s.

s.

c.

43,

Vict,

(20 " 21

1). But,
Courts

County

Act, 1888.

entertain
not

exceeding 50L,

of the

future

actions

not

personal estate does


of

sum

In

for

and

powers

claims

authority

by creditors, legatees,
of

kin, in which

exceed

the

in amount

real

value

or

207.

500L

of

cases

actions

legaciespayable

at

future

day, whether

day.

contingent or

may

future

danger
And

Specificlegacy
for

remainder

anothei-.

life,
to

and

legatee has

or

after

the

to be
not

Court

not.

his
can

absolute

into

thereof

right to

have

Court, whether

specificlegacy is given to
death

to

obtain

for life for the

remainderman,

another, there
a

due

decree

for

if there

is

some

or

one

the

his

it is in

208.

for

life,

legatee in

securityfrom

over
delivery

(St." 603.)

(Re Braithwaite,21 C. D. 121.)


a

the

compel

may

paid into Court.

an

legacy brought

remainder

to

the fund

where

tenant

otherwise, the

give securityfor the payment

to

order

But

one

in

the

and

executor

to

have

next

able
pay-

at

Court

High

and

devisees,heirs-at-law,or

the
Legacy

jurisdictionin personal

of the

the

legacy

allegationand

LEGACIES.

94

Tit.

II.

Cap.

].

the

of

happening

of the

party

to be

of the

estate

out

be

paid. (2 Sp. 396 ; Lewin,


Where
a portion is secured,

time

that

the

that
qualification
the

children

Brett's
As

L.

the

and

those of the

and

will not

any

of the

life.
Time

for

raising
portions.

the

to raise

interests

forthwith

terms,

the

by

that

Where

standingin
and

no

to

ambiguous

at

vest

the

marriage

or

lifetime of the
ed.

to the

mortgage

or

there
the

214

458.)

of

is

a.

be

at

interest is
future

right to interest.

raised

reversionary
indicate

to

be

raised

possession. (2 Sp. 405.)

or

for

marriage, and

or

the

something
portions shall not

of

parent for life,with

legacy is given by a father or


loco parentis,as a provision for

legacy be payable

deaths

tenant

vested, the portions must

sale

on

twenty-one,

subsequent

portionsat twenty-one

maintenance

immediate

by which

construction,the portions

Trusts, 10th

falls into

term

in the

limitation

are

unless

intention

on
a

is

daughters at twenty-one

by

vesting of

the

the instrument

construed

children

If there is
term

the

be divested

(Xewin

Wrey,

{Henti/ v.

if the instrument

will be

sons

the

unless

raisable

periodfor

the

point,but capable of

of the

of law

rule

no

not

214.

expressed in

not

given, or

are

them.

want

to

C. 155.)

portions is
they

live

is

not

portionsare

general rule, if

the

dies before

child

there

to

particulartime

no

raisingportionsis subject to

for

power

every

and

the

But

(2 Sp. 398.)

be raised.

portionor legacy is
10th ed. 473.) 213.

portion is needed, the portion will

the

when

vesting, if

the

is fixed for

"Vesting of
portions.

the

circumstances

to the

benefited, but
of which

to the person

referable

not

event

an

postponeduntil

is

payment

if the

it is otherwise

But

until

215.
a
an

person

infant,

given,though

day, the

infant

(Lewin, 10th

an

has

the
-an

ed. 470.)

95

LEGACIES.

For

although portions provided

the

land

such

if the

interest,or
think

may

Trusts, 10th
When

real

death

the

vision

is made

by

or

is

it

intended

be

the

by

has

estate,

excluded

though

even

and

not

re

where

to

the

which

is exhausted

which

it is

L.

by

subject,he

the

for

is not

the

363.)

admitted

younger

216.

to

family

legallimitation

in

period of distribution,
the

E.

time

for

taining
ascer-

from

{Reid

v.

the

estate,

charges

the

But

regarded as

subjectto

in the

446

Eq. 491.)
of the

is nevertheless

children.

This

the

of

payment

share

the

latitude

gets nothing

son

to

which

means

(Lewin, 10th ed.

excluded.

eldest child entitled to the estate


and

period of vesting,is

eldest

to any,

strictly"younger,"

child.

younger

all the

unprovided

provided for by

Bailey's Settlement,

younger

parties making

not

extended

is to be

the

portion

by

by

presumption,

all children

the

ordinary cases,

the
who

of

parent

provision for

in

child

is not

In

deed.

the

the

for

pro-

"younger

children.''

that

by

the

will itself,
or

or

and

son,

Construction

on

parentis, whether

double

will, though

or

construction

In

make

give

(Lewin

it must

by will, for

to

to

eldest

considered

contemplation

settlement

has

settlement

in

were

and

not

loco

or

ed.

attaining

on

that

as

stranger,but

Court

a.

to his

strong that it has let

so

for

and

the

as

"-

to carry-

as

Trusts, 10th

on

settled

standing in
Court

children

215

so

by

children, the
was

maintenance,

parent go

person

far

so

stranger,payable

pre-nuptial settlement
that

vested

as

ed. 470.)

not

Tit. II.

into

them, yet

interest in the meantime.

no

estate

of

live to take

not

(Lewin

legacyto

majority,carries
on

for

reasonable.

But

473).

do

regarded

allowance

sink

'

children

portions are

for children

to

the

charges,

portionsprovidedHoare, 26

C. D.

LEGACIES.

96

Tit.
Cap.

II.

deciding

In

interpretation

and

validity

the

on

of

I.

onegacies."" rules

of

acted

on

(St.

"

602,

is

it

so

could

and

we

Portions,

as

that

not

be

218.

land,
Law.

allotted

of

the

topic,

separate

succinctly
limits

dismiss

must

doctrines

the

even

the

transgressing
Manual.

remarks

few

extensive

on

Common

the

of

the

to

as

charged

and

217.

608.)

Legacies

but

legacies

rules

the

recognized

were

Courts;
of

the

follow

these

With

they

as

interpretation

generally

they

Law,

follow

Equity

of

Ecclesiastical

the

and

validity

of

Civil

the

in

Courts

legacies,

personal

purely

Equity

stated,
to

subject
since

it

respecting
without

the

far

present

97

CHAPTEE

OF

in all

Ward
A

by

gift

There

that

an

gift should

the

view

by
the

else for
of

his

the

(St. " 606, 607

1.

The

There

donor's

in his

person

donee,

or

some

property itself,or
the

same,

thereof

Brett's

one

of

or

the

of the

created.

was

C.

L.

be

must

Thus,

38.)

negotiablenotes, promissory notes, payable to order.


though not endorsed, bills of exchange, though not
notes, bankers'

endorsed, bank
drawn

by

order, though

keys

as

of the

donations.
Avstin

V.

person

not

endorsed

affording the

payable
by

Mead,

607

15

the

to

the

donor

a;

C. D.

be

Brett's
651

money

obtaining possession

the
L.

or

donor, policiesof

of

means

things given,may
(St."

depositnotes, cheques

mortgages, receiptsfor

bonds, and

insurance,
and

third

Definition.

death.

the

on

another

by

or

ownership

607 c;

a"

peril of

donor's

3.

direction, to the

which

Jurisdiction.

(St. " 606

is in

effect

obtaining possessionof

writings by

'

implied intention

or

take

donee, of the

afforded

efisentials:

the

to

express

only

he

three

are

deliveryby him,

presence

that

II.

^^'

giftof personal property

Tit.

seq.) 219.

et

existing disorder.

his

by

manual

means

be

must

decease

assistance

390

apprehends

with

be

must

jurisdiction

complete.

or

is

giftthere

the

Tu.

"

causa

who

one

Of such

death.

2.

mortis

donatio

made

kind, where

1 Wh.

Turner,

V.

CAUSA.

concurrent

adequate

not

was

MORTIS

maintain

Equity
of this

cases

Law

at

DONATIONES

of

CouETS

II.

subjectof
C.

; Clement

34;
v.

Re

such

Mead,

Cheesman,

What

may

be
"

g^,ch dona*'"'"'^-

MOETIS

DONATIONES

98

Tit.

II.

Cap.

II.

C. D.

by

the donor

which

authorityto

{Moore

his death.

before

railway
mortis

donatio

because

supra), unless

And

730.)

causa.

partakes partly

kind

stock

220.

Eq. 474.)

18

this

of

donation

Mixed

E.

L.

Moore,

v.

D.

death,

of the banker's

Cheesman,

v.

subject of

the

be

his

causa,

revocation

consideration

C.

Pearce,

V.

cannot

{Clement

pay

for valuable

paid away
{Rolls

is

drawer

of the

death

the

mortis

good donatio

cheque drawn

presentedbefore

not

was

to be

held not

was

delivery of

the

But

631.)

27

CAUSA,

the

of

character
of snch

donations.

of

and

vivos

inter

It

the

by

vivos

be

"

to

man

5.

It is liable to the

wife

of

the

L.

void

been
It

even

giftinter

estate

C. 33

duty.

deficiency

on

at

subject

was

subject to

Brett's

lifetime.

donor

have
4.

gift

it resembles

the donor's

debts of the donor


a

requires

administrator

or

delivery.
now

It

2.

75, when

c.

wife would

is

(St. " 606

Wms.

on

221.

681.)

of absolute

Words

Vict.

be

and

probate duty,

46

respects :

It differs from

during
the

his

must

to

Bxors.

executor

to

those

{i.e.,
conditionally),

mode

respects, in which

made

stat. 45

of assets.

of the

It is revocable

There

3.

law.

part

these

require probate.

certain

in

might

before

sub

once

legacyin

title of the donee.

1.

legacy:

2.

what

the

on

partlyof

giftinter vivos, and

does not

perfectthe

to

effect at

therefore
assent

no

It differs from

legacy.

It takes

1.

By

of

characteristics

if accompanied by expressions
gift,

words
created.

showing
should
the

be

Evidence

{Cosnahan

suf"cient

of
is
v.

the

clearest

event

Moo.

of

the

property

the

constitute

to

death
a

of

donatio

222.
and

to support
requisite

Grice, 15

that

was

in the

(2 Sp. 912.)

causa.

character

intention

enjoyed only

donor, will be

mortis
Evidence.

the

that

most

unequivocal

donatio

mortis

P. C. 215.)

223.

causa.

9a

CHAPTEE
OF

EXPRESS

PRIVATE
SOME

I. A

real

interest

in,

in

or

II. Trusts

this

indeed

the

was

(3), all

and

causes

Trusts

or

of

name

An

the

II. Extent

of

ov"r
trusts!

And

Judicature

into

Act,

three

kinds

sometimes

are

III. Division

trusts.

frequentlyconfounded,

are

or

designated

sometimes

by

the

226.

is

trust

225.

constructive

impliedtrusts, and

express

tm^t.'""

of trust.

Court.

divided

of constructive trusts.
IV.

224.

matters

High

and
together,

at least classed

name

legal of

'"

tion
relatingto the execuprivate,are assigned to

of the

however,

last two,

the

the

II.
'-

matters

be

may

Tit.

ownership of,
from

the

trusts, impliedtrusts, and

express

is

sense,

fell within

most

by

now,

Chancery Division

III.

wills

with

of trusts, charitable

by

beneficial

under

case

And

(St. " 952.)

The

widest

(See St. " 964.)

arising

BY

of Equity. (St." 1058.)


jurisdiction

exclusive

the

the

personal property, distinct

or

34

EVIDENCED

DOCUMENT.

used

ownership thereof.

s.

TRUSTS

WRITTEN

when

TRUST,

beneficial

III.

trust

is

which

clearly IV.

Definition
^

expressed by

the

collected from

V.

written

or

leasehold
evidenced

declaring

the

document.

lands, tenements

by

some

same.

or

or

^
fairlybe trutt.

may

declarations

v.

Mode

of

freehold, copyhold, jj^^g^"


hereditaments),

writing signed by
But

227.

requiresall

(which includes

of land

trust

thereof,

of Frauds

Statute

The

of

be

author

declarations

of

the

to

party
.

trust
H

of

100

Tit.
'-

II.
'-'

(St. " 972


Beav.

31

at

any

other

the

parties,that

if the

the

upon

the

the

received

to

and

circumstances

show

surrounded, and

be

(Lewin, 10th

transfer
effectual.

If

another

for

of

the

proved,
him

and

Ellison
Pater son,
or

is

32

C.

in

D.

for

trust

third
the

is
;

Vanrlerbercjv.

Palmer,

transfer

be

supported

as

17

C. D.

be

416)
made

for

or

if

835

to

the

debtor

and

the

other

of

Murphy,
J.

68 ;
v.

by writing

hold

favour

ed.
Green

person,

"

tions
declara-

10th

such

K.

be

to

binding against

person,

v.

trustee

sufficiently

and

in

Paterson

actual
of trust

or

nature

Tu.

debtor

created

(2 Sp. 53, 898

would

acts

be

"

And

his

to

trust

ineffectual

be any

to be

by

or

will

95.)

communicated

effectual

himself

definite

Wh.

directs

to

instrument.

the

representatives. (Lewin,

by word,

due

and

Ellison,

V.

himself

declaration

writing

transaction

his

knew

personal property

or

in

decisive

be

may

party signing,

should

declares

money

recovered, whether

the
he

there

render

to

person

of

evidence

of
credibility

that

property

And

229.

necessary

of

by

sufficiently
appear

not

by which
the

to

meant

was

Sp. 21, 22.)

(2

positionof

ed. 57.)

It is not

what

instrument,

the

of

do

trust

refers

document

shows

which

is sufficient.

of

face

the

Taylor,

v.

fide,is valid, though

if the

And

document,

terms

or

evidenced.

so

Peckham

of trust, if bond

of time.

distance

estate,

228.

250.)

declaration

be

not

ed. 53

10th

Lewin,

real

on

need

personal,

chattels

of

secured

though

even

money,

TRUSTS.

PRIVATE

EXPEESS

money

direction

donee,
the

11

donee.

Hare,

204.)

an

88 ;

But

an

imperfect gift cannot

declaration

of

then

imperfect instrument

effectual

every

by being

trust

(Re

converted

Breton,

into

102

Tit.

II.

-^^

'"

heirs, to the

his

and

B.

heirs

execute

uses

uses

Statute

of the
the

223

Blphinstone's Introduction

Cas. Eeal

Lead.

Tud.

creation
trust

of

of

confidence.
There
it is very

intended

was
cases

was

and

to

be held

to

be

trust, are

And

may

be

232.

not

or

effect of

and

context

definite,and
and

conduct

parties,and

the

old

desire

objects

benefited,

subjectof

the

if,regard being had

circumstances

the previous
subject-matter,
the situation of the

if the

to be

the

trust

expression of

an

intended

is to form

an

wills,in which

precatory trust,

person

import

confidence, hope, wish, and

property which

whole

117.)

169.)

whether

the rule, that

to create

certain

Hare,

The

to the

terms

arisingunder

created.

lay down

trust, i.e.,the

the

to the

cases,

many

recommendation,

of the

Cox, 10

difficult to determine

trusts.

in

expressions which

(Pac/e v.

are

231.

necessary

ed.

10th

ed.

10th

Tyrrell's Case,

7 ;

expressionis

have

would

created, although there

any

Statute,

the

of

ed. 289.)

4th

(Lewin,

trust.

be

may

absence

may

of

particularform

No

Precatory

Prop.

copyholds

Lewin,

(See St. " 970;

infringed.

is seised to

lords

rights of

the

otherwise

because

words

the

of

trusts

operation

the

from

excluded

been

And

to

able
being inapplic-

seised"

"

personal estate.

to
were

word

the

extend

person

any

order

in

estate

personal;

or

when

"

being,

"c., and

use,

real

of chattels

trusts

or

the

requisitethat
Statute

the

does

Statute

the

does

his

and

executed

is not

the

hold

to

Nor

them.

perform

it is

where

C. and

B.

to

use

Nor

trust.

continue

should

trustee
to

is

trusts

or

the

of

use

for

in trust

or

his heirs

to C. and

use

Statute, but

the

by

the

; but

of

use

executes

Statute

heirs, the

his

his heirs, to the

and

to A.

is limited

estate

an

TRUSTS.

PRIVATE

EXPRESS

the

of the will
of

the

(the

testator,

probable intent).

EXPKESS

the

PEIVATE

expressions appear

to

103

TRUSTS.

have

been

intended

^i'^- Jl-

be

to

Cat.
i.

"

mi

ihe

imperative,

changed
to be

and

the

employed

it

intention

to

forced

desire of the

that

the

that

the

act

is

if

; or,

meant

it is

the will ;
donee
a

third

by

person

appear

the

testator

which

in favour

trust

given

the

A.

to

of

children

; or

where

trustees

upon

trust

which

are

created
1070
Wh.

by

a, and

"

Tu.

testator

of

notes;
335

this

part of

motive

tho

than

of

legacy is

maintain

his
to

sum

for

applied towards

the

or

benefit

to

of

valid

no

character.

et seq. ; Brett's

as

person

him

Sp. 64"71

perty
pro-

benefit to

bequeaths

by

;"
legalobligations

words

to

the income

to pay

not

beneficial to the

him

to enable

not

or

the

former

where

as

fit.

donee,

actuated, rather

education,

maintenance,

act

the

expressiveof

to be

life,"nevertheless

to

be

person,

to

subject is

contemplate

such

are

think

may

which

was

fetter in

done

there

dispositionof

assignedis

to

better

be

discretion

ownership in

if the motive

if the words

; or

party
choice

any

27 C. D.

implication

and

if the

given without

or

exclude

the

or

irresistibly

unless

object or

absolute

imports an
where

the

ing
imply-

as

should

necessary

the

as

discretion

to

not,

or

the donee

given to

precatory

expression showing

an

is

the

was

{Re Adams,

imperative

If, therefore, either


definite

it

is

something

there

or

testator

perform

And

deemed

words,

express

of

sense

the context.

by

testator

be

not

that

Words

different

words

of all the

given their ordinarymeaning


unless

Ill
"

now

precatorytrust

conclusion

trust.

Brett's L. C. 19.)

394;

allow

consideration

create

them

upon

will not

to the

discretion

on

comes

will be

nature

will

Court

raised unless

""

decisions,however, is

of

current

"

L.

children,"

his

trust

(St. "

Harding
C. 19

v.

will be
1069

"

Glijn,2

Lambe

v.

104

Tit.

II.

6 Ch.

L. E.

Eames,

TRUSTS.

PRIVATE

EXPRESS

Stead

597;

'^^^' "^"

In

and

Hutchinson

re

Bank

Mussoorie

Gregory
French

words

be

may

which

by

And

the

the

object himself

the

objectfrom

(St." 1070,

of the rule.
95 ; Parnall

who

to take

are

familyof

the

objects;for

cases,

that
the

sisters,or

it

the

children

the

or

of A.

may

in

of

meaning

often

pensable
indis-

by

their

amount

to

particular

designationof
it

definite,and

A.,

or, in other

others, the brothers


to the

included

more

indefinite,the Court has executed

the term

the Statutes

and

Statutes

of

the husband

under

"relations

"

the

is still

trust in favour

relations,by givingthe property, when

according to

it

it is not

Generally speaking,neither

of kin

leaves

Mockett, 9 C. D.

render

"family." Although

the next

of

the

sufficient

as

definitely.Thus,

according

will be considered

is,

class out

fixes the

word

of

certain.

described

heir-at-law

of A.,

of kin

next

wife

context

means

Distribution.
nor

the

context

be

prevent

take, will prevent

But

be

any

clearlydefines

v.

clearlyand

A. will often

the

show

should

designationif the

sufficient

persons

; Breton

will
generaldescriptions

More

names.

to

within

certain

note

the persons

that

held

to

Parnall, 9 C. D. 96.)

v.

apply

which

objectis

being

may

distinct

select,or

it

which

from

neither
a

is to

any

object, that

the

giver

the

And

being considered

names

interest

what

doubtful

nor

first taker

the

which

the

are

use,

own

gift from

which

descriptionby
the

first taker

his

Williams,

12.)

expressed,or

description of

vague

that

subject to

subject of

the

be

imphed,

of the

part

it may

Diggles,

Re

Ch.

(1897)

Williams,

v.

870

394

Hamilton,

; Re

258

D.

; Re

321

225;

Adams

re

C.

; 27

C.

Ch.

; In

540

199

C. D.

39

(1895)

Hamilton,

v.

D.

Raynor, 7 A.

v.

Edmondson,

v.

Williams

C.

Kensington Vestry, 24

and

8 C. D.

Tenant,

5 G. D.

Mellor,

v.

of

personal,

to

Distribution,

EXPRESS

but

testator

brother

A.

the

for ever,

(St. " 107-2;

-2

bequeathed

his

to

estate,
of

what

wife

words

create

the

object was
waere

but

her

that

death

to

his

them

of his

she

will

his

to

create

testator

residue

sonal
per-

dispose
children
grand-

two

trust,,because

uncertain, for it might be just

to leave.

(St. " 1073.)

valid

trust

be created

the

may

that

devisee

233.
words

by

legatee will

or

vil.

expres-

to

before

L.

E.

the

Eq.

expressly or
will
of

they

those

318

the

trust

the

devisee

L.

E.

H.

be

communicated

C. D.

the

will

C.

trust

as, if

Frazer, L. E.
D.

and

lifetime

was

(McCormick

v.

26

he

though

such

they are

benefit

the

subject to

to

the

But

872.)

accepted by

of the

testator.

234.

531.)

happens

It sometimes

is

Norris

Tyssen,

v.

after

be enforced.

82;

legatee in

or

26

L.

that

object,even

some

wishes, where

; O'Bnni

must

{Re Boi/es,

for

with

legatee

or

testator

wishes

bequest

or

in the will,would

Grogan,
Eq.

devise

out

expressed

15

for

or

Sullivan,

v.

devisee

only verballyexpressed

carry

V.

if

the testator's

to

person,

executed, the
to

And

"^*'ly
impressed

{Irvine

impliedly promises

other
be

made.

was

673.)

give effect

some

will

devise

"'

him

may'^be"'^

carry

wishes, verbally communicated

testator's

ii.

definite.

not

chose

sive of confidence

Tit.

trust; for the

And

did not

be

But

continue

she

VII.

out

would

all the

left at

estates

not

doubting

property would

what

did

he

Sp. 75.)

be

Sp.,73" 76.)

leasehold

"hoping

not

these

the

'

'

shall
"

his

choice, and

gave

'2

105

^''^^' "^'

devised

family," this

words

TRUSTS.

(St. S 1071;

capita.

per

where

PRIVATE

although

that

no

valid

trust

Uouee
GXClUQGG,

is created, yet it is clear


and

made

in such
is

ficiallyas

instances

that

the

person

completely excluded

as

if

valid

trust

were

trust

was

to whom

intended

giftis

the

from_taking
created.

bene-

This

is

from

taking

'^
t"f"^s^^'
j^'^^J',']
valid.

106

Tit.

EXPRESS

II.

the

where

case

imperative, but
pointed

not

Court

Briggs

the

words

the

objects are

out

the

beneficial

and

if the

to

pass

C. D.

15

exeouted

such

VIII.

the

will

if the

a, b ;
v.

subjectof

to the

either

result

donee,
the

to

result

594

; Re

Boyes, 26 C.
trusts

the

to

or

Fleettvood,

Re

235.

531.)

executed

either

are

kin

of

next

(See

D.

personalty, the

gift be

residuary legatee.

Express

the

Bernard

546;

passes

will

that

way

(St." 979

case,

the

execu-

or

and

executory.

G.

are

general residuary devisee

or

subject of

equitable interest

of them.

interest

heir-at-law

testator's

Trusts

such

giftbe realty,the legalestate

but

vill.

in

"

In

276.)

indefinite, or

too

not

Mac.

Penny,

v.

Minshull, Johns.
the

all,or

at

indirectly

directly or

are

judicialnotice

take

can

TRUSTS.

PRIVATE

tory, in the
a

which

trust

instrument
the

is

one

be

to

may

which
the

either

or

is

pat

put

at

the

case

on

technical

Law

apparent

of

intent

instrument,

or,

trust

direction, in

or

trusts

upon

finallydeclared
Tu.

"

executed

be

to

where

in

the

same

Equity as
of

763

et

construction
that

which

legal estates.

collected

the

rather

(see 2

by,
tion.
direc-

stipulationor

from

the

language

is

than

strict

Sp. 131

"

the
135

; Lord

is

But

executory, Equity considers

presumable intent,
technical words

veyancer.
con-

own

236.

words

trusts

uses

not

limitations

on

of

implication, to make

Bosrille, 2 Wh.

v.

C. 86.)

of trusts

case

the

creator

his

by

is

by

directoryis

or

containing such

L.

the

been

to

in, but

Glenorchy

seq. ; Brett's

have

assurance

instrument
Lord

which

necessary

indicated

are

in

executory
by

or

executed

trust

finallydeclared

by stipulation or

terms

In the

said

trust

settlement

fully and

creatingit
A

express

directory. A

"

trust

raised

of

sense

in
the

whole

doubtful, the

import

of

Glenorchyv.

EXPEESS

Bosvillc,

Wh.

Holmesdale,
but

this

that

{Cooper
the

is

the

in

are

formal

and

in

instrument

to

the

marriage
his

combined

case

trust

Equity

will

for life

only to

the

IX.

(2

is

used
to

trust

and

further

Sp. 136;

St.

in

rule

as

But

if

settled

to the heirs of

instrument,
instrument,

the issue

as

valuable

with

the

in their

is to be

further

articles

or

nothing

the

of the

nature

to

of his

executory, and

estate

an

in

this

consideration,

giving an

as
a

for

construction

same

that

is

presumption

regards

as

husband,

remainder
Brett's

" 984;

so

estate

in tail
L.

C.

237.
in

Trusts

real

cognizable in Equity,
same

there

limitinglegal estates.

the

takes

inchoate

to be

the

the

for

life,

itself,and

reference

mere

executory ;

construe

to the children.

36.)

intended

allusion

purchasers

are

wills.

person

an

afford

or

life,with remainde;r

the

rule

he

the heirs

instrument

the inchoate

with

the

nothing

and
explicit,

in

for

body, there

renders

of

articles express

the husband

on

is

render

used

the

Shelley's Case.

on

to

receive

34)

for

body,

rule in

II.

Thus, where

person

estate

an

limitations,

words

898.)

remainder

not

C.

voluntary deed, there

show

not

Shelley's Case,
similar

the

or

the

does

therefore

his

the

were

sense,

instrument

of

there

words

the words

to

Tit.

'^^''^ "^-

than
strictly

to

male

Vise.

v.

L.

subject

as

limited

by
in

; Brett's

Ch.

settle

to

since

technical

543

will

executory nature

that

K.

107

Sackville-West

more

under

life,to be followed

the

L.

heirs

direction

body, then

H.

L.

tail male

where,

763;

construed

estate
to

TRUSTS.

regarded

Kynock,

V.

estate

mere

be

are

remainder

And

Tu.

E.

must

legal

an

"

L.

deeds

PRIVATE

rules

as

legal

property, which
are

are

exclusivelyIX.

generallygoverned by

estates.

(St. "

974.)

the

But"

by

Trusts

same

rules

^^\|fgf

i08

Tit.
Cap.

construction

1. The

II.

before

Exceptions.

prevailsin regard

which

executed.

tried, it

question was
creation

the

"error

subject

to

and

seisin

of

party

was

sufficient

have

or

terms.

(See St. " 974, 974

a, and

as

on

have

been

legal

tenure

was

tenant

for life.

not

Long

the

; so

for

other

that

on

for

of

c.

mere

performance

112, such

terms

of

there

of

in

the

the

lent
to

the

not

trusts

was

same

Trusts
Law

Common
in

trust

by

the

for

for

created

often

money

the

238.

are

did

4.

alienation

any

Prior

" 975

practice,however,

life interest

years

purposes.

Vict.

created, unless

In

legal

executory trusts,

to

(1 Sp. 500, 505.)

terms

been

notes, and

as

rules

securing the repayment


and

had

that

would

same

(1 Sp. 506.)

estates.

of

that

except

usually conveyed

forfeited

estate

X.

; and

877

30, 236, 237.)

independent

founded

of

estate

pars.

held

the

required,where

was

which

was

estate

an

if the

estates

manner
were

(1 Sp. 501.)

conveyance

Uses, it

such

transfer

to

necessary

supra,

trust

large

agent lawfully authorized,

his

Sp. 497, 500, 506,

see

affected

estates

trust, if in writing, signedby

o"

or

recovery

been

estate.

Trusts

bound

the

fine

communis

trust

kingdom.

of

of

Statute

declaration

mere

form

every

the

operates by

that

have

in the

estates

that

equitable estate, being incapable of liveryof

An

3.

held

prevented

was

maxim

dower, would

the

proportionof

the

general opinion that,

have

to

estates

because, before

estate, dower

it is

and

trusts

Act, trust

the

was

trust

and

facit jus

were

of

attaching ;

from

dower

subject to

not

we

that

and

legal estates

to

as

respects,from

some

late Dower

the

Before

2.

held

were

by

differs,in

seen,

executory,

trusts

put upon

hi.

have

X.

TRUSTS.

PRIVATE

EXPRESS

on

mortgage,

statute

determine
which

8
on

they

special provision

to

"

the
were

that

Tit.

II.

to

satisfied term

lease,

conveyance,

might

he

for

the

of

term,

which

term

1845,

was

that

on

day

the

same

protectionas

had

continued

become

An

that

after

and

notes.)

the

to

cease,

of

31st

had

attendant,

the

becoming

the

into

into the

be

by

where

created

may

without

in

person

time

was

is

diately
imme-

cease

241.

be

disannexed

terms

favour

242.
now,

may

65, be enlarged

s.

trust

no

enforce
created

be

equity

or

243.

term.

it, and

thereof, although it

2, every

1845, should

to

long

there

whose

affirm

s.

(St." 1002.)

that

the
redemption affecting
XI.

assigned

attendant.

so

if it

partiesin interest,and

noticed

simple

afford

afforded
been

was

Conveyancing Act, 1881,


fee

that, if
to

was

not

at any

in gross.

term

here

the

of the

acts

might

term

proper

It may
under

same

December,

except

And

day.

240.

satisfied

1, every

have

satisfied and

attendant

turned

Trusts

possession, to

on

subsist, but

to

with

upon

of

the

s.

it would

satisfied

continuance

the

which, after the 31st of December,

term

by

express

or

trustee;

such

declaration, it

by

dealt

112,

c.

attendant

was

attendant

or

que

9 Vict.

stat. 8 "

the

By

lost

the

estate

of
in

(See St. " 998"1002,

it.

recover

had

if he

or,

took

the

name

possessionduring

his

to defend

term

the

legal estate

the

use

he

of

the

by taking

or

where

assignment

or

protectedin

be

to

interest

himself,

himself

to

of

assignment

an

for

trustee

assignment thereof

an

created

by taking

incumbrance,

or

cestui

prior estate, charge,

such

III.

Cap.

XI.

under

claiming

all persons

TRUSTS.

PRIVATE

EXPRESS

110

has

trust
the

been

performance

without

his

ledge,
know-

trust's knowledge.

if at least it is not
trust before
XII.
trusts

XII.

"What

it is

Equity

so

revoked

affirmed.

will enforce

by

the

author

(St. " 972.)


trust

where

of the

244.

it is

executed,

will he

enforced.

or

where

it is raised

by will, even

though

it is

mere

EXPEESS

voluntary trust
trust

raised

referred

Wh.

Tu.

executed,
XIII.

the

such

marriage;

execution

XIV.
of

the

be

may

creditor
him

any

between

marriage,

an

although

where

within

are

those

the

the

decreed
of

as

them

in

well

the

for

the

of his

is at

benefit

of
of

purpose

in

execution

the

debtor.

distribution

assignment

Mattes, Tudor's

3rd

v.

ed. 773.)

Preferences

specific
of

the

all.

at

and

insolvent

the

Courts

(St. " 986,

246.

person

for the

by

tion,
considera-

not

or

Lead.

Fishar,

of

must

libertyto assign
his

defeating some
an

all his

action

commenced
in

his

effects among
a

debtor

moral

free
352

Lead.

securing
all his
But

fraud

and

Worseley

Law,
Cas.

by

duty.

from
;

it

particular

For

be

out

creditors, though

Cas. Merc.
Tudor's

laws

3rd

v.

De

ed. 755

Merc.

Law,

247.
and

articles.

are

is'

favour

as
plaintiff,

toto

who

them,
in

carriage

subsequent

the

under

as

Putting the bankrupt


case,

of

Exeou-

fically
speci-

proceeding

scope

claiming

claiming
be

by

xiii.

of

scope

will not

child

misrepresentation. (2 Sp. 350,


Harman

the

of those

or

they

or

and

245.

wife

of

89.

executory

within

creditors, is only performing


such

C. D.

executed
specifically

person

But

the

Sp. 287.)

equal

Flavell, 25

cases

Ellison,

v.

against

the

re

236, 237.)

person.

will be

property

Ellison

articles will be

of the

volunteers

; 2

c;

persons

either execute

ii.

it is

(See

applicationof

by

or

In

,-

pars.

on

who

persons

b,

a,

seg.

agreement, unless

distinction

volunteers, even

987

consideration.

swpra,

executed

mere

valuable

et

consideration
any

Tn-.

executory

an

or

application of

under

enforce

covenant

Marriage

the

on

the

see

HI

"'"''" "^'

835

to

as

TRUSTS.

it will not

to, St. " 793

"

And

; but

by

supported by

PRIVATE

prioritiesof particularcreditors

xiv.
benefit

Assign
of

creditors.

112

EXPRESS

II.

Tit.
'-

general assignments made

in

ordinarilyvalid

are

TRUSTS.

PRIVATE

'

in

debtors

Sp.
in

350

the

for

void.

(Smith

v.

such

it,it is

not

parties,and

before

they

sufficient if

favour, and
for

they

it not

render

or

for

presumed

till the

See

Biron

v.

the

creditors

notice

the

as

their

Murphy,
Where

Moo.

creditors
and

take

under

technical

the

Beav.

ment
assign-

are

It

in

is-

their

stipulation

no

which

may

will be

assent

a..

Until, however,
trust, and

given

assignment

of this-

not

revocable

parties,and
by the
the

(St. " 1036

have

debtor, in

creditors

are

b ; Steele

v.

250.

C. 445.)
acted
as

execute

(St. " 1036

the

to

not.

it

is

642.)

law, whether

have

trust

appears.

assignee,an

or

treated

the

benefit, their

creditors

P.

general

provisions.

condition

assented

at

in

if there

contrary

individuallynamed

of

other

any

to the

well

as

its

notice

executed, is deemed

Equity

249"

be

named

are

under

have

have

thereof

without

expresslyrequired to

are

Motint, 24

kind, in which
not

they

to

should

they

to it ; and

assent

release,

in

creditors named

take

can

time

the

at

against them,

that

necessary

partiesthereto, unless
as

only

consequentlya prior

benefit of creditors

for the

assignment

take

assignment. (St." 1038.)

to entitle the

order

In

and

248.

had

debtor

hold

will

of his

giving notice

is fraudulent

deed

and

property

hindering

general assignments

; 2

compelling them

and

Hare, 30.)

10

general assignment

special assignee

of

purpose

assignoror

the

rightsas

of the

Hiorst,

under

Assignees

sach

; for

terms

to

come

his

vest

cannot

delaying his other creditors

and
to

debtor

creditors

of his

one

But

352.)

"

1036

insolvency. (St. "

bankruptcy and

of

laws

the

debts, except under

their

discharge of

by

under

valid, the

deed

Court

of
will

position
com-

also

EXPRESS

act

under

PRIVATE

it and

assignor, though
withm

the time

Where

to the

the

is

and

now

as

against

have

not

executed

assignment

an

the

other

debtor

valid

the
it

England

to two

of his

assignment

or

commits

252.

he

property

of his
that

thereof

property,

or

after

Vict.

c.

must

therefore

52,

and

or

Act

generally;

be

as

of

act

the

from

that

the

registeredor

whether

have

those

In

ference
pre-

creditor

where

cases

be

47

creditor

or

months
creditors
debt

prove

can

tered,
regis-

upset by

three

adjudicationof

an

252

consignment

"

be

must

within

obtain

to

three

creditor's deed

(Re Batten, 22 Q. B. D. 685.)

bankruptcy.
XV.

under

(Stat. 46

may

deed, and

the

requisiteamount

the

of

acquiescedin

not

But

deed

not

deed, if any

of the

of

triistees

remember

date

transfer

fraudulent

bankruptcy.

The

4, 6.)

''"Pt^y-

property,
or

conveyance

adjudicationof bankruptcy

an

of his

transfer

void

for

j^^t of bank-

(2)a fraudulent

or

petitionfor adjudicationwithin

the

Act, 1883.
or

trustees

or

adjudged bankrupt.

ss.

trustee

"'

(1) a conveyance

part thereof, that would

any

were

present

months

to

(3) any

; or

other

any
if he

must

makes

if Bankruptcy

of bankruptcy

act

an

gift,delivery,or

part

any

"

dissents,the property passes

the benefit of his creditors


conveyance,

"

trustees, and

(2 Sp. 351.)

elsewhere

or

ii.

251.

'^

in

Tit.

'"

creditors

assentingtrustee.

But

as

prescribed. (2 Sp. 354.)

there

assents

one

it

treat

113

TRUSTS.

or

a.

remit-

XV.

Re-

V0C9.dJ6116SS

is

tance
to

third

to

than

notice

the

be

; for

mandatory

mandate

will

with

the

from

revoked

execution

by
of

the

over

pay

before

time

at any

to

appropriationis

the

thereto, and

assented

given

orders

with

person,

revocable

but

it

made,

the
of

any

the

has

same

to

it amounts
his

no

agent.

has
been
more

And

dispositioninconsistent

mandate.

But

of

eonsign-

absolute,re^^ttance.

not

third person

the

principalto

proceeds

after

such

114

EXPRESS

Tit.

II.

and

assent

notice, the third

"

of

it in

Equity, without

or

dissent

of

the

property binds

him

to follow

Where

Revocableness
of

of

Conveyance

where the
deciara*-^'

tion of trust
favour

of

volunteer.

111

in

principal.

delivers

to

of

and

or

of it

trust

and

volunteer,

of

vomnteer,

is transferred

favour

deed

equitable property

legal estate

[g declared

and

executes

person
"

equit-

the

253.

convey-

anoe

or

of his

the order

assent

receipt of

his

; for

the

to

reference

any

mandatory

(St. " 1045, 1046.)


a

avail himself

may

person

'

'-

of

TRUSTS.

PRIVATE

there

is

face of the transaction

the

nothing upon
to be

revocable, or that

have

been

in any

And

writing,should

the

by

cancel

will be

settlement

the

trust, if the

take

both

; but

expressed to

be

giftis
they

and

by

will have

be in substitution.

is in the

And

of
a

personal estate,

subsequent purchaser.

par.

193, 194.)

The

keeping

executed
to enable

will

as

in

to pass

the donor

; for, the estate

no

ground

or
foolishly

of

and

cestui

portion, will

election,if it is
the Voluntary

by

now

ment
voluntary settle-

be

cannot

(2 Sp. 882, 883

avoided
; see

by

supra,

254.

active interference
it is

subsequent

voluntary settlement

position as

same

the

way

will

by

trust, the

que

their

Conveyances Act, 1893,


of land

it is in

where

the
substitutionary,

not

procure

and

unless

to

avoided

or

should

cesUd

same

ought

revoked

donor

temporaneous
con-

intended

was

instrument

binding ;

provision is expressed to
que

be

trustees, and

the

provisionfor

it

of revocation

power

if the

even

of stock

retransfer

make

inserted, it cannot

way.

that

to show

evidence

from

or

for

the

donor's

the estate
to revoke

possession

is not
it

deed

so

of itself sufficient

by cancellation

or

by

having passed, it would

require the

of

estate; and

such

Court

to revest

interference

done.
inconsiderately

the
that

the

act

(Lewin, 76.)

was

255.

EXPRESS

XA'I.

Where

raise money

raised and

or

TRUSTS.

will contains

115

direction

or

of the rents

and

profitsof

portions,"c.,

and

the

out

debts

to pay

PRIVATE

paid without delay, those

Tit.

to

power

estate

an

XVI.

must

money

words

have

been

unless

gage,
1064

; 2

XYII.

give a

to

as

restrained

ofadirectSu

so

o'.P^wer

the

to

presentlymentioned,
be

to

sold

for,

definite and

to be

was

bound

to

that

see

by

fund

the time

the

when

the

author

the

purchaser to

purchaser,if

the

money,

bound

were
see

to th"

Merryman,

as

chattels
the

the

no

to

debts, or

(jeneral rules,

was

for,

therefore, in
o'f which
for the

necessary

in

Tu.

"

of

trust

long
had

he

896

the

notice

et

Law,

of

and

not

purchase-

1130"1134

Elliot

seq.) 257.

rules, it may

personal estate,
or

tinuance
con-

notice of fraud, was

applicationof

the

2 Wh.

personal

Common

j
purchase-

primary

observed

be

whether

chattels
constitutes

"

that,

*"ion'^
^f^

where

devised

or

purchaser,unless

illustration of these

In

But

payment

be

(See St. " 1126"1128,

money.

the

applied in

and

generally,and

involved

be

then, the

to

^"

proceedingsin Equity,or where


of
to the application
to see
bound

would

there

that

of

institute

the

purchaser

payment

generally, or

conveyed

sums

Ob-

expresslyexempted

debts

or

XVII.

property was

the natural

liable,it would

property was

be

requiredamount

of the trust.

of

debts

of

order to ascertain
the

the

trust, unless

payment

payment

out

devised

such

purchase-money was

of the

the

for

will

property was

only, and

sums

expresslycharged with,

v.

real

property sold constituted

the

which

charged with, the payment

the

provisionby

mort-

or

(St. " 1064,

raised, the purchaser of such

fulfilment

the

where

was

place at

words.

enactments

ascertained

to take

was

or

other

by

sale

by

to

money
of rents

256.

Sp. 316.)

Prior

to raise

power

Effect

be

raise

construed

ii.

consistmg

real, is liable
the

natural
I

Specitir
m
pouit.s

ot

illustration

at

*.I;f,f,7t
the
pJJ|j"^^^^

and

of

116

EXPRESS

Tit.
'"

II.

fund

primary

TRUSTS.

PRIVATE

for

the

of

debts

the

of

payment

the

'"

generally, the

testator

part of

any

debts,

was

of the debts
if the
for

made

such

due

him

so

the

the

as

has

he

unless

to

382.)

259.

