-*? !

,\,V i
v\\\

Vya\\\^

SsNr'xi'*'^^ V \\ O

Sisv
(flnrupU Ham Btl^aal Sjibrary
 KF 399.S88'l92o"''*™">"-"'"'y
*i?iII?,!Il?.!?«?r'e8on
l^aKifprudence

R. S. STEVEMS
DATE DUE
^^i-"^
^z ^
"YJ^
UK

i?r«T*"
i;;.

_L

GAYLORD
■■mmF'^
PRINTED IN U.S.A,

I-Tiwj.;;;;,;; V :, ■'
 Cornell University
Library

The original of this book is in

the Cornell University Library.

There are no known copyright restrictions in

the United States on the use of the text.

http://www.archive.org/details/cu31924017859871
 COMMENTARIES
ON

EQUITY JURISPRUDENCE

Hon. Mr. JUSTICE STORY, LL.D.

Sometime one of the Justices of the Supreme Oourt
of the United States.

THIRD ENGLISH EDITION,

BY

A. E. RANDALL
of Lincoln's Inn, Barrister - at - Law.

LONDON :

SWEET AND MAXWELL, LIMITED,

3 CHANCERY LANE, W.C. 2.
TOEONTO, CANADA: SYDNEY, N.S.W. :
THE CAESWBLL COMPANY, LAW BOOK CO. OF AUSTEALASIA,
Limited,
Limited,
Street West 51-53 Elizabeth Stbebt.
145-149 Adelaide
1920.

51J.il
 PRINTED BY

THE EASTERN PRESS, LIMITED,

LONDON AND READING.
PEEFACE TO THE THIKD ENGLISH EDITION.

My main difficulty in preparing this edition was how to deal

with the author's text. It is a recognised classic, and many
passages have been adopted judicially. At the same time
there are many statements which have been allowed to
stand in previous editions, and which could not be supported
at the present day. To allow the original text to remain
unmodified would clearly mislead the student without assisting
the practitioner.

Let me give one or two examples. Founding himself

upon a dictum of Lord Hardwicke, the author asserted that
" common sailors " in the mercantile and naval service required
guardianship during the whole course of their lives, and
received special consideration in courts of equity in relation
to their bargains. But people in humble positions have
shown the astuteness of the plaintiff in Armory v. Delamirie
(1722) 1 Stra. 504. Again Jenkins v. Kemis as reported in
1 Ch. Cas. 103 could never have survived the distructive
criticism of Lord St. Leonard's assuming that it was law
in the author's day. See Mamell v. Blake (1816) 4 Dow. 248 ;
16 R.R. 36. So too, the accountability of one co-owner to
another (be they joint tenants or tenants in common) does
not rest on a fiduciary relationship, and the doctrine that
joint debts are joint and several in equity was finally exploded
about forty years ago.

I have frequently had occasion to comment on the practice

which has persisted of supplementing the text by footnotes.
Some editors have even deemed footnotes to be the proper
medium for correcting inaccuracies in the text. To paraphrase
a passage from a judgment in the text and set out the passage
at large in a footnote, is a method of treatment which calls
for special justification, but to cite identical passages from
a judgment both in the text and in a footnote, as happened
IV PREFACE.

in the preceding edition, is inexcusable. I have been able

to reduce the bulk of this edition over that immediately
preceding by omitting what was redundant or unnecessary.
I have at the same time incorporated much that formerly
appeared in footnotes. In a few instances I have allowed
long footnotes to stand, but not without misgivings as to the
wisdom of that course of treatment.

The text passed out of my hands before the full report

of Bourne v. Keane appeared. The learned reader is requested
to note that it is now reported [1919] A.C. 815.

A. E. EANDALL.

Lincoln's Inn,
December, 1919.
 TABLE OF CONTENTS.
PAGE
PREFACE iii
TABLE OP CONTENTS V

TABLE OP CASES .
vii

Chaptek I. — Nature and Chakactek. of Equity

JUBISPRUDENOE 1

n. — Origin and History of Equity Juris-

prudence 21
IIL — (Jeneral View of Equity Jurisdiction . 32
rV. — CONCDERBNT JURISDICTION — ACCIDENT . 39
V. — Mistake 51
VI. — Actual or Positive Fraud ... 79
VII. — Constructive Fraud 99
VIII. — Account 177
IX. — Administration 226
X. — Legacies 253
XI. — Confusion of Boundaries .... 258
XII.— Dower 264
XIII. — Marshalling of Securities . . . 267
XIV.— Partition 273
XV.— Partnership 282
XVI. — Peculiar Remedies in Equity — Cancella-
tion and Delivery of Instruments . 293
XVII.— Specific Performance of Agreements and
other duties 304
XVIII.— Compensation and Damages . . . 339
XIX. — Interpleader 342
XX.— Bills Quia Timet 349
XXI. — Bills of the Peace 359
XXII. — Injunctions 363
XXIII. — Exclusive Jurisdiction- Trusts . . 393
XXIV. — Marriage Settlements .... 403
XXV. — Terms of years 410
 CONTENTS.

PAGE
Chapter XXVI.— Mortgages 412
, XXVII.— Assignments 430
, XXVIII. — Wills and Testaments 442
, XXIX.— Election and Satisfaction 450
, XXX.— Application of Purchase Money 470
, XXXI.— Charities 475
, XXXII.— Implied Trusts 504
, XXXIII. — Penalties and Forfeitures
544
557
XXXIV.— Infants
, XXXV. — Idiots and Lunatics .... 572
, XXXVI.— Married Women .... 575
XXXVII.— Set-off
601
611
, XXXVIII.— Establishing Wills
XXXIX.— Awards 620
614
, XL. — Writ of Ne Exeat Regis and Supplicavit
, XLI.— Discovery and the Practice employed to
Preserve and Pekpetuate Testimony 626

INDE X 643
 TABLE OF CASES (a)
PAOE PAGE
Aas ». Benham 285 Amber Size & Chemical Co. v.
Abbott Fund, In re ; Smith v. Eanzel 389
Abbott 505, 507 Amesbury v. Brown 201
Abergavenny (Earl) v. Powell ... 640 Ancaster (Duke) v. Mayer 246
Abernethy v. Hutchinson 285, 386 Anderson v. Anderson 287
Abraham v. Budd 374 V. Elaworth 301
Ackroyd v. Smithson 337 Andrews v. Bamsay 192
Acton 0. Pearce 61 1). Trinity Hall 455
V. Woodgate 397, 430 Angel ij. Smith 352, 353
Adair v. Shaw 260, 251 Angell V. Angell 636, 638
Adam's Trust, In re 541 Angier v. Angler 594
Adam v. Newbigging ... 79, 82, 84, 295 Anglo-Italian Bank v. Davies 351, 353
Adams and Kensington Vestry, Anon (3 Atk. 644) 617, 633
In re 447 (1 Bro. C.C. 158) 67
Adams v. Claxton 171 (1 Ch. Gas. 207) 479
V. Clifton 535 (1 Ch. Cas. 267) ... 480, 488, 492
Adderley v. Dixon ... 305, 307, 314, 340 (2 Ch. Cas. 337) 220
Addington v. Cann 494 (1 Freem. 303) 220
Adey v. Whitstable Co 215 (2 Freem. 27, 128, 145, 206)
Adye v. Feuilleleau 534, 535 220, 317, 356
Agar Ellis, In re ; Agar Ellis s. (2 K. & J. 441) 287
Lascelles 564 - (6 Madd. 10—15) 390, 425
V. Fairfax 273, 276, 279 (F. Moo.) 20
■ V. AUacklew 616 (4 Euss. 473) 571
Agnew V. Pope 463 (2 Sim. N.S. 54) 564
Agra Bank v. Barry 160, 161 (3 Swanst.) 279
Aislabie u. Eice 120 (1 Vern. 162) 527
Albert (Prince) v. Strange 389 (1 Ves. Jun. 93) 391
Aldborough (Earl) v. Trye 142, (6 Ves. 470) 322
144, 145, 294 (12 Ves. 4) 354
Aldrich v. Cooper 199, 209, 212, (5 Vin. Abr. 523) 322
236, 239, 240, 241, 242, 244, 267, 268 Aroedeckne, In re ; Atkins v.
Aldridge v. Westbrook 232 Arcedeckne 208
Allan V. Allan 637 Archer's Case 181, 406, 407
V. Backhouse 201, 444 Archer v. Hudson 129
V. Bower 322, 323 V. Preston 313
AUcard v. Skinner 127, 136 Arglasse v. Muschamp 313, 643
Allen V. Anthony 161, 163 Armitage v. Wadsworth 40, 297
V. Coster 568 Arnott, In re 632
V. Harding 308 Arnsby v. Woodward 554
V. Jackson 117 Arrowsmith, Ex p 422
V. McPherson ... 79, 98, 176, 611 Arthington v. Fawkes 360
AUeyn v. AUeyn 459 Arthur v. Bodenham 432
Allfrey c. AUfrey 223 V. Lamb 374
Allison V. Clayhills 130, 132 Arundell v. Phipps 302
Ashburton (Lord) v. Nocton ... 161, 167
AUsop, In re; Whitaker v. Bam-
ford 533, 534 V. Pape 385, 386

the (o) The references are not to the paragraphs as in the preceding edition, but to"
pages.
VIU TABLE OF CASES.

PAGE PAGE
Aaherman v. Tredegar Dry Dock Att.-Gen. B. Parmeter 376
Co 138,209,309 B. Partington 600
Ashley v. Baillie 229 -— B. Peacock 492
Ashworth v. Lord 419 V. Pearson 489, 501
Aspland v. Watt 530, 536 B. Piatt 492, 494
Asten V. Asten 630 B. Price 489
Astley B. Weldon 549 B. Bay 68
Aston V. Aston 374 i;. Eichards 876
V. Pye 299 B. Eye 482, 493
Athill, In re; Athill v. Athill 199, B. Sheffield Gas Consumers
240, 267, 268 Co 377, 878
Atkins V. Hatton 261, 262 ». Skinners Co 488
V. Hill 253, 254 V. Silwell 318
Atkinson & Horsell's Cent., In re 330 0. Smart 489
Atkinson v. Leonard 41, 622 V. St. John's Hospital 501
1). Littlewood 460, 462 B. Stamford (Earl) 600
Attenborough v. St. Katherine B. Stevens 260, 262
Dock Co 346 B. Stewart 492
V. Solomon 280, 250, 254 u. Sturge 498
Athol (Earl) v. Derby (Earl) 813 B. Syderfin 491, 492, 498
Att.-Gen. v. Bains 494 B. Taucred 479, 481
V. Bowyer 478, 483, 491, 493, 495 V. Terry 378
V. Brentwood School 484 B. Wax Chandlers Co 495
V. Brereton ... 478, 480, 481, 489 B. Whitley 489
V. Brunning 235, 236 V. Windsor (Dean & Chapter)
V. Cains Coll 541 495, 497
• V. Cambridge Consumers Gas (Canada) v. Standard Trust
Co 377 Co. of N. Y 132, 529
B. Cambridge (Margaret & Attwood B. Small 82, 83
Begins Prof.) 494 Atwood B. Maude 46, 195
B. Chester (Bp.) 492 Auriol B. Smith 617
B. Christ's Hospital 502 Austen b. Taylor 398
0. Clarendon (Earl) 488 Austin, In re; Chetwynd b. Morgan 38
V. Clifton 501 B. Chambers 130
B. Combe 494 Austria (Emperor) b. Day 388
V. Dimond 251 Averall b. Wade 171, 198, 268, 270, 513
V. Dixie 484 Awde B. Dixon 69
B. Dublin (Corp.) ... 177, 178, 484 Ayerst b. Jenkins :... 128, 124, 296
«. Emmerson 376 Aylesford (Earl) b. Morris 142, 144, 296
B. Exeter (Mayor) 501 Aylwin b. Withy 208
B. Forbes 376, 377 Aynsley b. Wordsworth 198
B. PuUerton 262
B. G-askill 626, 627 Baber's Teubt, In re 430, 435
B. Gleg 494 Baber b. Harris 577
B. Harrow School (Governors) 489 Baohford b. Preston 122
V. Heelis 501 Bacon b. Clark 532
B. Hewer 488 Baggett B. Meux 599
B. Hickman 489 Bagot, In re; Baton b. Ormerod 454
B. Hubback 288 Bailey b. Barnes 165, 169
B. Ford 287
B. Ironmonger's Co. ... 492, 499
V. Jeames 489 B. Hobson 374
V. Lepine 498 Bain v. Sadler 235, 288
V. London (City) 492 Bainbridge v. Smith 76
V. Lonsdale (Earl) 454 Bainbrigge b. Blair 351
B. Lucas 571 B. Brown X29
B. Marlborough (Duke) 374 Baker b. Salmon, In re 330
B. Middleton 480, 489 . S^ P 573
B. Mucklow 621 , In re; NichoUs b. Baker 231, 233
v. Newman 480 Baker's Trusts, In re
Baker b. Adams 573
B. Oglander 492 609
V. Parker 489 B. Bradley 129
 TABLE OF CASES.

PAGE
PAGE
Baker v. Monk 98, 141 Beauchamp (Earl) v. Wynn 57
V. Mosley 448 Beaufort (Duke) v. Berty 558
V. Paine 70 Beaumont v. Olivera 224
V. Rogers ■ 361 V. Eeeve 123
Balfour v. Welland 470, 473 Beavan v. Oxford (Earl) 171
Ball V. Harris 473 Bechervaise ». Lewis 605
V. Montgomery 594 Beckett v. Cordley 157
V. Stone 71, 294 Beckley v. Newland 333, 422
Ballard v. Tomlinson 378 Beddall v. Maitland 610
Banks v. Jarvia 609 Beddow v. Beddow 617
Barber, In re; Burgess v. Virmi- Bedford (Duke) v. Abercorn (Duke) 70
come 136 V. British Museum (Trustees)
Barclay, In re; Barclay v. Andrew 536 311, 315
Barfield v. Nicholson 391 Bedford. D. Backhouse 166
Baring v. Day 214 Bedouin, The 93
V. Dix 287 Beech ». Ford 301
V. Nash 276, 277, 279, 280 Beechcroft v. Broome 447
V. Stanton 133 Beeny, In re; Ffrench v. Sproston 361
Barker v. Dacie 218 Beeston o. Booth 237
V. Keete 506 Beidley v. Carter 57
V. May 230, 235 Belchier, Ex p 533
V. Perowne 197 Belfast (Earl) v. Chichester 637
V. Eichardson 440 Belfield v. Bourne 46, 195
Barkshire v. Grubb 70 Bell V. Alexander 44
Barnard's (Lord) Case 374 V. Gardiner 86
Barnes v. Eacster ... 200, 240, 241, 268 V. Holtby 57
Barnett v. Weston 158, 178 V. Marsh 130, 132, 156
Barnesdale v. Lowe 639 Bellairs v. Tucker 85
Barnett, In re; Daves v. Ixer ... 47, 77 Bellamy v. Debenham 331
Barrett v. Beckford 468 V. Jones 638
Barrow's Case 168, 530 V. Sabine ... 58, 69, 129, 166, 370
Barrow v. Barrow 70 Bellasig v. Uthwatt 459
V . Greenough 107 Bellhaven's (Lord) Case 59
V. Isaacs & Son 554 Bellwood V. 'Wetherell 634
Barrow in Furness & Rawlinson's Benbow v. Townsend ... 397, 606, 508
Cont., In re 443 Bending u. Bending 455
Barry v. Stevens 191 Benfield v. Solomons 126
Bartlett v. Hodgson 540 Bengough v. Walker 460
V. Pentland 74 Benham v. Keane 161, 167
Barwick v. English Joint Stock Bennet v. Whitehead 216
Bank 84 Bennett, Ex p 136
Baskerville v. Browne 607 V. Hayter 492
Basingstoke (Corp.) v. Lord Bolton 263 V. Wyndham 444
Bate V. England (Bank) 136 Benningfield v. Baxter 136
V. Hooper 51, 52 Benson v. Heathorn 128, 132, 192
Bateraan v. Bateman 444 Benyon c. Pitch 144
Bates V. Graves 612 Bernard ». MinshuU 447
Bath (Earl) v. Sherwin 40, 361 Berney v. Sewell 364
V. Standard Land Co 136 Berridge v. Berridge 138, 208
Bathurst «. Murray 570, 671 Berrisford v. Done 48
Batten c. Earnley 357 Bertie i>. Abingdon (Earl) 354
Battersby v. Parrington 149, 152 Berwick & Co. v. Price 167
Batthyany v. Walford 216 Besant, In re 564, 566
Baudains v. Eichardson 130 V. Wood 31, 368, 665, 596
Baxendale v. Scale 71 Bethune v. Kennedy 196
Bax, Ex p 181 Beverley's Case 96, 557, 569, 561
Baxter v. Connoly 307 Beverley (Corp.) v. Att.-Gen. ... 497
Bayley, Ex p 195 Beynon v. Cook 37
Baynum v. Baynum 624, 625 Bidder v. Bridges 638, 639
Beale v. Kyte 68, 69 Biederman d. Seymour 243
Beard v. Beard 578 Biggs V. Peacock 280
 TABLE OF CASES.

PAGE PAGE
Bigland v. Huddlestone 452 Bootle V. Blundell 245, 246, 444, 625, 612
Bilbie v. Lumley 61 Bor V. Bor 456
Bill V. Curetou 151 Borell V. Dann 101
■». Kynaaton 255 Bosanquet v. Dashwood ... 126, 127, 179
V. Price 145 V. Wray 186, 188, 290
Billage v. Southbee 132
Boston
Ansell Deep Sea Kshing Co. ■». 133
Bingham v. Bingham 56, 57
Birch V. Ellames 160 Bothamley c. Sherson 243
Birchall, In re; Birchall v. Ashton 399 Bourgeoise, In re 569, 662, 571
Birmingham v. Kirwan 452 Bourke o. Davis 45
Birmingham & Dist. Land Co. and Bourne v. Bourne 337
Allday, In re 311 V. Keane 489, 498
Birtwhistle v. Vardill 252 Bouverie v. Prentice 262
BiBcoe V. Perkins 407, 408 Bovey v. Smith 168, 530
Bishop V. Church 72 Bowen ». Phillips 364
Bissell V. Axtell 231 Bower, In re; Lloyd Phillips v.
Blackburne «. Gregeon 515, 519 Davis 501
Blackford v. Christian 97 Bowes v. Bowes 112
Blackmoor v. Mercer 249 V. Heaps 97, 101, 139, 141
Black Point Synd. ». Eastern Bowker v. Bull 138
Concessions Co 263 Bowlby, In re; Bowlby v. Bowlby 569
Blackwell v. Wood 107 Bowman v. Secular Soc., Ltd 382, 489
Blackwood v. London Chartered Bowser o. Colby 554
Bank of Australia 159 Bowsher u. Watkins 365
V. Eeg 252 Bowyer v. Bright 332
, Ex p 601 Box V. Barrett 454
Blagden v. Bradbear 318 Boxall 1). Boxall 694
Blake v. Blake ; 230 Boyd V. Allen 280
V. Luxton 406 - t>. Boyd 467
V. Peters 373 ». Hind 164
Bland, Ex p 513, 523 Boyse v. Rossborough ... 128, 130, 613
Blandy v. Widmore 460, 461 Bozon V. Williams 421
Blenner Lassett v. Day 616 Brace v. Marlborough (Duchess)
Blewitt, In re 573 170, 171, 172, 428, 612
Bloomer v. Spittle 326 Bracebridge u. Buckley 553
Blore V. Sutton 339 Brackenbury v. Brackenbury 123, 296
Blockley, In re ; Blockley v. Bradbury v. Hotten 383
Blockley 467 Bradford (Earl) v. Eomney (Earl) 69
Blow, In re; St. Bartholomew's Bradshaw, In re; Bradshaw v.
Hosp. V. Campden 533 Bradshaw 106, 443
Blundell, In re ; Blundell v. B. Bradshaw ^ 568
Blundell 460, 462 Braithwaite, In re ; Braithwaite
Blyth v. Whiffin 183, 184 t). Wallis 230
Boardman v. Mosman 539 V. Britain 471
Boddington, In re; Boddington v. V. Coleman 609
Clariat 78 Bramwell ». Halcomb 382, 384
Bodenham v. Purchas 185, 188 Brandt's Sons & Co. v. Dunlop
Bogue V. Houlston 383 Rubber Co 436, 436
Bold V. Hutchinson 70 Brecon (Mayor) v. Seymour 171
Bolton (Duke) u. Williams 345 Breedon v. Breedon 478
Bolton V. Cooke 205, 207 Brenchley v. Higgins 141, 142
Bonar v. Hutchinson 137, 138 Brentwood Brick & Coal Co., In
Bond V. Hopkins 14 re 519
11. Walford 71, 295, 299 Breton's Estate, In re ; Breton v.
Bone V. Cook 635 Woolven 61
Bonhote v. Henderson 68, 70 Brewer, Ex p 567
Bonnard v. Perry man 389 Brice u. Bannister 432
Bonser v. Cox 240 V. Brice 467
Boone's Case 228 ». Stokes 537
Booker v. Allen 463 Bridge c. Brown 569
Booth V. Eich 424 Bridges ». Longman 444
 TABLE OF CASES. XI

Bull V. Faulkner PAGE

215
Bridgett, In re; Cooper v. Adams 289
Bridgman o. Green 107 BuUer v. Plunket 437
Bridgewater (Duke) v. Edwards 263 Bullock V. Downes 56
Bridgman's Trust, In re 541 Bunbury t>. Bunbury 631
Briggg v. Massey 191 Bunn V. Markham 256, 257
V. Penny 448 Burchell v. Wild 388
Bright V. Boyd 523 Burden v. Barkus 286
Bristow V. Warde 451, 453 Burford (Corp.) v. Lenthall 177,
Bristowe v. Needham 353 182, 360
Britain v. Kossiter 319 Burges v. Mawbey 202
British S. Africa v. De Beers Con- Burgess c. Burgess 387
Bolidated Mines 369 V. Wheate 10, 34, 505
Broadhurst v. Balgay 539 Burke v. Smyth 307, 309
Brbderick, Ex p 421 Burley, In re; Alexander v.
V. Broderick 93 Burley 447
Brogden, In re; Billing v. Burn V. Carvalho 432, 435, 436
Brogden 191, 535 Burnet v. Burnet 568
Bromley v. Holland 41, 42, 293, Burns' Application 86
294, 295, 296, 297 Burrough v. Philcox 74
V. Smith 141 Burroughs, In re 573
Brook V. Hook 127 V. Elton 173
Brooke v. Enderby 185, 188 Burrows r>. Walls 535, 539
Brookes, In re ; Brookes v. Taylor 534 Burstall v. Beyfus 626, 630, 633
Brooking v. Maudslay Son & Eield Burton v. Pierpoint 242
297, 636 Bush V. Western , 362
Brookman v. Rothschild 529 Bustros V. White 31
Brooks 0. Reynolds 233, 234 Butcher v. Butcher 106
Brooksband, In re; Beauclerk v. Bute (Marq.) v. Glamorganshire
James 456 Canal Co 258, 260, 262, 263
Brophy v. Bellamy 568 Butler and Baker's Case 226
Brown, In re; Dixon v. Brown ... 62 Butler V. Butler 576, 598
^ c. Brown. ". 297 V. Freeman 559
V. Collins 567 J). Wigge 546
V. Heathcote 520 Buttanshaw v. Martin 401
V. HiggB 48, 74, 106, 443 Button V. Thompson 194
V. Kennedy 129 Buxton V. Lister 301, 306, 326
V. Pring 59 Byrchall ». Bradford 536
V. Selwin 511 Bym V. Godfrey 511
V. Tapscott , 213
V. Vermuden 360 Caddick v. Skidmore 319
V. Wales 298 Cadman v. Horner 86
V. Yeale 485 Cadogan v. Kennett 147, 150, 391
Brown's Will, In re 119 Cain V. Moon 256
Browne v. Lee 204 Caird v. Syme 385, 386
V. Rye 233 Calmady v. Calmady 276
V. Savage 437 Calverley v. Williams .; 63, 64
Brownell v. Brownell 222, 224 Camden (Marq.) v. Murray 570
Brownlie v. Campbell 83 Cameron and Wells, In re 405
Bruner v. Moore 329 Campbell v. French 78, 589
Brunker, Ex p 621, 622 V. Holyland 256
Bryant & Barningham, In re 330 V. Hooper 95
Bryson v. Whitehead 121, 307 t). Home 106
Buckle V. Atleo 231 V. Mackay '563
Buccleuch (Duke) v. Met. Bd. of V. Macomb 271
Works 615, 616 V. MuUett 289, 527
Buchanan v. Buchanan 593 V. Rothwell 209
Buck V. Robson 432 V. Sanders 405
Buckeridge v. Whalley 222 V. Scott 382
.Buckle V. Mitchell 147, 294 V. Twemlow 616
Buckmaster v. Harrop 319 V. Walker 135
Buden v. Dore 630 Cane v. Allen (Lord) 130
 TABLE OF OASES.

PAGE
PAGE
Cann v. Cann 52, 55, 68, 59 Chapman v. Chapman 421
Cannam v. Parmer 101 V. Esgar 238
Cannel v. Buckle 61, 576, 577 B. Koops 290
Canterbury (Archb.) v. House ... 229 V. Perkins 107, 117, 119
^ V. Wills 228, 229 V. Tanner 515
Cantiere Meccanico Brindisino v. Charter v. Watson 427
Jansen 93 Chase v. Westmore 214
Chatham v. Hoare 105
Capon's Trusts, In re 106
Capper v. Spottiswoode 518, 519 Chatterton o. Cave 382, 384
Carey v. Faden 384 Chattock V. MuUer 332
Carnan c. Bowles 384 Chavany v. Van Sommer 286
Carlisle (Corp.) v. Wilson 177, 182, 360 Chawner's Will, In re 444
Cheale v. Kenward 308
Carr's Trusts, In re 590
Carr v. Bastabrooke 468, 592, 595 Chedworth (Lord) u. Edwards 370, 390
Carriage Co-op. Supply Assn., In re 606 Cheesman v. Price 285
Carritt u. Real and Personal Ad- Cherry v. Mott 497
vance Co 37, 159 Cheslyn v. Dalby 614
Carrou Iron Co. ■». Maclaren ... 369 Chesterfield's (Earl) Trusts 196
Carrow o. Ferrior 354 V. Janssen 79, 81, 82, 83,
Carter v. Carter 76 101, 109, 140, 141, 143, 144
V. Palmer 130, 133 Chesham (Lord) , In re ; Cavendish
V. Wake 427, 428 V. Dacre 455
V. White 138 Child V. Comber 318
Carteret v. Petty 263, 369, 542 u. Godolphin 318
Cartwright, In re; Avis v. New- v. Mann 347
man 373 Childers c. Childers 507, 508
V. Cartwright 120 Cholmondeley o. Cholmondeley ... 447
V. Green 631 V. Clinton 35, 389, 399, 426
D. Pultney 277, 280 V. Oxford 638
Carver v. Bowles 451
Christ's College (Case) 493
Carwe's Estate, In re 121 Christ's Hosp. v. Grainger 601
Cary v. Abbott 491 n. Hawes 493
Casamajor v. Strode 330 Christie o. Courtenay ... 235, 505, 508
Casborne v. Searfe 418 V. Craig 391
Castell, Ex p 291 v. Gosling 405
Caetelli v. Cook 391 Chudleigh's Case 395, 406, 407
Catling 0. King 318 Chumley, Ex p 573
Cathcart, In re 672 Church Estate Charity; Wands-
Catchside v. Ovington 228, 229 worth, In re 492
Caton V. Caton 318, 325 Churchill v. Churchill 451, 4-57
o. Eidout 586 Clancarty (Lord) v. Latouch .... 224
Cator V. Bolingbroke 519 Clapham ». Shillito 86
«. Cooly 166 Clarendon (Earl) v. Barham ... 240, 241
Cave V. Mills 224 V. Hornby 278, 279
Cavendish v. Greaves 224 Claringbould ». Curtis 309
Cavendish Bentinck v. Fenn ... 82, 137 Clark J). Abingdon (Lord) 551
Cawdor (Lord) v. Lewis 606 V. Cort 603, 604
Central Bly. of Venezuela v. V. Grant 71
Kisch 86 V. Hackwell 317
Chace v. Westmore 616 Tj. Eoyle 621
Chadwick v. Turner 162, 165 Clarke v. Hart 665
Chalmer v. Bradley :.. 223 0. Ormonde (Earl) 234
Chamberlaine v. Chamberlains 300, 332 V. Parker .... 107, 117, 118, 119
Chamberlain v. Durnmer 372 V. Eamuz 335, 514
Chambers v. Goldwin 221, 222 t). Eichards 610
Champion, In re ; Dudley v. Cham- V. Sewell 468, 459
pion 528 V. Tipping 190
V. Eigby 127 V. Wright 321
Chancey's Case 468 Clavering's Case 625
Chandelor v. Lopus 86, 91 Clay n. Willis 235
Chaplin v. Chaplin 245, 469 Clayton's Case 185, 187, 188
 TABIiB OF CASES. xm

PAGE PAGE
». Rees 435 Cook V. Fryor 71
Clergy Orphan Corp., In re 487 V. Gregson 235, 251
Clifford V. Brooke 339 Cooke V. Cholmondeley 612
». Praucis 492 V. Clayworth 96, 293
V. Turrell 339, 340 V. Martyn 364
Clifton V. Burt 240, 241, 243 Cookes V. Cookes 190, 192
Clinan v. Cooke 319, 320, 821 Coomber, In re ; Coomber v. Coom-
Cloutte V. Storey 58 ber 128, 130
Clowes V. Higginson 71, 312 Coope V. Twynam 205, 207
Clvm's Ca^e 195 Cooper, Ex p 47
Clutterbuck v. Clutterbuck 525 , In re; Cooper v. Vesey 250
Coakes v. Boswell 65 V. Cooper 455, 457
Coates V. Clarence Ely. Co 378 V. Evans 212
Cochrane v. Moore 300, 317, 397 V. Kynoch 403
Cock o. Eichards 112, 113 V. Martin 77
Cockburn v. Edwards 61, 131 c. Phibbs 52, 67
Cocking V. Pratt 55, 63 Cope V. Cope 245
Cocks V. Smith 504 Copis V. Middleton 102, 148, 149,
Cockshott V. Bennett 153 150, 210
Coffin i,. Coffin 374 Copland v. Toulmin 185
Cogan V. Duffield 70 Corbett c. Corbett 546
Coham v. Coham 562 Corder v. Morgan 425
Colburn v. Sims 380 Cornwall, In re 239, 240
Cole V. Gibson 110 V. Henson 327
V. White 321 Corley v. Stafford 129, 130
Coleman c. Mellersh 222 Corser -c. Cartwright 444, 473
Coles V. Pilkington 312, 320 Cory o. Cory 96
». Trecothick 102, 133, 135 V. Yarmouth and Norwich
Collins 0. Archer 36, 266 Ely 378
V. Collins 519 Coslake v. Till 307
Collins Co. V. Brown 388 Cosnahan v. Grice 266
V. Curwen 888 Costa Eica Ely. v. Forwood 137
CoUinson's Case 479, 482, 493 Cothay v. Sydenham 158
CoUinson t). Lister 165 Getting V. Keighley 222
CoUyer v. Burnett 498 Cotton I!. Cotton 577
V. Fallon 520 Couldey v. Barkieve 377
Colmer v. Colmer 593, 594 Coulson V. White 377
Colman u. Orton 632 Counter v. Macpherson 49
Colverson v. Bloomfield 622 County Life Assoc., In re 52
Colyear v. Mulgrave (Countess)... 521 Courtenay v. Williams 436, 438
Colyer v. Clay 64 Couturier v. Hastie 63
V. Finch 158 Cousins, In re 164
Comiskey v. Bouring Hanbury 446, 447 Coventry v. Barclay 223
Commercial Bank of Scotland v. (Mayor) v. Att.-Gen 541
Ehind 223, 224 Cowles V. Gale 329
Commissioner of Stamp Duties v. Cowper V. Clerk 360, 361
Byrnes 508 V. Cowper 9, 18
Compagnie Financifere and Com- V. Laidler 378, 379
merciale du Pacifique v. Peruvian Cox (Creditors of Sir Charles) 232,
Guano Co 633 233, 236
Conington's Will, In re 547 V. Bennett 570
Consett V. Bell 136 V. Parker 505
Consolidated Exploration & Fin- Crabb v. Crabb 509
ance Co. V. Musgrave 121, 123 Crabtree c. Bramble 38
Const V. Harris 285 u. Poole 335
Conyers v. Abergavenny 360 Crampton v. Walker 609
Cood V. Pollard 518, 519 Cranstown (Lord) v. Johnston ... 543
Cook V. Baker 112 Craven v. Stubbins 46, 195
V. Collingridge 287 Crawshay c. Maule 285
V. Field 144 V. Thornton 842, 344, 346
V, Fountain 504 Craythorne v. Swinburne 207
 TABLE OF CASKS.

PAGE
Croft V. Day 387 Dashwood v. Maguire 219
V. Graham 37 V. Peyton 454
D. Powell 425 Davenport v. Bishop 398, 405
Crofton V. Ormsby 161 Davidson, In re; Mintz v. Bourne 497
Crooks V. De Vandes 446 Davies v. Cooper 90
Crosbie ». Murray 451 ... Dodd 44
Crosby v. Marriott 622 v. Ga,s Light and Coke Co. 626
Cross V. Sprigg 299 V. London and Prov. Marine
Crossling v. Crossling 75 Ins. Co 92
Crowder v. Austin 121 V. Otty 125
Crowe V. Ballard 127 V. Thomas 517
V. Clay 43 V. Topp 242, 245
Crowfoot V. Gurney 431 Davis' (Dr.) Case 570
Crozier v. Dowsett 233 Davis, In re; Davis v. Davis ... 536
Curwys v. Colman 394, 447 ; Hannen u. Hilly er 491,
Cud V. Enlter 303, 308
496, 497
Cullingworth v. Lloyd 153, 154 Davis' Trust, In re 498
Curl Bros. v. Webster 388 Davis B. Dysart (Earl) 298, 631
Curling v. Plight V. Hone 329
330
58
Cursou V. Bellworthy ». Marlborough (Duke) 121,
898 140, 351, 352, 434
Curteis' Trusts, In re
Curtis V. Buckingham (Marq.) ... 390 V. Shepherd 326
V. Curtis 216, 264, 265, 266 u. Spurling ... 223, 224, 470, 539
V. Perry .... 33, 34, 78, 507, 556 V. Symonds 68
». Price 151 v. Turvey 280
V. Eippon 448 Davy V. Pollard „ 588
V. Worthington 508 Dawson, In re; Dawson v. Jay ... 571
Cutter V. Powell 194 V. Whitehaven (Bank) 422
Day J). Brownrigg 30, 364
V. Luhke 829
Da 'Costa v. Davis 546
V. De Paz 489, 491 Deakin, In re; Starkey v. Eyres 106
V. Mellish 563 Dearie v. Hall 37, 429, 436, 437
Dagenham (Thames) Dock Co., Debenham «. Mellon 101
In re 549 V. Ox 109
Dalbiac v. Dalbiac 94 Debeze v. Mann 464
Dalby o. PuUen 330 De Carrifere v. De Calonne 622
Dale 0. Sollet 603 De Clifford (Lord) , In re; Lord
Dallas, In re 437 De Clifford v. Quilter 534
V. Walls 204 Decks V. Strutt 229, 253, 254
Dalston v. Coatsworth 42 De Garcia v. Lawson 498
Dalton, In re 567 De Hoghton v. Money 435
Daly V. Kelly 870 Delver v. Barnes 615
Damus' Case 493 Delves v. Gray 168
Danby v. Danby 230 Demaindray v. Metcalf 428, 429
Daniel ». Arkwright 47, 52 De Manneville v. De Manneville
V. Newton 571 559, 560, 561
V. Skipwith 424 De Mattos v. Gibson 801
V. Sinclair 51, 57, 62, 222 Dendy v. Powell 609
Daniels v. Davison 161, 163, 885 De Nicholls v. Saunders 418
Danvers v. Manning 78 De Nicols, In re; de Nicols v.
Darbishire v. Home 538 Curlier 237
Dent V. Bennett 128, 130, 132, 136
D'Arcy v. Blake 398
Denton v. Stewart 316, 326, 340
Dare "Valley Rly., In re 616
Darley v. Darley 578 Denny v. Hancock 330
Darlington (Earl) v. Bowes 362 Denys v. Shuckburgh 192
V. Pulteney 47, 76, 78 Derby v. Humber 195
Darlow v. Cooper 418 Dering v. Winchelsea (Earl) 193,
Dartnall, In re ; Sawyer v. God- 197, 202, 204, 205, 208
dard 535 Derry o. Peek 79, 88
Darvill o. Terry 150 Desborough v. Harris 847
Dashwood v. Bithazey 424 Deschamps v. Miller 369, 543
 TABLE OF CASES.

PAGE PAGE
Be Therminnes v. De Bonneval ... 491 Downe v. Morris 423
Devese v. Poutet 468 Downham v. Matthews 601
Devousher v. Newenham 362 Downshire (Marq.) v. Sandys
Devonshire's (Earl) Case ...... 178, 179 (Lady) 372, 373
Dibbs V. Goren 51 Dreyfus v. Peruvian Guano Co. ... 627
Dick V. Milligan 616 Drummond i). Att.-Gen. (Ireland) 501
Dickinson v. Barrow 319, 320 Drury v. Drury 274
V. Burrell 435 Drysdale v. Mace 326
V. Dickinson 473 Du Barre v. Livette 632
Dickson, In re 118 Duberly v. Day 590
; Hill V. Grant 569 Dubois V. Hole 576
Dilley v. Doig 360 Dudley u. Dudley 11
Dillon V. Parker 450, 452, 453, Duffield V. Elwes 256
455, 456, 457 Duffy's Trust, In re 590
Dibrow v. Bone 399 Dufour D. Pereira 334
Dimsdale v. Dimsdale : 144 Dulwich Coll. V. Johnson 232
Dingle v. Cooper 37 Dunbar ». Dunbar 508
Disney v. Bobertson 361 Dunboyne (Lord) v. Mulvihill ... 96
Di Sora v. Phillips 68 Duncan v. Campbell 595
Dive, In re; Dive v. Eoebuck 534 V. Dixon 100
Dixon, Ex p 237, 298 V. Duncan 593, 595
V. Enoch 34 V. Lawson 252
V. Evans 59 V. Lyon 607
u. Samuel 454 ». Worrall 297
Docker v. Somes 191, 529 Duncan Fox & Co. u. N. & S.
Doddington v. Halkett 524 Wales Bank 208
Dodkin v. Brunt 399 Buncombe v. Greenacre 590
Dodsley ». Kinnersley 312 V. Mayer 297
V. Varley 513, 520 Duncuft f). Albrecht 308
Doe ■». Bancks 554 Dundas v. Dutens 152, 325
V. Davies 74, 421 Dungey v. Angove 345, 346
V. Dowell 403 Dunlop Pneumatic Tyre Co. v.
V. Emmerson 614 New Garage Motor Co 552
V. Guy 253 Dunn V. Eeg 625
V. Hales 164 Dunnage v. White 55, 60, 96
V. Joinville 448 Bunne v. Boyd 257
V. Lewis 42 Durham Bros. v. Eobertson 333,
V. Manning 147, 174 432, 435, 440
V. Oliver 432 Durham (Earl) ti. Legard 315
V. Smith 448 Dursley e. Eitzharding 636, 637
Doherty v. AUman 218, 219, 373 Dutton I). Morrison 289
Dolman v. Nokes 65 V. Poole 35
Doloret v. Bothschild ... 305, 306, 308 c. Thompson 300
Dolphin V. Aylward 242, 268 Dyer v. Dyer 505, 607, 508, 509
Dominion Coal Co. v. Dominion
Steel and Iron Co 301 Dykes' Estate, In re 75
Dwyer v. Collins 632
Done's Case 220 Dymock v. Atkinson 585, 588
Donne v. Hart 590
Donnell ». Bennett 301 Bast ». Cook 455
Dormer's Case 573 E. & W. India Dock Co. v. Little-
Dormer v. Eortescue 216, 217, 265, 364 dale 347
Douglas V. Andrews 568 East India Co. B. Boddam 40, 41,
V. Baynea 64, 324
V.Donald 42, 44
73
V. Douglas 457
V. Eussell 440 V.Neave 73
Dove B. Dove 392 Eastern Concessions, Ltd. u. Black
Dover Coalfields Extension Ltd., Point Synd 369
In re 136 Eastern Counties Ely. v. Hawkes
]5owdale'B Case 251 294, 305, 316
Dowell V. Dew 75 Eastern Telegraph Co. «. Bent ... 555
Dowling V. Betjemann 298, 306 Eastewoode «. Vinoke 458
XVI TABLE OF CASES.
PAGE

PAGE
Eastland v. Eeynolds 107 Eyre v. Dolphin 160, 163
Ebrand v. Dancer 507 V. Shaftesbury (Countess)
Echcliffe v. Baldwin 370, 390 478, 480, 557, 659, 563, 670
Edge V. Worthiugton 421 Eyton V. Littledale 603
Edmunds v. Eobinson 195
Edwards ii. Carter 100 Fabian v. Nunn 321
V. Freeman 467 Fairbrother v. Pratterit 345, 346
V. Jones 338 Fairclough v. Marshall 418, 421
». Meyrick 129, 130 V. Swan Brewery Co 417, 420
V. Warwick (Countess) 198 Falcke v. Gray 306
Eedes v. Bedes 591 V. Scottish Imperial Ins. Soc. 522
Egerton v. Brownlow 404 Falmouth (Lord) o. Innye 362
Eland v. Eland 473 Fane u. Fane 64
Elderton (Infants), In re 565 Faraker, In re ; Faraker v. Dicrell 492
Elibank (Lady) u. Montobeir 587 Farewell v. Coker 55
EUard v. Llandaff (Lord) 89, 326 Farhall v. Farhall 251
Ellesmere Brewery Co. v. Cooper Farman, In re; Farman v. Smith 256
205, 216 Farmers' Mart, Ltd. v. Milner ... 154
Elliott V. Merryman 249, 471, 472, 473 Parquharson Bros. & Co. v. King 157
Ellice V. Eoupell 634, 637, 638 Farr v. Middleton 520
Ellis B. Emmanuel 209 V. Newman 400
V. Kerr 290 Farrand v. Yorkshire Bank 159
Farrant v. Blanchford 93
V. McHenry (Levita's Claim) 154
V. Munson 610 V. Lovell 373
V. Selby 487 Farrer v. Hutchinson 105
Ellison V. Ellison 338 Farrington v. Knightley ... 230, 254
Elme Hosp. v. Andover 360 Faulkner v. Daniel 200
Elton V. Shephard 585 Fawcett and Holmes, In re 331
Emma Silver Mine v. Grant 137 V. Whitehouse 133
Emery v. Hill 498 Fawell V. Heelis 519
V. Waae 614 Featherstonehaugh v. Fenwick ... 287
Emmet v. Dewhurst 318 Fells V. Eeed 298, 302
Emson, In re; Grain v. Grain ... 33 Fellows V. Mitchell 537, 5.S8
England u. Downs 112 Fenhoulet v. Passavant 243
Ennis, In re; Coles v. Peyton ... 207 Fenton v. Browne 86
Erlanger v. New Sombrero Co. ... 137 V. Hughes 633
Ernest v. Croysdill 528 Fenwick v. Bulman 333
Esdaile v. Stephenson 330 V. Potts 421
Espin V. Pemberton 163, 167 Ferguson v. Wilson 20, 341
Essell V. Hayward 287 Fermois' Case 98
Eseery v. Cowlard 71 Feme v. Bullock 317
Essex V. Atkins 684 Ferris v. Carr 46, 195
Bstwick V. Caillaud 430 Fettiplace v. Gorges 333
Etches B. Lance 622 Feversham v. Watson 328
European Bank, In re 214 Field V. Brown 570
Evans, Ex p 353 Fielding v. Bound 495
, In re ; Welch v. Channell ... 133 Finch V. Augell 627
». Bagshaw 279 v. Winchelsea (Earl) 520
V. Bicknell ... 79, 82, 86, 157, 158 Finlay, In re ; Wilson & Co. v.
0. Bremridge 208 Finlay 133
V. Edmonds 83 Fitzgerald, In re 561
V. Evans 454, 455 V. Falconberg 167
e. Llewellin (or Llewellyn) V. Fitzgerald 61, 577
54, 104, 105 Fitzhugh 0. Leigh 638
V. Merthyr Tydvil Urban Fitzroy v. Cave 435, 438
Council 639, 640 o.Gwillim 126
B. Eosser 117 Flack V. Holm 621, 622, 623
Evelyn v. Evelyn 245, 247, 445 Flammank, In re; Wood v. Cock 586
Ewer s.. Corbet 472 Flanagan v. G. W. Ely 326
Ewing V. Orr-Ewing 251, 542 Fletcher v. Ashburner 336
V. Osbaldiston 33, 34 V. Bealey 850
 TABLE OF CASES.

PAGE
PAGE
Plight V. Bolland 307, 335 Frost V. Knight 113
V. Carnac 335 Fry v. Lane 55, 58, 99, 141
V. Cook 357, 390 V. Porter 10, 12
Flint, Ex p 604 I/. Tapson 532
V. Howard ... 200, 240, 241, 268 Fuggle V. Bland 353
Flood's (Griffith) Case 494 FuUager v. Clark 82
Flower, In re ; Edmonds v. Ed- 'Fuller V. Abrahams 121
monds 47 V. Eedman 45, 233
V. Lloyd 105 Purser V. Penton 577
V. Marten 299 Fyler v. Fyler 534
Foley V. Burnell 356 V. Fynn 562
Follet V. Jefferys 632
Folliot V. Ogden 270 Gage v. Acton 577
Forbes v. Forbes 498 Galam (Cargo ex) 204
V. Jackson 171, 209 Gale V. Gale 405
• ». Peacock 473 V. Leckie 284
Ford V. Fowler 447 V. Linds Ill
Fordyce v. Willis 504 Galton V. Hancock 245
Forrest v. Elwes 307, 529 Gambart v. Ball 383
V. Prescott 445, 525 Games u. Bonner 330
Forrester v. Leigh 243 Garden Gully United Quartz
Forster v. Forster 526 Mining Co. v. McLister 555
V. Hale 323 Gardner v. 622
V. Hoggart 330 Garrard v. Frankel 65, 73
Forth v. Simpson 214 V. Landerdale (Lord) 430,
Poster V. Blackstone 521 435, 505
V. Cockerell 436 Garth v. Cotton 218, 373, 407
V. Denny 563 ■ V. Townsend 75
V. Donald 287 Garthshore v. Chalie 460
V. Vassall 543 Gartside u. Isherwood 98
Fothergill v. Fothergill 74 Gaskeld v. Durdin 166
V. Eowland 301 Gaskell ». Gaskell 279, 435
Fountaine v. Carmarthen Ely. ... 52 Gaunt V. Pyermey 377
Fowler v. Fowler 68, 69 Gedye v. Matson 209
V. Garlike 497 Gedge v. Trail 355
Pox V. Mackreth ... 66, 88, 89, 135, 191 Gee V. Liddell 138, 299
V. Star Newspaper Co 638 V. Pearse 329
V. Wright 145 V. Pritchard 385, 386
Fox well V. Van Grutten 354, 379 Gen. Accident Assce. Co. o. Noel 20
Frail -u. Ellis 518, 519 Gen. Assembly of Free Church
Frame b. Dawson 320, 321 (Scotland) v. Overtown (Lord) 501
V. Wood 532 Gent V. Harrison Johns 219
Prampton v. Frampton 595 Gerrard v. Clowes 20
Prancke, In re; Drake v. Francke 233 Giacometti v. Prodgers 591, 595
Franco v. Alvarez 254, 255 Gibbons v. Causil 59
Frank, In re 573 Gibbs V. Guild 35
Fraser, In re; Lowther v. Eraser 248 Gibson, Ex p 624
; Yates v. Fraser 498 , In re 573
V. Wood 315 V. Ings 297, 298
Frederick v. Aynscombe 613 V. Jeyes 130, 132
Freeman v. Bishop 345 V. Eussell 97, 132, 136
V. Cooke 156 ». Seagrim 267
11. Fairlie 355, 535 Giddings v. Giddings 512
V. Lomas 602, 603, 604, 605 Giffard v. Hart 354
V. Pope 150 Gifford, Ex p 52
Preke v. Carberry (Lord) 252 Gilbee v. Gilbee 573
French v. Macale ... 305, 307, 316, 549 Gilbertson v. Gilbertson 246
Prewin v. Lewis 390 Gilchrist Charity, In re 487
Friend v. Young 188 Gilchrist v. Caton 593
Frietas v. Don Santos 183, 184 Giles V. Giles 78
Gillibrand v. Goold 473
Frieze-Green's Patent, In re 78
E.J. b
XVlll TABLE OF CASES.

PAGE

Gilpin V. Southampton (Lady) 233, 234 Greenwood In re; Goodhart v.

Gimblett, In re 149 Woodhead 545
Gladstone v. Birley 513, 514 B. Frith 232
Glenochy (Lord) v. Bosville 403
Greet'ham v. Colton 444
Gloucester (Corp.) v. Osborne 490, 505 Gregory b. Mighell 321
Glyn 1). Duesbury 344 B. Wilson 550
Goddard ». Carlisle 128, 129, 130 Gresley b. Adderley 355
Godfrey v. Littells 262 V. Mousley 131
V. Poole 174 Gretton b. Howard 453, 455
V. Saunders 177 Greville ». Parker 555
Godin V. London Assce. Co 214 Grey v. Grey 505
Goldsmid v. Goldsmid ... 107, 460, 461 Griffies v. Griffies 280
Goldsworthy, In re 565 Grifath V. Spratley 102
Goodfellow V. Burchett 468 Griffiths «. Evan 448
Goodman v. Grierson 420 Grigby v. Cox 584
V. Sayers 51, 52, 59, 616 Grimes u. French 364
V. Whitcomb 287 Grinstone, Ex p 561
Goodtitle v. Otway 27 Grindey, In re ; Clowes ». Grindey 5.34
Goodwin v. Fielding 127 Grosvenor, Ex p 625
V. Waghorn 421 Grove v. Bastard 613
Gordon «. Gordon ... 55, 59, 60, 85, 93 Guest B. Homfray 330
V. Holland 168, 530 B. Smythe 130, 132
V. Horsefall 37 GuUan v. Grove 76
V. Selby 420 GuUey v. Cregs 448
Gorringe v. India Bubber & Gutta Gumbleton, Ex p 624
Percha Works 436 Gurnell B. Gardner 435
Goswell's Trusts, In re 337 Gyles V. Wilcox 384
Goy & Co., Ltd., In re; Farmer Gynn ». Wilcox 384
V. Goy & Co., Ltd 436, 604
Graham, In re 567
V. Londonderry 579, 581 Habershos v. Bluston 290
V. Oliver 330 Hacker b. Mid-Kent Ely 333
Granard (Earl) v. Dinikin 386 Hadley b. London Bk. of Scotland 390
Grant B. Grant 217, 551, 623 Hagg ». Darley 121
». Lynam 448 Haigh, Ex p 421
V. Mills 518 V. Brooks 102
Grave v. Salisbury (Earl) 464 B. Jaggar 218, 375, 379
Gray v. Churchill 435 Hale B. Saloon Omnibus Co 545
V. Haig 192, 536 Haley B. Bannister 568
V. Mathias 123 V. Goodson 391
■ V. Seckham 209 Halifax Joint Stock Bk. (/. Gled-
V. Smith 388 hill 151, 154
Great Berlin Steamboat Co., In re 124 Hall, Ex p 435
G. N. Ely. & Sanderson, In re ... 331 , In re; Foster ». Metcalfe 255
Great Western Ins. Co. v. Cunliffe 133 B. Cazenove 545
G. W. Ely. V. Birmingham, &c. B. Hall 286, 300
Ely 390 V. Hallett 536
V. Cripps 62 B. Hill 468
Greatrex v. Greatrex 286 B. Smith 163
Green ». Bailey 44 V. Warren 305, 312, 316
V. Briggs 192 Hallett u. BouseCeld 204
V. Farmer 603 Halsey v. Brotherhood 380
o. Green 452, 581 V. Grant 314, 332
V. Howell 286 Hamilton, In re; Trench v.
B. Lowes 370, 390 Hamilton 446
V. Paterson 338 B. Houghton 431
V. Butherford 488 u. Watson 89, 92
V. Wymer 138 V. Wright 136
Greenaway v. Adams 316, 326,340 Hammerton v. Dysart (Earl) ... 378
Greenside v. Benson 229 Hammond v. Messenger 441
Greenway, Ex p 27, 42 Hampden v. Hampden 105
 TABLE OF CASES. XIX

PAGE PAGE
Hampton, In re; Public Trustee Hatch V. Hatch 131, 134
B. Hampton 390 Hatfield v. Mine* 467
Hanbury v. Hussey 273 Hatton V. Car Maintenance Co.,
Ltd 513
V. Walker
Hancock ..."
v. Hancock 563
600 V. Harris 300, 561
Hauoomb v. Allen 534 V. Haywood 353
Hannington v. Dunchastel 122 Haughton v. Haughton 118
Hankin v. Middleditch 638 Hawkins v. Day 229
Hanley v. Pearson 69 Haythome, In re; Graham v.
Hansard v. Eobinson 48, 44 Massey 268, 313, 869, 549
Hanson, Ex p 60S Hay's Case 138
V. Gardiner 360 Hay V. Palmer 198
V. Keating 37, 589, 590 Hayes ». Hayes 357
Harbert's Case 197 V. Ward 206
Hardcastle v. Smithaon 220 Haygarth v. Wearing 86
Harding v. Glyn 48, 106, 443 Haynes v. Eoster 461, 457
Hardwick v. Myned 213 Hays, Ex p 669
Hardwicke (Earl) v. Vernon 190, Hayward t). Hayward 389
192, 223 Haywood v. Brunswick Perm.
Hare & O'More's Cont., In re ... 71 Benefit Bldg. Soc 811
Hargreavee, In re; Dicks v. Hare 265 V. Cope 294, 312
Harland v. Trigg 447
Harmon v. Cannon 52 Plead, In re. Ex
executors p. Head's 289
Harnett v. Yielding 324, 826 V. Head 598, 594
Harrington (Countess) v. Harring- Heard v. Stanford 88
ton (Earl) 405, 406 Heath v. Crealock 36
Harrington v. Churchward ... 182, 190 V. Hay 188
«. Long 438, 440 V. Lewis 118
Harris, In re; Harris v. Harris 237 Heather, In re; Pumfrey v. Eryer 462
0. Beauchamp 351, 352 Heaton v. Dearden 279
V. Brisco 437, 438 Heffer v. Martyn 121
V. Cotterell 689 Hele V. Bexley (Lord) 215
V. Pepperell 326 Heli, In re 661
V. Eickett 324 Helmore v. Smith 94, 289
V. Tremenheere 130 Henning v. Clutterbuck 469
». Trueman 628 Henderson v. Astwood 419
Harrison, In re ; Harrison v. Henkle v. Eoyal Assoce. Co 68
Harrison 219 Hennesey v. Bray 227
V. Austin 74 Henry v. Armstrong 800
V. Barton 509 Hensman v. Eryer 246
V. Forth 168 Henty v. Wrey 106
V. Guest 140 Hepworth v. Hepworth 509
V. Gurney 542 Hercy v. Eerrers 298
V. Harrison 120, 251, 252 Herman b. Charlesworth 109
V. Eutland (Duke) 377, 379 Hetley v.V. Morton's
V. Seymour 208 Hewitt Foster Cont., In re ... 532
639
Harold v. Plenty 427 B. Looaemore 167, 158, 162, 163
Harrow School v. Alderton ... 372, 374 Hewson, In re 457
Hart «. Hart 565, 595 Heywood, Ex p 513
V. Herwig 806, 391 Hibbert 0. Cooke 623
V. Minors 254 Hiern u. Mill 160
Hartley v. Hitchcock 613 Higgin c. Liddal 171
V. Eice 112 Higginbotham v. Hawkins 219, 221,
V. Enssell 438, 489 389, 340
Hartopp V. Hartoppp 129 Higgins B. Betts 878, 879
Harvey, In re; Harvey v. Hobday 200 ». Hill 144
V. Aston 119 B. Samuels 815
V. Harvey 578 Hill V. Barclay 549, 550, 551, 558, 566
I). Mount 99 B. Boyle 434
Harwood v. Tooke 110 B. Buckley 314
Haslam & Hier-Evans, In re 180, 629 u. Curtis 227
XX
TABLE OF CASES.

PAGE PAGE
Hill V. Fulbrook 278
Holtzapffel v. Baker 49
V. Hart-Davies 388 Homan v. Moore 346
V. Hill 267 Honner v. Morton 590
V. Paul 122, 434 Honywood v. Honywood 219, 376
V. SimpBon 172, 173, 249, Hood (Lady) of Avalon v. Mac-
250, 472, 528 kinnon 63, 69
Hillary, In re 667 V. Aston 370, 390
Hilton V. Biion 624 V. Phillips 200
V. Scarborough (Lord) 361 Hood Barrs, Ex p 596, 599
Hinchcliffe v. Hinchcliffe 462 V. Cathcart 696
Hine v. Dodd 165 V. Heriot 596, 599
Hinton v. Parker 228, 229 Hooley v. Hatton 469
Hirst V. Tolson 194 Hooper, Ex p 320, 421
Hitchcock V. Giddings 57, 63, 64 1). Keay 188
Hitchman ®. Stewart 204 V. Smart 331
Hoare, In re; Hoare ii. Owen 362, 419 Hope V. Carnegie 542
V. Brembridge 79 Hope Johnstone, In re 120
V. Colenciu 183, 184 Hopkins, Ex p 563
B. Osborne 489 , In re; Dowd c. Hawkin ... 354
Hobday v. Peters 131 V. Hewsworth 436
Hoblyn v. Hoblyn 129 V. Hopkins 390
Hobson V. Bass 209 Hopkinson v. Burghley (Lord) ... 386
V. Trevor 422 V. Bolt 171, 172
Hoddel V. Pugh 336 Hopwood J). Hopwood 463
Hodgens v. Hodgens 593 Hore J). Becher 64
Hodges, In re 667 Horlock, In re; Calham v. Sipith 468
Hodgkinson v. Fernie 615 V. Smith 419
Hodgson, Ex p 552 Home, In re; Wilson u. Cox
, In re; Hodgson v. Fox ... 606 Sinclair 49
V. Shaw 210 V. Pringle 539
Hodson V. Henland 321 Horrell v. Waldron 229
Hogg V. Kirby 380, 387 Horrocks v. Eigby 331
Hoggart V. Cutts 346, 347 Horsey Estate Co. v. Steiger 665
V. Scott 330 Horton v. Bott 634
Hoghton V. Hoghton 129 V. Smith 200
Holbird v. Anderson 430 Horwood V. Schemedes 221
Holbrook v. Sharpey 126, 296 Hotchkis u. Dickson 68
Holden v. Hayn 333 Hotham v. Stone 209
Holding V. Elliott 69 Hovenden v. Annesley (Lord) 35, 225
». Thompson 122 How V. Bromsgrove (Tenants) ... 360
Holditoh V. Mist 270 V. Vigures 424
Hole V. Thomas 374 V. Winterton (Earl) 399, 633
Holford, In re ; Holford v. Holford 569 Howard v. Brownhill 254
V. Yate 266 D. Castle 121
Holgate V. Shutt 222 V. Digby (Earl) 580, 586
Holland, In re ; Gregg v. Holland 318 V. Harris 417, 420
V. Holland 540 V. Howard 231
V. Prior 173 V. Papera 354
Hollinrake v. Lister 550 Howe V. Dartmouth (Lord) 196
HoUis V. Bulpitt 221 V. Smith 327
V. Edwards 319 Howell V. Price 246, 246, 445
V. Whiteing 326 Howells V. Jenkins 451, 453
Holloway v. Headington 324 Howkins v. Howkins 623
V. Millard 149 Howley Park Coal & Canal Co. v.
Holman v. Loynes 129, 130 L. & N. W. Ely 379
Holmes, In re 436 Hubbard v. Alexander 469
Holmes v. Goghill 74, 75 V. Hubbard 280
0. Matthews 420 Hudson V. Granger 214
V. Mentze 290 V. Hudson 511, 540
Holroyd v. Marshall 432 Huggins, Ex p 121
Holt V. Holt 308 Hughes' Trusts, In re 436
 TABLE OF OASES.
XXI

PAGE FAOE
Hughes V. Graeme 306 James, Ex p 136, 512
V. Kearney 515, 518 V. Dean ._. 512
V. Morris 78 V. Kerr 55, 141
V. Science 559 V. Morgan 81, 545
V. Walmesley 436 Jarrold o. Houldston 382
V. Wells 77 Jefferson v. Durham (Bp.) 364, 371, 372
Hughes Hallett v. Indian Mammoth V. Morton 410
Gold Mines Co 207 Jeffery, In re; Arnold v. Burt ... 569
Huguenin v. Baseley 107, 128, 136, Jeffreys v. Jeffreys 338, 397
140, 259, 363, 392 Jeffs V. Wood 601
Huish, In re; Bradshaw v. Huish 468 Jenkins & H. E. Eandall's Cont.,
Hulme V. Tennant ... 101, 583, 584, 586 In re 512
Humphreys v. Harrison 373, 420 Jenkins d. Moore 98
Hummings v. Williamson 631 Jenner v. Harper 493
Hunt I). Luck 163 V. Morris 298
V. Peake 379 V. Turner 117
Hunter v. Atkins 130 Jennings v. Broughton 87
V. Att.-Gen 497 Jervis v. Berridge 327
V. Belcher 224 V. Wolferstan 213
•». Daniel 438 Jervoise v. Northumberland (Duke)
Hurlbatt & Clayton's Cont., In re 86 401, 403, 404
Hurst V. Beach 254, 255 V. Silk 568
Hutchinson and Tennant, In re ... 448 Jessop V. Watson 338
u. Heyworth 431 Jeston 1). Key 309, 310, 404
v. Massareene 352 Jesus College v. Bloom 217
Hyde v. Parrat 356 Jew V. Thirkenell 198
V. White 144 Jewon V. Grant 213
Hylton V. Hylton 134 Jewson V. Moulson 588
Hyman v. Helm 369 Job V. Cordeaux 192
V. Job 191
1). Potton 192
Impebial Gas Light & Coke Co. Jobson V. Palmer 532
V. Broabent 377 Jodrell V. Jodrell 197, 579
Imperial Loan Co. v. Stone 95 Johnson, In re 354
Imperial Mercantile Credit Assc. , In re; Sandy c. Eeilly 256
V. Coleman 137 Wragg ». Shand 233
Ind Coope & Co. o. Emmerson 36, Johnson v. Bragge 70
266, 298, 630, 633 ^— V. Child 199, 240
Incorporated Society v. Eichards V. Curtis 221, 222, 223
485, 493 V. Gallagher 586
Ingram v. Stiff 391 ». Kennet 473
Inman v. Wearing 37 o. Legard 174
Inwood u. Twyne 570 B. Mills 357
Irnham v. Child 53, 68 Johnstone ». Beattie 662, 666, 867
Joliffe V. Baker 64, 71
Ironmongers' Co. d. Att.-Gen. 490,
491, 492, 495 Jones, In re; Parrington v.
Irving V. Young 224 Forrester 199, 278, 522
Irwin, In re; Irwin v. Parkes ... 34 ». Bennett 617
Isaacson v. Harwood 540 V. Chappie 373
Ives V. Metcalfe 633 V. Corry 615
V. Croucher 147, 174
Jaokman v. Mitchell 153, 151 V. Heavens 305
Jackson's Will, In re 47 V. Jones 612
Jackson, t). Cummins 214, 51-S V. Lewis 191
V. Duchaise 155 V. Llandaff Urban Council 378
V. Hobhouse lO'i. V. Martin 155
V. Innes 578 V. Merioneth Bldg. Soc. 121,
V. Leap 234 124, 125
D. Petrie 543 V. Monte Video Gas Co. ... 31
J). Bowe 36, 165, 633 c. Morgan 200, 458
Jacques v. Millar 340 V. Mossop 605
 TABLE OF OASES.