1130

known

was

no

to

reason

purpose

for,

purchaser

Court

would

be

to have

ascertain

an

of the

whether

sell.

it

(St. " 11,29;

to

for

was

the

to

sell,or

was

specificpart

charged

with

to

of the
or

the

even

charge for,

deficient

was

of

payment

particular purpose
will.

pay
real

trust, if

payment of

If, however, the trustee


not

personal

not

the

Sp. 380, 382)

estate

sell,and

the

with

real

appliedto

reason,

though

sell does

power

particular

become

to

same

personal

even

power

him, then,

to

as

only

real estate

personal

of the testator, and

charged

was

generallyby
only

had

into

executor

or

devised

was

whole

debts

for

the trust

the debts, and


estate

so

generally (St. "

much

not, and

of his

to

or

sold

258.

devised

though

part

come

rule, for the

same

debts

of

; even

to be

specifiedor

could

assets

the

Sp. 375"877.)

estate

to

him,
for

necessary

discharge

estate

unauthorized

person

of the

from

the

specifically
bequeathed, it

estate

taken

The

his real

or

purchase-

Sp. 372, 377)

; 2

no

payment

the

in

of

or

were

for

specificbequest

fraudulent

personal

account

that

purchaser, provided

indispensablefor

"

see

particularpurpose,

otherwise, before

was

made

executors

specificbequest

suspect any

debts

the

directed

although

the

of

to

not

debts, whether

of

for

person,
to

had

testator

estate

bound

was

(St. " 1126, 1128

payment

had

not

applied by

was

money

sale

there

that

notice

the

that

or

debts,

of

it, without

whole

the

of

purchaser

arise.

an

estate

estate

is

devised

to

the
deficient,

(St. " 1181

Sp.

118

EXPRESS

Tit.

II.
'-

the time

Where

TRUSTS.

PRIVATE

devise for the

the

appointed by

'"

had

of real estate

the money

not bound

was

to

see

that

because

money,

of
application

might

have

the

purchaser
his

on

the

to

to

the

1134

; 2

the

stat.

see

(St."

By
enacted

"

should

be

from

seeingto

(23 " 24 Vict.

c.

the

by
And

security.

or

35,

c.

145),

Lord

mortgagees
purchaser,

should
who

application of
it
any

also

was

money

exercise
in

of

be

was

payable

that

the

to

them

trusts

or

trust

the

same

for

contrary shall

creatingthe

Cranworth's

Act

also enacted

that

the

persons

conferred

discharges

bound

purchase-money.

enacted

any

be

not

money

answerable

thereby

sufficient

should
the

sale

receiptof

paying
the

was

implied

or

instrument

12, it

s.

the

mortgage

or

person

by

of

power

bound

23, it

receiptsfor purchase-money, given by


exercisingthe

trustees

not

s.

to and

unless

misapplicationthereof,

trust

the

was

applicationor being

expresslydeclared

able
charge-

purchase-money.

express

any

effectually
dischargethe

be

the

purchase

any

shall

the

duly paid

Sp. 887.) 264.

purchaser

Vict.

23

payable upon
the

majority,

part,time, delay,

their

fide payment

to whom

charged with

at his

; 2

trust

265,

Sp. 387.)
22

in

him

applied by

applicationof

that the bond

person

any

the

purchase-

remained

estate

to be

seems

the

the money

see

required,on

discretion,it

purchaser

was

infant

(St. " 1133

was

money

which

to purposes

estate

an

to

it in his hands.

Where

and

bound

was

the

involved

an

of age ; for the

coming

with

if

But

payable to

of money

sum

there

unborn,

or

entitled to

persons

to the

long continuance.

of
a

infants

were

the

arrived, and

sale

to

the

to
to

see

And

on

by

the
29

s.

receiptsof trustees,for
by

powers

reason

reposed

or
or

in

the

vested

them, shall be sufficient dischargesfor the money

EXPKESS

therein

PRIVATE

expressed

to

effectually
exonerate
from

seeing

being

answerable

thereof.
The

and

should

paying

persons

such

application thereof,

for

12th

Vict.

c.

145.

Vict.

c.

53),

and

loss

any

And

Tit.

1881

from

or

misapplication

or

(44

Trustee

repealmg

"

Vict.

45

Act, 1893

like

Conveyancing Act, 1881,

41)

c.

payable, transferable,
under

trust

any

the

from

or

IXTssi.

(56 " 57

it is enacted

that the
for any

trustee

or

deliverable

or

shall be

power

and

same,

shall

seeing

for any

loss

applies to

the

to
or

them

to

sufficient

applicationor

of the

commencement

either

created

discharge

Act.

the

deliveringthe
being

misapplicationthereof."

trusts

him

or

effectuallyexonerate

paying, transferring,or

person,

The

answerable
This

before

same

section

after

or

the

Land

Settled

Act,

Tlie Settled
Land

on

(45

"

46

the 1st of

Vict.

where

one

the

the

.January,1883,
the

by

enacts

of

trustees

is.empowered

trustee

or

surviving
securities

into

came

to

s.
a

operation is82.

paid or

representativeof

transferred

be, effectually
discharges the payer

therefrom, and
or

for any

being answerable

thereof, and
person
see

being bound

from

that

in

the

advancing
any

money

case

money,

of
from

advanced

to

see

loss
a

to the

or

or

for

any

trustees,
case

transferor

to the

tion
applica-

misapplication

mortgagee

or

other

being concerned

by

or

trustee,

one

the
as
or
trustee, representatives,
representative,
may

the

settlement,

continuing trustee,

or

"

40, that

act, of

or
personal representatives

last

money

38), which

c.

receiptin writing of

or

Con-

provision contained

trustees

any

24

The

securities,or other personal property or effects

money,

1882

ii.

"^"--

money

sections of the stat. 23 "

the

by

20,

s.

29th

receiptin writingof

for

received,

^'^''''

Conveyancing Act,

in the

]19

266.

repeals the

"

be

the

the

to

TRUSTS.

him

is wanted

to

for

Act,

120

Tit.
Cap.

EXPRESS

II.

this

of

purpose

any

TRUSTS.

PRIVATE

Act,

that

or

than

more

no

is

III.
.

-,

wanted

The

above

read

be

and

for

considered

reference

the

in

the

When

will bar

^"^
7n!st

XVIII.

long

the

as

under

from

an

of time

relation

constitute

relief for

Account,

199

215.)

And

money

is

laid out
the

bulk

and

the

apply :

of

the

it may

be

certain

on

of the
bar

of

to

ceases

of

App.

cestui

time
and
or

and

trust

que

Equity

no

of the

circumstances
will

inabilityto

refuse
do

where

be

trust

trust,

render

it

relief, upon

(1897)

Eastwood,

v.

1 Ch.

of trustee

exist,or

to

obscured

the

of the

acts

unjust
the

not

trust, which

; Thomson

the

from

does

this relation

or

to be

legacy,

mere

express

have

of

sum

it is severed

to

196.)

nature

parties

give relief.

ground

complete justice. (St. "

foucaidd V. Bomtead,

on

Cas.

App.

longer admitted

long acquiescence

character
other

is

when

other

or

Limitations

of

excepted. (2 Sp. 62
specially

and

as

as

(Williams

trust.

b.

exist,lapse

to

account

an

soon

case

But

to

trnnt,

que

executor, upon

is

Cas. 215.)

cestui

Eastu'ood,

Statute

it is then

for

to
que

trusts, as

the

and

acknowledged

an

estate, it

357

Act, 1888, and

Trustee

v.

to

charges
dis-

solicitors

the

observed, that

bequeathed

valid

give

a.) 266

cestui

Thomson

ment
pay-

of trustees

infra,par.

bar

no

Act

containing

trustee

trust, is

express
can

proper

the

the

produce deeds

see

money,

Apart

to

estate

the

power

and

receive

and

with

charged

by permitting

money,

such

be

real

after

dying

respect to the

(With

custody of

receiptsfor

law

by

Land

the

to

fore,
conceived, there-

It is

of persons

case

also

now

freehold

makes

solicitors to

for

XVIII.

with

debts.

of

will

of debts.

authorize

seq.)must

et

their real estate

have

a.

paragraphs (257

payment

that

to

266

Act, 1897, which

Transfer
assets

"""

raised.

is

529

of
;

267.

its

Rochc-

EXPRESS

By

the

PRIVATE

Judicature

121

TRUSTS.

1873

Act,

(36

Vict.

37

"

Tit.

66),

c.

ii.

Cap.
s.

25

(2),

No

"

for

trustee
in

respect

to

be

of

any

by

proceedings

converted
of

Limitations

of

lapse
and

received,

has

to

be

to

secure

caused

its

consent

of

consent

is

the

to

the

trust

stat.

(2

infancy.

of

real

Vict.

33

or

estate
c.

14.

in

the

all

and
be

tofte'main^
"t"'"t-

the
such

obtained

in
alien

an

(iSharp

v.

favour

of

xx.

St. Sauveur,

Natirraliza-

"__

E.

Ch.

343.)

271.

Trust

created

tion

L.

Trust

270.

enfoi'ce,
for

XIX.

presented

required,
cannot

trust,

where

as

the

intended

fact

Sp. 45.)

will

Equity

of

Court

Crown,

prior

his

of

is

person

withheld,

perversely

which

namely,

at

performed

particular

reason

XX.

being

269.
in

have

performance

had

money

qualifications

the

in

or,

applies,

for

instances

where

have

Statute

any

them.

intent,

'

except

or

trustees

debt

by

main

the

due
its

to

pleaded

that,

Limitations

of

as

tvnsts.

TiieTiustee

other

or

use,

59),

c.

retain

by

of

numerous

performed,

obstacles

by

are

pleaded

action

an

be

may

There

Court

in

as

Vict.

passing,

own

Statute

no

time,

XIX.

be

may

which

to

cases

their

to

Limitation

"sar"ls

268.

52

trustees

or

held

be

actions

to

its

where

funds

trust

"

(51

respect

or

shall

Limitations."

after

fraud,

trust,

express

trust,

1888

with

8,

s.

such
of

Act,

an

his

against

trust

que
on

of

commenced
of

cases

held

Statute

any

Trustee

the

cestui

breach

by

provides,

in

of

property

any

barred

But

claim

III.
-'"

i870.

Act,

for

122

IV.

CHAPTEE

Tit.
Cap.

I. Charities

II.

272.
regard to

Law

In

1.

testator

proper

received

(St. " 1165.)

individuals.

giftsto

liberal

more

Thus"

regard

of

want

than

construction

favoured.

trustees

the

in

favoured

highly

so

gifts have

charitable

that

In

are

IV.

I. Charities

the

TRUSTS.

CHARITABLE

EXPRESS

OF

makes

the

to

for

bequest

of

want

trustees, if

proper

such

charity to

persons

shall

he

as

executors,

no

the

and

testator
of

trustees

lifetime

the

or

if

; or

the

is

as

if

for

corporationfor
by

die

esse,

in the

with

use

cannot
act

of

testator's
a

charity

enable

purpose.

them

to

And

so

charity is designed

come

into

Crown.

the

who

to persons

legacy is given to

charitable

whose

and

future

some

if the

or

charity. (St. " 1165,

the

where

as

appoints

lifetime of

the

legacy is given

he

appointed;

are

legacy all

corporation;

not

but

in

legal corporate capacityto

no

die

will enforce

churchwardens

if

executors

such

to

or

and

corporationintrusted

So

1166, 1177.)

take

name,

charitable

fails ; the Court

have

shall

others

no

executors,

name

his executors

as

persons

afterwards

existence

(St. " 1169,

1170.) 273.
in

2. The

regardto

defects

Court

will

supply all

defects

in

conveyances,

in

where
conveyances

the

vendor

is

disposableestate, and

contravene

any

statute.

capable
the

of

mode

conveying, and
of donation

(St. " 1171.)

274.

has

does not

EXPRESS

3. In

CHARITABLE

regard

the

to

123

TRUSTS.

obi'eet,it

matters

Tir.

how

not

Cap.

uncertain
is
a

the

bequest is

made

simply

manner

charitable

in the

for

such

charitable

uses

to

his

will

no

du-ection

by

or

think

fit.

charitable

bequests

those

for

which

by analogy

the

within

fall

and

benevolence

philanthropic
charitable
think

1 164, note

4 to 6th

Lindgren,

L.

L.

E.

2 Ch.

for

12

Eq.

451.)

such

E.

183

And

; 7

yet

charities

parish of T., as

Ch.

and

the

Ch.

other

trustees

not

and

benevolent,
such

for

trustees

should

(See St. " 1156"1158,

170

it has

spiritand

they do

or

the

; In

570

or

though
gifts,

such

purposes,
as

4),

charitable

for

ed., 1167, 1169,

if

for

or

its

c.

giftfor objectsof

beneficial,is void.

most

(43 Eliz.

void

be

to

charitable

as

therefore

public purposes,

or

are

within

And

charitable

religious, and

shall

limited

or
liberality,

purposes,

it

Equity

Thus

statute.

gift

Estate, 8 Ch. D.

Uses

chai-itable, will

sense

clear

as

enumerated

(St. " 1155.)

intendment.

leaves

to remember

deemed

are

he

importance

Charitable

of

such

to

by disposingof

purposes

in

purposes

Statute

is

Jarman's

re

fit.

codicil annexed

will execute

first

bequests

in the

in

; In

1167

of it

think

writing,and

charitable

it is of the

But

584).
that

(St."

dispose

shall

codicil,there

or

such

by

been

1183
re

the

indefinite

of money

sum

in

note

the Court

to

money

shall direct

note

by

charitywhich

the

he

as

it

and

uses,

will treat it

will

as

purposes

bequeaths

man

Court

the

if there

religiousand

or

bequest, and

charitable

if

Hence

uses,

nomine,

eo

For

general and

most

charitable

purposes,

be.

give to charitable

to

valid charitable

for

to

objectsmay

or

absolute intention

an

as

persons

; Wilkinson

Kilvert's

; Re

held

v.

Trusts,

Macduff, (1896)
that

H.
IV

bequest

public purposes in the


is good.
should think fit,

objects'

124

it must

as

60 ; 3 Ch.

intention

the

be

mode

or

is

the

charity,the

will

no

such

is to build

And

1182

Ovey,

re

where

29

benefit

reasonable

Where,
there

the

given
devote

to

there

of the

the

appears

only

object

effected,

be

1172,

Herbert, L. K. 7 Ch.232

White,

given

to

C. D.

33

to

company

suitable site could


poor

ticular
par-

testator's

that cannot

; Re

persons,

be

build

obtained, for
there

but

(In re

White's

objectsin

of

esse,

Trusts,

449.)

no

was

33

no

income

almshouses, the legacy lapsed and

general intention
no

is

(See St. " 1167"1169,

560

the

Advocate-General

prospect of obtaininga site,and


residue.

are

C. D.

of certain

to maintain

into the

and

; Sinnettv.

legacywas

almshouses, when
the

W.),

property

objects

charity,but

of

of kin will take.

next

1176, 1181,
In

at

Court

v.

object(as where

church

the

where

But

92.)

general intention
charitable

the

Cas.

substantial

is called

the

fails to

of Lyons

particular

residue

oblige the

not

residuary gift. {Mayor


App.

the

if the

the

where

prescribed,

way

This

purpose.

But

the

to

dannot

reason

will devote

Court

general

accomplished,will

be

to

gift,but,

particular gift which

in the

not

charitable

charity, that

of Bengal,

Eq.

contrary

other

some

charityis

cy-pii'sdoctrine.
to

from

other charitable

some

is

particularobject,or

the

destroy the

intention
to

of the

in which

E.

specifiedsome

has

object,which

accomplished at all, or

the failure

not

Law,

manifested

has

charity,but

to

particularcharitable
policyof

L.

giftof property by

vahd

giver

give

to

of

case

will, the

or

the

within

charities

to

275.

the

in

refers

{JJolan v. Macdermot,

4.

c.

676.)

Where,
deed

therefore

Eliz.

stat. 43

for the benefit of that

public purposes

mean

parish,and

TRUSTS.

CHARITABLE

EXPRESS

C. D.

fell

449.)

charitybeing manifest,
but

some

may

arise,the

126

Tit.

II.

Cap.

IV.

this extent, that where

at least, to
against perpetuities,

is

there

immediate

valid

gift to

charity is

another

to

over

II. Where

abroad.

is

money

the

cause

will

charity

executed

by

the

objects of

is of

and

universal

III.

Reward

III.

national

It

the

who

givingthem
takes

against Law

or

such

to

policy or
than

of

(See

for indefinite

Crown

the

if

part of the fund


in relation

of the

scope
; and

the

they

can

charity,by

like

to escheats.

reward

to

communication,

the

the

encourage

given
the

practice for

within

place also

view

donations

made

themselves

bring

be

279.

it is the

persons

be

this will not

religious character.

or

charitable

discoveryof
purposes,

principleof

that, with

seems

own

to

are

conventional, rather

or

moral

1185.)

St. " 1184,

to informers.

But

charityare

the

public policy, unless


Law

its

purposes

(St. " 1186, 1300.)

if the

done

under

of
residingwithin the jurisdiction

persons

Court.

poses
pur-

fund, and

the

administered

be

to

charitable

to

secure

direction, provided the charitable

{Re

Stratheden, (1894) 3 Ch.

bequeathed

Court

abroad, the

the

rule

the

278.

265).
Charities

charity,a gift

one

subject to

not

; Re

Boirai, (1893) 2 Ch. 491

II.

TRUSTS.

CHARITABLE

EXPRESS

practice

(St. " 1192.)

280.
IV.

Altering
charity.
IV.

upon

which

donees.
Mortmain

Act,

1891.

it is

V.
which

5th

(St. " 1175.)

By

the

Mortmain

applies to

sold

within

further

time

for

as

Act, 1891

the

from

altered
donor

by
and

55 Vict.

(54 "

all testators

of

provided that

charitable

any

be

terms

any
the

281.

it is

year

cannot

the

upon

the heir of the

wills

August, 1891,

given by will

accepted

given,and

agreement between

new

V.

be

charity must

the

Court

or

use,

testator's

c.

dying
land

but

73),
after

may

be

it must

be

death, or

such

Charity Commissioners

CHARITABLE

EXPRESS

allow,

other-wise

it

will

(ss.

5,

127

TRUSTS.

the

in

vest

official

of

trustee

Tit.

ii.

'-

charity

lands

personal
purchase
use,

direction

shall

by

estate

of

be

(s.

land

held

7).

will

for

as

It

6).

is

directed
benefit

the

if

to

the

will

be

of

that

provided

also

laid

any

contained

in

out

the

charitable

no

such

'"

128

V.

CHAPTEE
IMPLIED

TRUSTS.

is

which

OF

Tit.

II.

Cap.

V.

implied trust

An

trust

in the

Where,

I.

ating

an

282.

1254.)

I. Effectu-

on

(See St. " 1195,

intention.

unexpressed but presumed


Definition.

is founded

of

case

will

other

or

instrument,

the

tion
generalintenof the
donor

of

the donor
of

of

class, and

individuals

of that

its not

being carried

Court

will treat it

Harding

v.

Thus, if

by

the

529

; Reid

II. Where

II. Where

class

of

objects

Salushury
Beav.

25

of

469

v.

certain class
in

persons

shall

person

(St." 1061

seq.) 283.

et

such

the

into effect the

carry

335

to

the

83 ;

.Johns. "56; Lambert

Tu.

given

third

Reid,

v.

donee

of the power,

of the class.

"

made,

equally. (2 Sp.

donee

trust, and

certain

is

appointment

by the

is

to

or

of

particularintention fails,from

out

as

fund

proportions, as

such

appoint, if

named

no

will take

Denton, 3 K. " J.

; Re

White's

Trusts,

r/i;mites,L.R. 2Eq. 151.) 284.

V.

property

is

given

trust, and

the

partially,
by reason
objects or purposes,

of

upon

fail

trusts
the
some

fail,either entirelyor

failure
of

of

them,

of the trusts,

the

or

property is
unexhausted

by

class to be carried out

2 Wh.

Glyn,

of persons,

the

favour

in favour

general intention

or

in

the

and

of the power,

in favour

general intention

particularintention

power.

trusts

has

power

trust.

the trusts

are

all the

the

intended

of the

or

some

of

fullyand

indefinite
or
illegality

them,

or

otherwise

; or

nature

where

without
finallyfulfilled,

property out

of which

they were

or

hausting
ex-

to be

IMPLIED

fulfilled,
there
of

thereof

trust,

representatives, unless

presumption of
charitable

estates

(St." 1196

manner

as

that

order

But

in

ineffectual

23, 80

Lewin, 10th

ed.

in

the

Crown

be

trust

And

by

and

the

such

^''

trust

in

the

Crown

and

an

partialtrust,

there is

the

leasehold

property, without

implied,real
been

made

to

have

or

trust is stated.
"

G.

196.)

or

546

any

or

upon

(St." 1197, 1199


;

no

void

condition.

where

landJ

or

is

HI.

Oonvey-

^^^^

without

or

consideration, express

trust, but

or

Sp.

assign

of

bequest

nominal, purports

or

"^

286.

charity. (2 Sp. 229.)


.

ineffectual

property

legatee should

transfer, devise,

conveyance,

gift,

is void,

as

Absolute

absolute

an

condition
whole

implied resulting trust also arises where

III. An

tc^iBU.

the Court

Sp. 510;

bequeathed

that

intes-

a.

where

retain

The

advantaged by

of the

(See

donee.

may

condition

other

71, in

c.

contrary,a beneficial gift,with

testator

Vict.

48

absolute, and, for anything

an

as

particularpart to

S.

is

ments,
corporeal heredita-

interest

is unexhausted

donee

formerly

1 Ch.

the trust

the

illegalcondition, the

an

the

upon

is

Lewin, 148.)

gift,with

Mac.

"

or

trust engraftedon it,the property,


partial

or

much

so

the

que

proceeds. 285

to the

will remain

'-

"

legal

or

August, 1884,

will not

cestui

of

there

appears

of

legalestates

the trustee

the

where

14th

to

sale

disposeof

or

heir

or

"

escheat

failure of heirs of the

and

a, 1200

stat. 47

since the

subjectto

are

so

or

his

to

or

contrary mtention,

trust.

of death

cases

that

II.

unexhausted, to the

there is sufficient evidence

Now, by virtue of the

may

Tit.

property or

285.

160.)

same

of such

remains

as

the

creating

person

resultingtrust

'-

much

so

is

129

TRUSTS.

proved

distinct

use

Briggs v. Penny,

Rochefoucauldv. Boustead, (1897)

287.
K

considera-

without
or

trust.

use

13.0

TRUSTS.

IMPLIED

Tit.

II.

Cap.

V.

If there

are

intended, then

was

to

that

prove

10th

(Lewin,
If

infant

an

presumption is against the


this

intended

to have

discretion
be

given may

certain

IV. Where

if

testator

the

the

giftmay

is

an

and

as

enforced, the

property
to

an

uncontrolled

power

to whom

donee

the

is limited

though they

purposes,

appears

amount

discretion

the

yet

fair construction,

applicationof

there

But

be

to

be

may

is

donee

to

too

trustee.

290.

(2 Sp. 225.)
a

parts with

person

or

limits

particular

particular
interest

the

trust ;

upon

289.

property

general

indefinite

of

where

as

fit.

think

may

I\'. Limitation

being

the

woman,

(2 Sp. 225.)

large,that

so

the

give away

the

to

as

gift;

absolute
to

devise

trust.

intended.

was

married

will,if,according to that, the

of the

or

yield to

must

presumption

him

gift to

donee,

the

on

trust

288.

ed. 160.)
is to

is

proof

of

onus

beneficial

devise

the

that

to show

circumstances

any

only.

only,and

estate
residue

leaves

results to him,

heir will take,

The
of the

interest carved

does

the devisee, where

legacyto
will

even

heir in

term

or

inheritance

exhaust

not

other

for

particular
a

the whole,

the devisee takes

the

heir

so

claim

negative words,
the

the

to

bare intention

respect of

next

or

though accompanied by
or

be

may

particular
as

against
remains

only what

given is carved

out.

292.

preclude their
Nor

in

particular interest

(2 Sp. 230.)

there

personal estate, the benefit

as

of the

out

which

the

though

even

surplus interest

purpose

undisposed of, the

(St. " 1199.) 291.

consideration.

after

the residue

to

of kin

will not

surplus undisposed

exclude, however

words

be

of itself

of anger

or

of.

expressed,
antipathy

sufficient to exclude

the

beneficial interest in real estate

IMPLIED

undisposed of,
fund

the

or

sonalty,unless

TRUSTS.

next

of kin

imphcation as
to constitute

V.

Before

testator
his

such

to

no

express

far
be

executors

to

their

use,

own

testator's

followed

intention
therein.

trustees

for

been

it

Law,

that
or

person

such

to

them

Distributions, if the testator had

Equity laid hold


will,which

of

giftto

the executors, and

those

on

for

surplusin
and

might

the

whom

case

of

Underwood

v.

Mapjh

Wing,

v.

V.

Merrett, 1 Sm.

Sm.

"

G.

Saltmarsh

v.

Will. IV.
in

c.

as

die after the


executors

Barrett,

the
to

to

v.

29

have

Statute

Beav.

applicationof

And

into trustees

have

first

day

of

shall be deemed

trustees for the persons

by

633, 656, 659;

The
of

495 ;
stat. 1

Equity,

rule of Law,
who

persons

(ifany) who

Owen,

v.

Beav.

26

of Courts

Courts

1208

507, 508;

September, 1830,
by

the

cast

Fin.

474.)

the

of

presumption

; Cradock

Stedman,

the views

wills made

G.

"

be

expressionin

the

CI. "

G. 381

"

; Read

40, furthers

narrowing

enacting,

241

the

would

or

would

M.

D.

Powell
2

the

held

them

convert

Law

hold

complete intestacy. (See St. "

Elcock

note;

appear

Act

died intestate.

to rebut

the

the

been

the

circumstance

of any

entitled

for

were

under

estate

of

the beneficial

who

persons

residue

have

from

they

case

to

such
to

sary
neces-

the residue

as

appeared

to exclude
In

the

entitled

the

some

40, where

Equity, as

entitled to retain
unless

interest

of

of

\.

admitted

at Law

were

it

293.

c.

of
disposition

Courts

of

be

cases

Will. IV.

estate, the executors

residue; and

recites, so

in other

to

kind

same

gift. (2 Sp. 232.)

Statute

made

personal

would

the

Tit.

per-

part of

as

bequeathed away

or

actual

an

respect of

or
specifically

else,either directly,
or
by the

one

in

Cap.

it is either

devised
effectually

131

should
that

Equity

would

by
the

to be

be entitled
k2

y.

undis-

reskiue
rf
testator's

estate.^

Tit.

II.

Cat.

V.

residue

not

appear

by

will,

the

there

where

is

there

(Re Bacon,

Crown.
real

of

real estate.

certain

the

results to the heir, unless

and

1 Wh.

Smithson,

decided

Smithson

is

testator

Tu.

"

conversion

that all that

must

to the

but

for the

is not

It does

will.

is

but

part of the

as

Ackroyd
directed

v.
v.

by

of the

purposes

for these purposes

have

decide

not

sale

realty. (Ackroyd

for the

would

the

real

personalty;

as

wanted

who

by

such

the

conversion

only

person

of

the

of

seq.) What

et

that

was,

will,and
go

372

as

the

or

sufficiently

where

it results

to him

descends

has

produce

heir

the sale is unnecessary,

old use,

estate,

for

subsequent lapse,

and

the

to

sold

silence, or

testator

not;

as

294.

personalty, whether

effector

it results

necessary,

be

to

real

from

the

deemed

be

take

purposes

that

intention

his

should

where

if

case,

C. D. 460.)

death, from

will itself,
or

the

of
inefi"cacy

estate

disposed
effectually

is not

as

testator's

will at the

declared

606.)

executors

in such

31

of the

much

so

purposes,

produce thereof,
the

ficially.
bene-

L.

of

rights

is directed

estate

of

produce

H.

the

contrary intention, they will be entitled

no

Where

VI.

E.

of kin, and

next

no

are

againstthe
posed
Undis-

affect the

not

does

Act

L.

Arkle,

residue

such

take

to

v.

thereto, that

codicil

intended

were

(Williams
But

or

any

it should

unless

expressly disposed of,


the

respect of

in

of Distributions

Statute

the

under

executors

VI.

TRUSTS.

IMPLIED

132

been

that

entitled

if the

Court

or

trustee

Equity

or

must
or

of the

conversion

any

than

more

the

to reconvert

heir-at-law
If

sell

is

person

one

if there

be

entitled

consequences
no

there is any

surplus for the benefit

made
rightfully

trustee, all the


follow

is necessary

Equity

else for reconversion.

at the

either
of

time

by
a

in favour

of the

of sale.

the

Court

conversion
of the heir

(Brett'sL. C. 127

134

TEUSTS.

IMPLIED

Tit.

ii.

^*'""

^'

off,and

them

real

Where

Undisposed of

296.

(2 Sp. 234.)

estate.

made

is not

estate

^^^^^

fu^."*

but

fund

payment

of debts

that

real

the

any

^j-o rata

accordingto

of those

purposes

which

this

upon

the

sold

; and

not

or

been

far

so

of

composed

otherwise

be

converted,
01

is

money

^o be Converted

the

produce

only

far

SO

it is to
for
the

the estate

be

fund

personal estate,

Johns.

And
trusts
the

as

real

eventually

it is

personal

the will

estate

will result

of kin.

where

the land

that

if the

only, the produce


the

it is

given
165

into which
is devised

land

of the fund,

beyond

testator's

ed.

the

away

to

v.

as

other

some

Reynolds

interest

of kin,

next

or

Godlee,

298.

personal

estate

is

ultimately fail, land

failure of the

will operate
^

so

to

land,

is directed

the conversion

disposesof
;

land

in

"'

(Lewin, 10th
536, 582.)

be laid out

where

itself,if unconverted,

which

much

the benefit of the next

into money

personalty,unless
person.

So far

part of the fund

that

bequeathed to

converted

limited

given

so

as

be

been

of real estate,
so

the same
d?rected"to"'^^
principleappliesas
or

have

it,as

of

If
fund

part of the

composed

as

been

297.

(2 Sp. 235.)
Where

have

the stated purpose

the

benefit

the

undisposed of,for

estate

of

been

undisposed of, whether

estate

has

has

is to have

heir

which

is undisposedof.

purposes

the

respectivevalues.

their

fail,then

part of the fund

that

for

he in effect directs

answer

principlewould

those

applicableto

Undisposed

fund, shall

of that

as

purposes,

personal estates,

into that

converted

whole

the

there
legacies,

and

and

personalestate

directs

certain

applied for

be

to

and

generalfund,

and

mixed

subsidiaryfund,

real and

from

creates

testator

take the

sale, and

the

thereby prevent

trusts

goes

to

bequeathed

upon

purchased before
the

next

of kin

as

IMPLIED

real
Re

estate.

{Caiicis

Riclwrson, (1892)
Where

real

sell for

certain

is settled

in

the

298

of the

is

executed, and

personal

as

one

of

the

trust

for

sale

settlor

or

takes

take

until

place

Franklin,

K.

from

the

the

Court

J.

"

in

Wood's

remarks

in

is

property

Chtrke

not

v.

is directed

fail

deed, there
had

to the

results

grantor
Eldon's

Lord

; see

V.-C.

7 A'es. 435, and

-J.

"

K.

Franklin,

v.

to

of

the

conversion

no

to

(Clarke

of the

if

as

Ripley v. Waterworth,

remarks

299.

Where,

in the

land

into

exist,the

that state

testator;
fails.

(2

Johns.

"

happened

H.
on

will not
it

where

Sp. 234,

place,though
to

Court

the

purpose

261

662, 673.)
which
the

exist,or

the

death

where

conversion

v.

any

from

of the

intention

fails,the

Bucluman
But

property

at the

or

money

made, does

be

the

vary

found

was

into

will to

by

is directed

contemplated J^|^^^|J"

the

of land

conversion

in which
for

happen,

that

events

which

object for
money

the

case

conversion
"^'^**''^ ''^'^^^'

or

whole

where

(Lewin, 10th ed. 164

real estate.

265.)

the

regards

i'ailureof

to the

direction

conversion

execution

^"

conversion

the

conversion

the

of the

moment

of

But

257.)

il.

*^""

effect the

settlor's death.

the

after

directed, and

been

actual

for which

the purposes

ceases

the

although

convert,

is to

real

as

takes

deed

force

Tix.

that the deed

constructive

place by

to

those

results

heir, either

until after

not

extent

For, the

estate.

immediately

not

his

to

it is executed, and

moment

as

not

trust

upon

the moment

personalty,from

172

and

his decease, the property to that

settlor,as

D.

a.

by deed,

specifiedpurposes,

lifetime

Ch.

10

379.)

fails,there, whether

purposes

arise

Wormald,

v.

1 Ch.

estate

135

TRUSTS.

Harrison,
event

ought

to

has

take

afterwards

objectfor the conversion


fails,the propertywill
partially

be

ibraconver
^'

wi

1"'

13H

Tit.

II.

Cap.

V.

treated

or

bequestin
trust

debts

to pay

Devise

or

to

trust

bequest
charged with
or
subject to
and

interest

debts

pay

for the

after

payment thereof, a

devisee
debts

L.

E.

paragraphs

real estate

This

must

Transfer

for

assets

and
be

however,

now,

of the

Sp. 23,
449

(h),

n.

; Clarke

the

v.

following

considered

Act, 1897, which

with

makes

in the hands

of debts

payment

the

to

payment

H.

"

or

other

or

passes

; 2

2245

2 Johns.

Eq. 810.)

to the Land

reference

to the

for the

debts

interest

charges. (St."

Heptinstallv. Gott,

is

property is devised

legatee,subjectonly

other

or

beneficial

residue

subjectto

or

bequest

charges,and,

or

of the

beneficial

whole

the

or

Hilton,

of

legalpersonal representative.(Appendix.) 301.

the
Indirect

J.

"

legatee,but he

or

where

But

of kin.

next

charges,

y.

by charges.

charges,no

trustee

bequeathed, charged with

226

2 D.

makes

or

of debts

payment

trustee

or

other

devisee,

the

to

passes

created

estate

an

or

mere

heir

Bagster

Colshead,

v.

often

are

devises

testator

and

charges.

debts

Where
in

Wall

trusts

Implied

VII.

Charges.

469

Beav.

26

262

gp.

300.

683.)
Devise

(See

if converted.

as

Fackerell,

VII.

TRUSTS.

IMPLIED

In

of wills, favour
interpretation

the

creditors

to

charge of
debts.

has

been

(2

Sp. 327

by

acknowledged principleof

an
n.

will with

("/).) And
the

of

should

paid,

they

to be

were

directs

testator

of the
of

funds

other

if the

that

not

of the

over

is

which

named

he

he

which

pointed out

were

any
to

him

no

if

to pay

not

out

out

control; and

the person

presumption
or

that

But

intrusted, and

pay,

debts

it is natural

to pay,

as

mere

indication

real estate.

has

testator's

intended
is

charged

by

even

other

any

the testator

ordinarilyexcluded

persons

the

particular
person

with

funds

executor

without

paid out

that

to presume

that

intention

an

be

might

of debts,

payment

expression
be

real estate

construction.

that

to

pay,

that

other

the

debts

IMPLIED

to be

were

But

to the executor

devise

had

paying

debts

and

the

be

charged

in

exoneration

vests

the

payment

with

of

personal

lands

as

unless
deed.

But

by

will.

If

the

resort

the

to

But

342.)

the

at

time

held

the

Act, 1897,

(See Wms.

to

be

clause

debts

paid

be

are

for

deed

of

to

with

such

the

on

where

case

payment

the

payable

charged

out

So

form, and

yet there is

considered

when

that

of

charge
must

"

329,

provision in

debts

and

legacies

intends

he

both

and, thei-efore,if the


fund,

will be the

so

in

is made

residuary

previous devise, legaciesare


charge upon the real estate ; it being
the

no

word

residue

residue of the real estate after

must

payment

charge of
^^^acies.

either

estate

is that

mixed

devise

of

face,of the
the

real

on

of

way;

same

Extent

'^^"^''^"

deed,

(2 Sp. 827, 334,

makes

testator

payment

legacies.

thereby made

debts

the

making

only.

inference

natural

in

on

303.

personal estate
it may

together,the

Now,

given generally,the legatee

Thus, where

same

be

Kay,

204.)

expresslyor by plainimplication.(See 2 Sp. 327


342.)

to

not

appears

is the

reverse

is

of

debts, though

charged

(2 Sp. 352, 353.)

legacy

duty

will

subjected by

are

contrary intention

executor, and

estate.

'-

"

302.

owing

were

of

that the

WatMns,

v.

the

ii.

property given

Transfer

in

estate

then

the

Beav.

27

Land

debts, they will stand

only

of the

{Harris

of the

Legal Eepres. 77.)

is

extent

Murrell,

v.

all fi-eehold real

of

debts, and
considered

was

T".

direction

the executor

upon

debts.

however, by virtue

Where

it

him,

to

to the

Hartland

438;

will contained

accordingly the realty was

with

charged

(See St. " 1246,

the testator's

to pay

imposed

the

him,

to

when

of real estate

testator

137

of the real estate.

paid out

1247, 1247a.)

TEUSTS.

mean

of the

the

legacies

138

TEUSTS.

IMPLIED

Tit.

II.
^

But

thereout.

devise, which

charge

upon

executor

was

residuary

Rooke,

v.

will

the

of

of

case

where
to

or

real

re

Hill,

all

on

liable

the

the

as

Conron

personal
"

the

real and
estate

personal

or

legateeis

bounty

pecuniary

to

personal estate
much

as

object

an

pecuniary legatee.
7 H.

Conron,

v.

the

order

Transfer

therein

in which

applicable in
legacies,or

after

the

L.

C.

of
liability

annual

and

rents- and

if those' words

are

be

not

general personal

there

is

intention

an

s.

shall

personal

to

306.

(2 Sp. 338.)

contained

real- and

of

the

Act, 1897,

towards

or

with the payment

of the

until

it will

charged,

personal estate.

Land

nothing

Where

is

estate

exhausted^ unless
the

exonerate

And

real

liable

be

is

estate

out

In
v.

and

be

to

deficiencyin

testator's

Even

the

-J,

305.

168.)

that

v.

"

689;

Smith

real

bequeathed

or

(Bobbins, Mortg. 409

held

630

render

specificdevisee

for the

C. D.

K.

C.

the

; Harris

both
description,

every

not

devised
specifically

legaciesin

L.

expressed

of

estates

personal,"

H.

; Francis

328

Howell,

v.

legacieson

of

though

even

testator's

been

legacies

cited

there

it has

304.

143.)

estate,

(2 Sp.

Wheeler

general charge

for the

especiallywhere

cases

Browne,

v.

Brooke, Brooke

previous

rendered

form

estate,

and

Kay, 438;

Greville

9 C. D.

real

the

Kay, 435,

Watkins,
198;

subsequent devise,

residuary devisee.

Clemow,

V.

of

such

that

held

been

has

there

sufficient of itself to account

was

form

residuary

where

even

'

(3),provides

alter

or

assets

are

the

payment

of

real

estate

be

to

affect
now

debts

or

charged

legacies. 307.
gross

charges

or
profits,
by

evidently used

in

are

sale

to
or

be

raised

mortgage,

contradistinction,

IMPLIED

the annual
rents

charges will

and

be

profits,and

mortgage.
consider

TRUSTS.

raisable out

the

(2 Sp. 370.)

406

imply

; Lord

But

to sell

power

Where

leasehold
but

the

and

the

land,

takes

name

of

who

purchase
of

name

charge

to be for

others

third

Wh.

Tu.

"

of the

either

papers

by

his

left

by

merely

(St. " 1201,


In

like

stock is
a

purchased

delivers

of

or

himself

money

or

and

of

of

transfers

some

applied

in the

Dyer

of the
the

"^^e.

it in the

v.

the

to

name

Di/er, 2

payment
be

purchaser may

itself,
or

deed

nominal

chaser,
pur-

legal proceedings,or
after

discovered

is transferred

is

proof

in

names

anofter^'^

result

answer

taken

real

his death.

311.

Sp. 202.)

in the

to

note

there will be

manner

stranger,

names

; 2

note

and

will

took

1201a

Cou-

jointlyor

doctrine

the

admissions
him

viii.

own

the

And

or

in his

purchaser intended

language

memorandum

some
or

by

the

by

for

; for

same

seq.)

et

purchase-money

benefit,and

own

purchase-money by

fm-nished

by

803

295

310.

whether

the

(St." 1201,

person.

Beav.

legal estate

real

The

purpose.

(2 Sp.

in
others, or exclusively

or

others

or

land

profits,

mortgage.

or

securities,
as, for instance, a bond
a

annual

assignment

or

the

the

on

purchase-money

of the

his

another

collateral

of

the

to

raise

it, m^gnment,

advanced

that

presumed

^'"

the

or

trust

ii.

or

of another
another

Tit.
^""'"

buys freehold,copyhold,

conveyance

the
successively,
to the person

pays

annual

profitsto

(1 C. D. 591.)

person

and

that

name

it is

and

Londesborough v. Somerville,19

Metcalfe v. Hutchinson.
VIII.

the

charges by sale or
Equity will in general

will

of

gross

charge on the rents


portions, legacies,
or
debts, as
if such charge is not restrained
and

139

resultingtrust, where
of the

by

the

owner

stranger.
stock

purchaser and

to

But

into
if

another,

the
man
even

Purchase

stoc^

or

or

"^

'^f^^^^

140

TRUSTS.

IMPLIED

Tn.

^^'^l'
_

unless

intention

an
(i.e.,

the

on

the

subsequentlyaltered, that

be

their

or

object and

the

trust,

written

by

where

purchase or
securityis
^^
of

name

wife

or

child,

Dr.

Major,

"

Sm.

there

Will

be

made

or

securityis

resultmg

no

stranger)in

the

child, who

husband

or

is

his

him

father

by

; or

unprovided for,
the

father

mother

the

name

in

that

presumed

it

or

of her

tribute

which

intention
act

take

to
as

; such

manifest
a

or

as

child ;

intended

as
a

or

an

trustee.

intention
A

that

or

of

of

name

if treated

or

as

by

as

the

ciently
insuffi-

the

name

considered

an

moral

there

that

subsequent

by

by

are

the
act

widowed
it will be

because

contemporaneous

la

father

considered

strong presumption

or

name

own

or

purchase

husband

living;

of affection ; unless

furnish

v.

provided
insufficiently

as

provisionin discharge of
a

the

Beecher

grandfatherin

is not

was

between

unprovided for,

as

or

parol evidence,

wife, or in the

unprovided for,

for, where

as

his

terms

hence, in general,

grandchild unprovided for,

as

and

the

or

creatingthe

where
a

for his

evidence

child
illegitimate

an

provided for
of

of

name

legitimate child, or
a

by

jointlywith

(either solely,or
a

trust

taken

take

1202

And

431.)

to

persons

or

by

or

and

parties. (St. " 1196a, note,


as

cannot

relation

the

from

presumed

be

may

or

is established

or

which

instrument

of the

purpose

person

other

by

indicated

presumption, is

of

grounds

of the

should

benefit) unrebutted

own

part

contrary

person

property is transferred

the

whom

Brett's

see

where

raised

purchase-money, and

the

advanced

who

and

(2 Sp. 219;

will be

resultingtrust

intention
ifretSfed"''

will arise,

trust

impHed

no

312.

Gas. 9.)

No

stranger,

evidence.

upon

Lead.
Where

is

he

though

II.

advancement
or
obligation,

circumstances
of

contra,ry

declaration

or

party should
or

declaration

142

TRUSTS.

IMPLIED

Tit.

II.

Cap.

V.

them

their

and

is

joint tenancy
-

will

Equity

Joint

mortgage.

will

afford

rule

of

grounds

of money

of

by

to them

jointly,they

Equity ;

and

if

will be

survivor
deceased.

his

or

for

advance

proportionsof
in
of either

the

of

partners,and

in

proportion
1206

seq.)

And

for

to

to

real

X.

Covenant

When

money

lands.

trustees

to

be

settled, if he
and
be

his

unequal

take the
of the

in the

hold

personal
in

estate

advanced.

Wh.

nature

the

each

Tu.

"

952

is purchased

estate

trade, and

legal estate,

not

veyances
con-

death

in

on

ever
whomso-

vested, is in Equity deemed

to

be

subject to survivorship.

has

person

purchase
laid out

of
in

afterwards

heirs, but

subject to

if two

survivorship,but
to

purposes

of

315.

in the

purchase

and

which

or

the

partnership property,
(St. " 1207.)

discharge

pay

case

no

Craddock,

partnership
be

of the

So

61).

s.

purchasers

sum

v.

the

the survivor

sufficient

intended

the

partnership account,

trust to

be

have

where

it may

in

will be

to

in

common

share

estate, and

joint names;

Lake

of the

purchase-money,

deemed

sum

proportion, and

41,

c.

an

them, there

be

notwithstanding notice

Vict.

45

their

of

will

(St. "

or

his

for them

jointlypurchase

persons

X.

tenants

the

mortgage

in

from

dies, his personal representatives


to

money,

"

(44

severance

take

receiptin writing of

the

mortgage

purchase.

et

persons

is
personal representatives

the

they

if two

trustee

But

respect

entitled

be

which

in this

will be

indeed

circumstances

any

of them

one

Equity

mortgage, and

of

way

in

vary

to

Thus,

Law.

joint-tenancy. But

favoured

not

hold

lay

will

Joint

heirs, this is

the

does
trusts

covenanted

land,
the

or

to

to
pay

purchase

upon

settle

which

money

of land

purchases land,
not

lay

it, the
the

out
to

to be

to himself

land
land

will
to

be

IMPLIED

purchased

to

was

clearlyappears,

be

TRUSTS.

settled ;

it will be

for, unless

of

capable

of

obligationshall

an

known

the

be

doctrine

the

upon

being considered

contrary

Tit.

it.

^"^'"^ ^'-

purchased

principlethat

done

as

construed.

so

the

that he

presumed

in fulfilment of his
covenant,
acts

I43

in fulfilment

This

is what

is

of

Performance, and illustrates


the maxim
Equity imputes an intention to fulfil an
obligation." (St. " 1210; Wilcocks
v.
Wilcocks, 2
as

"

Vern.

558;

Lechmere

Blandy

v.

Lechmere,

agent is bound

or

if he

by

to have

C. C. 670

XI.

; Ex

It is

settle

such
particular,

creditor

have
of

otherwise

Equity,be

held

So

tions.
with
from

an

of

such

between

debt

that

the

he

may

317.

had.
has

collateral
entitled
it is

by

XII.

Col-

securities for

aggft^'ed

the

parties. Thus,

mortgage will, in

entitled to the benefit of the

mortgage.

318.

of the
a

his

trust

ornamental

to

as

objectsof subsequent

tenant

executory devise

abusing

deemed

securities,unless

secured

Equity implied
in favour

debt

Covenant

^'^t* l"'^*'.

instead

debt, the assignee will be

benefit

; for

*"

specific

will be

xi.

in

specifyingany

then

Coll.

covenant

constitute

he

trust.

316.

for the purpose,

assignor of

the

(St. " 1047- a.)

timber

land

agreed

assignee of

XIII.

of the

an

for

full

land

land,

settlor

covenantee

purchase

part

Where

the

to

the

of the

1005.)

if

will not

covenant

to

settling
any

securities

that

in

Toleman,

v.

by specialty
only (St." 1249)

intended

XII.

rule

407;

trustee

money

in execution

lands, without

his lands, and

on

done

Tu.

will,if possible,be

act

Manningford

general

and

convey

the

"

where

lay out

parte Poole, 11 Jur.

Wh.

399.) And

trust to

been

(2- Sp. 204"206;

lien

ibid.

actually lays it out,

presumed

to

Widinore,2

v.

legal

for

life,or

over,

power,

might

by

tenant

be

limitain

fee,

restrained

cutting

down

XIII.
mental
*"^^'-

Trust

144

TRUSTS.

IMPLIED

Tit.

II.

Cap

'^^-

(St. "

518

Turner

25

s.

Garth

the

Judicature

(3),

it

of

life

for

tenant

unless

waste,

expressly

mortgaged
propei

implied

An

when

she

gage

upon

her

redemption

her

by

is

life

without
the

upon

equitable
shall

right

Act,

such

1882,

waste

timber

35,

s.

under

may

ripe

interest
the

cutting.

for

of
L.

Paget

special

Davis

v.

an

C.

Paget,

the

effecting

which

the

husband,

be

wife
mort-

equity

of

there

is

show

to

changed

further

that
than

{Huntingdon
ed.),

Whitehead,
(1898)

and

incumbrance.

(6th

the

of

circumstances
to

Eq.
v.

favour
in

by
to

intended

was

creation

Marlborough,
see

reserved

no

in

husband

the

property,

and

recital

Huntingdon,

and

,-

66),

c.

creating

for

arises

trust

with

joins

y.

no

for

such

Land

cut

seq.

a.

XIV.

Trust

Vict.

instrument

impeachable

circumstances

certain

XIV.

life

for

et

37

commit

to

confer

to

Settled

the

971

confer

not

right

the

by

by

estate

shall

intention

"

(36

an

legal

any
an

And

tenant

that

waste.

319.

1873

waste

appear

estate.

319

Act,

Tu.

"

Wh.

740.)

enacted

is

impeachment

Johns.

equitable

called

is

Cotton,

v.

Wright,

v.

By

which

timber,

ornamental

1147

(1894)
1

Ch.

470.)

et

seq.

Ch.

320.

v.

133

Re

145

CHAPTEE
OF

Implied

by the

and

TRUSTS.

constructive

trusts,

frequently confounded

are

and

gether;

CONSTEUCTIVE

trusts

observed,

VI.

the
of

name

trusts

same

classed

or

sometimes

are

implied trusts, and

already

as

II.
^^'

to-

designated g^J^^ti^ucy

other

at

tit.
'^^^'

times

by

busts

often

confounded.

that

of constructive

But

constructive

and

express
a

order

raised

satisfytlfe demands

to

any

presumable

(See St. " 1195, 1254

trust

arise

may

is

only jomt

benefits
lien
the

trust

or

he

sum

expended

has

So, where
under

will be

for he

compelled

who

1237; Kayv.
for

consent
or

seeks

of

in

trustees, to

repaid

out

for such

of

the

own

corpus

true

But

discretion,

but

if
or

1234

"

tenant

with

the

unnecessarily

money
to

owner,

improvements

536.)

entitled
;

the

equity. (St."

do

expend

is not

; for

ments.

ments.
repairsor improve-

Equity by

to allow

lit,of his

Repairs or

iraprove-

ments,
permanent improve-

made

equitymust

improperly,he

I.

person

lawfullyin possession

Johnston, 21 Beav.

life thinks

where

favour, in respect of

in such

defective title has


if relief is asked

he

322.

person

trust.

arise in his

of

parties.

by repairs or improvements

may

to be

actmg homijidi:,permanently

owner,

estate

an

Definition

Equity,

of the

intention

Lewin, 117, 192.)

constructive

of

from

justice,without

of

who

be defined

by construction

to

reference

I. A

both
distinguished

trust, as

implied trusts, may

is

which

trust

in

from

321.

(Ante, par. 226.)

trusts.

have

if he

the money
becomes

the

146

CONSTEUCTIVE

Tit.

II.

Cai".

VI.

the

purchaser

of

deduction

from

TRUSTS.

will

property, he
the

entitled

be

in

purchase-money

to

respect of

expenditure in lastingimprovements and a fortiori


of salvage. {Roivley v. Ginnever, (1897)
in the nature
2

Ch.

Re

503;

by

improvements

II.
of

Payment
legateesnv

distributei's
before

46 Vict.

"

45

see

before

due

discharge

of

land,

the

all

honCi

fide

distributees

paid legatees or

fault, have

without

to

323.

25"30.

ss.

settled

executors, by mistake, but

II. So, where


and

38,

c.

As

8.)

life of

for

tenant

Ch.

(1897)

Montague,

debts, the

latter

creditors.

treated

are

debts

they

because

except the surplus

III.
or

to convey
transfer

property,
pay

III.

Covenant

Where

agreement

of another,

assets, after

all

is under

to

money,

constructive

latter

against the

those

claiming

anything
the

covenant

for the

or

former

under

arises

trust
and

him

his

debts

or

ment,
agreetransfer

or
or

benefit

in favour

of the

use

or

agreement

covenanted

or

agreed

be

them, for many


St.

that

to

as

in

Soady,
And

of,

reason.s

for, the

money

vendor'.s lien.

vendor
a

hold

with

making

person

2 Giff.
so

of
has

upon

they

lien

done.

were

treats

(See

is satisfied

by parol evidence

faith

the

of

tions
representa-

settlement

representations,as

them

or

his

devisees.

against
{Prole

v.

326.

1.)

estate
a

things

done, Equity

those

constructive
an

because, where

settlement, it will direct

accordance

the

the Court

marriage took place on

if

notice

with

or

325.

" 1212, 1231.)

Hence, where

to

as

purposes,

and
representatives,

volunteers

as

of the covenant
are

and

to

or

money.

Nature

entitled

consideration, to convey

to pay

property, or

the

paying

324.

person

for valuable

or

the

of

of

purpose

not

are

(St. " 1251.)

paid.

are

the

for

trustees

as

on

trust

arises when

the

purchase-

is not

paid.

In

such

the

property

in

Equity

it for the

satisfaction

of the

case

; that

the

is,

purchase-

CONSTRUCTIVE

monej-

and

becomes

to the
trustee

1217"1220

to

presume

vendor

extent

of the

for the

vendor.

; Mackreth

seq.) And

et

TRUSTS.

have

such

attributable
strictly
is founded

some

general, the

consent

obvious

burden
in

of

the

proof
waived

(St. " 1224.)


the
if

Though,

consideration

and

paid,the
Symmons,
And

if

to show

that

"

Tu.

proof has

securityhas

been

under
of the

(St. ;i 1226.)
the

Where

lien,and

the

at

that

AVheie

it

'
exists.^

paid, and

of the

rest

veyance,
con-

; Mackreth

the

v.

55.)
the

purchaser,

the

on

s.

money,

the

security

most, the taking of


no

than

more
an

conclusive

as

the

sumption,
pre-

intentional

of the waiver.

328.
has

vendor

consideration

legaltitle.
"

So

for

to be

not

not

actually been

circumstances, of

some

the

ance,
convey-

Act, 1881,

held to lie on

deemed

countervailing Equity
with

back

been

; or,

926

vendor.

the
be

not

Conv.

agreed to

and

the

of

taken

lien

that it exists

of

devolution

.)

against the

Contiimance

transfer
the

fide purchaser for

notice, when

(St." 1228.)
\

or

extinguishedby

bond

without

it

againstthe vendee,

it is

estate, except where

valuable

face

the

continues, notwithstanding any


of the

of

been

land

natural

establish

(St. " 1225


;

"

displaced
intentionally

has

926

the vendor

dischargethe

to

waiver

lien.

securityhas

of the

has

2 Wh.

burden

and

money

vendor

been

on

yet the

lien is

lien

expressed to

indorsed

327.

the

is

that

principlesof

consent

on

"

ii.

agreement, but

purchaser, to

the

Tu.

Tn-.

it is reasonable

or

such

it has

by

receiptis

has

the

on

particularcase
or

even

is

vendor

"

Ken, yet the

justice. (See St. " 1219, 1220.)


In

2 Wh.

agreement

or
a

to such

the most

on

(See St. " 1215,

cases,

tacit consent

should

lien,the purchaser

Symmons,

v.

although,in
a

147

clothed

329.
"

,
a
. wliom
Against

'

vendee

and

his heir,
l2

it exists.

148

^^"^^-

CONSTRUCTIVE

against volunteers

and

under

purchasers
the

paid

claiming

him

with

purchase-money
notice, having

without

the

and

bankrupt
under

claiming

actual

that

of the

bond

without
the

party

of the

the

of

such

his

purchaser

the

of the

he

has

parted

neither

time

is

in

all other

for valuable

the

the

vendee

in

priorityto

situation

and

the

bond

although

what

has

he

; and

the

latter has

having

whole

he

only

distinct

has

be

to

when

is

the

unpaid

lost his

delivered
declared

purchase-money

by

paid

the

had

for

the

support
-prior est

the

case,

equitiesare
be

; and

sequently
con-

entitled

vendor

priorityby

to the

is

for

equities

only

may

equity

the

applies. Qui
this

an

from

paid

partieshas

But

the

himself

vendee, yet the

maxim

jure.

equity

more

same

And

tion
considera-

equitable title),

only material, where

in which
the

(except

equitable mortgagee

negligence in
that

cases

than

with

an

of these

respects equal {ante, par. 50)

an

that

est

before

to him.

first vendor

of the

legal title,the

and

ground

to retain

against

made

only an

first

that

tempore, potior

payment

the

been

equity quite

to

equal, and

are

of

which

at least

notice, who

an

by

; and

obviouslyno

in

without

vendor,

only equal
that

has

equity.

same

equitable title,has
of

has

estate

possessionhas

fide purchaser

that

vendee,

fide purchaser

clearly stands

subject to

against assignees

of creditors

lien of the vendor

against the
had, but

laws

benefit

notice, who

in

even

under

general assignment

For, in each

(See St. " 1228.)

not

against purchasers

of the

conveyance

had

general assignment made

creditor

judgment

against

he

that

notice

insolvent

for the

failingdebtor

him

under

equitabletitle only ; against

an

assignees claiming by

TRUSTS.

on

his

purchaser

to

the
own
veyance
con-

receiptindorsed
been

paid.

{Rice

150

Tit.
Cap.

11.

similar

claim

(Watson

Where

the

Where

lien.

estate

profitsmade
by persons in
a
fiduciary

If

IV.

Property

10

has

sold

of the

hands

in

the

L.

C. 672.)

sold

different

trustee,

property in

trade

any

constructive

trust,

opposite relation.
V.

2 Wh.

Tu.

"

purchase

606

but
difference,
cestui

the

benefit

would

be

cestui

que

may

have

trust

or

Wh.
M.

trustee

grant

693

Gr. 787.)

his
for

be
or

So if

2211

the

a.)

And

company

the
and

should
at
of

the

for the

trust

partner should

to the

; Keech
v.

in

will
the

same
one

be

v.

for

the

though

Clegg

he

principal,at

the

Pett,

estate

or

Fox

v.

interest

agent, who

an

account,

que

1261;

benefit

the

another, purchases

own

cestui

trustee

renewal

et seq. ;

for

of the

renewed

"

(St. " 1211


between

to

be

partnership estate, he

or

(St. "

purchase
on

trust

co-partner.

"

will

acquired

so

trust

co-partner,even

or

Tu.

on

would

of such

trustee

another's

et seq. ; Robinson

trustee

his

of

party standing in

allowed

be

if

the

of

refused

141

purchase
So

trust

other

or

not

the

lease

or

for

mortgage

or

trust.

que

renew

D.

property

seq.) So that, if

et

discount, he would

the

Tu.

"

lien

employs

person

profit

scope

(See St. " 1211, 1211a,

1 Wh.

Mackreth,

the

to

principal,
owner,

trust,

makes

or

speculation,there

or

as

made,

profitsso

the

in

standing

person

within

if

authority,or

or

agency

them.

rateablybetween

other

or

transactions

of

means

to different

parts

fiduciaryrelation,acquires property
by

the

332.

a.)
a

it,the

of

part

331.

primarilychargeable with

is

has

only

lien is to be borne

(St. "1232
acquired,or

H.

Rose,

him

he

the

persons,

v.

vendee

part .retained by

relation.

the

against

VI.

vendor.

IV.

TRUSTS.

CONSTRUCTIVE

lessor

cestui que

Sandford,
8

Edmondson,
is

employed

his

held

option

his

own

to

name

to

of the

be

latter.

principleapplies as
of

the

directors.

CONSTRUCTIVE

{Imperial
L.

E.

Mercantile

6 H.

V.

L.

Credit

or

mortgagee,

account, he

own

persons

The

having

person

be

interested in the

old

lease.

10th

ed.

303

or

exe-

Lewin,

ii.

pe^on
having
^ limited

his

on

^^^-

Keuowalof

v.

limited

the term

to

converted

so

interest,and

lease

Lewin, 10th
VI.

In

been

to

to

^'^^^
'
'

be

trustee

for all

Sp. 512;

(1

192

Bobbins,'

ed.

principalor
ascertainment

and

confounded

in

turned

description. But
substituted

liable to the

rights of

St. " 1158, 1259,


et

But

He

which

not

has
the

to disclaim

any

remedy

which

to

if the

the

course,

is the

of

of the

has

the

been

be such, it will be

to

trust

que

or

principal

subject. (See

was

Pett, 2 Wh.

v.

at
an

trust
title

he

sort, the

cestui

all bound

by the

option

insist

to

property

has

thereto, and
is

l"""
*",^*

mixed

property of

Tu.

"

trust

que

act of the
on

been
resort

having

or

other
that

converted,
to any

entitled,either in

rem

or

other
or

in

Wrongful

ai'^nation'

when

case

and

^'I.

of

means

property which

cestui

has

of another

money,

mass

; Robinson

this

of

cases

beneficiaryis
party.

1260

304

336.

seq.)
in

if the

property converted

the

the

kind

rem

ceases,

be ascertained

can

Sp.

one

right in

into

general

of

property

the

fail; which, of

subject-matteris

which

into

trust

que

the

retain

(2

payment.

agent,

or

cestui

building,
repairing,

he may

property

converted

trustee

; and

renewal,

335.

196.)

general, whenever

kind, by

for

renewed

of

expenses

compensation

the

of

trustee

and

costs

secure

wrongfully

same

into

lastingimprovement

renewed

into

held

person

and

606

or

trustee

'"

lease is entitled to the

to

Tn.

334.

164.)

with

Coleman,

v.

^-"'

property, renews

will

Sp. 299, 302,

so

Association

333.

189.)

interest in leasehold

151

Upon analogous principles,


if

cutor

the

TRUSTS.

152

TRUSTS.

CONSTRUCTIVE

Tit.

II.

(St. "

personam.

claims

repugnant
stock

by

trustee

trustee

affirm
sold

it,with

entitled
and

to

having the

taking the
stock

had

has

property, the

Nosworthy,

stock

dividends, or

the

conveys

But

of

if the

otherwise

trust

would

(See

St.

Wh.

"

same

Basset

And

scq.)

trust

trust

construction

note

et

the

to the

by

and

ISO

assigns

or

conveys

Tu.

the

afterwards

entitled

" 1264,

notice

no

same,

revived

be

property

had

should

trustee

become

if the

as

consideration,

the

paying

is

of that

aware

property

who

has

trustee

no

for

circumstance,

valuable

cestui

will be

person

for
to

to

treated

(St. " 1257.)

trust.

que

conveys

consideration, even

notice, such
the

or

v.

if

consideration, in violation of the trust,


who

on

337.

purchase-money, and
time

replaced,

dividends

(St. " 1263.)

assigns it without

the

having

the

trust

Equity.

person

the

having

the

at

re-purchase or

person

but

and

his

has

profitshe may
party beneficially

of the

extinguished.

valuable

sale;

trustee

may

he

further

any

on

he

or

which

at

sum

fide purchaser for valuable

paid

trustee

the

and

remained.

of the trust

as

stock,

instead

money,

bond

who

or

replace the

interest

If, however, the

of

either

take

insist

oblige the

may

and

cannot

of

executor, in violation of his trust,

the

by

sale

or

interest

made

of

case

so

his conduct

have

is

that, in the

on

executor

or

insist

cannot

he

entitled
party beneficially

the

to

But

1262.)

338.
vil.

Tiustof

VII.

he has
estatf.^^'''

Where
not

person

has

the legalestate
foreclosed,

premises formerly descended


of

Equity

representatives,and
entitled

to

the

he

is

to his

for

the

for
of

the

which

mortgaged

heir ; but

them

estate

fee

in the

trustee

through

personal

in

mortgage

the

by

struction
con-

personal
persons

mortgagee.

(2
et

Sp.
\

296

in

c.

his

legal

the

personal

his

s.

in

of

30)

all

31st

of

an

estate

of

for

mortgaged

VI.

Conveyancing

1894,

in

339

Equity

on

Exors.,

the

time

(44

"

being
within
Vict,

45

which

copyholds,
provision

by

the

a.

administrators

of

breaches

this

real

assigns

powers
to

chattel

the

and

respect

88.

and

(WiUiams

and

from

s.

property

for

heirs

'

disposition,

like

his

excluded

considered
all

law

with

Executors

purposes

the

testamentary

trusts

except

Act,

VIII.

in

estate

representatives

deemed

be

Copyhold

office.

the
of

representatives,

expressly

liable

after

mortgagee

any

personal

meaning

are

death

sole

notwithstanding

41,

II.

'^

of

1881,

vests,

the

Tir.

Cap.

the

of

case

inheritance,

to

Tu.

"

r.""

December,

are

Wh.

339.

But

and

Baker,

v.
"

seq.)

in

Thornhoronqh

153

TRUSTS.

CONSTRUCTIVE

as

are

ordinary
9th

and

trustees,

ed.

trusts

1876.)

for

are

of

340.

most

MIL

held
trustees.

their

Execu-

154

VII.

CHAPTEE

OP

Tit.

I. Who
be

may
trustees.

speaking,all

I. Generally

11.
VII.

covert, infants, aliens

becoming

on

Act, 1893,
But

be

Court

and

may

is

bankrupt.
W.

48

remove

R.

II. If

ance
Accept-

; and

will

to be

cease

et seq.

the

on

such

Trustee

; Re

Peake,

Foster,

is

who

person

of

appointed

as

520),

felony or

25; Re

s.

T. 479.)

L.

55

3 Ch.

(1894)

(Trustee Act, 1893,

appoint

abroad,

is convicted

who

of want

to

domiciled

aliens

all

not

ground

refuse

generally

trustee

73 ; Re
a

not

capable of

are

capable,they are

are

trustees

(Lewin, 36, 40

trustees

does

(Lewin, 28

covert, infants, and

femes

bankrupts,

trustee

all persons

though

including femes

persons,

341.

48.)

s.

of fitness the

and

convict.

equally iit to

II.

and

being trustees,

RELATION.

FIDUCIARY

Cap.

IN

STANDING

OTHERS

AND

TRUSTEES

Danson,

341a.

executor

proves

of office.

the

will, he

the

duties

becomes

of the

liable

office

the

for

and

if he

performance

of

appointed

is also

trustee, the
entire
to

39,

(Lewin, 10th

ed.

any

it,and

c.

is

trust.

whom

person

taking probate

or
s.

power
it may

persons

6), but

he

while

he

continues

Eyre,

49

L.

"

is

an

215.)

given

then

be

it is

cannot

disclaim

T. 259.)

trustee

342.

for

But

other

deed

by

given (45

trustee

by

may

exercised

to whom

acceptance of the

"

the
46

claim
disother
Vict,

particularpower
purposes.

{Re

EXECUTORS,

TRUSTEES,

III. The
who
a

specifiedas

are

appoints

man

"without
the

of

powers

his

naming

of real

trustee

the

And

survivor

property
where

and

trustees,

where

or

administrators,
directed

are

is that
be

there

The

only

Act, 1893,

Trustee
13

C. D.

Re

Inglehy

326

of

such

the

performance
of

trust

IV.

It

is

or

rule

in

wants

opposed
even

an

where

trustee.
to

trust

For

delegatesthe
even

or

to

for the breaches

stranger

or

co-trustee.

admits

wherever

if

in

of

no

exists, Jiiquity never

trust

resting

once

of

If, without

stranger,

Equity, which

imperfect trust,

consideration, has

trust

que

exception,that

trustee

character

trust.

trust
a

143;

343.

ed. 271.)
a

the

to

the

30

K., Ir.

L.

13

of the

himself

by

s.

Eowlett,

cestui

will be answerable

committed

(Lewin, 10th

the

C. D.

15

351.)
his

of

assigns the

his co-trustee, he

veyancing
Con-

devise.

and

Co.,

Ch.

consent

its duties

of

the

of

Hallett,

performed

he

consent,

being,

copyholds,

to

means

Insurance

dc.

crust.

duly appointed. (See

and

(1897)

has

trustee, till he

by

estate

Court, denude

the

time
of

as

or

effect of

The

of

the

executors

30

s.

except

"

appointed

are

22, 10 (3) ; Osborne

Boak,

without

and

the

for

power.

Morton

Rumncy,

Re

cannot,
or

and

"

tive.
representa-

their

and

now,

ss.

Re

774;

survivor

is the trustee

"

assign

"

such
persons

under

the

trust

"

trustee,

personal representativeof

cannot

assign of

any

in

trustees

exercise

can

the

sell, then

to

become

more

of

the

Act, the
survivor

or

they

or

If

trust.

H-

personal estate, tioii


ordele^a-

or

not

vest

may

heirs

T"'-

personal representative,

or

two

the

the

those

on

tio"

heir

does
personal representative

although

only

execute

to

persons

devolve

trustees

L55

ETC.

perfect trust,

contract

or

in

supported by- a

attached, whether

Equity
wants

tmstee.
as

fieri,or
valuable
it is

iv.
never

an

156

TRUSTEES,

Tit.

II.

implied,or

an

express,
not

extinguished by

bond

fide purchaser

notice

other

or

follow

the

whom

it

ceased

is vested

the

the

on

will

provide

appointed at all, the


Trustees

"Judicial

other
V.

No

allowed.

V.

re-

relation,
their

commission,

the

and

instrument

Lewin,

Robinson

M.

under

K.

trustee, is
in

by

him

Pett,

v.

"

suit

10th

entitled
in

of

"

Tu.

to

charge

L.

there

is

in

C.

Docker

for

as

the

v.

a,

171

Somes,
is

business, either

without

the trust,

some

solicitor,who

of

way

(St. " 466

suit, done

distinguishedfrom

pocket, although employed

his co-trustee, unless

have

may

purpose

Brett's

606

of

consent

by

that

of

fiduciary

they

claim.

And
to

some

salary,without

administration

in relation
out

2 Wh.

the

services

296

655, 664.)

not
or

ed.

or

co-adjutors, and

or

they

the

under

will, in

remuneration

which

the

promoters

with

even

implied provision for

or

express

office in

344.

standing

persons

any

are

Court

judicialtrustee.

brokerage, or

or

the

refusal,

official solicitor

the

allowed,

take

to

And

trustees

; and

ed. 1019)

extraordinarythe

rendered,

costs

the

co-trustees, co-executors,

however

other

not

are

St.

individuals

the

; if no

Trustees, executors, directors


and

(See

least influence

the

assumes

Act, 1896,

to be

person

companies,

1268

Court

appoint

case,

proper

ed. 1017.)

trustee

(Lewin, 10th

first instance

trust.

subject: if

in

person

by death, incapacity,or

fail,whether
Court

the

has

never

it is

to which

trusts

named
the

legal estate

the

decree

10th

Lewin,

subsist, Equity will

execute

to

conflictingequity,

to

and

legal estate,

" 976, 1159, 1162

lapse of

having

without

consideration

for valuable

otherwise

has

nor

of

countervailing equity

the

person

it is

trust, and

constructive

'"

'"

ETC.

EXECUTORS,

provision

to

do

in

the

it

by

deed

]58

TRUSTEES,

Tit.
Cap.

II.

the

On

other

ETC.

EXECUTORS,

hand, it may

Courts

of

Equity have

in many

on

have

satisfied

been

vigilance,while,

in

others, they

with

of

care

the

degree

subject.

exhibited

by

affairs.
True
the

and

circumspection

of the

decisions
the

But

of

state
case.

that

true

there
in

such

as

the

the

in

care

the

(Lewin, 10th

ed. 317

et

the

by

35),

c.

against

Thus,
to

without

which

affairs.

own

Wh.

and

Tu.

"

if

of trust

trustee

fault

have
what

although perhaps
" 1269, note

trustee
to

Act, 1896

is entitled
where

omits

be sold, and

performing

invested

Trustees

he

(59 "
be

to

has

60

relieved

acted

both
L.

77

T.

a.

never

law

diligence

that

as

reasonably. (Re Barker,

any

would

If

with

the

of

their

Stokes,

v.

trustee

loss,although not

Investments.

to these

that

office

of

; Brice

and

ordinary prudence

management

3,

s.

and

712.) 348

ought

of

clearly

But

degree

of his

established

are

adherence.

same

men

Judicial

breach

honestly

to

or

this

seq.) 348.

And

Vict.

the

by

vigilancein

either

established

now

execution

the

duties

rigid

trustee

be

be

to

seems

policyof Equity;

it is

usually exercised

633

sell.

uniform

case

things which

to

require

requiresof
is

certain

others

to

the

own

347.

Sp. 917.)

usually
their

of

management

of

themselves

Courts

and

the

state

are

by

regard

in

men

(St. " 1272, 1273


the

appear

Omission

practice

requiredextreme

cases

Primtifacir,
view

in

that

appear

VII.

of

sell

it is afterwards

his, he

is

happened

lost,although

liable; because

have

must
not

an

10th

invests,or
on

had

even

ed.

seem

he

his

the

default,

failed

not

in

palpable,

duty.

1107.)

(See

St.

349.

suffers money

unauthorized

unexceptionableit might

by

appeared

urgent,

it

property when

directlyoccasioned

Lewin,

remain,

to

previously

however
security,

to be, and

such

security

TRUSTEES,

afterwards
remain

if he

fails,or

liable ;

also

as

unauthorized

fund.

1274.

350.

note.)

Under

53),

the

instrument

therein

mentioned

England

interest

Britain

is

in

of the

on

canal

its

than

200

is

debenture
company

is

guaranteed

for

of

Parliament

having during

each

of the

date

supply

of

investment

the

whose

Ireland

any

the

for
such
;

not

and
j)rofit,
or

ten

paid

railway

debenture
on

last

dividend

of any

established

incorporated

Pioyal Charter,

years
a

less

Secretary of State

Ireland

or

per

railway or

any

or

date
3

preference stock

Britain

Great

in

having

India, the interest

in

or

porated
incor-

and

mentioned

lastly before

paid or guaranteed by
or

of

to

of any

less than

not

London

or

perpetuity,or

in

by specialAct

the

of

fixed rental

Parliament

past,before

Britain

Great

securities,

Ireland

or

real

of the

preference stock

dividend

is leased

of Works

last

years

or

Kingdom,

Parliament,

of

water

the

be

this statute

stock

Britain

of

for

of the

Ireland; stock

or

railway company

stock of any
which

ten

in

years, at
as

company

c.

the

by

in any

which

ordinary stock; stock

company

undertaking

1273,

Vict.

57

guaranteed by

Great

paid a

of investment,
cent,

any

followingmay

; India

; debenture

company

each

The

United

or

Ireland

or

by special Act
during

note,

"

invest

Metropolitan Board

Council

railway

the

of

which

of

of the

County

(56

of

expressly forbidden

prescribed.

Great

in

securities
of

" 1269,

Act, 1893

securities

Government

stock

St.

be

Parliamentary stocks, or public funds

"

Tit.

to

will

fluctuations

the

chief investments

the

as

prescribes:

the

for

creatingthe trust, may

investments

action

lo^s arises, he

(See

Trustee

in

'"

1, trustees, unless

s.

Bank

will

he

permits choses

and

outstanding,

159

ETC.

EXECUTORS,

past
of

and

before

not

less

ii.
'"

160

II.

Tit.

than

cent,

per

ETC.

EXECUTORS,

TRUSTEES,

annum

per

nominal

and

lawfullyissued by

stock

inscribed

or

to

municipal borough having, according


of the

last

prior

census

Council

by any County
incorporatedby

Act

of

of

supplying water,

and

of

levying rates

the

last

prior

census

for the

date

the

the

And

V.

the

liable

Trustee
breach

for

continuing
be

to

s.

5.

the

And

Trustee

word

terms.

is, by

construction

trust

investment

for

leaseholds
may

charge

real

to

of

the

Act

law

5 that

s.

any

year,

as

well

authorizes
of not

reservation
to

or

trust
as

to

power

terms

an

any

an

less

of rent

right of

condition, for re-entry except

of rent,

made

a.

whose

trustee

long

subject to

any

351

law.

securities

shillinga

one

instrument

(in which

1893

his

ceased

has

the

by

implication of

or

on

not

years,

non-payment

of any

of

general

mortgage

upon

redemption, or
of

only

be

50, interpreted to include

s.

moneys

greater than

renewable

reason

trustee),provides by

express

200

not

which

administrator, and

arises

than

Trustees

Act,

and

invest

shall

by

the

by

or

executor

by

trustee

authorized

Trustee

trustee

an

Long

trust

investment

an

investment

an

1894,
trust

of

hold

to

creating the
Act, 1893,

Act,

(H-time

351.

Lffpes, (1892) A. C. 112.)

By

the trustees

like investments.

for other

same

to

investment,

of

thousand.
populationexceedingfifty
jna.y vary

power

having, according

area

to

purpose

compulsory

Commissioners

any

having

returns

lawfullyissued

or

Parliament

an

over

by

or

the

any

of investment,

date

the

to

populationexceeding fiftythousand,

The

stock;

ordinary

its

on

VII.

Cav.

or

under

on

any

the

charge or mortgage

Improvement

of Land

renew.

Act, 1864.
leaseholds
so

if

And
may

by
renew,

required by

interest

but

s.

the

any

19, that
and

of renewable

it is their

that

person

section

trustees

having

is not

to

any

duty

to do

beneficial

apply where

the

EXECUTORS,

TRUSTEES,
in possession

person

for life

other

or

161

ETC.

limited

interest

Tit.

II.

Gap.
IS

entitled

to

without

renew,

section

same

the

enjoy
his

of the trust

to

property

Trustees

they are

to whom

1 Ch.

they
lend

for

lend

on

life,if he

for

tenant

is

be

might otherwise

y.Radcliffe,(1899)

indemnity clause, declaringthat

liable

the

for

insufficiencyof

them

exonerate

not

if

of the tenant

consent

Brereton, 15 Beav.

any

if they
liability

from

v.

221.)

trustees

to invest

authorized

are

mortgage

on

Investment
01

of real estate,

they

value

if the

and

trade, as, for

.-n

not

"

"

in
advancing
justified

(see infra,par.

value

depends

property

is

the risk of

having

the

and

being

made

themselves,

upon
the

run

Sir J.

Eomilly, M.K.,

Beav.

605

the

case

c,

(Lewin,

advanced.

money

Learoijd

of

v.

Btidge

v.

in

Whiteley, 12

trustees

should

A.
act

not

thrown

answerable

for

remarks

of

364;
v.

L.

Gummmv,

in

one-half,

as

mortgage

Madeocl

a);

used

would

"

would

352

situate in

mill, or factory,or house

like
the trustees
the
or
watering-place,
in lending as much
in generalbe justified

and

more

stances
circum-

fortuitous

upon

if the

instance,

for

"

are

of the

two-thirds

than

^'

may

And

(Lewin, 335.)

Personal
^^''""

they

palpably inadequate security. {Drosier

upon

Where

required to

to do so, but

advance

an

an

be

not

will
security,

by mortgage

money

(ReLamg,Laing

But

593.)
shall

of the

such

prudentlymade.

the

by

thej'may
personal security,

on

personal credit

person

And

if
personal security,

upon

the

with

power,

life,to lend
the

even

of themselves.

one

have

they

the

meet

expresslyempowered

lend to

not

writing.

351b.

lend

may

obligationto

any

raise money

may

for the renewal.

pay

in

consent

trustee

without

same

VII.

E.

Annesley,
7

Ch.

16

719

C.

727.)

In

such

upon

the

value

of
M

;
a

the

mortgage.

162

Tit.

II.

the

from

property apart

ETC.

EXECUTORS,

TRUSTEES,

-"

"

"

value.

its business

laid down

been

as

rule

employed independently of

be

mortgaged. {Fry

to be

Walker,

Re

held

that

and

relieved

to value

them

valuation

was

in

the

report of

property ;

not

made

A.

assistance

his

exercise his
which

Trustee

in

entitled

judgment

to

in

his

Partington v. Allen, 57
be

must

considered

in

it

L. T.

But

with

of
and

must

extent

to

exercise

his

same

654.)

connection

avail

may

blindly,but

affairs.

own

1 ;

execution

would

man

C.

assistance

it to the

upon

dealingwith

the

that

adopt

A.

Walker, supra.)

trustee

advice

if the

of the investment

; lie

that

fact

employed by

Gaunt,

v.

C. 727

ordinary prudent

an

judgment
The

not

the

purpose

trust, but, having obtained

advice, be is

in

and

trustees

this is still so

decisions

himself

insufficient,

valuer

and

{Speight

those

to

of

for the

Learoyclv. Whiteley,12

According

be

to

been

also

occasioned, the

is

the

question.

It has

out

perty
pro-

28 C. D. 280

Tapson,

v.

must

of the

owners

responsibility
by

from

upon

valuers, who

386, 391.)

funds

of trust

they relied

the

securities turn

if the

loss

not

are

J. Oh.

L.

59

they themselves, and

that

select their

must
their solicitors,

by trustees, it

investments

respect to mortgage

With

not

T.

L.

Allen, 57

{Partington v.

352.

654.)

has

regulate

which

circumstances

'"

J.,
(Stirling,
these

the

Cases

Trustee

Act.

Act, 1893,

ss.

shall

trustee

only

reason

8, 9, which
be

chargeable

of the

loan

to the

the

loan

(whatever

which

loan

value

of the

the

or
agricultural

the
the

trustee

trustee

with

can
was

by

of
or

the

other

lawfullylend), if
acting

upon

of

trust

the amount
at

property

tenure

house

section 8 that

breach

proportion borne

the

whether

providesby

tlae time

property,

no

by
of

of
and

property upon
in

making

report

as

the

to the

TKUSTEES,
value

of the

trustee

property made

instructed
of

owner

carried

the

business

on

is situate

in the

the property

stated

made

in such

under

for

shall be

would

have
with

money
than

upon,

title be such

caution
where

trustee

That

the

as

accepted.

has

good

would

the

advances

made

the Act.

Thus, trustees

the

well

chargeable
lending

shorter

title

tract,
of^a specialcon-

opinion of

the

Court

And

by

have

section

trust

he

advanced

in

And

these

before

as

have

now

on

proper

1893,

ss.

8, 15.)

trustee

is not

352

shall

only be
of the

excess

the

apply

to

passing of

statutoryauthority

Act, 1881,

s.

Act,

3 ; Trustee

a.

authorized

of

improper

vestment
in-

the

(See Conv.

for
I/iability

investments.

sections

after

9, that

money

been

less sum,

and

productionof the lessor's title


holds,
taking a mortgage, as well as on purchasing leasetake less than a forty
in a proper
and may
case
dispensingwith

years'title.
A

sum

interest.

caution

purchasing,or

improperly lent

with

on

and

acting with prudence

person

sum

for

expressed

surveyor

absence

if in
require,

as

of

if the loan

trustee shall be

no

if in

in all respects for

less

report ; and

property he accepted a

mortgage securitywhich
liable to make

parts of the value

acting with prudence

have

would

loan

of
production or investigation
the opinion of the Court the title

purchaser is,in

of the

lendingon the security


chargeablewith a breach of trust

of trust

any

property

trustee

accepted.
breach

ii.
^"'

the

person

entitled to
the

in such

no

the lessor's title if in


as

Tit.

practical

the

amount

the advice of such

dispensingwith

be such

if the
third

equal

report. That

of leaseholds

able

an

where
locality

; and

two

was

the

'^^^'

be

to

whom

person

of
employed independently
such
property, whether
surveyor

does not exceed


as

163

and

elsewhere

or

ETC.

by

reasonably believed

surveyor,
any

EXECUTORS,

to sell out

stock, and
M

164

Tit.
Cap.

II.

the

invest

proceeds

Where

the

favour

that

So

stock of
L. E.

or

to

tlie

where

753.)

to invest

power

(Stewart

as

guaranteed'

upon

Sanderson,

v.

is

liable for money

be
who

bankers
or

C.

the

354.

will not

temporarily

Hot'

of

A.

13

invest

not

character.

Eq. 26.)

with

remain

have

must

expense

Mackinnon,

v.

fit,they may

executor

and

the

at

trustees

terminable

10

An

of

Omission

{Knox

think

they

life

for

tenant

even

to invest

bound

are

nature

permanent

remaindermen.

(Whiteley v.

dividends.

is settled,trustees

fund

of interest

513.) 353.

4 Ch.

securities of

on

that

the

secure

payment

the

of the

amount

Smith, L. E.

see

to

mortgage

stock, and

of such
the

to

equal

executor

on

VII.

retransfer

trustee

ETC.

EXECUTOES,

TRUSTEES,

fail where

not

allowed

it is

deposited

unreasonable

an

to

for

sum

property is

duly secured
or
applied.

in

keep

to

executors

(No. 5), 29 Beav.