PAGE PAGE
Jones V. North Vancouver Land
King V. Hamlet 142, 143, 145
& Imp. Co 555 0. King 370
D. Selby 256 0. Malcott 255
V. Smith ... 86, 162, 171, 427, 428 V. Smith 373, 420, 425
V. Thomas 132, 345 B. Wilson 329
V. Waite 120 I). Zimmerman 45
V. Yates 291 Kingston (Lord) v. Lorton (Lord) 447
Jope V. Morshead 273 Kingston - upon - Hull (Corp.) v.
Jorden v. Money 82 Harding 92
Joseph J). Lyons 30 Kinnaird v. Webster 185
Joy V. Campbell 638 Kinnoulc. Money 422
Joynes v. Tatham 325 Kimberley v. Jennings 326
Kirby v. Marlborough (Duke) ... 188
Kapitigalla Eubbee Estates v. Eavens worth Hosp., Ex p. 488
Nat. Bk. of India 224 Kirk V. Eddowes 459
Kay V. Johnston 214, 278, 522 Kirkham v. Shawcross 214
Keane v. Boycott 100 V. Smith 20O
«. Eobarts 250 Kirkman ». Booth 136
Kearley v. Thornton 123, 124 Kirkwood v. Thompson 418
Kearsley v. Cole 52 Kirwan's Trusts, In re 47
Keate v. Allen 110 Kitts V. Moore 364
Keble o. Thompson 539 Knatohbull v. Hughes-Hallett .... 189
Keech u. Hall 419 Knebell v. White 221
V. Sandford 512 Knight V. Boughton 447
Kehoe v. Lansdowne (Marq.) 219 V. Bowyer 221
Keily v. Monck 116 V. Bulkeley 434
Kekewich v. Manning ... 123, 300, 397 V. Davis 243
V. Marker ....» 374 V. Hunt 154
Kelly V. Bnderton 86 V. Plymouth (Lord) 532, 533
V. Morris 382 V. Simmonds 311
V. Solari 62, 457 Knott, Ex p 170, 171, 428, 512
Kelsey, In re ; Woolley v. Kelsey 454 V. Morgan 387
Kemp V. Finden 204 Knox V. Symmonds 616
V. Kemp 106
V. Pryor 9 Lacan v. Mertins 241
V. Weatbrook 427, 428 Lacey, Ex p 128, 135, 136, 512
Kempsoii v. Ashbee 129, 134 V. Ingle 169, 171
Kendall, Ex p. 240, 241, 267, 271, Lacou, In re ; Lacon u. Lacon
272, 527 459, 463, 467
V. Granger 486 V. Allen 421
V. Hamilton 72, 289 Lagunas Nitrate Co. v. Lagunas
Kennard v. Kennard 47 Synd 137
Kennedy v. De Trafford 192 Lake v. Brutton 208
Kenney v. Wrexham 49, 91 o. Craddock 288, 509, 522
Kenrick v. Mountstephen 278 V. De Lambert 600
Kensington, Ex p 421 V. Gibson 509
Kent V. Elstob 615, 616 Lamb c. Lamb 457
«. Kent 221 Lambe v. Eames 447, 448
Kerr v. Eeed 626 Lambert v. Lambert 593
Kershaw, In re ; Whittaker u. V. Rogers 298
Kershaw 213 Lamlee v. Haninan Ill
Ketleby o. Atwood 405 Lampet's Case 356, 431
Kettlewell v. Watson 162 Lambeth Charities, In re 492
Key V. Bradshaw 112, 113 Lamplugh v. Lamplugh 506
Keys V. Williams 421 Lancefield v. Iggulden 245
Kidney v. Coussmaker 238, 455 Lane, Jn re; Belli D. Lane 77
Kilmer v. Brit. Columbia Orchard V. Leadbetter 384
Lands, Ltd 549 V. Newdigate 307, 378
Kimber v. Barber 132 Lane Pox, In re ; Gimblett, ex p. 149
Kimpton v. Eve 807, 373 Langley o. Oxford (Earl) 472
King V. Dennieon 524 Langston Ex p 421
 TABLE OF CASES.

PAGE
Langstaffe v. Fenwiok 61 PAGE
Lenty v. Hillas 70
Langston v. Boylston 344, 345 Leonard v. Leonard 56
— — V. OUivant 539 Lerouse «. Brown 319
Langton v. Horton 420, 440 Leslie, In re; Leslie v. Prench ... 622
V. Langton .., 354 V. Baillie 63, 436
V. Waite 427 V. Thompson 85
Lansdowne (Marq.) v. Lansdowne - ». Young 384
(March.) 217, 219 Leslie, Ltd. v. Shiell 101
V. 53 Lester v. Eoxcroft 312, 320
Lanoy v. Athol (Duke) 568 Lettershedt v. Broers 540
Lashley v. Hogg 237 Letton I). Gooden 361
Latouohe v. Dusany 165, 166 Lever v. Goodwin 380
Latymer's Charity, In re 495 Levick v. Epsom and Leatherhead
Laughter's Case 546 Ely 164
Lavery o. Pursell 20, 341 Levy V. Walker 388
Law V. Garrett 617 Lewis, Ex p 624
V. Law 355 , In re; Lewis v. Lewis 33,
Lawless v. Mansfield ... 131, 133, S12 46, 136, 660
Lawley v. Hooper 80 ». Pullarton 382, 384
Lawrence v. Campbell 631 V. Hillman 131, 132
u. Lawrence 453 Lightfoot u. Heron 96
V. Smith 881, 382 Like V. Beresford 592
Lawton v. Carrfflion 59 Liley v. Hey 448
Lea, In re; Lea v. Cooke 500 Lilford (Lord) v. Powys-Keck 243, 519
Leach v. Leach 133 Lilia V. Airey 576
Leader v. Pnrday 383 Lind, In re; Industrials Finance
Leake v. Leake 623 Synd., Ltd. v. Lind 432
Learoyd v. Halifax Banking Co. 632 Lindo V. Lindo 65
V. Whiteley 534 Lindsay v. Lynch 321, 323, 324
Leary v. Shout 287 Lindsay Petroleum Co. o, Hurd ... 86
Leathes v. Leathes 297, 298, 630 Lingen v. Simpson 285, 303
Lechmere v. Brazier 316 Linley v. Taylor 450
V. Carlisle (Earl) 459, 460 Little, In re 600
V. Charlton 526 Liverpool Household Stores Assn.
V. Lechmere (Lady) ... 459, 460 t). Smith 388
Leconturier v. Beg 388 Llanover v. Homfray 640
Lee V. Alston 218 Lloyd, In re; Lloyd v. Lloyd ... 37
V. Clutton 161, 162, 165 V. Attwood 93, 421
V. Jones 92 V. Banks 436, 437
V. Lee 309 V. Branton 117, 119
V. Page 195 V. Grace Smith & Co 84
V. Park 234 V. Johnes 201
Leech v. Trollop 634 «. Loaring 302
Leeds (Duke) v. Amherst (Earl) V. Mason 588, 501
192, 223 V. Pughe 579
V. Strafford (Earl) 262 V. Bead 507
V. New Radnor (Corp.) ... 44, 263 V. Spillet 396
Leeke c. Bennett 255 's Bank v. Pearson 436
Lees V. Nuttall 133 Locke V. Lomas 473
Legard v. Hodges 520 Lockhardt c. Hardy 424
Legott V. Barrett 324 Locking v. Parker 417
Leigh, Jn re; Leigh ». Leigh 571 Lockwood V. Ewer 427
V. Burnett 419 Lodge V. Prichard 289
V. Dickeson 214, 522 Logan V. Wienholt 155, 305, 316,
Legg V. Goldwire 70, 71 334, 549
Leighton v. Leighton 361, 362, Lomas v. Wright 243
463, 467, 612 London and Birmingham Ely v.
Winter 327
Lemau v. "Whitley 505
Lench u. Lench 521 London and County Bank v. God-
Le Neve v. Le Neve 161, 162 dard 169, 172
Lennon v. Napper 315, 329 V. Lewis ... 167, 310, 370
 TABLE OF CASES.

PAGE
PAGE
liondon Chartered Bank of Aus- McCulloch V. Gregory 613
tralia V. Lemprifere 568 McDonnell v. Heselrige 295
London and Midland Bank v. Mit- McFadden v. Jenkyns ... 317, 397, 398
chell 427 McGruther v. Pitcher 517
London (City) v. Nash 308 McKewan v. Saunderson 154
V. Perkins 361 McLeod V. Drummond ... 172, 173, 250
». Pugh 307 McManus v. Cooke 322
L. & N. W. Rly., In re; Cooper, McNeil V. Cahill 154
ex p 47 McQueen v. Parquhar 85, 106, 168
L. & S. W. Rly. 0. Blackmore ... 65 Macartney v. Graham 43
London Gen. Omnibus Co. v. Hol- Macaulay v. Shackell 638, 639
loway 92, 155 Macdonald v. Bell 212
Long V. Dermis 118 V. Longbottom 324
V. Eicketts 119 V. Macdonald 252
Longman v. Winchester 384 Macdonnell v. Harding 533
Loog (Hermann) v. Bean 389 Mackay, In re ; Griessermann o.
Loosemore «. Knapman 525 Kerr 534
Lopdell V. Creagh 225 V. Bentley 69
Lord V. Jeffkins 144, 145 V. Douglas 150
Lound V. Grimwade 121 Mackenzie v. Coulson ... 68, 195, 405
Loval (Lord) v. Leeds (Duchess) 219 V. Johnston 183, 184, 191
Imw v. Bouverie 82 V. Bobinson 424
V. Burron 405
Lowe ». Peers 112, 113, 119 Mackintosh v. Pogose *
V. Townsend 652
498
Lowndes v. Cornford 345 Macklin v. Lichardson 385, 386
V. Lane 85 Mackreth v. Symmons 171, 214,
Lowson V. Copeland 535 514, 515, 516, 518, 519
Lowther v. Carlton 167 Maddeford v. Austwick 94
Lowthian v. Hasel 171, 428 Maddison v. Alderson 319, 321
Loxley v. Heath 324 Maguire, In re 492
Loyd V. Brooking 406 Maitland v. Backhouse 129
Lubbock V. Tribe 221 V. Irving 129
Lucas V. Dixon 318 Major V. Lansley 584
V. Lucas 579 Makepeace v. Rogers 190
Lucy's Case 59 Makings ». Makings 201
Malcolm v. Charlesworth 440
Luddy's Trustee v. Peard 130
Ludlow (Corp.) v. Greehouse 484, 488 Maiden v. Menil 62
Lumley v. Wagner 307, 392 Malim v. Keighley 394, 446
Lunn V. Thornton 432 Mallet V. Halfpenny ... 105, 139, 318
Lupton V. White 193, 263 Man D. Ballet 494
Manaton v. Molesworth 364
Lush's Trusts, In re 592
Lutkins v. Leigh 243 Manby v. Robinson 345
Luttrell V. Waltham (Lord) 105, Mann, In re; Hardy v. Att.-Gen. 496
107, 332 Manning's (Mathew) Case 356
Lyde v. Munn 309 Manning v. Spooner 245
V. Mynn 422 Mansel v. Mansel 407
Lydney and Wigpool Iron Ore Co. Mansell v. Valley Printing Co. ... 385
0. Bird 137 Manton ». Manton 351
Lyell V. Kennedy 626, 631 Mare v. Sandford 154
Lyon V. Tweddell 195 Marker v. Marker 219
Lysaght v. Edwards 335 Marples v. Bainbridge 118, 119
V. Eoyse 573 Marriage v. Skiggs 234
Lythgoe ». Vernon 452 Marriott v. Marriott 228, 253
Lytton (Earl) v. Dewey 385 Marsden's Trust, In re 105, 106
Marsh v. Lee 169, 170
Marshall v. Colman 285
Mabeb v. Hobbs 435 V. Rutton 586
McCarthy u. Decaix 55 Martidale v. Martin 478
McCormick v. Garnett 63 Martin v. Cooper 33
McCreight v. Foster 333, 334 V. Nutkin 391
McCulloch, In re 563 V. Tomkinson 124
 XXV
TABLE OF CASES.

PAGE PAGE
Milbourne ». Ewart 677
Maskell and Goldfinch's Cont.,
In re 100 Miles c. Harrison 244
Mason, In re 188 V. Langley 163
t). Armitage 308 V. New Zealand Alford Es-
V. Gardiner 126 tate Co 59
V. Goodburne 634, 637 Millar «. Craig 222, 224, 225
V. Provident Clothing and Miller v. Blandist 317
Supply Co 121 1). Harris 562
Masonic Gen. Life Assn. v. Sharpe 35 u. Warmington 262
Massenburgh v. Ash 398 Mills V. Banks 422
Massey v. Banner 183, 184 V. Bowyer's Co 614, 615
0. Davies 190 V. Campbell, 629
Masson Templar & Co. v. De Pries V. Eden ..." 239
244, 248 V. Parmer 477, 483, 490, 493, 496
Mathews v. Feaver 148, 150 V. Haywood 319, 320
Matthew v. Bowler 519 Millett V. Davy 873
Matthews v. Cartwright 428 Milner, ex p.; Milner, In re .... 163
V. Jones 890 v. Milner 78
V. Newby 231 Milnes v. Gery 49, 322
». Smallwood 555 Mirams, In re 422
Matthewson v. Stockdale 384 Mirehouse v. Scaife ;... 243
Maugham ». Ridley 421 Mitchell «. Hayne 344
V. Sharpe 510 Mitford V. Mitford 620
Maundrell v. Maundrell 160 V. Reynolds 498
Mawman v. Tegg 381, 384 Mogg V. Hodges 245
Maxey Drainage Bd. v. G. N. Ely. 378 Moggridge v. Thackwell 477, 483,
Maxwell v. Montacute 325 488, 490, 491, 494, 496, 499, 500, 501
May V. Piatt 60, 65, 66, 68, 69, 71, 318 Mole I). Mansfield 278
Mayer v. Murray 418 Monck V. Monck (Lord) 463
Mayhew v. Crickett 138 Mondey v. Mondey 424
Mead v. Orrery (Lord) 163, 178 Montacute v. Maxwell 139, 326
Mecca, The 187 Montague v. Dudmau 627
Meek v. Kettlewell 338 B. Sandwich (Earl) 462
Melhuish v. Moore 98 Montefiore v. Guedalla 463, 466
V. Milton 79, 176 Montesquieu v. Sandys ... 130, 132, 133
Mellish «. Richardson 629 Montreal (Bank) v. Stuart 294
Merchant v. Driver 249 Moodaley o. Morton 638
Moodie v. Bannister 233
Mercier v. Mercier .". 509
Meredith u. Wynne 329 V. Reid 75, 77
Mestaer ». Gillespie 35, 78 Moody D.V. Black
"Walters 401, 408
Metcalf V. Hervey 344 Moor 265
V. Pulvertoff 166 Moore, In re; Trafford v. Macono-
Metcalfe v. Hutchinson 444 chie 120
Metropolitan Counties Soc. v. V. Darton 256
Brown 66, 71, 294 V. Ellis 677
Metropolitan Asylums Bd. v. Hill 877 V. Usher 344
Metropolitan Rly. v. Woodhouse ... 390 Moran v. Race 596
Meux V. Bell 487 Moravian Society, In re 641
V. Howell 430 Mordue i). Palmer 78
Mexborough (Earl) ». Whitwood More V. Preeman 578
Urban Council 631 V. More 570
Morecock v. Dickens 166
Middleton's (Sir Thomas) Case... 482
o. Brown 101 Morehouse v. Newton 223
V. Jackson 860 Morgan, Ex p 521
V. Middleton 35, 81, 318 , In re; Pilgrem v. Pilgrem 249
V. Pollock; Knight and Ray- V. Dillon 560
mond, ex p 608, 605 V. Larivifere 221, 339
V. Pollock; Nugee, ex p. 0. Marsack 346
602, 604, 605, 609 ». Mather 615, 616
V. Minett 130
Midgley v. Midgley 288
Mignan v. Parry 70 V. Morgan 119
XXVI TABLE OP CASES.

PAGE
"Morice National Trustee Co. of Austra-
Morrisonv. v.Durham
Moat (Bp.) 485, 486, 389
497 lasia V. Gen. Finance Co 534
Morley v. Loughnan 136 Naylor v. Winch 55, 59
V. Morley 532 Neal's (Sir Paul) Case 679
V. Eennoldson 115, 119 Neale, In re 562
Mornington (Countess) ». Keane V. Neale 59
621, 526 Neate v. Marlborough (Duke) ... 514
Morocco Bound Synd. c. Harris 388 V. Pink 361
Morphett v. Jones 319, 320, 321 Nelson v. Bridges 339
Morret j). Paske 171 B. Duncombe 673
Morrice v. Bank of England 231, V. Stocker 87
232, 233, 234, 236 Nelthorpe v. Holgate 87, 90
Morris ». Baron & Co 326 Nesbitt V. Tredennick 419
V. Colman 391 Nevill V. Snelling 140, 141
V. Kelly 386 Neville v. London "Express"
V. McCullock 122 Nevpspaper, Ltd 437
, Ltd. V. Saxelby ... 121, 307, 335 V. Matthewman 355
Morrison v. Arnold 640 V. Wilkinson ... 35, 82, 83, 111
Morse c. Roach 613 Newcastle (Duke) v. Lincoln
V. Eoyal 127, 136 (Countess) 404
Mortimer v. Capper 49 (Duchess) V. Pelham (Lord) 631
J). Shortall 60, 68, 69, 70 Newdigate v. Newdigate 374
Morllock V. Buller 80, 293 Newen, In re; Newen v. Barnes 298
Moseley v. Simpson 106 Newham v. May 339
«. Victoria Co 632 Newman v. Barton 213, 627
Moses V. Levi 537 V. Newman 436, 456
Moss B. Barton 307 V. Pinto 387
V. Gallimore 419 New Eiver Co. v. Greaves 360
Motteaux v. London Assce. Co. ... 70 Newstead v. Searles 405
Mount, Ex p 673 Newton v. Bennett 235
Moxhay v. Inderwick 333 V. Marsden 117
Moxon V. Payne 144 Nichol ». Bestwick 152
Moyle V. Home 317 Nicholas v. Eidley 209
Mullens v. Miller 84 Nichols 1). Chalie 614
MuUineaux v. Mullineaux 258 V. Pitman 386
Mundy v. Mundy 264, 265, 276 V. Eoe 614
Munns v. Isle of Wight Ely. ... 621 Nicholson v. Chapman 522
Murray v. Bogue 383 c. Hooper 157, 428
1). Elibank (Lord) 585, 588, V. Eevell 208
591, 692 Nickels v. Hancock 617
Murrell v. Goodyer 612, 614 Nickolson v. Knowles 346
Murthwaite ». Jenkinson 406 Nightingale v. Goulburn 485
Mustnpha b. Wedlake 256 Nives V. Nives 519
Mutlow V. Bigg 337 Nocton V. Ashburton (Lord) ... 82, 84
Noel V. Eobinson 213, 229, 517
V. Ward 631
Naibn v. Prowse 515, 518 Nordenfeldt ». Maxim Nordenfeldt
Nantes 0. Carrock 136 Guns and Ammunition Co 121
Nash V. Derby (Earl) 666 Nokes V. Gibbon 549, 553
V. Inman 99 t!. Kilmorey (Lord) 315
V. Morley 485 Norey v. Keep 626
National Phonograph Co. v. Edison Noriss V. Chambers 369
Bell Nat. Phon. Co 301 Norfolk (Duke) v. Myers 360
National Provincial Bank of Eng- Norman ». Morrill 243
land, Ex p. ; Boulter, In re ... 70, 318 Norris, Ex p.; Sadler, in re .... 237
, In re Newton ... 237 North V. Ansall 104
, In re Eees 209 North British Insce. Co. v. Lloyd 92
National Provincial Bank ti. Jack- North London Ely. v. G. N. Ely.
eon 73
364, 617
V. Marshall 305, 649 North West Transportation Co. v.
V. Glennusk (Baron) 92 Beatty 137
 TABLE OF OASES.

PAGE
Northen B.- Carnegie 507 Papillon B. Voice PAGE
404
Northern Counties of England Fire Paradine b. Jane 48, 194
Insoe. Co. v. Whipp 1S9 Pardo B. Bingham 237
Nugent V. Vetaera 571 Parfitt V. Lawless 130
Nutbrown v. Thornton ... 302, 303, 308 Paris (1. Gilham 346
Paris Chocolate Co. v. Crystal
Palace Co 331
Oakes v. Turquand 294 Parker b. Brooke 163
Oatway, In re; Hertslet v. Oat- B. Gerrard 277
way 193, 263 V. McKenna 529
O'Connor v. Spaight 180, 182 B. Sowerby 450
Odessa Tramways Co. v. Mendel 107 B. Trigg 278
Oelkers ». Ellis 35 Parkhurst B. Lowten 631
Ogilvie V. Poljambe 324 B. Smith 407
Okill V. Whittaker 64, 65, 67 Parkin, In re; Hill v. Schwartz ... 334
Oldfield, In re ; Oldfield v. Oldfield 447 Parkinson v. Hanbury 224, 418
Oliphant v. Hendrie 498 Parmeter b. Gibbs 376
Olliver's Settlement, In re ; Evered Parrott b. Congreve 390
V. Leigh 467 V. Palmer 218
Oliver v. King 151 Parry, In re; Scott b. Leake .... 255
Olley V. Fisher ... 20, 69, 70, 71, 312 Parsons, Ex p 533
Ommaney v. Butcher 486, 497 V. Baker 448
Onions v. Cohen 297 Partridge v. Partridge 546
V. Tyrer 48 B. Walker 478
Opera, Ltd., In re 52 Paschall v. Ketterick 255
Oquendo, The 204 Pascoe V. Swan 214, 278
Orby V. Trigg .._. 420 Pasley v. Freeman 82, 87
Orme, In re 505 Patrick, In re; Bills b. Tatham 437
Ormond (Marq.) v. Kynersley 217, 219 Paterson b. Scot 243
Patman v. Harland 163
O'Korke b. Bolingbroke ... 140, 141, 142
Orr V. Diaper 626 Pawlet B. Ingres 360
Osborn v. Morgan ... 585, 587, 588, 589 Paxton B. Douglas 233
Osborne ». Bradley 311 Payton v. Bladwell 110
V. Eowlatt 57 Peace v. Harris 299
V. Williams 124, 125 Peachy B. Somerset (Duke) 660,
Osbaldiatou v. Simpson 125 553, 556
Osmond v. Fitzroy 109 Peacock b. Evans 141
Ostell V. Le Page 369 u. Monck 583
Ouseley v. Anstruther 246 Peake, Ex p 519
Owen V. Griffith 215 B. Highfield 297
V. Homan 92 Pearce b. Crutchfield 571
Owens V. Bean 492 V. Green 190, 191
Oxenden v. Compton .... 660, 561, 572 V. Piper 370
Oxenham v. Esdaile 513 Pearl v. Deacon 137, 208, 209
Pearse v. Green 535
Pearson b. Morgan 84, 157
Pacaza Rubber and Produce Co., Pease b. Hewitt 196
In re; Burns' Appln 86 Peckering B. Kimpton 258
Padbury v. Clark 457 Peers b. Lambert 64, 85, 314, 330
Paddon v. Richardson 539 V. Neeham 279
Page V. Broom 329, 504 Pelton Bros. v. Harrison 599
V. Midland Rly 324 Pember B. Mathers 309
Paget V. Marshall 65, 69 Pemberton v. Barnes 281
Pain V. Coombs 320 B. Pemberton 79, 612
Paine V. Miller 48 Pembroke b. Thorpe 305, 308, 321
Palmer's Case 188 Pendlebury B. Walker 204
Palmer v. Hendrie 424 Penn v. Baltimore (Lord) 263, 309,
B. Johnson 64 313, 369, 392, 542
— ^- V. Moore 555 Pennell B. Dysart (Earl) 298
. V. Neave Ill Penrhyu B. Hughes 201
Pankhurst 8. Howell 466 Pentland v. Stokes 166
XXVlll TABLE OF CASES.

PAGE
Percival (Lord) v. Phipps 385, 386 Pollock, In re ; Pollock v. Worrall
Perkins, In re; Perkins v. Bagot 106 463, 466
; Poyser v. Beyfus 65 Poole, 7n re; Thompson c. Bennett 236
Perrius v. Bellamy 534 V. Adams 521
Perry v. Attwood 223 1). Bott 118
c. Barker 424 V. Middleton 308
V. Meadowcroft 420 V. Shergold 33, 330
— — V. Nat. Prov. Bank of Eng- Pooley V. Quilter 136
land 138 V. Eudd 302
V. Phillips 232, 233, 234 Poor V. Clark 360
V. Shipway 540 Pope V. Curl 385
V. Truefitt 387 V. Gwinn 236
Perry's Almshouses, In re 501 Popham V. Lancaster 360
Persse v. Persse 59, 62 Porcher v. Wilson 243
Petch ». Tutin 432 Portarlington (Lord) v. Soulby ... 369
Peter v. NiohoUs 151 Porter t>. Bolton 447
B. Eussell 158 V. Lopes 281
Peters v. Blake 375 Porter's Case 478, 479, 506
Petit V. Smith 231 Portland (Duke) v. Topham ...105, 106
Petre v. Espinasse 151 Portmore (Earl) v. Taylor 143
». Petre 301, 528 Portsmouth (Earl) v. Fellows ... 541
Philanthropic Soc. v. Kemp 244 Post V. Marsh 107
Philip V. Pennell 385, 386 Pothonier v. Dawson 428
Phillips, Ex p 558, 560, 570, 572 Potter V. Sanders 333, 334
Phillips V. Cayley 77 Powell V. Evans Jones & Co 133
V. Foxhall 92 V. Powis 360
V. Homfray 216, 217, 218 V. Eiley 246, 445
V. Hudson 360
V. Smith '. 52
V. Jones 298 Power, In re; Acworth v. Storie... 235
V. Phillips 37, 159 V. Bailey 333
t). Silvester 514 V. Banks 512
's Trusts, In re 437 Powis V. Blagrave 373
Phillipson v. Gatty 529 Powys V. Mansfield 459, 463
Phipps V. Lovegrove 436 Pratt V. Brett 218, 307, 373
Pickard, Ex p 673 Prebble v. Boghurst 577
V. Sears 156, 157 Prevost V. Clarke 447
Pickering «. Cape Town Ely 617 Price V. Cheesman 287
V. Stamford (Lord) 35 V. Fashredge 171
Pickett V. Loggon 105 V. Jenkins 173
Pickstock V. Lyster 430 V. North 236
Pidcock V. Bishop 83, 92, 137, 155 V. Price 98, 166
Pierce v. Thornley 590 V. Varney 215
V. Webb 297 V. Williams 616
Piercey v. Fynney 291 Prichard v. Gee 638
Pierson v. Garnett 447 Priddy v. Eose 504
». Hutchinson 42 Priestley v. Lamb 570
Pigot V. Cubley 428 Priestman v. Thomas 176, 611
Pike B. Fitzgibbon 101 Prime v. Stebbing 459
V. Nicholas 382 Primrose v. Bromley 207
Pilcher v. Eawlins 163 Pritchard v. Ovey 307
Pink, In re ; Pink v. Pink 299, 511 Pritt 5). Clay 225
Pinnell v. Hallett 459 Probert v. Clifford 680
Pitt V. Cholmondeley 223 Progers v. Langham 154
V. Jones 281 Produce Brokers Co. «. Olympia
Plenty v. West 246 Oil and Cake Co 615
Plumb V. Fluitt 157, 158, 162 Professional Life Assce., In re ... 267
Plymouth (Countess) v. Throg- Prosser v. Edmonds 431, 434
morton 194 Prudential Asses. Co. v. Knott ... 388
Pocoek J). Eeddington 529 Pugh V. Heath 30
Podmore v. Gunning 325 Pullen V. Eeady 53
Pollexfen v. Moore 515 PuUerton v. Agnew 545
 TABLE OF CASES. XXIX

PAGE PAGE
Pulsford I). Bichards 83, 85 Beg. V. Cox 632
Pulteuey c. Warren 215, 216, 217, Behden v. Wesley 533
265, 551 Beid-Newfoundland Co. v. Anglo-
Pultuey V. Shelton 372 American Telegraph Co 533
Purdue v. Jackson 590, 591 Eeid V. Beid 597
Pusey I). Desbouvrie 54 • u. Shergold 76
V. Pusey 302 Beiuer v. Salisbury (Marq.) 627
Pybus V. Mitford 506 Benals v. Cowlishaw 309, 311
Pye, Ex p 338, 464 Eendall v. Blair 487
V. George 400 Benter v. Sala 329
Pym V. Blackburn 48 Eevell V. Huosey 294, 312
V. Lockyer 458, 463 Bevett V. Harvey ;.... 134
Pyne, In re; Lilley b. Att.-Gen. 496 Beynell v. Sprye 122, 438
Bex V. Bennett 212
QuABRiBE V. Colston 127 V. Bowes 625
Quartz Hill Cons. Gold Mining V. Watson 430
Co. V. Beall 389 V. Whitstable (Free Fishers) 215
Quick V. Haines 249 Eeyuish v. Martin 255
Quin and Axtens, Ltd. v. Salmon 137 Beynolds v. Pitt 549, 561, 653
V. Waring 321, 322, 323
Eaffeety v. King 426 Bhodes, In re; Bhodes v. Ehodes 95
Kailton v. Matthews 87, 89, 92 V. Bate 131
BamloU v. SoojomnuU 121 Bice V. Bice 519
Eamsay v. Shelwerdine 507 Bich V. Aldred 343
Eamsbotham v. Senior 567 V. Cockell 578, 581
Bamsden v. Dyson 156 V. Jackson 71, 324
V. Hylton 56, 56 Bichards,, In re; Humber v.
Bamuz v. Clay 43 Bichards 436
Bandall v. Phillips 151 V. Chambers 585
■ V. Willis 155 V. Jones 603, 609
Baphael v. Boehm 636 V. Noble 218, 219
Batcliffe v. Barnard 421 Eichardson v. Bank of England ... 287
Baw V. Potts 35 V. Feary 281
Eawden v. Shadwell 126 V. Horton 72, 73
Eawlins u. Powell 468 V. Nourse 616
». Wickham 84 V. Young 426
Bawson v. Samuel 603, 604, 605 Bicherson, In re ; Scales v. Heyhoe 338
Bay V. Bay 249 Eider v. Kidder 124, 507
Bayner v. Koehler 227 Eidgway «. Woodhouse 546
V. Preston 48 Bidler, In re; Bidler v. Bidler 149, 150
Bead v. Anderson 121 Eidout I/. Plymouth (Earl) 680
V. Brokman 41 Eigden v. Pierce 287
«. Price 152 V. Vallier 509
Beade v. Lowndes 209 Bipon (Earl) v. Hobart 376
Beddaway v. Banham 387 Bippon V. Dawding 576, 577
Bedding v. Wilkes 325 Eitchie v. Smith 122
Eede v. Farr 554 Bivaz 0. Gerussi 93
Eedfern v. Eedfern 631 Bivett's Case 482
V. Smith 574 Eoach v. Garvan 563
Bedgrave v. Kurd 83, 86 Boberdeau v. Ecus 313
Eedington v. Bedington 201 Eoberts, In re ; Fowler v. Boberts 234
Bedman v. Bedman Ill , ; Knight v. Boberts ... 534
Beech v. Kennigate 300, 332 — — V. Barry Improvement Com-
Beed ». Norris 133, 512 missioners 546
Bees V. Berrington 138 D. Gray 99
V. De Bernardy 98, 122, 141, V. Kuffin 222
437, 438 V. Marchaut 336
Bees Biver Silver Mining Co. v. V. Oppenheim 626
Smith 83, 295 V. Eoberts 110, 390
Eeeve -u. Parkins 370 Bobertson v. Hartopp 45
Beeves v. Pope 609 Bobinson, In re 434, 594
 XXX TABLE OF CASES.

PAGE
Eobinson ». Bland 126 PAGE
St. John V. St. John 595
V. Byron (Lord) 378 St. Luke's Parish,!!. St. Leonard's
V. Geldard 244 Parish 261
V. Jenkins 347 Sackvill V. Aylworth 637
V. Lowater 444, 472 Sackville West v. Holmesdale
V. Preston 509
V. Eobinson 536 (Vise.) -404
Sadler v. Hinxman 213
V. Tongue 514 V. Hobbs 539
V. Wall 87 V. Worley 427
t). Wheelwright ... 457, 546, 599 Sale V. Moore 447, 448
V. Wilson 212 Salisbury (Lord) v. Wilkinson ... 190
Eoby, In re; Hewlett v. Newing- Salkeld v. Vernon 85
ton 461, 467 Salmon, In re ; Priest v. Uppleby
Rochfoucauld v. Boustead 132, 133, 612 512, 529
Eochfort V. Ely (Earl) 560 Salomons v. Knight 389
V. Pitzmaurice 403, 404 Salt, In re; Brothwood v. Eeeling 243
Sogers, Ex p 298 Salvin v. N. Brancepeth Coal Co. 377
V. Dallimore 616, 617 Sampson & Wall, In re 571
V. Hadley 69 Samuel v. Newbold 141, 295
V. Hosegood 311 Sanderson's Trusts, In re 573
V. Ingham 221, 528 Sandon v. Hooper 419
V. Eogers 370 Sanford v. Remington 632
Rolfe V. Gregory 528 Saunders v. Dehew 161, 400
EoUand v. Hart 161, 162, 165 V. Leslie 518
Rook V. Worth 308 V. Newbod 295
Eoper ti. Holland 254 Savage v. Poster 156, 157, 320
Roscarrick v. Barton 417 Savery u. King , 127, 129, 144, 145
Eose V. Hyman 555 Saville c. Tankred 302
V. Poulton 290, 577 Savoy c. Dyer 364
V. Spicer 555 Saxby v. Easterbrook 388
c. Watson 214, 319,574 Saxton V. Bartley 281
EosB V. Close 636 Say V. Barwick 96
EosBwell's Case 78 Sayer v. Pierce 216
Roundell v. Currer 546 Sayers c. CoUyer 311
Rous V. Barker 262 Scarf V. Jardine 72
Rouse V. Bradford Banking Co. ... 138 Scawin v. Scawin 508
Routh V. Webster 387 Schlencker o. Moxsy 283, 577
. Rowe V. 638 Schneider v. Heath 83, 87
V. Rowe 468 Schofield V. Ingham 419
V. Wood 373 Scholefield v. Templer 145
Rowell v. Sutchell 311 Scholfield V. Londesborough (Earl) 157
Roy V. Beaufort (Duke) 98 Scotland (Bank) v. Christie 185
Ruchiner v. Polsue & Alferi, Ltd. 377 Scribblehill v. Brett 109, 110
Rudd V. Lasoelles 314, 315, 331 Scott, In re; Langton ». Scott 459, 464
Eudge ti. Hopkins 360 V. Alvarez 312, 341
Euffin, Ex p 527 V. Avery 49
Eule V. Jewell 555 V. Becher 230, 528
Ruscoe V. Richards 631 V. Coulson 63, 64, 91
Rush V. Higgs 232, 233 c. Hanson 86
Rushforth, Ex p 212 V. Liverpool Corp 286
RuBsel V. Eussel 421 V. Nesbit 126, 295
Eussell, Ex p 196 ■». Porcher 435
V. Dickson 469 V. Rayment 285
V. East Anglian Ely 353 0. Surman 191, 520
V. Jackson 632 V. Tyler 115, 117, 118
Eyall V. Eolle 413 Scurfield v. Howes 538
!). Eowles 414 Seagrave v. Knight 375
Rymer, In re; Eymer v. Stanfleld 492 V. Seagrave 593
Searle v. Choat 351, 852, 353
St. Dunstan (Pooe) v. Beauchamp V. Cooke 44, 262
480, 488 Seaton v. Seaton 100, 456
 TABLE OF OASES.

PAGE PAGR
Seddon v. N. Eastern Salt Co. ... 64 Shrewsbury (Countess) v. Shrews-
Seeon v. Lawson 435 bury (Earl) 200
Seeley v. Jago 337 Shrewsbury v. Blount 86
Belby v. Selby 242, 615, 519 Shrewsbury & Birmingham Ely.
Sellack v. Harris 325 V. L. & N. W. Ely 313
Seruenza v. Brinsley 606 Shrewsbury & Chester Ely. v.
Sergeson v. Sealey 202 Shrewsbury & Birmingham Ely. 390
SetoD V. Slade 45, 315, 329, 335, Shuldham v. Smith 630
836, 416, 544 Shulter's Case 33
Seymore v. Treailian 580 Sibbard v. Hill 93
Seymour v. Prickett 188 Sibbering o. Balcarres (Earl) 144
Shaftesbury (Lady) v. Arro-wsmith Sichel V. Mosenthal 285
627, 630 Sidebotham v. Barrington -330
Shannon v. Bradateed 47 Sidney v. Sidney 592
Shardlow v. Cotterill 324 Silk V. Prime 236, 236
Sharmau v. Bell 615, 616 Sillitoe, Ex p 291
u. Brandt 290 Simmonds, Ex p 52
Sharp, In re; Eickett v. Eickett 51, 62 Simmons v. Cornelius 317
V. Carter 352 Simpson v. Howden (Liord) 121,
V. Taylor 124 154, 293, 294, 297
Sharpe v. Foy 101, 105 Simson v. Cooke 185
Shaw V. Bower 473 V. Ingham 185, 188
V. Foster 833, 436 Skip V. Harwood 290, 352
V. Jersey (Earl) 298 Skipworth v. Skip worth 192, 223
V. Neale 613 Skyring v. Greenwood 224
V. Picton 224 Skyrme, Ex p 240, 241
V. Thackray 96 Slade V. Tucker 632
Shedden v. Patrick 105 Slamming v. Style 357, 579
Sheffield v. Buckinghamshire Slater's Trusts, In re 142
(Duchess) 611 Sleech's Case 72, 188, 289
Sheffield Waterworks v. Yeomans 860 Sleight V. Lawson 539
Shelburne (Earl) v. Biddulph 307, 309 Slevin, In re; Slevin v. Hepburn 497
Sheldon v. Forteacue Aland 557, Slingsby v. Boulton 847
560, 573 Sloman v. Walter 45, 549
Shelf er v. City of London Electric Small V. Marwood 430
Lighting Co 377 Smallman o. Onions 374
Smart v. Smart 562, 664, 665
Shelley's Case 398
Shelley v. Westbrooke 664 V. Tranter 597, 600
Shelly V. Nash 142, 145 Smith, In re; Oswell v. Shepherd 73
Shepard v. Jones 419 B. Capron 163
Shephard, In re; Atkins v. Shep- V. Chadwick 85
hard 861 V. Chichester 630
Shepherd v. Harris 539 V. Clarke 121
B. Tilley 171, 428 V. Claxton 338
V. Wright 204 V. Clay 35, 225
Sheppard, In re; De Brimont v. c. Colbourne 312
Harvey 533 V. Cowan 351
V. Elliot 419 V. Cowell 353
Sheridan v. Joyce 528 V. Everett 540
Sheriff i'. Butler 227 V. Fremont 310
Sherman v. Sherman 628 V. Garland 151, 171
Sherry, In re; London & County V. Harrison 87, 90
Bk. V. Terry 185, 187 V. Hibbard 885
Sherwood v. Sanderson ... 557, 560, 672 V. Jones 165
Shewen v. Vanderhoat 233 V. Kay 128
Shields, In re; Corbould-Ellis v. V. Leveanx 190
Dales 459, 466 0. Moffatt 543
Ship V. Crosskill 82 V. Nethersole 623
Shirley v. Ferrers (Earl) 638 V. Packhurst 74
Shore v. Wilson 489, 501 v. Pincombe 55, 59
Shortridge v. Lamplugh 506 V. Scotland (Bank) ... 83, 86, 155
XXXll TABLE OF CASES.

PAGE PAGE
Smith V. Smith 571
Stapleton v. Stapleton 398
V. Stowell 493 Stead V. Clay 370, 390
V. Warde :. 299 Steadman v. Hockley 214
V. Wheatcroft 327 Steel V. Dixon 208
Smith's Will, In re 356 Steff V. Andrews 616
Smith & Nelson, In re 616 Stephens, Ex p 601, 603, 605
Smyth, Ex p 193, 194, 195 V. Green 437
Snelling v. Thomas 327 V. James 568
Sneyd v. Sneyd 76 Stevens, In re ; Cooke v. Stevens 536
Snowdon, Ex p., In re Snowdon 207 V. Bagwell 123, 438
Soar V. Ashwell 526 V. Savage 571
Soci^t^ Anon, des Manuf. de Glaces V. Stevens 454, 455
V. V. Trevor-Garrick 600
Co Tilghman's Patent Sand Blast 389 Stewart v. Hall 523
Soci^t^ Anon. Panhard et Levassor V. Stewart 53, 56, 62
V. Panhard Levassor Motor Co. 388 Stickney v. Keeble 315, 329
Solicitors & General Assce. v. Stikeman v. Dawson 101
Lamb 271 Stileman u. Ashdown 425
Soltau V. De Held 377, 378 Stillwell V. Wilkinson 102
Somers Cocks , In re; Wegg Prosser Stilwell V. Wilkins 353
I). Wegg Prosser 496 Stirling v. Burdett 207
Somerset (Duke) v. Cookson 802 V. Forrester 138, 202
Somerset, In re; Somerset v. Stock V. McAvoy 508
Poullett (Earl) 399 Stockley v. Parsons 597
South, Ex p 435, 436, 440 V. Stockley 58, 59
u. Bloxam 268 Stocks V. Dobson 436
Southampton Dock Co. v. Southamp- V. Wilson 99, 101
ton Board 19 Stoell V. Boleter 624, 625
Southcomb v. Exeter (Bp.) 329 Stogdon V. Lee 582, 599
Southcote's Case 574 Stone V. Comptou 92
Southey ». Sherwood 381 V. Lidderdale 434
South Wales Ely. v. Wythes ... 331 V. Littledale 121
Southwark Water Co. v. Quick ... 633 Stones V. Cook 594
Sowden v. Sowden 459 Storer t,. G. W. Ely 309
Spalding v. Gamage 388 Storey v. Johnson 278
Sparks v. Liverpool Water Works 555 Stowell (Lady) v. Cole 221
Speer v. Crawter ... 258, 259, 260, 262 Strange t. Harris 230
Speight V. Gaunt 532 Strangways v. Eead 133
Spike v. Walrond 273 Strathmore (Countess) v. Bowes 112
Spence, In re 562, 563 Stranbenzee (Van), In re ; Boustead
Spencer (Earl) v. Peek 636 V. Cooper 196
Spencer v. Pearson 169 Streatfield v. Streatfield 451
Spicer v. Martin 309, 311 Street v. Eigby 614
Spike V. Harding 262 V. Street 622
Spiller V. Spiller 310 Stribley v. Hawkie 313
Spooner v. Pain 434 Strong V. Bird 299
Sprange v. Lee 284 Stuart , In re; Smith v . Stuart ... 534
Spread v. Morgan 456, 457 Stuart «. Bute (Marq.) 559, 662, 567
Sproule V. Prior 242, 519 V. Kirkwall (Lord) 586
Sprye v. Porter 437 Stubbs ». Sargon 505
Squire c. Dean 586 V. Slater 133, 427
Staokpole v. Beaumont ... 114, 115, 592 Stucley, In re; Stucley v. Keke-
Stainton v. Carron Co 221, 235 wich 517
Stanford v. Eoberts 298 Sturge V. Sturge 58, 60
Staniland v. Willott 256 Sturgis V. Champneys ... 589, 590, 591
Stannard v. St. Giles (Vestry), Sturt V. Mellish 394
Camberwell 379 Styles V. Gury 535
Stanley v. Stanley 101 Sudlow D. Dutch Ehenish Ely. ... 555
Stansfield v. Habergham ... 373, 407 Suffolk (Earl) v. Green 636
Stapilton v. Stapilton 55, 69, 74 Suisse V. Lowther (Lord) 466, 469
Stapleford Coll. Co 630 Sumner o. Powell 72, 73
 TABLE OF CASES.

PAGE PAGE
Snmpter v. Hedges 156 Thompson v. Smith 78, 622, 623
Sutherland v. Brigga 320 V. Stanhope 386
Suttou V. Chetwynd (Viae.) 398 Thomson v. Thomson 122
Swaine D. G. N. Ely 377 Thorley's Cattle Food Co. c.
Swan V. Swan 278, 280, 522 Massam 388
Swanwick v. Lifford 422 Thorn v. Bigland 82
Sweet V. Southoote 168 Thornborough v. Baker 256, 416
Swift V. Swift 564 Thornborrow v. Whiteacre ... 545, 546
Sympson v. Hornsby 47 Thorndike v. Hunt 227
Thorne v. Heard 533
Tailby o. Official Eeceiver 482 V. Kerr 249
Talbot (Earl) v. Scott 375, 379 Thorneycroft v. Crockett 170
Talbot V. Frere 171, 235 Thornton v. Knight 297
-^ V. Badnor (Earl) 7..... 455 V. StokiU 529
Talbott V. Shrewsbury (Duke) 467, Thoroughgood's Case 33
468, 563 Thursby, In re ; Grant ». Littledale 84
Tallerman v. Dowring Eadiant Thwaites v. Foreman 237
Heat Co 389 Thynne (Lady) v. Glengall (Earl)
Talmarsh v. MugleSton 35 459, 460, 462, 465
Tamplin v. James 20, 30, 312, 326, 341 Thynne v. Shove 388
Tanqueray Willaume & Landau, Tichner, In re 437
In re 249 Tickel V. Short 224
Tapling v. Jones 418, 423 Tidd V. Lister 590
Tate V. Hilbert 256, 338 Tilley v. Bridges 216
Tatham v. Wright 612 Tillott, In re; Lee v. Wilson ... 535
Taunton v. Morris 589, 594 Timson v. Eamsbottom 161, 437
Taylor v. Beech 325 Tindall v. Powell 190
V. Coenan 150 Tinsley v. Lacey 382
V. Fields 527 Tipping V. Tipping 242, 580
V. Haylin 221, 222 Tissen v. Tissen 366
V. London & County Bk. 169, Tittenson v. Peat 633
172, 436 Todd V. Gee 340
V. Meads 583, 584 Toilet V. Toilet 33, 46, 47, 75, 76
V. Plumer 528 Tolson V. Collins 468
V. Popham 417, 450 V. Sheard 335
V. Portington 324 Tombs V. Eock 246
V. Eussell 159, 161, 418 Tomlinson v. Harrison 622
V. Stibbert 335 Tomson v. Judge 129
V. Taylor 467, 609 Tommins v.- Prout 370
Taylor Sons & Co., Ex p 151 Topham v. Portland (Duke) ... 105, 106
Teale v. Teale 278 Toplis V. Hurrell 539
Teesdale v. Teesdale 156 Torrance v. Bolton 90
Tenham (Lord) u. Herbert 360, 361, 362 Towell V. Band 157
Thackwell v. Gardiner 77 Tower v. Eous (Lord) 246, 525
Thellusson v. Woodford 450, 456 Towers ». Davys 301
Thetford School Case 478 Townley v. Sherburne 537
Thomas, In re ; Sutton Garden & Townsend (Marq.) v. Stangrom
Co. 5). Thomas 226 53, 69, 105, 324, 327
Thomas v. Canterbury (Archb.) ... 229 Townsend v. Ash 217
V. Brigstocke 355 V. Lowfield 82
V. Edwards 388 V. Westacott 150
V. Jones 378 Townshend (Lord) v. Windham
V. Lloyd 131 149, 244, 578, 534
580 •
V. Oakley 379 Trafford v. Boehm
V. Porter 556 Travis v. Milne 173
V. Thomas 171 Treasury Solicitor v. Lewis 256
Thompson ». Fisher 446 Trego V. Hunt 388
V. Harcourt 302 Tregonwell v. Sydenham 507
V. Hodgson 256 Trenohard v. Wanley 82
v. Hudson 188 Trevor o. Trevor 404
V. Leake 34, 78, 556 Trimmer v. Bayne 209
XXXIV TABLE OF CASES.

PAGE
PAGE
Trinidad Asphalte Co. v. Coryat 160 Vernon's Case 127
Troughton c. Binkes 423 Vernon v. Keys 67
Trowell v. Shenton 174 V. Vawdry 540
Trower v. Newcombe 83, 86 V. Vernon 309
Trutch V. Lamprell 539 Vezey v. Jamson 486
Tubbs, In re; Dykes o. Tubb ... 444 Vigers v. Pike 326
Tucker «. Bennett 68, 300 Viola V. Anglo-American Cold
V. Laing 138 Storage Co 363
I). Lingern 218 Voll T. Smith 317
V. Phipps 105 Vulliamey v. Noble 603, 605
V. Wilson 427 Vyvian v. Vyvian 347
Tuff, /n re; Nottingham, eai p. ... 597
Tuffnell V. Page 493
Tulk V. Moxhay 311 W. V. B 125
TuUett V. Armstrong 582, 599 Wace V. Bickerton 71
Tullock V. Hartley 263 V. Mallard 447
Turner's Case 589, 690 Wade V. Coope 209
Turner v. Collins 129 I/. Paget 76
u. Green 67 Wadman v. Caloroft 553
V. Harvey 82, 87, 88, 293 Wagstaff, In re ; Wagstaff v.
0. Merryweather 638 Jalland 78
V. Newport 196 Wain V. Bailey 43
V. Tomer 65 Wake V. Conyers ... 258, 260, 262, 264
I). Wright 219, 373 Walcot I). Walker 381
Turquand v. Dawson 638 Waley Bridge Co. v. Green 137
u. Wilson 192 Walker, In re 95, 588, .592
Turton v. Benson 110 , In re; Sheffield Bkg. Co.
u. Turton 387 V. Clayton 209
Tussaud, In re; Tussaud v. ; Walker v. Buncombe 668
Tussaud 462 • V. Armstrong 70
Tuther v. Caralampi 20 V. Jackson 246
Twiss V. Maasey 289 V. Limon 159
Twyne's Case 148, 149, 161 V.
Tyler v. Yates 142 V. Meager
Perkins '. 238
123
Tyndale v. Warre 514 V. Symonds 636, 638
Tynt J). Tynt 580 V. Taylor 172, 260
Tyrrell v. Bank of London ... 133, 192 u. Walker 326
Tyson v. Fairclough 354 i>. Ware Hadham & Bunting-
V. Smith 682 ford Ely 621
V. Wetherell 569
Udell v. Atherton 84 Wall V. Stubbs 86
Underbill v. Van Cortlaindt ... 619 Wallace v. Auldjo 588, 691
Underwood v. Courtown 165, 166 Wallis V. Bastard 602, 603
Upwell V. Halsey 356 V. Portland (Duke) 123
Uvedale v. Bttrick 541 V. Pipon 229
V. Smith 549, 661
Vachel v. Vachel 356 Wallwy V. Coutts 435, 504
Vallanoe, In re ; Vallance v. Blag- Walmsley v. Child 42
don 123 V. Walmsley 192, 223, 636
Vandenberg v. Palmer 397 Walsh V. Gladstone 495, 500
Vandergucht v. De Blaquiere 622 V. Stoddart 232
Vanderzee v. Willis 428 Walter v. Ashton 387
Vane (Earl) v. Eigden 444 V. Hodge 579
Vane v. Dungannon (Lord) 106 Walters v. Walters 235
Van Gelder Apsimon & Go. o. Waltham's (Lord) Case 81
Sowerby Bridge Flour Soc. 418, 419 Walworth «. Holt 286
Vansittart v. Vansittart 564 Ward V. Bevill 406
Vardon's Trusts, In re 461, 457 V. Buckinghamshire (Duke)
Vaughan, Ex p 563 . 303, 306
Venning v. Leckie 284 0. Duncombe 436, 437
Venture, The 505, 507 V. Hobbs 91
 TABLE OF CASES.

PAGE PAGE
Ward v. National Bank of New Weller v. Smeaton 361, 362
Zealand 208
Wellesley's Case 567
v. Thomas 249 Wellesley v. Beaufort (Duke) 560, 562
■». Turner 256 V. Wellesley 557, 560, 562, 564
Warden n. Jones 152 Wells V. Poster 434
Ware d. Bgmont (Lord) 165 V. Eow 246, 525
V. Horwood 360 Welsbaoh Incandescent Gaslight
V. Polhill 405, 570 Co. •». New Sunlight Incandes-
Waring v. Coventry 201 cent Co 683
V. Hotham 261, 263 Wenham, In re ; Hunt ». Wen-
Warington ». Wheatstone 345 ham 233
Warner v. Baynes 278, 279 Wentworth v. Lloyd 631
V. Jacob 418 Wesley v. Walker 340
Warren v. Eudall 455 West, In re; George v. Grose ... 524
Warrick v. Warrick 167 West V. Erissey 405
Warwick ». Warwick 73 V. Knight 480-
Wasdale, In re; Brittin v. Part- V. Eeid 158, 421
ridge 437 u. Sackville (Lord) 686
Wason J). Wareing 65 V. Shuttleworth 489
Wasserberg, In re; Union Bank of V. Skip 289, 290
London v. Wasserberg 256 V. Williams 171, 172
Waterhouse ». Stansfield 251 Westmeath (Marq.) v. Salisbury
Waters v. Mynn 420 (Marq.) 120
V. Taylor 290 Westmeath v. Westmeath 595
V. Waters 619' Wethered «. Wethered 110, 144, 422
Wakins, Ex p 3*13 Whale V. Booth 250
Watkins v. Cheek 472 Whaley v. Bagenal 321
V. Williams 279 V. Dawson 277
Watkyns v. Watkyns 594 Wheeler v. D'Esterre 329
Watney v. Trist 285, 286 V. Home 179, 180
V. Wells 287 V. Le Marchant 631, 632
Watson V. Gass 278 Whelan v. Palmer 106
V. Marston 71 Wheldale v. Partridge 337, 512
V. Mid Wales Ely 605 Whieldon v. Spode 246
u. Northumberland (Duke) 275 Whincup ». Hughes 195
Watts V. Girdlestone 529 Whistler v. Webster 456, 457
Whitaker v. Bush 603, 607, 609
Way's v.
Weale Trusts,
OUive In re 436
838 V. Wright 284
Weall, In re; Andrews v. Weall 532 Whitbread v. Brockhurst 319
V. Eice 458 Whitbread & Co. v. Watt 319,
Wearmouth Crown Glass Co. , In re 197 335, 514
Webb, In re 573 Whitchurch v. Bevis 325
; Lambert ». Still 222 White, Ex p 497
V. England 194 , In re; White v. White .... 451
— - V. Grace 118 V. Cordwell 609
V. Hewitt 138 V. Damon 140
V. Jones 525 V. Hall 543
V. Shaftesbury (Earl) 456 V. Lincoln (Lady) 192
V. (Lord) 570 V. Nutt 49
Webber v. Webber 255 V. Parsither 423
Webster v. Bosanquet 552 V. Peterborough (Bp.) 351, 354
V. Cecil 315 t). Warner 553
Wedderburn v. Wedderburn 134, 529 0. White 201, 477
Wedgwood v. Adams 316 V. Williams 182
Weekes' Settlement, In re 46 White's Trusts, In re 497
Weekes v. Slake ..• 360 Whitehorne Bros. v. Davison 82
Wekett V. Eaby 300 Whitehouse v. Partridge 622
Welby V. Eutland (Duke) 361 & Co., In re 602
D. Welby 454, 456 Whiteley and Eoberts, In re ... 615
Welch, In re 569 Whitfield, Ex p 558
Wellbeloved v. Jones 500 V. Bewitt 217, 218
 TABLE OF CASES.

PAGE
Whitfield 0. Clemment 454 PAGE
Wilson V. Johnstone 46, 195
V. Pausset 40, 41, 42 ». Townshend (Lord) ...456, 457
Whiting's Settlement, In re; V. Northampton and Ban-
Whiting V. De Eietzen 118 bury Ely 309
Whiting v. Burke 204 V. O'Leary 469
Whitmore v. Oxborrow 232 V. Eay 154
Whittingham v. Murdy 100 V. Thornbury 457
Whitwell V. Arthur 287 V. Turner 568
Whitwood Chemical Co. v. Hard- V. W. Hartlepool Ely. ...319, 320
man 392 V. Williams 314
Whorewood v. Whorewood 593 v_ Wilson 74, 595
Widmore v. Woodruffe 479 Winch V. Winchester 71
Wier K. Tucker 224 Winchester (Bp.) v. Knight 217, 218
Wigsell V. Wigaell 200 D. Paine 166
Wigram ». Buckley 166 Wind V. Jekyll 230, 254
Wilde V. Porte 319, 320 Windhill Local Bd. u. Vint 121
Wilder v. Piggott 457 Wing V. Harvey 556
Wilkes ». Groom 532 Winged v. Lefebury 335
V. Spooner 168 Winter v. Anson (Lord) 519
— — V. Steward 534 Wiseman v. Westland 166
V. Wilkes 595 Withy V. Cottle 807, 340
Wilkins v. Aiken 380, 382, 384 Wolmerhausen ». GuUick 207
Wilkinson v. Dent 455 Wolterbeek v. Barrow 70
V. Henderson 289 Wolverhampton (Corp.) v. Em-
v. Jonghim 78 mons 305, 309
Willan o. Willan 55, 294 Wood, In re; Att.-Gen. v. Ander-
Wiloock ». Terrell 434 son 505
Willesford v. Watson 617 ; Ward v. Wood 454
Williams, Ex p 527 V. Barker 154
V. Bayley 124, 125, 295, 297, 298 V. Boosey 383
V. Cooke 221 V. Conway (Corp.) 377
V. Everett 435 V. Dixie 150
B. Plight 42 V. Downes 129
B. Games 281 V. Griffith 439, 616, 617
V. Kershaw 486 V. Midgley 139, 318, 325
V. Lambe 266 V. Eowcliffe 302
V. Neville 317 V. Eowe 354
V. Nixon 538 V. Wood 581
V. Owen 420 Woodgate v. Pield 232
V. Preston 105 Woodhouse v. Shepley 113
V. Prince of Wales Life Woodward, Ex p 565
• Insce. Co 386 u. Goulstone 48
V. Protheroe 439 V. Woodward 576
V. Quelrada Ely. Land and Woolaston v. King 455
Copper Co 632 Wooldridge ». Norris ... 138, 209, 309
V. Eawlinson 188 Woollam V. Hearn 68, 70, 71,
». Scott 135 324, 326
V. Thomas 266 WooUey v. Clarke 249
- V. Williams 42, 278 V. Colman 425
Williamson v. Barbour 222 Woolridge v. Woolridge 451, 457
V. Gihon 109, 110 Worrall v. Jacob 52, 595
V. Hine 133 V. Martar 520
Willis V. Jernegan 223, 224 Worsley v. Scarborough (Earl) 167
Willmott V. Barber 156 Worthing (Corp.) v. Heather ... 501
Willoughby v. Willoughby ...411, 633 Worthington c. Abbott 270
Wills V. Slade 279, 280 V. Evans 119
• V. Stradling 321 V. Morgan 518, 519
Wilson, Ex p 138, 419 Wortley v. Birkhead 170, 171
V. Church 633 Wotherspoon v. Currie 387
V. Pielding 242 Wray v. Steele 509
V. Hiscox 401 V. Wray 288, 510
 TABLE OF CASES. XXXVll

PAGE PAQE
Wren v. Bradley 120 Wynn o. Morgan 330
Wright V. Atkyna 448 V. Newborough (Lord) .... 353
V. Bell 307 Wynne, In re 573
V. Black 232
V. Cadogan 577, 583 XiMENBS V. Prance 370
V. Carter 128, 129
«. Cartwright 356 Yates v. Cousins 195
V. GofE 52, 66, 69
V. Maidstone (Lord) 43, 44 V. Hambley 215
Yeatman v. Yeatman 173
V. Morley 210, 212, 593, 594
V. Nutt 270 York (Mayor) v. Pilkington 261,
V. Redgrave 368 360, 361
Youatt V. Winyard 389
V. Simpson 138, 270
V. Snowe 88 Young V. Bank of Bengal 603
V. Ward 345 V. Keighley 527
V. Wright 422 0. Peachey 325
Wrightson v. Hudson 165, 166 V. Walter 614, 616
Wrixdon c. Vige 201 Younge, Ex p 324
Wyatt V. Barnard 382 Youngs, In re; Doggett c. Eevett 539
B. BarWell 162, 165
Wyllie V. Pollen 171 ZoucH «. Parsons 100

E.J.
 COMMENTARIES
ON

EQUITY JURISPHUDENCE.
CHAPTER I.
THE TEDE NATURE AND CHABACTEE OP EQUITY JURISPRUDENCE.

§ 1. In treating of the subject of equity, it is material to distinguish

the various senses in which that word is used. For it cannot be dis-
guised, that an imperfect notion of what, in England, constitutes
equity jurisprudence, is not only common among those who are not
bred to the profession, but that it has often led to mistakes and con-
fusion in professional treatises on the subject. In the most general
sense, we are aecustorried to call that equity, which, in human trans-
actions, isfounded in natural justice, in honesty and right, and which
properly arises ex sequo et bono. In this sense it answers precisely to
the definition of justice, or natural law, as given by Justinian in the
Pandects. " .Justitia est constans et perpetua voluntas jus suum
cuique tribuendi. Jus pluribus modis dicitur. Uno modo, cum id quod
semper aequum et bonum, jus dicitur; ut est jus naturale. Juris
prsecepta sunt hsec; honeste vivere, alterum non laedere, suum cuique
tribuere" (a). And the word jus is used in the same sense in the
Roman law, when it is declared, that jus est ars boni et sequi (b),
where it means, what we are accustomed to call, jurisprudence (c).
§ 2. Now, it would be a great mistake to suppose that equity, as
administered in England, embraced a jurisdiction so wide and exten-

(a) Dig. Lib. 1, tit. 1, ff 10, 11.

(6) Dig. Lib. 1, tit. 1, f. 1.
(c) Grotiua, after referring to the Greek word, used to signify equity, says,
" Latinis autem sequi prudentia vertitur, quae se ita ad aequitatem habet, ut juris-
prudentia ad justitiam." Grotius de jEquitate, ch. 1, § 4. This distinction is more
refined than solid, as the citation in the text shows. See also Taylor's Elements of
the Civil Law, pp. 90 to 98. Cicero, Topic. § 2; II. ad Heren. 13; III. ad Keren. 2.
Bracton has referred to the various senses in which jus is used. Item (says he) jus
quandoque ponitur pro jure naturali, quod semper bonum et squum est; quandoque
pro jure civili tantum ; quandoque pro jure praetorio tantum ; quandoque pro eo
E.J. • 1
2 EQUITY JURISPRUDEXCE. [CH. I.

sive, as that which arises from the principles of natural justice above
stated. Probably the jurisprudence of no civilized nation ever at-
tempted so wide a range of duties for any of its judicial tribunals.
Even the Eoman law, which has been justly thought to deal to a vast
extent in matters ex asquo et bono, never affected so bold a design (d).
On the contrary, it left many matters of natural justice wholly unpro-
vided for, from the difficulty of framing any general rules to meet
them, and from the doubtful nature of the policy of attempting to give
a legal sanction to duties of imperfect obligation, such as charity,
gratitude, and kiMness, or even to positive engagements of parties,
where they are not founded in what constitutes a meritorious con-
sideration. Thus, it is well known that in the Eoman law, as well as
in the common law, there are many pacts, or promises of parties (nude
pacts), which produce no legal obligation, capable of enforcement in
foro externa ; but which are left to be disposed of in foro
conscientise only (e). " Cum nulla subest causa propter conven-
tionem, hie constat non posse constitui obligationem. Igitur nuda
pactio obligationem non parit " (/). And again: " Qui autem promisit
sine causa, condicere quantitatem non potest, quam non debet, sed
ipsam obligationem " (g). And hence the settled distinction, in that
law, between natural obligations, upon which no action lay, but which
were merely binding in conscience, and civil obligations, which gave
origin to actions (h). The latter were sometimes called just, because of
their perfect obligation in a civil sense ; the former merely equitable,
because of their imperfect obligation. " Et justum appellatur " (says
Wolfius) ' ' quicquid fit secundum jus perfectum alterius ; sequum vero
quod secundum imperfectum " (f). Cicero has alluded to the double
sense of the word equity in this very connection. " .^Equitatis " (says
he) " autem vis est duplex; cujus altera directi, et veri, et justi, ut
dicitur, sequi et boni ratione defenditur; altera ad vicissitudinem
referendse gratise pertinet; quod in beneficio gratia, in injuria ultio
nominatur " (fc). It is scarcely necessary to add, that it is not in this
latter sense, any more than in the broad and general sense above
stated, which Ayliffe has, with great propriety, denominated Natural
Equity, because it depends on and is supported by natural reason,
that equity is spoken of as a branch of English jurisprudence. The

tantum, quod corapetit ex sententia. Bracton, Lib. 1, ch. 4, p. 3. See Dr. Taylor's
definition of lex and jus. Elem. Civ. Law, pp. 147, 148; ibid. pp. 40 to 43, 55, 56,
91 and 178.
id) SeeHeinecc. Hist. Edit. L. 1, ch. 6; De Edictis Prffitorum, § 7, 8, 9, 10, 11,
12 ; ibid. § 18, 21 to 30.
(e) Ayliffe, Pand. B. 4, tit. 2, pp. 424, 425 ; 1 Domat, Civ. Law, B. 1, tit. 1, § 5,
art. 1, 6, 9, 13.
(/) Dig. Lib. 2, tit. 14, f. 7, § 4.
(g) Dig. Lib. 12, tit. 7, f. 1.
(h) Ayliffe, Pand. B. 4, tit. 1, pp. 420, 421.
(j) Wolff. Instit. Jur. Nat. et Gent. P. 1, ch. 3, § 83.
(k) Cic. Orat. Part. § 37.
§ 2 4.] NATURE OF EQUITY. 3

latter falls appropriately under the head of Civil Equity, as defined

by the same author, being deduced from and governed by such civil
maxims as are adopted by any particular State or community (i!).
§ 3. But there is a more limited sense in which the term is often
used, and which has the sanction of jurists in ancient, as well as in
modem times, and belongs to the language of common life, as well as
to that of juridicial discussions. The sense, here alluded to, is that in
which it is used in contradistinction to strict law, or striatum et
summum jus. Thus, Aristotle has defined the very nature of equity
to be the correction of the law, wherein it is defective by reason of
its universality (m). The same sense is repeatedly recognised in the
Pandects. " In omnibus quidem, maxime tamen in jure, eequitas
spectanda sit. Quotiens sequitas, desiderii naturalis ratio, aut dubi-
tatio juris moratur, justis decretis res temperanda est. Placuit in
omnibus rebus prsBcipuam esse justitise sequitatisque, quam stricti
juris rationem " (re). Grotius and Puffendorf have both adopted the
definition of Aristotle ; and it has found its way, with approbation,
into the treatises of most of the modern authors, who have discussed
the subject (o).
§ 4. In the Roman jurisprudence we maj' see many traces of this
doctrine, applied to the purpose of supplying the defects of the
customary law, as well as to correct and measure the interpretation
of the written and positive code. Domat accordingly lays it down,
as a general principle of the civil law, that if any case should happen,

(1) AyMe, Pand. B. 1, tit. 7, p. 37.

(m) Arist. Ethic. Nicom. L. 6, ch. 14, cited 1 Wooddes. Lect. vii. p. 193; Taylor,
Elem. of Civ. Law, pp. 91, 92, 93; Francis, Maxims, 3; 1 Ponbl. Eq. B. 1, § 2, p. 5,
note (e). Cicero, speaking of Galba, says, that he was accustomed, " Malta pro
aequitate contra jus dicere." Cic. de Oratore, Lib. 1, § 57. See also other passages
cited in Taylor's Elem. of the Civ. Law, 90, 91. Bracton defines equity, as contra-
distinguished from law (jtis), thus : " ^quitas autem est rerum convenientia, quae in
paribus causis paria desiderat jura, et omnia bene coaequiparat ; et dicitur sequitas,
quasi aequalitas." Bracton, LiS. 1, ch. 4, § 6, p. 3.
(n) Dig. Lib. 50, tit. 17, ff. 85, 90; Cod. Lib. 3, tit. 1, f. 8.
(o) Grotius de ^Equitate, ch. 1, § 3; Puffend. Law of Nature and Nat. B. 5,
ch. 12, § 21, and Barbeyrac's note (1); 1 Black. Comm. 61; 1 'V^^ooddes, Lect. vii.
p 193; Bac. de Aug. Sclent. Lib. 8, ch. 3, Aphor. 32, 34, 45. Grotius says:
" Proprie vero et singulariter squitas est virtus voluntatis, eorrectrix ejus, quo lex
propter universalitatem deficit." Grotius de iEquitate, ch. 1, § 2. " .^ilquum est id
ipaum, quo lex corrigitur. " Ibid. Dr. Taylor has with great force paraphrased the
language of Aristotle. That part of unwritten law, says he, which .is called Equity,
or rh EmeiKes, is a species of justice distinct from what is written. It must
happen either against the design and inclination of the law-giver, or with his consent.
In the former case, for instance, when several particular facts must escape his
knowledge ; in the other, when he may be apprised of them, indeed, but by reason of
their variety is not willing to recite them. For, if a case admits of an infinite variety
of circumstances, and a law must be made, that law must be conceived in general
terms. Taylor, Elem. Civ. Law, 92. And of this infirmity in all laws, the Pandects
give open testimony. " Non possunt omnes articuli aingulatim aut legibus, aut
senatus consultis comprehendi ; sed cum in aliqua causa sententia eorum manifesta
est, is qui jurisdictioni prsoest, ad similia procedere, atque ita jus dicere debet." Dig.
L. 1, tit. 3, ff. 10, 12.
4 EQUITY JDKISPRUDENCE. [CH. I.

which is not regulated by some express or written law, it should have

for a law the natural principles of equity, which is the universal law,
extending to every thing (p). And for this he founds himself upon
certain texts in the Pandects, which present the formulary in a very
imposing generality. " Hseec sequitas suggerit, etsi jure deficiamur, "
is the reason given for allowing one person to restore a bank or dam
in the lands of another, which may be useful to him, and not injurious
to the other (g).
§ 5. The jurisdiction of the Prsetor doubtless had its origin in this
application of equity, as contradistinguished from mere law. " Jus
autem civile" (say the Pandects) "est, quod ex legibus, plebiscitis,
senatus consultis, decretis principum, auctoritate prudentium venit.
Jus praetorium est, quod Pra»tores introduxerunt, adjuvandi, vel sup-
plendi, vel corrigendi juris civilis gratia, propter utilitatem publicam;
quod et honorarium dicitur, ad honorem praetorum sic nominatum "(r).
But, broad and general as this language is, we should be greatly
deceived if it were to be supposed that even the Praetor's power
extended to the direct overthrow or disregard of the positive law. He
was bound to stand by that law in all cases to which it was justly
applicable, according to the maxim of the Pandects, " Quod quidem
perquam durum est; sed ita lex scripta est " (s).
(p) Domat, Prel. Book, tit. 1, § 1, art. 23 See also Avliffe, Pand. B. 1, tit. 7,
p. 38.
(q) Dig. Lib. 39, tit. 3, f. 2, § 5. Domat cites other texts not perhaps quite so
stringent ; such as Dig. Lib. 27, tit. 1, f. 13, § 7 ; ibid. Lib. 47, tit. 20, f. 7. Dr. Tay-
lor has given many texts to the same purpose. Elem. Civ. Law, pp. 90, 91. There
was a known distinction in the Eoman law on this subject. When a right was founded
in the express words of the law, the actions grounded on it were denominated Aetiones
Directae ; where they arose upon a benignant extension of the words of the law to
other cases, not within the terms, but within what we should call the equity of
the law, they were denominated Aetiones Utiles. Taylor, Elem. Civ. Law, 93.
(r) Dig. Lib. 1, tit. 1, f. 7. " Sed et eas aetiones, quae legibus prodit^
sunt (say the Pandects) si lex justa ac necessaria sit, supplet Praetor in eo, quod
legi deest." Dig. Lib. 19, tit. 5, f. 11. Heineccius, speaking of the Praetor's
authority, says : His Edictis multa innovata, adjuvandi, supplendi, corrigendi juris
civilis gratia, obtentuque utilitatis publicae. 1 Heinecc. Elem. Pand. P. 1, Lib. 1,
§ 42.
{s) Dig. Lib. 40, tit. 9, f. 12, § 1. See also 3 Black. Comm. 430, 431; 1 Wood-
des. Lect. vii. pp. 192 to 200. Dr. Taylor (Elem. Civ. Law, p. 214) has therefore
observed that, for this reason, this branch of the Eoman law was not reckoned as
part of the jus civile scriptum by Papinian, but stands in opposition to it. Ana
thus, as we distinguish between common law and equity, there were with that
people aetiones civiles et prsetorise, et obligationes civiles, et praetoriae. The Praetor
was therefore called Gustos, non conditor juris; judicia exercere potuit; jus facere non
potuit ; dicendi, non condendi juris potestatem habuit ; juvare, supplere, interpretari,
mitigare jus civile potuit ; mutate vel tollere non potest. The praetorian edicts are not
properly law, though they may operate like law. And Cicero, speaking of contracts
bonae fidei, says, in allusion to the same jurisdiction . In his magni esse judicis
statuere (praesertim cum in plerisque essent judicia contraria), quid quemque cuique
prEBstare oporteret ; that is, he should decide according to equity and conscience. Cic.
de Officiis, Lib. 3, cap. 17. Dr. Taylor has, in another part of his work, gone at
large into equity and its various meanings in the civil law. Taylor, Elem. Civ. Law,
pp. 90 to 98.
 § 5 — 7.] NATURE OF EQUITY. 5

§ 6. But a more general way in which this sense of equity, as

contradistinguished from mere law, or strictum jus, is applied, is to
the interpretation and limitation of the words of positive or written
laws : by construing them, not according to the letter, but according
to the reason and spirit of them (t). Mr. Justice Blackstone has
alluded to this sense in his Commentaries, where he says : " From this
method of interpreting laws by the reason of them arises what we call
equity " (m) ; and more fully in another place, where he says : " Equity,
in its true and genuine meaning, is the soul and spirit of all law ;
positive law is construed, and rational law is made by it. In this,
equity is synonymous with justice; in that, to the true and sound
interpretation of the rule " (x).
§ 7. In this sense equity must have a place in every rational system
of jurisprudence, if not in name, at least in substance (y). It is impos-
sible that any code, however minute and particular, should embrace
or provide for the infinite variety of human affairs, or should furnish
rules applicable to all of them. " Neque leges neque senatus consulta
ita scribi possunt " (says the Digest) " ut omnes casus, qui quandoque
inciderint, comprehendantur ; sed suf&cit ea, quas plerumque accideunt
contineri " (z). Every system of laws must necessarily be defective;
and cases must occur, to which the antecedent rules cannot be applied
without injustice, or t-o which they cannot be applied at all. It is
the office, therefore, of a judge to consider whether the antecedent
rule does apply, or ought, according to the intention of the law-giver,
to apply to a given case ; and jf there are two rules, nearly approaching
to it, but of opposite tendency, which of them ought to govern it;
and if there exists no rule applicable to all the circumstances, whether
the party should be remediless, or whether the rule furnishing the
closest analogy ought to be followed. The general words of a law
may embrace all cases; and yet it may be clear, that all could not
have been intentionally embraced; for if they were, the obvious objects
of the legislation might or would be defeated. So, words of a doubtful

(i) Plowden, Comm. pp. 465, 466.

(u) 1 Black. Comm. pp. 61, 62.
(x) 3 Black. Comm. p. 429. See also Taylor, Elem. Civ. Law, pp. 96, 97;
Plowd. Comm. p. 465, Eeporter's note. Dr. Taylor has observed that the great
difficulty is, to distinguish between that equity, which is required in all law what-
soever, and which makes a very important and a very necessary branch of the jus
scriptum ; and that equity, which is opposed to written and positive law, and stands
in contradistinction to it. Taylor, Elem. Civ. Law, p. 90.
iy) See 1 Eonbl. Equity, B. 1, § 3, p. 24, note (h); Plowden, Comm. pp. 465, 466.
Lord Bacon said in his Argument on the jurisdiction of the Marches, there is no
law under heaven which is not supplied with equity ; for summum jus sumraa injuria ;
or as some have it, summa lex summa crux. And, therefore, all nations have equity.
4 Bac. Works, p. 274. Plowden, in his note to his Eeports, dwells much (pp. 465, 466)
■on the nature of equity in the interpretation of statutes, saying, " Eatio legis est
anima legis." And it is a common maxim in the law of England, that " Apices juris
non sunt jura.." Branch's Maxims, p. 12; Co. Jjitt. 304 (b).
(z) Dig. Lib. 1, tit. 3, f. 10.
6 EQUITY JURISPEDDENCE. [CH. I.

import may be used in a law, or words susceptible of a more enlarged,

or of a more restricted meaning, or of two meanings equally
appropriate (a). The question, in all such cases, must be, in what
sense the words are designed to be used ; and it is the part of a judge to
look to the objects of the legislature, and to give such a construction
to the words, as will best further those objects. This is an exercise
of the power of equitable interpretation. It is the administration of
equity, as contradistinguished from a strict adherence to the mere
letter of the law. Hence arises a variety of rules in interpretation of
laws, according to their nature and operation, whether they are
remedial, or are penal laws; whether they are restrictive of general
right, or in advancement of public justice or policy; whether they
are of universal application, or of a private and circumscribed intent.
But this is not the place to consider the nature or application of
those rules (b).
§ 8. It is of this equity, as correcting, mitigating, or interpreting
the law, that, not only civilians, but common-law writers, are most
accustomed to speak (c) ; and thus many persons are misled into the

(a) It is very easy to see from what sources Jlr. Charles Butler drew his own state-
ment (manifestly, as a description of English equity jurisprudence, incorrect, as
Professor Park has shown), "that equity, as distinguished from law, arises from the
inability of human foresight to establish any rule, which, however salutary in
general, is not in some particular cases, evidently unjust and oppressive, and operates
beyond or in opposition to its intent, &c. The grand reason for the interference
of a court of equity is, that the imperfection of the legal remedy, in consequence of the
universality of legislative provisions, may be repressed." 1 Butler's Eeminisc. 37,
38, 39; Park's Introd. Lect. 5, 6. Now, Aristotle, or Cicero, or a Eoman Prsetor,
or a Continental Jurist, or a Publicist of modern Europe might have used these
expressions, as a description of general equity ; but it would have given no just
idea of equity, as administered under the municipal jurisprudence of England.
(b) See Grotius de Jure Belli ac Pacis, Lib. 3, ch. 20, § 47, pp. 1, 2; Grotius de
.^quitate, ch. 1. This paragraph is copied very closely from the article Equity, in
Dr. Lieber's Encyclopaedia Americana, a licence which has not appropriated another
person's labours. There will be found many excellent rules of interpretation of
Laws in Euthevforth's Ins.titutes of Natural Law, B. 2, ch. 7; in Bacon's Abridgment,
title Statute; in Domat on the Civil Law (Prelim. Book, tit. 1, § 21 ; and in 1 Black.
Comm. Introduction, pp. 58 to 62.
There are yet other senses, in which equity is used, which might be brought be-
fore the reader. The various senses are elaborately collected by Oldendorpius , in
his work De Jure et ^quitate Disputatio ; and he finally offers, what he deems » very
exact definition of equity in its general sense. " jEquitas est judicium animi, ex
vera ratione petitum, de circumstantiis rerum, ad honestatem vitae pertinentium,
cum incidunt, recte discemens, quid fieri aut non fieri oporteat." This seems but
another name for a system of ethics. Grotius has in one short paragraph (De
.Equitate, ch. 1, § 2) brought together the different senses in a clear and exact manner.
" Et ut de Eequitate primum loquamur, scire oportet, sequitatem aut Ecquum de omni
interdum jure dici, ut cum jurisprudentia ars boni et aequi dicitur; interdum de jure
natnrali absolute, ut cum Cicero ait, jus legibus, moribus, et aequitate constare ;
alias vero de hisce rebus, quas lex non exacte definit, sed arbitrio viri boni per-
mittit.
respectu Ssepe etiam
alterius de quod
juris, jure aliquo
paulo civili
longiusp'roprius
recederead videtur,
jus naturale aecedente,
ut jus idqueet
Prsetorium
quipdam jurisjprudentias interpretationes. Proprie vero et singulariter sequitas est
virtus voluntatis, correctrix ejus, in quo lex propter universalitatem deficit."
(c) Merlin, Eepertoire Bquite. Grounds and Rudim. of the Law (attributed
§ 8, 9.] NATURE OF EQUITY. 7

false notion, that this is the real and peculiar duty of courts of equity.
St. Germain, after alluding to the general subject of equity, says:
" In some eases it is necessary to leave the words of the law, and to
follow that reason and justice requireth, and to that intent equity is
ordained, that is to say, to temper and mitigate the rigour of the law,
&a. And so it appeareth, that equity taketh not away the very right,
but only that that seemeth not to be right, by the general words of
the law " ((?). And then he goes on to suggest the other kind of equity,
as administered in chancery, to ascertain " whether the plaintiff hath
title in conscience to recover or not " (e). And, in another place, he
states : ' ' Equity is a rightwiseness, that considereth all the particular
circumstances of the deed, which is also tempered with the sweetness
of mercy " (/). Another learned author lays down doctrines equally
broad. " As summum jus " (says he) " summa est injuria-, as it cannot
consider circumstances; and as this [equity] takes in all the circum-
stances of the case, and judges of the whole matter according to good
conscience, this shows both the use and excellence of equity above
any prescribed law." Again: "Equity is that which is commonly
called equal, just, and good; and is a mitigation or moderation of
the common law, in some circumstances, either of the matter, person,
or time; and often it dispenseth with the law itself" (g). "The
matters, of which equity holdeth cognizance in its absolute power,
are such as are not remediable at law ; and of them the sorts may be
said to be as infinite, almost, as the different affairs conversant in
human life" (h). And, he adds, that "equity is so extensive and
various, that every particular case in equity may be truly said to stand
upon its own particular circumstances ; and, therefore, under favour,
I apprehend precedents not of that great use in equity, as some would
contend; but that equity thereby may possibly be made too much a
science for good conscience " (t).
§ 9. This description of equity differs in nothing essential from
that given by Grotius and Puffendorf (k), as a definition of general
equity, as contradistinguished from the equity which is recognised by
the mere municipal code of a particular nation. And, indeed, it goes

sometimes to Francis), pp. 3, 5, edit. 1751 ; 1 Fonbl. Equity, B. 1, ch. 1, § 2, note (e) ;
1 Wooddes. Lect. vii. pp. 192 to 200; Pothier, Pand. Lib. 1, tit. 3, art. 4, § 11 to 27.
(d) Dialogue 1, ch. 16.
(e) Ibid. 1, ch. 17.
(/) Ibid. ch. 16.
(g) Grounds and Eudim. pp. 5, 6, edit. 1751.
(h) Grounds and Eudim. p. 6, edit. 1751.
(i) Grounds and Eudim. pp. 5, 6, edit. 1751. Yet Francis (or whoever else was
the author) is compelled to admit, that there are many cases in which there is no
relief to be had, either at law or in equity itself; but the same is left to the con-
science of the party, as a greater inconvenience would thence follow to the people
in general. Francis, Max. p. 5.
(k) Grotius de ^^quitate, ch. 1, § 3, 12; Pnffend. Elem. Juris. Univ. L. 1, § 22,
23, cited 1 Fonbl. Eq. B. 1, ch. 1, § 2, note (e), p. 6.
8 EQUITY JURISPRUDENCE. [CH. I.

the full extent of embracing all things, which the law has not exactly
defined, but leaves to the arbitrary description of a judge; or, in the
language of Grotius, ' ' de hisoe rebus, quas lex non exacte definit, sed
arbitrio viri boni permittit" (I). So that, in this view of the matter,
an English court of equity would seem to be possessed of exactly the
same prerogatives and powers as belonged to the Praetor's forum in
the Roman law (m).
§ 10. Nor is this description of the equity jurisprudence of England
confined to a few text-writers. It pervades a large class, and possesses
the sanction of many high authorities. Lord Bacon more than once
hints at it. In his Aphorisms he lays it down, ' ' Habeant similiter
Curiae Praetoriae potestatem tam subveniendi contra rigorem legis,
quam supplendi defectum legis " (n). And on the solemn occasion of
accepting the office of Chancellor, he said : Chancery is ordained to
supply the law, and not to subvert the law (o)^ Finch, in his Treatise
on the Law, says, that the nature of equity is to amplify, enlarge, and
add to the letter of the law (p). In the Treatise of Equity, attributed
to Mr. Ballow, and deservedly held in high estimation, language
exceedingly broad is held on this subject. After remarking, that there
will be a necessity of having recourse to the natural principles, that
what is wanting to the finite may be supplied out of that which is
infinite; and that this is properly what is called equity, in opposition
to strict law, he proceeds to state: " And thus in chancery, every
particular ease stands upon its own circumstances; and although the
common law will not decree against the general rule of law, yet
chancery doth, so as the example introduce not a general mischief.
Every matter, therefore, that happens inconsistent with the design of
the legislator, or is contrary to natural justice, rnay find relief here.
For no man can be obliged to say anything contrary to the law of
nature ; and indeed no man in his senses can be presumed willing to
oblige another to it" (g).
§ 11. The author has, indeed, qualified these propositions with the
suggestion : ' ' But if the law has determined a matter with all its
circumstances, equity cannot intermeddle." But, even with this
qualification, the propositions are not maintainable, in the equity

(I) Grotius de iEqiiifcate, ch. 1, § 2; 1 Ponbl. Equity, B. 1, ch. 1, § 2, note (c).

(m) Dig. Lib. 1, f. 7. See also Heinecc. De Edict. Praetorum, Lib. 1, ch. 6, § 8
to 13; ibid. § 18 to 30; Dr. Taylor's Elem. Civ. Law, 213 to 216; ibid. 92, 93; be
Lolme on Eng. Const. B. 1, ch. 11. Lord Kaims does not hesitate to say, that the
powers assumed by our courts of equity are in effect the same that were assumed by
the Eoman Prsetor from necessity, without any express authority. 1 Kaims, Eq.
Introd. 19.
(n) Bac. De Aug. Scient. Lib. 8, ch. 3, Aphor. 35, 45.
(o) Bac. Speech. 4; Bac. Works, 488.
(p) Finch's Law, p. 20.
iq) 1 Fonbl. Eq. B. 1, ch. 1, § 3. The author of Eunomus describes the original
jurisdiction of the Court of Chancery, as a court of equity, to be " the power of
moderating the summum jus." Eunomus, Dial. 3 § 60.
§ 10 — 13.] NATURE OF EQUITY. 9

jurisprudence of England, in the general sense in which i>hey are

stated. For example, the first proposition, that equity will relieve
against a general rule of law, is (as has been justly observed) neither
sanctioned by principle nor by authority (r). For, though it may be
true that equity has, in many cases, decided differently from courts
of law, yet it will be found that these cases involved circumstances to
which a court of law would not advert; but which, in point of sub-
stantial justice, were deserving of particular consideration ; and which
a court of equity, proceeding on principles of substantial justice, felt
itself bound to respect (s).
§ 12. Mr. Justice Blackstone has taken considerable pains to refute
this doctrine. " It is said " (he remarks) " that it is the business of
a court of equity, in England, to abate the rigour of the common
law (t). But no such power is contended for. Hard was the case of
bond creditors, whose debtor devised away his real estate ; rigorous and
unjust the rule which put the devisee in a better condition than the
heir; yet a court of equity had no power to interfere. Hard is the
common law still subsisting, that land devised, or descending to the
heir, should not be liable to simple contract debts of the ancestor or
devisor, although the money was laid out in purchasing the very land ;
and that the father shall never immediately succeed as heir to the
real estate of the son. But a court of equity can give no relief; though,
in both these instances, the artificial reason of the law, arising from
feudal principles, has long since ceased" (w). And although these
remarks of Mr. Justice Blackstone have now lost their force owing
to the Statute against Fraudulent Devises (3 Will. & Mary, c. 14, s. 2),
which rendered the devisee equally with the heir liable to the bond
debts of the deceased, and the 8 & 4 Will. 4 c. 104, which made the
lands of a deceased debtor liable to his simple contract debts, yet from
the very fact that legislation was necessary, it appears that it was
not within the province of courts of equity to relieve the hardships
complained of. And (not to multiply instances) what could be more
harsh, or indefensible, than was the rule of the common law% by which
a husband might receive an ample fortune in personal estate, through
his wife, and by his own act, or will, strip her of every farthing, and
leave her a beggar?
§ 13. A very learned judge in equity, in one of his ablest judg-
ments, has put this matter in a very strong light (x). "The law is
clear " (said he), " and courts of equity ought to follow it in their
judgments concerning titles to equitable estates; otherwise great

(r) Com. Dig. Chancery, 3 P. 8.

(s) 1 Ponbl. Eq. B. 1, ch. 1, § 3, note (g) ; 1 Dane's Abridg. ch. 9, art. 1, § 2,
8 ; Kemp v. Pryor, 7 Ves. 249, 250.
(t) Grounds and Eudim. p. 74 (Max. 105), edit. 1751.
(u) 3 Black. Comm. 430. See Com. Dig. Chancery, 3 F. 8.
(x) Sir Joseph Jekyll, in Cowper v. Cowper, 2 P. Wms. 753.
10 ' EQUITY JURISPRUDENCE. [CH. 1.

uncertainty and confusion would ensue. And, though proceedings in

equity are said to be secundum discretionem boni viri; yet when it
is asked " Vir bonus est quis? " the answer is " Qui consulta patrum,
qui leges juraque servat. " And, as it is said in Book's Case (5 Rep.
99 b), that discretion is a science, not to act arbitrarily, according to
men's wills, and private affections; so that discretion, which is
executed here, is to be governed by the rules of law and equity, which
are not to oppose, but each in its turn to be subservient to the other.
This discretion, in some cases, follows the law implicitly; in others,
assists it, and advances the remedy ; in others, again, it relieves against
the abuse, or allays the rigour of it. But in no case does it contra-
dict or overturn the grounds or principles thereof, as has been
sometimes ignorantly imputed to the court. That is a discretionary
power which neither this nor any other court, not even the highest,
acting in a judicial capacity, is by the constitution entrusted with " (y).
§ 14. The next proposition, that every matter that happens incon-
sistent with the design of the legislator, or is contrary to natural
justice, may find relief in equity, is equally untenable. There are
many cases against natural justice, which are left wholly to the con-
science of the party, and are without any redress, equitable or legal.
And so far from a court of equity supplying universally the defects
of positive legislation, or peculiarly carrying into effect the intent, as
contradistinguished from the text of the legislature, it is governed
by the same rules of interpretation as a court of law ; and is often
compelled to stop where the letter of the law stops. It is the duty
of every court of justice, whether of law or of equity, to consult the
intention of the legislature. And, in the discharge of this duty, a
court of equity is not invested with a larger or a more liberal dis-
cretion than a court of law.
§ 15. Mr. Justice Blackstone has here again met the objection in
a forcible manner. "It is said " (says he) " that a court of equity
determines according to the spirit of the rule, and not according to
the strictness of the letter. But so also does a court of law. Both,
for instance, are equally bound, and equally profess to interpret
statutes according to the true intent of the legislature. In general,
all cases cannot be foreseen; or, if foreseen, cannot be expressed.
Some will arise which will fall within the meaning, though not within
the words of the legislator; and others, which may fall within the
letter, may be contrary to his meaning, though not expressly excepted.
These cases, thus out of the letter, are often said to be within the
equity of an Act of Parliament; and so, cases within the letter, are
frequently out of the equity. Here, by equity, we mean nothing but the

(y) Sir Thomas Clarke, in pronouncing his judgment in the case of Burgess v.
Wheats (1 W. Black. 123), has adopted this very language, and given it his full
approbation. See also Fry v. Porter. 1 Mod. 300 ; Grounds and Eudim. p. 65 (Max.
92), edit. 1751.
§ 14 17.] NATURE OF EQUITY. 11

sound interpretation of the law. . . . But there is not a single rule of

interpreting laws, whether equitably or strictly, that is not equally
used by the judges in the courts both of law and equity. The con-
struction must in both be the same ; or, if they differ, it is only as one
court of law may happen to differ from another. Each endeavours
to fix and adopt the true sense of the law in question. Neither can
enlarge, diminish, or alter that sense in a single title " (z).
§ 16. Yet it is by no means uncommon to represent that the
peculiar duty of a court of equity is to supply the defects of the
common law, and next, to correct its rigour or injustice (a). Lord
Kaims avows this doctrine in various places, and in language singu-
larly bold. " It appears now clearly " (says he) " that a court of
equity commences at the limits of the common law, and enforces
benevolence, where the law of nature makes it our duty. And thus a
court of equity, accompanying the law of nature in its general refine-
ments, enforces every natural duty that is not provided for at common
law " (h). And in another place he adds, a court of equity boldly under-
takes "to correct or mitigate the rigour, and what, in a proper sense,
may be termed the injustice of the common law " (c). And Mr. Wood-
deson, without attempting to distinguish accurately between general or
natural, and municipal or civil equity, asserts, that " equity is a
judicial interpretation of laws, which, presupposing the legislator- to
have intended what is just and right, pursues and effectuates that
intention " {d).
§ 17. The language of judges has often been relied on for the same
purpose; and, from the unqualified manner in which it is laid down,
too often justifies the conclusion. Thus, Sir John Trevor (the Master
of the Eolls), in his able judgment in Dudley v. Dudley (e), says:
Now, equity is no part of the law, but a moral virtue, which quali-
fies, moderates, and reforms the rigour, hardness, and edge of the
law, and is a universal truth. It does also assist the law, where it is
defective and weak in the constitution (which is the life of the law),
and defends the law from crafty evasions, delusions, and mere
subtleties, invented and contrived to evade and elude the common
law, whereby such as have undoubted right are made remediless.
And thus is the office of equity to protect and support the common
law from shifts and contrivances against the justice of the law.

(z) 3 Black. Comm. 431; 1 Dane, Abr. ch. 9, art. 3, § 8.

(a) 1 Kaims on Equity, B. 1, p. 40.
(b) 1 Kaime on Equity, Introd. p. 12.
(c). 1 Kaims on Equity, Introd. p. 15. Lord Kaims' remarks are entitled to the
more consideration because they seem to have received, in some measure at least, the
approbation of Lord Hardwicke (Parke's Hist, of Chan. Appx. 501, 502; ibid. 333,
334) ; and also from Mr. Justice Blackstone having thought them worthy of a
formal refutation in his Commentaries. 3 Black. Comm. 436.
(d) 1 Wooddes. Lect. vii. p. 192.
(e) Free. Ch. 241, 244; 1 Wooddes. Lect. vii. p. 192.
12 EQUITY JURISPRUDENCE. [CH. I.

Equity, therefore, does not destroy the law, nor create it, but assists
it." Now, however true this doctrine may be sub modo, to suppose
it true in its full extent would be a grievous error.
§ 18. There is another suggestion, which has been often repeated;
and that is, that courts of equity are not, and ought not, to be bound
by precedents; and that precedents, therefore, are of little or no use
there; but that every case is to be decided upon circumstances,
according to the arbitration or discretion of the judge, acting according
to his own notions, ex sequo et bono (/). Mr. Justice Blackstone,
addressing himself to this erroneous statement, has truly said : ' ' The
■system of our courts of equity is a laboured connected system,
governed by established rules, and bound down by precedents, from
which they do not depart-, although the reason of some of them may
perhaps be liable to objection. . . . Nay, sometimes a precedent
is so strictly followed, that a particular judgment, founded upon
special circumstances, gives rise to a general rule " {g). And he after-
wards adds: "The systems of jurisprudence in our courts of la%v
and equity are now equally artificial systems, founded on the same
principles of justice and positive law, but varied by different usages
in the forms and mode of their proceedings " Qi). The value of prece-
dents, and the importance of adhering to them, were deeply felt in
ancient times, and nowhere more than in the Praetor's forum. " Con-
suetudinis autem jus esse putatur id " (says Cicero) " quod, voluntate
omnium, sine lege, vetustas comprobarit. In ea autem jura sunt,
quasdam ipsa jam certa propter vetustatem ; quo in genere et alia
sunt multa, et eorum multo maxima pars, quae Praetores edicere con-

(/) See Francis, Max. pp. 5, 6; Selden, cited in 3 Black. Comm. 432, 433, 435;
1 Kaims, Eq. pp. 19, 20.
(g) 3 Black Comm. 432, 433.
(h) 3 Black. 434; ibid. 440, 441; 1 Kent, Comm. Lect. 21, pp. 489, 490 (2nd
edition). The value and importance of precedents in chancery were much insisted
upon by Lord Keeper Bridgman, in Fry v. Porter (1 Mod. 300, 307). See also 1
Wooddes. Lect. vii. pp. 200, 201, 202. Lord Hardwicke, in his letter to Lord Kaims,
on the subject of equity, in answer to the question whether a court of equity ought
to be governed by any general rules, said, " Some general rules there ought to be;
for otherwise the great inconvenience of jus vagum et incertuin will follow. And
yet the Praetor must not be so absolutely and invariably bound by them, as the judges
are by the rules of the common law. For if they were so bound, the consequence
would follow, which you very judiciously state, that he must sometimes pronounce
decrees which would be materially unjust ; since no rule can be equally just in the
application to a whole class of cases, that are far from being the same in every
circumstance." (Parke's Hist, of Chancery, pp. 501, 506.) This is very loosely said;
and the reason given equally applies to every general rule ; for there can be none ,
which will be found equally just in its application to all cases. If every change of
circumstances is to change the rule in equity, there can be no general rule. Every
case must stand upon its own ground. Yet courts of equity now adhere as closely
to general rules as courts of law. Each expounds its rules to meet new cases ; but
each is equally reluctant to depart from them upon slight inconveniences and mischiefs.
See Mitford, Plead, in Eq. p. 4, note (b); 1 Fonbl. Eq. B. 1, ch. 1, § 3, note (fe).
'The late Professor Park, of King's College (London), has made some very acute
remarks on this whole subject, in his Introductory Lecture on Equity (1832).
§ 18, 19.] NATURE OF EQUITY. 13

suerunt " (i). And the Pandects directly recognize the same doctrine,
"Est enim juris civilis species consuetudo; enimvero, diutuma con-
suetude pro jure et lege, in his, quse non ex scripto descendunt
observari, solet, &e. Maxime autem probatur consuetudo ex rebus
judicatis " (k).
§ 19. If, indeed, a court of equity in England did possess the un-
bounded jurisdiction which has been thus generally ascribed to it, of
correcting, controlling, moderating, and ever superseding the law, and
of enforcing all the rights, as well as the charities, arising from natural'
law and justice, and of freeing itself from all regard to former rules
and precedents, it would be the most gigantic in its sway and the
most formidable instrument of arbitrary power that could well be-
devised. It would literally place the whole rights and property of
the community under the arbitrary will of the judge, acting, if you
please, arbitro boni judicis, and, it may be, ex aequo et bono, according
to his own notions and conscience, but still acting with a despotic
and sovereign authority. A court of chancery might then well deserve
the spirited rebuke of Selden : "For law we have a measure, and
know what to trust to. Equity is according to the conscience of himi
that is chancellor; and as that is larger, or narrower, so is equity..
'Tis all one as if they should make the standard for the measure the-
chancellor's foot. What an uncertain measure would this be ! One
chancellor has a long foot; another a short foot; a third an indifferent-
foot. It is the same thing with the chancellor's conscience " (I). And'
notions of this sort were, in former ages, when the chancery jurisdic-
tion was opposed with vehement disapprobation by common lawyers,
very industriously propagated by the most learned of English
antiquarians, such as Spelman, Coke, Lambard, and Selden (m). "We
might, indeed, under such circumstances, adopt the language of
Mr. Justice Blackstone, and say : "In short, if a court of equity in
England did really act, as many ingenious writers have supposed it
(from theory) to do, it would rise above all law, either common or-
statute, and be a most arbitrary legislator in every particular case " (n).
So far, however, is this from being true, that one of the most common-
maxims upon which a court of equity daily acts, is, that " equity follows
the law, and seeks out and guides itself by the analogies of the-
law " (o).

(i) Cicero de Invent. Lib. 2, cap. 22. My attention -was first called to these-
passages by a note of Lord Eedesdale. Mitford, Plead, in Eq. p. 4, note (b). See-
Heineccius, De Bdictis Prstorum, Lib. 1, cap. 6, § 13, 30.
(k) Pothier, Pand. Lib. 1, tit. 3, art. 6 n. 28, 29; Dig. Lib. 1, tit. 3. f. 33, f. 34.
{I) Selden's Table Talk, title Equity, cited 3 Black Comm. 432, note (y).
(m) See citations, 3 Black. Comm. 433; ibid. 54, 55, 440, 441.
(n) 3 Black. Comm. 4.33; ibid. 440, 441, 442. De Lolme, in his -work on the Con-
stitution ofEngland, has presented a vie-w of English equity jurisprudence, far more-
exact and comprehensive than many of the English text--writers on the same subject..
The -whole chapter (B. 1, c. 11) is -well -worthy of perusal.
(o) Cowper v. Cowper, 2 P. Wms. 753.
14 EQUITY JURISPRUDENCE. [CH. I.

§ 20. What has been already said upon this subject cannot be more
fitly concluded than in the words of one of the ablest judges that
ever sat in equity. "There are" (said Lord Eedesdale) "certain
principles, on which courts of equity act, which are very well settled.
The cases which occur are various; but they are decided on fixed
■principles. Courts of equity have, in this respect, no more dis-
cretionary power than courts of law. They decide new cases, as they
.arise, by the principles on which former cases have been decided;
and may thus illustrate, or enlarge, the operation of those principles.
But the principles are as fixed and certain as the principles on which
the courts of common law proceed " (p). In confirmation of these
remarks it may be added, that the courts of common law are, in like
manner, perpetually adding to the doctrines of the old jurisprudence;
and enlarging, illustrating, and applying the maxims which were at
first derived from very narrow and often obscure sources. For instance,
the whole law of Insurance is scarcely a century old; and more than
half of its most important principles and distinctions have been created
within the last fifty years (g).
§ 21. In the early history of English equity jurisprudence, there
rmight have been, and probably was, much to justify the suggestion,
that courts of equity were bounded by no certain limits or rules ; but
they acted upon principles of conscience and natural justice, without
.much restraint of any sort. And as the chancellors were, for many
.ages, almost universally either ecclesiastics or statesmen, neither of
whom are supposed to be very scrupulous in the exercise of power;
and as they exercised a delegated authority from the Crown, as the
fountain of administrative justice, whose rights, prerogatives, and
duties on this subject were not well defined, and whose decrees were
not capable of being resisted, it would not be unnatural that they
should arrogate to themselves the general attributes of royalty, and
interpose in many cases, which seemed to them to require a remedy,
more wide or more summary than was adopted by the common courts
of law.
§ 22. This is the view which Mr. Justice Blackstone seems to have
taken of the matter; who has observed that, in the infancy of our
courts of equity, before their jurisdiction was settled, the chancellors
themselves, " partly from their ignorance of the law (being frequently
bishops or statesmen), partly from ambition and lust of power
(encouraged by the arbitrary principles of the age they lived in), but
principally from the narrow and unjust decisions of the courts of law,
had arrogated to themselves such unlimited authority as hath totally
been disclaimed by their successors, for now [1765] above a century
past. The decrees of the court of equity were then rather in the

(p) Bond V. Hopkins, 1 Sch. & Lef. 428, 429.

(g) The original edition was published in 183S.
§ 20 — 25.] NATURE OF EQDITY. 15

nature of awards, formed on the sudden, pi)-o re natd, with more

probity of intention than knowledge of the subject, founded on no
settled principles, as being never designed, and therefore never used,
as precedents " (r).
§ 23. It was fortunate, indeed, that, even in those early times, the
knowledge which the ecclesiastical chancellors had acquired of general
equity and justice from the civil law, enabled them to administer
them with a more sound discretion than could otherwise have been
done. And from the moment, when principles of decision came to
be acted upon and established in chancery, the Eoman law furnished
abundant principles to erect a superstructure, at once solid, con-
venient, and lofty, adapted to human wants, and enriched by all the
aids of human wisdom, experience, and learning. To say that later
chancellors have borrowed much from these materials, is to bestow
the highest praise upon their judgment, their industry, and their
reverential regard to their duty. It would have been little to the
commendation of such learned minds, that they had studiously dis-
regarded the maxims of ancient wisdom, or had neglected to use them,
from ignorance, from pride, or from indifference (s).
§ 24. Having dwelt thus far upon the inaccurate, or inadequate
notions, which are frequently circulated, as to equity jurisprudence,
it may be thought proper to give some more exact and clear state-
ment of it. This may be better done by explanatory observations,
than by direct definitions, which are often said in the law to be
perilous and unsatisfactory.
§ 25. In England, equity has a restrained and qualified meaning.
The remedies for the redress of wrongs, and for the enforcement of
rights, were distinguished into two classes : first, those which were
administered in courts of common law ; and secondly, those which
were administered in courts of equity. Rights, which were recognized
and protected, and wrongs, which were redressed by th* former courts,
were called legal rights and legal injuries. Eights which were recog-
nized and protected, and wrongs, which were redressed by the latter,
courts only, were called equitable rights and equitable injuries. The
former were said to be rights and wrongs at coxnmon law, and the
remedies, therefore, were remedies at common law; the latter were said
to be rights and wrongs in equity, and the remedies, therefore, were
(r) 3 Black Comm. 433; ibid. 440, 441.
(s) The whole of the late Professor Park's Lecture upon Equity Jurisprudence,
delivered in King's College in Nov. 1831, on this subject, is well deserving of a
perusal by every student. There is much freedom and force in his observations, and,
if his life had been longer spared, he would probably have been a leader in a more
masculine and extensive course of law studies by the English Bar. There are also
two excellent articles on the same subject in the American Jurist, one of which, pub-
lished in 1829, contains a most elaborate review and vindication of the jurisdiction of
courts of equity, and the other in 1833, a forcible exposition of the prevalent errors
on the subject (2 Amer. Jurist, 314 ; 10 Amer. Jurist, 227). I know not where to refer
the reader to pages more full of useful comment and research.
 16 EQUITY JURISPRUDENCE. [CH. I.

remedies in equity. Equity jurisprudence may, therefore, properly

be said to be that portion of remedial justice, which was exclusively
administered by a court of equity, as contradistinguished from that
portion of remedial justice, which was exclusively administered by a
court of common law.
§ 26. The distinction between the former and the latter courts
may be further illustrated by considering the different natures of the
rights they were designed to recognize and protect, the different natures
of the remedies which they applied, and the different natures of the
forms and modes of proceeding which they adopted to accomplish their
respective ends. In the courts of common law there were certain pre-
scribed forms of action, to which the party must have resorted to
furnish him a remedy ; and, if there were no prescribed form to reach
such a case, he was remediless; for they entertained jurisdiction only
of certain actions, and gave relief according to the particular exigency
of such actions, and not otherwise. In those actions, a general and
unqualified judgment only could be given, for the plaintiff, or for the
defendant, without any adaptation of it to particular circumstances.
§ 27. But there are many cases, in which a simple judgment for
either party, without qualifications, or conditions, or peculiar arrange-
ments, will not do entire justice ex eequo et bono to either party.
Some modifications of the rights of both parties may be required ;
some restraints on one side, or on the other, or perhaps on both sides ;
some adjustments involving reciprocal obligations, or duties ; some
compensatory, or preliminary, or concurrent proceedings to fix, con-
trol, or equalise rights ; some qualifications or conditions, present or
future, temporary or permanent, to be annexed to the exercise of
rights, or the redress of injuries. In all these cases courts of common
law could not give the desired relief. They had no forms of remedy
adapted to the objects. They could entertain suits only in a prescribed
form, and they could give a general judgment only in the prescribed
form. From their very character and organisation they were incapable
.of the remedy, which the mutual rights and relative situations of the
parties, under the circumstances, positively required.
§ 28. But courts of equity were not so restrained. Although they
had prescribed forms of proceedings, the latter were flexible, and might
be suited to the different postures of cases. They might adjust their
decrees, so as to meet most, if not all, of these exigencies; and they
might vary, qualify, restrain, and model the remedy, so as to suit it to
mutual and adverse claims, controlling equities, and the real and
substantial rights of all the parties. Nay, more : they could bring
before them all parties interested in the subject-matter, and adjust
the rights of all, however numerous; whereas, courts of common law
were compelled to limit their inquiry to the very parties in the litiga-
tion before them, although other persons might have the deepest
interest in the event of the suit. So that one of the most striking
§ 29 31.] NATURE OF EQUITY. 17

and distinctive features of courts of equity was, that they could adapt
their decrees to all the varieties of circumstances, which might arise,
and adjust them to all the pecuhar rights of all the parties in interest;
whereas courts of common law (as we have already seen) were bound
down to a fixed and invariable form of judgment in general terms,
altogether absolute, for the plaintiff, or for the defendant (t).
§ 29. Another peculiarity of courts of equity was, that they could
administer remedies for rights, which rights, courts of common law
did not recognize at all ; or, if they did recognize them, they left them
wholly to the conscience and good-will of the parties. Thus, what
are technically called Trusts, that is, estates vested in persons upon
particular trusts and confidences, were wholly without any cognizance
at the common law; and the abuses of such trusts and confidences
were beyond the reach of any legal process. But they are cognizable
in courts of equity; and hence they are called equitable estates; and
an ample remedy is there given in favour of the cestuis que trust (the
parties beneficially interested) for all wrongs and injuries, whether
arising from negligence, or positive misconduct (m). There are also
many cases (as we shall presently see) of losses and injuries by
mistake, accident, and fraud ; many cases of penalties and forfeitures ;
many cases of impending irreparable injuries, or meditated mischiefs;
and many cases of oppressive proceedings, undue advantages and
impositions, betrayals of confidence, and unconscionable bargains, in
all of which courts will interfere and grant redress; but which the
common law took no notice of, or silently disregarded (x).
§ 30. Again: the remedies in courts of equity were often very
different, in their nature, mode, and degree, from those of courts of
common law, even when each had a jurisdiction over the same
subject-matter. Thus, a court of equity, if a contract is broken, would
often compel the party specifically to perform the contract; whereas,
courts of law could only give damages for the breach of it. So, courts
of equity would interfere by way of injunction to prevent wrongs;
whereas, courts of common law could grant redress only, when the
wrong was done.
§ 31. The modes of seeking and granting relief in equity were also
different from those of courts of common law. The latter proceed to
the trial of contested facts by means of a jury; and the evidence till
lately was drawn, not from the parties, but from third persons who

(t) 1 Wooddes. Lect. vii. pp. 203 to 206; 3 Black. Comm. 438. Much of this
paragraph has been abstracted from Dr. Lieber's Encyclopedia Americana, article
Equity. The late Professor Park, of King's College, London, in his Introductory
Lecture on Equity (1831, p. 15), has said, " The editors of the Encyclopedia Americana
have stated the real case, with regard to what we call courts of equity, much more
accurately than I can find it stated in any English Law Books"; and he thus
admits the propriety of the exposition contained in the text.
(u) 3,Black. Comm. 439.
(x) Ibid. 484, 435, 438, 439.
E.J. 2
18 EQUITY JUEISPEUDENCE. [CH. I.

were disinterested witnesses. But courts of equity tried causes

without a jury; and they addressed themselves to the conscience of
the defendant, and required him to answer upon his oath the matters
of fact stated in the bill, if they were within his- knowledge; and he
was compellable to give a full account of all such facts, with all their
circumstances, without evasion, or equivocation; and the testimony
of other witnesses also might be taken to confirm, or to refute, the
facts so alleged. Indeed, every bill in equity may be said to have
been, in some sense, a bill of discovery, since it asked for the personal
oath of the defendant, to purge himself in regard to the transactions
stated in the bill. It may readily be perceived, how very important
this process of discovery may be, when we consider how great the
mass of human transactions is, in which there are no other witnesses,
or persons, having knowledge thereof, except the parties themselves.
§ 32. Mr. Justice Blackstone has, in a few words, given an outline
of some of the more important powers and peculiar duties of courts
of equity. He says, that they are established " to detect latent
frauds, and concealments, which the process of courts of law is not
adapted to reach ; to enforce the execution of such matters of trust
and confidence, as are binding in conscience, though not cognizable
in a court of law ; to deliver from such dangers as are owing to mis-
fortune or oversight; and to give a more specific relief, and more
adapted to the circumstances of the case, than can always be obtained
by the generality of the rules of the positive or common law " (y). But
the general account of Lord Eedesdale (which he admits, however,
to be imperfect, and in some respects inaccurate), is far more satis-
factory, as a definite enumeration. " The jurisdiction of a court of
equity" (says he) (z), " when it assumes a power of decision, is to be
exercised, ' (1) where the principles of law, by which the ordinary
courts are guided, give a right, but the powers of those courts are
not sufficient to afford a' complete remedy, or their modes of pro-
ceeding are inadequate to the purpose; (2) where the courts of
ordinary jurisdiction are made instruments of injustice ; (3) where
the principles of law, by which the ordinary courts are guided, give
no right, but upon the principles of universal justice, the interference
of the judicial power is necessary to prevent a wrong, and the positive
law is silent. And it may also be collected, that courts of equity,
without deciding upon the rights of the parties, administer to the
ends of justice by assuming a jurisdiction; (4) to remove impedi-
ments to the fair decision of a question in other courts; (5) to
provide for the safety of property in dispute, pending a litigation,

(i;) 1 Black. Comm. 92.

(z) Mitford, PI. Eq. by Jeremy, pp. Ill, 112. See also ibid. pp. 4, 5. Dr. Dane,
in his Abridgment and Digest, ch. 1, art. 7, § 33 to 51 (1 Dane, Abrid. 101 to 197),
has given a summary of the differences between equity jurisdiction and legal juris-
diction inregard to contracts, which may be read with utility.
 § 32, 33.] NATURE OF EQUITY. 19

and to preserve property in danger of being dissipated or destroyed

by those to whose care it is by law entrusted, or by persons having
immediate but partial interest; (6) to restrain the assertion of doubtful
rights in a manner productive of irreparable damage; (7) to prevent
injury to a third person by the doubtful title of others; and (8) to
put a bound to vexatious and oppressive litigation, an,d to prevent
multiplicity of suits. And further, that courts of equity, without
pronouncing any judgment, which may affect the rights of parties,
extend their jurisdiction; (9) to compel a discovery, or obtain evidence,
which may assist the decision of other courts; and (10) to preserve
testimony, when in danger of being lost, before the matter, to which
it relates, can be made the subject of judicial investigation."
§ 33. Perhaps the most general, if not the most precise, descrip-
tion of a court of. equity, .is, that it had jurisdiction in cases of rights,
recognised and protected by the municipal jurisprudence, where a plain,
adequate, and complete remedy could be not had in the courts of
common law (a). The remedy must have been plain ; for if it be doubt-
ful and obscure at law, equity would assert a jurisdiction (fa). It must
have been adequate ; for, if at law it fell short of what the party was
entitled to, that founded a jurisdiction in equity (c). And it must have
been complete; that is, it must have attained the full end and justice
of the case. It must have reached the whole mischief, and secured the
whole right of the party in a perfect manner, at the present time, and
in future ; otherwise, equity would interfere and give such relief and aid
as the exigency of the particular case might require (d). The jurisdic-

(a) Cooper, Eq. PI. 128, 139; Mitford, PI. Eq. by Jeremy, 112, 123.
(b) Southampton Dock Co. v. Southampton Board, L. E. 11 Eq. 254.
(c) In the early days of English jurisprudence, subjects could sue each other
in the county and hundred courts only. The King's Bench, Common Pleas, and
Exchequer Courts were exclusively employed in the king's business with his subjects.
The king also administered many matters of justice between his subjects in his
council. His chancellor was the secretary of the council, and to him the petitions
of the subject for redress came in the first instance. The chancellor examined the
petitions, and referred the matter of the petitions to the King's Bench, Common Pleas,
or Exchequer, according to the nature of the business. In cases where no proper
redress could be had in any of those courts, the chancellor retained the petition in his
own hands, and the king, or the chancellor, gave such relief as was judged proper.
Hence arose the custom of inserting, in petitions to the king or his chancellor, the
allegation that the petitioner had no complete and adequate remedy in the ordinary
courts of law. See Bispham, Prin. of Eq. pp. 6-9. Thus the inadequacy and
incompleteness of all legal remedy underlie the whole system of equity jurisprudence.
But gradually the jurisdiction of the chancellor in giving relief where there was no
adequate remedy at law became settled; and there grew up certain great heads of
equity jurisdiction, and courts of equity took jurisdiction rather because they had
jurisdiction in certain matters, than because there was no adequate and complete
remedy at law in the particular case. Thus the jurisdiction of a court of equity at
the present day in England is determined, not by the question whether there is an
adequate remedy at law, but whether it has been, the practice of the chancellor to
take jurisdiction in similar matters.
(d) See Dr. Lieber's Encyc. Americana, art. Equity; Mitford, Eq. Plead, by
Jeremy, 111, 112, 117, 123.
20 EQUITY JURISPHUDBNCE. [CH. I.

tion of a court of equity was, therefore, sometimes concurrent with

the jurisdiction of a court of law; it was sometimes exclusive of it; and
it was sometimes auxiliary to it.
§ 34. The author in the preceding paragraphs had led up to the
discussion of the jurisdiction exercised by the Lord Chancellor, and in
the concluding paragraphs expressed his approval of the divided juris-
dictions of the common law courts and the court of chancery. There
had bjsen small attempts at fusion into one court which should give
to suitors the actual relief to which they were entitled according to
the facts proved, either by cumulation of remedies, or by allowing
matters to be raised by way of defence, or by awarding one of two
alternative measures of relief. Thus the 8 & 9 Will. III., c. 11 (e);
4 & 5 Anne c. 3 (/); and 7 Geo. II., c. 20, empowered the common law
courts, in proceedings on bonds, to restrict the rights of the plaintiff
within the limits laid down in courts of equity. Conversely the court
of chancery was empowered by the Court of Chancery Amendment
Act, 1858 (21 & 22 Vict. c. 27) to award damages in cases where it
exercised concurrent jurisdiction, instead of dismissing the bill, without
prejudice to the right of the plaintiff to maintain proceedings at law (g).
By the Judicature Act, 1873 (36 & 87 Vict. c. 66) one court adminis-
tering law and equity was constituted. Still a clear understanding of
the principles upon which the courts of chancery or of the common
law acted is essential, for as has been said, the statute is not concerned
with rights but with procedure. Accordingly, where the plaintiff is
entitled to one of two alternative remedies, the relief granted will be
that to which he would have been entitled upon the facts proved, and
may in the circumstances have been lost (h). It may be added that
the author limited his treatise to equity as administered in the court
of chancery. There had been an equitable jurisdiction exercised by
the court of exchequer, a jurisdiction transferred to the second Vice-
Chancellor by statute 5 Vict. c. 5.

(e) Tuther v. Caralampi, 21 Q. B. D. 414.

{/) Gerard v. Clowes, [1892] 2 Q. B. 1.
(3) Ferguson v. Wilson, L. E. 2 Ch. 77.
{h) Tamplin v. James, 15 Ch. D. 215; Olley v. Fisher, 34 Ch. D. 367; Lavery v
Pursell, 39 Ch. D. 608; General Accident Assurance Co. v. Noel, [1902] 1 K. B. 377,
§ 34 — 39.] ORIGIN AND HISTORY. 21

CHAPTER II.

THE ORIGIN AND HISTORY OF EQUITY JURISPRUDENCE.