Ch.

728),

{Fenwicke
liable

be

banker

Beav.

; Cann

213

Again,

against

safe

depositedfor

that

the

applied,as

the

to

see

general rule,
consent
the

paid

of

other
over

for which

case

by

of

may
the

by
W.

two

is

E.
or

will
of

40.)

applied

an

355.
trustees

more

and

secured

And

of money

or

executor

rightly

or

therefore,as

act, direction,agreement,

be

the

Wesley, 29

v.

trustee

necessity,even
to

he

hands

banker

duly

be.

J.

notwithstanding

{Rehden

33

for

But

the

them, the trust fund

order
was

loss

of each

duty

without

it

are

property

if

one

in

Cann,

there

executors, it is the

in

money

L.

circumstances.

J. 240.)

"

custody.
v.

where

the

investment,

of

clause

his

reasonable

under

F.

Sicinfen

v.

Clarke, 31

v.

only

was

D.

places

way

{Swinfen

; Fenwicke

it

Clarke,

if he

indemnity

bank

depositedthere

v.

by

211

where

or

to be

money

the

is

paid

though
for

those

properlyapplicable,and

it

a
or

over

to

was

so

purposes

the receiver

166

J"-

^^-

relyupon
has

such

is the

customary
diUgence

been

the

other

standingin

what

have

has

must

be

Lewin,

the

be

in all

in

banker

by

person

the

to be made

10th

Brett's L.

C.

broker

will

the

whom

he

trust

employed

in

with

usual

the London

C. 1

held

that

trustees

party

wrong

Hickson,
the

on

80

Beav.

ed. 395.)

caused

by

And

forged

the

et

he

mankind,
(St. " 1269
C.

1 ;

that

decided

lost

through

authorized

procure

purchase-money
business

of

course

the

seq.) But
the

over

certificate

136), for

necessity,

Gaunt, 9 A.

the

or

in

Exchange. [Speighty.Gaunt,

pay

genuineness of

of

moneys

paid

Brett's L. C. 145
who

from

been

to

bill

the

trustee

for losses.
v.

in

person

responsible. The

usage

Speight

the

deposits

of

is,that where

he

9 A.

be

not

to whom

purchaseson

drawer

or

securities,and
accordance

by

hands, either

liable for

if he

Thus, it has

145.)

that

465.;

bill drawn

common

273;

his

be remitted

answerable

ed.

is not

trustee

loss

out
happen with-

good credit,to

banker

other

by

acts

of this sort

cases

conformably to

10th

he
security,

diligenceon

or

So

seq.)

et

bankrupt, he

Lewin,

to

doing

palpableduty, and

care

person

failed in

not

for losses which

273

credit, and

is not

V.

other

authorized

on

customary

ed.

proper

executor

of

with

becomes

or

post, par.

see

or

has

to

property

answerable

10th

the money

rule

that

(See St. " 1269, note, 1274, note, and

part.

due

and

trustee

appeared

the

want

any

if

hand,

relation
fiduciary

invested

will not

to

(Lewin, 286

fact.

ascertain

to

but

duly invested,

the

that

his co-trustee

by

356.

a.)

On

with-

statement

mere

money

368
Losses

ETC.

EXECUTORS,

TRUSTEES,

are

trustee

or

executor

been

funds

trust

authorityto

trustee

it has

liable
must

pay.

to

{Eaves

look

well

(Lewin,

is liable for

fraud, negligence,or other fault of

TRUSTEES,
his

that

he

solicitor is not
business.
1

Sutton

Eq.

26 ;

Wilders, L.

208

Weall,

; Re

employs

be

to

the
borne

ed. 756

the

receipt for

deed

the

liable

{Day

It

and

Bellamy
387, that

Stat.

51

52

"

appoint a

But

41),

c.

by

thereon

tO

Vict.

c.

59,

agent

as
or

the

'

issi.

deed

solicitor

give

the

to

paying

receipt.

Appeal

of

24

in

D.
Re

C. D.

their solicitors

authorize
meet

or

be

must

the

of Works,

Board

To

moneys.

Convey-

tion,
considera-

the

for

Court

the

not

The

deed

produces a

same

the

entitled

could

money

solicitor to have

Vict.

Equitable Building Society,40 C.

solicitor

for

Wyndham,

authority

this decision, the

replaced by

Act, 1893, provides that

Trustee

the

receiptbeing signedby

sufficient

Metropolitan

trust

loss

by

consideration, the

give the

or

person

trustees

receive

be

decided

was

the

not
v.

give a receiptfor

to

solicitor.

Woolivich

V.

491.)

the

for

act, and

indorsed

or

indorsed

pay

to the

giving it

Eq.

trustee

pay,

45

solicitor

other

shall
to

"

(44

thereof

the

entitled

person

to

; Bennett

Act, 1881

or

money
or

16

357.

body

being executed

Bird,

(as by fellinga

estate, and

56, provides that, where


in

E.

necessary

is made

the

by

Eq. 74;
re

where

accident

an

trustee

L.

And

do

to

In

Sarin,

678.)

Floyer,

v.

L. E. 11
373

'"

the

of his

course

; Bastock

Eq.

v.

of

cause

Conveyancmg

having

the

12

person

J.259.)

"

The

to

E.

(Lewin, 10th

trustee.

acting

Tit. ii.
Cap. VII.

pre-

where

or

ordinary
Parkin,

v.

C. D.

42

is the

tree) for which

person

all the

done

ed. 396

Bank

proper

person

4D.F.

the

Hopgood

Commercial

the

taken

not

have

might

(Lewin, 10th

V.

ought

has

acting in

Oriental

that

he

'-

cautions

s.

'

where
solicitor,

L.E.

167

ETC.

EXECUTORS,

to receive

section

and

17

trustee

give a

of

may
charge
dis-

property by permitting such

custody of

and

to

produce a

The

deed

Trus^tee

Tit.

II.

"Cap.

VII.

receipt

containing such

Act, 1881,

referred

as

the

appoint

to

trustees

purchase

money.

of Works,

27

pursuant

to

section

equivalent to

and

Hetling, (1893,

Re

see

section

The

banker

also empowers

solicitor

or

for

Non-

VII.

If

investment.

maythe

make

Alford, 4
Non-pay-

ment.

In

like

do

not

they ought
and

D.

to

M.

G.

"

the

are,

as

on

retained

by them,

estate.

{PuwellY. Hulkes,

or

of

do

even

so,

of

and

in such

per cent.

Court, however,

though they
responsiblefor

are

Att-Gen.

a;

retained

general rule, liable

they
33

was

in the

in

moneys

C. D.

Chancery

358

552.)

formerly

to the

refund

must

a.

trustees

4 per

Division

for

improperly

or

charged against

cases

v.

358.

which

interest

trust

transfer

improperly paid

sums

practicenow

only 3

charge
dis-

who, actinghondjide,have

interest

the

give

reservation

similar

improperly

or

assets,
distributing

executors

and

invest

843.)

executors

manner

rate

appoint his

to

(St. " 1273

interest.

improperly paid

The

269.)

profitby it, they

no

money

a.

trustees

when

money

C. D. 387, 399

24

to receive

with

is

Act

solicitor

to the

trustee

agent

as

policymoneys

liability.357
VII.

3 Ch.

deed

the

Conveyancing

(Re Bellamy,

the money.

to receive

the

receive

to

specialauthority given

money

solicitor

of the

productionof

of the

56

the

Metropolitan Board

and

And

592.)

of such

reason

of themselves

one

shall

apparently enable

not

{Re Flower

C. D.

trustee

transferringit to

for

does

section

The

trustee.

no

control

reasonably necessary

longer than

in

allow

not

in the

remain

to

does

veyancing
Con-

the

to

by

of trust

chargeable with breach


appointment, provided he
property

that

56 ; and

s.

be

or

ETC.

EXECUTORS,

TRUSTEES,

168

and

cent., but

is to

charge

1 Ch. p. 686.) The


(Re Barclay, _(1898)

will

charge

more

than

per

cent.

TBUSTEES,
where

the

received

10th

is

As

personal

tations, directlyor

by

particular du-ections

as

allow

to

there,

or

the
in

same

the

(such

securities

put in such
available
the

for

of

for

rests

or

by the Court,

must

be

to

68

et

; Porter

101

; Re

to be

Hope

v.

securely

reversionary

And

The

if

rule

one

protects

proof in

the

case

every

the

is not

rule

Wh.

E.

Ch.

; Macdonald

C. D.

542

L.

0. 132

836.)

and

; Re

v.

Thomas,

(1893) 2Ch.

D'HedonviUe,

2 Ch.

are

it.

Gellathj,L.

v.

in

in

other

personalty is directed

Where

as

of Dartmouth,

Earl

; Brett's

Bland, (1899)

converted

that

says

v.

Baddeley,

v.

of

Brown

seq.;

(1891) 3 Ch. 482;

IX.

who

person

Irvine, 8 C. D.

361

burden

applied. {Howe

". Tu.

751

The

life.

invested

be

of

the

wearing

interest,but

of

converted.

be

of

contrary

be

may

interested

persons

^^"Ve^-

continue
a

be

of investment

must

to

may

Lnar"''^'^'

his trustees

of

as

Termin-

any

mode

or

investment

comprises property

the

upon

investment

indications

of

subjectsviil.

trust, without

rate

also

(Lewin,

succeeding limi-

authorityto

protects the remainderman,


tenant

to

yield a high

all

that

nature,

state

state

residue

an

leaseholds),

authorized

not

Tit. ii.
^^^' ^'^^"

money

testator

part of the residue

which

the

misconduct.

of

to the

absence

as

with

estate

way

with

even

intention, such
out

traded

have

to

b.

of his

enjoyment,

has

169

ought

or

general rule, where

residue

he

358

ETC,

received

guiltyof gross

384.)

VIII.
the

where

he

ed.

has

trustee

more,

where

or

EXECUTORS,

359.
to

be

converted

IX.

Time

allowed
soon

as

as

conveniently

the executors
the
a

and

personaltyis

year

that

the

persons

to be

being

may

be, there,
interested

considered

considered

-which, in the generalityof

cases,

as
as

between

as

in the estate,

converted
the

it may

time

be

within
within

converted

for

conversion.

170

Tit
Cap.

II.

ordinary diligence. (Wms.

with

mortgage.

for

10th

Lewin,

X.

X. Investment

ed.

When

of stock is

sum

married

360.

ed. 311.)

for

woman

mortgage,

on

income,

though

trustees

to

though

they join

And

ante, par.

XI.
Equity
guards against
breach

of

see

XI.
a

lay

It is the

breach

power

the

invested

the

to

security,and

real

on

greater

given

been

application. (2 Sp.

569.

policyof Equity to guard against

by prohibiting all

of trust,

and

out

361.

354.)

wise

ordinarily

for life

have

property

in

to her

tenant

may

the

out

remainder

being sold

give the

to

as

so

in trust

will not

Court

to the fund

giveits sanction

trustees

givento

life,with

children, being infants, the

9th

Exors.

on

VII.

1316;

on

ETC.

EXECUTORS,

TBUSTEBS,

which

acts

may

trast.

the

unnecessarilyplace
(See

temptation.
Trustee
not
trust

with

mix

Hence, in all

may
the

money
his own.

money

in his

should

take

For,'if he

would

be

sustained

blended
be his
V.

to

care

keep

mix

to

were

in

or

would

be

liable to

would

be

it

the

his

often

be

mix

the

10th

trust

tempted

to

to

shortlyto replace it ;
not

know

whether

carrying on
way,
money

he

his

would
on

his

property would

the

affairs
be
own

it

and

for

could

ed. 321

St.

If the
with

not

"

cestui
of the

prove

trustee

was

were

own

naturally led
account,

frequentlybe

and

to

at

he would

fullyintending

with

his

to

; Cook

1270

indeed, he
frequently,
money

losB

any
the

his own,

his own,

as

common

portion

every

own.

interest, and

trust

trustee

money

use

in

with

trust

his

insolvency,and

the

of

banker, he

from

own

que

Addison, L. E. 7 Eq. 466.)

libertyto

of

separate

cestui

entitled

(Lewin,

hands

charged

property which
own.

the

keeps

trustee

it with

by the banker's

trust

que

in which

cases

situation

362.

Sp. 300.)

hands,

he

account,

in

trustee

which
or

not.

expend
loss to

occasioned.

would

he
In

was

this

the trust
the

363.

trust

TRUSTEES,

Similar

observations

be

may

171

ETC.

EXECUTORS,

made

with

respect

to

Tir.
Cap

II.
VIT

'

XII.

the

Upon

standing

mitted

to make

which

if any
to

have

which

such

accountable

actuallymade

has

on,

duty,

of the

such

And

as

above

or

with,
the

extra

interest

(See

supra,

par.

St.

direction

he will also be

mentioned,
or

2 Ch.

4L

annual

will direct
as

to

give the

interest:

his

as,

trust, has

or

cestui que
if

trust

trustee,

applied

the

the
in

of

ed.

296;
1278;

Thorpe, (1891)

; Re

interest at the

to pay

half-yearlyrests

own

amount

1277,

10th

ed.
the

extraordinary circumstances,

under

And,

10th

(Lewin,

cent.

51. per

or

of

ascertained.

be

note,

606

Tu.

which

for his

into

Lewin,

Or he will be made

360.)
of

rate

"

Pett, 2 Wh.

v.

the

regard to, the

in

can

1269,

1261,

as

gains beyond

entered

and

property

ordinary discharge

gains

333,

1211,

" 465,

Robinson

and

and

creating

benefit, as he supposed, or otherwise, if the


such

for

securityauthorized

and

transactions

in

or

belongs

made,

instrument

the

on

in

property, whether

trust

it

have

of any

interest

interest

property

ofificeitself :

person,

to

of the Court.

any

of such

amount

his

for

per-

he is accountable

the

by

never

the

the

investment

of investment,

generalrule

the

to be

384.)
Court

made,

so

benefit of compound
manifest

trust fund

violation
to

his

of

own

profitin trade, or has conducted himself


the
follow
fraudulently,or has wilfully refused to
creating the
positive directions of the instrument
benefit

and

Xll.

Trustee

"

from

ought

trust, or, in the absence

to the mode

"

from

or

he

by the

made,

himself

Hence

trust.

que

securitydirected

the

the

he

is entrusted

interest

would

by

"

-I

profitto

any

cestui

all the

on

fiduciary relation, is

advantage is gained by

the

other

or

is accountable

in

he

"

principle,a trustee,

same
.

-,.

person

with

364.

(St. " 468.)

agent.

an

for interest
'^^^^ ^*^"^'

172

Tit, II.
Cap.

trust,

(St.

property.

VII.

"

1277

ed.

10th

Lewin,

at

even

option of taking
the

unless

cestui

taken

(Lewin, 10th ed. 555, 558


indeed

may

grant

present, to

his

latter must

show

the grantor

was

the

Hartley, L. E.
An

of

rent

ed.

person
make

the

that

fair,and

in the

747, but

(2 Sp. 301,

had.

Barrett

298;

see

had

and

matter,

v.

365.

Eq. 789.)
takes

who

executor

receiver ; but

himself

he

as

trustee.

interest, or
or

trustee

of the

dealing was

perfectlyfree
10th

Lewin,

944;

the

that

the

161.)

par.

trustee, agent,

the

ment,
fraud, conceal-

part

; supra,

has

transaction

that
no

the

on

beneficial

knowledge

same

been

has

or

trust,

que

trust

que

intended

trust

there

advantage

or

cestui

repudiating the

or

que

and

buy,

should

to

trustee

his cestui

from

the

pubhc auction,

if

And

384.)

particularagent purchases

For

the

of

investment

the

to

as

ETC.

EXECUTORS,

TRUSTEES,

leasehold

of

possession

testator's

leaseholds.

property of his testator

taking possession)personally liable


of the

lease

lettingvalue
365

128.)
for
each
acts

other's
and

for

; but

is not

value.

such

XIII.

XIII. Responsibility

property

and

trustee

have

and
to

one

the

both

is

356)

without

to

up

its

beyond

rent

C. D.

Vane, 37

v.

responsible

for

wrongful

to which

he

is

corrupt

have

trustees
of them

other, who
liable.

for his

own

act

properly sold

hands

the

{Trutch

v.

in

he

would

trust

out

for

the

money,

Lamprell,

20

which,

expressly,

default.

or

cheque

misapplies the

defaults

acts and

which

acts

own

privy,and

virtuallyacquiesces,or
but

his

motive,

have

we

cases

for those

any

happened

if two

liable for

certain

in

(as

of his co-trustees

or
tacitly,

rent

the

of

a.

defaults,and

though

of

payment

(Earl of Strathmore

noticed, par.

defaults.

he

assign

as

of

time

(from the

becomes

not

Thus,
moneys,

proceeds

they
Beav.

are

116_;

174

TRUSTEES,

Tit. II.
Cap. VII.
'-

C.

27

of Works,

D.

592)

and

...

impracticable in
inconvenient

some

in

he

that
receipt,

to

other

assets, and

his

by

is

Land

(See, however.

each

due

case,

the

to

have

purely

the

the

done

the

done

that

received

act

the

trustee

relation
note
et

Act,

act,

estate, and

all

give a valid discharge

Act, 1897,

is

368

appliesas

trustee, is

act

him
:"

would

not

receivingthe

is

as

executor, who
called

money

been

in the

other

case,

Brice

has

v.

St.

he

" 1280,

Stokes, 2 Wh.

has

actually

to do.

in

have

to

not

defaults

standing

person

have

upon

and

him

likelyto

executor, is presumed

responsible, see
;

to

sumed
pre-

make

of

whereas

respectingacts

Lewin, 283

(2), as

367.

a.)
rule

same

act which

is not

other

it

received; although, in the

not

an

money,

or

by

an

and

s.

the

as

voluntary act,

involvingresponsibility
; because

which

these passages
a

several

Transfer

the

done

party, being

done

money.

the money.

party, being

act

formal

mere

has

they jointlyreceived

money

responsible,
namely,
because

of the

the

to

to

however, the

case,

for
responsibility
one

joining in

part

any

to sale of real estate ; post, par.


In

payable. Hence,

trustee

competent

that

presumed

will be

debts

it
receipt,

from

the

from

separate receipt;and, therefore, if they

own

join in

the
is

be

may

and

should

all

money

co-executors, each

are

receive

right

trust

received

has

there

where

same

inferred

be

it cannot

But

the

the

be

expensive

require that

others, to

by whom

person

it would

yet

and

cases,

together actually receive

Trustee

ETC.

EXECUTOES,

(As

to

for which

fiducia!ry

1280
"

a,

and

Tu.

633

seq.) 368.
Further, the Trustee

that

trustee

securities

shall

be

Act, 1893, expresslyprovides

chargeableonly for

actuallyreceived

money

and

by him, notwithstanding

TRUSTEES,
his

signing any

and

shall

be

EXECUTORS,

receipt for

the

accountable

receipts,
neglects,or

sake

of

for

his

only

defaults.

175

ETC.

(Section

Tit.

conformity,
acts,

own

24

II.

; Re

Brier,

C. D. 238.)

26

It must
be

not, however, be
where

cases

to allow

trustee

sale

by

be

breach

his co-trustee

in

perhaps

as

it would

forgottenthat

the

trustees

of trust

for

purchase

{Re Floicer, 27

on

money

C. D.

592

several

(See Appendix.) 368

Section

24, however,

of

Courts

to

the

(Brumridge

that

held

"worded

W.

29

Dundas,
XIV.

by

otherwise

would

"

E.

Every

if he

is

party

speaking,he
of trust

who

to the

does

not

to

the

devastavit

breach

even

at

speaking, he

the

does

pledge
duty
become

of
a

the

an

to
or

to

be

is held

executor.

party

breach

pledge for

will

to

will,

the

to the

them

assets

Generally

time, any

knowing

the

with

v.

executor, is

an

party

the

because

consistent

by

of trust.
a

given by
specifically
or

which

for

entitled under

are

whether

sale

it has

acquirespersonal

become

executor

personal assets,

specially

so

acts

ckusT"^

trust.

responsible. {Pass

by buying, or receivingas

advanced
the

who

or

be

Trustee

does

of
But

5.)

may

of

exonerate

breach

from

held

rule

369.

person

those

responsibleto

be

the

nor

Beav.

trustees

332.)

of trust

breach

of

indemnity clause

exempt

of

sell real

not

238), and

default

consequences

an

to

as

C. D.

26

Bricmridge, 27

v.

only

one

expresses

of wilful

cases

"trustee from

they

that

Transfer

a.

only

Equity {Re Brier,

extend

been

provides

personal representatives shall

estate.

not

(2), which

s.

Lewin,

315, n.),especially
having regard to the Land
Act, 1897,

one

receive trust money,

to

of

case

there may

the

money

part of
be

such,

otherwise

priindfacie

Generally
breach

of

xiv.

Breach

executor.

176

Tit. II.
'-

by buying

trust

for

personal assets, not


sale

duty

of

Keane

v.

private debt;

because

Robarts, 4 Mad.
362

assets, and

of

the

whatever

persons,

Lef.

"

Contri-

XV.

indeipnity.

cated

Where
in

breach

to

the

trust

; Munch

24

C. D.
But

in

and

each

breach

of the
of

already noticed):

v.

370.

jointlyimpli-

are

them

should,
should

ell,8

back

where

or

(Perry
Sim.

if

be

general

Devaynes

Sawyer

v.

v.

Saivyer,

371.

ed. 1117.)

trustees, who

be

to

Knott, 4 Beav.

v.

219

to p. 99 ;

Lewin, 10th

it

jointlyimplicated

are

so

good (as in
that

Symonds,

Catchpole,id. 78,
;

Shaw,

v.

brought

trustees,

the

separately, even

or

(Walker

337

of such

certain

cestui

need, proceed against any

of

singly

extent,

trust, is responsible for the entire loss,

liable to make

case

the

Court, and

be

to

Beav., note

p. 601

attach

where
proportionably; especially

Cocker

v.

will

of such

(Adair

the

before

notice

hands

trustees

is involved.

administration

Robinson,

been

with

the

trust, all of

the

by

added

be traced

trust

" 581.)

or

property is

administered

28

St.

of

contribute

made

have

possible,be brought

179

the

proceeds in

executors

be

affected

conversion.

261, 262

Druvimond,

v.

proceeds can

persons

may

misapplication or
Sch.

their

or

or

in

misapplication of the personal

any

property

the

Leach,

it may

And

misapplication,there

such

upon

is

assets

hands

the

into

the

; M'Leod

357

" 580, 581.)

there

whenever

that

of

St.

John

Sir

this

with

inconsistent

(Per

executor."

an

Ves.

14

XV.

at the

pledging is pi'imd facie

or

time,

advanced

money

of his

but in satisfaction

of the

part

receiving in pledge any

or

'-

ETC.

EXECUTORS,

TRUSTEES,

Lewin, 10th

note
ed.

3
;

Blyth
1116.)

75
v.

either

or

"

the
78

we

trust

que

against

Swans.

cases

have

may,

in

of them

less

guilty.

Bradwell

v.

Fladgate, (1891) 1 Ch.


And

in

such

case,

the

Executors,

TRUSTEES,
trustee

trustees

or

compelled

who

to make

from

the

Symonds,

the

good

others

or

Swans.

76

only

personal benefit
Bahin

if

bound

; Head

the

in

of

knowledge

for

non
vigilantibus,

1284

and

in

has

but

agreed

c.

46.
The
S.

been

extent

of such

s.

for

45.) 372.
long

time

him

xvi.

Ac-

a'^breaoh'
;

trust.

1134.) 373.

the

declared

arises

trust

; unless

has
1286

is

of trust

debt, both

contract

not

but

breach

of trust

has

now

to the

is

dorinientihus, ceqidtas siibvenit.

(Lewin, 218) ;
simple
specialtyand

purposes

of trust, he

relieve

(St. " 1285,

trusts

and

trust

que

not

breach

or

250.)

it, Equity will

the trustees

by deed he

unless

Ch.

trustee, with

where

seal

Turner,

his

Equity, even

under

; Re

of

by

such

Lewin,

breach

has

created

by

derives any

trust.

390

Act, 1893,

trust

simple

committed
debt

que

deed executed

the

Chambers, (1896)
Chillingwortliv.

ed.

only regarded as

where

or

cestui

co-trustee

Lewin, 10th
debt

The

XVII.

the

misconduct

full

(St."

is also

right of

as

Gould, (1898)

Trustee

see

cestui

acquiesced

also

of

D.

C.

31

benefit from

; and

If

breach

has

trustee

v-

Harkin,

v.

cases

Trr. ii.

tion
contribu-

{Walker

recoupment,

v.

indemnifyhis

685

XYI.

in certain

the

benefit. (Lewin, 1119;


1 Ch.

Robinson

of the trustees

one

to

78;

Hughes,

536

derived

has

of them.

full

from

v.

(1897) 1 Ch.
And

seek

is solicitor for the trust

acting trustee

loss,may

right to contribution, but

indemnity, i.e., of

1118

singlyor separately

so

other
"

(1896) 2 Ch. 415.) But


not

be

may

177

etc.

the trustee

Debt
"

trast^is^a

at Law

under

xvil.

!"^^j'lT"

who

acknowledgedthe
; 2

Sp. 936) ;

or

merely acceptedthe trust,


will execute

that

he

the

distinction

contract

abolished

has

debts
32

by

"

the

between
for

most

Vict,

33

374.
interest of

partiescommitting

breach

of trust,
N

Default by a
beneficary.

178

TRUSTEES,

II.

Tit.
Cap

derivatively,

directly or

accrues

VII

be

may

impounded

Rylance, L.
0. D.
s.

XVIII.

Power

of trustee
bind

interest

that

whether

ETC.

EXECUTORS,

203

E.

17

45, post,

par.

341

; and

1119

bind

may

the

by

estate

con-

'

to

veyance
"^

sale."J

42

Act, 1893,

Trustee

see

to

the J

Doering,

v.

375.

390.)

trustee

Doering

(Jacubs v.

the trust.

compensate

Eq.

Lewin,

XVIII.

to

time

the
and

bond,

of

re-purchases or
property,

same

upon

it.

rule

which

from

trustee

he

C.

14

revives

trust

The

it to

has

of

her

or

or
a

has

445,
executor

will attach
Beav.
A

266.)

purchaser

trustees, where
the

way

purchaser

in
was

notice

the

taking

which

vents
pre-

property,

trust
to

or

the

or

not
that

And

of

upon

made

upon

be

the

beneficial
the

trusts

funds.

of
v.

to

fact

the
that

of the

owner

Cooper

so,

funds

opposite party

notice

no

the

upon

the

to

again. (Barroiv's Case,

made

had

held

trustee

fide purchaser without

transfers

settlement

been

the

re-attaches

Jessel, M.E.)

per

marriage, and

funds, it has

trust

bond

of

entitled
and

et

acquired property by fraud,

party transferring was

the

at

virtually

the

is that

notice

got it back

contract

150

only exception to

back

buying

435,

marriage

in

the

sold

D.

the trusts
his

becomes

who

trustee

otherwise

man

notice, and

Tu.

is

trust

protects a purchaser with

fraudulent

saying

"

if afterwards

But

purchaser without
a

the

case,

(St. " 1264.)

Wh.

countervailingequity

fide purchaser.

bond

27

that

the

extinguished by

notice

no

purchase-money (St. " 1264,

Nosworthy,

v.

seq.): because, in

if

his

paying

had

fide purchaser, who

; Basset

note

the

ment
settle-

Wormald,

376.
has

they
which
aware

right to

no

had

rightto

no

they

did

of that

conveyance
sell at

sell, and

circumstance

from

all,or not
where

the

before he

TRUSTEES,

EXECUTORS,

paid his purchase-money.


L. E.

Ch.

the

on

And

902.)

that

ground

(Dance

he

refuse

conditions

unnecessarilydepreciatory. {Dunn
But

the

Trustee
sales

respect to
sale

by

trustees

the

ground

the

sale

thereby rendered
trustee

be

after

be

the

execution

as

against

the

; and

sale

any

the

by

the

objection on

ground

uimecessarilydepreciatory,
so,
cannot

be

impeached by

execution

of the

unless

377

trustee.

The

trust.

any
him.

But

bind

may

the

judgment

trust

or

make

any
were

other, his title

him

after

trust

of the

collusion

for

the

estate

property will
other

any

perty,
pro-

with

the

by

claim

not

bond

fide

notice

of the

be bound

by

against

of creditors

378.

(St. " 977.)

If,however,

the

lien,without
specific

other

or

Thus, while

conditions

to

in

objection

any

a.

trustee

mortgage,

acted

purchaser,

no

cestuis que

any

conveyance

has

he

on

actingin

cannot

the

the

upon

was

aforesaid.

by

shall

conveyance

(3) that

that

any

sale

great number

of years

trust for

unperformed, and a sale or


by the trustees,
mortgage is proposed to be made
for the sale or mortgage,
without an
apparent reason
raisingmoney

remains

Trustee

s.\'4.

been

no

purchaser,

hand,

one

The

consideration

purchaser

ground

the

purchaser, on
the

the

trustee, shall make

title upon

have

may

of the

collusion with the trustee

the

were

ject
conditions, sub-

inadequate ; (2) that

the

the

"

passing,(1) that

made,

ground aforesaid, unless

to

sale

impeached by

that

was

the

impeached

upon

of

14, provides, with

s.

unnecessarilydepreciatory,unless

complete

Flood, 28 C. D.

v.

after its

shall

trustee

which

to

Act, 1893,

by

beneficiary
upon

was

to

377.

586.)

no

Tit. II.

Goldingham,

v.

'"

might

the

179

ETC.

180

TRUSTEES,

Tit.

Cap.

II.
VII.

the

without

and

is under

Therefore, after
that

assume

C. D.
this

2Ch.
And

if

379

trustee

and

paid

of

Legal Eepres. 88)

on

apply

the

to

{Re Venn

and

without

though

of

case

safety,he

notice

any

ought

against the
Co.

do.

Richards,
Where

discharging

upon

1 Ch.
XIX.

544.)
An

required
in

the

cestui

que

trust, where

que

{ShropshireUnion
L. 496

claim

the

an

interest to

in

part of

liability.(Lewin,

breach

And

10th

cestui

que

impounded by

of trust.

{Bolton

without

ed.

similar

849

equity

trust, whose

reason

v.

if

stranger,the

the beneficial interest

assigneeof

380.

interested
beneficially

interest is liable to be
in

it.

Sibley,4 Gif. 442.)

v.

attaches

is

beneficial

assignee cannot
Wilkins

cestuis

charge,

to have

part of the

of

misapplies the other part, his own


make
good the other part. And

part is liable to
his

an

from

Queen, L. E. 7 H.

C. D. 589.)

45

fund, and

assigns

The

v.

trustee

trust

the

wrongfullycreated

Railways,

Furze, (1894)

consideration, takes

negligence on

the trustee

chaser
pur-

a.

own

it up

trust, set

379.

the

equitableestate, interest,or

mere

of

it is fair to

years,

legal estate, interest,or charge, he cannot,

absence

he

breach

G. 654.)

"

M,

been

to

valuable

for

when, for his

not

person,

trust, and

Re

have

sellingleaseholds.

101.)

or

inquire{Re Tanqueray-Willaume,

to

held

was

is not

or

D.

but-'
see" Wms.

465 ;

executor

is

lapse of twenty

debts

purchaser

obligationto inquire and

some

the

is bound

but

rents, the

Stroughillv. Anstey, 1

trust.

20

the

the transaction

whether

see

tility,dut)',

in

are

mortgagee

Lia-

parties who

of the

concurrence

possessionand receipt of

XIX.

ETC.

EXECUTORS,

of

plicity
com-

Curve, (1895)

381.
executor

or

administrator

is

personally

182

Tit.
Cap

II.
VII.

intestate, such

at

executor

named

in the

said notices for

sending

intestate,or

shall not
so

executor

to

contained

Act
or

the

the

{Clegg
But

the

being
if

see

right of

been

L.
Re

not

to

of
Mohan

in

claims

the

sureties

By

v.

the

executors,

decree

and

as

has

will

make

creditors
Blake

which

assets

it the

his

debt,

of the

duty

22

Gale,

383

"

23

may

571

s.

well

as

where

the

prescribed.

246.)

35,

as

protection to

course

1 C. P. D.

administrators

of kin

bond,

the

c.

ment
(Judg-

C. D.

32

it affords

Vict.

under

a.

of next

And

K.

entitled.

are

v.

pursued

Sherry, L.
stat.

to

383.

1.

providingfor

administration

an

has

Equity, equitable consideration,

creditors.
in

or

under

grant that equitablerelief to which

administrator

{Newton

have

may

executor

an

follow

to

applies to claims
of

part thereof

CD.

43

present
creditor

who

as

part

any

Eq. 368);

Broughton, supra.)

Act

Act

or

in the

any

persons

such

notice at

had

assets

or

this

without

Cotton, L.J., in

v.

This

or

creditor

ordinary circumstances

to

assets

E.

sufficiently
weighty,

Court

claim

nothing

Bracken,

distributed

right only

said

respectively."And

same

Rowland,

v.

part thereof

prejudicethe right of
the

of which

any

or

have

of the person

advertisements,

have

may

parties

notice, and

shall not

protection under

same

the

or

then

whose

be ; but

follow

to

into the hands

received

case

shall

claimant

testator

claims

of

of the

of distribution

thereof,as the

assets

person

any

administrator

or

time

the

for the

liable

distributed

has

the

or

claims,'be

of the

to the

administrator

or

be

such

in

part thereof, amongst

any

executor

said notices

assets

thereto, having regard

entitled
such

the

distribute

libertyto

shall,at the

administrator

or

the time

expirationof
last of the

ETC.

EXECUTORS,

TRUSTEES,

384.

30, trustees,

apply, by petitionor

TRUSTEES,

summons,

upon

EXECUTORS,

written

advice, or direction

ing

the

the

the

Order
the

is

above

with

his

for

and

the

account

an

estate,

so

conduct

of account, it may

is any

any

; and

fraud

ject
sub-

or

be

gross

ground

Everett, 27 Beav.

v.

as

parties beneficially

impropriety of

{Smith

obsolete.

subject to

estate;

settlement

446,

386.

act

administration

an

Statute

decree,

take

to

of Limitations.

Trustees

to support

the

of

discretion

that

Equity, except

in

32

in

Equity

has

which

punish

them

Court

have

as

of

the
for

so

his

hence

will

other

breach

Equity

would

joined,after
majority, no
of trust,
not

them

hand, in those

length of holding that


a

of

destroy

or

have

even

the

first

judge
he

in

would

in. a

Trustees

contingent
remainders.

Court

order

not

affect

may

the

on

attained

gone

And

specialcases,

they

tail

as

the

exercise

to

XX.

are

for

trustees

entitled

purpose.

And,

where

tenant

(No. 2),

Beal

honorary

as

conveyances

remainders.

instances

the

of

out

contingentremainders

family, and

for

join in

do

can

by giving

as

debt

{Phillipsv.

peculiarly considered
benefit

executor

387.

26.)

XX.

an

rights of the parties;

the

to vary

acknowledgment

where

the

to
liability

any

under

to the

in the

After

the

intestate.

settle

may

if there

454.)

to

or

trust

procedure under

also, that

Beav.

the

385.

is accountable

who

re-opening it.

an

of

rendered
practically

executors

more

the

this

to

no

been

others

of

interested

for

or

the

question

error

testator

any

cheaper that

has

person

bind

to

of

Legal Eepres. 203.)

of two
a

much

so

Act

on

One

assets

II.
'"

administration

or

Tit

questionrespect-

any

procedure by originatingsummons

55

(Wms.

statement, for the opinion.

judge,on

management

property, or
But

of

18.'}

ETC.

case

directed them

184

Tit.

II.

to

in

destroying

the

VII

Cap.

tail

is

of

is every

so

few

some

or

to

destroy

the

the

to

the

where

to

settlement]

or

settlement

advantage

of persons

settlement

make

to

(St." 995
of

rare

997)

"

on

But

in which

cases

had

it been

devise
would

be

still be

XXI.

will aid and

they

void

Safetyof

now

tingent
Con-

the

liable to be

defeated.

in all

particularestate
would

; but

remoteness

Equity will

of

in the due

ask

the

have

where

or

been

valid

executory

an

such

the

limitation

remainder

(See Lewin,

will

10th

to ask

trustee

direction

ed.

in

And

tect
pro-

Court,
the

or

as

execution

of substantial
of the

to the
of

doubt

Court.

it

(Lewin,

389.

754.)

who

of the

cases

direction

and

of the trust, whenever

management,

for the

ed. 404,

assist trustees

performance

aid and

(St. " 961.)

is best
10th

the

for

establishment, the
it.

on

limitation

Courts

them

direct
trustees.

son

388.

444.)
Equity

descriptionare

springingor shiftinguse

first

the

being that, by

limitation

the

other

or

of this

reason

longer dependent

no

the

Act, 1877, contingent remainders

Eemainders
are

for

or

advantageous marriage.

an

trusts

the

creditors,

first objects of the

occurrence,

peculiar

of

enable

to

may

incumbrances

favour

the

example,

settlement

under

voluntary ;

were

pelled
com-

which

discharge
in

In

have

Equity

conveyances

was

wl;6

for

as,

of

remainders,

of pressure,

circumstances

prior

join in

trustees

notice.

with

them

Courts

however.

cases,

of trust ; and

breach

under

purchaser

such

affect

liable iov

are

in

join

trustees

age,

remainders, they

XXI.

first tenant

the

before

however,

join. Where,

ETC.

EXECDTOES,

TRUSTEES,

commits

plain

breach

of trust

is

trustees.

not

protected from
that

and

he

opinion

its consequences

honestly took
of

his

and

solicitor

or

by

the

followed

stance
circum-

the advice

counsel, whatever

TRUSTEES,
he

xemedj'

EXECUTORS,

have

may

185

ETC.

his

against

soHcitor

Tit.

(Lewin,

Cap

lOth

ed.' 391),

saving his
A

cestui

married

que

woman,

husband

and

made

trust

from

who

by

to commit

trustee

her

that he committed

or

ruin.

her

(See

ruin, has

liable for that

But

that

the Trustee

now

where

have

has

suaded
per-

to rescue

wards
shortlyafter-

breach

of

him.

Act, 1893,

shall

trustee

of

Sp. 920.)

of trust

by taking Equity proceedings against


920.)

entreaties

breach

from

family

the trustee

it with the view

trust,

(2

Sp.

45, provides

s.

committed

The

breach

j.

of

trust

the

at

in

consent

instigation or

writing of

notwithstandingthat the
woman

entitled for her

without

shall

aa

the

the

of

indemnity

through

him

of

committed

trust

of

XQg

the

proceeding

the

in all
of his

with

trust

section

applies

before

the

pass-

other

or

of

by

breaches

to

after

24th

of

part

claiming

action

an

or

order

estate

person

as

the

on

the

letter

December,

that

Court

(Harrison

Higginson,

Equity
is

that

8 D.

what

trustee

ventures

to deviate

does

under

peril of

be necessary

so

afterwards

M.

"

would

equally valid

G. 827.)
have

if done

And

b6en

without

or

ficial.
bene-

; Forshaiv

it is

ordered
the

the

satisfying

necessary

was

Randall, 9 Hare, 407

v.

the strict

from

may

deviation

the

upon

deviation

trust, he

his
the

at

liable

made

having deviated

when

of

to be

cases

; for the

But

beneficial.

Court

any

or

except where

is not

obligationand

v.

or

the

may,

married

such

trustee

well

pending

ground

mere

the

this

Act,
was

trustee

from

the

as

letter of his trust


or

all

the

390.

1888.
A

and

be

make
anticipation,

beneficiaryin
to

Court

whether

use,

just for impounding

seem

of

separate

with

or

beneficiary
may

restraint upon

interest

way

request

the
beneficiary,

ii.
VII

rule

of

by- the

sanction

of

Trustee

^ll

186

Tit.
^^^-

; Brown

676

Smith,

v.

^'"-

10

C. D.
It is

391.

377.)

is

executor

safe

Court,

of the
Trustee

Act, 1888,

c.

35,

^gj ^ g2 Vict.

^^j.^ j^ggg

trustee

against a
breach

x)f trust

is to

privy,or
trustee,

if the

enjoyed as
had

him,

by

trustee,
been

not

through

trustee

recover

money

statute

of

limitations

claiming under
of action

by law)
had

claim

been

received, but
married

woman

whether
but

until

whom
this
from

as

from

action

that

there

of

be

section, shall derive


a

judgment

obtained

time

run

proceeding, as

if the

had

and

her
on

separate

tion,
anticipa-

against any beneficiary

beneficiaryas

good defence

by

cause

against

run

restraint

of

disabilities

beneficiaryshall

any

no

person

of the

the

to

to

plead lapse

possession for

No
a

or

shall

such

possession.
would

trustee

statute

begin to

shall be

which

to

for money

(a) all

brought

of debt

in

the

claiming

is

one

the

course

without

or

interest
in

the

entitled
with

is

bar to such

an

so

action

be entitled to

years

shall not

the

interest

shall

use

person

applies, the

arising,subject of

allowed

use,

him

(that is, six

time

or

property, and

or

own

by

or

claiming through

person

or

(b) if the

party

of limitations

trustee

is

trustee

to his

statute

any

lent
fraudu-

or

property retained

him

by

fraud

on

the

trust

converted

or

which

to

recover

conferred

rights

is founded

claim

the

except where

claiming through him,

person

or

limited

proceeding

sect. 8, that in any

by providingby

the risk

Trustee

The

59), has, however,

c.

has

23 Vict.

"

the stat. 22

protectedby

he

or

the directions

of the trust under

{supra,pars. 383, 885.)

29, 30

ss.

trustee

unless

personal risk,

from

is

or

that

to pronounce

impossibleever

acted in the execution

The

ed.

lOth'

(Lewin,

Court.

the

II.

ETC.

EXECUTORS,

TRUSTEES,

greater
another

or

by

be

an

against
virtue

other

of

benefit

than
beneficiary,

TRUSTEES,
if this

section

had

been

him.

brought by

EXECUTORS,

This

ceedingscommenced
depriveany

right or

defence

effect of

Where

executor

under

this

is entitled

18

to

of any

(As

to

Account,

on

his

solvent), is

for him
of the

becomes

debt, he

but

the

not

Wolferstan,L.
C. D.
XXII.

E.

reason

if the
be

refund

Eq.

as

possible

be

for

rendering it

estate

perfectly

without

the

afterwards
liability

the

to

call

the

on

capital paid

income.
Whittaker

18 ;

the

to

entitled

intermediate
18

a.