§ 38. Having thus ascertained what is the true nature and character
of Equity Jurisprudence, as it is administered in countries governed
by the common law, it seemed proper, before proceeding to the con-
sideration ofthe particulars of that jurisdiction, to take a brief review
of its origin and progress. It is not intended here to epeak of the
common law jurisdiction of the Court of Chancery, 'or of any of its
specially delegated jurisdiction in exercising the prerogatives of the
Crown, as in cases of infancy and lunacy; or of its statutable jurisdic-
tion in cases of bankruptcy (a). The inquiry will mainly relate to its
equitable, or, as it is sometimes called, its extiraordinary, jurisdic-
tion (b).
§ 39. The origin of the Court of Chancery is involved in the same
obscurity, which attends the investigation of many other questions, of
high antiquity, relative to the common law (c). The administration of
justice in England was originally confided to the Aula- Regis, or great
Court or Council of the King, as the Supreme Court of Judicature,
which, in those early times, undoubtedly administered equal justice,
according to the rules of both law and equity, or of either, as the
case might chance to require (d). When that court was broken into
pieces, and its principal jurisdiction distributed among various courts,
the Common Pleas, the King's Bench, and the Exchequer, each
received a certain portion, and the Court of Chancery also obtained
a portion (e). But, at that period, the idea of a court of equity, as
contradistinguished from a court of law, does not seem to have sub-
sisted in the original plan of partition, or to have been in the

(a) See Com. Dig. Chancery, C. 1; 1 Mad. Ch. Pr. 262; 2 Mad. Ch. Pr. 447; ibid.
565; 3 Black. Comm. 426, 427, 428.
(6) 3 Black. Comm. 50; Com. Dig. Chancery, C. 2; 4 Inst. 79; 2 Inst. 552.
(c) Mitford, PL Equity, 1; Com. Dig. Chancery, A. 1; 4 Inst. 79; 1 Wooddes.
Lect. vi.
(d) 3 Black. Comm. 50; 1 Beeves, Hist. 62, 63.
(e) 3 Black. Comm. 50; Com. Dig. Chancery, A. 1, 2, 3; 1 Collect, jurid. 27 to
30; Parke, Hist. Chan. 16, 17, 28, 56; 1 Eq. Abridg. 129; Courts, B. note (a); 1
Wooddes. Lect. vi. pp. 174, 175; Gilb. For. Roman. 14; 1 Reeves, Hist, 59, 60, 63;
Bac. Abridg. Court of Chancery, C.
22 EQUITY JUEISPRUDENCE. [CH. II.

contemplation of the sages of the day (/). Certain it is, that among
the earliest writers of the common law, such as Bracton, Glanville,
Britton, and Fleta, there is not a syllable to be found relating to the
equitable jurisdiction of the Court of Chancery {g).
§ 39a. The author, in subsequent paragraphs, discussed at length
the conflicting views of which Lord Coke 's is perhaps the most virulent
and the most inaccurate (h), respecting the antiquity of the jurisdic-
tion. The Statute' of Westminster the Second (13 Ed. 1, c. 24) had
imposed upon the clerks in chancery the duty of framing writs to meet
cases to which the older forms were inapplicable. It was one thing to
frame the writs, but a totally different state of affairs arose when the
actions instituted by these writs came before judges who were not
bound to recognise the validity of the process. At some date the
political head of the clerks in chancery intervened, sometimes with
the approval of the common law judges (i), sometimes in antagonism
to them (fc). Lord Coke asserted that the jurisdiction arose in the time
of Henry IV., and was concerned with feoffments to uses (I), or what
would now be cabled the administration of trusts. But in 41 El., Lord
EUesmere produced a precedent in the time of Eichard II., of a
"decree en chancery per I'advice des judges," granting an injunction
to restrain waste {m). And there seems no reason to doubt that a
decree for the specific performance of an agreement was granted in
the same reign (n).
§ 46. If confirmation were needed to establish the fact that the
jurisdiction of chancery was established, and in full operation during
the reign of Eichard II., it is to be found in the recitals contained in
the Eemonstrances, and other proceedings of Parliament. At this
period the extensive use or abuse of the powers of chancery had become
an object of jealousy with Parliament; and various efforts were made
to restrain and limit its authority. But the Crown steadily supported
it (o). And the invention of the writ of subpoena by John Waltham,
Bishop of Salisbury, who was Keeper of the Eolls, about the 5th of
Eichard II., gave great efficiency, if not expansion, to the jurisdic-
tion (p). In the 13th of Eichard II., the Commons prayed, that
no party might be required to answer before the chancellor, or the
council of the king, for any matter where a remedy is given by the

(/) 3 Black Comm. 50; The Legal Judic. in Chanc. stated (1727), ch. 2, p. 24.
(g) 3 Black. Comm. 50; Parke, Hist. Chan. 25; 4 Inst. 82; 1 Eeeves, Hist. 61;
2 Eeeves, Hist. 250, 261.
(h) 2 Inst. 552.
(t) Anon. F. Moo. 544, pi. 748.
(k) Eoper's Life of Sir T. More, p. 25, ed. T. Hearne.
(l) 2 Inst. 552.
(m) Anon. P. Moo. 544, pi. 748.
(n) Fry, Spec. Perfce. § 34.
(o) 3 Parke, Hist. Chan. 89 to 44.
(p) 3 Eeeves, Hist. 192 tb 194; id. 274, 379, 380, 381; 3 Black. Comm. 52; Bac.
Abr. Court of Chancery, C.
§ 39a-. — 47.] ORIGIN and history. . 23

coininon law, unless it be by writ of scire facias in the county where

it is found, by the common law. To which the king answered, that
he would preserve his royalty, as his progenitors had done before
him (g). And the only redress granted was by stat. 17 Eich. II. ch. 6,
by which it was enacted, that the chancellor should have power to
award damages to the defendant, in case the suggestions of the bill
were untrue, according to his discretion (r). The struggles upon this
subject were maintained in the subsequent reigns of Henry IV. and V.
But the Crown resolutely resisted all appeals against the jurisdiction;
and finally, in the time of Edward IV., the process by bill and
subpoena had become the daily practice of the court (s).
§ 47. Considerable new light has been thrown upon the subject of
the origin and antiquity of the equitable jurisdiction of the Court of
Chancery, by the recent publication of the labours of the Commis-
sioners on the Public Eecords. Until that period, the notion was very
common (which was promulgated by Lord Ellesmere) that there were
no petitions of the chancery remaining in the office of record, before
the 15th year of the reign of Henry VI. But it now appears, that
many hundreds have been lately found among the records of the Tower
for nearly fifty years antecedent to the period mentioned by Lord
Ellesmere, and commencing about the time of the passage of the
statute of 17 Rich. II. ch. 6 (<). But there is much reason to believe,
that, upon suitable researches, many petitions or bills, addressed to
the chancellor, will be found of a similar character during the reigns
of Edward I., Edward II., Edward III. (u).

(g) Parke, Hist. Chan. 41 ; 4 Inst. 82.

(r) Parke, Hist. Chan. 41, 42; 3 Black. Comm. 52; 4 Inst. 82, 83; 2 Eeeves,
Hist. 194.
(s) 3 Black. Comm. 53; Parkes, Hist. Chan. 45 to 57 ; 3 Eeeves, Hist. 198, 194,
274, 379, 380.
(t) 1 Cooper, Pub. Eec. 355. I extract this statement from the preface to the
Calendars of the Proceedings in Chancery, &o., published by the Eecord Commis-
sioners in 1827. That preface is signed by- Mr. Justice Bayley, sub-commissioner, but
was in fact drawn up by Mr. Lysons, more than ten years before. Mr. Cooper, in his
very valuable account of the Public Eecords, has published this preface verbatim;
and has also extracted a letter of Mr. Lysons, written on the same subject in 1816.
The preface and letter seem almost identical in language. 1 Cooper, Pub. Reo. ch. 18,
p. 354; id. 384, note (b) ; id. 455 to 458. In the English Quarterly Jurist for
January 1828 there will be found, in a review of these Calendars, a very succinct
but interesting account of the contents of the early Chancery Cases, printed by the
Eecord Commissioners.
(«) Mr. Cooper says that he " has made some inquiries, which induce him to
think that there still exist among the records at the Tower many petitions, or bills,
addressed to the chancellor, during the reigns of Edw. I., Edw. II., and Edw. III.,
similar to those addressed to that judge during the reign of Eichard II., selections
from which have been printed. Upon a very slight research, several documents of
this description are stated to have been discovered; but only one of them has been
seen by the compiler. It is dated the 38th year of Edward III." 1 Cooper, Pub.
Eec. Addenda, pp. 454, 455. Mr. Barton says that, so early as the reign of Edward I.,
the chancellor began to exercise an original and independent jurisdiction, as a court
of equity, in contradistinction to a court of law. Barton on Eq. Pr. Introd. p. 7.
24 EQUITY JURISPRUDENCE. [CH. II.

§ 48. From the proceedings, which have been published by the

Eecord Commissioners, it appears that the chief business of the Court
of Chancery in those early times did not arise from the introduction
of uses of land, according to the opinion of most writers on the subject.
Very few instances of applications to the chancellor on such grounds
occur among the proceedings of the chancery during the first four or
five reigns after the equitable jurisdiction of the court seems to have
been fully established. Most of these ancient petitions appear to have
been presented to consequence of assaults, and trespasses, and a variety
of outrages, which were cognizable at common law ; but for which the
party complaining was unable to obtain redress, in consequence of the
maintenance and protection afforded to his adversary by some power-
ful baron, or by the sheriff, or by some officer of the county in which
they occurred (x).
§ 49. If this be a true account of the earliest known exercises of
equitable jurisdiction, it establishes the point that it was principally
applied to remedy defects in the common- law proceedings; and,
therefore, that equity jurisdiction was entertained upon the same
ground which constituted the principal reason of its interference ;
namely, that a wrong was done, for which there was no plain, adequate,
and complete remedy in the courts of common law (y). And in this
way great strength is added to the opiaions of Lord Hale and Lord
Hardwicke, that its jurisdiction was in reality the residuum of that of
the Commune Concilium or Aula Regis, not conferred on other courts,
and necessarily exercisable by the Crown, as a part of its duty and
prerogative to administer justice and equity (a). The introduction of
uses or trusts at a later period may have given new activity and
extended operation to the jurisdiction of the court; but it did not
found it. The redress given by the chancellor in such cases was
merely a new application of the old principles of the court; since there
was no remedy at law to enforce the observance of such uses or
trusts (a).

(x) This passage is a literal transcript from the preface to the Calendars in
Chancery ; and it is fully borne out by the examples of those bills and petitions
given at large in the same work. Mr. Cooper, in his own work on the Public Eecords,
has given an abstract, or marginal note, of all the examples thus given, from the
reign of Richard II. to the reign of Richard III., amounting in number to more
than one hundred. 1 Cooper, Pub. Rec. 359, 373; id. 377 to 385. As we proceed
from the reign of Richard II. and advance to modem times, the cases become of a
more mixed character, and approach to those now entertained in chancery.
iy) See Treatise on Subpoena, ch. 2; Harg. Tjaw Tracts, pp. 333, 334.
(z) See Eunomus, Dial. 3, § 60; 1 Eq. Abrid. Courts, B. (o) ; Parkes, Hist.
Chan. App. pp. 502, 603.
(a) See 3 Black. Comm. 52; 3 Reeves, Hist. 379, 381; Eunomus, Dial. 3, § 60;
Parke, Hist. Chan. 28 to 31. The view which is here taken of the subject is con-
firmed by the remarks of the commissioners under the Chancery Commission in the
50th George III., whose report was afterwards published by parliament in 1826.
The passage to which allusion is made is as follows : " The proceedings in the
courts of common law are simple, and generally founded in certain writs of great
§ 48 51.] ORIGIN AND HISTORY. 25

§ 50. From this slight review of the origin and progress of equitable
jurisdiction in England, it cannot escape observation how naturally it
grew up, in the same manner, and under the same circumstances, as
the equitable jurisdiction of the Praetor at Eome. Each of them arose
from the necessity of the thing in the actual administration of justice,
and from the deficiencies of the positive law (the lex scripia), or from
the inadequacy of the remedies in the prescribed forms to meet the
full exigency of the particular case. It was not an usurpation for the
purpose, of acquiring and exercising power ; but a beneficial inter-
position, to correct gross injustice, and to redress aggravated and
intolerable grievances.
§ 51. But, be the origin of the equity jurisdiction of the Court of
Chancery what it may, from the time of the reign of Henry VI. it
constantly grew in importance (5) ; and, in the reign of Henry VIII. it
expanded into a broad and almost boundless jurisdiction under the
fostering care and ambitious wisdom and love of power of Cardinal
Wolsey (c). Yet (Mr. Eeeves observes), after all, notwithstanding the
complaints of the cardinal's administration of justice, he has the repu-
tation of having acted with great ability in the office of chancellor,
which lay heavier upon him than it had upon any of his predecessors
owing to the too great care with which he entertained suits, and the
extraordinary influx of business, which might be attributed to other
causes (d). Sir Thomas More, the successor to the cardinal, took a
more sober and limited view of equity jurisprudence, and gave public

antiquity, conceived in prescribed forms. This adlierence to prescribed forms has

been considered as important to the due administration of justice in common cases.
But, in progress of time, cases arose in which full justice could not be done in
the courts of common law, according to the practice then prevailing. And, for
the purpose of obtaining an adequate remedy, in such oases, resort was had to
the extraordinary jurisdiction of the courts of equity, which alone had the power oi
examining the party on oath, and thereby acting through the medium of his con-
science, and of procuring the evidence of persons not amenable to the jurisdiction
of the courts of common law, and whose evidence therefore it was in many cases,
impossible to obtain without the assistance of a court of equity. The application to
this extraordinary jurisdiction, instead of being in the form of a writ, prescribed by
settled law, seems always to have been in the form of a petition of the party or
parties aggrieved, stating the grievance, the defect of remedy by proceedings in the
courts of common law, and the remedy, which, it was conceived, ought to be
administered. This mode of proceeding unavoidably left every complaining party
to state his case, according to the particular circumstances, always asserting that the
party was without adequate remedy at the common law."
(b) Parke, Hist. Chan. 55, 56; 3 Reeves, Hist. 379 to 382.
(c) 4 Eeeves, Hist. 368, 369; Parke, Hist. Chan. 61, 62; i Inst. 91, 92. It
seems that the first delegation of the powers of the lord chancellor to commissioners
was in the time of Cardinal Wolsey. It will be found in Eymer's Pcedera, torn. 14,
p. 299; Parke, Hist, of Chan. 60, 61. It was in the same reign that the Master of
the Rolls (it is said) under a like appointment, first sat apart and used to hear causes
at the Rolls in the afternoon. The master, who thus first heard causes, was Cuthbert
Tunstall. 4 Reeves, Hist, of the Law, 368, 369; 5 Reeves, Hist. 160. But see
Discourse on the Judicial Authority of the Master of the Rolls (1728), § 3, p. 83, &c. ;
id. § 4, p. 110, &c., ascribed to Sir Joseph Jekyll.
(d) 4 Reeves, Hist. 370.
26 EQUITY JURISPRUDENCE. [CH. II.

favour as well as dignity to the decrees of the court. But still there
were clamours from those who were hostile to equity during his time ;
and especially to the power of issuing injunctions to judgments and
other proceedings in order to prevent irreparable injustice (e). This
controversy was renewed with much greater heat and violence in the
reign of James I. upon the point, whether a court of equity could
give relief for or against a judgment at common law; and it was
mainly conducted by Lord Coke against, and by Lord EUesmere in
favour of, the chancery jurisdiction. At last, the matter came directly
before the king, and, upon the advice and opinion of very learned
lawyers, to whom he referred it, his majesty gave judgment in favour
of the equitable jurisdiction in such cases (/). Lord Bacon succeeded
Lord EUesmere ; but few of his decrees, which have reached us, are
of any importance to posterity (g). But his celebrated ordinances for
the regulation of chancery gave a systematical character to the business
of the court; and some of the most important of them still constitute
the fundamental principles of its present practice (li).
§ 52. From this period, down to the time when Sir Heneage Finch
(afterwards Earl of Nottingham) was elevated to the Bench (in 1673),
little improvement was made, either in the principles or in the practice
of chancery (i) ; and none of the persons who held the seals were
distinguished for uncommon attainments or learning in their profes-
sion (k). With Lord Nottingham a new era commenced. He was a
person of eminent abilities, and the most incorruptible integrity. He
possessed a fine genius, great liberality of views, and a thorough
comprehension of the true principles of equity ; so that he was enabled
to disentangle the doctrines from any narrow and technical notions,

(e) Sir James Mackintosh's Life of Sir Thomas More; 4 Reeves, Hist. 370 to 376;
Parke, Hiat. Chan. 63 to 65. There is a curious anecdote related of Sir Thomas More,
who invited the judges to dine veith him, and, after dinner, showed them the number
and nature of the causes in which he had granted injunctions to judgments of the court
of common law; and the judges, upon full debate of the matters, confessed that they
could have done no otherwise themselves. The anecdote is given at large in Mr.
Cooper's Lettres sur la Gour de la Chancellerie, Letter 26, p. 185, note 1, from Eoper's
Life of Sir Thomas More, ed. T. Hearne, 23.
(/) 1 Collect. Jurid. 23, &c. ; 3 Black. Comm. 54 ; Parke, Hist. Chan. 80. The
controversy gave rise to many pamphlets, not only at the time, but in later periods.
The learned reader, who is inclined to enter upon the discussion of these points, now
of no importance, except as a part of the juridical history of England, may consult
advantageously the following works : Observations concerning the Office of Lord
Chancellor, published in 1651, and ascribed (though it is said incorrectly) to Lord
EUesmere. Discourse concerning the Judicial Authority of the Master of the Eolls,
p. 61. A Vindication of the Judgment of King James. &c., printed in an Appendix
to the first volume of Beports in Chancery, and in 1 Collect. Jurid. 23, &c. ; (he
several Treatises on the Writ of Subpoena in Chancery, and the Abuses and Remedies
in Chancery, in Hargreave's Law Tracts, pp. 321, 425; and 4 Eeeves, Hist, of the
Law, pp. 370 to 377 ; 2 Swanst. 24, note.
(g) 3 Black. Comm. 66.
(h) See Bacon's Ord. in Chancery, by Beames.
(i) 3 Black. Comm. 66.
(k) See Parke, Hist. Chan. 92 to 210.
§ 52^-53.] ORIGIN AND HISTORY. 27

and to expand the remedial justice of the court far beyond the aims
of his predecessors. In the course of nine years, during which he
presided in the court, he built up a system of jurisprudence and
jurisdiction upon wide and rational foundations which served as a
model for succeeding judges, and gave a new character to the court (I) ;
and hence he has been emphatically called " the father of equity " (w).
His immediate successors availed themselves very greatly of his
profound learning and judgment. But a suecess.or was still wanted,
who with equal genius, abilities, and hberality, should hold the seals
for a period long enough to enable him to widen the foundation and
complete the structure, begun and planned by that illustrious man.
Such a successor at length appeared in the person of Lord Hardwieke.
This great judge presided in the Court of Chancery during the period
of twenty years ; and his numerous decisions evince the most thorough,
learning, the most exquisite skill, and the most elegant juridical
analysis. There reigns, through all of them, a spirit of conscientious!
and discriminating equity, a sound and enlightened judgment, as
rare as it is persuasive, and a power of illustration from analogous
topics of the law, as copious as it is exact and edifying. Few judges
have left behind them a reputation more bright and enduring; few
have had so favourable an opportunity of conferring lasting benefits
upon the jurisprudence of their country ; and still fewer have improved
it by so large, so various, and so important contributions. Lord
Hardwieke, like Lord Mansfield, combined with his judicial character
the still more embarrassing character of a statesman, and, in some
sort', of a minister of state. Both of them, of course, encountered
great political opposition (whether rightly or wrongfully, it is beside
the purpose of this work to inquire) ; and it is fortunate for them,
that their judicial labours are embodied in solid volumes, so that,
when the prejudices and the passions of the times are passed away,
they may remain open to the severest scrutiny, and claim from
posterity a just and unimpeachable reward («.).
§ 53. This short and imperfect sketch of the origin and history of
equity jurisdiction in England will be here concluded. It has not
been inserted in this place from the mere desire to gratify those
whose curiosity may lead them to indulge in antiquarian inquiries,
laudable and interesting as it may be. But it seemed, if not
indispensable, at least important, as an introduction to a more minute

(I) Mr. Justice Blackstone has pronounced a beautiful eulogy on him, in 3 Black.
Comm. 58, from which the text is, with slight alterations, borrowed. See also i
Black. Comm. 442.
(m) 1 Mad. Ch. Pr. Preface, 13. See Parke, Hist. Chan. 211, 212, 213, 214 r
1 Kent, Comm. Lect. 21, p. 492 {2nd edit.).
(n) See 1 Kent, Comm'. Lect. 21, p. 494 (2nd edit.), and Lord Kenyon's opinion
in Goodtitle v. Otway, 7 T. E. 411. See also 1 Butler's Eeminis. § 11, n. 1, 2,
pp. 104 to 116. Lord Bldon, in Ex parte Greenway, 6 Ves. 812, said, "He [Lord;
Hardwieke] was one of the greatest judges that ever sat in "Westminster Hall."
"28 EQUITY JURISPRUDENCE. [CH. II.

.and exact survey of that jurisdiction, as administered in the present

ftimes. In the first place, without some knowledge of the origin and
history of Equity Jurisdiction, it will be difficult to ascertain the
«xact nature and limits of that jurisdiction; and how it can, or ought
to, be applied to new cases, as they arise. If it be a mere arbitrary,
«r usurped jurisdiction, standing upon authority and practice, it should
be confined within the very limits of its present range; and the terra
incognita, and the tetra prohibita, ought to be the same, as to its
boundaries. If, on the other hand, its jurisdiction be legitimate, and
founded in the very nature of remedial justice, and in the delegation
of authority in all cases, where a plain, adequate, and complete remedy
does not exist in any other court, to protect acknowledged rights,
and to prevent acknowledged wrongs (that is, acknowledged in the
municipal jurisprudence), then it is obvious, that it has an expansiye
power, to meet new exigencies; and the sole question, applicable to
-the point of jurisdiction, must from time to time be, whether such
lights and wrongs do exist, and whether the remedies therefor in
other courtiS, and especially in the courts of common law, are full,
and adequate to redress. If the present examination (however
imperfect) has tended to any result, it is to establish, that the latter
is the true and constitutional predicament and character of the Court
•of Chancery.
§ 54. In the next place, a knowledge of the origin and history of
•equity jurisdiction will help us to understand, and in some measure
-to explain, as well as to limit, the anomalies, which do confessedly
«xist in the system. We may trace them back to their sources, and
ascertain how far they were the result of accidental, or political, or
other circumstances ; of ignorance, or perversity, or mistake in the
judges; of imperfect development of principles; of narrow views of
public policy ; of the seductive influence of prerogative ; or, finally,
of a spirit of accommodation to the institutions, habits, laws, or
tenures of the age, which have long since been abolished, but have
left the scattered fragments of their former existence behind them.
We shall thus be enabled to see more clearly, how far the operation
of these anomalies should be strengthened or widened ; when they
may be safely disregarded, in their application, to new cases and new
circumstances; and when, through a deformity in the general system,
they cannot be removed, without endangering the existence of other
portions of the fabric, or interfering with the proportions of other
principles, which have been moulded and adjusted with reference to
them.
§ 55. In the next place, such a knowledge will enable us to prepare
the way for the gradual improvement, as well of the science itself, as
of the system of its operations. Changes in law, to be safe, must be
slowly and cautiously introduced, and thoroughly examined. He who
is ill-read in the history of any law, must be ill-prepared to know its
§ 54 — 55a.] ORIGIN and history. 2€P

reasons as well as its effects. The causes or occasions of laws are

sometimes as important to be traced out as their consequences. Thee
new remedy to be applied may, otherwise, be as mischievous as the-
wrong to be redressed. History has been said to be philosophy
teaching by examples ; and to no subject is this remark more applicable
than to law, which is emphatically the science of human experience,
A sketch, however general, of the origin and sources of any portion
of jurisprudence, may at least serve the purpose of pointing out the
paths to be explored; and, by guiding the inquirer to the very places
he seeks, may save him from the labour of wandering in the devious
tracks, and of bewildering himself in mazes of errors as fruitless as
they may be intricate.
§ 55a.. The High Court of Chancery, which was, as we have seen,
a Court distinct from, and superior to, the Courts of Common law, was
abolished by the Supreme Court of Judicature Act, 1873 (o), and,.
together with the Courts of Common law and the Courts of Probate,
Divorce, and Admiralty, was constituted one Supreme Court of
Judicature in England. This Supreme Court consists of two divisions
— the High Court, of Justice and the Court of Appeal — and the High
Court of Chancery has to a large extent become the Chancery Division
of the High Court of Justice. To this Chancery Division are
assigned (p) all causes and matters for any of the following purposes : —
The administration of the estates of deceased persons.
The dissolution of partnerships or the taking of partnership
or other accounts.
The redemption or foreclosure of mortgages.
The raising of portions or other charges on land.
The sale and distribution of the proceeds of property subject-
to any lien or charge.
The execution of trusts, charitable or private.
The rectification, or setting aside, or cancellation of deeds or
other written instruments.
The specific performance of contracts between vendors and.
purchasers of real estates, including contracts for leases.
The partition or sale of real estates.
The wardship of infants and the care of infants' estates.
Since this Act other matters have been assigned by various statutes
to the Chancery Division; e.g., those arising under the Conveyancing-
Act, 1881 (g), the Settled Land Act, 1882 (r), and the Guardianship of
Infants Act, 1886 (s).
The Judicature Act, 1873, further provides for the recognition.
by all divisions of the High Court of the principles formerly adopted-

Co) 36 & 37 Vict. c. 66, s. 3. (p) Sect. 34.

(a) U & 45 Vict. u. 41, s. 63. W 45 & 46 Vict. c. 38, a. 49.
(s) 49 & 50 Vict. c. 27, s. 9.
30 EQUITY JURISPRUDENCE. [CH. II.

by the Court of Chancery, for by s. 24 of this Act it is provided

that, for the future, claims by a plaintiff to any equitable estate
or right, or to relief on any equitable ground, are to be recognised
by all branches of the court; as also are claims by a defendant
to an equitable estate or right or relief on equitable grounds; and
whenever equitable estates, titles, rights, duties, and liabilities appear
incidentally they are to be recognised (t). The effect of this is that
the court is now neither a court of law nor a court of equity, but
a court of complete jurisdiction (m); and, if there were a variance
between what before the Act a court of law and a court of equity would
have done, the rules of the court of equity must now prevail (a;).
The Act, after having in particular insta,nces (y) enacted that
certain rules of equity should prevail, further provides by sub-s. 11
of s. 25, that generally in all matters not hereinbefore particularly
" mentioned in which there is any conflict or variance between the
rules of equity and the rules of the common law, with reference to the
same matter, the rules of equity shall prevail."
The Act further did away altogether with the auxiliary jurisdiction
of the Court of Chancery. First, as to an injunction. This originally
had been a remedy peculiar to the Court of Chancery, and, although
power was conferred upon the courts of common law to grant an
injunction by ss. 79 to 82 of the Common Law Procedure Act, 1854,
as amended by ss. 32 and 33 of the Common Law Procedure Act, 1860,
these Acts only allowed the plaintiff to ask for this peculiar remedy
when the wrong had actually been committed; but now by s. 25,
sub-s. 8, of the Judicature Act, 1878, " an injunction may be granted
in any case in which it shall appear to the court to be just or convenient
that such order should be made " {z).
The injunction by means of which the Court of Chancery used to
stay proceedings in the common law and other courts, where the
defendant had a good equitable defence, is now obsolete ; but by
6. 24, sub-s. 6, of the Judicature Act, 1873, it is provided that no cause
or proceeding at any time pending in the High Court of Justice or
before the Court of Appeal shall be restrained by prohibition or
injunction; but every matter of equity in which an injunction against
the prosecution of any cause or proceeding might have been obtained

(t) Sub-sects. 2, 3, and 4.

(u) TampUn v. James, 15 Ch. D. 215.
(x) Per Lord Cairns, in Pugh v. Heath, 7 App. Gas. 237. But in Joseph v. Lyons
(5 Q. B. D. 280), it was held that the Judicature Acts had not abolished the distinc-
tion between legal and equitable interests ; they merely enable the High Court to
administer legal and equitable remedies. Vide per Cotton, L.J., 5 Q. B. D. 280.
(i/) See sub-sects. 2, 3, 4, 7, and 10, all of which will be referred to afterwards.
(z) This section does not alter the principles on which injunctions were formerly
granted; but, in ascertaining what is just, regard must be had to what is convenient
(Day V. Brownrigg, 10 Ch. D. 307). And an injunction may be granted even on an
interlocutory application (sub-s. 8). See also E. S. C. Ord. 1. r. 6. See also § 873
jn, b, c, infra.
§ 55a.] ORIGIN AND HISTORY. 31

if this Act had not passed, either unconditionally or on any terms or

conditions, may be relied on by way of defence thereto (a).
Next, as to discovery. Discovery could formerly be obtained only
by means of a bill in the Court of Chancery, but power to grant
discovery was conferred on the courts of common law by ss. 51 and
52 of the Common Law Procedure Act, 1854.
But this right was only a limited right, and the custom and practice
of discovery in the common law courts differed from that prevailing in
the Court of Chancery. The present practice in discovery depends
" upon the orders and rules of the Judicature Acts." But in them
the extended principles of the Court of Chancery were followed rather
than the narrower practice of the courts of common law itself derived
from the practice in equity (b).
Thus, under the Judicature Act the practice in discovers is a new
intermediate practice ; but where there is any conflict or variance
between the rules of common law and equity, with reference to the
same matter, the rule of equity will prevail (c).
The next remedy of the Court of Chancery was the appointment
of a receiver. S. 25, sub-s. 8, of the Judicature Act gives power to
any division of the High Court to appoint a receiver, a power
originally vested only in the Court of Chancery (d).
From the above concise account it will be seen that the changes
made by the Judicature Act relate in a very slight degree, if at all, to
the principles of equity jurisprudence which are the subject of the
present treatise (e).
It has not been thought necessary to alter the phrases " Court of
Chancery " or " courts of equity," but these phrases must be under-
stood, since 1873, to signify the Chancery Division of the High
Court of Justice and the Court of Appeal therefrom. In the same
way the phrase " courts of common law " means, since the Order in
Council made 16th December, 1880, in pursuance of s. 32 of the
Judicature Act, 1873, the King's Bench Division of the High Court.
(o) An injunction may still be granted to restrain »■ person from instituttng pro-
ceedings (Besant v. Wood, 12 Ch. D. 630). So, too, an injunction may be granted
to restrain proceedings in inferior courts, or in tribunals constituted for a special
purpose, or in tribunals of foreign countries. See Annual Practice, and Kerr
on Injunctions, 3rd ed., pp. 576-7. The same sub-section provides that any court
may stay proceedings in any matter before it.
(b) Jones v. Monte Video Gas Co., 5 Q. B. D. 556, per Brett, L.J., at 558.
(c) Bustros V. White, 1 Q. B. D. 496. The present practice as to discovery is
regulated by Ord. xxxi. E. S. C. (1883). See infra, § 1480.
(d) See, as to the grounds on which the Court of Chancery appointed a receiver,
infra, § 829 and following sections.
(e) Since the Judicature Act, 1873, the Lord Chancellor has not sat as a Judge of
a Court of Pirst Instance; and since the Judicature Act, 1881 (44 & 45 Vict. c. 68),
the Master of the Bolls has been a Judge of Appeal only. Since the Judicature Act.
1873, no new Vice-Chancellor has been created, and the old Court of Chancery Appeal
was merged in the Court of Appeal of the Supreme Court by the same enactment.
32 GENERAL VIEW. [CH. III.

CHAPTER III.

GENERAL VIEW OF EQUITY JURISDICTION.

§ 59. Having traced out the nature and history of Equity Juris-
prudence, we are naturally led to the consideration of the various
subjects which it embraces, and the measure and extent of its
jurisdiction. Courts of equity, in the exercise of their jurisdiction,
may, in a general sense, be said to have differed from common law,
in the modes of trial, in the modes of proof, and in the modes of relief.
One or more of these elements will be found essentially to have entered,
as an ingredient, into every subject over which they exerted their
authority. Lord Coke has, in his summary manner, stated, that three
things were to be judged of in the court of conscience or equity :
covin, accident, and breach of confidence (a) ; or, as we should now
say, matters of fraud, accident, and trust. Mr. Justice Blackstone
has also said, that courts of equity were established " to detect latent
frauds and concealments which the process of the courts of law is not
adapted to reach ; to enforce the execution of such matters of trust
and confidence as are binding in conscience, though not cognizable
in a court of law ; to deliver from eueh dangers as are owing to
misfortune, or oversight; and to give a more specific relief, and
more adapted to the circumstances of the case, than can always be
obtained by the generality of the rules of the positive or common
law " (b).
§ 60. These, as general descriptions, are well enough; but they
are far too loose and inexact to subserve the purposes of those who
seek an accurate knowledge of the actual, or supposed, boundaries
of equity jurisdiction. Thus, for example, although fraud, accident,
and trust are proper objects of courts of equity, it is by no means
true that they are exclusively cognizable therein. On the contrary,
fraud is, in many cases, cognizable in a court of law. Thus, for
example, reading a deed falsely to an illiterate person, whether it be
so read by the grantee, or by a stranger, avoids it as to the other

(a) 4 Inst. 84; Com. Dig. Chancery, Z. ; 3 Black. Comm. 431 ; 1 Eq. Abr. Courts,
B. § 4, p. 130; Bac. Abridg. Court of Chancery, C.
(b) 1 Black. Comm. 92. And see 3 Black. Comm. 429 to 432.
§ 59 — 61.] GENERAL VIEW. 33

party, at law (c). And, sometimes, fraud, such as fraud in obtaining a

will, or devise of lands, is cognizable there (d). Many cases of accidents
are remediable at law, such as losses of deeds, mistakes in accounts
and receipts, impossibilities in the strict performance of conditions,
and other like cases. And even trusts, though in general of a peculiar
and exclusive jurisdiction in equity, are sometimes cognizable at law;
as, for instance, cases of ^ailments, and that larger class of cases,
where the action for money had and received for another's use is
maintained ex xquo et bono (e).
§ 61. On the other hand, there are cases of fraud, of accident, and
of trust, which neither courts of law, nor of equity, presume to
relieve or mitigate. And, where the law has determined a matter,
with all its circumstances, equity cannot (as we have seen) inter-
meddle against the positive rules of law. And, therefore, equity will
not interfere in such cases, notwithstanding accident, or unavoidable
necessity. This was long ago remarked by Lord Talbot, who, after
saying, " There are instances, indeed, in which a court of equity gives
remedy, where the law gives none, ' ' added : ' ' But where a particular
remedy is given by law, and that remedy is bounded and circum-
scribed byparticular rules, it would be very improper for this court to
take it up, where the law leaves it, and extend it further than the
law allows." And upon this ground, relief was refused to a creditor
of the wife against her husband, after her death, though he had
received a large fortune with her on his marriage (/). So, a man may
by accident omit to make a will, appointment, or gift, in favour of
some friend or relative; or he may leave his will unfinished; and
yet there can be no relief (g). And many cases of the non-performance
of conditioris are equally without redress {h). So, cases of trust
may exist, in which the parties must abide by their own false
confidence in others, without any aid from courts of justice. Thus,
in cases of illegal contracts, or those in which one party has placed
property in the hands of another for illegal purposes, as for smuggling,
if the latter refuses to account for the proceeds, and fraudulently or
unjustly withholds them, the former must abide by his loss; for
In pari delicto melior est conditio possidentis, et defendentis, is a
maxim of public policy equally respected in courts of law and courts
of equity (i). And, on the other hand, where the fraud is perpetrated
by one party only, still, if it involves a public crime, ■ and redress

(c) Thoroughgood's Case, 2 Co. 9 a; Shulter's Case, 12 Co. 90; Jenkin's Cent. 166.
(d) 1 Hovenden on Frauds, Introd. p. 16 ; id. ch. 10, p. 252.
(e) 3 Black. Comm. 431, 432.
(/) Heard v. Stanford, Cas. temp. Talb. 174.
ig) Toilet V. Toilet, 2 P. Wme. 489; Poole v. Shergold, 10 Ves. 370; Martin v.
Cooper, L. E. 3 Ch. 47.
(h) In re Emson; Grain v. Grain, 74 L. J. Ch. 565; In re Lewis; Lewis v. Lewis,
1904, 2 Ch. 656.
(t) Curtis V. Perry, 6 Ves. 739; Ewing v. Osbaldiston, 2 M. & Cr. 58.
E. J. 3
34 EQUITY JURISPRUDENCE. [CH. III.

cannot be obtained, except by a discovery of the facts from him

personally, the law will not compel him to accuse himself of a crime ;
and therefore the case is one of irremediable injury.
§ 62. These are but a few anaong many instances, which might be
selected, to establish the justice of the remark, that even in cases
professedly within the scope of equity jurisdiction, such as fraud,
accident, and trust, there are many exceptions ; and that all that
can be ascribed to such general allegations is genetal truth. The true
nature and extent of equity jurisdiction, as at present administered,
must be ascertained by a specifie enumeration of its actual limits in
each particular class of cases, falling within its remedial justice. This
will, accordingly, he done in the subsequent pages.
§ 63. We may here notice some of those maxims and general
axioms, which are of frequent recurrence in the discussion of equity
jurisprudence.
§ 64. In the first place, it is a common maxim, that equity follows
the law, Mquitas sequitur legem (k). This maxim is susceptible of
various interpretations. It may mean, that equity adopts and follows
the rules of law in all cases to which those rules may, in terms, be
applicable ; or it may mean, that equity, in dealing with cases of an
equitable nature, adopts and follows the analogies furnished by the
rules of law. Now, the maxim is true in both of these senses, as
applied to different cases and different circumstances. It is universally
true in neither sense; or rather, it is not of universal application (I).
Where a rule, either of the common or the statute law, is direct, and
governs the case with all its circumstances, or the particular point,
a court of equity is as much bound by it as a court of law, and can
as little justify a departure from it (m). If the law commands or
prohibits a thing to be done, equity cannot enjoin the contrary, or
dispense with the obligation. Thus, since the law has declared that
the eldest son shall take by descent the whole undevised estate of
his parent, except in the case of gavelkind lands, a court of equity
cannot disregard the canon of descent; but must give full effect and
vigour to it in all controversies, in which the title is asserted. And
yet, there are cases in which equity will control the _legal title of an
heir, general or special, when it would be deemed absolute at law ; and
in which, therefore, so far from following the law, it openly abandons
it. Thus, if a tenant in tail, not knowing the fact, should, upon his

(fe) In re Irwin; Irwin v. Parkes, 1904, 2 Ch. 752. See Dixon v. Enoch, L. E.
13 Eq. 394, for a, statutory exception to the rule.
(I) Sir Thomas Clarke (Master of the EoUs), in one of his elaborate opinions, has
remarked, in regard to uses and trusts, that, at law, the legal operation controls the
intent; but, in equity, the intent controls the legal operation of the deed. Burgess v.
Wheate, 1 W. Black. 137. See also In re Thursby ; Grant v. Littledale, 1910, 2 Ch.
181; 79 L. J. Ch. 638.
(to) Curtis V. Perry, 6 Ves. 739; Thompson v. Leake, 1 Madd. 39; Ewing v.
Osbaldiston, 2 M. & Cr. 53.
§ 62 64i).] GENERAL VIEW. 35

marriage, make a settlement on his wife, and the heir in tail should
engross the settlement, and conceal the fact, although at law his title
would be absolute, a court of equity would have awarded a perpetual
injunction against asserting it to the prejudice of the settlement (n).
So, if an heir-at-law should, by parol, promise his father to pay his
sisters' portions, if he would not direct timber to be felled to raise
them ; although discharged at law, he would in equity be deemed liable
to pay them, in the same way, as if they had been charged on the
land (o). And many cases of a like nature may be put (p).
§ 64a. So, in many cases, equity acts by analogy to the rules of
law in relation to equitable titles and estates. Thus, although the
statutes of limitations were in their terms applicable to courts of law
only (q), yet equity, by analogy, acts upon them, and refuses relief
under like circumstances. Equity always discountenances laches, and
holds that laches is presumable in cases where it is positively declared
at law. Thus, in cases of equitable titles in land, equity requires relief
to be sought within the same period in which an ejectment would lie
at law ; and, in cases of personal claims, it also requires relief to be
sought within the period prescribed for personal suits of a like
nature (r). And yet there are cases in which the statutes would be a
bar at law, but in which equity would, notwithstanding, grant relief;
and, on the other hand, there are cases where the statutes would not
be a bar at law, but where equity, notwithstanding, would refuse
relief (s). But all these cases stand on special circumstances, which
courts of equity can take notice of when courts of law may be bound
by the positive bar of the statutes. And there are many other cases
where the rules of law and equity on similar subjects are not exactly
co-extensive as to the recognition of rights or the maintenance of
remedy. Thus, a person may be tenant by the courtesy of his wife's
trust estate, but she was not, till the 3 & 4 Will. IV. c. 105, entitled to
dower in his trust estate. So, where a power is defectively executed,
equity will often aid it; whereas, at law, the appointment is wholly
nugatory.
§ 64b. Other illustrations of the same maxim may be drawn from
the known analogies of legal and trust estates. In general, in courts
(n) Raw V. Potts, Prec. Ch. 35.
(o) Dutton V. Poole, 1 Vent. 318.
(p) Neville v. Wilkinson, 1 Bro. C. C. 543; Mestaer v. Gillespie, 11 Ves. 621;
Middleton v. Middleton, 1 J. & W. 94. These cases proceed upon the ground of
concealed fraud, by not allowing a party to use a mere technical advantage for the
accomplishment of positive injustice; and in a manner which the law never con-
templated. So that equity here does not dispense with the law, but merely supplies
its defects.
(g) Hovenden v. Lord Annesley, 2 Sch. & L. 607; Talmarsh v. MugUston, 4
L. J. 0. S. Ch. 200; Masonic General Life Assurance Co. v. Sharpe, [1892] 1 Ch. 154.
(r) Smith v. Clay, 3 Bro. C. C. 640, note; Cholmondeley v. Clinton, 2 Jac. &
Walk. 156; 4 Bligh. 1.
(«) See Pickering v. Lord Stamford, 2 Ves. Jun. 279, 582; Gibbs v. Guild, 9
Q. B. D. 59 ; Oelkers v. Ellis, [1914] 2 K. B. 139.
36 EQUITY JURISPRUDENCE. [CH. III.

of equity, the same construction and effect- are given to perfect or

executed trust estates as are given by courts of law to legal estates.
The incidents, properties, and consequences of the estates are the
same. The same restrictions are applied as to creating estates and
bounding perpetuities, and giving absolute dominion over property.
The same modes of construing the language and limitations of the
trusts are adopted. But there are exceptions, as vi'ell known as the
rule itself. Thus, executory trusts are treated as susceptible of various
modifications and constructions not applicable to executed trusts.
And, even at law, the words in a will are or may be differently
construed when applied to personal estate, from what they are when
applied to real estate. In short, it may be correctly said that the
maxim, that equity follows the law, is a maxim liable to many
exceptions ; and that it cannot be generally affirmed, that where there
is no remedy at law in the given case, there is none in equity; or, on
the other hand, that equity, in the administration of its ovvti
principles, is utterly regardless of the rules of law.
§ 64c. Another maxim is, that where there is equal equity the
law must prevail. And this is generally true ; for, in such a case, the
defendant has an equal claim to the protection of a court of equity
for his title as the plaintiff has to the assistance of the court to
assert his title ; and then the court will not interpose on either
side, for the rule there is, " In aequali jure melior est conditio
possidentis. ' ' And the equity is equal between persons who have been
equally innocent and equally diligent. It is upon this account that a
court of equity constantly refuses to interfere, either for relief or
discovery, against a bond fide purchaser of the legal estate for a
valuable consideration, without notice of the adverse title, if he
chooses to avail himself of the defence at the proper time and in the
proper mode. And it extends its protection equally, if the purchase
is originally of an equitable title without notice, and afterwards, with
notice, the party obtains or buys in a prior legal title, in order to
support his equitable title. This doctrine applies strictly in all cases
where the title of the plaintiff seeking relief is equitable; it is
inapplicable to the case of a plaintiff seeking equitable relief based
upon a legal title (i). The purchaser, however, in all cases, must hold
a legal title, or be entitled to call for it, in order to give him a full
protection of his defence ; for, if his title be merely equitable, then he
must yield to a legal and equitable title in the adverse party. So, the
purchaser must have paid his purchase-money before notice, for
otherwise he will not be protected ; and if he have paid a part only, he
will be protected pro tanto only (u).

(t) Collins v. Archer, 1 Kuss. & M. 284; Heath v. Grealock, L. E. 10 Ch. 22; Ind
•Coope d Go. V. Emmerson, 12 App. Gas. 300.
(u) Jackson v. Rowe, i Euss. 514, further proceedings, 9 L. J. (O.S.) Ch. 32.
 § 64c— 64gf.] GENERAL VIEW. 37

§ 64d. But, even when the title of each party is purely equitable,
it does not always follow that the maxim admits of no preference of
the one over the other. For, where the equities are in other respects
equal, still another maxim may prevail, which is "Qui prior est in
tempore, potior est in jure "; for precedency in time will, under many
circumstances, give an advantage, or priority in right. Hence, when
the legal estate is outstanding, equitable incumbrances on real estate
must be paid according to priority of time (x). But if the legal estate
in personalty is outstanding, the person who first gives notice of his
incumbrance to the debtor or trustee will have the preference (y). And
whenever the equities are unequal, there the preference is constantly
given to the superior equity.
§ 64e. Another maxim of no small extent is, that he who seeks
equity, must do equity. This maxim principally applies to the
party who is. seeking subsiantive relief, in the character of a plaintiff in
the court («). Expectant heirs and reversioners must offer to repay
the sums actually received by them together with interest (o); a
mortgagor or puisne incumbrancer must offer to redeem (b), and
many other illustrations of the maxim might be put.
§ 64/. Another maxim of general use is, that equality is equity;
or, as it is sometimes expressed, equity delighteth in equality. And
this quality, according to Bracton, constitutes equity itself: " .^quitas
est rerum convenientia, qusB paribus in causis paria jura desiderat, et
omnia vere co-aBquiparat, et dicitur aequitas, quasi sequalitas. " This
maxim is variously applied ; as, for example, to cases of contribution
between co-eobtractors, sureties, and others; to cases of abatement
of legacies, where there is a deficiency of assets ; to cases of appor-
tionment of moneys due on incumbrances among different purchasers
and claimants of different parcels of the land; and especially to cases
of the marshalling and the distribution of equitable assets, which were
applied in payment of debts proportionally, without reference to their
dignity, or priority of right at law, except as regards Crown debts.
And here we have another illustration of the doctrine, that equity does
not always follow the law.
§ 64^. Another, and the last, maxim which it seems necessary to
notice is, that equity looks upon that as done, which ought to have
been done. The true meaning of this maxim is, that equity will treat
the subject-matter, as to collateral consequences, and incidents, in the
same manner as if the final acts contemplated by the parties had

(x) Phillips v. Phillips, 4 De G. F. & J. 208; Carritt v. Real and Personal Advance
Co., 42 Ch. D. 263.
(y) Dearie v. Hall, 3 Euss. 1.
Iz) Dingle v. Cooper, [1899] 1 Ch. 726 ; In re Lloyd, Lloyd v. Lloyd, [1903] 1 Ch.
385 ; Hanson v. Keating, 4 Hare, 1.
(a) Croft v. Graham:, 2 De G. J. & S. 71; Beynon v. Cook, L. E. 10 Ch. 389.
(b) Gordon v. Horsefall, 5 Moo. P. C. 393; Inman v. Wearing, 3 De G. & S. 729.
38 EQUITY JUEISPRUDENCE. [CH. III.

been executed exactly as they ought to have been; not as the parties
might have executed them. But equity will not thus consider things
in favour of all persons ; but only in favour of such as have a right to
pray that the acts might be done (c). And the rule itself is not. in
other respects, of universal application; although Lord Hardwieke
said that it holds in every case except in dower (d). The most common
cases of the application of the rule are under agreements. All agree-
ments are considered as performed, which are made for a valuable
consideration, in favour of persons entitled to insist upon their per-
formance. They are to be considered as done at the time when,
according to the tenor thereof, they ought to have been performed.
They are also deemed to have the same consequences attached to
them; so that one party, or his privies, shall not derive benefit by
his laches or neglect; and the other party, for whose profit the
contract was designed, or his privies, shall not sufifer thereby. Thus,
money, covenanted, or devised, to be laid out in land, is treated as
real estate in equity, and descends to the heir. And, on the other
hand, where land is contracted, or devised, to be sold, the land is
considered and treated as money. There are exceptions to the
doctrine, where other equita-ble considerations intervene, or where
the intent of the parties leads the other way, as where the sale is
conditional ; but these demonstrate rather than shake the potency of
the general rule.

(c) In re Austin, Chetwynd v. Morgan, 31 Ch. D. 596.

id) Crabtree v. Bramble, 3 Atk. 681.
§ 75, 76.] ACCIDENT. 39

CHAPTER IV.

CONCURRENT JURISDICTION OF EQUITY — ACCIDENT.

§ 75. Having disposed of these matters, which may in some sort

be deemed preliminary, the next inquiry which will occupy our
attention, is to ascertain the true boundaries of the jurisdiction
exercised by courts of equity. The subject here naturally divides
itself into three great heads, — the concurrent, the exclusive, and
the auxiliary or supplemental jurisdiction (a). As tte concurrent
jurisdiction is that which is of the greatest extent, and most famiHar
occurrence in practice, I propose to begin with it.
§ 76. The concurrent jurisdiction of courts of equity may be truly
said to em.brace, if not all, at least a very large portion of the original
jurisdiction, inherent in the court from its very nature, or first
conferred upon it, at the dissolution or partition of the powers of the
Greatit Council,
that or Aula
did not take Regis,
its rise fromof the
the introduction
King. "We ofhave alreadyuses
technical seen,or

trusts, as has sometimes been erroneously supposed (h). Its original

foundation, then, may be more fitly referred to what Lord Coke
deemed the true one, — fraud, accident, and confidence (c). In many
cases of this sort, courts of common law, prior to the Judicature Act,
1873, had been accustomed to exercise jurisdiction, and to afford an
adequate remedy. And in many other cases, in which anciently no
such remedy was allowed, their jurisdiction was expanded, so as
effectually to reach them. Still, however, there were many cases of
fraud, accident, and confidence, which either courts of law did not
attempt to redress at all; or, if they did, the redress which they ,
afforded was inadequate and defective. The concurrent jurisdiction,
then, of equity, has its true origin in one of two sources : either the
courts of law, although they had general jurisdiction in the matter,
could not give adequate, specific, and perfect relief; or, under the actual
circumstances of the case, they could not give any relief at all. The
former occurred in all cases, when a simple judgment for the plaintiff,
or for the defendant, did not meet the full merits and exigencies of
the case; but a variety of adjustments, limitations, and cross claims

(a) Ante, § 42, 43; 1 Cooper's Public Eecords, 357.

(b) i Inst. 84 ; 3 Black. Comm. 431.
(c) 4 Inst. 84; 3 Black. Comm. 431, 432.
40 EQUITY JUEISPRUDENCE. [CH. IV.

were to be introduced, and finally acted on; and a decree, meeting all
the circumstances of the particular case between the very parties,
was indispensable to complete distributive justice. The latter occurred,
when the object sought was till recent legislation incapable of being
accomplished by the courts of law; as, for instance, a perpetual
injunction, or a preventive process, to restrain trespasses, nuisances,
or waste. It may, therefore, be said, that the concurrent jurisdiction
of equity extended to all cases of legal rights, where, under the
circumstances, there is not a plain, adequate, and complete remedy
at law.
§ 77. The subject, for convenience, may be divided into two
branches : (1) that, in which the subject-matter constituted the
principal (for it rarely constituted the sole) ground of the jurisdiction;
and (2) that, in which the peculiar remedies afforded by courts of
equity constituted the principal (although not always the sole) ground
of the jurisdiction. Of these we shall endeavour to treat successively
in their order, beginning with that of the subject-matter, where the
relief was deemed more adequate, complete, and perfect in equity than
at common law ; but where the remedy was not, or, at least, might not
be, of a peculiar and exclusive character. It is proper, however, to
add, that as the grounds of jurisdiction often run into each other,
any attempt at a scientific method of distribution of the various
heads would be impracticable and illusory.
§ 78. And, in the first place, let us consider the cases, where the
jurisdiction arises from accident. By the term accident is here
intended, not merely inevitable casualty, or the act of Providence, or
what is technically called vis major, or irresistible force ; but such
unforeseen events, misfortunes, losses, acts, or omissions, as are
not the result of any negligence or misconduct in the party. Lord
Cowper, speaking on the subject of accident, as cognizable in equity,
said : ' ' By accident is meant when a case is distinguished from others
of the like nature by unusual circumstances " (d) ; a definition quite
too loose and inaccurate, without some further qualifications ; for it is
entirely consistent with the language, that the unusual circumstances
may have resulted from the party's own gross negligence, folly, or
rashness.
§ 79. The jurisdiction of the court, arising from accident, in the
general sense already suggested, is a very old head in equity, and
probably coeval with its existence (e). But it is not every case of
accident which will justify the interposition of a court of equity (/).
The jurisdiction, being concurrent, will be maintained only, first,
when a court of law cannot grant suitable relief; and, secondly,

(d) Earl of Bath v. Sherwin, 10 Mod. 1.

(e) See East India Co. v. Boddam, 9 Ves. 464; Armitage v. Wadsworth, 1 Mad.
189 to 193.
(/) Whitfield V. Fausset, 1 Ves. Sen. 392, 393.
§ 77 — 82.] ACCIDENT. 41

when the party has a conscientious title to relief. Both grounds

naust concur in the given case ; for otherwise a court of equity not
only may, but is bound to withhold its aid. Mr. Justice Blackstone
has very correctly observed, that, " many accidents are supplied in a
court of law ; as loss of deeds, mistakes in receipts and accounts, wrong
payments, deaths, which made it impossible to perform a condition
literally, and a multitude of other contingencies. And many cannot
be redressed, even in a court of equity ; as, if by accident a recovery
is ill sufiered, a devise ill executed, a contingent remainder destroyed,
or a power of leasing omitted in a family settlement (g).
§ 80. The first consideration then is, whether there is an adequate
remedy at law, not merely whether there is some remedy at law.
And here a most material distinction is to be attended to. In more
recent times, courts of law frequently interfered, and granted a
remedy under circumstances in which it would certainly have been
denied in earlier periods. And, sometimes, the legislature, by express
enactments, conferred on courts of law the same remedial faculty
which belonged to courts of equity. Now (as we have seen), in neither
case, if the courts of equity originally obtained and exercised
jurisdiction, is that jurisdiction overturned or impaired by this change
of the authority at law in regard to legislative enactments ; for, unless
there are prohibitory or restrictive words used, the uniform inter-
pretation is,that they confer concurrent and not exclusive remedial
authority. And it would be still more difficult to maintain that a
court of law, by its own act, could oust or repeal a jurisdiction already
rightfully attached in equity (h).
§ 81. One of the most common interpositions of equity under this
head was in the case of lost bonds or other instruments under seal.
Originally the doctrine prevailed that there could be no remedy on a
lost bond in a court of common law, because there could be no profert
of the instrument, without which the declaration would be fatally
defective; but about 1750 the court of law commenced to entertain
the jurisdiction, and dispense with the profert, if an allegation of loss,
by time and accident, was stated in the declaration (i). But this
circumstance was not permitted in the slightest degree to change the
course in equity (k).
§ 82. Independent of this general ground of the former inability to
make a proper profert of the deed at law, there was another satisfactory
ground for the interference of a court of equity. It is, that no
other court could furnish the same remedy with all the fit limitations

(g) 3 Black. Comm. 431.

{h) Atkinson v. Leonard, 3 Bro. C. C. 218; Bromley v. Holland, 7 Ves. 19, 20;
East India Co. v. Boddam, 9 Ves. 464.
(i) Whitfield v. Fausset, 1 Ves. Sen. 387 ; Read v. Brokman, 3 T. E. 151.
(A;) Atkinson y. 'Leonard, 3 Bro. C. C. 218; Bromley v. Holland, 7 Ves. 3; East
India Go. v. Boddam, 9 Ves. 464.
42 EQUITY JURISPRUDENCE. [CH. IV.

which may be demanded for the purposes of justice, by granting relief

only upon the terms of the party's giving (when proper) a suitable-
bond of indemnity. Now, a court of law was incompetent to require
such a bond of indemnity as a part of its judgments, although it
sometimes attempted an analogous relief (it is difficult to understand
upon what ground), by requiring the previous offer of such an
indemnity (l). But such an offer might, in many cases, fall far
short of the just relief; for, in the intermediate time, there might be
a great change in the circumstances of the parties to the bond of
indemnity (m). In joint bonds, there are still stronger reasons; for the
equities may be different between the different defendants (n). And,
besides, a court of equity, before it would grant relief, would insist
that the defendant should have the protection of the oath and affidavit
of the plaintiff to the fact of the loss; thus requiring, what is most
essential to the interests of justice, that the party should pledge his
conscience by his oath, that the instrument was lost (o).
§ 84. It has been remarked by Lord Hardwicke, that the loss of a
deed is not always a ground to come into a court of equity for relief;
for, if there is no more in the case, although the party might be entitled
to a discovery of the original existence and validity of the deed, courts
of law might afford just relief, since they would admit evidence of the
loss and contents of a deed (p), just as a court of equitywould do (g).
To enable the party, therefore, in case of a lost deed, to come into
equity for relief, he must have established that there was no remedy
at all at law, or no remedy which was adequate, and adapted to the
circumstances of the case. In the first place, he might come into
equity for payment of a lost bond; for in such a case his biU need
not have been for a discovery only, but might also be for relief; since
the jurisdiction attached, when there was no remedy at law for want of
a due profert ()■). In the next place, he might come into equity when
a deed or will of land had been destroyed, or was concealed by the
defendant; for then, as the party could not know which alternative
was correct, a court of equity would make a decree (which a court of
law could not) that the plaintiff should hold and enjoy the land (s).
So, if a deed concerning land were lost, and the party in possession
prayed discovery, and to be established in his possession under it,
equity would relieve; for no remedy, in such a case, lay at law (t).

(I) Ex parte Greenway, 6 Ves. 812; Pierson v. Hutchinson, 2 Camp. 211; s.c. 6
Bsp. 126.
(m) East India Co. v. Boddam, 9 Ves. 464.
(n) East India Co. v. Boddam , 9 Ves. 464.
(o) Bromley v. Holland, 7 Ves. 19, 20.
(p) Doe V. Lewis, 11 G. B. 1035.
iq) Whitfield v. Fausset, X Ves. Sen. 392, 393.
(r) Williams v. Flight, 5 Beav. 41.
(s) Dalston v. Coatsworth, 1 P. Wms. 731; Williams v. Williams, 33 Beav. 306.
it) Walmsley v. Child, 1 Ves. Sen. 344, 345.
§ 84 86.] ACCIDENT. 43

And, where the plaintiff was out of possession, there were cases in
which equity would have interfered upon lost or suppressed title-deeds,
and would have decreed possession to the plaintiff; but in all such
cases there must have been other equities calling for the action of the
court. Indeed, the bill must always have had some ground besides
the mere loss of a title-deed, or other sealed instrument, to justify a
prayer for relief; as, that the loss obstructed the right of the plaintiif
at law, or left him exposed to undue perils in the future assertion of
such right.
§ 85. By the law merchant, which in this respect was adopted by
the Courts of Common law, the payee or holder was required to
produce and hand over a negotiable bill or note (u) upon payment by
the acceptor, and consequently there was no remedy upon a lost bill,
even if an indemnity were offered {x) ; nor could the consideration be
recovered under the same circumstances {y). The common law was
subsequently altered in this respect by s. 87 of the Common Law
Procedure Act, 1854 (17 & 18 Vict. c. 125), a provision which was
subsequently repealed and re-enacted in s. 70 of the Bills of Exchange
Act, 1882 (45 & 46 Vict. c. 61). In respect of all other simple contracts
the Court of Chancery might not entertain jurisdiction or decree pay-
ment upon the mere fact of loss; for no such supposed inability to
recover at law existed in the last-mentioned case as existed for want
of a profert of a bond at law. No profert was necessary, and no oyer
allowed at law of such a note or security; and no recovery could be
had at law, upon mere proof of the loss. But, then, a court of law
could not, as we have seen, insist upon an indemnity, or at least
could not insist upon it in such a form as might operate as a perfect
indemnity (z). Where a negotiable bill or note had been lost, a court
of equity would entertain a bill for relief and payment, upon an
offer in the bill to give a proper indemnity under the direction of the
court, and not without. And such an offer entitled the court to require
an indemnity, not strictly attainable at law, and founded a just
jurisdiction (a). Courts of common law allowed an action to be
maintained upon bills or notes proved to have been destroyed, and
consequently there existed no corresponding necessity for an equitable
jurisdiction to enable the money to be recovered (b).
§ 86. In the cases which we have been considering, the lost note,
or other security, was negotiable. And, according to the authorities,
this circumstance is most material ; for otherwise it would seem, that
no indemnity would be necessary (c), and consequently no relief could
(u) Wain v. Bailey, 10 A. & E. 616.
(x) Hansard v. Robinson, 7 B. & C. 90; Ramuz v. Clay, 1 Ex. 167.
(y) Crowe v. Clay, 9 Ex. 604.
(z) See Hansard v. Robinson, 7 B. & C. 90.
(a) Macartney v. Graham, 2 Sim. 796.
(b) Wright v. Lord Maidstone, 1 K. & J. 701.
(c) Wain v. BaiUy, 10 A. & E. 616.
44 EQUITY JURISPRUDENCE. [CH. IV.

be had in equity (d). The propriety of this exception has been some-
what doubted; for the party is entitled, upon payment of such a note
or security, to have it delivered up to him, as voucher of the payment
and extinguishment of it; and it may have been assigned, in equity,
.or under the provisions of s. 25, sub-s. 6 of the Judicature Act, 1873
(36 & 37 Vict. c. 66), to a third person. And although, in such a case,
the assignee would be affected by all the equities between the original
parties, yet the promisor may not always, after a great length of time,
be able to establish those equities by competent proof; and, at all
events, he may be put to serious expense and trouble, to establish his
exoneration from the charge. The jurisdiction of courts of equity,
under such circumstances, seems perfectly within the principles on
which such courts ordinarily proceed to grant relief, not only in cases
of absolute loss, but of impending or probable mischief or inconvenience.
And a bond of indemnity, under such circumstances, is but a just
security to the promisor against the vexation and accumulated
expenses of a suit (e).
§ 87. It is upon grounds somewhat similar, that courts of equity
often interfere, where the party, from the long possession or exercise
of a right over property, may fairly be presumed to have had a legal
title to it, and yet has lost the legal evidence of it, or is now unable
to produce it. Under such circumstances, equity acts upon the
presumption, arising from such possession, as equivalent to complete
proof of the legal right. Thus, where a rent has been received and
paid for a long time, equity will enforce the payment, although no
deed can be produced to sustain the claim; or. the precise lands, out
of which it is payable, cannot, from confusion of boundaries, or other
accident, be now ascertained (/).
§ 88. In the cases of supposed lost instruments, where relief was
sought, it was indispensable, that the loss, if not admitted by the
answer of the defendant, should be established by competent and
satisfactory proofs {g). For the very foundation of the suit in equity
rested upon this most material fact. If, therefore, the plaintiff should
fail, at the hearing, to establish the loss of the instrument, or the
defendant should overcome the plaintiff's proofs by countervailing
testimony of its existence, the suit would be dismissed, and the
plaintiff remitted to the legal forum. But if the loss were sufficiently
established, when it was denied by the defendant's answer, the plaintiff
would be entitled to relief, although he might have other evidence,
competent and sufficient to establish the existence and contents of
(d) See Wright v. Lord Maidstone, 1 K. & J. 701.
(e) See Hansard v. Robinson, 7 B. & C. 90; East India Co. v. Boddam, 9 Ves.
468, 469 ; Davies v. Dodd, 4 Price, 176 ; Story on Bills, § 106 to 116, 243 to 245, 445.
(/) Duke of Leeds v. New Radnor, 2 Bro. C. C. 338, 518; Searle v. Cooke, 43
Ch. D. 519.
(g) East India Co. v. Boddam, 9 Ves. 466; Green v. Bailey, 15 Sim. 542; Bell v.
Alexander, 6 Hare, 543.
§ 87 — 89.] ACCIDENT. 45

the instrument, of which he might have availed himself in a court of

law. For if the jurisdiction once attached by the loss of the instrument,
a court of equity would not drive the party to the hazard*of a trial
at law, when the case was fit for its own interposition, and final action
upon a claim to sift the conscience of the party by a discovery. Under
the practice introduced by s. 24, sub-s. 7 of the Judicature Act, 1873
(36 & 87 Vict. c. 66), the jurisdiction could be exercised in any division
in which a lost or destroyed instrument was the foundation of the
action (h).
§ 89. We have thus far been considering cases of accident, founded
upon lost instruments. But there are many other cases of accident,
where courts of equity will grant relief. One of the earliest cases in
which they were accustomed to int-erfere, was, where by accident a
bond had not been paid at the appointed day, and it was subsequently
sued ; or where a part only had been paid at the day (i). This jurisdic-
tion was afterwards greatly enlarged in its operation, and applied to
all cases, where relief was sought against the penalty of a bond, upon
the ground that it was unjust for the party to avail himself of the
penalty, when an offer of full indemnity is tendered. The same
principle governs in the case of mortgages, where courts of equity con-
stantly allow a redemption, although there is a forfeiture at law (fe).
The learned author here added the expression of his opinion that, as
a general proposition, it was correct to say, " where an inequitable
loss or injury will otherwise fall upon a party from circumstances;
beyond his control, or from his own acts done in entire good faith,
and in the performance of a supposed duty, without negligence, courts-
of equity will interfere to grant him relief. ' ' The cases cited do not
warrant any pronouncement of this character, and there is ample
authority negativing any such proposition. Where a personal repre-
sentative paid a simple contract debt in ignorance and without notice
of the existence of a judgment debt, it was regarded as a devastavit in
a court of equity as well as in a court of law (l). If a person " in entire
good faith, and in the performance of a supposed duty ' ' of maintaining
the rights of himself or of the public, committed a trespass, not only
would a court of equity not ' ' interfere to grant him relief, ' ' but it would
grant an injunction to restrain him from repeating the tortious act (m).
There is a statutory power to order the return of a portion of the
premium in the event of the bankruptcy of the master under section 34
of the Bankruptcy Act, 1914 (4 & 5 Geo. V. c. 59), but there is no other
authority to do so except in the event of misconduct on the part of
the master, and the existence of an exceptional jurisdiction where the

(h) See King v. Zimmerman, L E.. 6 C. P. 466.

(i) Sloman v. Walter, 1 Bro. C. C. 418.
(fc) Seton V. Slade, 7 Ves. 273, 274; post, § 1313, 1314, 1316.
(0 Fuller V. Redman {No. 1), 26 Beav. 600.
(m) Robertson v. Hartopp, 43 Ch. D. 484; Bourke v. Davis, 44 Ch. D. 110.
46 EQUITY JURISPRUDENCE. [CH. IV.

master is a solicitor, and consequently an officer of the court, has been

disclaimed (o). So the right to a return of the premium paid upon
entering ilito partnership in the case of dissolution before the agreed
termination, depended upon the misconduct of the recipient, or
unfair dealing on his part, and this is in substance adopted in the
Partnership Act, 1890 (53 & 54 Vict. c. 39), s. 40 (p). So where a gift
is liable to be defeated by the terms of a gift over there can be no
relief where the legatee fails to perform the condition, although he is
ignorant of its terms, unless his conduct has been induced by the fraud
or overreaching of the party entitled under the terms of the gift
over (g).
§ 94. In the execution of mere powers, it has been said that a
court of equity will interpose, and grant relief on account of accident,
as well as of mistake. And this seems regularly true, where, by
accident, there is a defective execution of the power (r). And it is
now settled that a non-execution of a power will not be aided unless
the execution has been prevented by fraud (s).
§ 95. In regard to the defective execution of powers, resulting
either from accident or mistake, or both, and also in regard to agree-
ments to execute powers (which may generally be deemed a species
of defective execution), courts of equity do not in all cases interfere
and grant relief ; but grant it only in favour of persons, in a moral
■sense entitled to the same, and viewed with peculiar favour, and
where there are no opposing equities on the other side. Without
undertaking to enumerate all the qualifications of doctrine belonging
tio this intricate subject, it may be stated, that courts of equity, in
cases of defective execution of powers, will (unless there be some
countervailing quality) interpose, and grant relief in favour of pur-
.chasers, creditors, a wife, a legitimate child, and a charity ; but not in
favour of the donee of the power, or a husband, or grandchildren, or
remote relations, or strangers (including an illegitimate child)
generally (t).
§ 96. But in cases of defective execution of powers we are care-
fully to distinguish between powers which are created bj' private
parties, and those which are specially created by statute; as, for
instance, powers of tenants for life or in tail to make leases. What-
ever formalities are required by the statute must be punctually
complied with, where they constitute the apparent policy and object

(o) Craven v. Stubbins, 34 L. J. Ch. 126; Ferns v. Can, 28 Ch. D. 409.

(p) Atwood v. Maude, L. E. 3 Ch. 369; Wilson v. Johnstone, L. E. 16 Eq. 606;
Belfi-eld v. Bourne, [1894] 1 Ch. 521.
iq) In re Lewis; Lewis v. Lewis, [1904] 2 Ch. 656.
(r) Sugd. Powers, 530, 8th ed.
is) Toilet V. Toilet, 2 P. Wins. 489; In re Weekes' Settlement, [1897] 1 Ch. 289.
See Sugd. Powers, 574, 575, 8th ed.
(t) Sugd. Powers, 530, 8th ed.
§ 94—98.] ACCIDENT. 47

of the statute {u). In Shannon v. Bradstreet (x), Lord Eedeedale

held that a defective appointment of a tenant for life under a power
of leasing would be aided in equity as against the remainderman. This,
principle has been adopted and extended by the 12 & 13 Vict. c. 26,
ajid 13 & 14 Vict. c. 17, whereby, in the ease of leases granted in
exercise of powers (including statutory powers), the lease may be
validated in favour of lessee, and also of reversioners, notwithstanding
the non-observance or omission of some condition or restriction, or by
reason of any other deviation from the terms of such power (y).
§ 97. But as to the defects which may be remedied, they may
generally be said to be any which are not of the very essence or sub-
stance of the power. Thus, a defect by executing the power by will,
when it is required to be by a deed, or other instrument, inter vivos,
will be aided («). So, the want of a seal, or of witnesses, or of both (a),
and defects in the limitations of the property, estate, or interest (b),
will be aided. And, perhaps, the same rule will apply to defective
executions of powers by femes covert. But equity will not aid defects
which are of the very essence or substance of the power ; as, for
instance, if the power be executed without the consent of parties who
are required to consent to it (c). So, if it be required to be executed by
will, and it is executed by an irrevocable and absolute deed; for this
is apparently contrary to the settler's intention, a will being always
revocable during the life of the testator; whereas, a deed would not
be revocable unless expressly so stated in it (d).
§ 98. But a class of cases more common in their occurrence, as
well as more extensive in their operation, will be found, where trusts,
or powers in the nature of trusts, are required to be executed by the
trustee in favour of particular persons, and they fail of being so exe-
cuted by casualty or accident. In all such cases equity will interpose,
and grant suitable relief. Thus, for instance, if a testator should, by
his will, devise certain estates to A., with directions, that A. should,
at his death, distribute the same among his children and relations as
he should choose, and A. should die without making such a distribu-
tion, a court of equity would interfere, and make a suitable distribution ;
because it is not given to the devisee as a mere power, but as a trust
and duty which he ought to fulfil; and his omission so to do by
accident, or design, ought not to disappoint the objects of the bounty.

of Darlington v. Pulteney, Cowp. 267; In re Kirwan's Trusts, 25 Ch. D.

In Earl
373; (u) re Barnett; Dawes v. Ixer, [1908] 1 Ch. 402.
(x) 1 Sch. & L. 52.
(y) Exp. Cooper, In re L. d N. W. By., 34 L. J. Ch. 373.
(z) Toilet V. Toilet, 2 P. Wms. 489.
(a) Kennard v. Kennard, L. E. 6 Ch. 227.
(b) Daniel v. Arkwright, 2 H. & M. 95.
(c) Sympson v. Hornsby, Prec. Ch. 452.
(d) In re Jackson's Will, 13 Ch. D. 189; In re Flower; Edmonds v. Edmonds,
55 L. J. Ch. 200.
48 EQUITY JDEISPKUBENCE. [CH. IV.

It would be very difierent if the case were of a mere naked power,

and not a power coupled with a trust (e).
§ 99. Another class of cases is, where a testator cancels a former
will upon the presumption that a later will made by him is duly
executed when it is not. In such a case it has been decided that the
former will shall be set up against the heir in a court of equity, and
the devisee be relieved there, upon the ground of accident (/). But
it is doubtful if this principle would be followed at the present day,
at any rate to the full extent (g).
§ 100. These may suffice, as illustrations of the general doctrine of
relief in equity in eases of accident. They all proceed upon the same
common foundation, that there is no adequate or complete remedy at
law under all the circumstances ; that the party has rights which ought
to be protected and enforced ; ot that he will sustain some injury, loss,
or detriment, which it would be inequitable to throw upon him.
§ 101. And this leads us, naturally, to the consideration of those
cases of accident, in which no relief will be granted by epurts of
equity. In the first place, in matters of positive contract and obliga-
tion, created by the party (for it is different in obligations or duties
created by law) (k), it is no ground for the interference of equity, that
the party has been prevented from fulfilling them by accident; or,
that he has been in no default; or, that he has been prevented by
accident from deriving the full benefit of the contract on his own
side {i). Thus, if a lessee on a demise covenants to keep the demised
estate in repair, he will be bound in equity as well as in law to do so,
notwithstanding any inevitable accident or necessity by which the
premises are destroyed or injured; as if they are burnt by lightning,
or destroyed by public enemies, or by any other accident, or by over-
whelming force. The reason is, that he might have provided for such
contingencies by his contract, if he had so chosen; and the law will
presume the intentional general liability, where he has made no
exception (k).
§ 102. And the same rule applies in like cases, where there is an
express covenant (without any proper exception) to pay rent during
the term. It must be paid, notwithstanding the premises are acci-
dentally burnt down during the term. And this is equally true as to
the rent, although the tenant has covenanted to repair, except in
cases of casualties by fire, and the premises are burnt down by such

(e) Harding v. Glyn, 1 Atk. 469, and note by Saunders; Brown v. Higgs, 4 Ves.
709; 5 "Ves. 495; 8 Ves. 561.
(/) Onions v. Tyrer, 1 P. Will. 343.
(g) See Woodward v. Goulstone, 11 App. Gas. 469.
ill) Paradine v. Jane, Aleyn 27. See also Story on Bailments, § 25, 35, 36.
(t) Berrisford v. Done, 1 Vern. 98; Paine v. Miller, 6 Ves. 349; Rayner v.
Preston, 18 Ch. D. 1.
(k) Pym V. Blackburn, 3 Ves. 34.
§ 99—108.] ACCIDENT. 49

casualty; for, Expressio unius est exclusio alterius (I). In all eases of
this sort of accidental loss by fire, the rule prevails, Res pent domino;
and, therefore, the tenant and landlord suffer according to their pro-
portions of interest in the property burnt ; the tenant during the
term, and the landlord for the residue.
§ 103. And the like doctrine applies to other eases of contract,
where the pafties stand equally innocent (m). Thus, for instance, if
there is a contract for a sale at a price to be fixed by an award of
third parties, one of whom dies before the award is made, the contract
fails, and equity will not enforce it upon the ground of accident; for
there is no equity to substitute a different method of ascertaining the
value (n).
§ 104. So, if A. should covenant with B. to convey an estate for
two lives in a church lease to B. by a certain day, and one of the lives
should afterwards drop in before the day appointed for the conveyance,
B. would be compelled to stand by his contract, and to accept the
conveyance; for neither party is in any fault; and B., by the contract,
took upon himself the risk by not providing for the accident (o). So,
if an estate should be sold by A. to B., for a certain sum of money
and an annuity, and thte agreement should be fair, equity will not
grant relief, although the party should die before the payment of any
annuity (p).
§ 105. Courts of equity will not grant rehef to a party upon the
ground of accident where the accident has arisen from his own gross
negligence or fault; for in such a case the party has nt> claim to come
into a court of justice to ask to be saved from his own culpable mis-
conduct. And, on this account, in general, a party coming into a court
of equity is bound to show that his title to relief is unmixed with any
gross misconduct or negligence of himself or his agents (g).
§ 106. In the next place, no relief will be granted on account of
accident, where the other party stands upon an equal equity, and is
entitled to equal protection. Upon this ground, also, equity will not
interfere to give effect to an imperfect will against an innocent heir-
at-law; for, as heir, he is entitled to protection, whatever might have
been the intent of the testator, unless his title is taken away according
to the rules of law.
§ 108. And, generally, against a bond fide purchaser, for a valuable
consideration, without notice, a court of equity will not interfere on
the ground of accident; for, in the view of a court of equity, such a
purchaser has as high a claim to assistance and protection as any
(0 Holtzapffell v. Baker, 18 Vee. 115.
(m) Com. Dig. Chancery, 3 F. 5.
(n) Milnes v. Gery, 14 Ves. 400; Scott v. Avery, 5 H. L. C. 811.
(o) White V. Nutt, 1 P. Wms. 61.
(p) Mortimer v. Capper, 1 Bro. C. C. 156; Kenney v. Wrexham, 6 Mad. 355.
(q) See Counter v. Macpherson, 5 Moo. P. C. 83; In re Home; Wilson v. Cox
Sinclair, [1905] 1 Ch. 76.
E.J. 4
50 EQUITY JURISPRUDENCE. [CH. IV.

other person can have. Principles of an analogous nature seem to

have governed in many of the cases in which the want of a surrender
of copyhold has been supplied by courts of equity.
§ 109. Perhaps, upon a general survey of the grounds of equitable
jurisdiction in cases of accident, it will be found that they resolve
themselves into the following: that the party seeking relief has a
clear right, which cannot otherwise be enforced in a suitable manner;
or, that he will be subjected to an unjustifiable loss, without any
blame or misconduct on his own part; or, that he has a superior
equity to the party from whom he seeks the relief.
 § 109 111.] MISTAKE. 51

CHAPTER V.
MISTAKE.

§ 110. We may next pass to the consideration of the jurisdiction,

of the courts of equity, founded upon the ground of mistake. This
is sometimes the result of accident, in its large sense; but, as contra-
distinguished from it, it is some unintentional act, or omission, or
error, arising from ignorance, surprise, imposition, or misplaced con-
fidence. Mistakes are ordinarily divided into two sorts : mistakes in
matter of law, and mistakes in matter of fact.
§ 111. And first, in regard to mistakes in matter of law. It is a
well-known maxim, that ignorance of law will not furnish an excuse
for any person, either for a breach, or for an omission of duty;
Ignorantia legis neminem excused; and this maxim is generally as
much respected in equity as in law (a), but in matters of purely equit-
able jurisdiction, the rule is not so strictly applied, for there the line
has not been drawn so strictly between mistakes of law and mistakes
of fact (b). It probably belongs to some of the earliest rudiments of
English jurisprudence ; and is certainly so old, as to have been long
laid up among its settled elements. We find it Stated with great clear-
ness and force in the Doctor and Student, where it is affirmed, that
every man is bound at his peril to take knowledge what the law of the
realm is; as well the law made by statute, as the common law (c).
The probable ground for the maxim is that suggested by Lord Ellen-
borough, that otherwise there is no saying to what extent the excuse
of ignorance might not be carried (d). Indeed, one of the remarkable
tendencies of the English common law upon all subjects of a general
nature is, to aim at practical good, rather than theoretical perfection ;
and to seek less to administer justice in all possible cases than to^
furnish rules which shall secure it in the common course of human
business. If, upon the mere ground of ignorance of the law, men were
admitted to overhaul or extinguish their most solemn contracts, and
especially those which have been executed by a complete performance,

(o) Goodman v. Sayers, 2 J. & W. 263; Bate v. Hooper, 5 De G. M. & G. 338;

In re Sharp ; Bickett v. Bickett, [1906] 1 Ch. 793.
(b) Dibbs V. Goren, 11 Beav. 483; Daniell v. Sinclair, 6 App. Cas. 181.
(c) Doct. & Stud. Dial. 2, ch. 46.
(d) Bilbie v. Lumley, 2 East 469, 472.
52 EQUITY JURISPRUDENCE. [CH. V.

there would be much embarrassing litigation in all judicial tribunals,

and no small danger of injustice, from the nature and difficulty of the
proper proofs. The presumption is, that every person is acquainted
with his own rights, provided he has had a reasonable opportunity to
know them. And nothing can be more liable to abuse, than to permit
a person to reclaim his property upon the mere pretence, that at the
time of parting with it, he was ignorant of the law acting on his title.
Mr. Fonblanque has accordingly laid it down as a general proposition,
that in courts of equity ignorance of the law shall not affect agree-
ments, nor excuse from the legal consequences of particular acts (e).
And he is fully borne out by authorities (/). The rule is, however,
restricted to matters of general law, and not to matters of private
right (g). The ordinary rule as between litigant parties, that money
paid under a mistake of law cannot be recovered, does not apply to a
payment made under mistake to the trustee in a bankruptcy liquidator
or other officer of the court (h).
112. One of the most common cases, put to illustrate the doctrine
is, where two are bound by a bond, and the obligee releases one,
supposing, by a mistake of law, that the other will remain bound.
In such a case the obligee will not be relieved in equity upon the
mere ground of his mistake of the law ; for there is nothing inequitable
in the co-obligor's availing himself of his legal rights, nor of the other
obligor's insisting upon his release, if they have both acted bona
fide, and there has been no fraud or imposition on their side to
procure the release (f). So, where a party had a power of appointment,
and executed it absolutely, without introducing a power of revocation,
upon a mistake of law, that being a voluntary deed, it was revocable,
relief was in like manner denied (fe). If the power of revocation had
been intended to be put into the appointment, and omitted by a
mistake in the draft, it would have been a very different matt-er (I).
§ 113. The same principle applies to agreements entered into in
good faith, but under a mistake of the law. They are generally held
valid and obligatory upon the parties {ni). Thus, where a clause con-
taining a power of redemption, in a deed granting an annuity, after

(e) 1 Fonbl. Bq. B. 1, ch. 2, § 7, note (b) ; 1 Mad. Ch. Pr. 60; Eep. 364; 1 Ves.
127.
(/) Goodman v. Sayers, 2 J. & W. 263; Bate v. Hooper, S, De G. M. & G. 338;
In re Sharp; Rickett v. Rickett, [1906] 1 Ch. 793.
(g) Cooper v. Phibbs, L. R. 2 H. L. 170; and of. Fountaine v. Carmarthen Ry.,
Jj. E. 5 Eq. 316, with In re County Life Assurance, L. K. 5 Ch. 288.
(h) Ex parte Simmonds, In re Camiac, 16 Q. B. D. 308; In re Brown; Dixon v.
Brown, 32 Ch. D. 597; In re Opera, Limited (1891), 2 Ch. 154.
(i) Com. Dig. Chancery, 3 F. 8; Harmon v. Cannon, 4 "Vin. Abridg. 387, pi. 3;
Cann v. Gann, 1 P. Will. 723. And see Ex parte Gifjord, 6 Ves. 805, as explained
in Kearsley v. Cole, 16 M. & W. 128.
(k) Worrall v. Jacob, 3 Meriv. 256.
(/) See Wright v. .Goff, 22 Beav. 207 ; Daniel v. Arkwright, 2 H. & M. 95.
(m) Powell V. Smith, L. E. 14 Eq. 85.
§ 112—116.] MISTAKE. 53

it had been agreed to, was deliberately excluded by the parties upon
a mistake of law, that it would render the contract usurious ; the
Court of Chancery refused to restore the clause, or to grant relief (n).
Lord Eldon, in commenting on this case, said that it went upon an
undisputable clear principle, that the parties did not mean to insert
in the agreement a provision for redemption, because they were all
of one mind that it would be ruinous. And they desired the court
to do, not what they intended, for the insertion of that provision was
directly contrary to their intention; but they desired to be put in
the same situation, as if they had been better informed, and conse-
quently had a contrary intention (o). So, where a devise was given
upon condition that a woman should marry with the consent of her
parents, and she married without such consent, whereby a forfeiture
accrued to other parties, who afterwards executed an agreement re-
specting the estate, whereby the forfeiture was in effect waived, the
court refused any relief, although it was contended, that it was upon
a mistake of law. Lord Hardwicke, on that occasion, said : "It is
said, they [the parties] might know the fact, and yet not know the
consequence of law. But if parties are entering into an agreement,
and the very will, out of which the forfeiture arose, is lying before
them and their counsel, while the drafts are preparing, the parties
shall be supposed to be acquainted with the consequence of law as to
this point; and shall not be relieved on a pretence of being surprised,
with such strong circumstances attending it" (p).
§ 116. In the preceding section (q) it has been stated, that agree-
ments made and acts done under a mistake of law are (if not otherwise
objectionable) generally held valid and obligatory. The doctrine is
laid down in this guarded and qualified manner, because it is not to
be disguised, that there are authorities, which are supposed to con-
tradict it, or at least to form exceptions to it. Indeed, in one case,
Lord King is reported to have said, that the maxim of law, Igno-
rrnitia juris non excusat, was, in regard to the public, that ignorance
cannot be pleaded in excuse of crimes; but that it did not hold in
civil cases (r). This broad statement is utterly irreconcilable with the
well-established doctrine both of courts of law and courts of equity, and
the decision itself has been overruled long since («). The general rule
certainly is that a mistake of the law is not a~ ground for reforming a
deed, founded on such a mistake. And whatever exceptions there may
be to this rule, they are not only few in number, but they will be found

(«.) Imham v. Child, 1 Bro. C. C. 92.

(o) Marquis of Townsend v. Stangroom, 6 Ves. 332.
(p) Pullen V. Ready, 2 Atk. 587, 591.
(3) Ante, § 113.
(r) Lansdowne v. Lansdowne, Moseley 364; s.c. 2 Jac. & W. 205.
(s) Stewart v. Stewart, 9 CI. & F. 911.
54 EQUITY JURISPKUDENCE. [CH V.

to have something peculiar in their character, and to involve other

elements of decisions.
§ 117. In illustration of this remark, we may refer to a case, com-
monly cited as an exception to the general rule. In that case, the
daughter of a freeman of London had a legacy of £10,000, left by her
father's will upon condition that she should release her orphanage
share; and, after her father's death, she accepted the l6gacy, and
executed the release. Upon a bill, afterwards filed by her against
her brother, who was the executor, the release was set aside, and she
was restored to her orphanage share, which amounted to £40,000.
Lord Chancellor Talbot, in making the decree, admitted that there
was no fraud in her brother, who had told her that she was entitled
to her election to take an account of her father's personal estate, and
to claim her orphanage share; but she chose to accept the legacy.
His lordship said: " It is true, it appears, the son [the defendant] did
inform the daughter, that she was bound either to waive the legacy
given by the father, or release her right to the custom. And, so far,
she might know that it was in her power to accept either the legacy
or orphanage part. But I hardly think she knew she was entitled
to have an account taken of the personal estate of her father; and
first to know, what her orphanage part did amount to; and that when
she should be fully apprised of this, then, and not till then, she was
to make her election, which very much alters the case. For, prob-
ably, she would not have elected to accept her legacy, had she known,
or been informed, what her orphanage part amounted unto, before
she waived it and accepted the legacy " (f).
§ 118. It is apparent, from this language, that the decision of his
lordship rested upon mixed considerations, and not exclusively upon
mere mistake or ignorance of the law by the daughter. There was
no fraud in her brother; but it is' clear that she relied upon her
brother for knowledge of her rights and duties in point of law ; and
he, however innocently, omitted to state some most material legal
considerations, affecting her rights and duty. She acted under this
misplaced confidence, and was misled by it; which of itself consti-
tuted no inconsiderable ground for relief. But a far more weighty
reason is, that she acted under ignorance of facts; for she neither
knew nor had any means of knowing what her orphanage share was
when she made her election. It was, therefore, a clear case of sur-
prise in matters of fact, as well as of law. No ultimate decision was
made in the case, it being compromised by the parties.
§ 119. The case of Evans v. Llewellyn (w) is exclusively put in the
decree upon the ground of surprise, " the conveyance having been
obtained and executed by the plaintiffs improvidently. " It was

(t) Pusey v. Desboutirie, 3 P. Will. 315.

(u) 2 Bro. C. C. 150 ; 1 Cox 333.
§ 117—121.] MISTAKE. 55

admitted that there was no sufficient proof of fraud or imposition

practised upon the plaintiff (though the facts might well lead to some
doubt on that point) ; and the plaintiff was certainly not ignorant of
any of the facts which respected his rights. The Master of the EoUs
(Sir Lloyd Kenyon, afterwards Lord Kenyon) said: " The party was
taken by surprise. He had not sufficient time to act with caution;
and, therefore, though there was no actual fraud, it is something like
fraud, for an undue advantage was taken of his situation. • I am of
opinion that the party was not competent to protect himself; and
therefore this court is bound to afford him such protection; and
therefore these deeds ought to be set aside, as improvidently obtained.
If the plaintiff had, in fact, gone back, I should have rescinded the
transaction " {x).
§ 120. The most general class of cases relied on as exceptions to
the rule is that class where the party has acted under a misconcep-
tion, or ignorance of his title to the property, respecting which some
agreement has been made, or conveyance executed. So far as igno-
rance in point of fact of any title in the party is an ingredient in
any of these eases, they fall under a very different consideration (y).
But so far as the party, knowing all the facts, has acted upon a
mistake of the law, applicable to his title, they are proper to be
discussed in this place. Upon a close survey many, although not all,
of the cases, in the latter predicament, will be found to have turned,
not upon the consideration of a mere mistake of law, stripped of all
other circumstances, but upon an admixture of other ingredients,
going to establish misrepresentation, imposition, undue confidence,
undue influence, mental imbecility, or that sort of. surprise, which
equity uniformly regards as a just foundation for relief (s).
§ 121. It has been laid down, as unquestionable doctrine, that if a
party, acting in ignorance of a plain and settled principle of law, is
induced to give up a portion of his indisputable property to another,
under the name of a compromise, a court: of equity will relieve him
from the effect of his mistake. But, where a doubtful question arises,
such as a question respecting the true construction of a will, a
different rule prevails; and a compromise fairly entered into, with
due deliberation, will be upheld in a court of equity, as reasonable in
itself, to terminate the differences by dividing the stake, and as sup-
ported by principles of public policy (a).

(x) 1 Cox 340, 341. S. P. Fry v. Lane, 40 Ch. D. 312 ; James v. Kerr, 40 Ch. D.
449.
iy) See Ramsden v. Hylton, 2 Ves. Sen. 304 ; Gann v. Cann, 1 P. Will. 727 ;
Farewell v. Coker, cited 2 Meriv. 269; McCarthy v. Decaix, 2 Euss. & Myl. 614. See
also Cocking v. Pratt, 1 Ves. Sen. 400.
(z) See Willan v. Willan, 16 Ves. 82.
(a) Naylor v. Winch, 1 Sim. & St. 565. See Stapilton v. Stapilton, 1 Atk. 2;
Dunnage v. White, 1 Swanst'. 137 ; Gordon v. Gordon, 3 Swanat. 400 ; Smith v.
Piricombe, 3 Mac. & G. 653.
56 EQUITY JURISPRUDENCE. [OH. V.

§ 122. In regard to the first proposition, the terms in which it is

expressed have the material quahfication, that the party has, upon
plain and settled principles of law, a clear title, and yet is in gross
ignorance that he possesses any title whatsoever. Thus, if the eldest
son, who is heir-at-law of all the undisposed of fee-simple estates of
his ancestor, should, in gross ignorance of the law, knowing, however,
that he was the eldest son, agree to divide the estates with a younger
brother; such an agreement, executed or unexecuted, would be held,
in a court of equity, invalid, and relief would be accordingly granted.
In a case thus strongly put, there may be ingredients, which would
give a colouring to the case, independent of the mere ignorance of the
law. If the younger son were not equally ignorant, there would be
much ground to suspect fraud, imposition, misrepresentation, or undue
influence on his part (b). And if he were equally ignorant, the case
would exhibit such a gross mistake of rights, as would lead to the
conclusion of such great mental imbecility, or surprise, or blind .and
credulous confidence, on the part of the eldest son, as might fairly
entitle him to the protection of a court of equity upon general prin-
ciples. Indeed, where the party acts upon the misapprehension that
he has no title at all in the property, it seems to involve in some
measure a mistake of fact; that is, of the fact of ownership, arising
from a mistake of law. A party can hardly be said to intend to part
with a right or title, of whose existence he is wholly ignorant; and if
he does not so intend, a court of equity will, in ordinary cases, relieve
him from the legal effect of instruments which surrender such unsus-
pected right or title (c).
§ 124. In Bingham v. Bingham (d), there was a devise by A. to his
eldest son and heir B., in fee tail, limiting the reversion to his own
right heirs. B. left no issue, and devised the estate to the plaintifi.
The defendant had brought an ejectment for the estate under the
will; and the plaintiff purchased the estate of the defendant for £80,
under a mistake of law, that the devise to him, by B., could not
convey the fee. Having paid the purchase-money, he now brought
his bill to have it refunded, alleging in the bill that he was ignorant
of the law, and persuaded by the defendant and his scrivener and
conveyancer, that B. had no power to make the devise. The Master
of the Eolls, sitting for Lord Hardwicke, granted the relief, saying,
that, though no fraud appeared, and the defendant apprehended he
had a right, yet there was a plain mistake, such as the court was
warranted to relieve against. This case has been the subject of con-
troversy as to the actual ground of the decision. The report itself,
and Lord Cottenham, referred it to the ground of mistake (e), as did

(b) Leonard v. Leonard, 2 Ball & B. 182.

, (c) Ramsden v. Hylton, 2 Ves. Sen. 304; Bullock v. Dowries, 9 H. L. C 1
yd) 1 Ves. Sen. 126; Belt's Sup. 79.
(e) Stewart v. Stewart, 6 CI. & F. at p. 968.
 § 122—127.] MISTAKE. 57

Lord Gran worth (/). It may also be referred to the ground of fraud (g),
as defined in the courts of equity.
§ 124a-. Bingham v. Bingham was expressly approved and followed
in Cooper v. Phibbs (h), decided by the House of Lords in 1867. The
facts were as follows: — The petdtoner agreed to become tenant to the
respondent Phibbs of a salmon fishery for three years, but he after-
wards discovered that he was himself the owner of the salmon fishery.
He claimed a declaration that the agreement was consequently void,
as being made under mistake, and it was held by the House of Lords
that he was entitled to the declaration prayed for. It should be
observed that there was an additional element in the case, from the
fact that the petitioner's uncle, for whose daughters Phibbs was
trustee, had told him that the salmon fishery belonged to him, i.e., the
uncle.
§ 126. The distinction between cases of mistake of a plain and
settled principle of law, and cases of mistake of a principle of law,
not plain to persons generally, but which is yet constructively certain,
as a foundation of title, is not of itself very intelligible, or, practically
speaking, very easy eft application, considered as an independent
element of decision. In contemplation of law, all its rules and prin-
ciples are deemed certain, although they have not, as yet, been
recognised by public adjudications. This doctrine proceeds upon the
theoretical ground, that Id certum est quod certum, reddi potest;
and that decisions do not make the law, but only promulgate it.
Besides; what are to be deemed plain and settled principles ? Are
they such as have been long and uniformly established by adjudica-
tions only ? Or is a single decision sufficient ? What degree of
clearness constitutes the line of demarcation ? If there have been'
decisions different ways at different times, which is to prevail ? If a
majority of the profession hold one doctrine, and a minority another,
is the rule to be deemed doubtful, or is it to be deemed certain ?
§ 127. Take the case commonly put on this head, of the construc-
tion of a will. Every person is presumed to know the law ; and
though opinions may differ upon the construction of the will before
an adjudication is made; yet, when it is made, it is supposed always
to have been certain. It may have been a question at the bar,
whether a devise was an estate for life, or in tail, or in fee simple.
But when the court has once decided it to be the one or the other,
the title is always supposed to have been fixed and certain in the party
from the beginning. It will furnish a sufficient title to maintain a
bill for the specific performance of a contract of sale of that title (i).
if) Cooper V. Phibbs, L. E. 2 H. L., at p. 164.
(3) Hitchcock V. Giddings, Dan. 1, s.c. 4 Price, 136.
Ih) L. R. 2 H. L. 150. See also Earl Beauchamp v. Winn, L. B. 6 H. L. 223;
Daniell v. Sinclair, 6 App. Cas. 181.
(i) Beidley v. CaHer, L. E. 4 Ch. 230; Bell v. Holtby, L. E. 15 Eq. 178; Osborne
to Rowlatt, 13 Ch. D. 774.
58 EQUITY JURISPEDDENCE. [CH. V.

§ 128. Where there is a plain and established doctrine on the

subject, so generally known, and of such constant occurrence, as to be
understood by the community at large as a rule of property, such as
the common canons of descent; there, a mistake in ignorance of the
law, and of title founded on it., may well give rise to a presumption
that there has been some undue influence, imposition, mental imbe-
cility, surprise, or confidence abused. But in such cases the mistake
of the law is not the foundation of the relief; but it is the medium of
proof to establish some other proper ground of relief (k).
§ 129. Lord Eldon, in a case of a family agreement, suggested
that there might be a distinction between cases, where there is a
doubt raised between the parties as to their rights, and a compromis..-
is made upon the footing of that doubt, and cases, where the parties
act upon a supposition of right in one of the parties without :% doubt
upon it, under a mistake of law. The former might be held obligatory,
when the latter ought not to be (l). But his lordship admitted that
the doctrine attributed to Lord Macclesfield was otherwise, denying
the distinction, and giving equal validity to agreements entered into
upon a supposition of a right, and of a doubtful right. And in a sub-
sequent case Lord Eldon based the validity of a compromise upon
the fact that " the parties dealt with equal knowledge of the subject,"
by which word he seems to have meant circumstances (m).
§ 130. There may be a solid ground for a distinction between
cases, where a party acts or agrees in ignorance of any title in him,
or upon the supposition of a clear title in another, and cases where
there is a doubt or controversy or litigation between parties as to
their respective rights. In the former cases (as has been already
suggested) the party seems to labour in some sort under a mistake of
fact as well as of law. He supposes, as a matter of fact, that he has
no title, and that the other party has a title to the property. As
parties can only be treated as dealing with ascertained specific ques-
tions (n), an intention cannot be imputed to him to release or
surrender his title, if the act or agreement proceeds upon the supposi-
tion that he has none. Lord Macclesfield is reported to have said, that
if the party releasing is ignorant of his right to the estate, or if his
right is concealed from him by the person to whom the release is
made, there would be good reasons for setting aside the release (o).
§ 131. The whole doctrine of the validity of compromises of

(k) See Sturge v. Sturge, 12 Beav. 229; Curson v. Bellworthy, 3 H. L. C. 742;

Fry V. Lane, 40 Ch. D. 312.
(l) Stockley v. Stockley, 1 V. & B. 31.
Oh) Hotchis v. Dicksm, 2 Bligh., at p. 848. See also Bellamy v. Sabine, 2
Phill. 426; Cloutte v. Storey, 1911, 1 Ch. 18.
(n) Cloutte V. Storey, [1911] 1 Ch. 18.
(o) Cann v. Cann, 1 P. Will. 727.
§ 128—132.] MISTAKE. 59

doubtful rights rests on this foundation (p). If such compromises are

otherwise unobjectionable, they will be binding, and the right will
not prevail against the agreement of the parties ; for the right must
always be on one side or the other, and there would be an end of
compromises, if they might be overthrown upon any subsequent
ascertainment of rights contorary thereto (q). If, therefore, a com-
promise of a doubtful right is fairly made between parties, its validity
cannot depend upon any future adjudication of that right (r). And
where compromises of this sort are fairly entered into, whether the
uncertainty rests upon a doubt of fact, or a doubt in point of law, if
both parties are in the same ignorance, the compromise is equally
binding, and cannot be affected by any subsequent investigation and
result (s). But if the parties are not mutually ignorant, the case
admits of a very different consideration, whether the ignorance be of a
matter of fact or of law (t). It has been emphatically said, that no
man can doubt that the Court of Chancery will never hold parties,
acting upon their rights, to be bound, unless they act with full know-
ledge of all the doubts and difficulties that do arise. But if parties will,
with full knowledge, act upon them, though it turns out that one gains
an advantage from a mistake in point of law, yet if the agreement was
reasonable and fair at the time, it shall be binding (m). And transac-
tions are not, in the eye of a court of equity, to be treated as binding
even as family arrangements, where the doubts existing, as to the
rights alleged to be compromised, are not presented to the mind of
the party interested (a;).
§ 132. There are cases of family compromises, where, upon prin-
ciples of policy, for the honour or peace of families, the doctrine
sustaining compromises has been carried further. And it has beert
truly remarked, that in such family arrangements the Court of Chan-
cery has administered an equity, which is not applied to agreements •
generally (y). Such compromises, fairly and reasonably made, to save
the honour of a family, as in case of suspected illegitimacy, to
prevent family disputes and family forfeitures, are upheld with a
strong hand; and are binding, when in eases between mere strangers
the like agreements would not be enforced (a). Thus, it has been
(p) See the dictum of Lord Hardwicke, in Brown v. Pring, 1 Ves. 407, 408, as
to compromises made by parties, with their eyes open and rightly informed.
(q) Cann v. Cann, 1 P. Will. 727; Stapilton v. StapilUm, 1 Atk. 10; Naylor v.
Winch, 1 Sim. & Stu. 556; Goodman v. Sayers, 2 Jac. & Walk. 263. See Neale v.
Neale, 1 Keen, 672.
(t) Lucy's Case, 4 De G. M. &.G. 356; Miles v. New Zealand Alford Estate Co.y
32 Ch. D. 266.
(s) Lucy's Case, 4 De G. M. & G. 356; Lord Bellhaven's Case, 3 De G. J. & S,
41; Dixon v. Evans, L. E. 5 H. L. 606.
(t) Gordon v. Gordon, 3 Swanst. 400; Smith v. Pincombe, 3 Mac. & G. 653.
(o) Gibbons v. Gaunt, 4 Ves. 849.
(s) Lawton v. Campion, 18 Beav. 87.
{y) Stockley v. Stockley, 1 V. & B. 29 ; Bellamy v. Sabine, 2 Phill. 425.
(z) Stapiltpn v. Stapilton, 1 Atk. 10; Persse v. Persse, 7 CI. & F. 279.
60 EQUITY JURISPRUDENCE. [CH. V.

said, that if, on the death of a person, seised in fee, a dispute arises,
who is heir; and there is room for a rational doubt, as to that fact,
and the parties deal with each other openly and fairly, investigating
the subject for themselves, and each communicating to the other all
that he knows, and is informed of, and at length they agree to dis-
tribute the property, under the notion that the elder claimant is
illegitimate, although it turns out afterwards that he is legitimate;
there, the court will not disturb such an arrangement, merely
because the fact of legitimacy is subsequently established (a). Yet,
in such a case, the party acts under a mistake of fact. In cases of
ignorance of title, upon a plain mistake of the law, there seems little
room to distinguish between family compromises and others.
§ 133. And where there is a mixture of mistake of title, gross per-
sonal ignorance, liability to imposition, habitual intoxication, and
want of professional advice, there has been manifested a strong dis-
inclination ofcourts of equity to sustain even family settlements. It
was upon this sort of mixed ground that it has been held that a deed
executed by the members of a family to determine their interest
•under the will and partial intestacy of an ancestor, ought not to be
enforced. It appeared on the face of the deed, that the parties did
not understand their rights, or the nature of the transaction; and
that the heir surrendered an unimpeachable title without considera-
tion. Evidence was also given of his gross ignorance, habitual
intoxication, and want of professional advice. But there was no
sufficient proof of fraud or undue influence; and there had been an
•acquiescence of five years (b).
§ 134. Cases of surprise, mixed up with a mistake of law, stand
upon a ground peculiar to themselves, and independent of the general
doctrine. In such cases the agreements or acts are unadvised, and
improvident, and without due deliberation; and, therefore, they are
held invalid, upon the common principle adopted by courts of equity,
to protect those who are unable to protect themselves, and of whom
an undue advantage is taken (c). Where the surprise is mutual, there
is of course a still stronger ground to interfere ; for neither party has
intended what has been done. They have misunderstood the effect
of their own agreements or acts; or have presupposed some facts or
rights existing, as the basis of their proceedings, which in truth did
not exist. Contracts made in mutual error, under circumstances
material to their character and consequences, seem, upon general
principles, invalid (d). Non videntur, qui errant, consentire, is a rule
of the civil law (e) ; and it is founded in common sense and common

(0) Gordon v. Gordon, 3 S'wanst. 463, 476.

(b) Dunnage v. White, 1 Swanst. 137.
(c) Sturge v. Sturge, 12 Beav. 229. See ante, § 119.
(d) Mortimer v. Shortall, 2 Dr. & War. 363; May v. Piatt, 1900, 1 Ch. 616.
(e) Dig. Lib. 50, tit. 17, f. 116, § 2.
§ 133—137.] MISTAKE. 61

justice. But in its application it is material to distinguish between

error in circumstiances which do not influence the contract, and error
in circumstances which induce the contract.
§ 135. There are also cases of peculiar trust, and confidence, and
relation between the parties, which give rise to a qualification of the
general doctrine. Thus, where a mortgagor had mortgaged an estate
to a mortgagee, who was his attorney, and in settling an account with
the latter, he had allowed him a poundage for having received the
rents of the estate, in ignorance of the law that a mortgagee was not
entitled to such an allowance, which was, professionally known to the
attorney; it was held that the allowance should be set aside. But the
master of the rolls, upon that occasion, put the case upon the peculiar
relation between the parties; and the duty of the attorney to have
made known the law to his client, the mortgagor. He said that he
did not enter into the distinction between allowances in accounts
from ignorance of law, and allowances from ignorance of fact; that
he did not mean to say that ignorance of law will generally open an
account. But that, the parties standing in this relation to each other,
he would not hold the mortgagor, acting in ignorance of his rights, to
have given a binding assent (/).
§ 136. There are, also, some other cases in which relief has been
granted in equity, apparently upon the ground of mistake of law.
But they will be found, upon examination, rather to be cases of
defective execution of the intent of the parties from ignorance of law
as to the proper mode of framing the instrument. Thus, where a
husbsmd, upon his marriage, entered into a bond to his wife, without
the intervention of trustees, to leave her a sum of money if she should
survive him; the bond, although released at law by the marriage,
was held good as an agreement in equity, entitling the wife to satis-
faction out of the husband's assets (g). And so, e contra, where a wife
before marriage executed a bond to her husband, to convey all her
lands to him in fee, it was upheld in favour of the husband, after
the marriage, as an agreement defectively executed, to secure to the
husband the land as her portion (h).
§ 137. We have thus gone over the principal cases which are
supposed to contain contradictions of, or exceptions to, the general
rule, that ignorance of the law, with a full knowledge of the facts,
furnishes no ground to rescind agreements or to set aside solemn acts
of the parties. Without undertaking to assert that there are none
of these cases which are inconsistent with the rule, it may be affirmed
that the real exceptions to it are very few, and generally stand upon

(/) Langstaffe v. Fenwick, 10 Ves. 405; S. P. Cockburn v. Edwards, 18 Ch. D.

449.
ig) Acton v. Pearce, Prec. Ch. 237 ; Fitzgerald v. Fitzgerald, L. E. 2 P. C. 83; In
re Breton's Estate, Breton v. Woolven, 17 Ch. D. 416.
(h) Cannel v. Buckle, 2 P. Will. 243.
 62 EQUITY JDKISPEUDENCE. [CH. V.

some very urgent pressure of circumstances. The rule prevails in all

cases of compromises of doubtful, and perhaps in all cases of doubted
rights, and especially in all cases of family arrangements (f). It is
relaxed in cases where there is a total ignorance of title, founded in
the mistake of a plain and settled principle of law, and in cases of
imposition, misrepresentation, undue influence, misplaced confidence,
and surprise (fe).
§ 138. It is a matter of regret that, in the present state of the law,
it is not practicable to present, in any more definite form, the doctrine
respecting the effect of mistakes of law, or to clear the subject from
some obscurities and uncertainties which still surround it. But it may
be safely affirmed, upon the highest authority, as a well-established
doctrine, that a mere naked mistake of law, unattended with any
such special circumstances as have been above suggested, will furnish
no ground for the interposition of a court of equity; and the present
disposition of courts of equity is to narrow rather than to enlarge,
the operation of exceptions (l).
§ 138o. The jurisdiction exercised by the court as a court of equity
is still in the same irritating condition of doubt. In the common law
action for money had and received, to which equitable principles were
always applied, the party paying might recover against the recipient
if the payment were made in ignorance of the facts, notwithstanding
means of knowledge existed, or made in forgetfulness of facts (rw).
§ 139. Where a bond fide purchaser, for a valuable consideration,
without notice, is concerned, equity will not interfere to grant relief
in favour of a party, although he has acted in ignorance of his title
upon a mistake of law; for in such a case the purchaser has, at least,
an equal right to protection with the party labouring under the
mistake (n.). And where the equities are equal, the court withholds
itself from any interference between the parties (o).
§ 140. In regard to the other class of mistakes, that is, mistakes of
iact, there is not so much difficulty.. The general rule is, that an
act done, or contract made, under a mistake or ignorance of a

(t) Stewart v. Stewart, 6 CI. & F. 911; Persse v. Persse, 7 CI. & F. 279.
(A;) Stewart v. Stewart, 6 CI. & F. 911 ; Daniell v. Sinclair, 6 App. Oaa. 181.
(I) Lord Cottenham, in his elaborate judgment in Stewart v. Stewart, 6 CI. & F.
694 to 971, critically examined all the leading authorities upon this subject, and
arrived at the same conclusion; and his opinion was confirmed by the House of Lords.
See also Great Western Railway v. Gripps, 5 Hare 91.
(to) Kelly V. Solari, 6 M. & W. 54.
(n) Ante, §§ 64 c, 108; post, §§ 166, 381, 409, 436.
(o) See Maiden v. Menill, 2 Atk. 8. In the civil law there is much discussion as
to the effect of error of law, and no inconsiderable embarrassment exists in stating,
in what cases of error in law the party is relievable, and in what not. It is certain
that a wide distinction was made between the operation of errors of law, and errors
of fact. The subject is discussed at length. Dig. Lib. 22, tit. 6, f. 2. See also 2
Evans' Pothier on Oblig. Appendix, Ko. xviii. pp. 408 to 447; Ayliffe, Pand B 2
tit. 15 ; 1 Domat, B. 1, tit. 8, § 1.
§ 138—141.] MISTAKE. 63

material fact, is voidable and relievable in equity. The ground of

this distinction between ignorance of law and ignorance of fact seems
to be, that, as every man of reasonable understanding is presumed to
know the law, and to act upon the rights which it confers or supports,
when he knows all the facts, it is culpable negligence in him to do an
act, or to make a contract, and then to set up his ignorance of law as
a defence. The general maxim here is, as in other cases, that the
law aids those who are vigilant, and not those who slumber over their
rights. And this reason is recognised as the foundation of the dis-
tinction, as well in the civil law as in equity (p). But no person can
be presumed to be acquainted with all matters of fact; neither is it
possible, by any degree of diligence, in all cases to acquire that know-
ledge, and, therefore, an ignorance of facts does not import culpable
negligence. The rule applies not only to cases where there has been
a studied suppression or concealment of the facts by the other side,
which would amount to fraud; but also to many cases of innocent
ignorance and mistake on both sides (g). So, if a party has bond fide
entirely forgotten the facts, he will be entitled to relief, because, under
such circumstances, he acts under the like mistake of the facts, as if
he had never known them (r). Ignorance of foreign law is deemed to
be ignorance of fact, because the court itself does not take judicial
notice of the foreign law, which must be proved as a fact (»).
§ 141. The rule, as to ignorance or mistake of facts, entitling the
party to relief, has this important qualification, that the fact must be
material to the act' or contract, that is, that it must be essential to its
character, and an efficient cause of its concoction. For though there
may be an accidental ignorance or mistake of the fact; yet, if the act
or contract is not materially affected by it, the party claiming relief
will be denied it. This distinction may be easily illustrated by a
familiar case. A. buys an esiate of B., to which the latter is supposed
to have an unquestionable title. It turns out, upon due investigation
of the facts, unknown at the time to both parties, that B. has no
title (as if B. were entitled in remainder expectant upon the deter-
mination of an estate tail in C, and C. had executed a disentailing
assurance) : in such a case equity would relieve the purchaser, and
rescind the contract (t). But, suppose A. were to sell an estate to B.,
whose location was well known to each, and they mutually believed it
to contain twenty acres, and in point of fact it only contained nineteen

(p) See Pothier, Pand. Lib. 22, tit. 6, § 3, n. 4, 6, 6, 7; § 4, n. 10, 11; Cocking
v. Pratt, 1 Ves. Sen. 400.
(g) Att.-Gen. v. Ray, L. E. 9 Ch. 397; Scott v. Goulscm, [1903] 2 Ch. 249. The
same principle was applied at the common law, Couturier v. Hastie, 5 H. L. C. 673.
(r) Lady Hood of Avalon v. Mackinnon, [1909] 1 Ch. 476.
(s) Leslie v. Bailie. 2 Y. & C. Ch. 91 ; M'Cormick v. Garnett, 5 De G. M. & G. 278 ;
Di Sora v. Phillips, 10 H. L. C. 624.
(t) See 1 Evans's Pothier on Oblig. Pt. 1, ch. 1, art. 9, n. 17, 18; Calverly v.
Williams, 1 Ves. Jun. 210; Hitchcock v. Giddings, Dan. 1.
 64 EQUITY JDEISPRUDENCE. [CH. V.

acres and three-fourths of an acre, and the difference would not have
varied the purchase in the view of either party; in such a case, the
mistake would not be a ground to rescind the contract (u). But it is
now clearly settled that with a few special exceptions a purchaser,
after the conveyance is executed by all necessEiry parties, has no
remedy at law or in equity in respect of defects either in the title to,
or quantity or quality of, the estate, which are not covered by the
vendor's covenants, unless he can make out a case of fraud (x).
§ 142. In cases of mutual mistake going to the essence of the con-
tract, it is not necessary that there should be any presumption of
fraud. On the contrary, equity will often relieve, however innocent
the parties may be. Thus, if one person should sell a policy on the
life of another to a third party, and the life assured was, in fact, dead,
without any knowledge of the fact by either party, a court of equity
would relieve the vendor, upon the ground that the purchase and sale
proceeded upon the footing that the life was in existence. It con-
stituted, therefore, the very essence and condition of the obligation of
their contract (y). So, if a person should execute a release to another
party upon the supposition, founded in a mistake, that certain debt
or annuity had been discharged, although both parties were innocent,
the release would be set aside upon the ground of a mistake (2).
§ 143. The same principle will apply to all other cases, where the
parties mutually bargain for and upon the supposition of an existing
right. Thus if a purchaser should buy the interest of the vendor in
a remainder in fee, expectant upon an estate tail, and the tenant in
tail had at the time, unknown to both parties, barred the estate in
remainder, a court of equity would relieve the purchaser, in regard
to the contract, purely upon the ground of mistake (a).
§ 144. The same principle will apply to cases of purchases, where
the parties have been innocently misled under a mutual mistake as
to the extent of the thing sold. Thus, if one party thought that he
had bond fide purchased a piece of land, as parcel of an estate, and
the other thought he had not sold it, under a mutual mistake of the
bargain, that would furnish a ground to set aside the contract;
because (as has been said) it is impossible to say, that one shall be
forced to give that price for part only, which he intended to give for
the whole; or, that the other shall be obliged to sell the whole for
what he intended to be the price of part only (b). But where by the
mutual mistake of vendor and purchaser, as to the duration of a

(u) Okill V. WUttaker, 1 De G. & Sm. 83 ; 2 Ph. 338.

(x) Joliffe V. Baker, 11 Q. B. D. 255 ; Palmer v. Johnson, 12 Q. B. D. 32, Seddon
V. N. Eastern Salt Co., [1905] 1 Ch. 326.
(y) Scott V. Coulson, [1903] 2 Ch. 249. Colyer v. Clay, 7 Beav. 188.
(z) Hore v. Becker, 12 Sim. 465; Fane v. Fane, L. E. 20 Eq. 698.
(a) Hitchcock v. Giddings, Dan. 1, s.c. 4 Price, 135.
(b) Calverly v. Williams, 1 Vea. Jun. 210; Peers v. Lambert, 7 Beav. 546. See
Douglas v. Baynes, [1908] A. C. 477.
§ 142—147.] MISTAKE. 65

leasehold interest, it was sold for much less than its real value, and
the conveyance had been executed, and the purchaser had been in
possession some years, the vendor was held entitled to no relief against
the representatives of the vendee (c).
§ 145. It is upon the same ground that a court of equity proceeds,
where an instrument is so general in its terms, as to release the
rights of the party to property, and he was wholly ignorant that he had
any title thereto, and it was not within the contemplation of the
bargain at the time when it was made. In such cases the court
restrains the instrument to the purpose of the bargain, and confines
the release to the right intended to be released or extinguished.
§ 146. It is not, however, sufficient in all cases, to give the party
relief, that the fact is material; but it must be such as he could not
by reasonable diligence get knowledge of, when he was put upon
inquiry. For if by such reasonable diligence he could have obtained
knowledge of the fact, equity will not relieve him; since that would
be to encourage culpable negligence (d).
§ 147. Nor is it in every case, where even a material fact is mis-
taken or unknown without any default of the parties, that a court of
equity will interpose. The fact may be unknown to both parties, or
it may be known to one party, and unknown to the other. If it is
known to one party, and unknown to the other, that Will in some
cases afford a solid ground for relief; as, for instance, where it
operates as a surprise, or a fraud, upon the ignorant party (e). But in
all such cases, the ground of relief is, not the mistake or ignorance of
material facts alone, but the unconscientious advantage taken of the
party by the concealment of them (/). For if the parties act fairly, and
it is not a case where one is bound to communicate the facts to the
other, upon the ground of confidence, or otherwise, there the court
will not interfere. Thus, if A., knowing that there is a mine in the
land of B., of which he knows that B. is ignorant, should buy the land
without disclosing the fact to B., for a price in which the mine is not
taken into consideration, B. would not be entitled to relief from the
contract, because A., as the buyer, is not obliged, from the nature of
the contract, to make the discovery (g). There must always be shown,

(c) Okill V. Whittaker, 1 De G. & Sm. 83 ; 2 Ph. 338.

id) Undo V. Undo, 1 Beav. 496; L. <f 5. W. Ry. v. Blackmore, L. E. 4 H. L.
610; Turner v. Turner, 14 Ch. D. 829; In re Perkins, Poyser v. Beyfus, [1898] 2 Ch.
182. And see Wason v. Wareing, 15 Beav. 151. The rule of the civil law is the
same. Sed facti ignoranti ita demum cuique Don nocet, si non ei summa negligentia
objiciatur. Quod enim si omnes in civitate sciant, quod ille solus ignorat? Et recte
Labeo definit, scientiam neque curiosissimi neque negligentissimi homipis accipien-
dam; verum ejus, qui earn rem diligenter inquirendo notam habere possit. Big. Lib.
22, tit. 6, f. 9, § 2; Pothier, Pand. Lib. 22, tit. 6, § 4, n. 11.
(e) Garrard v. Frankel, 30 Beav. 445 ; Paget v. Marshall, 28 Ch. D. 255.
{/) May V. Piatt, [1900] 1 Ch. 616.
ig) Dolman v. Nokes, 22 Beav. 402; affd., 27 L. T. (O.S.) 178; Coaks v.
Boswell, 11 App. Ca's. 232.
E.J. 5
66 EQUITY JURISPRUDENCE. [CH. V.

either the mistake of both parties, or the mistake of one, with the
fraudulent concealment of the other, to justify a court of equity in
reforming a contract {h).
§ 148. And it is essential, in order to set aside such a transaction,
not only that an advantage should be taken; but it must arise from
some obligation in the party to make the discovery, not from an
obligation in point of morals only, but of legal duty. In such a case
the court will not correct the contract, merely because a man of nice
morals and honour would not have entered into it. It must fall
within some definition of fraud or surprise. For the rules of law
must be so drawn, as not to affect the general transactions of man-
kind, or to require that all persons should, in all respects, be upon
the same level as to information, diligence, and means of judgment.
Equity as a practical system, although it will not aid immorality, does
not affect to enforce mere moral duties. But its policy is to administer
relief to the vigilant, and to put all parties upon the exercise of a
searching diligence. Where confidence is reposed, or the party is
intenjiionally misled, relief may be granted; but in such a case there
is the ingredient of what the law deems a fraud. Cases falling under
this predicament will more properly come in review in a subsequent
part of this work (i).
§ 149. A like principle applies to cases where the means of infor-
mation are open to both parties; and where each is presumed to
exercise his own skill, diligence, and judgment in regard to all
extrinsic circumstances. In such cases equity will not relieve. Thus,
if the vendee is in possession of facts, which will materially enhance
the price of a commodity, and of which he knows the vendor to be
ignorant, he is not bound to communicate those facts to the vendor,
and the contract will be held valid. It has been justly observed,
that it would be difficult to circumscribe the contrary doctrine within
proper limits, where the intelligence is equally accessible to both
parties. And, where it is not, the same remark applies with the
same force, if it is not a case of mutual confidence, or of a designed
misleading of the vendor. Thus, if a vendee has privat-e knowledge
of a declaration of war, or of a treaty of peace, or of other political
arrangements (in respect to which men speculate for themselves),
which materially affect the price of commodities, he is not bound to
disclose the fact to the vendor at the time of his purchase; but, at
least in a legal and equitable sense, he may innocently be silent.
For there is no pretence to say, that upon such matters men repose
confidence in each other, any more than they do in regard to other
matters affecting the rise and fall of markets. The like principle
applies to all other cases, where the parties act upon their own
(h) Wright v. Gojf, 22 Beav. 207 ; The Metropolitan Counties Society v. Brown,
26 Beav. 454 ; May v. Piatt, [1900] 1 Ch. 616.
U) Pox V. Mackreth, 2 Bro. C. C. 420 ; 2 Cox, 168, 4 Bro. P. C. 258.
§ 148—152.] MISTAKE. 67

judgment in matters mutually open to them. Thus, if an agreement

for the composition of a cause is fairly made between parties with
their eyes open, a court of equity will not overhaul it, although there
has been a great mistake in the exercise of their judgment (fe).
§ 150. In like manner, where the fact is equally unknown to both
parties; or where each has equal and adequate means of information,
or where the fact is doutbf ul from its own nature ; in every such
case, if the parties have acted with entire good faith, a court of
equity will not interpose. For in such cases the equity is deemed
equal between the parties; and, when it is so, a court of equity is
generally passive, and rarely exerts an active jurisdiction. Thus,
where there was a contract by A. to sell to B., for £20, such an
allotment, as the commissioners under an enclosure Act should make
for him : and neither party at the tim^e knew what the allotment
would be, and were equally in the dark as to the value ; the contract
was' held obligatory, although it turned out upon the allotment to
be worth £200 (l). The like rule wUl apply to all cases of sale of
real estate or personal estate, made in good faith, where material
circumstances, affecting the value, are equally unknown to both
parties.
§ 151. The general ground upon which all these distinctions
proceed, is, that mistake or ignorance of facts in parties, is a proper
subject of relief, only when it constitutes a material ingredient in the
contract of the parties, and disappoints their intention by a mutual
error ; or where it is inconsistent with good faith, and proceeds from
a violation of the obligations which are imposed by law upon the
conscience of either party. But where each party is equally innocent,
and there is no concealment of facts which the other party has a right
to know, and no surprise or imposition. exists, the mistake or ignorance,
whether mutual or unilateral, is treated as laying no foundation for.
equitable interference. It is strictly ddmnum absque injuria, {m).
§ 152. One of the most common classes of cases, in which relief
is sought in equity, on account of a mistake of facts, is that of written
agreements, either executory or executed. Sometimes by mistake
the written agreement contains less than the parties intended ; some-
times it contains more ; and sometimes it simply varies from their
intent by expressing something different in substance from the truth
of that intent. In all such cases, if the mistake is clearly made out
by proofs entirely satisfactory, equity will reform the contract, so as
to make it conformable to the precise intent of the parties. But if
the proofs are doubtful and unsatisfactory, and the mistake is not
made entirely plain, equity will withhold relief; upon the ground, that
the written paper ought to be treated as a full and correct expression
(k) Turner v. Green, [1895] 2 Ch. 203. See Vernon v. Keys, 12 East. 632.
(I) Anon, cited in Mortimer v. Capper, 1 Bro. C. C. 158.
(m) Okill V. Whittaker, 1 De G. & Sm. 83 ; 2 Ph. 888.
68 EQUITY JURISPRUDENCE. [CH. V.

of the intent, until the contrary is established beyond reasonable

controversy (n).
§ 153. It has, indeed, been said, that where there is a written
agreement, the whole sense of the parties is presumed to be comprised
therein; that it would be dangerous to make any addition to it in
cases where there does not appear to be any fraud in leaving out
anything; and that it is against the policy of the law to allow parol
evidence to add to, or vary the terms of, such an agreement (o).
As a general rule, there is certainly much to recommend this doctrine.
But however desirable it may be, as a matter of policy, it is very
certain, that courts of equity will grant relief upon clear proof of a
mistake, although that mistake is to be made out by parol evidence (p).
Lord Hardwicke, upon an occasion of this sort, said: " No doubt but
this court has jurisdiction to relieve in respect of a plain mistake in
contracts in writing as well as against frauds in contracts; so that, if
reduced in writing contrary to the intent of the parties, on proper
proof that would be rectified " (g). And this doctrine has been
recognized upon many other occasions.
§ 153a. In succeeding paragraphs the learned author examined the
grounds upon which the jurisdiction of the court of equity to rectify
written instruments upon evidence of mistake could be rested. The
answer has been since supplied by two eminent judges. " Courts of
equity do not rectify contracts"; said James, V.-C, "They may and
do rectify instruments purporting to have been iriade in pursuance of
the terms of contracts. But it is always necessary for a plaintiff to
show that there was actual concluded contract antecedent to the
instrument which is sought to be rectified; and that such contract is
inaccurately represented in the instrument. It is impossible for the
court to rescind or alter a contract with, reference to the terms of the
negotiation which preceded it " (r). At an earlier date Turner, L.J.,
said : "In order to induce the court to rectify an instrument upon
the ground of mistake, the mistake must be the concurrent mistake
of all the parties. ... I take this to be the rule in the ordinary case
of rectifying mistakes in an instrument where it is sought to alter the
instrument in any prescribed or definite mode, and for this reason,
that in such cases it is necessary to prove not only that there has been
a mistake, but also what was intended to be done, in order that the
instrument may be set right according to what was so intended, for

(n) Davis v. Symonds, 1 Cox 404; WooUam v. Hearn, 7 Yes. 211; Fowler v.
Fowler, 2 De G. & J. 250; May v. Piatt, [1900] 1 Ch. 616; Beale v. Kyte, [1907] 1
Ch. 564.
(o) Imham v. Child, 1 Bro. C. C. 92, 93.
(p) Mortimer v. Shortall, 2 Dr. & War. 363; Tucker v. Bennett, 38 Ch. D. 1;
Binhote v. Henderson, [1895] 2 Ch. 202.
(ij) Henkle v. Royal Assur. Co., 1 Ves. Sen. 314.
(r) Mackenzie v. Coulson, L. R. 8 Eq. 375.
§ 153 158.] MISTAKE. 69

in such a case, if the parties took different views of what was intended,
there would be no contract between them which could be carried into
effect by rectifying the instrument " (s). Now it will be observed that
a court of equity did not, any more than did a court of law, admit
parol evidence to vary or control a written contract, thci evidence went
to show that the writing did not express the terms to which the
parties had assented. The distinction may be refined, but evidence of
a similar character was admissible in courts of the common law (f):
At the present day, when in one and the same action a party may sue
for rectification of a written instrument and to enforce the instrument
as rectified (m), the distinction is liable to be missed.
§ 157. Relief will be granted in cases of written instruments, only
where there is a plain mistake, clearly made out by satisfactory
proofs (a;). It is true that this, in one sense, leaves the rule some-
what loose, as every court is still left free to say what is a plain
mistake, and what are proper and satisfactory proofs. But this is an
infirmity incident to the very administration of justice, for, in many
cases, judges will differ as to the result and weight of evidence; and,
consequently, they may make different decisions upon the same
evidence (y). But the qualification is most material, since it cannot
fail to operate as a weighty caution upon the minds of all judges,
and it forbids relief whenever the evidence is loose, equivocal, or
contradictory, or it is in its texture open to doubt or to opposing
presumptions (z). The rule does not prevent the court from acting
upon the uncontradicted testimony of one party (a), and in the case
of a deed poll this course is inevitable (b). The court has judged
between the relative values of the testimonies of litigant parties (c),
but the general rule has long ceased to be contested at the bar, that
the burden of proof is upon the party asserting that a mistake has
been in fact committed (d).
§ 158. Many of the cases included under this head come within
the Statute of Frauds, as it is commonly called, which requires certain
contracts to be in writing. But the rule as to rejecting parol evidence
to contradict written agreements is by no means confined to such cases.
It stands as a goperal rule of law, independent of that statute. It is

(s) Mackay v. Bentley, 4 De G. F. & J. 286. See Paget v. Marshall, 28 Ch. D.