(Jervis
v.

is entitled to

trustee

possession. (Lewin,

Where

trust

if trustees

10th

have

the

muniments

trust

Court

estate,

Court.

Apart
are

from

deeds

(2 Sp. 46

guiltyof

the

provide

may

the

or

Trustee

gross

or

in

Muni"^

"j^"*^

regards

securities
for

the

every

of

such

securities to

Lewin, 1197.)
Act

xxii.

394.

ed. 830.)

or
danger, as
difficulty

by ordering the

depositedin
XXIII.

of

the

fund,

emergency

is any

there

title deeds

the

v.

Kershaw,

title,and, in fact, it is his duty to keep them

his

to

393.

320.)
A

(such

believed

will
to

the

possible contingent

estate

; and

Court

latter

arise in

392

distribute the

to

residuary legatees
them,

of

sufficient

estate

by the

may

ed. 761.)

company

not

direction

which

trust

{Jercis v. Wolferstan,L. E.

testator's
a

the

indemnified

all loss

executor

an

insolvency of
improper

be

to

Lewin, 10th

liabilityof

be

and

office of trustee, at

trust, and

que

of the trust.

Notice

of

ii.

pro-

January, 1890,

Williams

see

Tit.

if

"---'"'

to

administrator

accepts the

person

execution

Eq.

45

action

existingstatute.

section,

personally against
due

the

to

applies only

or

any

request of the cestui

fails,he

18

section

187

392.

201.)

the

pleaded

after the 1st of

does not

the

ETC.

395.

{ante,par. 341),

xxill.

negligence,mismanage- re'Jnove"^

188

II.

Tit.

ment,

failure

trustees,

appoint

others.

will be substituted

1289.)

And

where

if he

because

Act, 1896,

Trustees

fee.

took

that

those

cases

where

trust

created

for

sale, though
be

required to
trustees

of the

(other than,

or

only

not

to

dispose

definite term
estate

of

of

case

of

"that

30

interest

by

will

fee

which

the

of years,

in

such

absolute

without

any

real

estate

express

them

But

church)

devise

And

the

power

estate, unless

determinable,

or

be

other
had

testator

real

as

real estate

any

simple or

thereby

shall

was

executor, such

or

the

take

(2 Sp. 295.)

the

to, pass

freehold, shall

any

purpose

considered

being,a presentation to

expresslyor by implication."
where

the

inheritance

where

trustee

30,

ss.

devise to trustees

of the

part

to any

shall be construed
or

26),

c.

for

necessary,

inheritance.

sect.

be,devised

estate

was

in the

whole

by

whole

inheritance, in

took the

sold, yet the Court

it is enacted

shall

appoint

by will, that they should

And

inheritance.

trustees

it

(1 Vict.

Act

Wills

the

Before
was

and

executor

an

place. (Re Ratclif, (1898)

in his

31, the rule

of

remove

397.

352.)

XXV.

Where

ttu.'itees

C,

9 A.

Broers,

v.

Judicial

the
to

power

judicialtrustee

Ch.

the

has

the Court

1288

(St. "

of

executor.

him

irreparablemischief

; Letterstedt

under

And

XXIV.

Re-

as

396.

371, 386.)
XXIV.

trustee

with

act

property.

trust

ed. 1033

10th

Lewin,

the

to

might happen

the

of

not

removed,

not

where

trustee

would

trustees

were

(St. " 1287,

the Court.

remove

new

being properly executed,

trusts

other

the

willing to act,

continuance

the

the

prevent

by

will

Court

the

satisfied that

would

XXV.

is

there

cause,

any

qualifiedand

of trustees

trustees

it is

moyal

if,from

or

VII.

Cap.

and

misconduct,

or

ETC.

EXECUTORS,

TRUSTEES,

be

by

given
to

an

him,

to

sect. 31,

devised

or

"

that

trustee

limitation of the estate to be taken

190

Tit.

XXVII.

II.

is entitled

trustee

his accounts

have

to

VII.

Cap.

to have

examined, and

of them.

settlement

He

is

XXVII.

Rendering
and

ment
settle-

also

bound

and

to be

is satisfied

trust

ought

close

to

that

the

to

oblige the

cannot

under

seal.

On

have

the

of these

one

the

accounts,

courses

he

921

or

executor

Kemp

information.

if practicable,
to obtain

it.

Marshfield,L.

V.

boimd

Executors

be

must

3 Ch.

allowed

adopt

to

time

to

the

over

348.)

400.

render

every

not

all the

have
to seek

(Williams

E.

require

to

libertyto keep

at

4 Gif.

information, he is bound

necessary

up

is

trust

que

Account, 162, 209;

on

Burn,

v.

release

is bound

information, and, if he

necessary

Talbot

an

trustee

cestui

indefinite

(Williams

trustee

the

ought

is not

head

Sp. 46, 47,

he

He

for

Duty of
rendering

Breaking

hand, if the

taken.

of the trustee.

ment
acknowledg-

give

to

him, he

to

give an

trust

proceedingshanging
2

other

two

and

que

the other

accounts

is due

more

release, though

cestui

is dissatisfied with
to

nothing

demanded,

If the cestui que

them.

account,

equivalent

if

accounts,

proper

always ready with

of
accounts.

render

to

for

it,and,

Account, 165

on

401.

622.)

reasonable

time

for

testator's
establish-

ment.

breaking up

discharginghis
29

Eight

Beav.
As

of

servants.

establishment, and

{Field

Peckett

v.

(No. 3),

402.

576.)

executor

an

domestic

testator's

administrator

or

may

pay

one

retainer.

creditor

of the

deceased, in preference to another

equal degree,so he
to

him

from

creditors of
to creditors

be

maintain

an

the

executor

rightto
in

retain

of

for

not

higher degree; provided


another

action.

person

This
that

administrator

it

would
sue

in

debt

due

all other

preference

that the debt

if the creditor could

right of
to

preference to

equal degreewith him, but

ground
or

deceased

for which

one

upon

the

has

of

retainer
be

absurd

himself

is based
for

in order

the
to

"obtain

of

payment

debt

the

191

ETC.

EXECUTORS,

TRUSTEES,

due

him.

to

Payment

Tit.
Cap

Court

into

But

right.
in

by

Brett's
Be

to

or

official

an

is

there

L.

Langley,

C.

165

68

L.

J.

on

Rhoades,

Re

Ch.

does

retainer

no

(Williams

receiver.

receiver

361.)

not

against

(1899)

a.

the

assets

Eepres.

Legal

402

bar

Q.

got
115

B.

347

il.

VII,

192

VIII.

CHAPTER

Cap.
I.

Law, if

Common

the

I. By

II.

Tit.

Remedy

nt

contract

redress

could

" 714.)

403.

be

II. In

specific

Equity

performance

covenant,

willbedeoreed
in

had,

Equity,

would

where

afford

not

afford

be

may

no

so,

(St.

damages.
of

to

contract,

damages

for the

performance
non-

form

the

or

not

of the

character

com-

pensation.

covenant,

or

be

it will

purchase

give it
that

so

of land

would
And

will not
or

at

they

would

afford

all

or

might

bond

the

not

it

an

as

penalty,but

events,

of the

eyes

would

enable

be

of

option
an

purchaser

the

purchaser

agreement

required

to do the act

enforce

specific

751, 783"786,

850, 1425.)

at

Law

would

to

746,

404.
interfere where

will not

amount

to

value,

(St. " 715, 717, 718, 739"742,

Equity

penalty. Equity

to do the act

it will

which

of the

complete compensation.

into, with

as

the

land, may

marketable

same
a

for

character,vicinage,

in the

is entered

regard

III. But
a

the local

hence

performance.

Not

where

pay

which

And

duty.

accommodations

or

contract

of contracts

cases

land, of the very

not

if

to such

all

; because

damages,

other

buy

in

decreed

peculiar value

containingsuch

instrument

givingrise

or

soil,easements,

III.

do

to

compensation

exact

an

ought

decreed, where

be

thereof, whatever
would

in

except

performance
specific

duty, will

or

failed

covenant,

or

law.

II.

party who

VIII.

perform

TRUSTS.

FROM

ARISING

NOT

DUTIES

AND

AGREEMENTS

OF

PERFOEMANCE

SPECIFIC

THE

OP

damages

complete compensation.

SPECIFIC

Hence

specificperformance

ship

Ch.

279.)

Wilson

market

And

damages
of

the

himself.

But

stock, goods, or
where

damages

Drew.

907

et seq. ;

And

where

Dowling
the

one

be

party, on

will be

the

suit

party, though

the

relief

the

the

of

nature

for, in nearly all

ground

(St." 723.)
which
made

by

way

the

The

same

" 722"729.)

IV.

At

rules

land

for the

compensation
damages, while

Tu.

416,

the

544.)

contract

application
would

not

Equity
of

the

is

damages

apply

Gray,

v.

" H.

of

him

remedy ought

will

other

merely in
value

or

Court

acts

on

to

be

to

agreements

mutual.

non-performance of
may

sometimes

in others

be

it cannot.

405.

Law, contracts

transfer
s.

of

Johns.

instance

in

complete

"

him.

to

enforced

damages

to

or

respecting

; Falcke

of this sort, the

cases

stock

will be

on

sought by

compensation

that

exact

an

the

at

respectingpersonal acts,

or

that

ground

like

(St.

decreed

the

value

same

afford

Betjeinann,2

v.

the

as, with

Butter, 2 Wh.

v.

the

on

generally

contract

not

complete compensation

entertain

the

of

the

720, 746

"

compens^at

E. 9

deliveryof

specificperformance

respectingchattels
of

the

of

could

; Cuddee

651

goods, are
to

and

717

29

ordinary

ordinarilybuy

may

Law

at

in

calculated

personal property,

compensation. (St."
i

ii.

for the

contract

for ; inasmuch

performance

of

or

value,

kind

same

Railway Co., L.

Law,

stock
of

England,

v.

be enforced

at

contracted

goods

of the

d-c.

will not

goods

or

damages, the purchaser


goods

Tit.

apprentice-

Railicdi/Co., L. E. 7 Ch.

performance

price
or

Varna

v.

equivalent,in point
stock

(Webb

Northampton,

v.

because

decreed.

Crampton

sale of stock
cases

be

not

4-i ;

562

of articles of

'

would

Beav.

193

PERFOEMANCE.

or

and

other

covenants

to

property, are

sell,convey,
considered
0

IV.

At

merely

u"-,

194

PEBFOBMANCE.

SPECIFIC

simply
'^^'^"^^-

as

covenants,

personal

and

and

as

not

executory,

afpeSS'Otherwise.
in

regard to

time

the

from

St.

(See

consequences.

of

heirs, and

land,

devisees,

the

after

of

31st

contract

his

can
personal representatives

order

41,

c,

the Land

Locke

the

see

(except
Act

King's
486)

his

(40

"

for the

purchaser's death, his


Locke

since

the

(1894)

the

558.)

notice

that

contract.

Shaw

the

of the

and

regard

purchaser

Foster,

Every payment

"

of

case

pay

the

to

the

Vict,

41

is liable for

purchase-money
94 ; Ee

the

to
had

of

5 H.

L.

the

the

convey

Kidd,

balance

estate

receiptof

agreed

{McCreight v. Foster, L.
v.

(40

to

as

personal

for, in

of the heir

receive

may

purchase-money,

purchaser, without

his

entitled

Act

by

406.

land

of

vendor

chaser
pur-

34), infra,

must

{Re Cockcroft,24 C. D.

them.

3 Ch.

is

King's

to the executors

repayment

paid by

num.

heir

84), the estate in the hands

c.

executors

his

and

purchase-money
estate, but

the

c.

and

vendor

(St. " 788, 789, 790)


representatives
the

Vict.

45

is altered

case

Vict.

41

in

land

provisions of

1, 2) ; and

the

as

devisee,

or

personal representativesbecome,

trustees

money,

far

so

1881, if

(44 "

wider

ss.

the

of

the

convey

the

now

heirs,

case

his heir

the

to

his

in

contract

Act, 1897,

Transfer
and

par.

and

4 ;

s.

the

effect to

give

to

land, the

December,

against

is enforceable

the

Equity,

as

and

purchaser

vendees, provided that

or

death

vendor's

the

for

trustees

or

claiming as

him, become,

under

subsequent purchaser

in

sale of

one

any

charge

But

the

for

property

luture

or

" 714, 790.)

contract

his

vendor, and

present

as

manner

any

the

to

attaching

personaland

and

contracts

executory

to

E. 5 Ch.

321.)

to
a

of

the
mere

assign the
604

; S. C.

407.

purchase-money

to

the

vendor

SPECIFIC

195

PERFORMANCE.

transfers,in Equity,to the purchaser,a corresponding


of

the

purchase-money

And

estate.

is

be

to

the

purchaser has paid


declinesto complete,and

hence, where

instalments,and

some

is absolved

vendor, the purchaser has


he

money

notice
the

of his

of the

from

to the

liability

default of the

the estate

on

for the

who

simply gives him

attempting to prevent

contract

{Rose

and

the

or

H.

10

Watson,

v.

payment
L.

C.

408.

In like manner,
is

into money,

land

directed

reputed as

invested

be

land

in

to be sold and
; and

money
has

Equity

in

in

real estate, and

of
qualities

devisable

such.

as

the direction be

directed

many

"'

the

of

this is the

case

"'

and

invested

land.

whether

by marriage articles,by settlement, or otherwise, and


the land

be

conveyed,

and

whether
to

be

paid
to

be

so

"

But

the

be

827

made

by

well

et seq. ;

acts

Court
has

vested

without
28

Beav.

the

in two
others

163.)

only

to

take

this

as

the

or

more

election

Beav.

662.)

conversion

is

he

make

may

clearly indicatinga

by

an

persons,

other.

covenanted

property in its

applicationto

(St. " 793, 1218.)


or

actually

Ashburner,

v.

benefit the

that effect

Equity.

of

or

Wright, 32

declarations

or

to

v.

be

money

; Fletcher

Dixie

And

state.

determination

790

elect

may

the

purpose,

whose

for

person

unconverted
as

the

paid. (St. "

Tu.

^\h.

to

for

trustees

to

actuallyconveyed,or only agreed


whether

But

one

{Holloway

where

it

elect

cannot
v.

nfoney

directed

assignment,

or

conveyance

directed

Land

particularis descendible

And

by will,by

turned

money

"^

and

the

then

against the vendor,

vendor

the

of

instalments.

672.)

to

lien

mortgage, without

completion
the

paid, as

so

mortgagee

every

of

has

"

paid by instalments, and

complete the purchase, owing

to

II.
"^

the

proportion

Tit.

liadcliffe,

409.
o

to be
m

196

PERFORMANCE.

SPECIFIC

Tit.
Cap.

of

general, Courts

In

II.

do

Equity

not

incline

the

testator

to

VIII.

left

intention

which

by

Specific
performance
decreed
between

upon

different character.

(St.

between

decreed

be

contract

decreed

been

have

would
will

parties,it

of

specificexecution

the

respectinglands
the

or

a.) 410.

Where

V.

or

clear act

some

unequivocallyfixed

has

he

as

is

there

definite and

throughout a

" 1214, 1214


v.

property

it,unless

intestate has

it

the

qualityof

the

change

between
all

parties

persons

claiming
under

of

(under the

Conveyancing

heir may

before

came

into

VI.
pliance
with
Noncom-

essential
non-

Equity

for

1881,

or
essence
particula|rs,

for

Pugli, 33 Beav.
"

41

Vict.

4),

purchaser
he

to be

purchaser

in

the

of

terms

the

or

otherwise, have

particulars which

in

of the

contract,

or

do

hands

through

not

been

not

pertain

if there

has

out

411,

either

agreement,

an

might

paid

personal representatives. (St. " 790.)


If

And,

34), infra,

the heir of the

of the

may

489.)
c.

is

specific

specific
performance,

personal estate

negligence
with

for

purchaser

s.

purchaser

general require the purchase-money

of his

death

contract

the

to

Act,

King's Act (40

Locke

481, 485, 486), where

of the

of agreement

lands

the

v.

pars.

in

in

against

{Hoddel

require the

estate.

convey

suit

performance.

to be

the

to

Purchaser's

money

the

on

enforceable

an

empowered
maintain

paid out of
the personal

where

who
subsisting,his personal representative,

is

sale

And

freeholds

of

vendor

controllingequities have

(St. " 788.)

intervened.

terms

privityof estate, representation,

other

title,unless

or

parties.

VI.

in

them

claiming under

the

complied

been

to

the

slight

slight mis-

description.
misdescriptionof
will

nevertheless

chargeablewith
if

compensation

have
the

been

the
be

the

property, specificperformance
decreed

in

favour

non-compliance

can

occasioned

misdescriptionof

be

made

by
the

the

for

an

or

of

the

misdescription,
injury that

non-compliance

property.

party

or

may
for

(See St. " 747,

198

Tit.

-II.

VII.

complete title
of

is

vendor

the

Where

making

of

incapable

Vlir.

Cap.
VII.

PERFORMANCE.

SPECIFIC

property sold,

the

all

to

there

or

"Want

title,or

substantial

misdescrip-

tion,
or

want

been

has

the

particulars,or
with

complied

misdescriptionin important

substantial

have

terms

reasonably

vendor, Courts

part of the

the

on

been

not

of

of reasonable

compliance
with

ment.
agree-

to

the

proceed with
the

have

of the

out

This

right

if the

Hooper

779

32 C. D.

White,

the

quantity stated
is

course

where

where

us

versa,

{Hart
On

by

V.

the

of

is

there

vendor

case

P.

D.

; In

683

the land

J.

"

Tern;

re

is less than

large proportion, the

very

purchaser
Works

the

rescind

to

E.

Wickens, L.

v.

substantial

other

misdescription,
freehold,

as

Beyfits,39 C.

the

hand, where

where

will enforce

purchaser

there

is

an

1 Be
Sutcliffe,

v.

1 E.

the

"

M.

128.) But

D.

110.)

misdescriptionis
the

only

; and

this

error

as

G.

"

such

not

at the

contract

vendor, compelling him

the

vice

or

compel specificperformance.

Sivaine, 7 C. D. 42; Re

{Shackh'ton
Hanson,

Eq.

18

is described

cannot

compensation to
the

Iron

substantial, the Court


suit

Jones, 3 D. F. " J.

v.

where

the

copyhold

the

by

excluded

be

415.

101.)

But

abatement

specificperformance

Hughes

14) ; and

{Aheraman

contract.

4Ch.

allow

to

as

of nearly half,
deficiency

enforce

not

and

far

as

compensation.

or

may

Smart, L. E

v.

be entitled

specificperformance, though

seeks

(St. "

an

Cordingley v. Cheesehnrough,

307, 315;
;

for

even

would

against him

379

abatement

an

purchaser

Court

the

to

purchase-money

condition,

express

to have

it

abandon

or

he. will

case

perform it,and

can

made

former

election

an

performed
specifically

contract

vendor

the

purchaser

purchase, pro. tanto,

in the

and

altogether;
to

the

generally allow

will

Equity

to

make

is

generally

to

quantity.

S. 609;

Scott

v.

partialperform-

SPECIFIC

will

ance

fraud

wilful

or

D.

M.

it G.

be

cannot

298),

be

not

339, 344),

into

title.

the

And

the

simple,and

fee

able to do

he
inability,

the

must

purchaser

the

purchase-money.

M'Kenzie
VIII.

Where

part of

submits

to

{Barker

has

man

but

agreement,

an

performing

the

vendor's
Ch.

of

owner

not

aware

of his

he can,

if the

abatement

an

C. D.

of
464

416.

performed
is rendered

remainder, by

valuable

incapable of

subsequent accident,

'-

of

it,but he is

Cox,

v.

E.

the

as

Hesketh, 7 C. D. 675.)

v.

the

not

much

as

convey

purchaser desires it,and

time

be

was

it.

Ha.

the

of

to sell

Tit.

compensation

at

professes to

undertakes

been

Macauley, "^

v.

Wilkinson, L.

v.

person

has

Rownthwaite,

v.

contract, knew

and

so.

the

purchaser,

{Castle

534.)

where

nor

{Brooke

the

if

there

misrepresentation{Price

where

entering
limited

compelled where

estimated

nor

199

PERFORMANCE.

vill.

Aoci-

fncapicit
of

peiforming

the remainder

Without

any

enforce

the

default

as

otherwise.

not

IX.

In

Will be decreed, not

X.

would

change
Of

be

will not

of

favour

just),in
he

J-

he

has

according
be

to the

to contract, such

performed,

but

agreement

an

J!

j.i.

letter

of

J.1

the

in favour

ought to

be mutual.

entered

into

infants

(1892)

XI.

Nor

Q.

B.

will Courts

Perform^
sub modo.

by partiesx.

and
Nor

lunatics,
will

it be

Agreement

where

the^

were
p^i'ties

incompetent

(St. " 787, 751, note

509.)

IX.
ance

418.

parties;because the remedy

of such

Vansittart,4 K. " J. 62

agree-

tract,
con-

"^

enforced

an

according

(St. " 775.)

as

of

417.

against them.

enforced

in

unconscientious,but

agreement

an

will

is not

case

i.1

J.

Equity

(allowingsuch

performance^ of

of circumstances.

course,

incompetent

his

part which

eases,

"HIT

to the

part, Courts

(St. " 772, 796, 797.)

some

if that

be

may

to the

as

quo

in

agreement

compensation
statu

his

on

; Vansittart

Imj^erialLoan

Co.

v.

to contract.

v.

Stone,

419.
of

Equity enforce

contract,

xi.

where

Nor
the

200

SPECIFIC

II.

Tit.
Cap.

it is

although

PERFORMANCE.

written, if the terms

definite in themselves
terms

are

certain

and

for, in such

this, if any

besides

they might

case,

be

would

in

let

if

Taylor

be

can

collected

all the

with

decreed,

terms, unless
to the

that

is fulfilled there

Miller,

A.

C. 311.
XII.

ing
Enforc-

voluntary

it

1124

But

party himself,
any

contract

being

or
or

donations

by

the

on

transaction

child; that
as

is

under

{Rossiter

or

obligation

an

consideration.

at

Law,

(not

trusts

defective

though

meritorious

enforce
that

them
which

although

or

not

are

even

provision for

not

vivos

which

consideration,

sought beyond
them

or

conveyances,

of

him,

executory

agreement,

case

the

against

imperfect assignments

or

on

Sp.

(2

claiming under

property, or

founded

seq.) 420.

et

enforce, either

is. Equity will

something

recovered

be
in the

as

285

enforce

any

or

condition

Home-Payne,

v.

Cas.

causa),

other

be prepared

contract.

imperfect gifts inter

valuable

that

same

subject

should

until

will
formal

be

any

imperfect settlements
founded

the

the

volunteers

or

terms

contract

any

covenant

that

will

not

mortis

of debts
raised

will

they

But

definite

contract

Lead.

imposed by will, without


255.)

G. 328.)

"
and

Hussey

Equity

of

(Sf.

agreed that

was

so

See Brett's

Courts

M.

concluded

no

C.

to

of Frauds.

of such

formal

upon,

is

A.

intended

acceptance of the contract

the

agreed

V.

of such

prepared embodying

be

condition
and

D.

must

correspondence between

although

even

should

contract

mischiefs

certain

parties,specific
performance
be

admission

Statute

the

from

supplied,it

the

Partington,7

v.

contract

complete

and

intend; and

not

be

to

are

guarded against by
767

partiesdid

terms

by parol evidence

evidence

"

the

preciselywhat

decree

be

deeds.

and

not

definite.

XII.

certain

not

are

VIII.

sideration,
con-

wife

or

so

far

may

it

be

will, if

PERFORMANCE.

SPECIFIC

give effect

necessary,
them.

by

jnent,
of

or

the

be

But

if

to

is

enforce

it

that

so

full effect to

give

throughout against

creating it, and

his

far

complete, as

property will admit,


to

legal obligation created

any

the

as

Jefferys,Cr.
equitable
like

the

title,Equity will

the

party making

in

direction

simply

to

not

for

over

to

And

if

another
the

Jones
"

third

person,

in

Equity

enforce

re

his

favour, and

has

given a

valuable

be

as
a

volunteer

as

where

And

such

by

upon

v.

the

of the

to

each

person,
of

person

the
;

the

is

executor,

; Lamb

v.

Delbridge,L.

C. 22

Orton,
E.

18

421.

relation, may

by
who

though

in

another

it

obtained

plainlywith
such

view
third

contracting parties,

Gale

who

pay

person

(Brett's L.

party

consideration

(2 Sp. 286
a

Equity.

which

stipulationmade

third

regards

trust

Estate, 17 C. D. 415.)

for which

it upon

executor

particularlyif

benefitingsuch

person,

to

; Richards

Breton's

11 ; In

new

voluntary

an

Lock, L. E. 1 Ch. 25

Eq.

by letter,though

assignment.

125

an

effectinga voluntary

directs

share

an

v.

Sm.

of

to

in favour

of trust

letter is acted

as

in

v.

benefit,or

own

enforceable

person

the

operate

1 Drew.

Jeffenjs

to hold

consideration,

valuable

et seq. ;

is

effectual mode

entitled,and
it will

for his

person

transmutation

or

person,

declaration

it be

subject be

legal

existingtrustee

person,

an

transfer.

third

third

sign

to

for

the

to

donee, is

144)

835;

if the

of

incapable

trust

third

may

Tu.

"

Thus,

141.)

interest

assignment

of

Wh.

or

b., 973

a.

legal interest,a voluntary assignment

trustee

for

P.

"

to

although
representatives,

Ellison,

V.

nature

remains

act

no

merely voluntary. (St." 433, 787, 793,


Ellison

Tit.

transfer, assignment, trust, settle- "^

conveyance

done

201

v.

has

Gale, 6 Ch. D.
contributed

II.

202

Tit,
Cap.

PERFORMANCE.

SPECIFIC

II.

consideration

valuable

to

the

of

part

settled
of

contract, that

that

as

the

issue

the

it would

enforce

altered

by

or

grantee

with

the

the

it,unless

it would

of

the

other, the stranger

his condition

in life has

been

Sp. 280, 281.) 422.

obligee,ceases

to

be

voluntary where,

or

obligor,it

or

the

and

faith

marriage

executed.

has

contract

{Payne

become

being substantially performed

be morallv

forms

v.

in

interfere, (1.) Where,

not

the

regards

as

423.

118.)
will

which

of

settlement

Equity
cases,

grantor

the

on

1 Gif.

ordinary
formance^'^

effect.

take

voluntary

consideration

XIII.

to

is

is contracted

No

near

obligationwhich

privity of

Mortimer,

some

sO'

that, if the party

appear

stipulation.(See

the

grant

the

where

as

one

limitation

failing to

releases
exacting the stipulation
cannot

to

go

intended

the

marriage

But

(2 Sp. 281.)

of

event

be

belongingto

other, shall

the

the

of

property shall

certain

property, whether

parties or

the

relative,in the

XIII.

exacted,

has

settlement

VIII.

incapable
part of the

the

on

"
,

wronger"
ineqm

e.

j^^^^^

^^
L.

E.

if there

or

whether
plaintiff,

executing
Courts

his

has

party

himself

ready,desirous, prompt,

C. D.

by

the

specificperformance

Stogden, (1899)

and

title of the whole


not

remediable

the part of

on

in

or

Ch.

unless
and

there is
or

the

before

Court

has

principalpart
the

decree.

to

of

shown

(Fry,502

eager.

substantial

in

either

applying

he

5 ; Mills

guilty

contract

v.

Haywood,

(3.) If specificperformance is

202.),

vendor,

been

call upon

cannot

McLean,

v.

purchaser,

contract

violated

of the

laches

or

for

V.

been

dec. Co.

been

vendor

part of the

; for

has

essence

Equity
Levy

or

has
(2.) If the plaintiff

658.)

the
negligence affecting

(St. " 771)

the

(St. " 736),

{Telegraph, Despatch,

8 Ch.

of any

the

relief

asking

person

sought

defect in the

of the

property,

(4.) If, there

is

SPECIFIC

substantial

203

PEEFOKMANCE.

misrepresentation

misdescription of the

or

Tit.. II.
Cap. 'V^III.
'"

estate

property, in

or

chaser, and

in

inquiry;

if it appears

in

was,

which
"ie

or

the

his evidence

L.

E.

Ch.

mistake, and

his

complete

lease to another

9 Ch.

settlingthe

claimants,

v.

v.

title

if he

brewer
be

finds that

term, of which

itself may

for the

Hare, 7, 10

10

Miillingsv. Trinder,

from

fact that

one

of

Sykes

L. E.

Sheard,

v.

10

its

Eq.

449

if the Court

good, it

is
be

enforcing specificperformance,by

the

the

conveyancing counsel

the

Beioley v. Carter,

L.

7 ; Bell

(6.) If the character

v.

Buckmaster, L. E.
4 Ch.

E.
v.

of the

below, considered

Court

(Hamilton

Ch.

no

founded.

be well

But

title is

has

will not

of the

judge

Court

purchaser, if

to

not

have

against adverse

as

the

Locke, 18 C. D. 381.)

deterred

{Caballerov. Henty, L. E.

out

turn

clearlyof opinion that

doubtful.

108.)

beer, he cannot

for

question

Waddingham,

J. " S. 6

Palmer

E.

tenant, and

purchase,

indemnifying

of

or

opinion should

brewer

the

opinion of

of

means

2 D.

of

C.

A.

public-house state

Court, although the Court

favourable

(Pyrke

of

Hancock,

v.

15

v.

(5.) If the titleis doubtful, in the opinion

447.)

the

own

Denny

enforce

not

{Dimmock

Kennedy,

unexpired.

are

years

778

sale of his

it is under
some

"

occupation

to

L.

sale

of

compelled

or

make

v.

it for the

buy

to

agrees

St.

1 ; Steu-art

it is in the

that

21

conditions

the

Where

2 Ch.

in

matter

disproved,the Court will

is not

Hallett, L. E.

that there

mistake, and

did

"

put upon

specificperformance against him.

the

of

property,

pur-

fide make

he

that
positively

swears

the

bond

might

not

was

the evidence

upon

descriptionof

person

he

to which

regard

to the

unknown

matter

230

Holtby,

and

L.

condition

Radford
E.

15

of the

Court,

the

Eq.
v.

title
323

Willis,

Eq. 178.)
property

'-

"

204

Tit. II.
Cap.
VIII.

SPECIFIC

have

been

PEEFORMANCE.

the

longer applicable to

no

fraud
what

intended

he

to the

; or

estate

if there

great mistake

was

described

different

as

freehold, when

{Ayles V. Cox,

16

Beav.

under

of Parliament

mineral

444)
or

Act

an

23)

rights(Upperton
if it was

or

copyhold

as

agreement,

there has

or

(St. " 770.)

been

(10.) If the

6 Ch.

fraud

of any

for sale to the


and

reserve,

both

bid

1 Ch.

10

kind

highest bidder

the auctioneer

against each
; 30

"

is better informed

than

the

the

givinghim
V.

purchaser

more

than

bidding,and
held

to

be

more
no

by
Ch.

D.
is

51.)

he

for the vendor

Bell, L. E.

v.

where

; or

3 D.

at

P.

sale

"

by

had
than

defence

bid

of

into

purchaser,

the

property

agreement,

an

the vendor.

(11.) If, after

718.)

auction

to the

vendor,

reserved

an

action

day

advice.
the

fact

induced

by

to

the

purchase
fictitious

price,has
for

(Uniuii Bankv.
the

But

was

previouslyto

the
to

J.

position,
im-

put up

was

opportunityof inquiryor

an

Morgan,

agent

to the value

as

in

mentioning any

(Mortimer

48)

c.

fictitious bidding,unknown

for

an

vendor, hurries the vendor

(Walters
that

and

in the

influence,

property

without

other

Vict.

31

who

without

where

; as

Beav.

by parol,

is founded

contract

undue
surprise,
misrepresentation,
or

26

of it

variation

436,

leasehold,

omitted

been

his

lord

(Ayles v. Cox,
have

terms

copyhold

the

freehold when

as

it

copyhold enfranchised

Nicholson, L. E.

v.

if

as

in fact it is

; or

freehold

(9.) If material

23).

tenure

as

(8.) If

62.)

reserving to

described
when

was

Cecil, 30 Beav.

v.

is of

bought

that, by

show

can

things.

is different from

price. (Webster

the

of

are

thing bought

mistake, the

or

contract

existing state

defendant

(7.) If the

(St. " 750.)

of the

that the terms

altered

so

been

specificperformance
Munster,

fixed for

37

ance
perform-

past, specificperformance is sought by the

206

PEKFORMANCE.

SPECIFIC

Tit.

II.

And

where

there
should

performance

the Court
else than

is

that

sufficient

be

may

his

against a

chaser,
pur-

it,though something
motive

actual

(Denny

v.

refuse

to

for

resisting
L.

Hancock,

E.

1.) 425.

Ch.

The

will

Court

of

performance

not

agreement

an

effect.

(Powell

Notwithstanding
before

the

fulfilment

of the

of

of

performance
(Lamare

the

taken

have

may

6 H.

to
L.

legal

possession
opposite

set

the

take

up

to

non-

specific

the

property.

427.

414.)
will

Equity

manner,

one

of the

defence

agreement
L. E.

like

In

as

that

its clear

promises

promises

Dixon,

v.

XIV.

such

specific

Eq. 85.) 426.

14

works, he

the

ground

mistaken

party may

party to do necessary
fulfilment

the

Sinith, L. E.

v.

decree

on

contractingpartieshas

of the

Nor

enforced

will not enforce

specificperformance.

XIV.

be

not

ground why specific

not

enforce

will

Equity
enforce assign-

assignments, Contracts,

against public policy.


iTacts,'or"'
covenants

officer in the

^j^

j_
in

policy :

as

the

of,

case

Assi

ments

of the

other

"^

P^^'

remuneration

And
or

navy, j

are

hence,
other

or

officer
"^

'

assign his

cannot

government,
,,

428.
army

against public

which

covenants

or

future
t

connected

-,

with

accruing
,

the

right

n-

by

of

the

future

to

government

services

from

him

officers of
.

the
""*"

govern-

because

it

interest

in

of

the

State

being

that

reduced

which

resources

of

efficiency.(See

St.

But

assign

for

man

past services

{2 Sp. 867.)

by

may

the

Hay,

And

late East
3

" 769,

and
an

honour,

its servants

should

intended

be

to

in

place them

respectability,
comfort,
1040

1040

c"

f, and

pension given

Company
it has

him
be

may

assignm.entof
And

dignity,and

poverty by anticipating

prize money

India

Gif. 467.)

the

to

were

suitable condition

to

contrary

IS

of

danger
these

notes.)

entirely
assigned.

pension granted

is valid.

been

and

held

(Heald
that

v.

the

SPECIFIC

pension payable

PEBFOBMANCE.

to

former

207

officer of the East

India

Tit.
Cap.

Company

out

Transfer

(Careiv

of

Act

the

(21 "

of

revenues

'22 Vict.

since

be

106) may

c.

Cooper, 4 Gif. 619.)

v.

India

the

assigned.

429.

2. On

principlesof public policy,Equity will not


uphold assignmentswhich involve champerty, or maintenance,

buying

or

of

pretended titles.

(St. S 1049
V

De

Hoghton

L.

Money,

v.

E.

Ch.

'or

Reynell

And

D.

M.

G.

"

partitio) is properly
defendant

in

interest
to

in

divide

v.

mainteuauce,
buying of
pretended

between

in

no

either

Common

the

And

transfer
the

of any

claims, have
remainder

Exceptions

are

tending

engine

of

one

or

of

or

the

keep

to

oppression.

1048

And
Law

however,

Courts

rents

and

the

sale.

to

maintenance,

of

these

upon

the
in

he
of the

or

Sp. 869;

a;

the

whom

before

next

year

Eq. 432.)

and

at

or

prohibits the

9,

c.

thereof,

principlesof

against champerty

both

same,

made,

which

prosecute

possession of the

note, and

all the

to

by

(St. " 1048, and

enforce

suit

title to hereditaments, unless

for

species,is

those

reversion

Woods, L. E.

pervert the remedial

to

an

ancestors,
in

expense.

punishable

VIII.

profitsthereof,

V.

is

into

rightor

been

or

otherwise

or

Hen.

his

or

own

is

by statute, as

32

other

by maintaining or assisting

one,

Law

stat.

his

at

contention, and

the

seller

no

property

of the

intermeddling in

of these
and

strife and
of

has

other

or

champerty

money

Each

Law

process

who

consideration
suit

which

of

belongs to

it.

or
plaintiff

person

land

the

the

on

party with

defend

alive

them

officious

an

way

another

they prevail,in

Maintenance,

properly

and

{campi

subject in dispute (campum partire),

carrying

person

bargain'between

cause,

the

for, if

sued

Champerty

660.)

Hilton

Equity
points.

general
the

case

those

chlmpCTty,
;

169

2.

*"^'''

Sprye,

it.
VIII.

rule
of

208

SPECIFIC

II.

Tit.

Cap.

father

and

naked
to

heir-apparent,
rr

an

3.

assignof

heiress, or

an

(St. " 1049


the

Upon

rights

litigate.

encouragement
taken

as

of

suit ; such

as

; and

such

acquiring
the

upon

Court

person

interest

which

to,

an

contract

for

the

subjectof

purchaser under
in Equity

permit

the

purpose,

contract,

so

the

the

164.)

the

whole

does

he

not

support of the

mere

Hen.

If such

VIII.

an

for his

9, above

c.

disputed

may

interest is sold

originalcontract,

he

be

the

by

the

becomes

sub-purchaser,and
to

into

use

his

name

benefit of the
any

covenants

sub-purchaseris obliged

originalpurchaser

the

security,or

or

estate

entering

of

2 Ch.

of

of real

such

call

cannot

E.

under

purchase

of

standing
acquired. Thus, notwith-

32

sub-purchaser

such

L.

for

purpose

purchaser

equitable interest

trustee

without

the

assignment

proceedingsfor obtainingthe
And

for

litigation,
provided

has

sale.

marketable

agreement

an

Money,

an

statute

referred

the

beyond

he

the

into

v.

in

is in

advance

any

that

Sp.

Eq. 260.)

is not

veyance
con-

; 2

specificperformance

take

may

property, which
make

for

another

of

interest

fraud

right,

is,

of

note

(De Hoghton

agreement.

g, and

Boyle, L. E.

entered

the

medium

set aside

v.

of

under-

enforce

the

rightto

if it appears

been

has

purchase

But

Hill

any
^

when

not

through

(St. " 1040

right to complain

commodity

will

nature, is incapable of

naked

mere

See

868, 869, 872.


The

its very

fraud.

for

ni

that
rightto litigate,

benefit except

conferring any
a

naked

giving

not

"

or

430.

litigation,especially

from

servant,

Sp. 870, 871.)

j-

mere

right which,

and

master

speculation,Equity

assignment
a

to

principleof
"

t,

of

; 2

Same

mere
j

the

of

or

'

of

the like.
3. Nor

of

or

son,

VIII.

husband

ments

PERFORMANCE.

from

all the

to

acts

in

must

legal

contract.

for

the

indemnify
which

he

SPECIFIC

do

must

for the

309

PERFORMANCE.

sub-purchaser's benefit.

And

Ti'i- U-

so,

Cap.
a

legatee may

assign his

assign

868

Sp. 863,

'2

suit to

"

"

G.

Beav.
in

In these

384.)

the

it, yet the


without

or

require continued

parties may

further

but

what

It

granted

third

be

always

other

the

transfer

of

to maintain

the

it

so

be

granted

the

Stat. 8

851,

855)

policiesof
their

in
s.

againsthim
such

names

or

106
in

life
in

multiplying

the
the

on

with

in

case

assurance

consequence

some

implied

and

except

interest,

an

might
of

consequence

1039

; 2

of

to

assignee

estate, which

(St."
the

and

assented

assent

Vict.

except

that

general rule,

enable

to

as

"

marine

own

of

debtor

assigned at Law,

and

the

assignment

to be the

in real

c.

of

thought

was

and
9

be

can

case

an

coupled
possibilities

contingent interests

and

the

means

where

resulted from

of

case

action,

4.

no

Law, until the Judicature

at

direct action

promise which

in

that

negotiableinstruments

debt,

case

assignor,

Law

whom

by
the

securities,or

few

in

of

case

the

x\ct,1873, this stillcontinued

except in the

in

oversettingan

in

except

; for

And

from

thing

be

suits.

and

contests

would

rule

different

interest

litigation
; and

Common

of the

made

30

431.

and

whom

Sovereign,to

actual

interest in the

result

persons,

Guarantee

Jackson,

v.

matter

no

J.

"

could

an

1054

"

possiblyadjust the

possibility,right,title, or
to

1050

enforce

party.

rule

the

was

is

may

to
litigation

may

in the other

interest

have

proceedings ; whereas,

mentioned, there

none

4.

is

there

cases

assignor,independently of

althoughit may

first

Tyson

may

he

United

Mi/erti v.
112

creditor

(St. "

it.

recover

VIII.

,.

legacy,and

debt, although

871

Compani/, 7 D. M.

his

interest in

commenced

Sp. 850,

assignees of

who
of

might
the

sue

stats.
P

Common

against
assignment of
ov
possibilities
things in

210

PERFORMANCE.

SPECIFIC

Tit.

II.

"

30

Vict.

31

144, and

c.

31

"

assignment

of

'"

'"

in the

of

case

an

formed

which

rule, it

an

originalcreditor

the

to

in

the

sue

is not
in

Equity.

late Statute

the

before

coupled with
possibility
at

charge, dispose of,

Equity

And

and

trusts

contingent gains,such
to be

procured,and

their

ancestor's

assignment

in

Law,

property

into

assignee

to

enforce

well

as

to

of the

in

he

the

the

or

the

has

and

amounting

in

contracts

vested

and

of
sideration,
con-

cargo

heirs

For

to

to

such

permit

his

in

the

assignorat
reduce

to

or

the

entitlingthe

contract
own

and

name,

directlyagainst

the

not, maki^ig him,

or

c,

and

is considered

necessary,

1044,

party

to the

1055,

1057.)

contingentinterests,possibilities

expectancies,are
to

assented

of

or

in action.

debt,

as

so

Courts

of the

debt

assignor,if

assignments

settle,

personal estate,

or

name

Equity

of

to

valuable

agreement

an

possession;
sue

good

property

And

action

(See St. " 1040, 1040

such

becomes

chose

recover

payment

action.
And

in

to

debtor, whether
as

of

use

was

expectancies of

mere

hereafter

be earned

freightto
choses

to make

order

in real

estate, and
a

be

the

upon

of

of trusts,
possibilities

even

amounting

as

assignee

as

as

contingent

to

assignments,for

effect to

gave

devise

covenant

contingentinterests, whether

Equity

Wills,

of

acquired. (2 Sp. 254.)


of

an

it is transferred

attorney than

an

acquired,will operate in Equity


afterwards

the

of

name

whom

affect property

or

debt

personal estate,

or

(2 Sp. 854.)

Law.

other

above-mentioned

interest,or of

an

in real

interest, whether

And

432.

assignee. (St. " 1056.)


Even

adopted

as

86.

c.

or

the

to

person

being regarded rather


an

bond

exception to

necessary

was

Vict.

32

to
when

regarded

assign, when
the

in

Equity

the

interest

as

interest
does

so

SPECIFIC

become

vested, the claim

not ^ mdeea

trust, but

as

assimee
*

is

Cap.

right under

Tit.

enforced,
contract.

the

Judicature

Act, 1873

(36

37 Vict.

"

66), Assignment

c.

debts
s.

25, (6) " Any absolute

the hand
of

of the

to the

been

assigneeif
the

transfer
the

from

of such

for the
the

dischargefor
"

date

Q.

12

West,

(1892)

of

511

Ch.

271.)

that

or

chose

think

fit,to

claim

thereto

he

High

may,

Court

in

call
to

if he
of

be
of the

such

give a good

Justice

Co.

liable

be

several

under

the
and

Old
v.

is

in

have

shall

action

disputed by

under

him,

claims
conflicting

fit,pay

the

always, that

person

claiming

the

quent
subse-

Bradford

v.

or

to such

entitled, if he

making

persons

interplead concerning
think

of the

Waggon

in

shall

other

but
assignor,

assignment

action, he
upon

in action

equitiesarisingup

other

chose

or

the

and

pass

given at

"Provided

or

right of

concurrence

Western

assignor or any one


other
opposing or
any

debt

or

D.

debt

claim

deemed

the

to

(Walker

B.

such

notice

had

notice.

debtor, truster,

respect of

the

legaland

power

notice may

subjectto

of the

date

Bank,

if the

be

whom

chose

or

all

the

after the death

even

assignment will
the

the

without

such

and

assignor;

debt

such

and

same

given

passed),to

not

notice, and

same,

been

be

priorityover

had

this Act

action,

which
all equities

to
(subject

entitled to

way

in

from

actio7i,shall be, and

legalright to

date

remedies

the

have

ehoses
'"^

by

entitled to receive, or

been
in

be

legalchose

writingshall

effectual in law

have

would

have

chose

or

been

to have

to

other

or

debtor, trustee, or other person


debt

the

any debt

notice in

express

assignorwould
such

assignment,by writingunder

assignor(not purportingto

chargeonly),of

of which

II.
Vm.

b.) 433.

(St." 1040

By

of the

as

211

PEKFOEMANCK.

same

in

the

same,

into

the

conformity
p2

^""'

and
in

of

212

Tit.
Cap.

II.

^ith

provisions of

the

the

the

for

Acts

relief of

VIII.
.."..

434.

trustees."
To

What
amounts

PERFORMANCE.

SPECIFIC

to

assignment.

the

of
be

But

of

what

amounts

that,

as

to

to

control

of
in

or

place

of the

another

So

that

coming

to the

And

creditor

will amount

to

money

made

in consequence

Hammond,

E.

M.

"

V.

Robson,

Q.

B.

D.

602

Q.
an

B.

D.

of

141

But

the
it

Farrell, 1 D.
569.)

v.

his

sucb

funds,

so

again

J. 208

D.

v.

Diplock
Wellington,
39

; Buck

Harding,' 17

fund

is handed

ordered
to the

; Brice

mandate

of

part thereof, if

v.

or

money

over

mere

to

debtor;

or

Scott, 3 Ha.

person

"

specific

directing

Harding

if such

to pay

such

money

; Watson

686;

assignorby

and

equitable

an

debtor

to

him,

direct agreement.

; Malcolm

And

as

sufficient

" Gif

Q. B. D.

442.)

V.

or

of

equitableassignment

will be made

{Jones

to

2 Sm.

to the

over

funds,

of

out

money
to

debtor

of such

irrevocable

such

V.

owing

creditor out

favour

Baylis, 31 Beav.

given by

belonging

an

or

v.

between

order

of the

equitable assignment.

an

Chowne

out

it in

debtor, will operate

person

the

to pay

person

907

antecedent

an

appropriate
to

an

funds

holding

or

stated

for valuable

fund

or

^ebt shall be paid

assignment.

and

agreement

an

upon

action

in

amounts

creditor,that the
fund

may

(Brice

be

and

of

consideration

owner,

person,

351.)

hand

respect to

it may

agreement,

an

chose

Sp. 855, 860, 861,

(2

with

assignment,

an

due.

And

569.)

the

general rule, anything written, said, or

consideration,

he

D.

be

must

assignment

become

yet

not

moneys

done, in pursuance

debt,

under

absolute

an

Bannister, 3 Q. B.

V.

1^111

-i^-

assignment

an

assignment by writing

assignor.

made

section

"

absolute

an

that

within

come

an

v.

to pay,

assignee.
Bannister,

will not amount

for such
equitableassignment or appropriation,

214

J^"-

VEEFORMANCE.

SPECIFIC

Yfj

in

ownership remaining
the

of the

assignment

debtor

or

his

of

debt

such

instance, is for

many

complete right in

of the

necessityfor

called

the

the

it

V.

away

D.

C.

insurance
31 Vict.

"
not

of

fund, while

Russell's

is

it remains

v.

the

prescribed by

given

is

deposited with
to

to the

give notice

to

the

mortgagee without
postponed

to

another

and

If
to

person

the

who

has

of

policy

secure

an

priorityover
first did not

second

mortgagee

the

the

re

the

For

company.

possession

it is

that

party having

him, he will have

company,

in the

possession. {In

equitablemortgagee, though

give notice

30

It is

supra).

the

to

in his

man,
New-

policy of

be

insurance

jDrincipleis

given

669

notice may

of

should

be
to

D.

B.

The

Newman,

the

other

will

{Newman

notice

if

And

moneys

Q.

assignment

notice

the

notice

equitable mortgage

did

own

against

as

v.

equity

1).

Policy Trusts. L. E. 15 Eq. 26.)

of insurance

second

the

assured

the

if the

sufficient
the

that

necessary

lifetime

of

{Newman

144

c.

of his

sufficient

; but

gives

the debt to any

out

be the formal

must

(3 Euss.

(1893) A. C. 369.)

674)

to

is sometimes

cases

Bannister,

v.

debt,

of

given notice, he

has

{Brice

office itself,notice

pays

again

Duncombe,

28

such

in

Hall

who

Green,

tantamount

doctrine

this

and

v.

informal, if otherwise

be

other

of

case

the

to

perfects the title and

notice

over

assignee.

Ward

given

{Stephens v.

purposes

debtor

assignee

liable to pay
the

rem

rule in Vearle

after notice the


than

be

notice,in the

notice

the

possession,for
a

notice

Hence

should

the debt

to receive

(1895) 2 Ch. 148), and


for

voluntary assignments,

legal personal representative or

legalhand

the

of

case

is not

in fact

who

person

against the assignorhimself.

as

even

in

or,

owner,

one

deeds

deeds.

equitable
must

be

{Spencer

SPECIFIC

Clarke, 9

V.

C.

assignments

D.

of

fund

137,

who

has

givesformal

priorityover

general,notice

But

143.)

to

general, in

other

than

notice

to

who

does

him

of several

one

in

equit-

the

obligorsor

holder
In

not.

is

trustees

at least,during the lifetime of that trusteesufficient,

(Lewin, 864;
3 Ch.

(1891)
And

notice

the

Brett's

and

assignoris

the

trustees

notice

assignment

an

obtain

assignee should
of
V.

stop order

2 Ch.

to the

In

449.)

suit not

V.

1 D.

R.

Ch.

the

such

D.

notices

"
on

in

872

In

be

J. 163
the

which

case

to

self.
him;

of

case

Court, the
effect
Assoc.

Life

Postle, (1894)
of costs

should

be

of

given

payable. {Day

of

case

of

one

635

to the

(As

be

he

care

the

in

Mackv.

should

given to

In

; Mutual

In the

the

.Where

4 Drew.

fund

they would

for
sufficient,

assignment

an

406

assignment to

an

give

assignment.

597.)

3.)

is

paid,notice

assignee

notice must

Boulton,

to be

J. 144.)

"

freight,the
of

of

case

to whom

trustees

charterers

the

s.

674.)

460, 470;

ordered

yet

Day,

of

L.

D.

Langley, 32 C.

D.

assigneeis

stop order.

Lewin,

see

C.

Savage,

v.

C. D.

14

notice

has

of the

interest

an

(Saffron

protectiontake

own

; Broivne

of

the
he

incumbrances

28

the

trustees

his

Newman,

v.

is sufficient if

notices.

1882,

which

for

course,

(Lewin, 865
Newman

Act,

of the

one

the

apprise future

Bouverie,

v.

(1893) A. C. 369.)

Rayner,

v.

sufficient,but where

will, of

he

receive

to

agent

Conveyancing

is not

Low

Duncombe,

v.

Building Society

has

215;

actually,either expressly or impliedly,

as

see

the

C.

solicitor of the trustees

to the

authorized
Walden

Ward

82;

solicitor be

L.

assignment

notice

(Brown

the

Tanner,

v.

of shares

to

in

pany,
com-

the company.

(ExjMrtc

to

the effect of

and

rights of

Tit. II.
Cap.
VIII.
'-

equitableinterests

able estates, he
of the

215

PERFORMANCE.

see,

the

as

company,

Societr

"

'-

216

Tit.

PERFORMANCE.

SPECinC

II.

v.

Bank

Whinney,

v.

2 Ch.

(1896)
But

743

sufficient.

by parol it

or

sufficient to

the

with

dealing

regulate

his

L.

R.

Ch.

14

C. D.

to the

has

of

Smnerset
8 Ch.

And

through

here

that

644.)
"

debt""*

he

would

debt

valuable

notice
may

of

the

debt

far at least
that

Banks,

v.

Rayner,

proceeds

be

not

to arise

gives
the

notice
money

subsequent

that

in

Cave,

15

general

where

conclusive

communicate

v.

393

Cox, L. E.

v.

imputed

raise

not

is

Plunkett, 1 Johns.

v.

added

C.

legally assignable

not

the

the

creditor

consideration, and

assignment,

thereafter

of the

may

the
sumption
pre-

the

fact

D.

639,

436.

equitably assigned by
for

be

of

it
priority,

; Addison

to

as

principal. {Care

When

Paymeatsto

634

it may

such

are

he

Webster, 31 Beav.

v.

agent will

an

of the

nature

v.

his

of the

{Buller

Webster

Cox, 33 Beav.

v.

his

first.

also

circumstances

to

to maintain

distinct

that

so

Walden

Saffron

555.)

mind

of the

agent's hands, though

notice

; see

76.)

notice

the

officer's commission

an

the

Ch.

agent of the regiment before

reached

441

E.

to

property

prior assignee

sale

army

H.

bring

is

company,

accordingly. {Lloyd

In order

assigneegave
"

L.

of

course

be clear and

must

trust

488, 490

if

the

the

conduct

406.)

sufficient
from

the

of

Bank,

parte Agra

Co.,

Bolt, 9 H. L. C. 514.)

v.

intelligentapprehension

an

Land

Hampshire

business

be

(Lewin, 870),
trustee

the

Colonial

directors, in the

the

to

of

(Ex

notice

Re

Hopkinson

transaction

If the

ib. 426

notice

verbal

the

Co., 11 A. C. 20

Tramivays Union

Generale

must
as

make
be

to

the

may

is

the

be

has
which

payments

to

been

purchaser

debtor

purchaser

considered

the debtor

purchaser

all

to

has

on

well

had
he

account

made,

so

concerned, notwithstanding
in

fact, after notice of his

SPECIFIC

PERFORMANCE.

purchase

to the

debtor, have

to

other

person

some

made

"were

sale

him,

before

purchaser,

making

to

equitableassignee

to be

for

directlysued
in

damages

though

he

Bishop,

As

D.

In

815

W.

Dixon,
496;

Atkinson,

2D.

such

to

{In
458

rule

The

liable

for rent,

or

even
v.

Pitt,L. E.

12

v.

or

it

H.

Suit

against

^of

assignee
^^^^^*^"-

Christie
in

v.

re

M.

"

Northern

Tu.

Cas.

132

702

G. 140.)

stands

But

release

Tea
L. E.

Bank,

Agra

the

Courts

2\irUm

nature

of

terms

will

Equity

859

either
of

course

Company,

Co., L. E. 3 Ch.
of

the

391.)

L. E.
And

contrary intention

no

or

v.

person

them,

2 Ch.

assignor.

2 Ch.

on

the

his

tfeq"i"es

Lewin,

Taunton, (1893)

Assam

it

liable to in the

was

bankruptcy

equitiesmay

Rr

action. Assignees

note, takes

"

L.

cliose in

particularassignee. (Lewin,

{Re Blakely Ordnance


5.

"

possession. {Cox

Wright

only applies where


from

appears

the

M.

of covenants,

exchange

trustee

conduct.

the

of

-i D.

the lessor

in

equitiesas

same

footingas

Eq.

original

is not

expresslyor by implication arisingfrom


10

latter

proof

or

legal term

assignor. (1 Wh.

1 P.

entitled

the

to

assignee of

bill of

the

And

re

of

been

.t G.

Maitf/lesv.

175.)
same

have

of the

Benson,

'~~

438.

subjectto

"^

payments

Dobson,

respect of breaches

M.

than

hands

II.

is it incumbent

case,

v.

Equity by

general rule, an

other

in

may

Eq. 408.)

848

{Stocks

Tit.

437.

11, 17.)
An

payment

the

notice of the

require production

originalassignment.
G.

that

without

Nor, in such

the debt

mortgaged

or

provided

debtor

mortgage.

or

on

the

by

sold

217

the

154.)

contract.

439.

enforce

not

the

5. Inter-

"

fereiice in
."

J,

specific performance
matter

of

though they will

proceedings. (Arb. Act,

agreement

an

do

so

1889,

J.

i.

to

refer

any

reo-ard to

indirectlyby staying ^'''I'iti'ation.


s.

4.)

Neither

will

218

Tit.

PERFORMANCE.

SPECIFIC

II.

arbitrators

Equity compel
"when

to disclose the

them

; Duke

" 1457

the

of

case

wholly

L.

has

Court

The

restrain

the

has

not

be

taken

{Farrar
Rail.

Cross,

v.

according

to relief in

Equity, on

Ex.

of

an

the

do

of

parties

Arbitration

upon

been

an

where

CD.

an

; and

30)

party

in

whatever

the

of

the

enforce

to

323

and

; London

354.)
submit

to
plaintiff

contract

ground

to

disentitle him

may

which

is

have

for

award,

that

he

seeks

who
2 Y.

"

C.

1889,
a

performance
specific

s.

long time

will

not

(St. " 1458,

12.)

arbitrator

partiaHty,relief

And

1459;
both

where

acquiesced

in

acted

or

though objectionsmight have

even

be

which

in

unexceptionable, and

acquiesced.

Act,

have

will enforce

originallyurged againstit,an

it aside

D.

restrain

action

C. D.

the

in

{North London

Equity. {Cheslijnv. Daily,

Equity

award

parties

to

arbitration

another, because

an

31

134.)

injunction to

authority

44

have

who

440.

170.)

Courts

in

be

to

4 Drew.

Q. B.

11

of

Cooper,

v.

arbitration

must

agreed

vexatious

name

in

refer, although the

to

any

inequitablerefusal

an

Equity

to

without

objection may

But

proceeding

to
jurisdiction

even

the

Blachwall

an

Rail.,

in

award.

arbitrators

agreement

arbitration

an

by

grant

Northern

proceeding

from

-^as

be futile and

Great

Court

the

from

person

arbitration may
V.

which

to

power

no

beyond

matter

Rail.

will

{Barhey v. Whitaker,

yet arbitrated.

not

of

it interfere

Nor

418.)

partlydetermined

or

(St.

judgment.

Metropolitan Board

v.

agreement

an

of their

grounds

H.

Nor,

award.

an

award, will Equity compel

an

Buccleuch

of

Works, L. E.

made

have

they

make

to

'"

entertained.
has

will

be

been

to
application

(St. " 1459.)

guiltyof

unfairness

given against

his

set

But
or

award.

SPECIFIC

(Ormes

Beadel,

v.

219

PERFORMANCE.

Gif. 166.)

But

there

Tit. Ii.

be

must

Cap

proof, and

not

Simpson,
that
in

L.

E.

to

power

arbitration

; but

revoke

India

Dock

Co.

On

the

of Law

question

and

of

irregularities
may

settingaside

have

Equity

{Moseley v. Simpson,

acted

The

L.

E.

in

And

the

by

must

there

architect and
exceed

his

is

from

the

18

formance

1.

of

by
does

under

and

the

9 C. D.

89.)

between

total

that

in

an

outlay shall
is

engagement

proviso

for

architect,

of the

v. Dick,
{Kiiuherley

443.

parol

will

contract

case

fully set

the
not

these

And,
to

is the

the

to the arbitration

Equity

it is

Where

defendant

fraud.

of

enforce

within

specificper-

x\'.

Parol

Statute

of

enforced^

and
plaintiff,

it

i-

the

444.

"

is admitted

For,

of

interest

builder, it annuls

Eq. 1, 19.)

Courts

kind

Any

Beddow,

the builder is concerned.

as

X\'.

Frauds

C.

parties. (Moseley

any

v.

that

amount,

all matters
referring

E.

A.

12

principles.

same

engagement

an

employer

certain

concealed

L.

12

442.

have

not

dispute. (Beddoir

where

far

D.

award. Courts

Eq. 226.)

16

be waived

arbitrator

matter

so

B.

Q.

an

the

on

Simpson, L. E. 16 Eq. 226.)

not

to

exceptional

Kirk,

v.

has

submission

23

James,

v.

Court

under

so

even

441.

738.)

V.

it appears

point of law,

the

do

only

(Javies

West

where

in

VIII

(Moseleyv.

the
jurisdiction,

to

it will

circumstances.
and

his

leave

give

And

going wrong

within

matter

East

Eq. 226.)

16

arbitrator is

an
a

merely suspicion,of this.

the

of

answer

insist

on

by
the
the

circumstances,

although
defendant

with

forth

every

there may
to

the

defendant,
Statute

answer,

can

indeed

be

where

perjury
the

the

bar.

as

there

commit

and

be
a

no

tation
temp-

yet

that

defendant's

When

set

and
piaintitf,
*

"'

'^
"

220

Tit.

Cap.

PERFORMANCE.

SPECIFIC

II.

interest is concerned.

And

does

defendant

the

as

not

Vlll.

insist
waived

juri

Statute, he

the

on

it ; and

if the

bar,

although
will

Equity

(St. " 757;

insists

not' enforce

it ;

the

notes.)

Statute

of

(1891)

as

Courts

would

that

for

Smith,

v.

potest

agreement,

provisions

express

James

have

to

777, and

"

on

the

the

to

contrary

775

confesses

he

deemed

is, Quisque renuntiare

(St."

defendant

But

of

rule

introducto.

se

pro

the

be

may

Statute.

the

Ch.

be

384.)

445.
2.

Where

reducing
writing was
prevented by

will

Equity

2.

the

also

such

enforce

parol agreement

it to

it

where

of

fraud.

(St. " 768

1 Ch.

for

Boustead, (1897)

v.

be

enforced

whether

variation

of

where

agreement,

stitute
sub-

or

it is

shown, by satisfactory
evidence,

it is

clear, definite,and

460,

regard

performance,
of the 4th

such

Cooke,

been

partlycarried

unequivocalin
; Lester

C.

2 Wh.
Fo.rcroft,

Alderson,

v.

35

v.

D.

all its terms.

681

A.

"

C. 467

Brett's

L.

C.

447.

With

for

note

it has

Maddison

et seq. ;
v.

290.)

performance.

of

engine

an

into execution, and

McManus

part

meant

was

and

Tu.

is

or

prior written

(St. " 759, 764, 770,

deemed

as

the

completed agreement,
to be

What

used

will also

originalagreement

an

be

to

preventedby
Statute

Rochefoucauld

parol agreement

partly per-

formed.
it is

not

been

for the

parties;

ing
writing accord-

to

446.

196.)
A

3.

Where

of the

one

prevent fraud, and

to

3.

to be reduced

Statute, but that has

to the

iraud.

fraud

intended

was

to the

so

to take the

as

are

out

of

of the

Frauds,

in

than

and
to

must

perform

part

operation
action

an

contract, they should

referable
clearlyand exclusively

agreement,
other view

of

will be deemed

case

section of the Statute

specific
performance
as

which

acts

have
such

been

to

done

agreement

be

plete
com-

with

no

(St. " 762;

222

SPECIFIC

'^"-

^j[;

of the

paying
such
the

PERFORMANCE.

part performance

Statute without

as

the

for

Britain

Rossiter,

deliveryof

like

the

Ves.

or

is

is

C. 467

of

itself

Statute

Caton,

marriage

E.

Ch.

of the
oral

promise

the

marriage

and

the

she

to

he

his

set

in

contract; and
house

must

as

it

be

paid
5

{Maddison

448.

will

e.g., the

v.

Alderson,

is

marriage

Nor

the

for

in

agreement

sideration
con-

be in

writing. {Caton

But

if

the
to

father, in

daughter,makes

the

out

till

his

of

887;

the

sideration
conan

after

death,

of

proof of
any

and

v.

possession,

Statute

that

C. D.

Nor

merely negative

possession

held

was

{Ungleyy. Ungley,
post, par. 450.)

is

daughter a house,

bar

Statute.

Stradling,

v.

puts his daughter into

remains

up

{Wills

act

of his

possession prevents

being
the

give

of

qualifiedby

performance

187.)

marriage

the

grounds,

unless

every

must

acts

equivocal

supra.)

291.)

part
that

of

other

C.

or

part performance
it out

the

L.

of

act

an

precedent.

itself enacts

L.

and

as

where

Brett's

of

valuations

auxiliaryand

tenant,

for

fixingupon

or

different rent.

condition

A.

by

will the

Nor

estate,

Alderson,

v.

over

Nor

381.)

(St. " 760

back.

the

take

to

as

posit,
de-

title,giving directions

explicableon

of

payment

so

; Maddison

holding

mere

the

allegedcontract;

stock, making

considered

act which

an

the

of

out

connect

registering conveyances,

agreement,

(St. " 762

case

view

to

preliminary

character, be
the

the

with

of

value

to

admeasurements,
the

will take

Q. B. D. 123.)

11

going

appraiser

of

be

recovered

abstract

an

conveyances,
an

be

can

money
v.

not

paroltestimonyto

securing,or payment

deemed

will

purchase-money

Frauds

the

incumbrance
settlor's

cf. Synge

v.

parol
on

estate.

Sijnge,

SPECIFIC

XVI.
it

With

is to

be

observed

general,it
by

; and

be

in

not

that

say

prevent

written

there

had

parol portion
Court

decree

to

"clear omission
set up

make

of the

of

use

by

such

agreement

Frauds, where

of

mistake.

Frauds

does

and

the

does
to

as

bind.

not

not

create

of

Fisher, (1897)
it is

the

abandonment

and

where

an

Wh.

the

the

1 Ch.

bar,

been

upon

plaintiff

contract

with

alleged contract

the

The

Statute

of
in

now

parol evidence

It may

evidence

contract
in

and

Act, 1873,

rectified.

Fry, 376.)

written

513.)

contract, and

as

defendant

plaintiffmay

permissibleby parol
of

not

cases

the

Tu.

"

where

written

contract
25

the

Judicature

and

action obtain

same

performance

case

(2.)Where

there had

the

of

enable

(See St. " 770, note,

since

mistake, rectification of

that

The

in the

in

addition, and

or

longer exists;

(7),no

and

(3.) Where

Hearn,

v.

distinction, however,
24

not

so

would

as

by fraud;

addition.

or

Woolam

770a;

by

part performance of

specificperformance

variation

such

additions.

parol variation.

of

specific
{OUey

v.

be added
to prove

(Fry, 470)

writingis

^ariatbrnO

parol variation

specificperformance

parol variation

sought

here

bind,

parol agreement shall

been

Statute

the

used

Statute

shall

on
insisting

occurred

had

omission

one

be

originaland independentagreement.

an

within

s.

the

in

and,

performance.

agreement

to
plaintiff

(1.) Where
the

unequivocal

to

II.

"

however, exceptions to this doctrine of the

were,

of
inability

an

allowed

Tit.

totally

was

Equity

being that

from

thereof,but only that


There

most

in

required

distinction

defendant

of it

the

addition,

or

resistinga specificperformance

of this

reason

of

that

in compelling such
plaintiff

the

evidence

formerlyonly

was

defendant

will

223

parol variation

that

at Law

it

of

to

respect

inadmissible

proofs

PEKFOBMANCE.

sued

on,

224

SPECIFIC

Tit.
'-

defendant

the

II.

fnfoicedenforce

in

one

of

he

accordinglydoes,

to

make

word.

his

good

promissor

the

that

such

shall

in

E.

(M.

deliberate

induce

to

to

with

man
a

particularact, which, relying on

Equity

one

makes

view

449.

25.)

Courts

man

that,

contract.

no

dealingsof

another, with

to

promise

if

that

so

the

was

1 Ch.

practice of

strict truth

another;

to do

writing,there

the

is the

It

parol evidence

hy

Hornibrook, (1897)

V.

XVII.

XVII.

show

may

notwithstanding
(Pattle

PERFORMANCE.

other

promise,

be

compelled

Loxley

Heath,

v.

'

Beav.

17

532

Laver

marriage

L.

to make

takes

settlement,

property by will,such
V.

121
a

4 Gif. 84

Alt,

Synge

legacy, and
will,the

told the

executor

in

testator

be

must

there

something

intention.

an

performance
to

section

of

And
a

the

case

of

the

Statute

that

But

omits

to

person

to

promise

that

; so

where

he

would

not

put it in his

in

than
in

be

out

of the
of

all

the

pay

these

cases

representation

action

an

for

operation

Frauds,

such

unequivocallyand

referable to the contract, and


without

where

specific

contract, part performance is relied

take

must

Eq.

to perform
specifically

more

where

another

need

decreed

was

others, but

Equity

he

15

And

intended, such

promise. (St. " 781.)

the

on

of

testator

(Alt.

provisions,gifts,or

promise by
so

to leave

enforced.

B. 466.)

certain

was

promised

executor

Q.

benefit
a

Thus,

Eastivood, L. E.

v.

enforced
specifically

will be

of

the

into effect what

carry

an

Coverdale

promise

promise

will be

promise

faith of

the

on

so,

written

to make

for

arrangements

the faith of

place on
on

1, 12

Eq. 121, 131.)

15

Synge, (1894)

v.

intends

person

do

E.

or

Beav.

Fielder, 32

v.

Y.Eastwood,

Goverdale
where

supposing such

not
a

in

capable

contract.

of the

4th

part performance
its nature
of

tion
explana-

There

must

SPECIFIC

be

evidentia

some

such

be

him

will

which

by

will

held

(Maddison

of

statement

of

XVIII.

Equity
or

of money,

for

enforce

not
J

was

could
to

of

See

467.

that

for

case

the

law

the

specificper-

5 P.

of

part

is

175

lend

or

Larios

sum

the

v.

to

borrow.

case.

Bonany

case

of

451.
cases

many

landlords

as

and

in the

in these

case

cases

in

the

where

tenants

merely negative, and

dig gravel,and

IT

borrow

xvili.

Agreement

manifestlymeet

C. 346.)

are

to

will

merely by injunction;as
to

land, but

Statute

C.

A.
in

principlesof

will

between

agreement

Selborne

damages

There

covenants

made

she

section of the

{Rogers v. Challis,27 Beav.


XIX.

in the

which

Alderson,

agreement

an

Gurety, L. E.

afterwards

attestation,it

contract

lormance

giving her

450.

performance.)
"

to

for many

will

of proper

Lord

the

relative

woman

wages

life estate

4th

v.

II.

VIII.

must

part performance by her

no

of the

out

judgment

without

to make

no

being

case

Frauds.

was

Cap.

subject-matter of

land, and

he left her

enforce, there
take the

promise

there

It

the

induced

man

Tit.

part
^

prospects of establishment

void for want

was

that

the

housekeeper

verbal

the

to

where

change

to

as

for life in certain

estate

the

his

alleged
"

alleged agreement.

parties as

And

as

life,by

an

the

the

connect

relinquishing other

years,
in

the

contract.

serve

to

part execution

positionsof
the

rei

with

performance

225

PERFOKMANCE.

the
of

the

Court

the

Nega-

meutst

acts

covenant

although

XIX.

not

Court

merely by injunction,it in effect thereby secures


specific
performance. (See St. " 721.) 452.

acts

XX.
contract
it.
Tu.

by payment

(2 Sp.
250

254

et seq.

of the

Peachy

;
;

evade

cannot

person

Long

v.

v.

performance

of

his

xx.
"

penalty for

Duke

Bowring,

the

of Somerset,
33 Beav.

breach

of

2 Wh.

"

585.)

453.

Payment

^^^^

'

226

III.

TITLE
Of

Adjustive Equity.

I.

CHAPTEE.
ACCOUNT

OF

Tit.

'^-^^- ^Jurisdiction
of

the

Under

III.

Courts

of

practicebefore

old

of account

in matters

Equity

GBNEEAL.

IN

arisingout
universal

had

complicatedaccounts,

and

side, but

one

on

very

remedy peculiarto
where

But
or

both,

on

Court

were

all

on

on

the

side

sought

or

are

therefore

remedial
when

interference

these

intricate,or

contract,

required.

was

there

where, in each

Some
to

of

were

was

and
plaintiff,

of

mere

case,

no

Equity

but

519, ;

declined

Phillips

specialcircumstances

draw

into

Court

exist it will interfere

arising under

the accounts

" 454, 459, 511,

necessary

mutual

peculiarequitable remedy

no

Phillips,9 Hare, 471.)

had

Equity

were

where

required,Courts
St.

privityof

receiptsor payments,

of the

side, and

of

Equity

side, or

one

other

the

jurisdiction.(See
V.

where

of

of

there

complicated and

complicationexisted,and
was

or

the accounts, whether

single matter
set-off

Courts

where

only
general jurisdiction

....

out

growmg

cognizableat Law,

contract, and

equitableclaims,

of account

in matters

of

Acts,

(St." 452.)
jurisdiction.

Equity.
But

Judicature

the

in

of
not

cases

activitythje
Equity
only

in

and
cases

arising under

ACCOUNT

direct

constructive

or

entering upon
bill for

accounts

tort

infant's

an

mutual

were

"where
the

the

right of

no

entitle

the

principalto

{Barry
27 L.

Stevens, 31

v.

T.

330

Wms.

258

(36

"

other

is

accounts

the

High

may

at

Court

matter, direct any


be made
in which

the account

1883, Order

be

may

is not

balance
both
A

but

Whiffin,

v.

Under

Act, 1873

Chancery Division

And

Court

the

inquiriesor

is to be taken.

or

of

judge

cause

or

accounts
to

as

to

the mode

(Eules of Court,

454.
divided

is

an

into

and

open

stated,or

which

of

account

which

struck, or

or

settled account

is not

is

that

one

parties. This acceptance need


may

be

implied from

objectionis

made

What

is

time.

by

Law.

at

Division

the

Open

accepted by

parties. 456.
stated

both

account

open

an

455.

settled accounts.
An

Blyth

give directions

XXXIII.)

Accounts

for

Equity

proceedings,in

necessary

taken, and

or

the

(3)).

of the

stage

any

of itself

not

taking of partnershipor

assignedto
(s. 34

does

Judicature

the

66), the

e.

agent; and

as

fairlytried
;

is

There

4).

"

(5)

hardly be

can

Account, 223, 285.)

present practice,by
Vict.

into

Beav.

the

37

this

agent
be

were

fraud

was

Crown

come

on

the

habit

to the
a

I.

the

accounts

there

could

matter

Cap.

relation
fiduciary

Account,

principaland

if the

account

was

againstthe

account

the relation of

the

where

on

Tit. Ill

person
^

where

Equity (1)

required,but

(Williams

now

of

case

St. " 511.

in

there

parties (4)

discoverywas

case

land.

(2) where

complicated (3) where


between

in the

as

lay

account

227

GENERAL.

IN

of business;

not

within

accepted by

be

circumstances:

account

reasonable

is

expressed,
as,

if

no

reasonable

time, is to be determined
and

the

usual

course

q2

is

Settled

of

228

ACCOUNT

Tit.

III.

Cap.

I.

required

be

to

GBNEBAL.

IN

followed, unless

circumstances, constituting a

after

ordinary circumstances,
Williams

(St. " 526.


It is

stated

that

ordinarily
bar

suit

variation.

lapse of

several

457.

Account, 48.)

on

ordinarilya good

bar

to

suit

posts.

for

account

an

is

account

for

ground

special

are

merchants, acquiescence is presumed, under

Between

there

to

for

an

struck
there

account.

When

it is

not.

the
is

balance

already

stated

for, under

such

any

mistake, omission, accident,

the

account

stated

is

the

But

Equity

of

and

if there

is

fraud, by which

or

vitiated, and

Court

items

circumstances,

at Law.

adequate remedy

an

fixed,a
incorrectly

Different
modes

parties have

the

the

balance

is

will interfere

in

of
some

relief.

and

opened

taken

stand, with

to

directingthe

by

cases,

de

novo

libertyto

in

the

to

Meaning

forth

of

"surcharge"
and
falsify.
'

'

'

'

Onuspro-

items

plaintiffin
omission

an

taken

wrongly

two

or

the

by

showing
been

one

is

inserted

is

others, by allowing it

the

the

tion
to contesta-

speciallyset

are

suit.

for which

account

which

the

surcharge ;

to be

account

plaintiffto surcharge and

or
by simply opening
falsify,
as

whole

(St. " 523.)

credit

ought

proving

falsification.

to have

item

an

The

The

to be

probandi

onus

iandi.

is
Extent
the

of

libertyto

surchargeand

always

the

on

and

falsify
; and

not

only

of

the

errors

Generallywhere

Opening

rule is

accounts.

only
if

account

account;
a

trustee

of fraud
on

the

to

of fact, but

to the

examination,

also

of

has

been

in

errors

errors

and

an

account

give libertyto surcharge and

but where

or

extends
liberty

law.

458.

(St. " 525.)


settled

party having the libertyto surcharge

of fact
an

or

of law
has

account

his cestui que

settled, the
the
falsify

shown

are

in

the

been

settled between

trust, under

circumstances

misrepresentation,
or

undue

influence

part of the trustee,there is scarcelyany

of time

that will prevent the Court

account

altogether. (St. "

527

; 2

from

used

length

opening

Sp. 942.)

459.

the

230

ACCOUNT

Tit.

III.

Cap.

him

is

proceeding

(b) if the

GENERAL.

IN

brought

or

statute

of

bar

limitations

in

against him
received, but
to

him

bar

the

accountof

testator's

own

of payments.

The

general law

is this

the

at

thinks

time

of

making them,

fit.

In

default

the

creditor is entitled

the

sums

act, the

Law

to the

is known

which
Wms.

intention

account

the

not

rule

of the

not

rendered

or

creditor

of

therefore
other
did

liabilities

liable

only to his
principal.

An

agent

principal;
to the

Beav.

is not

and

the

rule.

596.)

as

3 P. C.

to

apply

in

such

ing
account-

an

the

does

payments,

so

as

order

in

debtor,

the

of
application

by

of

Clayton's

rule

465.

of

he

express

an

such

ments
pay-

their date,

(See

case.

Clayton's case,

law, but is based

apply where,

the

on
or

sumed.
prethe

from

circumstances, it appears

not

liable
case

463.

311.)

manner

the

intend

appropriation. {The Mecca, (1897)


account

an

taken, withaview

creditor, expressed, implied,

It does

the

estate

in

The

rigid rule

an

have

in the

of debt

as

is

right to

appropriationof

an

deemed

interest

appropriation by

Account, 44.)

on

however, is

that

items

be

to

and

of his

to determine

implies

had

of itself

if neither

And

paid.

of

been

appropriationof payments

is entitled

debtor

the

to the

as

had

will not

Grady, L. E.

0'

V.

as

time

lapseof

executor

an

his

person

462.

testator's
original

party. (Smith
Appropriation

that

of

his

to ascertain

is not

statute

no

time

of

for money

beneficiaryuntil

held

been

executor

an

of debt

or

claim

if the

possession(s.8).

in

It has

the

that

so

trustee

plead lapse

may

action

an

againstany

run

interest

to

recover

which

to

one

the

appHes,

proceeding, as

such

to

is

property, and

other

money

claiming through

Agent

to

to
a

make

any

A. C. 286.)

464.

to

account,

except

charityforms

{Att.-Gen. v. Earl

no

to

his

tion
excep-

of Chesterfield,18

231

CHAPTEE
OF

I. In

Court

assets

jurisdictionin
distribution

the

and

of

notion

the

on

complicationor

any

the

of the

such

afforded

Ecclesiastical

Court

trust,

the

as

in the

is not

to

be

distribution

of residues

exercised

the

of

the

execution

of

administration
and

the

(36 " 37 Vict.


II. The

interested

estate

of

66,

the

practiceof

in the

residue

deceased

judgments

and

or

therefore
unnecessary

is

now

that
in

or

stat

20

the
and

"

21

Ecclesiastical

The

persons,

Court

of

the

Justice

or

all

29

liable

administration.

Court

that
as

of

of

trust

any

C. D.
to

at

the

913.)

pay

And

the

risk

An

of

is

the
now

tration
adminis-

applicationsfor
are

person

matter

administration

for

orders

applicants. {Ke Blake,

covery
dis-

Probate.

entitled

person

completely altered,

some

assigned to

now

the

was

decree

full

Jio""'^'^'

(3).) 466.

34

s.

on

deceased

High

"

is abolished, and
of

of

trusts, is

former

the

to

c.

Court

estates

of

Division

Chancery

course

by

or

Law

By the
complete. (St. " 534"543.)
of the
Vict. c. 77, s. 23, the jurisdiction
Court

of

plain, adequate,

not

was

"

consideration

Common

at

III.

founded

necessityfor

the

formerly existing,or
aid, if any,

residue

Tit.

almost

administration

constructive

auxiliaryground,
the

the
difficulty,

Chancery had, practically


speaking,

of

exclusive

an

ADMINISTRATION.

of

cases

11.

of

the

applicant

costs

of

an

questions arising

II.

Proceed-

relduary
i^S^t^^-

232

ADMINISTRATION.

Tit.

III.

Cap.

II.

with

respect

should

275

or

administrator.

executor

testator

generally,when
intestate

or

estate, instituted

encouraged,
of

III.

But

by creditors.

creditors.

is held

of
at

being

executors

and

they

by judgment,

so

As

in

made

executor

soon

or

proceedings against
except under
the

decree

legalassets.

which
Law

of this

administration
of all the

by

of

any

of

the

them

time

of

latter.
order

is

creditors,the

prevent legal
creditors,

the

Court

(St. " 549;

sort,

creditors

the

of

is entitled to

direction

ment
judg-

the

favour

of

(that is, property


debts

of

.a

deceased

of

into

with

Equity

Re

by which
Barrett, 43

468.

Assets

payment
Definition

decree in

equalitywith

the

him

made.

was

C. D. 70.)
IV.

the

usually sought

exclude, from

administrator

the

pay

creditors,makes

an

behalf

proceedings on

are

proceedings.

proceeding

as

cannot

direction

to

importance

on

to

as

made

more

as

decree, all preference in

(St. " 547.)

IV. Division
of assets.

And

on

by decree,

be

is

benefit of all the

for the

his

467.

J. 848.)

decree

he

the

vexatious

or

equal dignityand

Law,

that

of

administrators,

or

will

(St. " 546.)

all creditors

such

by

aid of the Court

the

affairs

administering the

for

proceedings

L.

46

the

except under

estate

made

himself, against the

involved

unnecessary

any

{Re Cabhurn,
of

Cas.

is sometimes

finds

he

much

so

the

But

of the Court.

ing
III. Proceed-

(Brett's Lead.

administrator

or

safelyadminister

costs

and

originatingsummons

an

assistance

applicationfor

creditors

not

be

may

seq.)

et

the

by

on

trust

or

administration.

an

The

Proceedingby
executor

estate

an

determined

be

without

such

to

legaland

equitable. Legal

creditors
for the

may

payment

make
of

available

person)
assets

available

debts,

as

are
are

in

having

for

the

divided

property
Court

of

devolved

233

ADMINISTRATION.

been

or

upon

office,even

obliged to
himself.

of

into effect

remedy

the

assets

the

this

Wms.

to
and
of

on

Comp.

the

remedy

"

those

nature, and

(St. " 553.)

carried

it has
an

on

land

been

equitable
is

legal

executor, but

of the

whether

determines

Cook

St.

" 551,

Mntlowy.

716;

Drew.

Hregson,

v.

Mutloic,

real

real

in

estate

470.
the

adopted by

the
in

cases

And

of
assets

of

to

their

legal or
are

of

Law,

V.

an

Equity
priority,
equitable

legalor equitable.

administration, for the

Adminis-

leaal assets.

liens, claims,

all antecedent

charges are

whether

Law.

according

rem,

Courts

regard

different classes

the

at

enjoyed

enforces

rules in

same

priorityto
is

(See

legalassets.

estate

follow

are

same

And

law

personal representatives rirtute

which

in

the

in

freehold

by making

Equity

which

charges

express

legalor equitablenature

Legal Eepres. 151.)

creditors

assets^

Act, 1897, has, however, made

all such

give the

for

be

of

important change

the

legal assets

Definition of

469.

and

of

creditors

an

equitable. (See

734

Transfer

makes

Courts

whether

the

French, 3 Drew.

recognizes and
and

not

legal or

upon

it
officii

charged

creditor, which

respect, for

devolve

V.

redemption

nor

an

Equity

Hence

of

of money

"

it in

vest

must

equity

are

considerable

which

Equity.

of the

Land

The

of

J. 539.)

"

in

property,

sum

Shee\.

to

property which

are

Court

"552 ; Burt.

Equity

of

property,

the

D.

of

debts, simply by virtue

So, that it is

assets.