255.
(t) Awde V. Dixon, 6 Ex. 869; Holding v. FAliott, 5 H. & N. 117; Rogers v.
Hadley, 2 H. & C. 227.
(u) Olley V. Fisher, 34 Ch. D. 367.
(a;) Earl of Bradford v. Earl of Romney, 30 Beav. 431.
(y) See Lord Eldon's remarks in Townsend (Marg.) v. Stangroom, 6 Ves. 333, 334.
iz) Mortimer v. ShoHall, 2 Dr. & War. 363 ; Foicler v. Fowler, 4 De G-. & J. 250;
May V. Plate, [1900] 1 Ch. 616.
(a) Hanley v. Piarson, 13 Ch. D. 545.
(b) Lady Hood of Avalon v. Mackinnon, [1909], 1 Ch. 476.
(c) Beale v. Kyte, [1907] 1 Ch. 564.
(d) Wn'ght v. Golf, 22 Beav. 207.
70 EQUITY JURISPRUDENCE. [CH. V.

founded upon the ground that the written instrument furnishes better
evidence of the deliberate intention of the parties than any parol proof
can supply (e). And the exceptions to the rule, originating in accident
and mistake, have been equally applied to written instruments within
and without th^ Statute of Frauds (/).
§ 159. The relief granted by courts of equity, in cases of this
character, is not confined to mere executory contracts, by altering
and conforming them to the real intent of the parties ; but it is
extended to solemn instruments, which are made by the parties, in
pursuance of such executory or preliminary contracts. And, indeed,
if the court acted otherwise, there would be a great defect of justice,
and the main evils of the mistake would remain irremediable. Hence,
in preliminary contracts for conveyances, settlements, and other
solemn instruments, the court acts efficiently by reforming the
preliminary contract itself, and decreeing a due execution of it, as
reformed, if no conveyance or other solemn instrument in pursuance
of it has been executed {g). And if such conveyance or instrument has
been executed, it reforms the latter also, by making it such as the
parties originally intended (h).
§ 160. There is less difficulty in reforming written instruments
where the mistake is mainly or wholly made out by other preliminary
written instruments or memoranda of the agreement. The danger of
public mischief or private inconvenience is far less in such cases
than it is in eases where parol evidence is admitted. And, accordingly,
courts of equity interfere with far less scruple to correct mistakes in
the former than in the latter (i). Thus, marriage settlements are
often reformed and varied, so as to conform to the previous articles ;
and conveyances of real estate are in like manner controllable by the
terms of the prior written contract (fc). Memoranda of a less formal
character are also admissible for the same purpose (I). But in all
such cases it must be plainly made out that the parties meant, in
their final instruments, merely to carry into effect the arrangements
designated in the prior contract or articles. For, if the parties are
at liberty to vary the original agreement, the circumstances of the case

(e) Woollam v. Hearn, 7 Ves. 218.

(/) MoTtimeT v. Shortall, 2 Dr. & War. 363; Exp. Nat. Prov. Bank of England,
In re Boulter, i Ch. D. 241 ; Johnson v. Bragge, [1901] 1 Ch. 28.
(g) Olley v. Fisher, 34 Ch. D. 367.
(h) Duke of Bedford v. Marquis of Abercorn, 1 Myl. & Cr. 312; Walker v. Arm-
strong, 8De G. M. & G. 581.
(t) Mortimer v. Shortall, 2 Dr. & War. 363; Wolterbeek v. Barrow, 23 Beav.
423; Barroio v. Barrow, 18 Beav. 529; Bonhote v. Henderson, [1895] 1 Ch 742-
affirmed, [1895] 2 Ch. 202.
(fc) Legg v. Goldwire, Cas. t. Talb. 20; Bold v. Hutchinson, 6 De G. M. & G. 558;
Lenty v. Hillas, 1 De G. & J. 110; Mignan v. Parry, 31 Beav. 211 ; Cogan v. Duffield
2 Ch. D. 558; Barkshire v. Grubb, 18 Ch. D. 616.
(!) Motteux v. London Assurance Company, 1 Atk. 546 ; Baker v. Paine 1 Ves
Sen. 456.
 § 159—161.] MISTAKE. 71

lead to the supposition that a new intent has supervened, and there
can be no just claim for relief upon the ground of mistake (m). The
very circumstance, that the final instrument of conveyance or settle-
ment differs from the preliminary contract, affords of itself some
presumption of an intentional change of purpose or agreement, unless
there is some recital in it, or some other attendant circumstance, which
demonstrates that it was merely in pursuance of the original contract.
It is upon a similar ground that courts of equity act in holding
that, where there is a written contract, all antecedent propositions,
negotiations, and parol interlocutions on the same subject are to be
deemed merged in such contract (n).
§ 161. In cases of asserted mistake in written contracts, where the
mistake is to be established by parol evidence, the question has often
been mooted, how far a court of equity ought to be active in granting
relief, by a specific performance in favour of the party seeking to
reform the contract upon such parol evidence, and to obtain per-
formance of it, when it shall stand reformed. It is admitted that a
defendant, against whom a specific performance of a written agreement
is sought, may insist, by way of answer, upon the mistake, as a bar to
an action ; because he may insist upon any matter which shows it
to be inequitable to grant such relief. A court of equity is not bound
to enforce a written contract ; but it' may exercise its discretion when
a specific performance is sought (o). It will not, therefore, interfere to
sustain an action for specific performance, when it would be against
conscience and justice so to do. On the other hand, it seems equally
clear that a party may, as plaintiff, have relief against a written
contract, by having the same set aside and cancelled, or modified,
whenever it is founded in a mistake common to both parties of
material facts, and it would be unconscientious and unjust for the
other party to enforce it at law or in equity (p). The learned author
then adverted to the case where the party plaintiff seeks, not to set
aside the agreement, but to enforce it, when it is reformed and varied
by the parol evidence. It is now settled that the courts will admit
parol evidence to establish a mistake in a written agreement, and
then to enforce it, as varied and established by that evidence, if the
mistake be common to all parties to the contract so as to permit of
rectification, but not further or otherwise (g).
(m) Legg v. Goldwire, Cas. t. Talb. 20; Cook v. Fryer, 1 Hare, 498. See Essery
v. Cowlard, 26 Ch. D. 191; Bond v. Walford, 32 Ch. D. 238.
(n) Rich V. Jackson, i Bro. C. C. 513; Wace v. Bickerton, 3 De G. & Sm. 7.51;
Joliffe V. Baker, 11 Q. B. D. 255.
(o) Clark v. Grant, 14 Ves. 519; Clowes v. Higginson, 1 Ves. & B. 524; Winch
V. Winchester, 1 Ves. & B. 375; Watson w.Marston, 4 De G. M. & G. 230 ; Baxendale
V. Seale, 19 Beav. 601; In re Hare S O'More's Cont., [1901] 1 Ch. 93.
(p) See Ball v. Storie, 1 Sim. & Stu. 210; Metropolitan, Counties, Sop. v. Brown,
20 Beav. 454.
(g) Olley v. Fisher, 34 Ch. D. 367. See Woollam v. Hearn, 7 Ves. 211; May v.
Piatt, [1900] 1 Ch. 616.
72 EQUITY JURISPRUDENCE. [CH. V.

§ 162. Courts of equity have granted relief in cases of mistake in

written contracts, not only when the fact of the mistake is expressly
established, but also when it is fairly implied from the nature of the
transaction. Thus, in cases where there had been a joint loan of
money to two or more obligors, and they were by the instrument made
jointly liable, but not jointly and severally, the court has reformed
the bond, and made it joint and several, upon the presumption, from
the nature of the transaction, as in the case of a loan to a partnership,
that it was so intended by the parties, and was omitted by want of
skill or by mistake (r). Sir William Grant, M.E., insisted (s) that the
presumption was only applicable to partnership cases, but there was a
belief in some quarters that every contract for a joint loan was in
equity to be deemed, as to the parties borrowing, a joint and several
contract, whether the transaction were of a mercantile nature or not.
And as regards the liability of partners the mistake has arisen from
attempting to evolve a general rule from particular instances, it being
now well settled that the liability of partners upon a contract of loan
is not necessarily joint and several, but dependent upon the conditions
of the transaction, and presumably a joint liability (t).
§ 163. But where thfe inference of a joint original debt or liability
was absent, a court of equity would not interfere ; for, in such a case,
there was no ground to presume any mistake (u). This doctrine has
been very clearly expounded by Sir William Grant. " When " (says
he) " the obligation exists only in virtue of the covenant, its extent
can be measured only by the words in which it is conceived. A
partnership debt has been trea;ted in equity as the several debt of each
partner, although at law it is only the joint debt of all. But, there,
all the partners have had a benefit from the money advanced, or the
credit given; and the obligation of all to pay exists, independently of
any instrument, by which the debt may have been secured. So,
where a joint bond has in equity been considered as several, there
has been a credit previously given to the different persons who have
entered into the obligation. It is not the bond that first created the
liability to pay " (x).
§ 164. It is upon the same ground, that a court of equity will not
reform a joint bond against a mere surety, so as to make it several
against him, upon the presumption of a mistake from the nature of
the transaction ; but it will require positive proof of an express agree-
ment by him, that it should be several as well as joint (y). And

(r) Bishop v. Church, 2 Ves. Sen. 100, 371; Sleech's Case, 1 Meriv. 538, 539;
Sumner v. Powell, 2 Meriv. 30.
(s) See Sumner v. Powell, 2 Meriv. at pp. 35, 36. See also Richardson v. Norton,
6 Beav. 185.
({) Kendall v. Hamilton, 4 App. Caa. 504; Scarf v. Jardine, 7 App. Cas. 845.
(u) Richardson v. Horton, 6 Beav. 185.
(i) Sumner v. Powell, 2 Meriv., at p. 36.
iy) Sumner v. Powell, 2 Meriv. 30.
§ 162 167.] MISTAKE. 73

in other cases, where the obligation or covenant is purely matter of

arbitrary convention, not grovi'ing out of any antecedent liability in
all or any of the obligors or covenantors to do what they have
undertaken (as, for example, a bond or covenant of indemnity for the
acts or debts of third persons), a court of equity will not by implication
extend the responsibility from that of a joint to a joint and several
undertaking (z). But if there be an express agreement to the effect
that an obligation or other contract s.hall be joint and several, or to
any other effect, and it is omitted by mistake in the instrument, a
court of equity will, under such circumstances-, grant relief as fully
against a surety or guarantee, as against the principal party.
§ 165. In all cases of mistake in written instruments, courts of
equity will interfere only as between the original parties, or those
claiming under them in privity, such as personal representatives, heirs,
devisees, legatees, assignees, voluntary grantees, or judgment creditors,
or purchasers from them, with notice of the facts (a). As against
bond fide purchasers for a valuable consideration without notice, courts
of equity will grant no relief; because they have, at least, an equal
equity to the protection of the court (6).
§ 166. The learned author suggested that as equity would grant
relief in cases of mistake in written instruments, to prevent manifest
injustice and wrong, and to suppress fraud, it would also grant relief
and supply defects, where, by mistake, the parties have omitted any
acts or circumstances necessary to give due validity and effect to
%vritt€n instruments. Equity would, no doubt, supply defect of
circumstances in conveyances, occasioned by mistake, as of livery of
seisin in the passing of a freehold, or of a surrender in case of a
copyhold, or the like ; but to this extent its jurisdiction was limited.
It does not seem, for instance, that a court of equity could supply the
want of a seal, in order to render an instrument valid as a deed (c),
or validate an award made by an arbitrator who, by reason of a prior
award, was functus officio, although the prior award omitted a material
clause ((f).
§ 167. The same principle applies to cases where an instrument
has been delivered up, or cancelled, under a mistake of the party, and
in ignorance of the facts material to the rights derived under it. A
court of equity will in such cases grant relief, upon the ground, that
the party is conscientiously entitled to enforce such rights; and that
he ought to have the same benefit as if the instrument were in his
possession with its entire original validity (e). In this the Court of
(z) Sumner v. Powell, 2 Meriv. 30, 35, 36; Richardson v. Horton, 6 Beav. 186.
(a) Warrick v. Warrick, 3 Atk. 293; Com. Dig. Chancery, 2 C. 2; 4 J. 4.
(b) Warrick v. Warrick, 3 Atk. 290, 293; Garrard v. Frankel, 30 Beav. 445.
(c) Nat. Prov. Bk. v. Jackson, 33 Ch. D. 1; In re Smith, Oswell v. Shepherd,
67 L. J. 64.
(d) Mordue v. Palmer, L. R. 6 Ch. 22.
(e) East India Go. v. Donald, 9 Ves. 275; East India Go. v. Neave, 5 Ves. 173.
74 EQUITY JDHISPRUDENCE. [CH V.

Chancery frequently only applied its active remedies to common law

rights (/).
§ 168. x\nd, for the same reason, equity will give effect to the real
intentions of the parties, as gathered from the objects of the instru-
ment, and the circumstances of the case, although the instrument
may be drawn up in a very inartificial and untechnical manner. For,
however just in general the rule may be, " quoties in verbis nulla est
ambiguitas, ibi nulla expositio contra verba expressa fienda est " (g);
yet that rule shall not prevail to defeat the manifest intent and object
of the parties, where it is clearly discernible on the face of the instru-
ment, ifthe ignorance or blunder or mistake of the parties has caused
them to use inappropriate language. Thus, if one in consideration of
natural love should execute a feoffment, or a lease and release, or a
bargain and sale, it would, notwithstanding the use of the technical
words, be held to operate as a covenant to stand seised (h). And the
same rule would be applied if, under the like circumstances, instead
of the words " bargain and sell," the words " give and grant," or
" enfeoff, alien, and confirm," should be used in a deed ()'). But here
again the courts of common law had abandoned refinements (fe).
§ 169. There is also another marked instance of the application of
the remedial authority of courts of equity; that is, to the execution
of powers. In no case will equity interfere where there has been
a non-execution of a power, as contradistinguished from a trust; but
if a trust be coupled with a power, there (as we shall presently see)
the trust will be enforced, notwithstanding the force of the power
does not execute it (L). But, if there be a defective execution, or
attempt at execution of a mere power, there equity will interpose,
and supply the defect, not universally, indeed, but in favour of
parties for whom the person entrusted with the execution of the
power is under a moral or legal obligation to provide by an execution
of the power. Thus, such a defective execution will be aided in
favour of persons st-anding upon a valuable or a meritorious con-
siderationsuch
; as a bond fide purchaser for a valuable consideration,
a creditor, a wife, and a legitimate child (m) ; unless, indeed, such
aid of the defective execution would, under all the circumstances, be
inequitable to other persons; or it is repelled by some counter
equity. Indeed, if a general power to raise money for any purposes
be given, so that the donee of the power may, if he choose, execute
it in his own favour, and he should execute it in favour of mere volun-

(/) BaHlett v. Pentland, 10 B. & C. 760.

(g) 1 Co. Litt. 147 u..
(h) Stapilton v. StapiUon, 1 Atk. 8; Smith v. Packhurst, 3 Atk. 136.
(i) Harrison v. Austin, 3 Mod. 237.
(k) Doe d. Dailies, 2 M. & W. 608; Wilson v. Wilson, 1 H. L. C. 538.
(!) Brown v. Higgs, 8 Ves. 570; Holmes v. Coghill, 7 Vee. 499; 12 Ves. 206;
Burrough v. Philcox, 5 My]. & Cr. 73.
(m) Fothergill v. Fothergill, 2 Preem. 266, 257; Sugden, Powers, Ch. 11.
§ 168—171.] MISTAKE. 75

teers, there a court of equity will, in favour of creditors, deem the

money assets against the volunteers, upon the ground that the donee
of the power has an absolute dominion over the power and the
property.
§ 170. The reason for this distinction, between the non-execution
of a power and the defective execution of it, has been stated with
great clearness and precision by Varny, M.R. " The difference "
(he said) " ie betwixt a non-execution and a defective execution of a
power. The latter will always be aided in equity under the circum-
stances mentioned; it being the duty of every man to pay his debts,
and of a husband or father to provide for his wife or child. But
this court will not help the non-execution of a power, which is left
to the free will and election of the party, whether to execute or not;
for which reason equity will not say he shall execute it; or do that
for him which he does not think fit to do for himself " (n). Indeed, a
court of equity, by acting otherwise in the ease of a non-execution of
a power, would, in effect, deprive the party of all discretion as to the
exercise of it; and would thus overthrow the very intention mani-
fested by the parties in the creation of the power. On the contrary,
when the party undertakes to execute a power, but, by mistake, does
it imperfectly, equity will interpose to carry his very intention into
effect, and that, too, in aid of those who are peculiarly within its
protective favour ; that is, creditors, purchasers, wives, and chil-
dren (o).
§ 171. What shall constitute an execution, or preparatory steps or
attempts towards the execution of a power, entitling the party to
relief in equity on the ground of a defective execution, has been
largely and liberally interpreted. It is clear that it is not sufficient
that there should be a mere floating and indefinite intention to
e:Secute the power, without some steps taken to give it a legal effect.
Some steps must be taken, or some acts done, with this sole and
definite intention, and be such as are properly referable to the
power (p). Lord Mansfield, at one time, contended, that whatever is
an equitable, ought to be deemed a legal, execution of a power,
because there should be a uniform rule of property; and that, if
courts of equity would presume that a strict adherence to the precise
form, pointed out in the creation of the power, was not intended,

(n) Tollett v. Tollett, 2 P. Will. 490. See also Crosslinc^ v. CrossUng, 2 Cox 396.
Sir William Grant, in Holmes v. Coghill (7 Ves. 506), and Lord Erskine, in the
same case on appeal (12 Ves. 212), have expressed dissatisfaction with this distinction,
as not quite consistent with the principles of law or equity, though fully established
by authority.
(o) Moodie v. Reid, 1 Mad. 516.
(p) Dowell V. Dew, 1 Y. & C. Ch. 345; In re Dyke's Estate, L. K. 7 Bq. 337.
There must be a distinct intention to execute the power. Garth v. Townsend, L. B.
7 Eq. 220.
76 EQUITY JURISPRUDENCE. [CH V.

and therefore not necessary, the same rule should prevail at law (g).
But this doctrine has been overruled. And indeed, courts of equity
do not deem the power well executed unless the form is adhered to;
but in cases of a meritorious consideration they supply the defect (r).
§ 172. And relief will be granted, not only when the defect arises
from an informal instrument, not within the scope of the power, but
also when the defect arises from the improper execution of the
appropriate instrument. All that is necessary is, that the intention to
execute the power should clearly appear in writing. Thus, if the
donee of a power merely covenant to execute it; or, by his will,
desire the remainderman, to create the estate ; or enter into a con-
tract not under seal, to execute the power; or by letters promise to
grant an estate, which he can execute only by the instrumentality of
the power; in all these, and the like cases, equity will supply the
defect. And even an answer to a bill of complaint, stating that the
party appointed, and intended by a writing in due form to appoint the
fund, was deemed to be an execution of the power for this purpose (s).
§ 173. The like rule prevails, where the instrument selected is not
that prescribed by the power; provided it is not in its own nature
repugnant to the true object of the creation of the power. Thus, if
the power ought to be executed by a deed, but it is execui^ed by a
will, the defective execution will be aided (f). But, if the power ought
to be executed by a will, and the donee of the power should execute
a conveyance of the estate by a deed not containing a power of revoca-
tion, the deed will be invalid ; because such a conveyance, if it avail to
any purpose, must avail to the immediate destruction of the power,
since it would no longer be revocable, as a will would be. The inten-
tion of the power, in its creation, was to reserve an entire control over
its execution, until the moment of the death of the donee; and this
intention would be defeated by any other instrument than a will («)•
An act done, not strictly according to the terms of the power, but
consistent with its intent, may be upheld in equity. But an act, which
Violates the very purpose for which the power was created, and the
very control over it which it meant to vest in the donee, is repugnant to
it, and cannot be deemed, in any just sense, to be an execution of
it (x).
§ 174. The Court of Chancery would have interposed formerly to
supply a defective execution of a power by will (y) ; but this power is

(g) Darlington v. Pulteney, Cowp. 267.

(r) Sugden on Powers, ch. 11.
(s) Carter v. Carter, Moseley 365.
(t) Tollett V. Tollett, 2 P. "Will. 489; Sneyd v. Sneyd, Ambl. 64, Sugden, Powers,
558 n. (II).
(u) Reid V. Shergold, 10 Ves. 370.
(x) See Bainbridge v. Smith, 8 Sim. 86; ante, § 97. See Wills Act, 1 Vict. c. 26,
8. 10.
(j) Wade v. Paget, 1 Bro. C. C. 363; Gullan v. Grove, 26 Beav. 64.
§ 172—177.] MISTAKE. 77

taken away, where the objection is as to form of execution, by section

10 of the Wills Act, 1837 (1 Vict. c. 26) (z). Equity will also, in many
cases, grant relief, where, by mistake, a different kind of estate or
interest is given from that which is authorised by the power, or where
there is an excess of the power (.a).
§ 175. In all these cases it is to be understood that the intention
and objects of the power are not defeated or put aside ; but that they
are only attempted by the party to be carried into effect by informal
documents. But where there is a defect of substance in the execution
of the power, such as the want of co-operation of all the proper parties
in the act, there equity will not aid the defect (b).
§ 176. But in all these cases of relief by aiding and correcting
defects or mistakes in the execution of instruments and powers,
the party asking relief must stand upon some equity superior to
that of the party against whom he asks it. If the equities are equal,
a court of equity is silent and passive (c). Thus, equity will not
relieve one person, claiming under a voluntary defective conveyance,
against another, claiming also under a voluntary conveyance; but
will leave the parties to their rights at law (d). For, regularly, equity
is remedial to those only who come in upon an actual consideration ;
and, therefoire, there should be some consideration, equitable or other-
wise, expressed or implied. But there are excepted eases, even
from this rule ; for a defective execution has been aided in favour of
a volunteer, where a strict compliance with the power has been
impossible from circumstances beyond the control of the party; ae
where the prescribed witnesses could not be found; or where an
interested party, having possession of the deed creating the power,
has kept it from the sight of the party executing the power, so that
he could not ascertain the formalities required.
§ 177. For the same reason equity will not aid the defective exe-
cution of a power, to the disinheritance of the heir-at-law. Neither
will it do this in favour of creditors, where there are, otherwise, assets
sufficient to pay their debts; nor against a purchaser for a valuable
consideration without notice. And there are other cases of the
defective execution of powers, where equity will not interfere; as, for
instance, in regard to powers which are in their own nature statutable,
where equity must follow the law, be the consideration ever so
meritorious. Thus, the power of a tenant in tail to make leases under
a statute, if not executed in the requisite form prescribed by the
statute, will not be made available in equity, however meritorious

(2) In re Barnett, Dawes v. Ixer, [1908J 1 Ch. 402.

(a) Sugden on Powers, oh. 11 (8th edit.).
(b) Thackwell v. Gardiner, 5 De G. & Sm. 58; Cooper v. Martin, L. E. 3 Ch. 47;
Phillips v. Gayley, 43 Ch. D. 222; In re Lane, Belli v. Lane, [1908] 2 Ch. 581.
(c) See Sugdfn on Powers, ch. 11 (8th edit.).
(d) Moodie v. Reid, 1 Mad. 516; Hughes v. Wells, 9 Ha. 749.
78 EQUITY JURISPRUDENCE. [CH. V.

ihe consideration may be (/). And indeed it may be stated as gener-

ally, although not universally true, that the remedial power of courts
.of equity does not extend to the supplying of any circumstance, for
the want of which the legislature has declared the instrument void;
for, otherwise, equity would, in effect, defeat the very policy of the
legislative enactments (g).
§ 178. Upon one or both of these grounds, either that there is
no superior equity, or that it is against the policy of the law, the
remedial power of courts of equity did not extend to the case of
a defective fine, as against the issue, or of a defective recovery, as
against a remainderman; unless, indeed, there was something in the
transaction to affect the conscience of the issue, or the remainder-
man.
§ 179. In regard to mistakes in wills, there is no doubt that
courts of equity have jurisdiction to correct them, when they are
apparent on the face of the will, or may be made out by a due
construction of its terms; for in cases of wills the intention will
prevail over the words. But, then, the mistake must be apparent
on the face of the will, otherwise there can be no relief; for, parol
evidence, or evidence dehors the will, is not admissible to vary or
control the terms of the will, although it is admissible to remove a
latent ambiguity {h). So far the learned author. But it is quite
obvious that he failed, in the foregoing and in the subsequent passages,
to emphasize inferentially or in the text that the intention to which the
court gives effect is the expressed intention of the testator. The cases
which he cited, and the illustrations which he gave, must be referred
to the rules of interpretation; e.g., is a gift to a " husband " or " wife "
.or " widow " of the testatrix, or testator, or other person, conditional
upon a valid marriage (i), or where a testator revokes a will stating
as his reason that the legatees are dead, which is treated as a
conditional revocation (k).

(/) Darlington v. Pulteney, Cowp. 267; Rosswell's case, 1 EoUe, Ab. 379, pi. 6.
(9) Curtis V. Perry, 6 Ves. 739; Mestaer v. Gillespie, XI Ves. 621; Thompson v.
Leake, 1 Mad. 39 ; Thompson v. Smith, 1 Mad. 395 ; Hughes v. Morris, 2 De Q. M. &
O. 349; In re Frieze- Green's Patent, [1907] A. C. 460.
(h) Milner v. Milner, 1 Ves. Sen. 106; Danvers v. Manning, 2 Bro. C. C. 18;
1 Cox 203; Campbell v. Frenph, 3 Ves. 321.
(f) Giles V. Giles, 1 Keen, 685; Wilkinson v. Jonghin, L. R. 2 Eq. 319; In re
Boddington, Boddington v. Glariat, 25 Ch. D. 685 ; In re Wagstajf, Wagstajf v
Jalland, [1908] 1 Ch. 162.
(&) Campbell v. French, 3 Ves. 361.
§ 178 185.] ACTUAL FRAUD. 79

CHAPTER VI.
ACTUAL OR POSITIVE FRAUD.

§ 184. Let us now pass to another great head of Concurrent juris-

diction in equity, that of fraud. And here it may be laid down as a
general rule, subject to few exceptions, that courts of equity exercise
a general jurisdiction in cases of fraud, sometimes concurrent with,
and sometimes exclusive of, other courts. It has been already stated,
that in a great variety of cases fraud is remediable, and effectually
remediable at law (a). Nay, in certain cases, such as fraud in obtain-
ing a will, whether of personal estate, or real estate, the proper remedy
was exclusively vested in other courts prior to the Judicature Act,
1873; in wills of personal estate, in the Court of Probate (&), and in
wills of real estates, in the courts of common law (o). But there
are many cases, in which fraud was utterly irremediable at law; and
courts of equity, in relieving against it, often went, not only beyond,
but even contrary to, the rules of law (d). And with the exception
of wills, as above stated, courts of equity may be said to possess a
general, and perhaps a universal, concurrent jurisdiction with courts
of law in cases of fraud, cognizable in the latter; and exclusive juris-
diction in cases of fraud beyond the reach of the courts of law (e).
§ 185. The jurisdiction in matters of fraud is probably coeval
with the existence of the Court of Chancery; and it is equally
probable, that, in the early history of that court., it was principally
exercised in matters of fraud not remediable at law (/). Its present
active jurisdiction took its rise in a great measure from the abolition of
the Court of Star Chamber, in the reign of Charles the First {g) ; in
which court the plaintiff was not only relieved, but the defendant was
punished for his fraudulent conduct. So that the interposition of
chancery before that period was generally unnecessary (h).

(a) Ante, §§ 59, 60; 3 Black. Coram. 431; 1 Fonbl. Bq. B. 1, ch. 2, § 3, note (r).
(b) Allen v. McPherson, 1 H. L. C. 191 ; Meluish v. Milton, 3 Ch. D. 27.
(c) 3 Black. Gomm. 451 ; Pemberton v. Pemberton, 13 Ves. 297.
(d) Cf. Adam v. Newbigging, 13 App. Cas. 308, with Derry v. Peek, 14 App. Cas.
337.
(e) Chesterfield v. Janssen, 2 Ves. Sen. 125; Evans v. Bicknell, 6 Ves. 182;
Hoare v. Brembridge, L. E. 8 Ch. App. 22.
(/) 4 Inst. 84.
ig) Stat. 16 Car. I. ch. 10.
(h) 1 Mad. Ch. Pr. 89.
80 EQUITY JUKISPRUDENCB. [CH. VI.

§ 186. It is not easy to give a definition of fraud in the extensive

signification in which that term is used in courts of equity; and it
has been said, that these courts have, very wisely, never laid down,
as a general proposition, what shall constitute fraud (f). As was per-
tinently observed by Lord Hardwicke: " Fraud is infinite; and were
a court of equity once to lay down rules, how far they would go, and no
farther, in extending their relief against it, or to define strictly the
species or evidence of it, the jurisdiction would be cramped and per-
petually eluded by new schemes, which the fertility of man's invention
would contrive" (k). Fraud is even more odious than force; and
Cicero has well remarked ; " Cum autem duobus modis, id est, aut vi,
aut fraude, fiat injuria; fraus, quasi vulpeculse, vis, leonis videtur.
Utrumque homine alienissimum ; sed fraus odio digna majore " {V).
Pothier says that the term fraud is applied to every artifice made use
of by one person for the purpose of deceiving another. " On appelle
Dol toute espece d 'artifice, dont quelqu'un se sert pour tromper un
autre " (m). Servius, in the Roman law, defined it thus: " Dolum
malum machinationem quandam alterius deeipiendi causa, cum aliud
simulatur, et aliud agitur. " To this definition Labeo justly took excep-
tion, because a party might be circumvented by a thing done without
simulation ; and, on the other hand, without fraud, one thing might
be done, and another thing be pretended. And therefore he defined
fraud to be any cunning, deception, or artifice, used to circumvextt,
cheat, or deceive another. " Dolum malum esse omnem calliditatem,
fallaciam, machinationem ad circumveniendum, fallendum, decipi-
endum alterum, adhibitam." And this is pronounced in the Digest
to be the true definition. " Labeonis Definitio vera est" (n).
§ 187. This definition is, beyond doubt, sufficiently descriptive of
what may be called positive, actual fraud, where there is an intention
to commit a cheat or deceit upon another to his injury. But it can
hardly be said to include the large class of implied or constructive
frauds, which are within the remedial jurisdiction of a court of equity.
Fraud, indeed, in the sense of a court of equity, properly includes all
acts, omissions, and concealments which involve a breach of legal or
equitable duty, trust, or confidence, justly reposed, and are injurious
to another, or by which an undue and unconscientious adyantage is
taken of another. And courts of equity will not only interfere in cases
of fraud to set aside acts done; but they will also, if acts have by

(i) Mortlock v. Bullet, 10 Ves. 306.

(ft) Letter to Lord Kaims, 30 June, 1759, quoted Parke, Hist, of Chanc. 508. See
also Lawley v. Hooper, 3 Atk. 279.
(0 Cic. de Offio. Lib. 1, oh. 13.
(m) 1 Pothier on Oblig. by Evans, Pt. 1, ch. 1, art. 3, n. 28, p. 19.
(n) Dig. Lib. i, tit. 3, f. 1, § 2; ibid. Lib. 2, tit. 14, f. 7, § 9.
§ 186 — 190.] ACTUAL FRAUD. 81

fraud been prevented from being done by the parties, interfere and
treat the case exactly as if the acts had been done (o).
§ 188. Lord Hardwicke, in a celebrated case (p), after remarking
that a court of equity has an undoubted jurisdiction to relieve against
every species of fraud, proceeded to give the following enumeration
of the different kinds of frauds. First: Fraud, which is dolus malus,
may be actual, arising from facts and circumstances of imposition,
which is the plainest case. Secondly : It may be apparent from the
intrinsic nature and subject of the bargain itself; such as no man in
his senses, and not under delusion, would make on the one hand, and
as no honest and fair man would accept on the other; which are
inequitable and unconscientious bargains, and of such even the
common law has taken notice (g). Thirdly : Fraud, which may be
presumed from the circumstances and condition of the parties con-
tracting; and this goes farther than the rule of law, which is, that it
must be proved, not presumed. But it is wisely established in the
Court of Chancery, to prevent taking surreptitious advantage of the
weakness or necessity of another, which knowingly to do is equally
against conscience, as to take advantage of his ignorance. Fourthly :
Fraud, which may be collected and inferred, in the consideration of a
court of equity, from the nature and circumstances of the transaction,
as being an imposition and deceit on other persons, not parties to the
fraudulent agreement. Fifthly : Fraud, in what are called catching
bargains with heirs, reversioners, or expectants, in the life of the
parents, which indeed seems to fall under one or more of the preceding
heads.
§ 189. Fraud, then, being so various in its nature, and so exten-
sive in its application to human concerns, it would be difficult to
enumerate all the instances in which courts of equity will grant relief
under this head. It will be sufficient, if we here collect some of the
more marked classes of cases, in which the principles which regulate
the action of courts of equity are fully developed, and from which
analogies may be drawn to guide us in the investigation of other and
novel circumstances.
§ 190. Before, however, proceeding to these subjects, it may be
proper to observe, that courts of equity do not restrict themselves by
the same rigid rules as courts of law do, in the investigation of fraud,
and in the evidence and proofs required to establish it. It is equally
a rule in courts of law and courts of equity that fraud is not to be
presumed; but it must be established by proofs. Circumstances of
mere suspicion, leading to no certain results, will not, in either of

(o) Middleton v. Middleton, 1 Jac. & Walk. 96; Lord Waltham's case, cited 11
Ves. 638, 14 Ves. 290.
(p) Chesterfield v. Janssen, 2 Ves. Sen. 155.
iq) See James v. Morgan, 1 Lev. 111.
E.J. 6
82 EQUITY JURISPRUDENCE. [CH. VI.

these courts, be deemed a sufficient ground to establish fraud (r). On

the other hand, neither of these courts insists upon positive and express
proofs of fraud ; but each deduces them from circumstances justifying
inferences (s). But courts of equity will act upon circumstances, as
presumptions of fraud, where courts of law would not deem them
satisfactory proofs. In other words, courts of equity will grant relief
upon the ground of fraud, established by presumptive evidence, which
evidence courts of law would not always deem sufficient proof to justify
a verdict at law. It is in this sense that the remark of Lord Hardwicke
is to be understood, when he said that ' ' fraud may be presumed from
the circumstances and condition of the parties contracting; and this
goes farther than the rule of law, which is, that fraud must be proved,
not presumed " (t). And Lord Eldon has illustrated the same pro-
position byremarking that a court of equity will, as it ought, in many
cases, order an instrument to be delivered up, as unduly obtained,
which a jury would not be justified in impeaching by the rules of law,
which require fraud to be proved, and are not satisfied, though it may
be strongly presumed (u).
§ 191. One of the largest classes of cases, in which courts of equity
are accustomed to grant relief, is where there has been a misrepresen-
tation, or suggiestio falsi (x). It has been said, indeed, to be a very
old head of equity, that if a representation is made to another person,
going to deal in a matter of interest, upon the faith of that represen-
tion, the former shall make that representation good, if he knows it to
be false (y). This statement is correct only so long as a proper meaning
is attached to the word " representation," and this many equity prac-
titioners still refuse to do. A liability can be established upon the
footing of ' ' making good representations, ' ' in cases of fraud, breach of
duty, contract including warranty, or estoppel. Unless one or other of
these be established there is no equitable remedy (a). To justify, how.
ever, an interposition in such cases, it is not only necessary to establish
the fact of misrepresentation; but that it is in a matter of substance,
or important to the interests of the other party, and that it actually
does mislead him (a). For, if the misrepresentation was of a trifling
or immaterial thing; or if the other party did riot trust to it, or was

(r) Trenchard v. Wanley, 2 P. Will. 166; Townsend v. Lowfield, 1 Ves. Sen. 35,
3 Atk. 336 ; Cavendish Bentinck v. Fenn, 12 App. Cas. 652 ; Whitehorn, Bros. v.
Damson, [1911] 1 K. B. 463.
(s) Buller, J., Pasley v. Freeman, 3 T. E. 60; Parke, B., Thorn v. Bigland, 8 Ex
725 ; Eomilly, M.E., Ship v. CrosskiU, L. R. 10 Eq. 85.
(t) Chesterfield v. Janssen, 2 Ves. Sen. 155, 156.
(u) Fullager v. Clark, 18 Ves. 483.
(x) Adam v. Newbigging, 13 App. Cas. 308.
{y) Evans v. Bicknell, 6 Ves. 173, 182.
(2) Jorden v. Money, 5 H. L. C. 185 ; Low v. Bouverie, [1891] 3 Ch. 82 ; Norton
V. Lord Ashburton, [1914] A. C. 932.
(a) Neville v. Wilkinson, 1 Bro. C. C. 543; Turner v. Harvey, Jacob 178; Attwood
V. Small, 6 CI. & F. 232.
 § 191 — 193.] ACTUAL FRAUD. 83

not misled by it ; or if it was vague and inconclusive in its own nature ;

or if it was upon a matter of opinion or fact, equally open to the
inquiries of both parties, and in regard to which neither could be pre-
sumed to trust the other ; in these and the like cases there is no reason
for a court of equity to interfere to grant relief upon the ground of
fraud (6). But a party is entitled to rely upon a representation made
to him, and it is no answer to say that the most obvious inquiry would
have elicited the truth (c).
§ 192. Where the party intentionally or by design misrepresents a
material fact, or produces a false impression, in order to mislead
another, or to entrap or cheat him, or to obtain an undue advantage
of him, in every such case there is a positive fraud in the truest
sense of the terms (d). There is an evil act with an evil intent; dolum
■malum ad circumveniendnm. And the misrepresentation may be
as well by deeds or acts, as by words; by artifices to mislead, as
well as by positive assertions (e). The civil law has well expressed this,
when it says: " Dolo malo pactum fit, quotiens, circumscribendi
alterius causa, aliud agitur, et aliud agi simulatur " (/). And again:
" Dolum malum a se abesse prsestare venditor debet, qui non tantum
in eo est, qui fallendi causa obscur^ loquitur, sed etiam, qui insidiosfe
obscure dissimulat " (g). The case here put falls directly within one of
the species of frauds enumerated by Lord Hardwicke; to wit, fraud
arising from facts and circumstances of imposition (h).
§ 193. Whether the party thus misrepresenting a material fact
knew it to be false, or made the assertion without knowing whether
it were true or false, is wholly immaterial ; for the affirmation of what
one does not know or believe to be true is equally, in morals and law,
as unjustifiable as the affirmation of what is known to be positively
false (j). A party cannot excuse himself by stating that he made the
statement in forgetfulness of the true facts, common honesty requiring
him to state, " I do not recollect whether it is so or not " (fe). It was
thought by some that this principle had been abrogated by a subse-
quent decision in Derry v. Peek (I), but there is nothing in that case to
warrant this view, for the Judge at the trial found as a fact that there
had been no fraud, the defendants' offence being that they drew a

(6) Trower v. Newcombe, 3 Meriv. 704; Attwood v. Small, 6 CI. & F. 232.
(c) Redgrave v. Hurd, 20 Ch. D. 1. See Wright v. Snowe, 3 De G. & Sm. 321.
id) Neville v. Wilkinson, 1 Bro. C. C. 543; Attwood v. Small, 6 CI. & P. 232;
Scott V. Dixon, 29 L. J. Ex. 62 n. ; Pidcock v. Bishop, 3 B. & C. 605.
(e) Neville v. Wilkinson, 1 Bro. C. C. 543; Schneider v. Heath, 5 Camp. 506;
Smith V. Bank of Scotland, 1 Dow. 272; Pidcock v. Bishop, 3 B. & C. 605.
(/) Dig. Lib. 2, tit. 14, f. 7, § 9.
(g) Dig. Lib. 18, tit. 1, f. 43, § 2 ; Pothier de Vente, u. 234, 237, 288.
(h) Chesterfield v. Janssen, 2 Ves. Sen. 155.
(i) Evans v. Edmonds, 18 C. B. 777; Reese River Silver Mining Co. v. Smith,
L. R. 4; H. L. 64.
(k) Pulsford V. Richards, 17 Beav. 94; Bfownlie v. Campbell, 5 App. Caa. 936.
(Ij Derry v. Peek, 14 App. Cas. 380.
84 EQUITY JURISPRUDENCE. [CH VI.

particular conclusion from ascertained facts, and were in truth acting

honestly. The decision, however, related to a common law action for
damages for deceit, and is only in part applicable to the equitable right
in respect of innocent misrepresentation to which totally different con-
siderations apply (m). It does not appear, therefore, that an action
may not be maintained for equitable relief where a party has inno-
cently misrepresented a material fact by mistake (n). An innocent
party may be made liable for the fraudulent act of his agent so long
as the latter acts within the scope of his authority (o).
§ 194. These principles are so consonant to the dictates of natural
justice, that it requires no argument to support or enforce them.
The principles of natural justice and sound morals do, indeed, go
farther; and require the most scrupulous good faith, candour, and
truth in all dealings whatsoever. But courts of justice generally find
themselves compelled to assign limits to the exercise of their juris-
diction, far short of the principles deducible ex seqno et bono; and,
with reference to the concerns of human life, they endeavour to aim
at mere practical good and general convenience. Hence many things
may be reproved in sound morals, which are left without any remedy,
except by an appeal in faro conscientiie to the party himself (p).
Pothier has expounded this subject with his usual force and sterling
sense. " As a matter of conscience " (says he), " any deviation from
the most exact and scrupulous sincerity is repugnant to the good faith
that ought to prevail in contracts. Any dissimulation concerning the
object of the contract, and what the opposite party has an interest in
knowing, is contrary to that good faith ; for since we are commanded
to love our neighbour as ourselves, we are not pei-mitted to conceal
from him anything which we should be unwilling to have had con-
cealed from ourselves under similar circumstances. But in civil
tribunals a person cannot be allowed to complain of trifling deviations
from good faith in the party with whom he has contracted. Nothing
but what is plainly injurious to good faith ought to be there con-
sidered as a fraud, sufficient to impeach a contract; such as the criminal
manoeuvres and artifices employed by one party to induce the other
to enter into the contract. And these should be fully substantiated by
proof. Dolum nan nisi perspicuis indiciis probari convenit" (q).
§ 195. The doctrine of law, as to misrepresentation, being in a
practical view such as has been already stated, it may not be without
use to illustrate it by some few examples. In the first place, the mis-

Cm) Rawlins v. Wickham, 3 De G. & J. 304 ; Adam v. N&wbigging, 13 App. Gas.

308; Nocton v. Lord Ashburton, [1914] A. C. 932.
(n) Pearson v. Morgan, 2 Bro. C. C. 389.
(o) Udell v. Atherton, 7 H. & N. 172; Barwick v. English Joint Stock Bank,
Ij. E. 2 Ex. 259; Mullens v. Miller, 22 Ch. D. 194; Lloyd v. Grace Smith ^ Co
[1912] A. C. 716.
(p) Pothier de Vente, n. 234, 235, 289.
(q) Pothier on Oblig. by Evans, p. 19, n. 30; Cod. Lib. 2, tit. 21, f. 6.
§ 194—196.] ACTUAL FRAUD. 85

representation must be something material, constituting an inducement

or motive to the act or omission of the other party, and by which he
is actually misled to his injury (r). Thus, if a person owning an
estate, should sell it to another, representing that the annual revenue
from the sale of the timber amounted to £250, and this constituted an
inducement to the other side to purchase, and the representation were
utterly false, the contract for the sale, and the sale itself, if com-
pleted, might be avoided for fraud; for the representation would go
to the essence of the contract (s). But if he should represent that the
estate contained twenty acres of woodland or meadow, and the actual
quantity was only nineteen acres and three-quarters, there, if the
difference in quantity would have made no difference to the purchaser
in price, value, or otherwise, it would not, on account of its
immateriality, have avoided the contract (t). So, if a person should
sell a ship to another, representing her to be five years old, of a
certain tonnage, coppered and copper-fastened, and fully equipped,
and found with new sails and rigging; any of these representations,
if materially untrue, so as to affect the essence or value of the pur-
chase, would avoid it. But a trifling difference in either of these
ingredients, in no way impairing the fair value or price, or not material
to the purchaser, would have no such effect. Thus, for instance, if the
ship was a half-ton less in size, was a week more than five years old,
was not copper-fastened in some unimportant place, and was deficient
in some trifling rope, or had some sails which were in a very slight
degree worn; these differences would not avoid the contract; for under
such circumstances, the difference must be treated as wholly incon-
sequential (m). The rule of the civil law would here apply : Res bond
fide vendita propter minimavi cansam inempta fieri non debet.
§ 196. So, if an executor of a will should obtain a release from a
party interested in the estate, upon a representation, false in fact,
that he had no interest therein (x) ; or if a compromise should be effected
between two brothers upon the basis that the elder was illegitimate,
which the younger knew at the date of the compromise was not the
fact (y) ; in each of these cases the transaction would be set aside for
fraud. But if, in point of fact, in the first case, a legacy, though given
in the will, had been revoked by a codicil, the misrepresentation would
not avoid the release, because it is immaterial to the rights of either
party.

(r) Pulsford v. Richards, 17 Beav. 94; Smith v. Chadwick, 20 Ch. D. 27; Bellairs
V. Tucker, 13 Q. B. D. 562.
(s) Lowndes v. Lane, 2 Cox 363.
(t) McQueen v. Farquhar, 11 Ves. 467; Leslie v. Tompson, 9 Ha. 268. See Peers
V. Lambert, 1 Beav. 546.
(m) See 1 Domat, B. 1, tit. 2, § 11, art. 12.
{x) Salkeld v. Vernon, 1 Eden 64.
(y) Gordon v. Gordon, 3 Swanat,'400.
86 EQUITY JURISPRUDENCE. [CH. VI.

§ 197. It was the opinion of the author that the misrepresentation

must not only be in something material, but it must be in something
in regard to which the one party places a known trust and confidence
in the other (a). The cases cited by him do not sustain the conclusion
that a person is justified in making a false statement to another if that
other knew him to be an habitual liar. A party dealing at arm's
length with another, or otherwise not bound to a full disclosure of the
facts, is entitled to assume that the other party will rely upon his own
judgment; and matters of opinion, where the parties are dealing upon
equal terms, if falsely stated, are generally not sufficient to entitle the
party relying upon their accuracy in fact to avoid a contract, and do
not afford a complete answer to an action for specific performance (a).
§ 199. There may be cases in which the very extravagance of the
statement may be of such a character that the true inference, as
matter of evidence, is that the party was not in fact deceived, or else
suffered from what Wigram, V.-C, once called " fraudulent blind-
ness " (b). To this extent it is correct to say that a wilful
misrepresentation may be of such a nature that the other party had no
right to place reliance on it, and it was his own folly to give credence
to it; for courts of equity, like courts of law, do not aid parties who will
not use their own sense and discretion upon matters of this sort (c).
But the general principle established beyond cavil or question is that
it is no defence that the falsity of a statement was discoverable upon
inquiry made in quarters from which information could be obtained,
and the party deceived has negligently abstained from inquiry (d).
§ 201. To the same ground of unreasonable indiscretion and con-
fidence, may be referred the common language of puffing and com-
mendation of commodities, which, however reprehensible in morals
as gross exaggerations or departures from truth, are nevertheless not
treated as frauds which will avoid contracts (e). In such cases the
other party is bound, and, indeed, is understood, to exercise his own
judgment, if the matter is equally open to the observation, examina-
tion, and skill of both. To such cases the maxim applies : Simplex
commendaiio non ohligat. The seller represents the qualities or value

(z) See Smith v. The Bank of Scotland, 1 Dow 275; Evans v. Bicknell, 6 Ves. 173,
182 to 192.
(a) Cadman v. Horner, 18 Ves. 10; Wall v. Stubbs, 1 Mad. 80; Haygarth v.
W'earing, L. B. 12 Eq. 320; In re Pacaza Rubber d Produce Co., Lim., Burns'
Application, [1914] 1 Ch. 542.
(b) Jones v. Smith, 1 Hare, at p. 61; Clapham v. Shillito, 7 Beav. 146. See the
principle stated and applied at the common law, Shrewsbury v. Blount, 2 Man. & G.,
at p. 504; Bell v. Gardiner, 4 Man. & G., at p. 24.
(c) Fenton v. Browne, 14 Ves. 144; Trower v. Newcome, 3 M«r. 704; Kelly v.
Enderton, [1913] A. C. 191.
(d) Central Railway of Venezuela v. Kisch, L. B. 2 H. L. 99; Lindsay Petroleum
Co. V. Hurd, L. B. 5 P. C. 221; Redgrave v. Hurd, 20 Ch. D. 1.
ie) Chandelo v. Lopus, Cro. Jac. 2; Scott v. Hanson, 1 Sim. 13, 1 Buss. & M. 128;
In re Hurlbatt d Chaytor's Cont., 57 L. J. Ch. 421.
§ 197 204.] ACTUAL FRAUD. 87

of the commodity, and leaves them to the judgment of the buyer. The
Eoman law adopted the same doctrine. " Ea quae commendandi causa
in venditionibus dieuntur, si palam appareant, venditorem non obligant ;
veluti, si dicat servum speeiosum, domum' bene sBdifieatam " (/).
But, if the means of knowledge are not equally open, the same law
pronounced a different doctrine. " At, si dixerit, hominem, literatum,
vel artificem prsestare debet; nam hoc ipso puris vendidit " (g). The
misrepresentation enhances the price. The same rule will apply if
any artifice is used to disguise the character or quality of the com-
modity ;or to mislead the buyer at the sale ; such as holding out false
colours, and thereby taking the buyer by surprise (h).
§ 202. In the next place, the party must be misled by the mis-
representatifor,
on ; if he knows it to be false, when made, it cannot
be said to influence his conduct; and it is his own indiscretion, and
not any fraud or surprise, of which he has any just complaint to
make under such circumstances («).
§ 203. And in the next place, the party must have been misled to
his prejudice or injury; for courts of equity do not, any more than
courts of law, sit for the purpose of enforcing moral obligations, or
correcting unconscientious acts, which are followed by no loss or
damage. It has been very justly remarked, that, to support an action
at law for a misrepresentation, there must be a fraud committed by
the defendant, and a damage resulting from such fraud to the plaintiff.
And it has been observed with equal truth, by a very learned judge,
that fraud and damage coupled together will entitle the injured
party to relief in any court of justice (fc).
§ 204. Another class of cases for relief in equity is, where there is
an undue concealment, or suppressio veri, to the injury or prejudice
of another. It is not every concealment, even of facts material to
the interest of a party, which will entitle him to the interposition of
a court of equity. The case must amount to the suppression of facts
which one party, under the circumstances, is bound in conscience
and duty to disclose to the other party, and in respect to which he
cannot innocently be silent (Z). It has been said by Cicero, " Aliud
est celare, aliud tacere. Neque enim id est celare, quidquid retieeas;
sed cum, quod tu scias, id ignorare emolumenti tui causa veils eos,
quorum intersit id scire " (m). It has been remarked by a learned

if) Dig. Lib. 18, tit. 1, f. 43.

(3) Ibid.
(h) Schneider v. Heath, 3 Camp. 506; Robinson v. Wall, 2 Ph. 372; Smith v.
Harrison, 26 L. J. Ch. 412.
(i) Jennings v. Broughton, 17 Beav. 234, 5 De G. M. & G. 120; Nelson v. Stacker,
4 De G. & J. 458.
(k) Pasley v. Freeman, 3 T. E. 51.
(/) Turner v. Harvey, Jac. 169; Railton v. Mathews, 10 CI. & F. 934.
(to) Cic. de Offic. Lib. 3, ch. 12, 13. See Knight Bnjce, V.-C, Nelthorpe v.
Hdgate, 1 Coll., at p. 221.
88 EQUITY JURISPRUDENCE. [CH. VI.

author, that this definition of concealment, restrained to the efficient

motives and precise subject of any contract, will generally hold to
make it void in favour of either party, who is misled by his ignorance
of the thing concealed (n). And Cicero proceeds to denounce such
concealment in terms of vehement indignation. " Hoc autem celandi
genus quale sit, at cujus hominis, quis non videt ? Certfe non aperti,
non simplicis, non ingenui, non justi, non viri boni; versuti potius,
obscuri, astuti, fallacis, malitiosi, callidi, veteratoris, vafri " (o).
§ 205. But this statement is not borne out by the acknowledged
doctrines, either of courts of law or of equity, in a great variety of
cases. However correct Cicero's view may be of the duty of every
man, in point of morals, to disclose all facts to another with whom
he is dealing which are material to his interest, yet it is by no means
true that courts of justice generally, or, at least, in England, under-
take the exercise of such a wide and difficult jurisdiction. Thus it
has been held by Lord Thurlow (and the case falls precisely within
the definition by Cicero of undue concealment) that if A., knowing
there is a mine in the land of B., of which he knows B. to be
ignorant, should, concealing the fact, enter into a contract to purchase
the estate of B. for a price which the estate would be worth without
considering the mine, the contract would be good, because A., as the
buyer, is not obliged, from the nature of ttie contract, to make the
discovery. In such cases the question is not whether an advantage
has been taken, which in point of morals is wrong, or which a man of
delicacy would not have taken. But it is essentially necessary, in
order to set aside the transaction, not only that a great advantage
should be taken, but also that there should be some obligation on
the party to make the discovery. A court of equity will not correct
or avoid a contract merely because a man of nice honour would not
have entered into it. The case must fall within some definition of
fraud, and the rule must be drawn so as not to affect the general
transactions of mankind (p). And this, in effect, is the conclusion to
which Pothier arrived, after a good deal of struggle, in adjusting the
duties arising from moral obligation with the necessary freedom and
convenience of the common business of human life (q).
§ 206. Mr. Chancellor Kent, in his learned commentaries, after
admitting the doctrine and authority of Lord Thurlow in the case
above stated, concludes with the following acute and practical reflec-
tions: "From this and other cases it would appear that human laws
are not so perfect as the dictates of conscience, and the sphere of
morality is more enlarged than the limits of civil jurisdiction. There
are many duties that belong to the class of imperfect obligations

(n) Marshall on Insur. B. 1, ch. 11, § 3, p. 473.

(o) Cic. de Offic. Lib. 3, cap. 13.
{p) Fox V. Mackreth, 2 Bro. C. C. 420; Turner v. Harvey, Jac. 169.
(g) Pothier de Vente, n. 234, 242.
 § 205 — 207.] ACTUAL FRAUD. 89

which are binding on conscience, but which human laws do not and
cannot undertake directly to enforce. But when the aid of a court
of equity is sought to carry into execution such a contract, then the
principles' of ethics have a more extensive sway. And a purchase
made with such a reservation of superior knowledge would be of too
sharp a character to be aided and forwarded in its execution by the
powers of the Court, of Chancery. It is a rule in equity that all the
material facts must be known to both parties to render the agreement
fair and just in all its parts; and it is against all the principles of
equity that one party, knowing a material ingredient in an agree-
ment, should be permitted to suppress it, and still call for a specific
performance (r). The importance and value of the distinction here
pointed out will be made more apparent when we come to the con-
sideration ofthe cases in which courts of equity refuse to decree a
specific performance of contracts which yet they will not undertake
to set aside (s).
§ 207. The true definition, then, of undue concealment, which
amounts to a fraud in the sense of a court of equity, and for which it
will grant relief, is the non-disclosure of those facts and circum-
stances which one party is under some legal or equitable obligation
to communicate to the other, and which the latter has a right not
merely in foro conscientise but juris et de jure to know (t). Mr. Chan-
cellor Kent has avowed a broader doctrine. "As a general rule "
(says he), " each party is bound in every case to communicate to the
other his knowledge of material facts, provided he knows the other
to be ignorant of them, and they be not open and naked, or equally
within reach of his observation" («). This doctrine, in this latitude
of expression, may, perhaps, be thought not strictly maintainable,
or in conformity with that which is promulgated by courts of law
or equity. For many most material facts may be unknown to one
party and known to the other, and not equally accessible, or at the
moment within the reach of both ; and yet contracts founded upon such
ignorance on one side and knowledge on the other may be com-
pletely obligatory. Thus, if one party has actual knowledge of an
event or fact from private sources not then known to the ether
party from whom he purchases goods, and which knowledge would
materially enhance the price of the goods or change the intention of
the party as to the sale, the contract of' sale of the goods will, never-
theless, be valid {x}.

(r) 2 Kent. Comm. Lect. 39, pp. 490, 491 (4th edit. 3) ; Ellard v. Lord Llandajf,
1 Ball & Beat. 250, 251.
is) See §§ 693, 769, 770, infra.
(t) Fox V. Mackreth, 2 Bro. C. C. 420 ; Railton v. Mathews, 10 CI. & P. 934 ;
Hamilton v. Watson, 12 CI. & P. 109.
(u) 2 Kent, Comm. Lect. p. 482 (4th edit.), and note, ibid., where it ia now
qualified.
(x) The case of the unknown mine, already put in the case of Fox v. Mackreth,
90 EQUITY JURISPRUDENCE. [CH. VI.

§ 208. Even Pothier himself, strongly as he inclines, in all cases of

this sort, to the principles of sound morals, declares, that the buyer
cannot be heard to complain that the seller has not informed him of
circumstances extrinsic of the thing sold, whatever may be the interest
which he has to know them (y). So that the doctrine of Mr. Chancellor
Kent requires to be qualified, by limiting it to cases where one party
is under some obligation to communicate the facts, or where there
is a peculiar known relation, trust, or confidence between them, which
authorizes the other party to act upon the presumption that there
is no concealment of any material fact. Thus, if a vendor should sell
an estate, knowing that he had no title to it, or knowing that there
were incumbrances on it, of which the vendee was ignorant; the sup-
pression of these or any other material facts, in respect to which the
vendor must know that the very purchase implied a trust and con-
fidence on the part of the vendee, that no such defect existed, would
clearly avoid the sale on the ground of fraud (z).
§ 209. The like reason would apply to a case where the vendor
should sell a house, situate in a distant town, which he knew at the
time to be burnt down, and of which fact the vendee was ignorant;
for it is impossible to suppose, that the actual existence of the house
should not be understood by the vendee, as implied on the part of the
vendor at the time of the bargain (a). The same doctrine prevails
in the civil law. " Sin autem venditor quidem sciebat domum esse
exustam, emptor autem ignorabat, nullam venditionem stare " (b).
§ 210. These latter cases are founded upon circumstances intrinsic
in the contract, and constituting its essence. And there is often a
material distinction between circumstances which are intrinsic, and
form the very ingredients of the contract, and circumstances which
are extrinsic, and form no part of it, although they may create induce-
ments to enter into it, or affect the value or price of the thing sold.
Intrinsic circumstances are properly those which belong to the nature,
character, condition, title, safety, use, or enjoyment of the subject-
matter of the contract; such as natural or artificial defects in the
subject-matter. Extrinsic circumstances are properly those which
are accidentally connected with it, or rather bear upon it, at the time
of the contract, and may enhance or diminish its value or price, or
operate as a motive to make or decline the contract; such as facts
respecting the occurrence of peace or war, the rise or fall of markets,

2 Bro. C. C. 420, seems to fall within this predicament; Nelthorpe v. Holgate, 7 Coll.
203. See also §§ 147, 148, and 149.
iy) Pothier, Vente, n. 242, 298, 299.
(z) Davies v. Cooper, 5 M. & Cr. 270; Smith v. Harrison, 26 L. J. Ch. 412;
Torrance v. Bolton, L. E. 8 Ch. 118.
(o) See Pothier, Vente, n. 4; ante, § 142.
(6) Dig. Lib. tit. 1, t. 57, § 1 ; ante, § 142.
§ 208 — 213.] ACTUAL FRAUD. 91

the character of the neighbourhood, the increase or diminution of

duties, or the like circumstances (c).
§ 211. In regard to extrinsic, as well as to intrinsic circumstances,
the Eoman law seems to have adopted a very liberal doctrine, carry-
ing out to a considerable extent the clear dictates of sound morals.
It required the utmost good faith in all cases of contracts, involving
mutual interests : and it, therefore, not only prohibited the assertion
of any falsehood, but also the suppression of any facts, touching the
subject-matter of the contract, of which the other party was ignorant,
and which he had an interest in knowing. In an especial manner it
applied this doctrine to cases of sales; and required that the vendor
and vendee should disclose, each to the other, every circumstance
within his knowledge touching the thing sold, which either had an
interest in knowing. The declaration in regard to the vendor (as we
have seen) is : " Dolum malum a se abesse praestare venditor debet ;
qui non tantum in eo est, qui fallendi causa obscure, loquitur; sed
etiam, qui insidios^, obscur^ dissimulat ' ' ; and the same rule was
applied to the vendee (d). According to these principles, the vendor
was by the Eoman law required, not only not to conceal any defects
of the thing sold, which were within his knowledge, and of which the
other party was ignorant, whenever those defects might, as vices, upon
the implied warranty created by the sale, entitle him to a redhibition
or a rescission of the contract; but also all other defects, which the
other party was interested in knowing (e).
§ 212. In regard to intrinsic circumstances, the common law, how-
ever, has in many cases adopted a rule very different from that of the
civil law; and especially in cases of sales of goods. In such cases,
the maxim caveat emptor is applied ; and unless there be some mis-
representation or artifice, to disguise the thing sold, or some warranty,
as to its character or quality, the vendee is understood to be bound by
the sale, notwithstanding there may be intrinsic defects and vices in
it, known to the vendor, and unknown to the vendee, materially
affecting its value. However questionable such a doctrine may be, in
its origin, in point of morals or general convenience (upon which many
learned doubts have, at various times, been expressed), it is too firmly
established to be now open to legal controversy (/). And courts of
equity, as well as courts of law, abstain from any interference with
it.
§ 213. In regard to intrinsic circumstances generally, courts of
equity, as well as courts of law, seem to adopt the same maxim to

(c) Kenney v. Wexham, 6 Mad. 355; Scott v. Goulson, [1903] 2 Ch. 249. Pothier,
Vente, u. 236.
(rf) Dig. Lib. 18, tit. 1, f. 43, § 2; Pothier, Vente, n. 233 to 241; ibid. n. 226;
ante, § 192; Pothier, Vente, cited in note c, p. 185.
(e) Pothier, Vente, n. 235.
(/) Chandelor v. Lopus, Cro. Jac. 2; Ward v. Hobbs, 4 App. Cas. 13.
92 EQUITY JURISPRUDENCE. [CH. VI.

a large extent, and relax its application, only when there are circum-
stances of peculiar trust, or confidence, or relation between the
parties.
§ 214. But there are cases of intrinsic circumstances, in which
courts of law and courts of equity both proceed upon a doctrine
strictly analogous to that of the Eoman law, and treat the conceal-
ment of them as a breach of trust and confidence justly reposed.
Indeed, in most cases of this sort, the very silence of the party must
import as much as a direct affirmation, and be deemed equivalent
to it (g).
§ 215. Thus, if a party taking a guarantee from a surety, conceals
from him facts which go to vary the risk assumed in a material
particular, or suffers him to enter into the contract under false
impressions, as to the real state of the facts, such a concealment
will amount to a fraud; because the party is bound to make the
disclosure, and the omission to make it, under such circumstances, is
equivalent to an affirmation that the facts do not exist (h). So, if a
party knowing himself to be cheated by his clerk, and, concealing the
fact, applies for security in such a manner and under such circum-
stances, as would naturally lead to the inference that he considers
the clerk to be a trustworthy person ; and another person becomes his
security, acting under the impression that the clerk is so considered
by his employer ; the contract of suretyship will be void ()) ; for the
very silence, under such circumstances, becomes expressive of a trust
and confidence held out to the public, equivalent to an affirmation.
§ 216. Cases of insurance afford another illustration of the same
doctrine. In such cases the insurer necessarily reposes a trust and
confidence that the assured will disclose all facts and circumstances
materially affecting the risk, which are peculiarly within his know-
ledge, and which are not of a public and general nature, or which the
underwriter does not know, or is not bound to know. Indeed, most
of the facts and circumstances which may aSect the risk, are generally
within the knowledge of the assured only ; and therefore, the under-
writer may be said emphatically to place trust and confidence in
him as to all such matters. And hence, the general principle is, that
in all cases of insurance the assured is bound to communicate to
the insurer all facts and circumstances material to the risk, within his

((/) See Martin v. Morgan, 1 Brod. & Bing. 289 ; Owen v. Homan, i H. L. C. 997 ;
Davies v. London and Provincial Marine Ins. Co. 8 Cb. D. 469.
{h) Pidcock V. Bishop, 3 B. & C. 605; Stone v. Compton, 5 Bing. N. C. 142;
Railton v. Matheios, 10 CI. & P. 935; Hamilton v. Watson, 12 CI. & F. 119; North
British Ins. Co. v. Lloyd, 10 Ex. 523; Kingston-upon-Hull Corporation v. Harding,
,[1892] 2 Q. B. 494
(i) Lee v. Jones, 17 C. B. (n.s.) 482; Phillips v. Foxhall, L. E. 7 Q. B. 666;
London Gen. Omnibus Co. v. Holloway, [1912] 2 K. B. 72; Nat. Prov. Bank of
England v. Baron Glanusk, [1913] 3 K. B. 335.
§ 214 — 219.] ACTUAL FRAUD. 93

knowledge; and if they are withheld, whether the concealment be by-

design or by accident, it is equally fatal to the contract (fc).
§ 217. The same principle, applies in all cases where the party
is under an obligation to make a disclosure, and conceals material
facts. Therefore, if a release is obtained from a party in ignorance;
of material facts, which it is the duty of the other side to disclose,
the release will be held to be invalid (I). So, in cases of family
agreements, and compromises, if there is any concealment of material
facts, the compromise will be held invalid, upon the ground of mutual
trust and confidence reposed between the parties (m). And, in like-
manner, if a devisee, by concealing from the heir the fact that the will
has not been duly executed, procures from the latter a release of his;
title, pretending that it will facilitate the raising of money to pay the
testator's debts, the release will be void on account of the fraudulent
concealment (n).
§ 218. But by far the most comprehensive class of cases of undue-
concealment arises from some peculiar relation, or fiduciary character
between the parties. Among this class of cases are to be found those
which arise from the relation of client and solicitor, principal and
agent, principal and surety, parent and child, guardian and ward,
ancestor and heir, trustee and cestui que trust, executors or adminis-
trators and creditors, legatees or other beneficiaries, appointer and
appointee under powers, and partner and part-owners. In these, and
the like eases, the law, in order to prevent undue advantage, from the-
unlimited confidence, affection, or sense of duty, which the relation
naturally creates, requires the utmost degree of good faith (uberrima:
fides) in all transactions between the parties. If there is any misrepre-
sentation, or any concealment of a material fact, or any just
suspicion of artifice or undue influence, courts of equity will interpose,
and pronounce the transaction void, and, as far as possible, restore the
parties to their original rights.
§ 219. This subject will naturally come in review in a subsequent
page, when we come to consider what may be deemed the peculiar-
equities between parties in these predicaments, and the guards which
are interposed by the law by way of prohibition upon their trans-
actions (o). It may suffice here, merely by way of illustration, to-
suggest a few applications of the doctrine. Thus, for instance, if
a solicitor, employed by the party, should designedly conceal from
his client a material fact or principle of law, by which he shouldi

(k) Marine Insurance Act, 1906, s. 18; Sibbald v. Hill, 2 Dow. 263; Rivaz v.,
Gerussi, 6 Q. B. D. 222; The Bedouin, [1894] P. 1; Cantiere Meccanico Brindisino v.
Jansen, [1912] 3 K. B. 452.
(I) Lloyd V. Attwood, 8 De G. & J. 614; Farrant v. Blanchford, 1 De G. J. & S-
107.
(m) Gordon v. Gordon, 3 Swanst. 399.
(n) Broderick v. Broderick, 1 P. Will. 239, 249.
(o) Post, §§ 308 to 328.
94 EQUITY JURISPRUDENCE. [CH VI.

gain an interest not intended by the client, it will be held a positive

fraud, and he will be treated as a mere trustee for the benefit of
his client and his representatives. And, in a case of this sort, it will
not be permitted to the solicitor to set up his ignorance of law, or
his negligence, as a defence or an excuse. It has been justly
remarked, that it would be too dangerous to the interests of mankind,
to allow those who are bound to advise, and who ought to be able to
give good and sound advice, to take advantage of their own professional
ignorance to the prejudice of others (p). Solicitors must, from the
nature of the relation, be held bound to give all the information which
they ought to give, and not be permitted to plead ignorance of that
which they ought to know.
§ 220. In like manner, a trustee cannot, by the suppression of a
fact, entitle himself to a benefit, to the prejudice of his cestui que
trust. Thus, formerly, a creditor of the husband concealing the fact could
not, by procuring himself, by such concealment, to be appointed the
trustee of the wife, entitle himself to deduct his debt from the trust fund
against the wife or her representatives, or even against the person in
whose favour, and at whose instance, he had made the suppression (g).
So, if a partner, who exclusively superintends the business and
accounts of the concern, should, by concealment of the true state of
accounts and business, purchase the share of the other partner for an
inadequate price, by means of such concealment, the purchase will be
held void (?•).
§ 221. Having taken this general notice of cases of fraud, arising
from the misrepresentation or concealment of material facts, we may
now pass to the consideration of some others, which, in a moral as
well as in a legal view, seem to fall under the same predicament, that
of being deemed cases of actual, intentional fraud, as contradistin-
guished from constructive or legal fraud. In this class may properly
be included all cases of unconscientious advantages in bargains,
obtained by imposition, circumventions, surprise, and undue influence,
over persons in general ; and in an especial manner, all unconscientious
advantages, or bargains obtained over persons disabled by weakness,
infirmity, age, lunacy, idiocy, drunkenness, or other incapacity, from
taking due care of, or protecting their own rights and interests.
§ 222. The general theory of the law, in regard to acts done and
contracts made by parties, affecting their rights and interests, is, that
in all such cases there must be a free and full consent to bind the
parties. Consent is an act of reason, accompanied with deliberation,
the mind weighing, as in a balance, the good and evil on each side.
And, therefore, it has been well remarked by an able commentator

(p) Bulkley v. Wilford, 2 CI. & F. 102; post, § 311

iq) Dalbiac v. Dalbiac, 16 Ves. 115; post, § 321.
(r) Maddeford v. Austwick, 1 Sim. 89; 2 M. & K. 279; Helmore v. Smith, 35
Ch. D. 436.
§ 220—230.] ACTUAL FRAUD. 95

upon the law of nature and nations, that every true consent supposes
three things: first, a physical power; secondly, a moral power; and,
thirdly, a serious and free use of them. And Grotius has added, that
what is not done with a deliberate mind does not come under the
class of perfect obligations (s). And hence it is that, if consent is
obtained by meditated imposition, circumvention, surprise, or undue
influence, it is to be treated as a delusion, and not as a deliberate
and free act of the mind. For, although the law will not generally
examine into the wisdom or prudence of men in disposing of their
property, or in binding themselves by contracts or by other acts, yet
it virill not suffer them to be entrapped by the fraudulent contrivances,
or cunning, or deceitful management of those who purposely mislead
them.
§ 223. It is upon this general ground, that there is a want of
rational and deliberate consent, that the contracts and other acts of
idiots, lunatics, and other persons, non compotes mentis, are generally
deemed to be voidable in courts of equity. But it is difficult to appre-
ciate the mental attitude of the learned author who collected in this
and subsequent paragraphs, cases dealing with the capacity of a party
to contract under a category of actual fraud. An advantage taken by
a person who knows that the other contracting party is insane, is a
fraud, but nothing short of this will invalidate the contract (<), unless
the party has been found to be a lunatic by inquisition (u).
§ 230. Lord Coke has enumerated four different classes of persons
who are deemed in law to be non compotes mentis. The first is an
idiot, or fool natural; the second is he who was of good and sound
memory, and by the visitation of God has lost it; the third is a lunatic,
lunaticus qui ffaudet lucidis intervallis, and sometimes is of a good
and sound memory, and sometimes non compos mentis ; and the fourth
is a non com,pos m,entis by his own act, as a drunkard (x). In respect
to the last class of persons, although it is regularly true that drunken-
ness doth not extenuate any act or offence committed by any person
against the laws ; but it rather aggravates it, and he shall gain no
privilege thereby; and, although in strictness of law, the drunkard
has less ground to avoid his own acts and contracts than any other
non compos mentis; yet courts of equity will relieve against acts
done, and contracts made, by him while under this temporary insanity,
where they are procured by the fraud or imposition of the other
party. For, whatever may be the demerit of the drunkard himself,
the other party has not the slightest ground to claim the protection

(s) Grotius de Jure Belli et Pacis, Lib. 2, ch, 11, § 4.

(t) Campbell v. Hooper, 3 Sm. & G-. 153; Imperial Loan Co. v. Stone, [1892]
1 Q. B. 599; Sale of Goods Act, 1894, s. 2. See In re Rhodes; Rhodes v. Rhodes,
44 Ch. D. 94
(u) In re Walker, [1905] 1 Ch. 160.
(x) Beverley's Case, 4 Co. 124.
96 EQUITY JURISPRUDENCE. [CH. VI.

of courts of equity against his own grossly immoral and fraudulent

conduct [y).
§ 231. But to set aside any act or contract on account of drunken-
ness, it is not sufficient that the party is under undue excitement
from liquor. It must rise to that degree which may be called exces-
sive drunkenness, where the party is utterly deprived of the use of
his reason and understanding; for in such a case there can in no
just sense be said to be a serious and deliberate consent on his part;
and without this, no contract or other act "Can or ought to be binding
by the law of nature (a). If there be not that degree of excessive
drunkenness, then courts of equity will not interfere at all, unless
there has been some contrivance or management to draw the party
into drink, or some unfair advantage taken of his intoxication, to
obtain an unreasonable bargain or benefit from him (a). For, in
general, courts of equity, as a matter of public policy, do not incline,
on the one hand, to lend their assistance to a person who has obtained
an agreement or deed from another in a state of intoxication; and, on
the other hand, they are equally unwilling to assist the intoxicated
party to get rid of his agreement or deed, merely on the ground of
his intoxication at the time. They will leave the parties to their
ordinary remedies at law, unless there is some fraudulent contrivance
or some imposition practised (b).
§ 232. It is upon this special ground that courts of equity have
acted in cases where a broader principle has sometimes been supposed
to have Tseen upheld. They have, indeed, indirectly, by refusing
relief, sustained agreements, which have been fairly entered into,
although the party was intoxicated at the time. And especially,
they have refused relief where the agreement was to settle a family
dispute, and was in itself reasonable (c). But they have not gone the
length of giving a positive sanction to such agreements, so entered
into, by enforcing them against the party, or in any other manner
than by refusing to interfere in his favour against them (d).
§ 234. Closely allied to the foregoing are cases where a person,
although not positively non compos, or insane, is yet of such great
weakness of mind as to be unable to guard himself against imposi-
tion, or to resist importunity or undue infliuenee. And it is quite
immaterial from what cause such weakness arises ; whether it arises
from temporary illness, general mental imbecility, the natural inca-
pacity of early infancy, the infirmity of extreme old age, or those
accidental depressions which result from sudden fear, or constitu-

(y) See Cook v. Claijworth, 18 Ves. 12.

{z) Cook V. ClaywoTth, 18 Ves. 12; Lord Dunboyne v. Mulvihill, 1 Bli. 137.
(a) Cook V. Clayworth, 18 Ves. 12 ; Say v. Barwick, 1 Ves. & B. 195.
(b) Cooke V. Clayworth, 18 Ves. 12.
(c) Cory V. Cory, 1 Ves. Sen. 19; Dunnage v. White, 1 Swanst. 137, 150.
(d) Lightfoot v. Heron, 8 Y. & C. Ex. 586; Shaw v. Thackray, 1 Sm. & G. 537.
§ 231—237.] ACTUAL FRAUD. 97

tional despondency, or ovenvhelming calamities (e). For it has been

well remarked that, although there is no direct proof that a man is
non compos, or delirious, yet, if he is a man of weak understa,nding,
and is harassed and uneasy at the time, or if the deed is executed by
him in extremis, or when he is a paralytic, it cannot be supposed that
he had a mind adequate to the business which he was about, and he
might be very easily imposed upon. " It is not every bargain which
distress may induce one man to offer, that another is at liberty to
accept " (/).
§ 237. The language of Lord Wynford, in Blackford v.
Ohristiam. (g), applies a mode of reasoning to the subject compatible at
once with the dictates of common sense and legal exa-ctness and pro-
priety. "The law will not assist a man who is capable of tailing care
of his own interest, except in cases where he has been imposed upon
by deceit, against which ordinary prudence could not protect him.
If a person of ordinary understanding, on whom no fraud has been
practised, makes an imprudent bargain, no court of justice can release
him from it. Inadequacy of consideration is not a substantial ground
for setting aside a conveyance of property. Indeed, from the fluc-
tuation ofprices, owing principally to the gambling spirit of speculation
that now unhappily prevails, it would be difficult to determine what
is an adequate price for anything sold. At the time of the sale the
buyer properly calculates on the rise in the value of the article bought,
of which he would have the advantage. He must not, therefore,
complain if his speculations are disappointed, and he becomes a loser,
instead of a gainer, by his bargain. But those who,, from imbecility
of mind, are incapable of taking care of themselves, are under the
special protection of the law. The strongest mind cannot always
contend with deceit and falsehood. A bargain, therefore, into which
a weak one is drawn, under the influence of either of these, ought
not to be held valid, for the law requires that good faith should be
observed in all transactions between man and man." And, addressing
himself to the case before him, he added : "If this conveyance could
be impeached on the ground of the imbecility of Fitzsimmons only,
a sufficient case has not been made out to render it invalid ; for
the imbecility must be such as would justify a jury, under a commis-
sion of lunacy, in putting his property and person under the protection
of the chancellor. But a degree of weakness of intellect, far below
that which would justify such a proceeding, coupled with other cir-
cumstances, to show that the weaJmess, such as it was, had been
taken advantage of, will be sufficient to set aside any important
deed" Qi).
(e) Gibson v. Russell, 2 Y. & C. Ch. 104.
(/) Grant, M.E., Bowes v. Heaps, 3 Ves. & B. 119.
(g) Blachford v. Christian, 1 Knapp, 77.
(h) Ibid.
E.J. 7
98 EQUITY JURISPKUDENCE. [CH VI.

§ 238. The doctrine, therefore, may be laid down as generally true

" that the acts and contracts of persons who are of weak understand-
ings, and who are thereby liable to imposition, will be held void in
courts of equity, if the nature of the act or contract justify the con-
clusion that the party has not exercised a deliberate judgment, but
that he has been imposed upon, circumvented, or overcome by
cunning or artifice, or undue influence " (i). It has been said that the
common law required that a person, to dispose of his property by will
should be of sound and disposing memory, which imports that the
testator should have understanding to dispose of his estate with judg-
ment and discretion; and this is to be collected from his words, actions,
and behaviour at the tame, and not merely from his being able to give
a plain answer to a common question (fe). The doctrine has long since
been abandoned. But, as fraud in regard to the making of wills of real
estate belonged in a peculiar manner to courts of law, and fraud in
regard to personal estate to the Court of Probate, although some-
times relievable in equity, that part of the subject seems more proper
to be discussed in a different treatise (I).

§ 239. Cases of an analogous nature may easily be put, where the

party is subjected to undue influence, although in other respects of
competent understanding. As, where he does an act, or makes a
contract, when he is under duress, or the influence of extreme terror,
or of threats, or of apprehensions short of duress. For, in cases of
this sort, he has no free will, but stands in vinculis. And the
constant rule in equity is, that, where a party is not a free agent,
and is not equal to protecting himself, the court will protect him (m).
The maxim of the common law is: " Quod aliks bonuni et justum
est, si per vim vel fraudem petatur, malum et injustum efficitur " {n).
On this account courts of equity watch with extreme jealousy all
contracts made by a party while under imprisonment; and, if there
is the slightest ground to suspect oppression or imposition in such
cases, they will set the contracts aside (o). Illiteracy (p), or circum-
stances of extreme necessity and distress of the party, although not
accompanied by any direct restraint or duress, may, in like manner, so
entirely overcome his free agency as to justify the court in setting

(i) See Gartside v. Isherwood, 1 Bro. C. C. 560, 561.

(ft) Waring v. Waring, 6 Moo. P. C. 341.
(!) Jenkins v. Moore, 14 Ch. D. 674; Allen v. McPherson, 1 H. L. C. 191;
Melhuish v. Milton, 3 Ch. D. 27.
(m) Baker v. Monk, 4 De G-. J. & S. 388; Rees v. De B/rnardy, [1896] 2 Ch.

(n) Fermor's Case, 3 Co. 78.

(o) Roy V. Duke of Beaufort, 2 Atk. 190.
(p) Price V. Price, 1 De G. M. & G. 308.
§ 238—240.] ACTUAL FRAUD. 99

aside a contract made by him, on account of some oppression, or

fraudulent advantage, or imposition, attendant upon it (g).
§ 240. The acts and contracts of infants, that is, of all persons
under twenty-one years of age (who are by the common law deemed
infants), are, a fortiori, treated as falling within the like predica-
ment. For infants are by law generally treated as having no
capacity to bind themselves, from tlie want of sufficient reason and
discernment of understanding; and, tiherefore, their grants and those
of lunatics are, in many respects, treated as parallel both in law and
reason. There are, indeed, certain excepted cases, in which infants
are permitted by law to bind themselves by their acts and contracts.
But these are all of a special nature; as, for instance, infants may
bind themselves by a contract for necessaries, suitable to their degree
and quality (r) ; or by a contract of hiring and services for wages (s) ; or
by some act which the law requires them to do. And, generally,

(g) Fry v. Lane, 40 Ch. D. 312. The doctrine of the common law, upon the
subject of avoiding" contracts upon the ground of mental weakness, or force, or undue
influence, does not seem, in any essential manner, to differ from that adopted in the
Soman law, or in the law of modern continental Europe. Thus we find in the Roman
law, that .contracts may be avoided, not only for incapacity, but for mental imbecility,
the use of force, or the want of liberty in regard to the party contracting. Ait Prsstor,
Quod metus causa gestum erit, ratum non habebo. Dig. Lib. 4, tit. 2, f. 1. But
then the force, or fear, must be of such a nature as may well overcome a firm man.
Metum accipiendum, Labeo dicit, non queralibet timorem, sed majoris malitatis. Dig.
Lib. 4, tit. 2, f. 6. The party must be intimated by the apprehension of some serious
evil of a present and pressing nature. Metum non vani hominis sed qui merito et in
hominem constantissimum cadat. Dig. Lib. 4, tit. 2, f. 6. He must act, Metu
majoris malitatis; and feel that it is immediate; Metum presentum accipere debemus,
non suspicionem inferendi ejus. See Dig. Lib. 4, tit. 2, f. 9; 1 Domat, Civil Law, B. 1,
tit. 18, § 2, art. 1 to 10. Pothier gives his assent to this general doctrine; but he
deems the civil law too rigid in requiring the menace or force to be such as might
intimidate a constant or firm man ; and very properly thinks that regard should be had
to the age, sex, and condition of the parties. Pothier on Olig. n. 25. Mr. Evans
thinks that any contract produced by the actual intimidation of another ought to be
held void, whether it were the result of personal infirmity merely, or of such circum-
stances as might ordinarily produce the like effect upon others. 1 Evans, Pothier on
Oblig. n. 25, note (a), p. 18. The Scottish law seems to have followed out the line of
reasoning of the Eoman law with a scrupulous deference and closeness. Brsk. Inst.
B. 4, tit. 1, § 26. The Scottish law also puts the case of imposition from weakness
upon a clear ground. " Let one be evec so subject to imposition, yet, if he has under-
standing enough to save himself from a sentence of idiocy, the law makes him capable
of managing his own affairs, and consequently his deeds, however hurtful they may
be to himself, must be effectual, unless evidence be brought, that they have been
drawn or extorted from him by unfair practices. Yet where lesion (injury) in the
deed and facility in the grantor concur, the mast slender circumstances of fraud or cir-
cumvention are sufficient to set it aside." Ersk. Inst. B. 4, tit. 1, § 27. Mr. Bell ha.9
also stated the same principle in the Scottish law with great clearness. There may be
in one of perfect age a degree of weakness, puerility, or prodigality, which although
not such as to justify a verdict of insanity, and place him under guardianship, as
insane, may yet demand soma protection for him against unequal or gratuitous aliena-
tion. 1Bell, Comm. 139. See Harvey v. Maunt, 8 Beav. 439.
(r) Sale of Goods Act, 1894, =*. 2; Nash v. Inman, [1908] 2 K. B. 1 ; Stocks v.
Wilson, [1913] 2 K. B. 235.
is) Roberts v. Gray, [1913] 1 K. B. 520.
100 EQUITY JURISPRUDENCE. [CII. VI.

infants are favoured by the law, as well as by equity, in all things

which are for their benefit, and are saved from being prejudiced by
anything to their disadvantage. But this rule is designed as a shield
for their own protection; it is not allowed to operate as a fraud or
injustice to others ; at least not where a court of equity has authority
to reach it in cases of meditated fraud.
§ 241. In regard to the acts of infants, some are voidable and
some are void; and so, also, in regard to their contracts, some are
voidable and some are void. Where they are utterly void, they are
from the beginning mere nullities, and incapable of any operation.
But where they are voidable, it is in the election of the infant to
avoid them or not, which he may do, when he arrives at full age. In
this respect, he is by law differently placed from idiots and lunatics;
for the latter, as we "have seen, are not, or at least may not, at law, be
allowed to stultify themselves. But an infant may, at his coming of
age, avoid or confirm any voidable act or contract at his pleasure.
In general, where a contract may be for the benefit or to the prejudice
of an infant, he may avoid it as well at law as in equity. Where
it can never be for his benefit, it is utterly void. x\nd in respect to
the acts of infants of a more solemn nature, such as deeds, gifts, and
grants, this distinction has been insisted on, that such as do take
effect by delivery of his hand are voidable ; but such as do not so
take effect are void (f). In a late case it was held that an infant's
contraict in respect of a subject of a permanent character is not void,
but merely voidable ; and if the infant wishes to repudiate such a
contra-ct, he must do so before or within a reasonable time after he
attains full age (u).
§ 241a. The power of infants to contract has been further restricted
by the Infants' Belief Act, 1874 (37 & 38 Vict. c. 62), and the Betting
and Loans (Infants) Act, 1892. An infant may make a valid settle-
ment upon marriage if the sanction of the court be obtained under the
Infants' Settlement Act, 1855 (a;).
§ 242. But, independently of these general grounds, it is clear,
that contracts made and acts done by infants in favour of persons
knowing their imbecility and want of discretion, and intending to
take advantage of them, ought, upon general principles, to be held
void, and set aside, on account of fraud, circumvention, imposition,
or undue influence. And it is upon this ground of an inability to
give a deliberate and binding consent, that the nullity of such acts
and contracts is constantly put by publicists and civilians. Infans
non multum a furioso distat.

(t) Zouch V. Parsons, 3 Burr. 1794; Keane v. Boycott, 2 H. Bl. 511; In re

Maskell and Goldfinch's Cont., [1895] 2 Ch. 525.
(tt) Whittingham v. Murdy, 60 L. T. 956.
(x) Seaton v. Seaton, 13 App. Cas. 61; Duncan v. Dixon, 44 Ch. D. 211; Edwards
V. Carter, [1893] A. C. 860.
§ 241 — 245.] ACTUAL FRAUD. 101

§ 242a. If an infant obtains money or goods by fraudulently repre-

senting hinaself to be of full age, he becomes liabl|e"to the other
contracting party, but the liability only arises upon the act of the
infant. — concealment is insufficient to fix him with liability {y).
§ 243. In regard to femes covert, the case is still stronger; for,
generally speaking, at law they had no capacity to do any acts, or
to enter into any contracts; and such acts and contracts were treated
as mere nullities. A married woman could act as the agent of her
husband at law (a). Equity followed the law except as regards the
wife's equitable interest in property, in respect to which she could
contract and make herself liable in contract in respect of her separate
estate (a). This power has since been confirmed and extended by the
Married Women's Property Act, 1882. If the married woman was
restrained from anticipation, she could not be made liable by reason
of her fraudulent concealment or denial of a marriage or of the
restraint (b).
§ 244. Of a kindred nature to the cases already considered, are
cases of bargains of such an unconscionable nature, and of such gross
inequality, as naturally lead to the presumption of fraud, imposition,
or undue influence. This is the sort of fraud to which Lord Hard-
wicke alluded, in the passage already cited (c), when he said, that they
were such bargains that no man in his senses and not under delusion
would make, on the one hand, and as no honest and fair man would
accept, on the other, being inequitable and unconscientious bar-
gains (d). Mere inadequacy of price, or any other inequality in the
bargain, is not, however, to be understood as constituting, per se, a
ground to avoid a bargain in equity (e). For courts of equity, as well
as courts of law, act upon the ground that every person who is not,
from his peculiar condition or circumstances, under disability, is
entitled to dispose of his property in such manner and upon such terms
as he chooses ; and whether his bargains are wise and discreet, or profit-
able or unprofitable, or otherwise, are considerations, not for courts of
justice, but for the party himself to deliberate upon.
§ 245. Inadequacy of consideration is not, then, of itself, a dis-
tinct principle of relief in equity. The common law knows no
such principle. The consideration, be it more or less, supports the

iy) Stikeman v. Dawson, 1 De G. & Sm. 90 ; Stocks v. Wilson, [1913] 2 K. 3.

235; Leslie, Lim. v. Shiell, 29 L. T. E. 554.
(z) Debenham v. Mellon, 6 App. Caa. 24.
(a) Hulme v. Tennant, 1 Bro. C. C. 16; Pike v. Fitzgibbon, 17 Ch. D. 454.
(b) Jackson v. Hobhouse, 2 Mer. 483; Cannam v. Parmer, 3 Ex. 698; Sharpe v.
Foy, L. E. 4 Ch. 35; Stanley v. Stanley, 7 Ch; D. 589.
.(c) Ante, § 188.
(d) Chesterfield v. Janssen, 2 Ves. Sen. 155; Grant, M.E., Bowes v. Heaps,
3 Ves. & B. 119.
(e) Wigram, V.-C, Borell v. Dann, 2 Hare, 440; Middleton v. Brown, 47 L. J.
Ch. 411.
102 EQUITY JUEISPEDDENCE. [CH. VI.

contract (/). Common sense knows no such principle. The value of a

thing is what it will produce ; and it admits of no precise standard. It
must be of its nature fluctuating, and will depend upon ten thousand
different circumstances. One man, in the disposal of his property,
may sell it for less than another would. He may sell it under a
pressure of circumstances, which may induce him to part with it at a
particular time. If courts of equity were to unravel all these trans-
actions, they would throw everything into confusion, and set afloat
the contracts of mankind (g). Such a consequence would, of itself, be
sufficient to show the inconvenience and impracticability, if not the
injustice, of adopting the doctrine that mere inadequacy of considera-
tion should form a distinct ground for relief.
§ 246. Still, however, there may be such an unconscionableness
or inadequacy in a bargain, as to demonstrate some gross imposition
or some undue influence ; and in such cases courts of equity ought
to interfere, upon the satisfactory ground of fraud. But then such
unconscionableness or such inadequacy should be made out as would
(to use an expressive phrase) shock the conscience, and amount in
itself t-o conclusive and decisive evidence of fraud (h). And where
tihere are other ingredients in the case, of a suspicious nature, or
peculiar relations between the parties, gross inadequacy of price must
necessarily furnish the most vehement presumption of fraud (z).
§ 247. The difficulty of adopting any other rule, which would not,
in the common intercourse and business of human life, be found
productive of serious inconvenience and endless litigation, is conceded
by civilians and publicists ; and, for the most part, they seem silently
to abandon cases of inadequacy in bargains where there is no fraud,
to the forum of conscience, and morals, and religion. Thus, Domat,
after remarking that the law of nature obliges us not to take advan-
tage of the necessities of the seller, to buy at too low a price, adds :
" But because of the difficulties in fixing the just price of things,
and of the inconveniences, which would be too many and too great,
if all sales were annulled, in which the things were not sold at their
just value, the laws connive at the injustice of buyers, except in the
sale of lands, where the price given for them is less than half of their
value " (fe). So that, in the civil law, sales of personal property are
usually without redress; and even sales of immovable property are in
the same predicament, unless the inadequacy of price amounts to
one-half the value : a rule purely artificial, and which must leave
behind it many cases of gross hardship and unconscionable advantage.

(/) Haigh v. Brooks, 10 A. & E. 309.

(g) Per Byre Ch. B. in Grijfith v, Spratley, 1 Cox 383.
■ (h) Coles v. Trecothick, 9 Vee. 246; Copis v. Middletoii, 2 Mad. 409.
(i) Stillwell V. Wilkinson, Jac. 280.
(fc) 1 Domat, Civil Law, B. 1, tit. 2, § 3, 9, art. 1. See also Heineccius, Elem.
N. et G. § 352 ; id. § 340.
§ 246—248.] ACTUAL fraud. 103

The civil law, therefore, in fixing a moiety, and confining it to immov-

able property, admits, in the most clear manner, the impracticability
of providing for all cases of this nature. " Rem majoris pretii " (says
the Code) ' ' si tu, vel pater tuus minoris distraxerit ; humanum est,
ut vel pretium te restituente ©mptoribus, f undum venundatum recipias,
auctoritate judicis intercedente ; vel si emptor elegerit, quod deest
justo pretio, recipias" (I); thus laying down the broadest rule of
equity and morals, adapted to all cases. But the law-giver, struck
with the unlimited nature of the proposition, immediately adds in
the same law, that the party shall not be deemed to have sold at an
undervalue, unless it amoimts to one-half. " Minus autem pretium
esse videtur, si nee dimidia pare veri pretii soluta sit ' ' (m) ; a logic
not very clear indisputable (n). And yet the civil law was explicit
enough in denouncing fraudulent bargains. " Si pater tuus per vim
coactus domum vendidit; ratum non habebitur, quod non bona iide
gestum est. Malse fidei emptio irrita est (o). Ad rescindendam ven-
ditionem, et malse fidei probationem, hoc solum non sufficit. quod,
magno pretio fundum comparatum, minoris distraotum esse com-
memoras " (pi). So that we see, in this last passage, the very elements
of the doctrine of equity on this subject.
§ 248. Pothier, too, of whom it has been remarked, that he is
generally swayed by the purest morality, says: " Equity ought to
preside in all agreements. Hence it follows, that, in contracts of
mutual interest, where one of the contracting parties gives or does
something, for the purpose of receiving something else, as a. price and
compensation for it, an injury suffered by one of the contracting parties,
even when the other has not had recourse to any artifice to deceive
him, is alone sufiicient to render such contracts vicious. For as
equity, in matters of commerce, consists in equality, when that equity
is violated, as when one of the parties gives more than he receives,
the contract is vicious for want of the equity which ought to preside
in it." He immediately adds: " Although any injury whatever
renders contracts inequitable, and consequently vicious, and the
principle of moral duty (le for mterieur) induces the obligation of
supplying the just price; yet persons of full age are not allowed in
point of law to object to their agreements as being injurious, unless

(I) Cod. Lib. 4, tit. 44, 1. 2; id. 1. 9; Heinecc. Blem. J. N. and N. § 340, 362;
post, § 248.
(m) Cod. Lib. 4, tit. 44, 1. 2;. id. 1. 9; 1 Domat, Civil Law, B. 1, tit. 2, § 9.
(n) In another place the civil law, in relation .to sales, seems plainly to wink out
of sight the immorality of inadequate bargains. Quemadmodum in emendo et vendendo
naturaliter concessum est, quod pluris sit, minoris emere, quod minoris sit, pluris
vendere. Bt ita invicem se circumscribere , ita in locationibus quoque et conditionibus
juris est. Dig. Lib. 19, tit. 2, f. 22, § 3; 1 Domat, Civil Law, B. 1, tit. 18, p. 247.
(o) Cod. Lib. 4, tit. 44, 1. 1, 4, 8.
(p) Cod. Lib. 4, tit. 44, 1. 4; id. 1. 8, 10. See 1 Domat, B. 1, tit. 18, Vices of
Covenants, p. 247.
104 EQUITY JURISPRUDENCE. [CH. VI.

the injury be excessive; a rule wisely established for the security

and liberty of commerce, which requires that a person shall not be
easily permitted to defeat his agreements; otherwise we should not
venture upon making any contract, for fear that the other party,
imagining himself to be injured by the terms of it, would oblige us to
follow it by a lawsuit. That injury is commonly deemed excessive
which amounts to more than a moiety of the just price. And the
person who has suffered such an injury may, within ten years, obtain
letters of rescission for annulling the contract " (q).
§ 249. After such concessions we may well rest satisfied with the
practical convenience of the rule of the common law, which does not
make the inequality of the bargain depend solely upon the price, but
upon the other attendant circumstances which demonstrate imposition,
or some undue influence. The Scottish law has adopted the same
practical doctrine (r).
§ 250. This part of the subject may be concluded by the remark
that courts of equity will not relieve in all cases, even of very gross
inadequacy, attended with circumstances which might otherwise induce
them to act, if the parties cannot be placed in statu quo; as, for
instance, in cases of marriage settlements, for the court cannot unmarry
the parties (s).
§ 251. Cases of surprise, and sudden action without due delibera-
tion, may properly be referred to the same head of fraud or imposi-
tion (t). An undue advantage is taken of the party under circumstances
which mislead, confuse, or disturb the just result of his judgment, and
thus expose him to he the victim of the artful, the importunate, and
the cunning. It has been very justly remarked by an eminent writer
that it is not every surprise which will a'void a deed duly made. Nor
is it fitting, for it would occasion great uncertainty, and it would be
impossible to fix what is meant by surprise, for a man may be said
to be surprised in every action which is not done with so much
discretion as it ought to be. The surprise here intended must be
accompanied with fraud and circumvention, or at least by such cir-
cumstances asdemonstrate that the party had no opportunity to use
suitable deliberation, or that there was some influence or management
to mislead him. If proper time is not allowed to the party and he
acts improvidently, if he is importunately pressed, if those in whom
he places confidence make use of strong persuasions, if he is not
fully aware of the consequences, but is suddenly drawn in to act, if
he is not permitted to consult disinterested friends or counsel before
he is called upon to act, in circumstances of sudden emergency, or
unexpected right or acquisition ; in these and many like cases, if there

(g) Pothier on Oblig. n. 33, 34, by Evans; ante, § 347.

(r) Erskine, Inst. B. 4, tit. 1, § 27; ante, § 247.
(s) 1 Mad. Pr. Ch. 215 ; Ncnth v. Ansall, 2 P. Will. 619.
(t) Evans v. Llewellin, 1 Cox, 333.
§ 249—255.] ACTUAL fraud. 105

has been great inequality in the bargain, courts of equity will assist
the party upon the ground of fraud, imposition, or unconscionable
advantage (u).
§ 252. Many other cases might be put, illustrative of what is
denominated actual or positive fraud. Among these are cases of
the fraudulent suppression or destruction of deeds and other instru-
ments in violation of, or injury to, the rights of others (x); fraudulent
awards, with an intent to do injustice (y) ; fraudulent appointments and
revocations, under powers (z), fraudulent prevention of acts to be done
for the benefit of others, under false statements or false promises (a) ;
frauds in relation to trusts of a secret or special nature (b) ; frauds in
verdicts, judgments, decrees, and other judicial proceedings (c) ; frauds
in the confusion of boundaries of estates and matters of partition and
dower ; frauds in the administration of charities ; and frauds upori
creditors, and other persons, standing upon a like equity.
§ 253. Some of the cases falling under each of these heads belong
to that large class of frauds commonly called constructive frauds,
which will naturally find a place in our future pages. But, as it is
the object of these Commentaries, not merely to treat of questions of
relief, but also of principles of jurisdiction, a few instances will be here
adduced as examples of both species of fraud.
§ 254. In the first place, as to the suppression and destruction of
deed and wills and other instruments. If an heir should suppress
them in order to prevent another party, as a grantee or devisee, from
obtaining the estate vested in him thereby, courts of equity, upoij
due proof by other evidence, would grant relief, and perpetuate the
possession and enjoyment of the estate in such grantee or devisee (d).
For cases for relief against spoliation come in a favourable light before
court® of equity, in odium spoliatoris ; and where the contents of a
suppressed or destroyed instrument are proved, the party (as he ought)
will receive the same benefit as if the instrument were produced (e).
§ 255. In the next place, frauds in regard to powers of appoint-
ment. A person having a power of appointment for the benefit of
others shall not, by any contrivance, use it for his own benefit. Thus,
if a parent has a power to appoint to such of his children as he may
(u) Evans v. LlewelUn, 1 Cox 439; Mcrq. Townshend v. Stangroom, 6 Ves. 338;
Pickett v. Loggon, 14 Ves. 215.
(x) Sharpe v. Foy, L. E. 4 Ch. 35.
iy) Moseley v. Simpson, L. E. 16 Eq. 226.
(«) In re Marsden's Trust, 4 Drew. 594.
(a) Luttrell v. Lord Waltham, cited 14 Ves. 290.
(b) Duke of Portland v. Topham, 11 H. L. C. 32 ; further proceedings Topham v.
Duke of Portland, L. E. 5 Ch. 40.
(c) Exp. White, 4 H. L C. 313; Shedden v. Patrick, 1 Macq. 535; Flower v.
Lloyd, 10 Ch. D. 327 ; Williams v. Preston, 20 Ch. D. 672.
id) Hampden v. Hampden, 1 Bro. P. C. 250; Tucker v. Phipps, 3 Atk. 358.
(e) Mallet v. Halfpenny, cited Prec. Ch. 404; Farrer v. Hutchinson, 3 Y. & C.
Ex. 692. For a case of fraudulent mutilation of marriage register where relief was
denied by reason of lapse of time, see Chatham v. Hoare, L. E. 9 Eq. 571.
106 EQUITY JURISPRUDENCE. [CH. VI.

choose, he shall not, by exercising it in favour of a child in a

consumption, gain the benefit of it himself, or by a secret agreement
with a child, in whose favour he makes it, derive a beneficial interest
from the execution of it (/). A donee is not entitled to exercise a
power of appointment so as to benefit a person not an object of the
power (g), special powers being regarded as fiduciary in the eyes of a
court of equity (h). Upon this principle where a parent, having a
power to appoint among his children, made an illusory appointment,
by giving to one child a nominal and liot a substantial share; for, in
such a case, courts of equity would treat the execution as a fraud
upon the power (j). But by force of the Illusory Appointments Act,
1 "Will. IV. c. 46, and the 37 & 38 Vict. c. 37, the donee of a power
may now exclude any object of the power unless the instrument
creating the power shall declare the amount or share from which no
object of the power shall be excluded (fe).
§ 255 a. There were decisions, that a power given to raise portions,
being a discretionary trust, did not authorise the donee to make an
appointment giving vested interests to children of tender years, and
that if such an appointment were made, a court of equity would
control it by refusing to allow the portions to be raised if the children
did not live to want them. The rule now as laid down by the Court of
Appeal is, tliat where a donee of a power of charging portions on real
estate is not, under the terms of the power, restricted as to the times
at which portions shall vest, appoints a portion to vest immediately,
this portion can be raised in the event of the child dying under twenty-
one and unmarried, unless from the circumstances of the case it
appears that the appointment was a fraud on the power (l).
§ 255&. There is an intermediate class of appointments which
have been held to be fraudulent, where the donee has sought to attain
a particular object which was inadmissible according to the terms or
legal effect of the power (m). This must be distinguished from the
motive, such as spite or ill-will, which induces the particular
appointment (n-).
§ 256. In the next place, the fraudulent prevention of acts to he
done for the benefit of third persons. Courts of equity hold themselves

(/) McQueen v. Farquhar, 11 Ves. 479; In re Perkins; Perkins v. Bagot, [1893]

1 Ch. 283.
(g) In re Marsden's Trust, 4 Drew, 594; Whelan v. Palmer, 39 Ch. D. 698.
(h) Harding v. Glyn, 1 Atk. 469; Brown v. Higgs, 4 Ves. 708, 5 Ves. 495, 8 Ves.
561; In re Bradshaw ; Bradshaw v. Bradshaw, [1902] 1 Ch. 436.
(i) Kemp v. Kemp, 5 "Ves. 849; Butcher v. Butcher, 1 Ves. & B. 79.
3 Ch.(k)565.
In re Capon's Trusts, 10 Ch. D. 484; In re Deakin; Starkey v. Eyres, [18941
(l) Henty v. Wrey, 21 Ch. D. 350.
(m) Duke of Portland v. Topham, 11 H. L. C. 32; Topham v. Duke of Portland
L. E. 6 Ch. 40.
(n) Vane v. Lord Dungannon, 1 Soh. & L. 118; Campbell v. Home, 1 Y & C Ch
664.
§ 255a — 257a.] actual fraud. 107

entirely competent to take from third persons, and a fortiori, from

the party himself, the benefit which may be derived from his
fraud, imposition, or undue influence, in procuring the suppression
of such acts (o). Thus, where a person had fraudulently prevented
another, upon his death-bed, from suffering a recovery at law, with a
view that the estate might devolve upon another person, with whom
he was connected ; it was adjudged, that the estate ought to be held
as if the recovery had been perfected, and that it was against conscience
to suffer it to remain where it was (p). So, if a testator should
communicate his intention to a devisee of charging a lega-cy on his
estate, and the devisee should tell him that it is unnecessary, and he
will pay it, the legacy being thus prevented, the devisee will be
charged with the payment (g). And instances might be multiplied
indefinitely (r).
§ 257. We may close this head of positive or actual fraud, by
referring to another class of frauds, of a very peculiar and distinct
character. Gifts and legacies are often bestowed upon persons, upon
condition that they shall not marry without the consent of parents,
guardians, or other confidential persons. And the question has some-
times occurred, how far courts of equity can or ought to interfere,
where such consent is fraudulently withheld by the proper party,
for the express purpose of defeating the gift or legacy, or of insisting
upon some private and selfish advantage, or from motives of a corrupt,
unreasonable, or vicious nature. It has been said that courts of equity
will not suffer the manifest object of the condition to be defeated by
the fraud or dishonest, corrupt, or unreasonable refusal of the party
whose consent is required to the marriage (s). It is, indeed, a very
delicate and difiicult duty to be performed by such courts. Where
the court has condescended to illustrate the generality of its statement
of principle, it appears that the eases contemplated are those in which
there has been a clear case of over-reaching. It must be remembered
that the court attaches far more weight to the necessity of consent
than to the strict performance of the conditions regarding its
manifestation (f).
§ 257a. In general, a contract which contemplates a fraud upon
third parties is regarded as so far illegal between the immediate parties,
that neither will be entitled to claim the aid of a court, of equity in its
enforcement (m).

(o) Bridgman v. Green, 2 Ves. Sen. 627 ; Huguenin v. Baseley, 14 Ves. 289.
(p) Luttrell v. Lord Waltham, cited 14 Ves. 290; s.c. 11 Ves. 638.
(q) Barrow v. Greenough, 3 Ves. 152.
(r) See cases in note (a) to 3 Ves. 39.
(s) Eastland v. Reynolds, 1 Dick. 317; Goldsmid v. Goldsmid, 19 Ves, 368; Clarke
V. Parker, 19 Ves. 1.
(i) Blaekwell v. Wood, 1 L. J. N. S. Ch. 35; Chapman v. Perkins, [1905] A. C.
106.
(it) Odessa Tramways Co. v. Mendel, 8 Ch. D. 235; Post v. Marsh, 16 Ch. D. 395.
108 CONSTRUCTIVE FRAUD. [CH. VII.

CHAPTER VII.
CONSTRUCTIVE FRAUD.

§ 258. Having thus considered some of the most important cases of

actual or meditated and intentional fraud, in which courts of equity
are accustomed to administer a plenary jurisdiction for relief, we may
now pass to another class of frauds, which, as contradistinguished
from the former, are treated as legal or constructive frauds. By
constructive frauds are meant such acts or contracts as, although not
originating in any actual evil design or contrivance to perpetrate a
positive fraud or injury upon other persons, are yet, by their tendency
to deceive or mislead other persons, or to violate private or public
confidence, or to impair or injure the public interests, deemed equally
reprehensible with positive fraud, and, therefore, are prohibited by
law, as within the same reason and mischief, as acts and contracts,
done malo animo. Although, at first view, the doctrines on this
subject may seem to be of an artificial, if not of an arbitrary, character,
yet, upon closer observation, they will be perceived to be founded in an
anxious desire of the law to apply the principle of preventive justice,
so as to shut out the inducements to perpetrate a wrong, rather than
to rely on mere remedial justice after a wrong has been committed.
By disarming the parties of all legal sanction and protection for their
acts, they suppress the temptations and encouragements, which might
otherwise be found too strong for their virtue.
§ 259. Some of the cases under this head are principally so
treated, because they are contrary to some general public policy, or
to some fixed artificial policy of the law. Others, again, rather grow
out of some special confidential or fiduciary relation between all the
parties, or between some of them, which is watched with especial
jealousy and solicitude, because it affords the power and the means
of taking undue advantage, or of exercising undue influence over
others. And others, again, are of a mixed character, combining, in
some degree, the ingredients of the preceding with others of a
peculiar nature; but they are chiefly prohibited, because they operate
substantially as a fraud upon the private rights, interests, duties, or
intentions of third persons, or unconscientiously compromit. or
injuriously affect, the private interests, right, or duties of the parties
themselves.
§ 260. And, in the first place, let us consider the cases of con-
structive fraud, which are so denominated on account of their being
§ 258 — 265.] CONSTRUCTIVE FRAUD. 109

contrary to some general public policy, or fixed artificial policy of the

law (a). Among these may properly be placed contracts and agreement^
respecting marriage (commonly called ' marriage brokage contracts),
by which a party engages to give another a compensation if he will
negotiate an advantageous marriage for him (b). The civil law does not
seem to have held contracts of this sort in such severe rebuke ; for it
allowed -proxenetae, or matchmakers, to receive a reward for their
services, to a limited extent (c).,
§ 261. In this and the succeeding para-graph the learned author
discussed various mischiefs which decisions in the House of Lords had
prevented, and which it is no longer necessary to consider as being of
practical importance after the lapse of two centuries.
5 263. Be the foundation of the doctrine, however, what it may,
it is now firmly established that all such marriage brokage contracts
are utterly void, as against public policy ; so much so that they are
deemed incapable of confirmation; and even money paid under them
may be recovered back again {d). Nor will it make any difference that-
the marriage is between persons of equal rank and fortune and age,
for the contract is equally open to objection upon general principles ass
being of dangerous consequence.
§ 264. The doctrine has gone even farther, and, with a view to
suppress all undue influence and improper management, it has been
held that a bond, given to the obligee as a remuneration for having
assisted the obligor in an elopement and marriage without the consent-
of friends, is void, even though it is given voluntarily after the marriage,
and without any previous agreement for the purpose ; for it may operate
an injury to the wife, as well as give encouragement to a grossly-
iniquitous transaction, calculated to disturb the peace of families, and
to involve them in irremediable distress (e). It approaches, indeed,
very nearly to the case of a premium in favour of seduction.
§ 265. Of a kindred nature, and governed by the same rules, are
cases where bonds are given, or other agreements made, as a reward
for using influence and power over another person, to induce him to-
make a will in favour of the obligor and for his benefit; for all such
contracts tend to the deceit and injury of third persons, and encourage
artifices and improper attempts to control the exercise of their free
judgment (/). But such cases are carefully to be distinguished from

(o) See Mr. Cox's note to Osmond v. Fitzroy, 3 P. Will. 131. By being contrary
to public policy we are to understand that, in the sense of the law, they are injurious
to, or subversive of, the public interests. See Chesterfield v. Janssen, 1 Atk. 352; s.c„
2 Ves. Sen. 125.
(b) Scribblehill v. Brett, 4 Bro. P. C. 144; Hermann v. Charlesworth, [1905]:
2 K. B. 123.
(c) Cod. Lib. 5, tit. 1, 1. 6.
(d) Hermann v. Charlesworth, [1905] 2 K. B. 123.
(e) Williamson v. Oihon, 2 Sch. & Lefr. 356, 362.
(/) Debenham v. Ox, 1 Ves. Sen. 276.
110 EQUITY JURISPRUDENCE. [CH. VII.

those in which there is an agreement among heirs or other near

relatives to share the estate equally between them, whatever may be
the will made by the testator ; for such an agreement is generally made
to suppress fraud and undue influence, and cannot truly be said to
disappoint the testator's intention, if he does not impose any restriction
upon his devisee (g).
§ 266. Upon a similar ground, secret contracts made with parents
or guardians, or other persons standing in a peculiar relation to the
party, whereby, upon a treaty of marriage, they are to receive a com-
pensation, or security, or benefit, for promoting the marriage, or
giving their consent to it, are held void. They are in effect equivalent
to contracts of bargain and sale of children and other relatives, and
of the same public mischievous tendency as marriage brokage con-
tracts (h). They are underhand agreements, subversive of the due
rights of the parties, and operating as a fraud upon those to whom
they are unknown, and yet whose interests are controlled or sacrificed
by them. And as marriages are of public concern and ought to be
encouraged, so nothing can more promote this end than open and
public agreements on marriage treaties, and the discountenance of all
others which secretly impair them (i).
§ 267. Thus, where a bond was taken by a father from his son
upon his marriage, it was held void, as being obtained by undue
influence or undue parental awe (k). So, where a party upon his
marriage with the daughter of A. gave the latter a bond for a sum of
money (in effect a part of his wife's portion on the marriage), in order
io obtain his consent to the marriage, it was held utterly void Q). So,
where, upon a marriage, a settlement was agreed to be made of
certain property by relations on each side, and, after the marriage,
one of the parties procured an underhand agreement from the husband
to defeat the settlement in part, it was set aside, and the original
settlement carried into full effect (m). In all these and the like cases
courts of equity proceed upon the broad and general ground that that
which is the open and public treaty and agreement upon marriage
shall not be lessened or in any way infringed by any private treaty or
agreement {n). The latter is a meditated fraud upon innocent parties,
and upon this account properly held invalid. But it has a higher
foundation in the security which it is designed to throw round the

(g) Harwood v. Tooke, 2 Sim. 192; Wethered v. Wethered, 2 Sim. 183.

(h) Keate v. Allen, 2 Vern. 588; s.c. Free. Ch. 267.
(t) Roberts v. Roberts, 3 P. Will. 74, and Mr. Cox's note (1); Cole v. Gibson,
1 Ves. Sen. 503.
(k) Williamson v. Gihon, 2 Sch. & Lefr. 362.
(I) Keate v. Allen, 2 "Vern. 588; Turton v. Benson, Preo. Ch. 522.
(m) Payton v. Bladwell, 1 Vern. 240; Stribblehill v. Brett, 2 Vern. 445,. Prec.
€h. 165.
(n> 1 Eq. Cas. Abr. 90, P. 5, 6.
§ 266 271.] CONSTRUCTIVE FRAUD. Ill

contract of marriage, by placing all parties upon the basis of good

faith, mutual confidence, and equality of condition (o).
§ 268. The same principle pervades the class of cases where
persons, upon a treaty of marriage, by any concealment or misrepre-
sentation, mislead other parties, or do acts which are by other secret
agreements reduced to mere forms or become inoperative. In all
cases of such agreements relief will, upon the same enlightened
public policy, be granted to the injured parties. For equity insists
upon principles of the purest good faith, and nothing could be more
subversive of it than to allow parties, by holding out false colours, to
escape from their own solemn engagements (p).
§ 269. Thus, where a parent declined to consent to a marriage
with the intended husband, on account of his being in debt, and the
brother of the latter gave a bond for the debt to procure such consent ;
and the intended husband then gave a secret counter-bond to his
brother to indemnify him against the first, and the marriage proceeded
upon the faith of the extinguishment of the debt, the counter-bond
so given was treated as a fraud upon the marriage {conira fidem
tabularum nuptialium), and all parties were held entitled as if it
had not been given (pp).
§ 270. So, where the parent, upon a marriage of his son, made a
settlement of an annuity or rent-charge upon the wife in full of her
jointure, and the son secretly gave a bond of indemnity, of the same
date, to his parent against the annuity or rent-charge, it was held
void, as a fraud upon the faith of the marriage contract; for it
affected to put the female party contracting for marriage in one
situation by the articles, and, in fact, put her in another and
worse situation by a private agreement [q). So, where a brother, on
the marriage of his sister, let her have a sum of money privately,
that her fortune might appear to be as much as was insisted on by
the other side, and the sister gave a bond to the brother to repay it,
the bond was set aside (?•).
§ 271. And where, upon a treaty of marriage, a party to whom
the intended husband was indebted concealed his own debt, and mis-
represented tothe wife's father the amount of the husband's debts,
the transaction was treated as a fraud upon the marriage, and the
creditor was prevented by injunction from enforcing his debt, although
it did not appear that there was any actual stipulation on the part of
the wife's father in respect to the amount of the husband's debts (s).
Upon this occasion Lord Chancellor Thurlow said: "The principle

(o) Neville v. Wilkinson, 1 Bro. C. C. 543, 547.