547;

Court

of

'-

"

consequently been

of

an

in

interest

virtue of
be

may

Court

by

that

the

has

available

dispositionof

of

to

make

payment

held

he

Equitable assets

only

can

property

III.

Tit.

adminis-

or

simply by

the

and

resort

executor

purpose,

though

equitable nature,

the

by

such, for that

"trator,as
his

recoverable

234

ADMINISTRATION.

Tit.

III.

Cap.

II.

is treated

trust

tion
of equitable
assets.

Abatement
debts

of

distributed

regard

simple contract

the

exception

pari passu

legacies.

debts, all the creditors


And

all the

insufficient to pay

proportion,unless

in

the

given by
and

Back

rents.

to

pecuniary legatees,the

loss

charitable

And

of real

devisee

in

been

estate, and

the

estate

insufficient

proves

D.

Ch.
Administra-

By

tion
of

(Garbitt

on

where
of

payment

the

possession of

nevertheless

Allen; Allen

wholly

satisfythe

to

entitled to

not

Longstaffe,37

v.

471.

48.)

Court

Supreme

the

v.

specific

And

the

assigns,have

rents.

others.

abate, as well

his

legacies,the legatees are

specifically

(St. " 1180.)

charged with

estate

all abate

fall

is to

pay

debts, is

of

is

or

tion.
propor-

between

as

legacies,or

back

in

must,

legaciesnow

kind.

another

to

legacies over

some

But

of
legacies

as

priority

some

testator
;

latter.

the

they
legacies,

and,

legatees

abate

must

Sp. 314.)

(St. " 554-6

debts

the

are

without

creditors

fund, after payment

if the

so

able
equit-

is insufficient

fund

if the

But

of

mentioned,

all the

satisfied,among

are

distributees.
all the

above

dignity of

and

But

debt.

all the

among

priorityor

the

to

they

after

as

assets, with
Administra-

breach

a
settlingquestionsof priority,

of

purpose

of Judicature

Act, 1875

(38

assets

of insolvent
estates

and

"

89 Vict.

sub-section
c.

of the

66), that,
assets

of

prove
his
any

and

company

25

in the

any

this

under

the

assets

the

of its debts

of

winding

up,

the

may

same

(in lieu of the

principalAct,

administration
who

for

by
die

may

Act, and
the

and
liabilities,

1867, whose

payment

of the

person

insufficient

be

debts

"

of

commencement
to

10, it is enacted

s.

of section

companies.

Vict.

77),

c.

payment

to

and

may

full

winding

up

of
of

and

1862

be insufficient for

liabilities and

rules

the

after

in

Companies Acts,
prove

Court

the

estate

the

37

"

36

whose

in

1st

shall

the

costs

prevail and

be

235

ADMINISTRATION.

observed
unsecured

the

to

as

creditors, and

provable, and
future

and

be

force

for

bankruptcy

with

in

the

time

dividends

the

under

as

of

in

and

him

the

on

Division, of

his

Where
has

because

over.

The

an

the

in

object

of

under

section

125

s.

may

be
10

s.

which

full amount
and

to

after

put

C.

the

not

he

realizing

Nuttall, 12
has

of

where

bankruptcy

v.

entitled

estate

for the

security. (Lee

D.

effect

administration, in the Chancery

the

insolvent

estate, the provisionsof

40

D.

Ch.

Williams, 86

v.

s.

C. D.

{Re Magcji, 20

1883.

472.
one

of

received

several
his

residuarylegatees or

share

intestate,the others cannot

that

the

the

claims

by

now

for the balance

The

for

such

securityafterwards,

to prove

company,

order

make

any

deceased

such

(Note that

Williaiiis,Jones

Re

573.)

or

such

or

of

receive

be
respectively

may

prove

Bankruptcy Act,

the

kin

decree

footingas

introducinginto

any

Act, 1883,

61, per James, L. J.)

545

of

could

same

valuing

of

assets

estate, and

realize his

only entitled

of

any

in

and

for

prove

bankruptcy.)

creditor

his debt

or

to

may

persons

who

get rid of the rule in Chancery

secured

and

law

of

persons

of

this Act."

the

estates

estate

they

Bankruptcy

to

was

all

the

such

of

administered
was

the

same

by virtue

of

of

under

the

entitled

the

in

against the

and

of

out

or

administration

to

be

out

come

may

liabilities

annuities'

of

being
to

Tit.

the assets

have

wasting

took

{Peterson

v.

been

place

of the

estate

call upon

of
him

wasted, unless
before

Peterson,

hi.
'

'-

"

valuation

respect

would

case

person,

and

and

as
contingentliabilities respectively,

adjudged bankrupt:
such

debts

to

as

the

to

as

secured

respectiverights of

L.

the share
K.

next

of

testator

to refund

they show
was

Eq.

paid
Ill

"

236

ADMINISTRATION.

Tit.

III.

Cap.

II.

Re

Bacon,

the

Statute

Limitations

D.

actuallybarred

Debts

as

revived

not

are

the

for

8,

s.

to

run

the

because
barred

former

The

assigned in

prevent the

personalty
creditors

by

Lewin, 592
With

; see

regard

priorityin

cestui

que

trust, is not

personal

aebts.

observed

Scott,

under

or

estate, the

specialty; (2)

debts

Fin.

specialtyand

in

simple

will
382

the

having

in

the

by

Crown

preference

instance, income-

duly registered

recovered
to

always

debts
the

to

ministrat
ad-

the

has

the

against
order

for

the

ministrat
ad-

statutes, the

obsolete
being practically

by

the

Act, 1897.) 474.

(4) recognizances and

latter, however,

by

CI. "

(3) judgments

personal representatives prior

for

of the

for

as,

unregistered judgments

the

words

Court

due

etc. ;

where

trust

of debts

payment

particular Statutes,

But

of debts, it does

Transfer

(1) Debts

tax, poor-rates,
and

Land

the

priorities,
paying
"

duty.
only is

estate

upon

v.

certain

following order:
record

executor

(Jones

an

to be

Statute; because

that

of

of

of

deed

his

do

of debts.

of the

the

the

of the

to

trustee

so

to

death

the

date

payment

now

Trustee

the

of law

act

nugatory.

are

payment

in

real

principlewill apply (subject

running

vests

the

from

personalty is bequeathed for payment


not

by

of

out

from

the

same

for

trust

either

case,

provisions)where

same

payment

statutory time

392) the

in the

latter

debts

provisionsof

par.

neglect of

(Lewin, 591.)
to the

the

creditor,the

the

by

for

trust

of

payment

supra,

testator, in the

in

provisionis made,

(subjectto

Act, 1888,
cease

included

or

where

by deed,

or

estate, then

will

by

But

of debts.
will

of

of Limitations

Statute

the

by

of

regards debts.

Order

D.

C.

43

Winslow,

Re

559;

473.

249.)
Operation of

C.

42

contract

including rent, unregistered judgments

(5) debts

pari
other

passu,

than

238

ADMINISTRATION.

Tit.

III.

Cap.

II.

specificdevisee

the

for

regard, whereas

testator's

Re

fifth classes

and

fourth

the

bound

this

by

203, Chitty, J., followed

to

settled

legatees was

Farquharson

Hensman

the

exercised

whose

C. D.

of the

3 Ch.

8 D.

18.)

M.

absolute

Married

the

on

of

and

law

before

pecuniary

v.

Coulthurst, 1 C. D

C.

D.

109

far

so

and

or

it

as

C.

which

be

administered

appointment.

{Fleming

Spurling v. Rochfort,

however

has

of the

be

must

widow

distinguished

giftsof paraphernal articles since

Women's

legacy

case.

footingas

realty, over

to

G. 976

"

to

principles(Brett'sL.

two

is

the

The

same

Eighthly,paraphernalia

Property Act,

Tasker, (1895) P. 1.)


A

debts.

420, is only law

estate

deceased, which

from

Personal

with

Floyer,

v.

surely the

ranking

general power

Buchanan,

16

is

in Tomkins

first of these

person

"

Stokes, appears

Seventhly, personalty and

237).

V.

Fryer,

v.

asserts

both

and

devises,
specific

2 Ch.

specific devises,

charged

not

to be

Salt, (1895)

Re

residuarydevises being

to

the

in

But

transposed.

in Re

specific bequests,

residuary devises

626

be

must

which

unanswerable,"

be

Sixthly,

as

rata.

Stirling,J., saying

Stirling,J.,

of

reasoning

act

Bate, 43 C. D. 600, that

and

authority;

the

only takes by

J., refused
Stokes, 67 L. T. 223, Stirling,

in Re

me

heir

the

by Kay, J., in

held

was

object of

expresslyan

Fifthly,general pecuniary legacies,


pro

of law.
It

is

the

(See Tasker

1882.

v.

475.

annuity given generally is payable out

estate

primarily
applied,
except

of

personal

annuity

is

estate

given

only.
out

And

of real

when

even

and

legacy or

personal estate,

or

"

where

debts

payable out

are

personalestate, it
estate
The

is first to

personal

is the
be

estate

of real

general rule

applied

so

far

constitutes

as

well

that
as

the

as

the

it will

out

of

personal
extend.

primary

and

ADMINISTRATION.

natural

fund
that

note

for

the

in

alter the order


for

applicable

cases

Act, 1897, does

real

and

and

When

there

*26 Beav.

522),

exonerate

his

applied,except in

the

are

or

words

express

plain intention

personalestate.

of the

and

expressionswhich

Sm.

"

necessarilyimply

than

more

appear

the

upon

whole

judicialmind

it

that

real estate, but

Wh.

Tu.

"

C. D.

81

Barrow,

to

personal

estate

the

then

to

113.)

is

it

to

as

to

of

For

estate.
real

estate

L.

C.

236

will

estate

debts, and

be

neither

proving
"debts.
that

intention

to

and

of these

of

payment

event

insufficient

for

the

on

the

other

the

the

by

stances,
circum-

sufficient

personal

direction

debts, where

personal estate,
the

And,

is

circumstances

exonerate

the

only

v.

legatees,

to

exonerated

from

probable that

in

followed

the

; Broadbent

of

payment

the other

of the

charge

(1.) If the real estate

it is most
for

is made
be

an

exempt

affordingsimilar implicationof intention,is a


indication

npt

convince

to

expresslybequeathed

from

apart

contrary,

there must

was

of the
purpose

sition
dispo-

no

intended

personal
of

hand, it is most

bequestof personalestate, not by

to sell

way

to

estate

paying

the

probable
of

specific

the

"ten]?laiii

Leg. by White, 708, 710;

And

for

personal

do

merely

not

charge

implication. But

necessary

enough

meant

was

so

sold

be

directed

plain

In

express
^vo^^g

the real estate shall

not

; Brett's

742

such

expressed as

so

(1 Eop.

personal estate.

to

i.

taken
testamentary disposition,

intention

together,an

constitute

that

are
good the deficiency

Young,

v.

(Coventry v. Coventry,

intention, directions

"

testator

to

the

'-

following

(Young

And

Dr.

make

"

are

legacies,s.

470.)

not

assets

personal

debts

of

payment

Tit. ill.

legacies(and

476.

1.

which

and

'-

Transfer

will first be

(3)), and

of debts

payment

Land

239

240

ADMINISTBATION.

Tit.

III.
'-

"

legacy, where

provisionis

no

made

for

payment

of

subjectto

the

'"

"

debts

of

payment

debts

out

9th

ed. (1561) et

his

personal
of

way

and

another

is

and

Gilbertson, 34 Beav.
; Broadhent

175

Where

directs

testator

personal estate, and


and

produce,

debts, "c., the

are

applicablepro
conversion

result

personal

residue

will be

(2 Eobbins
(1583)
G.

Oott, L.
Ch. D.
to

Mortg. 772

K.

of

real

of
or

where

upon

given

personal

to

estate

the

condition

trustees

is

in

"

J. 148

of
real

of

Mann,

v.

of the

estate

those

34

subject

devised.

is devised

them
purposes,

v.

proceeds

is

paying

with

"

affecting

debts,

his

disposed of by

fails.

; Allan

incumbrances

charged
for

fund, the

the

that fund

residue

where

is

portion only

devise is made,

payment

But

if there

Cheese, 6 D. M.

v.

D.

Ashworth
a

fund

Executors, 9th ed.

on

off the

only

legaciesgenerally,or
is

Ap. 430;

estate, after

person,

If

when

Tench

Larcher,

paying

(2 Sp. 334, 342.)

or

Wms.

; 2

that

case,

comprised

(4.) So where

condition
estate ;

v.

Ch.

391.)

the

is

payment

surplus (if any) will

personal estate.

estate

(3.)

of the

out

in

12

real and

for the

in such

chargeable only

Bright

fund

fund

out, the

Turner, L. J., in

467

and

and

of the

But

113.)

of his

comprised

estates

rata.

out

real

as

two

; Gilbertson

C. D.

mixed

the

Riley, L. E.

conversion

creates

debts,

of

expenses,

341

v.

31

appropriates that

of

no

the

executor,

payment

Powell

Barrow,

residue,

is not

(2 Sp.

354;

v.

as

testamentary

is exonerated.

personal estate

Eq.

for

gives

testator

not

who

one

supplied

funeral

the

and

whole,

Executors,

on

(2.) Where

as

fund

personal property.

Wms.

specified
legacy to

legacies,and

V.

823

seq.)

estate

such

of

(2 Sp. 340, 341, 818,

by

made

real estate, was

of the

out

debts

to

and

generally,
and

the

general residuary

241

ADMINISTRATION.

bequest, these

circumstances

will

not

T'''- m-

the

prevent

'-

fund

personal
the

being appliedin

satisfaction of those
The

"White, 695.)

charges

residue

(Trott v. Buchanan,

Cas.

Lead.

the

235

his

seq.) And

et

if

debts of

with

those

and

that

fund, it will

bequeaths
And

by White, 706.)

and

the

that

; so

next

of

favour

the

event

of kin

be

not

charged
dis-

and

consideration.

to

testator,
of

debts,

(2 Sp. 337

477.

is exonerated

from

debts and

A., and he dies before the testator,

lapses,the
disposition

of the

extrinsic

of the

personal estate

personal estate

by which

particular

the intention

circumstances

the

into

taken

in
legacies

expressly

by simple contract,

to ascertain

Eop. Leg. by White, 724.)


If the

is

; Brett's

general rule, no

of his

amount
be

cannot

as

be admitted

can

exonerate

fund

debts, etc., generally. (1 Eop. Leg.

from

evidence

such

testator

to

the payment

C. D. 446

description,namely,
then

apply

not

of

28

with

personal estate

in

(1 Eop. Leg. by

rule, however, does

debts, where

disposedof.

demands.

specifically
appropriated for

personal estate
of

the first instance

who

testator

entitled to the fund

will take

executor

or

become
accidentally

it with

its

and

primary

to dischargethe debts and legacies.


obligation
(1 Eop. Leg. by White, 744 ; Kilford v. Blaney, 81

natural

C. D.
2.

56.)

478.

WTien

the

nature,

real

charge
in

as

pecuniary portionsto
execution

of

raised under
in trustees
a

person

a
a

the

incumbrance
of

case

raised

be

of

; or

out

purpose

charged with,

or

of money,

is,in its

jointure;
of lands

own

or

by

pecuniaryportionsto

marriage settlement,

for the

particularsums
s.

power

or

of

; or

with
or

out of lands
devise

to trustees

of

the
be

vested

of lands

direction

2.

to

to

pay,

in trust
K

to

Where

the

chj^'ge'
veal.

242

ADMINISTRATION.

III.

Tit.
'-

"

^
"

raise and

charge

particularsums,

pay

for satisfaction

trust

or

distinguishedfrom

as

of debts

generally. (1 Eop. Leg. by White, 671.)


also

such

sums,

or

additional
is

but

security,not

that

the

of

Locke

481),

devolved

payable by

devise
as

only descriptiveof

of

an

(2 Sp.

3.

Where

the

819

Beav.

who

person
died last

3. Where

the debt

seised

or

last

from

estate, and

seised

whom

J. 44

was
or

mortgage

the

not

of

out

devisee.

cum

onere.

731, 732

Townshend

contracted

entitled, but

by
by

; Bond

Mostyn,

v.

Briggs,

v.

in the

expressive

made

was

estate

construed

not

took it by descent

he

in

sometimes

Langdale

479.

mentioned

case

mortgage,"

K.

G. 391.)

i)erson

the

Lady

113, infra,par.

mortgaged

Eop. Leg. by White,


"

before

testator, if not made

the

devise

the

the

general devisee

72 ;

died
^ho
contracTedby
the

England,

26
"

that

intent

law

payable by

was

the

c.

of the

mortgaged estate, was

of

payable

primarily payable

expression subjectto

of

the

the

or

"

the

But

it

onere,

cum

term

event

the lands

Where

devisee.

devised

was

v.

(except in

general personal estate

the

an

portions,

perform

to

any

Vict.

18

heir-at-law

the

upon

of

to raise

Under

particulardevisee, was

in

paragraph),whether

next

as

If there

one.

bond

not

(17 "
debt

mortgage

in the

or

Act

King's

be

there

estate.

personal

be

securing the portions, in

portions are

the

covenant,

regarded

payment

lands, and

for

though

even

case,

out

lands

be

primary

If there

portions,
jointure,

only

for the

to settle

of the

out

years

as

covenant

covenant

will

covenant

personal

no

to raise the

personalcovenant

legacies

or

D.

M.

the person
other

some
or

devise,

or

'^

by
from

other

some

his

whom

mortgage

was

from

person
vendor

created

by

whom

he

derived

it.

an

ancestor

purchased it,or
Thus,
"

where

in other

words,

'24'3

ADMINISTEATION.

if the
the

mortgage debt

mortgaged

entered

heir

covenant,

gave

ancestral

an

descended

estate

although the
or

was

into

securityfor payment

favour

title by descent

to the

did

anything

independent contract
(unless it

was

the

or

debts

such),
own,

the

1003

in

would

Locke

charged

by

money

by

his will

such

whom
devised
debt

or

or

purpose

of

paying off

originalmortgagor,

otherwise.

"

estate

the

72 ;

or

as

"

his
576,

"

G.

Bagot

648

Bagot,

v.

other

land

of any

real

satisfied out
estate

sum

such

of such

or

have

have
of the

be

primarilyliable

entitled

mortgage
1854.

signified

or

be

mortgage

personalestate
but

the

land

between

the

under

the

to the

be

to

payment of
r2

in certain

persoiTdfe

of

devisee

or

the

person,

4.

shall not,

person

heir

or

other

sums

shall descend

so

dififerent persons

or

of his death

charged shall, as
claiming through or

hereditaments

deceased person,

entitled to

be

shall,after

land

document,

hereditaments

or

mort-

1854, die seised of

shall,at the time

or

113), which

person

interest in any

payment

deed,

c.

ancestral

an

any

mortgage, and

of

shall not

other

M.

as

debt

(St. " 571

18 Vict.

when

December,

of

dischargedor

any

the

made

way

contrary or other intention,the

any

or

way

and

new

mortgagee

mortgage

that,

which

with

the

Sivainson, 6 D.

every

entitled to any
hereditaments

devisee

or

and

King'sAct (17 "

day

31st

derive

480.

it is enacted

gage,

heir

raised

Mostyn, 26 Beav.

v.

134.)

By

the

or

mortgaged premises,

him

other

be

v.

effect treats

the

any

Swainsoii

Beav.
4.

in

case

Tonnshend
34

legaciesof

"

gage,
mort-

should

if the

for the

'-

"

be liable to be

not

which

between

simply

had

or

But

mortgage.

purchaser

or

him

under

the

subject to

person

contract

of the

who

of any

III.

heir, there,

collateral

1'".

and

"

'-

the

upon

yet his personal estate would

charged,in

mortgage

to

244.

ADMINISTRATION.

III.

Tit.

all

with

debts

mortgage

which

the

shall

same

'-

"

"

charged,

the

on

nothing herein
the

rightof

dying

document

or

1st

And

Leasholds

it

by

the

by

Estates

tail

to be
4 Ch.

not

D.

Act

the

excluded

execution

this

By
,,

other

^^

the

40

41 Vict.

"

But

(In

of

been

674.)

extended

was

the

Acts.

mortgaged

lands

lands

testator's

483.

the construction

but

of

delivered

450.)

with

scope

486.)

of these

elegitto

decided,

34 ;

c.

C. D.

37

include

points connected

have

v.

brought

were

the scope

498.)

writ

"

(Piper

this Act.

; but

(Re Anthony, (1892) 1 Ch.

Act

present.
King's

under

properly within

come

within

665

from

of the Acts

Various

the

unpaid purchase-money (post, par.

meaning

creditors.

before

memorandum

principalAct

within

of

made

Kershaw,

v.

3 Ch.

in

will,deed,

copyholds.

Act,

Drake

same

are

any

482.

91.)

(Re Anthonij, (1893)


the

rightsof

Friend, 1 Johns.

v.

to

amendment

an

486;

liens for

to

^meu

H.
held

were

post, par.

men

extends

Wormsley's Estate,

within

Locke

{Petnbrooke

it
"

also that

of any

be

to

or

so

481.

this Act.

1 Johns.

Piper,

And

virtue

by

or

Provided

affect the

shall

already made

132.)

re

person

equitablemortgage by depositand

is within
H.

of the

otherwise

January, 1855."

An

hereditaments

or

personalestate

claiming under

person

any

mortgage

contained

herein

nothing

lands

diminish

or

of his

or

aforesaid, or

as

such

that

always

satisfaction

payment

either out of the

debt

Provided

debts

mortgage

shall affect

contained

on
iifiortgagee

full

to obtain

thereof

whole

the

of

bearing a proportionatepart
charged

its value,

part thereof, according to

every

be

they
work

do
like

not

the

484.
stat. 30

"

^-^^ Construction

31

Vict.

of the

c.

69, it is enacted

will

of

any

person

that,
who

346

ADMINISTRATION.

TjT.

III.

Cap.

II.

and

residuaryreal

general direction

mere

paid

of

out

personal

refer

expresslyor by

debts.

therefore

the

the

value

Newmarch,
D.

their

Ch.

real

mortgaged

devised

are

but

must,

/;(

(Ap.) 12;

personal

the

legatees of

the

realtyand
Mason,

estate

on

marriage.

which

Ch.

be

comprised

in

2 D.

Broadmead,
Liabilityof
property

from

its

has

of

settled

be

to

which
when

P.

liable

the

they

J.

"

funeral

and

mojre

Lennino,

bond

10

566.)

of
than

the
the

of covenant

parties to

upon

it.

the

by

ment
settle-

{Dilkes v.

487.
is not

creditors

hands

of

testator

sufficient

testamentary

fide

subsequently

to

executed

testator's

to

come

personal property
bequeathed

{Trestrail

testator, consistingof personalty

to the
liability

there

rateably by

v.

Property specifically
bequeathed

specifically
bequeathed. that

primarily
realty and

thereto.

Leonino

in

King's Act,

borne

respect of breaches

notice

no

655

not

of the

personalty,be

cease

testator, but
had

devisees

identified,are

accruing claims

33

b.
of

marriage, they
the

the

D.

486

could

re

Smith,

Locke

realty under

the

assets

according

re

are

personalty subject

Where

the

between

as

estate,

a.

and

of

out

C. D. 460.)

settled

must

different

to

contribute

must

mortgage, the mortgage debt is

same

payable

Non-liability
of personalty

deemed

respectiveportions. {In

D.

486

195.)

Where

devisees

of
9

which

to

V.

be

implicationto mortgaije

applies

of

portions
and

persons,

the

shall

contrary intention

necessary

Act

King's

different

Ch.

is not

The

debts

all

{Giles v. True, 33 C. D. 195.)

Locke

to

residuaryreal

or

that

estate

contrary intention."

"

estate

486.

estate."
A

personal

to

expenses,

the

not
pay

and

discharged
by

the

fact

executors

specifically
his

debts,

that

the

247

ADMINISTKATION.

specifically
bequeathed property has
by

the

be

the

the

rights of

executor

J.

"

made

specificlegateeas

Andrew

693;

may

regards

"

"

III.
""

the

Nicolson,

v.

Cooper,

v.

Tit.

over

specific
legatee,whatever

residuary legatee. {Daries

or

D.

to the

executor

been

D.

C.

45

488.

444.)
VII.

In

the

order

satisfaction,if the

of

personal VII.

Order

satisfaction,

estate

of the

creditors

decease

that

his debts

to

testator

are

preferredto

also

charged
and

to

with

of real

of

failure

and

Nor

with

general

residuary

to

devisees
specific

are

or
specialties

specificlegateesshall

proportionatevalue

the

on

each, contribute

to

portionof
particular

subjectto

the

with

the

of

ment
pay-

there

fee

the

of

conferred
Where

of debts.

personalestate
and

specific

each, according

benefits

the

payment

of debts

the

is bequeathed,

there,
legacies,

as

legatees,the residuarypersonal estate is

the

L.

the

payment

exonerated, if there

Brett's

preferred

not

debts,

of

But

general personal estate,

the

of

to

where

of real estate

legatees; but upon


debts, preferredto specific

devisees

between

Specific

act of Law.

of real estate.

estate.

charged

lands, not

regard,like

testator's

with the payment


or
specialties

are

the
fund

natural

the devisees

preferredto

pecuniary legatees

the

object of

residuarydevisees

devisees

; and

heir, instead of

the

legatee,only takes by
specific

legateesare

just,by desiring

Again, specificlegatees

heir, because

the

it is to be

because

is the

seen,

debts.

all purposes,

is generous

he

have

we

of

payment

being expresslyan
the

for

to be

means

paid,before

be

personal estate, as
the

sumcient

preferred to legatees;

are

presumed

for

-,.,.

not

is

is

no

C. 236.)

simple

is

residuary bequest, but

gift of
As
estate

the

residue.

between
and

a
a

devisee

not

(St. " 571


of

gaged
mort-

specificlegatee

of

of

248

ADMINISTRATION.

Tit.

III.
'"

"

"

"

personalty,the

shall

devisee

his

have

not

mortgage

'"

"

specificlegatee,but

the

paid by

estate
of

cum

mortgaged

off

wholly or partlypaid
leaseholds.
Vict.

heir-at-law

of

the

is

premisesnot mortgaged
and

of all the

debts, they

in

discharge of

the

of

the

and

legatees

remains

But

pay

all the

the

heir-at-law
pay

debts

debt

any

testator

binding

other

some

debt
the

paid

of

out

such

And,
for

or

liable to

18

the

of

subject

to

the

same

the

compelled
ancestor

or

is

(unless there
to have

the

preference

to

(St. " 571),


of

out

the

of

payment

mortgaged

mortgaged

lands

devised

statute, lands

dischargea mortgage, in

unless

to

490.
the

whom

his

in

assets

{supra,

primarily payable

are

to

to

Court

charges,there

been

distributees

or

the

suf"cient

are

repels the claim)

personal

equities

113

c.

other

him, is entitled

subject

devisee

Vict.

has

incumbrance

charges

personal estate.

"

devisee, who

equitywhich

are

489.

legaciesand

on

prevail. (See

to

and

residuary legatees

because

Law

personal assets

or

lands

the

equal,

the

or

of

proportionably

Where
are

suffers the

17

devisee

heir-at-law

the

contribute

devisees

the stat.

subjectto

object

expressly after payment

Sp. 832, 839, 882.)

; 2

481), where

par.

to

are

18

descended

mortgaged

mortgage.

neuter, and

" 571

to

and

17 "

mortgaged

fortiori,the

devised, but
specifically

both

other

evidentlyan

preferredto

lands

if unincumbered

St.

and

bounty :

of the testator's

is

devisee

the

mortgage

the stat.
of

because

Subject to

{supra, par. 481), the devisee

premises is preferredto
estates

the

have

not

by specificlegatees of

Sp. 838.)

(2

113

c.

shall

leasehold

gaged
mort-

legatee
a
specific
fortiori,

onere.

the

take

shall

favour
lands
are

debts

are

of the
may

really

also

heir

or

belong,
devised

ADMINISTRATION.

"fit/ft

(St. " 571

oncir.

Where
the

assignee for

"entitled to

been

VIII.

as

are

Law

the

of

satisfyevery
assets

be

can

applied

of

out

if there

of the

Law

funds, while

resort,

so

receive

compensation

the

amount

from

Beav.

Wh.

14.)

"

Tu.

of that

Bat

the

the

either
to

of
one

seek

the latter cannot

the

has

latter

shall

unnecessarily

only
"

source

563

seq. ; Gibson

doctrine

of

fund, in proportion

former

et

to

compelled to

or

(See St. " 558


36

prior

funds.

is confined

be

extend,

formed

to

creditors, and

recourse

to which

which

may

different kinds

of several

the

that

as

of those

more

which

for the latter.

Cooper,

out

the

such
injustice,

more

shall

be

standing
thereof, notwith-

creditor

former

it will

as

without

have

can

of that fund

out

far

or

another

them, either the

satisfaction

two

debtor

creditor

one

of

creditors

or

the
to

funds

particularindividuals
one

full

termed

defined

be

more

as,

obtain

ment
particularadjust-

in satisfaction

some

common

to

different

or

far

of

are

left to

may

the

of

just claims, if

Equity,

This

so

Vlll.

fail to

of
of

two

claims

satisfaction
that

of

claim,

the

20

J.

"

parties,whose

enabled

are

Courts

assets.

debtor

taken

not

Mar"

means

arrangement

an

common

to

""

the

fund, would

one

of their

by

by

of

in which

to

but

thereof

marshalling

of

III.

"^^-

in it was

4 D.

Mortimer,

v.

eases

many

Law,

effected

those

{Payne

Tit.

voluntary bond,

equitableinterest

an

is confined

satisfaction

at

under

satisfaction

course

funds

of

entitled.

There

obtain

So

siqwa,

specialtycreditor against
obligor,though the obligeewould

so

right at

such

see

492.

447.)

the

value

rank

of the

have

and

Sp. 822,

payable

was

money

assets

491.

479.)

par.

249

of

of payment

; Aldrich
v.

v.

Seagrim,

marshalling

is

assets?^

250

ADMINISTBATION.

Tit.

III.

Cap.

subject

this

to

marshalled

on

so

{Webb
239

favour

and

have

Smith,

V.

of

is

plan

or

of the

lien
that

over

property.

Brett's

192;

Lead.

Cas.

and

against mortgagees

as

the

superior kind,

in

only of mortgagees

and

creditors

superior kind,

also of creditors of

of the

inferior rank,

an

(except residuary legatees,where


exonerated, and
of
or

legateeswhose

residue), or

of

of

devisee

570;
Legateesput
place

stand

in

the

specialty the real assets


simple
exhausted
;

of

not

legatees

lands
to
a

place

the

testator

to

c.

heir-at-law,

entitled
19

to

contract

in favour

406

makes

the
or

of

contract

real

creditors

where

real

estate

debts, and

the

stat. 3 "

estate

was

4 Wm.

liable

subject to

descended
who

(Surtees

v.

Scott, 1 D. M. " G.

v.

of the

land

devised

And

devises

had

mortgaged

were

specialtydebts, legateesare
to

permitted

real estate.

; Paterson

debts, though it
of

Thus,

by creditors,the legatees

in consequence

which

566,

"

833.)

mortgage.

the

upon

stand, in regard

simple

the

is exhausted
come

562

mortgagee who

subject to, payment

Beav.

And

104,

of

or

heir-at-law,

to

contract

specialtycreditors, against

bequeaths legacies,and

personal estate

531.)

the

subject

for, or

Parkin,

of

personal estate, whether

descended

in trust

are

of the

given out

exceptions, were

descended,

devisee

legaciesare

legatees. (See St. "

above

is not

residue

against simple

as

of

the

mortgagees

contract

favour

or

Sp. 410, 819, 820, 827, 829,

legatees,with
to

the

or
portionists,

and

creditors, in favour

creditors

lien

devisee.

and

D.

C.

has

another

to

recourse

30

who

person

of

but

heir, or of

and

be

person's rights,

resign the

to

adopted

creditors

other

legatees,
ofaportionist,

of

to

of

creditors, or

in the

not

are

seq.) 493.

et

This

Marshalling

oblige

to

particularproperty

property

or

assets

prejudiceanother

to

as

example, as

so, for

in

limitation, that

-II.

have

in

simple

to
a

IV.

priority

permitted to
the

place

exhausted

of

the

251

ADMINISTRATION.

personal

estate,

so

to

as

prevent

satisfaction

''''i"-I'l-

of

'"

the

legacies(St. " 566 ; 2 Sp. 830) ; except residuary


legatees,where the residue is not exonerated, and
legatees whose
who

have

estate

such

no

it.

upon

legateeswill
the

real

not

indicated
to

one

or

A.

charge
A.

is not

on

in

{Tidd

has

of them
be

only, B.

B.

to

Ha.

10

his

H.

"

M.

The

457

between

; and

charitable
on

real

were,

and
assets

uses,

estate,

with

some

Equity
in

II.

Geo.

in

favour

mortgaged.

clearly
the

it will

extend

and

this

takes

assets
and

from

real
the

cases

of
(a)

charitable

But

see

supra,

of

bequests
or

to

47S.

as

Marshallingas

so

legacies

the
to

charged

sale of real

estate,

(St. " 569)


marshal

bequests, when
par.

place

virtue

estate

refused

have

legaciesnot

exceptions,utterly void
some

to

495.

Formerly by

to arise

surety
Bloxam,

v.

twollTatTs

general

debt, A. may

the

Marshalling

require

as

against a

land

of

to

has

which

36, legacies or

c.

B.

estate

(South

of

on

payable out
or

of that

as

of

marshalling

charged. (St. " 566.)


9

'^"^^

68^4^16
"^lot

Sp. 820, 829,

post, par. 652.)

see

legaciescharged

statute

is

of

not

persons

has

; 2

far

so

securities.

two

same

but

testator, Equity

is entitled

157)

him

by

payment

assigned

he

estates, and

two

on

satisfied out

Lister,

on

565

of

devisee

between

testator

(St."

principleis applicable also


whom,

equity

preference or priorityof

charge

mortgage

V.

of

other.

one

should

personal

494.

(a)

Where

that

the

over

of

the

of the

the

"

residue,

whether

; for

bounty

ground

some

830"832.)

the

satisfying the

And

mortgaged,

not

interfere, unless

not

after

residuary devisee

of

residue

remains

out

generally prevail against

equally taking by
will

for

(2 Sp. 820.)

estate

specificor

given

equity:

implies what

charges
of

legacies are

"

j^^^^^^/
others

so

j\^nii"isti.a.
ti"" i" f"^
charitable

the

giveil
'

not

'^S*'^'*'''-

2152

Tit.

ADMINISTRATION.

III.
'--"
"

either

directlyor by

of real and

with

debts and

real

estate

the

other

fulfil

pure

personalty to

the

charitylegacieswere

charged

the

on

charitable

the

if

and

bequests ;

as

the

on

the

proceeds

the

in favour

of

will

direction

that

personalty,and

pure

mixed

of the

give

effect

have

real

they

of his pure

of

legaciesto
of

4 Beav.

them
the

at

without
pure

for the

did not

all out

or

to
out

testator
of

his

paid

the

upon

reference

of the

the Court

where
be

did

not

any

of
not

testator

legaciesto
throw

the

personaltysavouring

purport to make

to

would

personaltysavouring

will

pure

the

paid exclusively

payment

the

of

out

(See Philanthropic

the

the

of the

personaltywas
payment

not

private legaciesout

And

581.)

though

individuals

realty,yet it

payable

But

the

impure

marshalling

direction.

personalty,and

individuals, and

the

or

to be

were

sufficient for

realtywas

as

to them

estate

expresslydirected charitylegaciesto
out

estate

fail

to

come

the debts and

such

Society v. Kemp,

real

of

personaltyor realty,and
to

to

charitylegaciesby inserting in his

assets
a

proceeds

estate

held

were

directingthe

of

power

the

real

personalty. (See St. " 569, 1180.)


had

to be

intended

and

the

bequests,

charity legaciescould

would

of

proceeds

reserving

as

the

of

proceeds

proportionwhich
the

of

of the

paid out

legal objectionexisted

no

impure personalty,they

that

directing

impure personalty proportionately,

legallybe charged
the

of

charitable

considered

just as
legacies,

applying

to

the

personal estate

pure

of real estate, or the


like other

be

legaciesto

personalty,and

impure

or

fund

mixed

Instead

personalty.

pure

of

personalty connected

of

personal estate, or

realtyand

the

of trust, out

way

those

legacies

personalty,but
particular fund,

sufficient

or

gave
and

only sufficient

charitylegacies;

the

legacies

ADMINISTRATION.

a54

Tit.

Again, in

III.

Cap.

to preserve

of

Protection
widow's

parapher-

nalia.

for

assets,

personal and

better

opinion, even

or

of the

same.

is

Q.

B.

IX.
a

such, and

as

in the

it

181

husband

not liable for

are

of the

proved

to

ably
prob-

will

of

nature

that

they

were

With

to the

regard
that

in

administrator

500.

Tasker, (1895) P. 1.)

Taskerv.

be observed
or

giftsby

out

this

But

Sp. 821, 829.)

be

such

compensation

her

therefore

can

ceed
pro-

to

resort

to

of articles

case

to

paraphernalia. (See -Re Vansittart, (1893)

as

foreign
country by

funds

separate property, and

her

debts, even

given her

in

; 2

entitled

are

will decree

paraphernalia,unless

Assets

who

or

(St. " 568

be treated
his

devised,
specifically

estate

assets

or

wife become

other

his

all

after

of littleimportance, since

now

his

real

real

funds,

assets

apparel, is

necessary

real, including, according to the

oblige creditors

will

against

collected

paraphernalia,

widow's

debts

husband's

her

liable

Equity

IX.

exception of

the

with

which,
a

order

II.

general

collects

where

assets

foreigners,it

of

assets

domestic

in

is to

executor

foreign country,

domestic
executor

without

or

letters of administration

any

taken

out

or

any

administrator.

actual

administration

country, and brings


as

personal

domestic
If

Assets
received

by

foreign
executor

or

assets

to be

is

property

executor

remitted

received

by

whose

hands

to

such

treated
the

under

501.

foreign executor
remitted

against a

or

here,

could not

appointed here

it here, either

foreign

be

will
here

afterwards

administrator

claim

assert

they

(St. " 583.)

administrator,
and

in

administered

abroad, and
or

for

home,

them

administration.

administrator
an

accounted

in

person

here.

executor

or

it

be

for the
to

administrator

The

purpose

requireit

after the claims


or

be,

to

administrator.

it,if necessary,
here, would

happened

had

or

against the foreign

only mode
of due

of

reaching

administration

to be transferred

or

tributed
dis-

against the foreign executor


been

ascertained

and

settled

255

ADMINISTEATION.

abroad.

(St.

"

584

Eames

C.

18

Hacon,

v.

D.

Tit.

347,

III.

Cap.

II.

___

502.

851.)
In

deceased

determines

paid

be

(St.

domicile

of

be

may

(Wilson
In

the

to

north

Griselbrecht,

of

Lex

domicilii.

Lex

fori.

shall

of

the

furthest

Pearson,
Ch.

J.,
D.

175.)

504.

in

re

the

from

is

the

erltitled

same

Kannreitther

Kloebe,
504

to

And

Courts.

whether

south,

In

country.

according

English

creditors

assets

another

293.)

the

by

personal

enforced

creditor,

the

the

of

other

28

the

Beav.

be

must

them

with

debts

intention

in

18

rules

or

equally

(Judgment
V.

and

the

of

regulated

are

administered

claims

practice

the

although

Dunsany,

England

furthest

creditors

of

Lady

V.

which

of

out

domicile

503.

587.)

and

the

of

testacy,

testator,

situate

according

paid

"

law

fund

of

cases

priorities

The

the

the

in

and

-testator.

the

intestacy,

of

cases

a.

to

be

class.

256

III.

CHAPTEE

MORTGAGES,

OF

AND

PLEDGES,
I.

Section

Of Legal Mortgages of Real


Tit.

III.

Cap.

III.

Shot.

kind

I.

I. What
be

I. Genbeally

mortgaged.

II.

mortgage,
what

11.

to

to

and

repurchase.

considered

rule, that wherever


is

with

rightof

be

It may

estate

purchase

subject of a legalmortgage
Equity. (2 Sp. 614.) 505.

equivalentin

What'

amounts

in

the

be

sale, may

may

by

any

and

other

in

redeemable

on

be

as

made

Equity
the

part of

to

or
a

descriptionof

persons,

The

(St. " 1018.)

And

terms.
an

not

be

such

maxim

allowed

securitybeyond
except that
in

case

as

the

his

to

after be

ever

and

therefore

if at

or
an

to

it shall

obtain

shall be

or

will be void.

; and

and

rightof

mortgagor determines

to

creditor

advantage by

an

stated

be

mortgage always

principal,interest

hereinafter

not

particularperson

agreement

is,once

time

the

agreement

express

mortgage {Rice v. Noakes, 48 W. E. 110)


will

itself,or

rightof redemption

particulartime

an

money,

deed

mortgage,

parties that

the

of

by parol evidence,

even

transaction
the

that

as

usual

the

between

redeemable,
confined

the

on

appears
or

securityfor

it will
or
directly
indirectly,

whether

or

as

instrument,

assignment

or

its

or

universal

almost

an

as

conveyance

this intention

considered

of

intended
originally

whether

Property.

of property and every


description
is capable of absolute
it, which

every

interest

of

LIENS.

his

costs,

tion,
pre-emp-

sell,may

be

MORTGAGES

given

to

OF

mortgagee, which

right will

strictly.(See infra,par. 525.)


there

hand,

be

may
with

conveyance,

collateral

and

for

re-purchase

the

purchase-money,and

introduced
or

into

be made

may

at

6-21 ; Alderson
has

called

been

has

been

the authorities
20

defeasible

If the money

estate ; if he
of the

grantor, and

or

less

Cas.

will

the

though

he

will take

at

any

so

gross

amounting
vendor
the

to

money

time, with

if it is not

each

of

of these

ing,
evidence, showthe

conveyance

507.
be

deemed
it be

into

enter

for

damages
mortgage

as

for
in

the

it,

have

contract

declare

afterwards

given

necessity

alone

such

or

value,
under-

an

that

could

fraud

to

mortgage

show

to

as

purchaser

the

deed

security. (2 Sp. 620,

securityonly,though

pressure

induced

not

to the

rents

as

that

of

way

possession
equivalent to

grantor

considered

the

of

purchase

for the

cogency,

grossly

preparing the

of

Mortg. 22.)

if it is not

s.

Mortg.

be

amount

the

by

been

conveyance

for

this

Lead.

immediate

an

expense

merely by

; Eobbins

held to be

retained

has

more

intended

and

what

to

1 Eobbins

absolute

accounted

borne

was

with

or

tinction
dis-

as

76 ; Brett's

let into

if he

if the

circumstances

(See

grantee would

the

not

only

or

conveyance

for

was

estate ;

interest ;

the

paid by

inadequate price

622

And

seq.) 506.

"219 et

was

(2 Sp. 619,

But

purchase.

C. D.

the time,

at

mortgage and

not clear.

are

sale

J. 97.)

"

between

parte Odell, 10

Ex

taken

D.

White,

v.

either be

may

subsequent period.

Sect.

of

repayment

on

for

other

condition

or

condition

agreement

the

fide sale and

agreement

such

Tit.

construed

on

honCi

re-conveyance

the

be

But,

absolute

an

257

REALTY.

that

consideration
or

like

the

jnincipio, it shall
s

III.
I.

258

MORTGAGES

Tit.

III.

Cap.

III.

be

not

OF

REALTY.

afterwards.

by parol agreement

SO

(2

Sp. 622,

.,."."

Sect.

508.

623.)

I.

land

Where
and

interest

sell, and

conveyed

should

after

costs, to
unsold

is

over

the

of the

estate

to sell without

not

there

is

proviso

no

mortgage, and
time

to

the

to redeem.

Alison,

be

to

observed

Court

the

In

of

not

the

case

then

the

will

go

the

to

in

heir, and

side

only;

it must

III.

So

1.

long

^'

fiiua^Zdpossession,the
remedies

(a),

at

gyen

(a)
c.

41,

is

the
; but

mere

six months'

to

of

is

11

In

re

in

which

observed.

so

re-purchase, and
dies

seised, and

exercised, the

to

the

with

ought precisely

not

of

is

purchase

510.

one

not

the

personal
of

case

money
sentatives,
repre-

mortgage.

511.
transaction

cannot

is to be

it must

mortgage

mortgage

; and

be

be mutual.

be

borne

mortgage

(Bobbins

sidered
con-

on

Mortg.

512.

21.)
Mort-

light of

that

covenants

interest
this

purchaser

determining whether

mind

one

it

is

if the

it would

in the

the

principleon

no

Mortg. 20.)

(Bobbins' Mortg.-23.)
In

and

limited

is

right of re-purchase

as

Mutuality.

debt

time

transaction

redemption,

notice

months'

is clearlyone

there

; Bobbins

(2 Sp. 623

grantee

is entitled

relieve, if

can

to

509.

284.)

; and

sum

re-convey

Carter, 17 Beav.

v.

rightof re-purchase,the

and

the

the

grantor

day named,

redemption

the transaction

Where

III.

; and

for

{Bell

C. D.

11

surplus

pay

case

principal,interest, and

giving six

covenants

grantor

paid by

of

payment

pay

part

be

not

trust, in

upon

Law.

On

the

ss.

19"25.

subject

as

the

mortgagee's
For, by
of powers

stat.
of

continues

mortgagor
is

estate

15

mortgagees,

"

see

absolute,

not

16

Vict.

stat.

in

ii

"

c.

76,

45 Vict,

MORTGAGES

219, 220, if

ss.

ejectment

an

gagee,

provided

Equity

for

OF

suit

no

redemption

be

deemed

Court

the

But

estate.

when

and
possession,
of the

mortgagee

estate

is in

i-elation to
debt.

the

been

the

as

and

and

and

personal representativesas
1881

(44

after

the

all

by

however,

Now,

"

Vict.

45

41),

c.

of December,

31st

like

taken
Yict.

c.

this

of

out

73,

26

the

enacts

that

and

Law

apply

land

of

to

vested in the tenant

by

of

way

2.

enter

As

on

chattel

the

to

(2 Sp. 296.)

in

cases

of death

the

of

the

real

the

on

But

court

f"f''^^^'=*'

the

lie

copyholdswere
statute

50

"

51

Copyhold Act, 1894,

customary
rolls upon

The

Copyhold

^''^'^^""

of the

Property Act, 1881,

the

Law"o1'^'"

legal

(See

mortgagee.

or

Convey-

position,
testamentary dis-

thirtieth section

copyhold

The

shall

tenure

trust

or

mortgage." 513.

to

into

"

of

Conveyancing Act,

any

432.)

provisionby

Conveyancing
not

D.

replacedby

now

88, which

C.

heir

belonged

30,

chattel

of
personalrepresentatives

Pilling'sTrusts,

in

was

1881, the legalinterest in

mortgages, notwithstanding
devolves

s.

the

of

nature

to the

deemed

and

s.

this

Yet

mortgage

assets.

of

virtue

the estate

in

was

^''^''"^ e^t^t^-

ment
pay-

properly incurred
the

Mort-

to be in

the

although, where

i.

the

mortgagee'srights,he

possessionof

the

I.

the

in the

the

Sect.

and

securityfor

follows

personal estate,

certain

at Law.

mere

costs

mortgagee, yet in Equity it

interest

of

ceased

fee, the legalestate formerly descended


the

payment

to re-convey

default

absolute

mortgage,

And,

of

mortgage,

has

'I'it. III.

mort-

Court

any

stipulatedtime,

treated

interest

the

of the

mortgagor

has

the

will, except in

mortgagee

becomes

Equity

principaland

the

at

money

in

pending

costs

the

there

of the

brought by

satisfaction

compel

may

is

foreclosure,the

or

interest, and
principal,
cases,

is

259

REALTY.

lands, and

is entitled to
to

take
s2

the

2.

Mort-

S^S^"'^"S

260

MORTGAGES

Tit.

Cap.

III.
III.

Sect.

T.

the

contrary;

may

but

for

and

pay

an

sale.

; but

But

possession is

entitled to

not

of

1881,

by

the

made
in

mortgagee

who

incumbrancers

and

for

the

exceeding twenty-one

its

except that
be

Vict.
and

to

case

rent

for

nominal

He

41, s. 18.)

c.

sell timber

or

ornament

c.

41,

which

after the date

insured

trees not

property,

with

And

has

money

infra, par.

without

fine,

lease

in

may

mortgaged

concur

in

at

premiums

also, when

of

45

for shelter
"

45 Vict,

any

time

and

keep

being

interest, like

income

or

(44 "

insure

of

the

may

possession,cut

also

due, appoint

sell

there

planted

become

522)

property, and

he

take

to

rent

mortgage deed,

the

not

after

may

the

money.

lease

ripe for cutting. (44

mortgagee

not

months

also,when

property,

upon

lease

first five years.

may

and

twelve

building

the

are

of the

to make

such

best

insurable

mortgage

540) the

of

other

The

19.)

s.

charge

and

than

the

reserve

in the

against prior

as

building lease

every

later

possessionnot

date, and

in the

prevented

occupation

and

years,

been

of December,

mortgagor, power

exceeding ninety-nine years,


effect in

rents

not

unless

possessionhas,

agriculturalor

an

has

31st

after the

mortgage deed,

of the

terms

contract

of back

Conveyancing Act, 1881,

the

mortgage

into
.

possession. By

case

keep

may

entered

not

account

an

against a subsequent mortgagee

as

he

as

Mortg. 801, 804,

has

who

mortgagee

receives, or,

received, and

have

part

He

waste.

he

rents

Bobbins

possession. (2

own

1205.)

in

for the

occupation-rent for such

his

in

commit

default, might

wilful

to

agreement

some

not

may

account

must, however,
his

he

is

security is insufficient, he

if the

and

mines

open

Possession,
leases,rents,
timber,
insurance,
receiver,

there

unless
profits,

and

rents

REALTY.

OF

the

the

gage
the mort-

receiver

(see

mortgaged

selling(see infra, par.

property. (44

"

45

Viet,

c,

41,

Tit.

III.

Cap.

III.
I.

Sect.

Clarkson

(Bobbins Mortg. 132;

prejudiceof subsequent

to the

the

interest

on

be

default in

money

regular
payment.

shall be

punctually paid,

not

increased,

cent,

the

nature

of

grant

relief ; but

shall

be

if the

the

rate

Leases
the

mort-

gagee.

rent

advantage
a

lease

terms

been

632.)

But

upheld

; and

lease

"What

The

the

mortgagee
add to
may
his debt.

Expenditure.

mortgagee

his debt

any

in the

in

or

at

for

be

(a)

As

to

the

validityof

principalpayable

ffudson, L. R.

4 H.

an

in

default

L.

1.

of

been

because

of_a

519.

Mortg. 17.)
a

right
the

for making
punctual payment,

to

add

to

pay

for

title to

the

compelled

maintaining

agreement

has

property leased,

estate, or for re-buildingthe premises, or

of

(2 Sp.

fair rent

of the

Eobbins

taken

to obtain

necessities.

possessionhas
may

likely

property would

be set aside

value

(2

he

sums

of rent,

arrears

years

will not

of years.

course

those

at

mortgagee

mortgagor
the

which

for 21

lease

payment

having

mortgagee

except for

let

be

shall

great suspicion,as

the

upon

subsequent change
in the

with

upon

the

to

mortgagor

necessities of the

of the

upon

have

not

the

by

the

that

or

Mortg. 1157.) (a) 518.

Eobbins

originatedin

have

to

of interest

if the

will be enforced

in

cent., but that

at 51. per

interest

and

looked

are

51.

will

Court

punctually paid, 41. only

be

made

mortgagor

punctual payment,

on

punctual. (2
Leases

to

provisionthat

payable,is good,
is

the

the

shall pay

interest

interest

of

rate

penaltyagainst which

reduced

mortgagor

the

mortgage

punctual in payment, but


appointed day, is regarded as

if after the

per

the

on

for instance, that

as

agreement.

cent, if

41. per

shall pay

of the

interest

if the

provisionthat

of

of which

517.

(Eobbins Mortg. 1164.)


Increase

principal

into

incumbrances

at the time

notice

has

mortgagee

14

Henderson,

v.

be turned

interest cannot

; but

C. D. 348)

REALTY.

OF

MORTGAGES

262

to

for necessary

see

larger amount
Thompson

v.

MORTGAGES

repairs,or

the

expenses

263

OF

REALTY.

of

renewing

renewable

Tit.

III.

Cap.

in.

...

with

leasehold,
advanced.
entitle

from

interest

But

he

himself

cannot, by
make

to

allowances

just

them

unless

have

or

been

they

been

have

of his

is

mortgagee

D.

in

debt.

Turner

The
a

v.

and
the

be

expense

for

his

the

of

rents

(and,

if

appointed

business),will
trouble.
under
to the

stat.

Court

be allowed

"

may

37 Vict.

"just

in

have

might

or

it is

the
as

be

K.

well,

conduct.
mispays

to

his

Ch.

charge

any

agreed

convenient

"

Allowance

for

the
he

that

employed

get in

to

to

the

outgoings

carry

25, when

at

duly

person

the

on

for his

remuneration

s.

as

receivingthem,

appointed by

66,

to

521.

necessary

proper

c.

his

been

But

duty

manager

receiver
36

been

trouble

pay

for

personally received

mortgagor.

profitsand

and

adds

to make

have

appointed receiver, whose

by

redemption

C. D. 803.)

has

it may

suit

them

Stratton, L.

allowed

receiver

suit for

81

is entitled

forfeited

has

is not

paid

though

20

though

even

In

mortgagee

Mortgagee's

mortgage.

Cas.

mortgagee

himself

costs

Games,

Hancock,

mortgagee

should

the

all

v.

{Cotterell v.

receiver, if he

rents,

he

520.

469.)

the

191.)

the

Mortg.

of England

the

plaintiffin

costs, and

own

mortgage
295

Lead.

costs, unless
The

his

Bank

It has

Bobbins

to

of,

consent

allowed

be

to

for

improve

not

C. D.

21

relation

foreclosure

or

must

Jones,

v.

entitled

Brett's

582;

taxed

his

allowed

the

property. (2

incurred

redemption

included

not

be

with

i.

management.

are

not

done

mortgagee

{Xatioiiai Provincial
C.

been

Shcpard

reasonably

will

he

Sect.

were

otherwise,

or

for

Improvements

; and

that

out

1203"1207

contract

sums

acquiesced in by, the mortgagor.

observed

mortgagor

the

time

charge

any

(2 Sp. 649, 650, 658.)


in

the

the

Court

it appears

(j^nxt,
par. 786)

TheJudi'

; or

i^^j^

264

MORTGAGES

Tit.

III.

Cap.

III.

Sect.
The

I.

Convey-

the

by

deed

the

by

; or

41,

c.

the

parties,by

19.

s.

ancing
Act,
receiver

Bobbins

under

by

or

stat.

919

Mortg.

render

must

deed

mortgage

mortgagee

(2

REALTY.

OF

all

of

the

522.

outgoings.
Mortgage

But

receipts and

1881.

West

Vict,

46

"

seq.)

et

of

accounts

45

separate

of

mortgagee

India

West

estate

stipulate

may

India

the

that

estate.

if out
the

of

consignments

shall

possession,he

may

make

that

the

of

'management

whom

mortgagor,
takes

his

on

stipulatefor
and

the
in

Mortgage

As

of'

mortgagee

where

becomes
is

is
on

he

avoidance

may

pray

the
the

only

is

of sale
be

sell.
must
no

effect of the

wishes

or

positionof

the

gagee
mort-

(Bobbins

estate.

any

advantage beyond

and

costs, it follows
the

living

present the nominee

deed

but

contains

the

shall

mortgagee

of the

advowson

covenant

that

present.

But

(Bobbins Mortg.

524.

to

must

charge

foreclosure, the mortgagee

to

at

option of pre-emption, in

there

cannot

sale of the advowson.

mortgagee

option

he

although nothing

; even

any

determine

he

he

mortgaged, and

the

prior to

mortgaged, and

The

when

trouble

interest
is

compellable in Equity

169, 1016.)
Pre-emption.

not

the

English

allowed

is not

advowson

an

vacant

mortgagor

But

do

liberty to charge

the

an

securing his principaland


that

provided he

for

consignments, insurance,

in

stands

reward

523.

Mortg. 1193.)
advowson.

at

; and
on

possession of

certain

And,

him.

ousted, for the

has

commission

like, but

to

condition.

account

own

take

is not

he

made

estate,

employment

tal^espossession, he

be

to sell the

libertyto
the

case

(2 Sp. 631.)
be

left

restriction

to
as

is
stipulation

stipulatefor
mortgagor
In

the

should
case

mortgagor,

to the
that

such

price ;

if the

mortgaged property he

must

the

and

the
and
the

mortgagor

give the

MORTGAGES

mortgagee the
mortgagor
of

the

of

default

refusal.

in

him,
and

mortgagee

view

the

case

the

did not

power

to

s.

Also,

of

the

in

the

increased

any

produce his

deeds

in

had

his

Production

of

mortglfer

claiming

person

principaland interest

information

mortgage (2 Sp. 655)


the

of

completion

with

; unless

sale

to

consented; but that privilege

injuryof

third

their

parties.(2 Bobbins
of

case

1881,
cost

own

the

mortgages made
have

mortgagors
documents

(44

contrary.

mortgagee

"

the

mortgaged property
descend,

to

; and

of

costs

by

libertyto

at

was

such

the

of title

Vict.

45

c.

41,

31st

of

December,

mortgaged

estate

solely,the

same,

1881, of
or

his

30,

on

of

old law,

But

the

have

although
by

now,

death

after

in whom

inheritance

notwithst'anding any
upon

legal Right of

then

mortgagee

interest

disposition, devolves
in

the

must

Sp. 669.)

s.

the

trustees, instead

re-conveyance,

(2

the

devise

under

mortgagor

obtaining a
devise.

to

it did

as

Conveyancing Act, 1881,

vested

(1 Bobbins

to

the

obtain

to

the

vested

the

mortgaged property, notwithstanding

to his heir-at-law

the

^ect.^i!'

case

at

money

III.

applicationfor production

December,

of

inspect at

allowingit

borne

Tit.

526.

16.)

estate

or

Now,- however, in

stipulationto

any

of

of the

for

or

bound

any

the

off the

to the

31st

relatingto

mortgage

not

was

fide, only

mortgagee

Mortg. 814.)
the

specifiedprice,in

mortgagor

fraud,

extend

after

at

deed, is void.

payment

paying

of

which

until

bo7id

to

with the

advance, for the purchase

indeed

or

costs, though

made

him

by

525.

possession,to
under

265

contract

of the

payment

mortgage deed,

the

by the mortgage

Formerly

were

of

REALTY.

mortgaged property

Mortg. 15.)

due

But

the time

at

fixed

time

OP

and

personal representativesfrom

is

mentary
testa-

becomes
time

to

deviseThe
P'op^rty.

266

MOETGAGES

Tit.

III.

Cap.

III.

Sect.

I.

with

time

like

the

the

assignswithin
"

(44

Vict.

45

who

41,

necessary

(see Re

Williams,

36

of this

out

Mortgagee
ejectingor
refusing

If

accept

but

provision. (See
in

mortgagee

231)

D.

be
; Re

432

taken

are

527.
refuses

or

is liable

he

responsible tenant,

out

no

will

513.)

par.

possessionturns

is

order

copyholds

supra,

and

powers.

there

Trusts, 26 C.
Pilli?ig's

C. D.

heirs
and

Where

vesting

personal representative, a

were

his

of all trusts

30.)

s.

same

deemed

are

meaning

c.

if the

as

powers

real, and

chattel

REALTY.

OF

for

to

loss

any

tenant.

occasioned
Priority.

Both

(2 Bobbins

thereby.
Law

at

and

in

Equity,

particular circumstances,
all

recognizances,

(Bobbins Mortg.

charges
in

all other

rank
maxim

quiprior

Mortg.

1237

Rice,
40

C. D.

according
The

their

to

182.)

the

that
in

dates

2 Wh.

Lee,

v.

78 ; Farrandv.

And

where

of

accordance

"

the
affecting

property, the lender

claiming

party

with

; Rice

107

on

an

prior equitableagreement

under

gainsno priority

the

prior equitable

that

himself

has

made

prior incumbrancer.
18

{Mumford

Eq. 556, post,

par.

does
or

not

apply

chattels

to

real, or

real estate, unless


is

on

trust

money

v.

notice

to

the

the

being

the

for the

the

doctrine

on

vested

proceeds

of

legal holder,

personaltyas

charge be

notice

Stohwasser, L. B.

equitable charges
to such

trustee

And

586.)

prioritybeing gained by

v.

equitable

legalestate, after

mortgagor

the

Banking Co.,

agreement, by getting in the


the

equal

(2 Bobbins

Tu.

is lent

notice of

the

dates.

priorityof time,

Yorkshire

money
a

of
and

equitiesare

mortgage,without

over

their

to

tempore potior est jure.

est

same

absence

priority of equitable

estate, where

Marsh

Drewry,

rank

respects than

according

the

in

statutes, judgments,

1238.)

real

on

528.

Mortg. 805.)

real
is in

in

of

sale

estate,

Equity

trustee, or
of

real

MORTGAGES

estate,
on

or

on

such

any

only reach

interest

it has

case

of

case

there is

advance

without

incumbrancers,

incumbrancer

who

had,

the

an

of the

subject

time

of the

he

the

Thus,

if

lending his

third

second

both

the

first

the

so

as

will

mortgagee

prevail.

in

tack his

tioned,
men-

(2 Bobbins

prior mortgage,

judgment

to

such

prevail.
time

second

notice

the

of

gagee,
mort-

third

also ;

Mortg. 1215.)
will

or

so

tack
the

on

the
But,

the
Law
if

recognizance,
be

not

mortgage,

the

redeem

to

equal

equitiesare

that

; so

permitted

the

he

of

legal title,and

his favour

be

not

the

maxim,

right,Equity will

own

redeeming

where

prior

the

after

acquire

to

of

the

must
at

of

the

the

to

Law

puisne creditor, by judgment, statute,


buys

not

legal mortgage, judgment,

togetherin

first, without

shall

the

notice

no

securities in his

principlethat

will

obtains

over

according

has

incumbrances

second

prior

notice

no

afterwards

recognizance, even

mortgage,

holds
both

or

of the

just

cases

mortgagee, who,

money,

purchases
statute,

trust, he

advance,

equal

equities are
a

for all

for the

trust

the

to

an

obtains

trustee

priority

obtains

equitable incumbrancer,
where

makes

rights,or

express

prior equitable incumbrance,


legal estate,

And

subsequent equitableincumbrancer

at

in such

equitable

who

of their

notice

priority. But

assignees in

legaland

from

sect.

of

shape

prior incumbrance

notice

after

where

legal estate

with

can

Mortg. 1236, 1237.)

of

affected with

legalestate

obtain

the

of

conveyance

as

personal, and

incumbrancer

notice

the

to successive

of chattels

subsequent

in
beneficiary

Tit.

estate, or

in trustees

vested

reference

(Bobbins

of real

out

distinction between

no

incumbrances.

of the

assignments

where

raisable

in land

the hands

; but

money

portion

267

REALTY.

OF

as

allowed
to

cut

to
out

Tacki

hi.
i.

268

Tit.

Sect.

MORTGAGES

III.

postpone

or

c.

land, and

right in

any

be

V.

lien

would

appear

under

the

18th

as

stat. 27

"

28

Mortg.

section

1229

Vict.
; but

real estate,

Fisher

see

Act, however, the

right

to

delivered

in

execution

otherwise, and
with

the

that

seem

rid

legalmortgage.
the

the

charge
creditor
off

cut

have

which

land

has

that

Act,

has
the
a

And,

been
a

judgment

creditor

Mortg. 1351.)

equal

the

the
Law

it would

cannot

get

in

first

debtor, the

the
of

means

to

tacking,to

other
in

v.

Freethy,

hand, when
execution

even

affect
elegit,

the
under

although
the

he

right

of

by tackingto his prior mortgage

charge subsequent
Upon

in

cannot,
of

ance
accord-

Fisher, 566.)

see

512; Davis
the

prior mortgagee

or

preceded his judgment.

CD.
on

actually

judgment being only

actuallydelivered

notice of the writ

no

the

no

elegit

And

Act.

remains

which

32
{Ex parte WhiteJioiisc,

24Q.B.D.519.)

of

by getting

right, by

no

incumbrance

an

the

is

land

(Bobbins, 1230; but

interest

can

that

the

Since

registeredin

is

the

as

affected,and

deliverycreditor

effect of

far

will

(Bobbins

writ

incumbrances

mesne

Moreover,

judgment

after

judgment

case.

the

under

provisions of

even

the

of

the

although,

case,
a

is not

until

arise

can

opinion

better

Mortg. 566.)

land

Spencer

except so

112, affects the

c.

latter

tack

tliatAct,

of

might

or

1228

this is still the

that

2 Vict,

1 "

might

the

acquire

not

stat.

Mortg.
And

266.)

charge on

operate

the

before

(2 Bobbins

to be

did

he

land, which

the

on

Beav.

24

judgment,

not

credit

immediate

the

on

land, but

enforced.

Pearson,

his

by

the

only a

110,

not

his money

did

he

; because

mortgage

mesne

advance
I.' originally
of the

REALTY.

OF

to

the

judgment.

(2 Bobbins

529.

principlethat
shall

where

prevail,if

the

equities

are

first mortgagee, who

270

Tit.

Seot.

MORTGAGES

in.

I.

cannot, by buying

incumbrancer
tack

g^ge,

it to

land.

the
And

between

his

creditors,

bond

or

purchaser

and

even

of the

(St. "

the

By
Vict.

date

; 2 Eobbins

418

trustee,

paid in

the

the

takes

the

call for

the

proper

mortgagor

; 2

assigns

mortgagee,

postponed

to

has

not

38

is

the

an

over

from

as

done

532.

129.
in

prior

vested

in

obtained

the

droit,the incumbrances

priorityin point
est

he

who

has

for

the

its

time,

better

protection,

533.

executed, and
the

of

-potiov est

tempore

Sp. 745.)

inquiry for

handing

for not

the

419

s.

is

Qui prior

legalmortgage

makes

to

"

repealing

bought

legal title,or

prevail. (St. "

reason

531.
(37

of the

estate

principlethat

shall

the

beneficial

or

anything

to

as

has

in autre

maxim.

to

or

only (to

England

Act, 1875,

legal

of their

right

Where

other

commencement

puisne mortgagee

the

jure, and

in

against

heir

to

as

Transfer

the order

according to

or

Act, 1874

operation,except

he

legaltitle,or

rank

priorityor protectionby
taken
But
by tacking,was
away,
repealed

but

the

or

superior

Mortg. 1234.)

puisne mortgagee

incumbrance,

are

the

Purchaser

and

before

but

statute, by the Land


When

against

equity of redemption,

was

of its

thereunder

it

7, the right of

s.

enactment

the

mortgage,

of

(which

himself,

Vendor

78),

c.

debt

against the mortgagor

legalestate, and

this

of

credit

tack

cannot

circuityof action)against

devisee.

any

land),

he

Mortg. 1233.)

bond

incumbrancer

intervening

avoid

having

charge on

Eobbins

see

niort-

because

immediate

the

on

; but

Sp. 740

subsequent

judgment,

or

his money

(2

is not

se

any

statute

prior mortgagee

per

his

advance

did not

REALTY.

OF

title

the

gagee
mort-

deeds, and

apparently satisfactory
or

producing

legal mortgage

the

'will

prior equitable,mortgage,

of

deeds
not

be

which

MORTGAGES

the

OF

legal mortgagee
Bank

(Agra

68

Where

L.

J. Ch.

first mortgagee

to

of the

notice

fraud

such

other.

But

legalowner.
to

Co.

So if he
he

knows,

he

will

Wilson

is about

be

has

inquired of

not, will
has

be

trustees.

to

(2

Sp. 764;

sale, omits
is

given

postponed to

to the

of his
L.

real estate
to

Hinton, 68

the

1 Ch.

315.)

who,

person

the

subsequent

as

mortgagor,
(St. " 390

given

brancer
incum-

second
notice

of his

property, whether
state

of the

title

to the

And

C. 215.)
devised

trustee, before

incumbrancer.

if

in trust

he

or

who

incumbrance

subsequent incumbrance,
the

Gas.

prior incumbrancer,

Brett's

give notice

to

of

on

Lead.

v.

person.

of the

notice

to

trustees

give

prior incumbrancer

from

has

{Northern

(1898)

money

as

them

Lloyd's Banking

; Oliver

Eq. 32.)

14

preferredto

omitted

made

Brocklesby v. Temperance

that

to

fraud.

Broum,

lend

them

Mere

if he has

Brett's

fund, who

to the

incumbrance
he

to

trust

mortgage

postponed

of

482

to

postpone the

will not

A. C. 173

Wilson, L. R.

V.

g^gee.

proving

" 1010.)

see

C. D. 124

221

his

conceals

III

pi^J^^t.

the

seeking

person

guiltyof

Castell and

; Re

ill.

Postpone-

without

deeds, or has entrusted

21

Building Society,(1895)

of

onus

postponed

C. D.

26

the

; and

prudence

the

Palmer,

v.

94

allows

or

purchaser

or

the

on

will be

Jones, 29 C. D.

L. J. Ch.

deeds,

But

393

been

Whipp,

v.

; Clarke
V.

he

has

agent who

Insurance
210

of

inquiry for

proper
an

(St."

want

or

Tit.
Cap

Sbo't.
I.'

v.

negligence,allows

gross

title

negligenceis

or

carelessness

no

or

prior mortgage.

the

postpone

fraud

subsequent mortgagee

OUrer

135;

get possession of them, he will be postponed

to

mortgagor

L.

and
voluntarily,
distinctly,

retain" the

to

mortgagor

H.

notice.

or

534.

94.)

through
unjustifiably,
the

knowledge

no

Barrij,"L. R.

v.

Binton,

had

371

REALTY.

for

notice
will

{Lee

be
v.

272

MOETGAGES

Tit.

hi.

Cai'.

III.

Sect.

I.

Howlett,
and

2 K.

OF

J. 5R1

"

in land

estate

But

trustees, either
to

or

K.

Harrison,

it J.

in order

mortgagors
of

delivery of

the

taken

trust
and
Infants'
1874.

equity than
prior

representing himself
be

postponed

him

to

of

3.

As

created

be

an

"

the

age.

remedies

discharge of
the

cases

Foreclosure.

An

the

intermediate

subsequent

to

C.

93.)

mortgage
estate.
be

taken

Vict.

the

of

b,

521

{ante,

(whether

otherwise) will

or

{Inman

62

c.

infant

an

adult

of the

mortgage,

executed'

by

L.

Inman,

v.

mortgagee
the

E.

cannot

(2 Sp. 674.)
until

the

notwithstanding a

and

all

{Greenough

entitled to

person

money

is entitled

foreclose

v.

secure

is in many

(St. " 1026.)

mortgagor

himself.

to

mortgagee
foreclosure

appropriate remedy.
against

D.

brancer
incum-

(St. "

38

by

gagee'.s
remedies.

with

declaration

mere

incumbrancer.

stat. 37

to

full

the

to

subsequent

continuing

and

subsequent mortgage

if

advantage

an

536.

Eq. 260.)

15
Mort-

when

gagor
mort-

535.

of the

charge

give

to

Sp. 279.)

132a),

par.

an

(Brett'sL. C. 215.)

creating

held

Independently

Relief Act,

to

of

outstanding term,

an

deeds

by

; 2

note

of

trust

better

{Eooper

notice

give him

trustees.

are

been

has

term,

his

protect his title (Re Richards, 45 C. D.

to

declaration

give

not

589, 595), though it will


the

his title

transferee

to

himself

to

secure

And

86.)

need

equitable mortgagee

occasion

no

complete

to

equitable

an

incumbrancers.

priorityagainst subsequent
V.

of

to be sold has

against his mortgagor

as

29 C. D. 702

Arden,

v.

mortgagee

directed

not

to the

give notice

Arden

ante, par. 436.)

see

KEALTY.

to

537.
closure
fore-

mortgagees
Littler, 15

part only of the

a
a

Proceedings for

portion

of

foreclosure

mortgage is actuallypaid off


decree

for

redemption

for

the
may
and
the

MORTGAGES

mortgagor

make

may

Where

1003.)

infant

it is usual

to

158)
will

be

show

when

Co.

"

28 ; 37

c.

the

foreclosure

except in
will of

Court

mortgagor

property instead

"

16

the

such

after

suit first

the

last payment
or

; 2

1, 8, 9

ss.

Vict.

to

86,

c.

"

16

decree

but

under

trial,but

direct

Vict.

86,

c.

s.

provides(1) that

any

person

for sale,or

or

alternative

raisingand

the

of any

person

S.

and
or

Eobbins'

for

on

in

the

refused,

against

the

that

statute

the

on

Sale.

an

locutory
inter-

mortgaged

48, is repealed by Conveyancing


Vict.

45

c.

for

either

for
in

action, whether
for

sale,or
of

manner

of the

interested either in the

order

redemption

or

any

request

41), s. 25,

entitled to redeem

redemption,or
in any

on

sale

not

sale

for

(2) that

payment

Court,

money,

1 Vict.

540.

foreclosure.

(44 "

for foreclosure,
the

"

Court

mortgaged property may have a judgment or


action
sale instead of for redemption in an
the

interest.

48,

s.

sale of the

1881

redemption

d- S.

within

but

brought

Conveyancing Act,

which

absolute

538.

707.

24 ; 7 Will. IV.

57,

D.

C.

25

{Wolr.

principalmoney

at the

of

15

stat.

be

c.

to
application,

The

C. D.

s.

cause

infant, the day to

years

27,

cases,

enabled

was

show

decree

made

mortgagor,

Porter,

v.

being instituted, the

few

the

15

stat.

suit
a

is

539.

Mortg. 1058.)
Before

c.

Viet.

38

to

right to bring

twelve

IV.

day

the

24

part of the

4 Will.

3 "

the

that

cannot

the

within

or

of any

(See

suit

after

years

accrued,

of

dispensed with.

George,

v.

foreclosure

twelve

infant

it is clear

will be

cause

foreclosure

devisee

beneficial for

more

Banking

of

or

give the

(Robbins' Mortg.

judgment (Mellor

but

heir

278

REALTY.

default.

decree

against an
against the

OF

for

mortgage

mortgagee

mortgage

money
T

or

'^"*'^**^'

274

Tit.

Sect.

OF

MORTGAGES

III.
I.

in

or

the

right of redemption, and

notwithstanding

and

notwithstanding

dissent

the

the

that
not

other

of any

mortgagee
in

appear

time

or

reasonable

it thinks

terms

in

(3) in

an

right

of

the

Court

sale, and

of

expenses

direct the

directions

to

sale

The

either in

at

decree

absolute.

C. D.

20

is made

for the

the

where

{Great

Though

power

at

time

the

sale

he

Court

direct

of the

will not

brancers.
incuman

upon
21

C. D.

redemption

action

concluded
London

by

exceeds

the
v.

Ingram,

v.

the

on

under

act

the

Act, provision

same

Railway

this

value

sale
tion
sec-

of

the

Sanderson,

25

a.

of sale

would

mortgagee

not

be

cannot

(2 Sp. 634, 646.)


the

of

give

be

harshly exercised, and

when, having regard to the interests of the

mortgagee,
yet

Bank

Northern

540

is

incumbrance

Ch. D. 788.)
Settingaside

action

sect.

and

may

dischargeof incumbrances
the

But

of land.

land.

By

463.)

costs, give

Colman,

v.

or

(Union

the

defendant,

any

directed

foreclosure
the

before

time

any

the
of

prioritiesof

interlocutoryapplication{Wooley
169), and

interested

person

Court

be

may

of

meet

defendant,

any

(4) the

fit,

seeking a sale, the

determining the

without

sale

costs

to

as

to

give security for

sale

the

of

application of

to
plaintiff

conduct

the

redemption, and
the

Court

performance

secure

brought by

action

on

may,

to

the

of

it thinks

as

Court,

the

by

mortgage

sale

deposit in

fit,the

fixed

sum

of the

terms

does

allowing any

fit,direct

such

mortgaged propertyon
including,if

without

for payment

or

interested

so

person

any

thinks

if it

may,

money,

person,

action, and

the

redemption

for

REALTY.

The

for his

have

impeached
power

own

been

of

advised
on

sale

that

to

sell,

account.

being given

benefit,the Court

to

will not

MORTGAGES

interfere unless

to be

as

C. D.

But

of his

tender

of

they

be

principal

and

wUl

be

with

purchaser,

set

aside,

notice

of

Jones,

2 Gif. 99 ; 2 Bobbins'

sale may

be made

without

his

condition.

Beav.

reversion

client

security ample),
and
a
against him

as

{Jenkins

tender.

v.

541.

notice to the mortgagor,

without

unless

concurrence,

that

Neivman

made

is

Selfe,

v.

by

to his

as

in the

or
solicitor,

necessitous

be

notice may

to sell without

power

by

(and costs, unless

Mortg. 904.)

certain circumstances,

under

sells, after

33

542.

522.)

But

the

the

the

(2 Sp. 635

20

1 Gif.

Norris,

v.

if he

interest

unascertained, and

are

sale

and

And

appeal.)

on

than

oppressive
of

case

gage
mort-

of

mortgage

(Bobbins' Mortg.

person.

543.

894.)

mortgagor is required,a clause

to the

notice

Where

purchaser should not be requiredto ascertain


that notice had been given,and that the mortgagee's
receiptshould be a sufficient discharge,does not apply
that

to

where

case

knowledge

that

the

purchase
1 Dr.

(Parkinson v. Hanbury,

"

not

Sm.

sells and

mortgagee who

The

has

notice

such

case

he

to

will

obtain,

as

against

the

544,

trustee

purchase the mortgaged estate.


Mortg. 906.) But a second mortgagee may
of sale from the first mortgagee ;
a power
allowed

given.

been

143.)

his

actual

with

made

is

are

not

(Bobbins'

buy
and

under

in such

mortgagor,
T

Tit.

III.

SkoV;l.

so

Jacob,

v.

purposes

(Robertson

money.

price is

oppressiveand

as

for other

impro-

Clowes, 21 C. D.

v.

aside

set

the

{Warner

Martinson

see

it is made

affirmed

the

and

reckless

or

unless

or

of fraud.

sale may

irregularwhen
recovery

fraud,

evidence

220, 224;

861.)

421

to

275

REALTY.

is collusion

there

prietytantamount
low

OF

an

276

Tit.

MORTGAGES

III.

I.'

Seot.

bury,L.

E. 2 H. L. 1 ; Shmv

Kirkioood
A
a

(Wms.

costs.

But

only

answerable

so

notice.
A

remedies

of

to

(Thome

mortgagee

of

that

given

of

power

redeem
not

his
what

But
the

on

has

for

the

value

satisfythe debt,
suing on
doing so

the

he

1 Ch.

or

is

bond

on

he
or

givesto

bond

the

obtains

of the
a

is not

by

mortgagor

If

277.)

the
to
or

only part
go

with

on

account

for

covenant,

he

On

remainder.

is not

; but

the

prevented

may

or

may

in

first,and
sufi"cient to

absolutely precluded

covenant

the

also

entitled

foreclosure

of the estate

is

covenant,

obtains

he

debt

and

payment,

covenant,

the

mortgagee
time

mortgagee

non-payment
if he

hand,

allegesthat

or

recovered

foreclose
other

bond

the

bond

of

estate,and

foreclosure

if the

If

suit,and, giving credit in

foreclosure
he

fact

pleases,
with

interfere

same

the

on

estate, and

allowed.

payment

payment

all the

he

when

Hill, (1893)

v.

is, by the

the

the

at

(Powlett

full

mortgagor

the

remedies

action.
obtains

of real

belonging

Mortg. 867.)

not

by bond,
collaterally

all his

pursue

and

foreclosure.

to

mortgagee

and

covenant

same

does

by the mortgage

secured

as

Bobbins'

therefore

sale
the

of

right

may

him,

to

concurrently. (2

even

he

are

has

547.

exercise

mortgagee, and

his character

powers

remedies

the

is

gagor
mort-

equities he

or

all

use

may

the

than

(1895) A. C. 495.)

Heard,

v.

sale

of

power

other

persons

incumbrances

whose

of

Concurrent

exercising his
to

an

546.

95.)

Account,

on

mortgagee

render

interest,
respect of principal,

in

of his claims

account

being

power,

surplus proceeds, must

the

of

trustee

his

545.

392.)

under

sold

has

who

M.

"

Han-

J. " S. 468

2 D.

Bunny,

v.

2 Hem.

Thompson,

v.

mortgagee

and

property. (Parkinson v.

title to the

irredeemable

REALTY.

OF

it is held
renewed

from

that

by

right to

278

Tit.

MORTGAGES

III.

Sect.

Equity

I.
of

redemption.

if the

Hence,
of

the

redeem, before

has

which

during

made

title

the

by

or

of

his

mortgagee will then

be

treated

mortgagor's

for the

the

profitthat he

for his wilful

St.

" 1013, 1016,

Taylor

The

the

that

transaction,

might

have

"

4 Will.

Eobbins'
unless
new

been

IV.

by

105,

settlement

subjectto

the

of
uses

the
or

the

which

affected

may

reversion

be

of the

a, fine

s.

2,

to

the

clear

if

and
or

since

this
may

entailed,

recovery,

and

as

is liable

the

statute

(St. "

1015

equity of redemption,
intention

to which

And

of

making

property,
the

the

by inaccuracy or

equity of redemption

itself sufficient to alter the

And

land, which

ment.
agree-

express

an

dower.

mortgaged

mortgage.

to

such

from

deed,
disentailing

trusts

subject before

incident

an

in the

by

Also

appears

ing
of redeem-

Mortg. 14.)

curtesy, and,

Mortg. 44.)

there

ordinary

or

Equity

entailed

barred

c.

in

by

even

equitable estate

tenancy by the

146

Upjohn,

v.

disannexed

be

; Eobbins'

1019

be barred

now

may
to

has

granted, devised, and

be

(See

made.

; Mainland

of

which,

or

way,

redemption,

controlled

or

an

kind

Account,

on

inseparable

so

it cannot

(St. "
constitutes

the

compelled

for every

ordinary

226

mortgagor

estate, is

mortgage

the

trustee

will be

Wms.

of

equity

common

the

he

551.

126.)

right which

C. D.

33

Mostyn,

v.

C. D.

41

1028

by

of

mortgagee

default,he might have

but

is lost

to

ment
acknowledg-

no

account

in the

made

allowed

preciselyas

as

estate, and

has

receipt

right of redemption,

mortgagor, inasmuch

to re-convey

to be

right of redemption

years

been

possessionor

apphes

mortgagor

the

twelve

of

REALTY.

is in

mortgagee

and
profits,

lapgg

OF

remains

property was
mere

form,

mistake, of

is often

previoustitle. (2

not

of

Smith's

MORTGAGES

Eeal

and

Personal

mortgagor

ed. par.

by

subsequent deliberate act,

mortgagor.
views

such

And

if

Mortg. 633.)

transaction

with

his

payment

of the

less than

its

value, the

included

therefore

two

{Hall
The

Hnvard,
with

rule

gages

still holds

made

before

the

a,nd

them

of

one
V.

Act

is

regard

mortgagor,
without

therefore
same

lends

mortgagee
on

the

property

and

of

the

estate

him

the

case.

to

the

from

redeem
Where

others.

distinct

two

to the

sums

although created by
different

at

in

personal,the mortgagor
him
(even a purchaser of
mortgagee

or

where

or

securities
allow

were

right of

the

Consolidation,

securities,although they be

two

instruments,

of mort-

mortgages

as

other

whole.

a.

is often

as

cannot

the

Act, 1881,

to

only equitablesecurities,and
although

the

more

the

included

consolidation

described

redeeming

mortgagor

distinct

553

where

or

Where

he

redeeming

the

refuse

to

{Ford

aside.

set

advance,

one

expressly excluded,

two

considerably

sum

properties are

Conveyancing

be

for

pressure

mortgage.

430.)

to

good

mortgagee, having

one

for

C. D.

may

same

without

32

the

Consolidation

same

circumstances

part of the mortgaged

distinct

mortgage,

redeem

the

more

Court

the

553.

redeem

in

or

for

sale will be

cannot

mortgagor

one

embarrassed

Eq. 461.)

of the

jealousy. (2 Sp. 654.)

mortgage debt)

property
in

But

equity of redemption (under

Olden, L. E.
A

in

mortgagor

gagee
mort-

equityof redemption

(1 Bobbins'

conveys

V.

the

purchase

III.

stoV.
L

extinguishhis equity of redemption. Thus,


may

Tit.

; Jones

1094

552.

205.)

may,

279