(p) Neville v. Wilkinson, 1 Bro. C. C. 543.
ipp) Redman v. Redman, 1 Vern. 348.
[q) Palmer v. Neave, 11 Vea. 165.
(r) Gale v. Lindo, 2 Vern. 476 ; Lamlee v. Hanman, 2 Vern. 499.
(s) Neville v. Wilkinson, 1 Bro. C. C. 543.
112 EQUITY JURISPRUDENCE. [CH VII.

on which all these cases have been decided is, that faith in such
contracts is so essential to the happiness both of the parents and
children, that whoever treats fraudulently on such an occasion shall
not only not gain, but even lose by it. Nay, he shall be obliged to
make his representation good, and the parties shall be placed in the
same situation as if he had been scrupulously exact in the
performance of his duty."
§ 272. In all these cases, and those of a like nature, the distinct
ground of relief is a meditated fraud or imposition practised by one
of the parties upon third persons by intentional concealment or mis-
representation. And, therefore, if the parties act under a mutual
innocent mistake, and with entire good faith, the concealment or
misrepresentation of a material fact will not induce the court to
compel the party concealing it or affirming it to make it good, or to
place the other party in the same situation as if the fact were as the
latter supposed. There must be some ingredient of fraud, or some
wilful misstatement or concealment, which has misled the other side.
§ 273. Upon a similar ground a settlement, secretly made by a
woman in contemplation of marriage, of her own property to her own
separate use without her intended husband's privity, was held to be
void, as being in derogation of the marital rights of the husband, and
a fraud upon his just expectations (t). But it would seem that the
effect of the Married Women's Property Act, 1882, and of the amending
statute of 1907, has been to abolish the whole doctrine of fraud on
marit^al rights.
§ 274. It is upon the same ground of public policy that contracts
in restraint of marriage are held void (u). A reciprocal engagement
between a man and a woman to marry each other is unquestionably
good (x). But a contract which restrains a person from marrying at
all, or from marrying anybody, except a particular person, without
enforcing a corresponding reciprocal obligation on that person, is
treated as mischievous to the general interests of society, which are
promoted by the encouragement and support of suitable marriages (y).
Courts of equity have in this respect followed, although not to an
unlimited extent, the doctrine of the civil law, that marriage ought
to be free (a).
§ 275. Where, indeed, the obligation to marry is reciprocal,
although the marriage is to be deferred to some future period, there
may not be, as between the parties, any objection to the contract in
itself, if in all other respects it is entered into in good faith, and there

(t) Countess of Strathmore v. Bowes, 1 Ves. Jun. 22; affd. nom. Bowes v. Bowes,
§ Bro. P. C. 427; England v. Downs, 2 Beav. 522.
(u) Hartley v. Rice, 10 East 22.
(x) Cook v. Baker, 1 Stra. 34; Cock v. Richards, 10 Ves. 438.
iy) Lowe v. Peers, 4 Burr. 2225; Cock v. Richards, 10 Ves. 429.
(z) Dig. Lib. 35, tit. 1, ff 62, 63, 64; Key v. Bradshaw, 2 Vem. 102.
 § 272 — 276.] CONSTRUCTIVE FRAUD. 113

is no reason to suspect fraud, imposition, or undue influence (a). But,

even in these cases, if the contract is designed by the parties to
impose upon third persons, as upon parents, or friends standing in
loco parentis, or in some other particular relation to the parties, so as
to disappoint their bounty, or to defeat their intentions in the settle-
ment or disposal of their estates; there, if the contract is clandestine,
and kept secret for this purpose, it will be treated by courts of equity
as a fraud upon such parents or other friends, and as such be set
aside ; or the equities will be held the same as if it had not been
entered into (b). The general ground upon which this doctrine is
sustained is that parents and other friends, standing in. loco parentis,
are thereby induced to act differently in relation to the advancement
of their children and relatives from what they would if the facts were
known; and the best influence which might be exerted in persuading
their children and relatives to withdraw from an unsuitable match is
entirely taken away. To give effect to such contracts would be an
encouragement to persons to lie upon the watch to procure unequal
matches against the consent of parents and friends, and to draw on
improvident and clandestine marriages, to the destruction of family
confidence, and the disobedience of parental authority (c). These are
objects of so great importance to the best interests of society that
they can scarcely be too deeply fixed in the public policy of a nation,
and especially of a Christian nation.
§ 276. In the civil law a strong desire was manifested to aid in
the establishment of marriages, as has been already intimated (d).
And hence, all conditions annexed to gifts, legacies, and other valuable
interests, which went to restrain marriages generally, were deemed
inconsistent with public policy, and held void. A gift, therefore, to
a woman, of land, if she should not marry, was held an absolute gift.
' ' Maeviae, si non nupserit, fundum quum morietur, lego ; potest dici,
et si nupserit, earn confestim ad legatum admitti (e). Si testator
rogasset hseredem, ut restituat haereditatem mulieri, si non nupsisset;
dicendum erit compellendum hseredem, si suspectam dicat haeredita-
tem, adire et restituere eam mulieri, etiam si nupsisset" (/). So, a
gift to a father, if his daughter, who is under his authority {in
potestate), should not marry, was treated as an absolute gift; the
condition being held void (g). The avowed ground of these decisions
was, that all such conditions were a fraud upon the law which favoured

(a) Lowe v. Peers, i Burr. 2229, 2230; Key, v. Bradshaw, 2 Vern. 102; Frost v.
Knight, L. E. 7 Ex. 111.
(b) Cock v. Richards, 10 Vea. 429.
(c) Woodhouse v. Shepley, 2 Atk. 539; Cock v. Richards, 10 Ves. 438, 539.
(d) Ante, § 260.
(e) Pothier, Pand. Lib. 35, tit. 1, n. 83; Dig. Lib. 35, tit. 1, f. 72, § 5.
(/) Pothier, Pand. Lib. 35, tit. 1, n. 33; Dig. Lib. 36, tit. 1, f. 65, § 1.
ig) Pothier, Pand. Lib. 35, tit. 1, n. 36.
E.J. 8
114 EQUITY JURISPRUDENCE. [CH. VII.

marriage; " Quod in fraudem legis ad impediendas nuptias scripfcum

est, nuUam vim habet " (h).
§ 277. But a distinction was taken in the civil law between such
general restraints of marriage, and a special restraint, as to marrying
or not marrying a particular person; the latter being deemed not
unjustifiable. Thus, a gift, upon condition that a woman should not
marry Titius, or not marry Titius, Seius, or Msevius, was held valid (i).
And the distinction was in some cases even more refined; for, if a
legacy was given to a wife upon condition that she should not marry
while she had children {si a liberis, ne nupserit), the condition was
nugatory; but, if it was that she should not marry while she had
children in puberty {si a liberis impuberibns ne nupserit), it was
good (fe). And the reason given is that the care of children, rather than
widowhood, might be enjoyed; " Quia magis cura liberorum, quam
viduitas, injungeretur " (I).
§ 278. Courts of equity, in acting upon cases of a similar nature,
have been in no small degree influenced by these doctrines of the
civil law. But it has been doubted whether the same grounds upon
which the Roman law acted can or ought to be acted on in a Christian
country, under the common law. Lord Eosslyn has endeavoured to
account for the introduction of these doctrines into English courts
of equity from the desire of the latter to adopt, upon legatory
questions, the rules of the ecclesiastical courts, which were borrowed
directly from the civil law. And speaking upon the subject of the
rule of the civil law, as to conditions in restraint of marriage, he
said (m) : ' ' How it should ever have come to be a rule of decision in
the ecclesiastical court is impossible to be accounted for, but upon
this circumstance, that, in the unenlightened ages, soon after the
revival of letters, there was la blind superstitious adherence to the text
of the civil law. They never reasoned ; but only looked into the books
and transferred the rules without weighing the circumstances, as
positive rules to guide them. It is beyond imagination, except from
that circumstance, how, in a Christian country, they should have
adopted the rule of the Eoman law with regard to conditions as to
marriage. First, where there is an absolute, unlimited liberty of
divorce, all rules as to marriage are inapplicable to a system of religion
and law, where divorce is not permitted. Next, the favour to marriage,
and the objection to the restraint of it, were a mere political regulation,
applicable to the circumstances of the Eoman empire at that time,
and inapplicable to other countries. After the civil war, the depopu-
lation occasioned by it led to habits of celibacy. In the time of

ik) Ibid. Lib. 35, tit. 1, n. 35; Dig. Lib. 35, tit. 1, f. 79, § 4.
(i) Pothier, Pand. Lib. 35, tit. 1, n. 34; Dig. Lib. 35, tit. 1, f. 63, 64.
(fc) Pothier, Pand. Lib. 35, tit. 1, n. 34; Dig. Lib. 35, tit. 1, f. 62, § 2.
(Z) Pothier, Pand. Lib. 35, tit. 1, n. 34.
(m) Stackpole \. Beaumont, 3 Ves. 96.
§ 277 — 280.] CONSTRUCTIVE FRAUD. 115

Augustus, the Julian law, which went too far, and was corrected by
the Lex Papia Popq)xa, not only offered encouragement to marriage,
but laid heavy impositions upon celibacy. That being established,
as a rule in restraint of celibacy (it is an odd expression), and for the
encouragement of all persons who would contract marriage, it neces-
sarily followed, that no person could act contrary to it by imposing
restraints directly contrary to the law. Therefore, it became a rule
of construction, that these conditions were null. It is difficult to
apply that to a country where there is no law to restrain individuals
from exercising their own discretion, as to the time and circumstances
of the marriage which their children, or objects of bounty, may con-
tract. It is perfectly impossible now, whatever it might have been
formerly, to apply that doctrine, not to lay conditions to restrain
marriage under the age of twenty -one, to the law of England; for it
is directly contrary to the political law of the country. There can be
no marriage under tlie age of twenty-one, without the consent of the

parent."
§ 279. It is highly probable that this view of the origin of the
English doctrine, as to conditions in restraint of marriage, annexed
to gifts, legacies, and other conveyances of interests, is historically
correct. But, whether it be so or not, it may be affirmed, without
fear of contradiction, that the doctrine on this subject, at present
maintained and administered by courts of equity (for it has under-
gone some important changes), is far better adapted to the exigencies
of modern society throughout Christendom, than that which was
asserted by the Eoman law. While it upholds the general freedom
of choice in marriages, it at the same time has a strong tendency to
preserve a just control and influence in parents, in regard to the
marriage of their children, and a reasonable power in all persons to
qualify and restrict their bounty in such a manner, and on such
conditions, as the general right of dominion over property in a free
country justifies and protects, upon grounds of general convenience
and safety.
§ 280. The general result of the modem doctrine on this subject
(for it is impossible to reconcile all the cases) may be stated in the
following summary manner. Conditions annexed to gifts, legacies,
and devises, in restraint of marriage, are not void, if they are reason-
able in themselves, and do not directly or virtually operate as an
undue restraint upon the freedom of marriage (n-). If the condition
is in restraint of marriage generally, then, indeed, as a condition
against public policy, and the due economy and morality of domestic
life, it will be held utterly void (o). And so, if the condition is not

(n) Scott V. Tyler, 2 Bro C. C. 487 ; 2 Dick. 718; Stackpole v. Beaumont, 3 Ves.
95.
(o) Morley v. Kennoldson, 2 Hare 570; [1895] 1 Ch. 449.
116 EQUITY JURISPRUDENCE. [CH. VII.

in restraint of marriage generally, but still the prohibition is of so

rigid a nature, or so tied up to peculiar circumstances, that the party
upon whom it is to operate is unreasonably restrained in the choice
of marriage, it will fall under the like consideration (p). Thus,
where a legacy was given to a daughter, on condition that she should
not marry without consent, or should not marry a man who was not
seised of an estate in fee-simple of the clear yearly value of £500, it
was held to be a void condition, as leading to a probable prohibition
bi marriage (q).
§ 281. But the same principles of public policy which annul such
conditions, when they tend to a general restraint of marriage, will
confirm and support them when they merely prescribe such reason-
able and provident regulations and sanctions as tend to protect the
individual from those melancholy consequences to which an over-
hasty, rash, or precipitate match would probably lead. If parents,
who must naturally feel the deepest solicitude for the welfare of their
children, and other near relatives and friends, who may well be
presumed to take a lively interest in the happiness of those with
whom they are associated by ties of kindred, or friendship, could not,
by imposing some restraints upon their bounty, guard the inexperience
and ardour of youth against the wiles and delusions of the crafty
and the corrupt, who should seek to betray them from motives of
the grossest selfishness, the law would be lamentably defective, and
would, under the pretence of upholding the institution of marriage,
subvert its highest purposes. It would, indeed, encourage the young
and the thoughtless to exercise a perfect freedom of choice in maxriage ;
but it would be ati the expense of all the best objects of the institution,
the preservation of domestic happiness, the security of private virtue,
and the rearing of families in habits of sound morality, and filial
obedience and reverence.. Such a reproach does not belong to the
common law in our day; and, least of all, can it be justly attributed
to courts of equity.
§ 282. Mr. Fonblanque has, with great propriety, remarked: " The
only restrictions which the law of England imposes, are such as are
dictated by the soundest policy, and approved by the purest morality.
That a parent, professing to be affectionate, shall not be unjust ; that,
professing to assert his own claim, he shall not disappoint or control
the claims of nature, nor obstruct the interests of the community;
that what purports to be an act of generosity shall not be allowed to
operate as a temptation to do that which militates against nature,
morality, or sound policy, or to restrain from doing that which would
serve and promote the essential interests of society; [these] are rules
which cannot reasonably be reprobated as harsh infringements of

(p) Keily v. Movck, 3 Eidgw. Pari. 205.

iq) Ibid.
§ 281 — 285.] CONSTRUCTIVE FRAUD. 117

private liberty, or even reproached as unnecessary restraints on its

free exercise. On these considerations are founded those distinctions
which have from time to time been recognized in our courts of equity,
respecting testamentary conditions with reference to marriage " (?•).
§ 283. Godolphin also has very correctly laid down the general
principle. " All conditions against the liberty of marriage are
unlawful. But, if the conditions are only such, as whereby marriage
is not absolutely prohibited, but only in part restrained, as in respect
to time, place, or person, then such conditions are not utterly to be
rejected " (s). Still, this language is to be understood with proper
limitations; that is to say, that the restraints upon marriage, in
respect to time, place, or person, are reasonably asserted. For it is
obvious that restraints as to time, place, and person may be so framed
as to operate a virtual prohibition upon marriage, or, at least, upon
its most important and valuable objects. As, for instance, a condition
that a child should not marry until fifty years of age ; for this would
be deemed a mere evasion or fraud upon the law (i).
§ 284. On the other hand, some provisions against improvident
matches, especially during infancy, or until a certain age of discretion,
cannot be deemed an unreasonable precaution for parents and other
persons to affix to their bounty. Thus a legacy given to a daughter
to be paid her at twenty-one years of age, if she does not marry until
that period, would be held good, for it postpones marriage only to a
reasonable age of discretion (u). So, a condition, annexed to a gift or
legacy, that the party should not marry without the consent of parents
or trustees, or other persons specified, is held good; for it does not
impose an unreasonable restraint upon marirage ; and it must be pre-
sumed that the person selected will act with good faith and sound
discretion in giving or withholding consent (x). The civil law, indeed,
seems, on this point, to have adopted a very different doctrine ; holding
that the requirement of the consent of a third person, and especially
of an interested person, is a mere fraud upon the law (y).
§ 285. Other cases have been stated, which are governed by the
same principles. Thus, a condition restraining marriage with a
domestic servant is not in general restraint of marriage (»). So, a con-
dition that a widow or widower shall not re-marry, is not unlawful,
neither is an annuity during widowhood only (a). A condition to marry,
(r) Fonbl. Eq. B. 1, ch. 4, § 10, note (g).
(s) Godolphin 's Orphan's Legacy, Pt. 1, ch. 15, § 1.
(t) See Scott v, Tyler, 2 Dick. 721, 722; 2 Bro. C. C. 488.
(u) Scott V. Tyler, 2 Bro. C. C. 431.
(x) Clarke v. Parker, 19 Ves. 1; Lloyd v. Branton, 3 Mer. 108; Chapman v.
Perkins, [1905] A. C. 106.
(y) Lord Thurlow, in Scott v. Tyler, 2 Dick. 728; Ayliffe, Pand. B. 8, tit. 21,
p. 374.
(z) Jenner v. Turner, 16 Ch. D. 188.
(a) Newton v. Marsden, 2 J. & H. 356 ; Evans v. Rosser, 2 H. & M. 190 ; Allen y.
Jackson, 1 Ch. D. 399.
118 EQUITY JURISPRUDENCE. [CH. VII.

or not to marry, Titius or Maevia, is good. So a condition, prescribing

■due ceremonies and a due place of marriage, is good. And so any
other conditions of a similar nature, if not used evasively, as a covert
purpose to restrain marriage generally (b). And on the same general
principle, a condition that the legatee shall not become a nun is valid ;
and although the will contain no bequest over, the legacy is forfeited
if the legatee does become a nun (c).
§ 286. But courts of equity are not generally inclined to lend an
indulgent consideration to conditions in restraint of marriage (d) ; and
on that account (being in no small degree influenced by the doctrines
of the civil and canon law), they have not only constantly manifested
an anxious desire to guard against any abuse, to which the giving of
one person any degree of control over another might eventually lead ;
but they have, on many occasions, resorted to subtleties and artificial
distinctions, in order to escape from the positive directions of the
party imposing such conditions.
§ 287. One distinction is, between cases where, in default of a
compliance with the condition, there is a bequest over, and cases
where there is not a bequest over, upon a like default of the party
to comply with the condition. In the former case, the bequest over
becomes operative upon such default, and defeats the prior legacy (e).
In the latter case (that is, where there is no bequest over), the con-
dition is treated as ineffectual, upon the ground that the testator is to
be deemed to use the condition in teiTorem only, and not to impose
a forfeiture, since he has failed to make any other disposition of the
bequest upon default in the condition (/). There is an intermediate
class which had not been discussed in any decision when the author
wrote, namely, of a gift terminating on marriage, and operating by
way of conditional limitation. Gifts of this character cease upon
marriage (g).
§ 288, In the case of conditions in restraint of marriage, annexed
to a devise of real estate, or to a charge on real est-ate, or to things
savouring of the realty, the doctrine of the common law, as to con-
ditions, isstrictly applied. If the condition be precedent, it must be
strictly complied with, in order to entitle the party to the benefit of

(b) Scott V. Tyler 2 Bro. C. C. 488; 2 Dick. 721, 722; HaugUon v. Haughton,
1 Moll. 611.
(c) In Te Dickson, 1 Sim. N. S. 37.
(d) See Long v. Dennis, 4 Burr, 2062. Lord Mansfield, in Long v. Dennis, 4
Burr. 2055, said, " Conditions in restraint of marriage are odious, and are, therefore,
held to the utmost rigour and strictness." Lord Eldon seems to have disapproved of
this generality of expression, in Clarke v. Parker, 19 Ves. 19.
(e) In re Whiting's Settlement; Whiting v. De Rutzen, [1905] 1 Ch. 96. Where
the condition of a devise was the giving of a bond not to marry or cohabit -with certain
persons, with a devise over, the court refused to enforce the condition, as tending to
inquiries disturbing the peace of another family. Poole v. Boit, 11 Hare 33.
(/) Marples v. Bainbridge, 1 Mad. 590.
((/) Webb V. Grace, 2 Ph. 710; Heath v. Lewis, 3 De G. M. & G. 954.
§ 286 291.] CONSTRUCTIVE FRAUD. 119

the devise or gift. If the condition be subsequent, its validity will

depend upon its being such as the law will allow to devest an estate.
For, if the law deems the condition void as against its own policy,
then the estate will be absolute and free from the condition. If, on
the other hand, the condition is good, then a non-compliance with it
will defeat the estate, in the same manner as any other condition
subsequent will defeat it {h).
§ 289. If the bequest be of personal estate, and the condition in
restraint of marriage be subsequent and general in its character, it is
treated as the like condition is at law, in regard to real estate, as a
mere nullity, and the legacy becomes pure and absolute (;)■ If it be
only a limited restraint (such as to a marriage with the consent of
parents, or not until the age of twenty-one), and there is no bequest
over upon default, the condition subsequent is treated as merely in
terrorem, and the legacy becomes pure and absolute (k). According
to the more recent cases, if the restraint be a condition precedent, and
be in general restraint of marriage, there, although it is void, if there
is not a compliance with it, the estate will never arise in the
legatee (L).
§ 291. But there is a modification of the strictness of the common
law, as to conditions precedent in regard to personal legacies, which
is at once rational and convenient, and promotive of the real intention
of the testator. It is, that, where a literal compliance with the con-
dition becomes impossible from unavoidable circumstances, and
without any default of the party, it is sufficient that it is complied
with, as nearly as it practically can be, or (as it is technically called)
cy-pres. This modification is derived from the civil law, and stands
upon the presumption, that the donor could not intend to require
impossibilities, but only a substantial compliance with his directions,
as far as they should admit of being fairly carried into execution It
is upon this ground that courts of equity constantly hold, in cases of
personal legacies, that a substantial compliance with the condition
satisfies it, although not literally fulfilled. Thus if a legacy upon a
condition precedent of the consent of the testator to a marriage, and
a marriage should take place in his lifetime without his disapproval (w),
or should require the consent of three persons to a marriage, and one
or more of them should die, the consent of the survivor or survivors
would be deemed a sufficient compliance with condition (n). And

(h) Co. Litt. 206 a and b; id. 217 a; id. 237, Harg & Butler's note (152); Harvey
V. Aston, 1 Atk. 361; Lowe v. Peers, i Burr. 2225; Long v. Ricketts, 2 Sim. & Stu.
179.
(j) Morley v. Rennoldson, 2 Hare 570; [1895] 1 Ch. 449.
(k) Lloyd V. Branton, 3 Meriv. 117; Marples v. Bainbridge, 1 Mad. 590.
(/) Morgan v. Morgan, 4 De G. & Sm. 164; In re Brown's Will, 18 Ch. D. 61.
(m) Chapman v. Perkins, [1905] A. C. 106.
(n) Clarke v. Parker, 19 Yes. 1; Worthington v. Evans, 1 Sim. & Stu. 165.
120 EQUITY JURISPRUDENCE. [CH. VII.

a fortiori, this doctrine would be applied to conditions subse-

quent (o).
§ 291. The topic just discussed, although widely sundered from
what we should now regard as fraud, suggests conditions annexed to
a gift, the tendency of which is to induce husband and wife to live
separate, or be divorced, and these upon grounds of public policy and
public morals, are held void (p). In Wren v. Bradley (q), an annuity
was bequeathed to a daughter, a married woman, ' ' in case she should
be living apart from her husband, and should continue to do so "
during the life of the testator's widow, which annuity was to cease
whenever the annuitant should cohabit with her husband; the will
also contained a residuary trust, the income of which was to be paid
to the daughter, during such time as she should continue to live
apart from her husband; but directed that, whenever she should
cohabit with her husband, such income should be paid to other
legatees ; and further contained a trust for the children of the daughter,
by any other husband. The daughter and her husband were living
apart at the date of the will, but had become reconciled, and were
living together at the death of the testator and subsequently : it was
held that the daughter was entitled to the benefit of all the provisions
of the will in her favour. The Vice-Chancellor, Knight-Bruce, said,
in giving judgment: " It is impossible to read the will without per-
ceiving that the testator's wish and. object were to obstruct a
reconciliation, and prevent the wife from living with her husband.
And that, by that wish, by that object, its provisions to her were
influenced and directed. The weight of authority and the principles
of the civil law, as far as I consider them applicable, seem to me to
render a decision in this case, in the daughter's favour, consistent at
once with technical equity and moral justice." Here, too, common
sense prevails. If the object is not to bring about a separation, but to
make a provision for a spouse pending a separation, the condition
would be valid (r).
§ 292. Another class of constructive frauds, and so deemed because
'inconsistent with the general poUcy of the law, is that of bargains
and contracts made in restraint of trade. Formerly contracts in
general restraint of trade were held to be ipso facto invalid, but
according to the most recent decisions, a provision appointing a world-
wide restraint upon the employment of personal services is not invalid,
if justified by the circumstances, to determine which regard must be
had to the respective interests of the parties to the contract, and of
(o) Aislabie v. i?!ce>3 Mad. 256.
(p) Marq. of Westmeath v. Marq. of Salisbv/ry, 5 Bli. N. S. 339; CartwrigM v.
Cartwnght, 3 De G. M. & G. 982 ; In re Moore, Trafford v. Maconochie, 39 Ch. D. 116.
(g) Wren v. Bradley, 2 De G. & Sm. 49.
(r) Jones v. Waite, 5 Bing. N. C. 341; 9 CI. & P. 101; In re Hope Johnstone,
[1904] 1 Ch. 470; Harrison v. Harrison, [1910] 1 K. B. 35.
■§ 291—294,] CONSTRUCTIVE FRAUD. 121

the public (s). And a person may lawfully sell a secret in his trade
or business, and restrain himself from using that secret (t).
§ 293. The common law required that sales by auction should be
conducted upon principles of free competition. Unless the seller re-
served a right to bid, he could not run up the price by himself or his
agent, commonly called a puffer (u) ; and, conversely, a prospective
buyer was not entitled to damp the sale (x). In equity the converse rule
obtained in favour of seller (?/) or buyer (z). But by the " Sale of Land
by Auction Act," 1867 (30 & 31 Vict. c. 48), it is enacted that all sales
of land where a pufier has bid shall be void, unless a right of bidding on
behalf of the owner shall have been reserved, and that the conditions of
sale shall state whether the sale is to be without reserve or subject to a
reserved price, or whether a right to bid is reserved ; that if it be stated
that the sale is to be without reserve, a puSer is not to be employed ;
that if a right of bidding be reserved, the seller or one puffer may bid.
And these provisions have lately been extended to sales of goods by
auction by Section 58 of the Sale of Goods Act, 1893.
§ 294. In like manner, agreements, which are founded upon viola-
tions of public trust or confidence, or of the rules adopted by courts
in furtherance of the adminstration of public justice, are held void.
Thus, an assignment of the full or half-pay of a retired officer of the
army or other public officer is void ; for it operates as a fraud upon the
public bounty (a). So, a corrupt bargain by a member of the legis-
lature to turn his position to pecuniary account would be invalid,
although there would be no objection to his making a bargain in refer-
ence to his property, using his position as a lever to obtain favourable
terms (b). Agreements, founded upon the suppression of criminal
prosecutions, fall under the same consideration. They have a manifest
tendency to subvert public justice (c). So, wager contracts, if contrary
to sound morals, or injurious to the feelings or interests of third
persons, or against the principles of public policy or duty, are void at
the common law, and the general legality of wagers at the common
law has been restricted by statute (d). So, of contracts to enable a

(s) Nordenfeldt v. Maxim Nordenfeldt Guns <{ Ammumtion Co., [1894] A. C.

535; Mason v. Provident Clothing it Supply Co., [1913] A. C. 724; Morris, Lim. v.
Saxelby, [1915] A. C. 688.
(t)- Bryson v. Whitehead, 1 Sim. & Stu. 74; Hagg v. Darley, 47 L. J. Ch. 567.
(a) Howard v. Castle, 6 L. E. 642; Crowder v. Austin, 3 Bing. 368.
(x) Fuller v. Abrahams, 6 Moo. 316.
(y) Smith v. Clarke, 12 Ves. 477.
(z) In re Garew's Estate, 26 Beav. 197; Hejfer v. Martyn, 36 L. J. Ch. 372.
(a) Stone v. Littledale, 2 Anst. 533; Davis v. Duhe of Marlborough, 1 Swanst. 74;
Ex parte Hug gins, 21 Ch. D. 91.
(b) Simpson v. Lord Howden, 3 M. & Cr. 97 ; 9 CI. & F. 61.
(c) Lound V. Grimwade, 39 Ch. D. 605 ; Windhill hoc. Bd. v. Vint, 45 Ch. D.
351; Jrnies v. Merionette Building Soc, [1892] 1 Ch. 173; Consolidated Exploration d
Finance Co. v. Musgrave, [1900] 1 Ch. 37.
(d) Ramloll v. Soojumnull, 6 Moo. P. C. 300; Read v. Anderson, 10 Q. B. D. 100.
122 EQUITY JURISPKUDENCE. [CH. VII.

person to violate the licence laws (e). So are contracts which have a
tendency to encourage champerty (/).
§ 295. Another extensive class of cases, falling under this head of
constructive fraud, respects contracts for the buying, selling, or pro-
curing of public offices. It is obvious that all such contracts must
have a material influence to diminish the respectability, responsibility,
and purity of public officers, and to introduce a system of official
patronage, corruption, and deceit wholly at war with the public
interests. The confidence of officers may thereby not only be abused
and perverted to the worst purposes, but mischievous arrangements
may be made to the injury of the public; and persons may be intro-
duced or kept in office who are utterly unqualified to discharge the
proper functions of their stations. Such contracts are justly deemed
contracts of moral turpitude ; and are calculated to betray the public
interests into the administration of the weak, the profligate, the selfish,
and the cunning. They are, therefore, held utterly void, as contrary
to the soundest public policy, and, indeed, as a constructive fraud upoil
the government (g). It is acting against the spirit of the constitution
of a free government, by which it ought to be served by fit and able
persons, recommended by the proper officers of the government for their
abilities, and from motives of disinterested purity (h). It has been
strongly remarked that there is no rule better established (it should
be added, in law and reason, for, unfortunately, it is often otherwise
in practice), respecting the disposition of every office in which the
public are concerped, than this, detur digniori. On principles of public
policy, no money consideration ought to influence the appointment to
such offices (J). It was observed of old, that the sale of offices accom-
plished the ruin of the Eoman Eepublic : " Nulla alia re magis Eomana
Eespublica interiit, quam quod magistratus officia venalia erant " (fe).
§ 296. Another class of agreements, which are held to be void on
account of their being against public policy, are such as are founded
upon corrupt considerations or moral turpitude, whether they stand
prohibited by statute or not; for these are treated as frauds upon the
public or moral law. The rule of the civil law on this subject speaks
but the language of universal justice: "Pacta, quae contra leges
constitutionesque, vel contra bonos mores fiunt, nuUam vim habere,
indubitati juris est" (l). It is but applying a preventive check, by
withholding every encouragement from wrong, and aiming thereby

(e) Ritchie v. Smith, 6 C. B. 462.

(/) Reynell v. Sprye, 1 De G. M. & G. 660 ; Rees v. De Bemadij. [1896] 2 Ch. 437 ;
Holding v. Thompson, [1907] 2 K. B. 489.
(g) Hanington v. Du Chastel, 1 Bro. C. C. 124; Thomson v. Thomson, 7 Vee. 470.
See Hill v. Paul, 8 Gl. & F. 295.
(h) Morris v. MacCuUock, 2 Eden 190.
(t) Lord Kenyon in Bachford v. Preston, 8 T. E. 92.
(ft) Cited Co. Litt. 334 a.
(I) Cod. Lib. 2, tit. 3, f. 6.
§ 295 — 298.] CONSTRUCTIVE FRAUD. 123

to enforce the obligations of virtue. For, although the law, as a

science, must necessarily leave many moral precepts without due
enforcement, as rules of imperfect obligation only, it is most studious
not thereby to lend the slightest countenance to the violations of
such precepts. Wherever positive law, or the common law, or, it has
been said, the divine law prohibits the doing of certain acts, or enjoins
the discharge of certain duties, any agreement to do such acts, or not
to discharge such duties, is against the dearest interests of society, and,
therefore, is held void; for, otherwise, the law would be open to the
just reproach of winking at crimes and omissions, or tolerating in
one form what it affected to reprobate in another. Hence, all agree-
ments, bonds, and securities, given as a price for future illicit inter-
course {premium pudoris), or for the commission of a public crime, or
for the violation of a public law, or for the omission of a public duty,
are deemed incapable of confirmation or enforcement upon the maxim,
Ex twpi contractu non oritur actio (m). An agreement not under seal
for any of the above purposes would be unenforceable at law and in
equity for want of a consideration (n). Illegality being a matter of
allegation and proof, a continued illicit cohabitation does not warrant
the inference that a security was given to attain that object, omnia
rite esse acta presumuntur (o).
§ 297. Other cases might be put to illustrate the doctrine of
courts of equity in setting aside the agreements and acts in fraud of
the policy of the law. Thus, where a parent conveyed land to his son
to qualify him to kill game, he was not permitted to avoid the convey-
ance (p). So, a person cannot recall a conveyance of property to a
party with whom he is living in adultery (g). And other illustrations
might be put chosen from decided cases which are now wholly or
largely obsolete (?■)■
§ 298. And here it may be well to take notice of a distinction
often, but not universally, acted on in courts of equity as to the
nature and extent of the relief which will be granted to persons who
are parties to agreements or other transactions against public policy,
and therefore are to be deemed paiiicipes criminis. In general (for
it is not universally true), where parties are concerned in illegal
agreements or other transactions, whether they are mala prohibita or
■mala in se, courts of equity, following the rule of law as to participators

(m) Walker v. Perkins, 3 Burr. 1568; Gray v. Mathias, 5 Ves. 286; Kearley v.
Thomson, 24 Q. B. D. 742; Consolidated Exploration & Finance Co. v. Musgrave,
[1900] 1 Ch. 37.
(n) Beaumont v. Reeve, 8 Q. B. 483. See Kekewich v. Manning, 1 De G. M. & G.
176.
(o) In re Vallance, Vallance v. Blagdon, 26 Ch. D. 353.
(p) Brackenbury v. Brackenbury , 2 J. & W. 391.
(9) Ayerst v. Jenkins, L. R. 16 Eq. 282.
(r) Wallis V. Duke of Portland, 3 Ves. 294; Stevens v. Bagwell, 15 Ves. 139.
124 EQUITY JURISPRUDENCE. [CH. VII.

in a common crime (s), will not interpose to grant any relief; acting
(upon the known maxim, In pari delicto potior est conditio defendentis,
et possidentis (t). But in cases where the agreements or other trans-
actions are repudiated on account of their being against public policy,
ithe circumstance, that the relief is asked by a party who is particeps
•criminis, is not in equity material. The reason is, that the public
interest requires that relief should be given, and it is given to the
public through the party (u). And in these cases relief will be granted
not only by setting aside the agreement or other transaction, but also,
in many cases, by ordering a repayment of any money paid under it.
Jiord Thurlow, indeed, seems to have thought that, in all eases where
money had been paid for an illegal purpose, it might be recovered back,
observing that if courts of justice mean to prevent the perpetration
of crimes, it must be, not by allowing a man who has got possession
to remain in possession, but by putting the parties back to the state
in which they were before. But this is pushing the doctrine to an
extravagant extent, and effectually subverting the maxim, In pari
delicto portior est conditio defendentis. The ground of reasoning upon
which his lordship proceeded is exceedingly questionable in itself ;
and the suppression of illegal contracts is far more likely, in general,
to be accomplished by leaving the parties without remedy against each
-other, and by thus introducing a preventive check, naturally connected
with a want of confidence, and a sole reliance upon personal honour.
And so, accordingly, the modem doctrine is established (a;). Belief is
not granted where both parties are truly in pari delicto, unless in cases
where public policy would thereby be promoted (y).
§ 299. Even in cases of a prsemium pudicitise, the distinction has
been constantly maintained between bills for restraining the woman
irom enforcing the security given, and bills for compelling her to give
up property already in her possession under the contract. At least
"there is no case to be found, where the contrary doctrine has been
acted on, except where creditors were concerned. And in this respect
English law seems to have had a steady regard to the policy of the
Eoman jurisprudence (z).

is) Bull, N. P. 131, 132.

(t) Osborne v. Williams, 18 Ves. 379; In re Great Berlin Steamboat Co. 26 Ch.
D. 616; Kearley v. Thomson, 24 Q. B. D. 742.
(u) Williams v. Bayley, L. E. 1 H. L. 200; Jones v. Merioneth Permanent
Building Society [1892] 1 Ch. 173 ; Martin v. Tomkinson, [1893] 2 Q. B. 121.
(x) See Sharp v. Taylor, 2 Ph. 801.
iy) See the remarks of Pry, L.J., Kearley v. Thomson, 24 Q. B. D". 742.
(z) Rider v. Kidder, 10 Ves. 366 ; Ayerst v. Jenkins, L. E. 16 Eq. 282. The Eoman
law has stated some doctrines and distinctions upon this subject, which are worthy
of consideration. I shall quote them without commenting upon them. Three cases
are put. (1) Where the turpitude is on the part of the receiver only; and there the
rule is. Quod si turpis causa accipientis fuerit, etiamsi res secuta sit, repeti potest.
Dig. Lib. 12, tit. 5, f. 1, § 2. (2) Where the turpitude is on the part of the giver
alone; and there the rule is the contrary. Cessat quidem condictio, quum turpiter
§ 299 — 301.] CONSTRUCTIVE FRAUD. 125>

§ 300. And, indeed, in cases where both parties are in delicto,

concurring in an illegal act, it does not always follow, that they stand.
in pari delicto; for there may be, and often are, very different degrees
in their guilt (a). One party may act under circumstances of oppres-
sion, imposition, hardship, undue influence, or great inequality of
condition or age ; so that his guilt may be far less in degree than that of
his associate in the offence. And, besides, there may be, on the part
of the court itself, a necessity of supporting the public interests or
public policy, in many cases, however reprehensible the acts of the
parties may be (b).
§ 301. In cases of usury, this distinction had been adopted by
courts of equity before the repeal of the statutes against usury by
the 17 & 18 Vict. c. 90. While the statutes were in existence courts
of equity followed the law in the construction of the statute. If,
therefore, the usurer or lender came into a court of equity, seeking
to enforce the contract, the court would refuse any assistance, and.
repudiate the contract. But, on the other hand, if the borrower came
into a court of equity, seeking relief against the usurious contract,
the only terms upon which the court would interfere, were, that the
plaintiff would pay the defendant what was really and bona fide due
to him, deducting the usurious interest, and, if the plaintiff did not
make such offer in his bill, the defendant might demur to it, and the
bill would be dismissed (c). The ground of this distinction was, that a
court of equity was not positively bound to interfere in such cases by
an active exertion of its powers; but it had a discretion on the

datur. Pothier, Pand. Lib. 12, tit. 5, art. 8. (3) Where the turpitude affects both
parties, and there the rule is, Ubi autem et dantis et accipientis turpitude versatnr,
non posse repeti dicimus; veluti, si pecunia detur, ut male judicetur. Dig. Lib. 12,
tit. 5, f. 3; Pothier, Pand. Lib. 12, tit. S, n. 7. The reason given is : In pari causa
possessor potior haberi debet. Dig. Lib. 50, tit. 17, f. 128; Pothier, Pand. Lib. 12,
tit. 5, D. 7. Several other examples are given under this head. Idem, si ob stuprum
datum sit; vel si quis, in adulterio reprehensus, redemerit se, cessat enim repetitio.
Item, so dederit fur, ne proderetur; quoniam utriusque turpitudo versatur, cessat
repetitio. Dig. Lib. 12, tit. 5, f. 4; Pothier, Pand. Lib. 12, tit. 5, n. 7. Cum te
propter turpem causam contra disciplinam tempomm meo rum, domum adversariae
dedisse profltearis ; frustra eam tibi resitui desideras ; cum in pari causa possessoris
conditio melior habeatur. Cod. Lib. 4, tit. 7, 1. 2; Pothier, Pand. Lib. 12, tit. 6, 1. 7.
Sed quod mgretrici datur, repeti non potest. Sed nova ratione, non ea, quod utriusque
turpitudo versatur, sed solius dantis; a new reason, which Pothier, as well as Ulpian,
seems to doubt. See Dig. Lib. 12, tit. 5, f. 4, § 3; Pothier, Pand. Lib. 12, tit. 5,
n. 7, and note (6). On the other hand, when the money had not been paid, or the
contract fulfilled, the Eoman law deemed the contract void. Quamvis enim utriusque
turpitudo versatur, ac solutae quantitatis cessat repetitio, tamen ex hujusmodi stipula-
tione, contra bonos mores interposita, denegandas esse aotiones juris auctoritate
demonstratur. Cod. Lib. 4, tit. 7, 1. 5; Pothier, Pand. Lib. 12, tit. 5, n. 9.
(a) Osborne v. Williams, 18 Ves. 379.
(b) Osborne v. Williams, 18 Ves. 379; Osbaldiston v. Simpson, 13 Sim. 513;
Williams v. Bayley, L. E. 1 H. L. 200; Jones v. Merioneth Building Soc., [1892]
1 Ch. 173.
(c) W V. B , 32 Beav. 574; Davies v. Otty, 35 Beav. 208; Mason v.
Gardiner, 4 Bro. C. C. 4.36.
126 EQUITY JURISPRUDENCE. [CH. VII.

subject, and might prescribe the terms of its interference; and he

who seeks equity at its hands, may well be required to do equity.
And it was considered against conscience, that the party should have
full relief, and at the same time pocket the money lent, which may
have been granted at his own mere solicitation (d). For then a statute,
made to prevent fraud and oppression, would be made the instrument
of fraud. But, in the other case, if equity had relieved the lender,
who was plaintiff, it would have been aiding a wrongdoer, who was
seeking to make the court the means of carrying into effect a trans-
action manifestly wrong and illegal in itself.
§ 302. And, upon the like principles, if the borrower had paid
the money upon an usurious contract, courts of equity (as, indeed,
have also courts of law) (e), would assist him to recover back the excess
paid beyond principal and lawful interest; but not further. For it is no
just objection to say, that he is particeps criminis, or that Volenti
non fit injuna. It would be absurd to apply the latter maxim to
the case of a man who, from mere necessity, pays more than the
other can in justice demand, and who has been significantly called
the slave of the lender. He can in no just sense be said to pay
voluntarily. And as to being particeps criminis, he stands in
vinculis, and is compelled to submit to the terms which oppression
and his necessities impose on him (/). Nor can it be said, in any case
of oppression, that the party oppressed is particeps criminis; since
it is that very hardship which he labours under, and which is imposed
upon him by another, that makes the crime {g).
§ 303. In regard to gaming contracts, it would follow, a fortiori,
that courts of equity ought not to interfere in their favour, but ought
to afford aid to suppress them ; since not only can no action be brought
on them by statute, but they may be justly pronounced to be immoral,
as the practice tends to idleness, dissipation, and the ruin of
families (h). If the money were actually paid in a case of gaming,
courts of equity ought not to assist the loser to recover it back, upon
the ground that he is particeps criminis. Lord Talbot on one occasion
said: " The case of gamesters, to which this of [usury] has been com-
pared, isno way parallel; for there both parties are criminal. And,
if two persons will sit down, and endeavour to ruin one another, and

(d) Scott v. Nesbit, 2 Bro. C. C. 641; s.c. 2 Cox 183; Benfield v. Solomons, 9
Ves. 84.
(e) Fitzroy v. Gwillim, 1 T. R. 153.
(/) Bosanquet v. Dashwood, Cas. temp. Talb. 39; Rawden v. Shadwell, Ambler
269, and Mr. Blunt 's notes.
(g) Lord Chancellor Talbot in Bosanquet v. Dashwood, Cas. temp. Talb. 41.
The same principle applies to cases of annuities set aside for want of a memorial
duly registered; and an account of the consideration paid, and payments made, will be
taken, and the balance only will be required to be paid, upon a decree to give up the
security. Holbrook v. Sharpley, 19 Ves. 131.
(h) Robinson v. Bland, 2 Burr. 1077.
§ 302 307.] CONSTRUCTIVE FRAUD. 127

one pays the money; if, after payment, he cannot recover it at law,
I do not see that a court of equity has anything to do, but to stand
neuter, there being in that case no oppression upon the party, as in
this " (i). It does not seem that the Court of Chancery ever assumed
a jurisdiction to set aside securities given in payment of gambling debts.
These are novi^ struck at by the Gaming Act of 9 Anne c. 19, and the
Gaming Act of 1835.
§ 305. The civil lavi' contains a most wholesome enforcement of
moral justice upon this subject. It not only protects the loser
against any liability to pay the money won in gaming; but if he has
paid the money, he and his heirs have a right to recover it back at
any distance of time ; and no presumption or limitation of time runs
against the claim. " Victum in alese lesu, non posse conveniri. Et,
si solverit, habere repetitionem, tam ipsum, quam hseredes ejus,
adversus victorem et ejus hseredes; idque perpetuo, et etiam post
triginta
in other annos cases. " (fc). Thirty years was the general limitation of rights
§ 306. Questions are also often made, how far contracts, which
are illegal by some positive law, or which are declared so upon prin-
ciples of public policy, are capable, as between the parties, of a
substantial confirmation. This subject has been already alluded to,
and will be again touched in other places. The general rule is, that
wherever any contract or conveyance is void, either by a positive law,
or upon principles of public policy, it is deemed incapable of confirma-
tion upon the maxim. Quod ab initio non valet, in traciu temporis non
convalescet (l). But where it is merely voidable, or turns upon cir-
cumstances ofundue advantage, surprise, or imposition, there, if it is
deliberately, and upon full examination, confirmed by the parties, such
confirmation will avail to give it an ex post facto validity (m), and
lapse of time is regarded as sufficient evidence of confirmation if
unexplained (n), unless, as by the operation of the Infants' Eelief Act,
1874, such promises are incapable of confirmation.
§ 307. Let us, in the next place, pass to the consideration of the
second head of constructive frauds ; namely, of those which arise
from some peculiar confidential or fiduciary relation between the
parties. In this class of cases, there is often to be found some inter-
mixture ofdeceit, imposition, overreaching, unconscionable advantage,
or other mark of direct and positive fraud. But the difficulty of proof
has induced courts of equity to grant relief independent of any such

(i) Bosanquet v. Dashwood, Cas. t. Talb. 41 ; Quarrier v. Colston, 1 Ph. 147.

(k) Cod. Lib. 3, tit. 43, 1. 1.
(/) Vernon's Case, i Co. 2 h.; Brook v. Hook, L. E. 6 Ex. 89; Goodwin v.
Fielding, i De G. M. & G. 90.
(m) Crowe v. Ballard, 1 Ves. Jr. 215; Morse v. Royal, 12 Ves. 355; Savery v.
King, 5 H. L. C. 627.
(n) Champion v. Rigby, Taml. 421 ; affd. 7 L. J. N. S. Ch. 211 ; Allcard v. Skinner,
36 Ch. D. US.
128 EQUITY JURISPRUDENCE. [CH. VII,

ingredient, upon a motive of general public policy (o); and it is

designed, in some degree, as a protection to the parties against the
effects of overweening confidence, and self-delusion, and the infirmities
of hasty and precipitate judgment. These courts will, therefore, often
interfere in such cases, where, but for such a peculiar relation, they
would either abstain wholly from granting relief, or would grant it in a
very modified and abstemious manner (p). The eases of influence
arising by inference from the situation of the parties will be discussed
in succeeding paragraphs. It is also to be observed that relief will be
granted where undue influence has been proved to exist in fact (g).

§ 308. It is undoubtedly true, as has been said, that it is not upon

the feelings which a delicate and honourable man must experience,
nor upon any notion of discretion, to prevent a voluntary gift or other
act of a man, whereby he strips himself of his property, that court®
of equity have deemed themselves at liberty to interpose in eases of
this sort {r). They do not sit, or affect to sit, in judgment upon cases,
as custodes morum, enforcing the strict rules of morality. But they
do sit to enforce what has not inaptly been called a technical morality.
If confidence is reposed, it must be faithfully acted upon, and pre-
served from any intermixture of imposition. If influence is acquired,
it must be kept free from the taint of selfish interest, and cunning,
and overreaching bargains. If the means of personal control are given,
they must be always restrained to purposes of good faith and personal
good. Courts of equity will not, therefore, arrest or set aside an act
or contract merely because a man of more honour would not have
entered into it. There must be some relation between the parties,
which compels the one to make a full discovery to the other, or to
abstain from all selfish projects. But, when such a relation does exist,
courts of equity, acting upon this superinduced ground, in aid of
general morals, will not suffer one party, standing in a situation of
which he can avail himself against the other, to derive advantage
from that circumstance, for it is founded in a breach of confidence.
The general principle, which governs in all cases of this sort, is, that
if a confidence is reposed, and that confidence is abused, courts of
equity will grant relief (s).
§ 309. In the first place, as to the relation of parent and child.
A parent may exercise a natural and just influence over a child,
and so long as he does not abuse his position, he rnay retain a benefit

(o) Ex parte Lacey, 6 Ves. 625; Dent v. Bennett, 4 M. & Cr. 269; Benson v.
Heathorn, 1 Y. & C. Ch. 326.
(p) Goddard v. Carlisle, 9 Price 169 ; Wright v. Carter, 1903, 1 Ch. 27.
(q) Smith V. Kay, 7 H. L. C. 750.
(r) Huguenin v. Baseley, 14 Ves. 290.
(s) Dent V. Bennett, 4 M & Cr. 269; Boyse v. Rossborough, 6 H. L. C. 2; Wright
V. Carter, [1903] 1 Ch. 27; In re Coomber ; Coomber v. Coomber, [1911] 1 Ch. 723.
 § 308 — 310.] CONSTRUCTIVE FRAUD. 129

conferred upon him by his child (<). Of this character are advantages
obtained by a parent upon a resettlement of family estates. But the
general rule is that when a child who is not emancipated from his
parent's control, confers a benefit upon the parent, if the transaction
is subsequently impeached by the child, the onus is on the parent to
show that the child had independent advice, and that he executed the
deed with full knowledge of its contents, and with a free intention of
giving the parent the benefit conferred by it. And, according to the
universal rule in equity, volunteers claiming through the parent, and
all persons with notice of the circumstances which raise the equity,
stand in no better position than the parent (m). It is desirable, though
not essential, when a child makes a gift to his father, that the child
and the father should be represented by independent solicitors (x).
And the same principles apply to a voluntary gift to a person who has
put himself in loco pureniis towards the donor {y).
§ 310. In the next place, as to the relation of client and legal
adviser. It is obvious that this relation must give rise to great con-
fidence between the parties, and to very strong influences over the
actions, and rights, and interests of the client (2). The situation of a
legal adviser puts it in his power to avail himself, not only of the
necessities of his client, but of his good nature, liberality, and credulity,
to obtain undue advantages, bargains, and gratuities. Hence, the
law, with a wise providence, not only watches over all the transactions
of parties in this predicament, but it often interposes to declare trans-
actions void, which, between other persons, would be held unobjection-
able. It does not so much consider the bearing or hardship of its
doctrine upon particular cases, as it does the importance of preventing
a general public mischief, which may be brought about by means,
secret and inaccessible to judicial scrutiny, from the dangerous
influences arising from the confidential relation of the parties (o).
There are cases in which it has been asserted that, while the relation of
client and solicitor subsists in its full vigour, the latter shall derive
no benefit to himself from the contracts, or bounty, or other negotia-
tions of the former (h); but the cases fall short of this, the principle
being that the legal adviser must establish that a gift was the free

(t) Bellamy v. Sabine, 2 Ph. 425; Hoghton v. Hoghton, 1-5 Beav. 278; Hartopp v.
HaHopp, 21 Beav. 259; Hoblyn v. Hoblyn, 41 Ch. D. 200.
(«) Savery v. King, 6 H. L. C. 627; Baker v. Bradley, 7 De G. M. & G. 597;
Turner v. Collins, L. E. 7 Ch. 329 ; Bainbrigge v. Brown, 18 Ch. D. 188.
(x) Gibbs v. Daniel, 4 Giff. 1; Bainbrigge v. Brown, 18 Ch. D. 188; Wright v.
CaHer, [1903] 1 Ch. 27.
(y) Archer v. Hudson, 7 Beav. 551; Maitland v. Irving, 15 Sim. 437 ; Maitland v.
Backhouse, 16 Sim. 68; Kempson v. Ashbee, L. E. 10 Ch. 15.
(z) Holman v. Loynes, 4 De G. M. & G. 270; Savery v. King, 5 H. L. C. 627;
Corley v. Lord Stafford, 1 De G. & J. 238.
(o) Wood V. Downes, 18 Ves. 126; Broun v. Kennedy, 4 De G. J. & S. 217.
(b) E.g., Wood v. Downes, 18 Ves. 126; Goddard v. Carlisle, 9 Price 169;
Edwards v. Meyrick, 2 Hare 68; Tomson v. Judge, 3 Drew. 306.
E.J. 9
130 EQUITY JUEISPRUDENCE. [CH. VII.

uninfluenced act of the client (c), and that in the matter of a sale the
legal adviser imparted to his client all the information the legal adviser
in fact possessed, or which the client had a right to expect, if he had
been advised by a skilled independent adviser (d). In the case of
testamentary gifts, this purely equitable rule is inapplicable (e). It is
still a doubtful point whether any difference exists in point of principle
between gifts and purchases (/). The true explanation seems to rest
in this, that courts of equity have always favoured purchasers, and
refused to consider volunteers, as having a meritorious claim. It is
also necessary to observe that the relationship of legal adviser and
client must in fact exist in order that a transaction should be impeach-
able, and this necessitates in each case the determination of a question
of fact (g).
§ 311. On the one hand, it is not necessary to establish that there
has been fraud or imposition upon the client ; and, on the other
hand, it is not necessarily void throughout, ip'SO facto. But the
burden of establishing its perfect fairness, adequacy, and equity, is
thrown upon the legal adviser upon the general rule, that he who
bargains in a matt-er of advantage with a person placing a confidence
in him, is bound to show that a reasonable use has been made of that
confidence ; a rule applying equally to all persons standing in confiden-
tial relations with each other (h). If no such proof is established,
courts of equity treat the case as one of constructive fraud. In this
respect there is said to be a distinction between the case of a solicitor
and client, and that of a trustee and cestui que trust. In the former,
if the solicitor, retaining his connection, contracts with his client, he is
subject to the onus of proving that no advantage has been taken of
the situation of the latter. But in the case of a trustee, it is not
sufficient to show that no advantage has been taken; but the cestui
que trust may set aside the transaction at his own option (i). The
reason of this distinction, which savours somewhat of nicety, if not
of subtilty, seems to be, that in the case of clients the rule is general
and applicable to all contracts, conveyances, and negotiations between

(c) Harris v. Tremenheere, 15 Ves. 40; Hunter v. Atkins, 3 M. & K. 113; In re

Coomber; Coomher v. Coomher, [1911] 1 Ch. 723.
(d) Bulkley v. Wilford, 2 CI. & F. 102; Corley v. Lord Stafford, 1 De G. & J. 238;
Luddy's Trustee v. Peard, 33 Ch. D. 500; Bell v. Marsh, [1903] 1 Ch. 528.
(e) Boyse v. Bossborough, 6 H. L. C. 2; Parfitt v. Lawless, L. E. 2 P. & D. 462 :
Baudains v. Richardson, [1906] A. C. 169.
(/) See Holman v. Loynes, 4 De G. M. & G. 270; Morgan v. Minett, 6 Ch. D.
638; In re Haslam and Hier-Evans, [1902] 1 Ch. 765.
ig) Goddard v. Carlisle, 9 Price, 169; Austin v. Chambers, 6 CI. & P. 1; Carter
v. Palmer, 8 CI. & P. 657; Edwards v. Meyrick, 2 Hare 60; Holman v. Loynes, 4
De G. M. & G. 270; Guest v. Smythe, L. E. 5 Ch. 551; Allison v. Clavhills, 97 L T
709.
(h) Gibson v. Jeyes, 6 Ves. 278; Montesquieu v. Sandys, 18 Ves. 313; Dent v.
Bennett, 4 M. & Cr. 269; CaHer v. Palmer, 8 CI. & P. 657.
(t) Cane v. Lord Allen, 2 Dow 289, 299.
§ 311 — 313.] CONSTRUCTIVE FRAUD. 131

the solicitor and client, and is not limited to the property about which
the solicitor is retained, or the suit in which he is acting. In the case
of a trustee, the rule giving the cestui que trust an option, is limited
to the purchase of the first property, and as to other property it would
seem that the rule is the same as in other fiduciary relations, that is,
at most, it only shifts the burden of proof from the seller to the buyer,
to show the entire fairness of the transaction; or leaves the seller to
establish presumptively, that there has been some irregularity in the
bargain, or some influence connected with the relation under which
it has been made.

§ 312. Thus, if a conveyance is obtained by a solicitor from a client,

it will be set aside as obtained by undue influence, and the property
will stand charged in the hands of the solicitor with the sums of money
actually expended by him (k), or which he can show to be justly
due (I), but subject to the charge the property is deemed the property
of the client. So, also, where a solicitor's clerk, who was censulted
by a lady in regard to a mortgage on her estate, by means of the
knowledge thus acquired, was enabled to purchase the mortgage at
much less than its amount, it was held that the lady was entitled to
the benefit of the bargain (m). And where the solicitor becomes the
purchaser of an estate of his client, the burden of sustaining it, at
least within twenty years, is upon him ; and it has been said by
eminent judges, that the same weight ought not to be given to the
lapse of time, during the continuance of the relation of attorney and
client, as in other cases (n-). Where the solicitor proposes to take any
contract from his client for compensation, beyond what the law pro-
vides, or in a different form more advantageous to himself, it is his
' ' bounden duty ' ' to inform his client, that the law allows no such
charge (o).

§ 313. Indeed, the general principle is so well established, that

Lord Eldon, on one occasion, said: "It is almost impossible, in the
course of the connection of guardian and ward, attorney and client,
trustee and cestui que trust, that a transaction shall stand, purporting
to be bounty for the execution of an antecedent duty " (p). But,
where the relation is completely dissolved, and the parties are no
longer Under the antecedent influence, but deal with each other at
arm's length, there is no ground to apply the principle, and they

(k) Jones v. Thomas, 2 Y. & C. Ex. 498; Lewis v. Hillman, 3 H. L. C. 607.

(l) Lawless v. Mansfield, 1 Dr. & War. 557; Thomas v. Lloyd, 3 Jnr. N.S. 288;
Gresley v. Mousley, 3 De &. F. & J. 433.
(m) Hobday v. Peters, 28 Beav. 349.
(n) Gresley v. Mousley, 4 De G. & J. 78.
(o) Bulkley v. Wilford, 2 CI. & F. 102; Rhodes v. Bate, L. E. 1 Ch. 257; Coch-
bum V. Edwards, 18 Ch. 449.
(p) Hatch V. Hatch, 9 Ves. 296, 297.
132 EQUITY JURISPRUDENCE. [CH. VII.

stand upon the rights and duties common to all other persons (g).
And the __same rule will or may apply, where the transaction is totally
disconnected with the relation, and concerns objects and things not
embraced in, or affected by, or dependent upon, that relation (r);
and there is an absence of all other circumstances, which may create
a just suspicion as to the integrity and fairness of the transaction.
§ 314. Similar considerations apply to the case of a medical
adviser and his patient (s). For it would be a meagre sort of justice to
say that the sort of policy which has induced the court to interfere
between client and solicitor, should be restricted to such cases; since
as much mischief might be produced, and as much fraud and dis-
honesty be practised, if transactions were permitted to stand, which
arose betwen parties in equally confidential relations.
§ 315. In the next place, the relation of principal and agent. This
is affected by the same considerations as the preceding, founded upon
the same enlightened public policy (f). In all cases of this sort- the
principal contracts for the aid and benefit of the skill and judgment
of the agent, and the habitual confidence reposed in the latter, make
all his acts, and statements possess a commanding influence over the
former. Indeed, in such cases, the agent too often so entirely misleads
the judgment of his principal that, while he is seeking his own peculiar
advantage, he seems but consulting the advantage and interest of his
principal; placing himself in the odious predicament so strongly stig-
matized byCicero : " Totius autem injustitise nulla capitalior est, quam
eorum, qui, cum maxime fallunt, id agunt, ut viri boni esse vide-
antur " (u). It is, therefore, for the common security of all mankind,
that gifts 'procured by agents, and purchases made by them, from their
principals, should be scrutinized with a close and vigilant suspicion.
And, indeed, considering the abuses which may attend any dealings
of this sort between principals and agents, a doubt has been expressed
whether it would not have been wiser for the law in all cases to have
prohibited them ; since there must almost always be a conflict between
duty and interest on such occasions. Be this as it may, it is very
certain that agents are not permitted to become secret vendors or
purchasers of property which they are authorized to buy or sell for their
principals (x) ; or, by abusing their confidence, to acquire unreasonable

iq) Gibson v. Jeyes, 6 Yes. 277 ; Guest v. Smythe, L. E. 5 Ch. 551 ; Bell v. Marsh,
[1898] 1 Ch. 212; Allison v. Clayhills, 97 L. T. 709.
(r) Montesquieu v. Sandys, 18 Ves. 313; Jones v. Thomas, 2 Y. & Coll. Ex. 498.
(s) Dent V. Bennett, i Myl. & Or. 269; Gibson v. Russell, 2 Y. & Coll. Ch. 104;
Billage v. Southee, 9 Hare 534.
(t) Benson v. Heathorn, 1 Y. & Coll. Ch. 326.
(u) Cic de Offic. Lib. 1, ch. 13.
(x) Lewis V. Hillman, 3 H. L. C. 607 ; Kimber v. Barber, L. B. 8 Ch. 56; Hoohe-
foucauld V. Boustead, [1897] 1 Ch. 196; Att.-Gen. {Canada) v. Standard Trust Co. of
N. y., [1911] A. C. 498.
I 314 — 317.] CONSTRUCTIVE FRAUD. l33

gifts or advantages {y) ; unless known and sanctioned by the prin-

cipal (z); or, indeed, to deal validly with their principals in any case,
except where there is the most entire good faith, and a full disclosure
of all facts and circumstances, and an absence of all undue influence,
advantage, or imposition (zz).
§ 316. Upon these principles, if an agent sells to his principal his
own property, as the property of another, without disclosing the fact,
the bargain, at the election of the principal, will be held void (a). So,
if an agent, employed to purchase for another, purchases for himself,
he will be considered as the trustee of his employer (b). Therefore, if
a person is employed as an agent, to purchase up a debt of his
employer, he cannot purchase the debt upon his own account, for he
is bound to purchase it at as low a rate as he can ; and he would
otherwise be tempted to violate his duty (c). The same rule applies to
a surety, who purchases up the debt of his principal (d). And, there-
fore, in each case, if a purchase is made of the debt, the sigent or
surety can entitle himself, as against his principal, to no more than he
has actually paid for the debt. So, if an agent discover a defect in the
title of his principal to land, he cannot misuse it to acquire a title for
himself; if he do, he will be held a trustee for his principal (e).
§ 317. In the next place, as to the relation of guardian and ward.
In this most important and delicate of trusts the same principles
prevail, but with an important modification. A guardian is not bound
to a strict account of moneys received by him for the maintenance of
an infant; it is sufficient if he has substantially complied with his duty
to maintain the infant (/). It is obvious that, during the existence of
the guardianship, where the ward is necessarily a minor, the transac-
tions between the guardian and the ward cannot be binding upon the
latter. But courts of equity will not permit transactions between
guardians and wards to stand, even when they have occurred after the
minority has ceased, and the relation become thereby actually ended,
if the intermediate period be short, unless the circumstances demon-
strate, inthe highest sense of the terms, the fullest deliberation on the
part of the ward, and the most abundant good faith (uberrima fides)
iy) Fawcett v. Whitehouse, 1 Eu33. and M. 132; Boston Deep Sea Fishing Go.
v. Ansell, 39 Ch. D. 339; Powell v. Evans, Jones £ Co., [1905] 1 K. B. 11. See also
Illegal Commissions Act.
(z) Great Western Insurance Co. v. Cunlijfe, L. E. 9 Ch. 525; Baring v. Stanton,
3 Ch. D. 502; Williamson v. Hine, [1891] 1 Ch. 390"; Stubbs v. Slater, [1910] 1 Ch.
632.
(zz) Coles V. Trecothick, 9 Ves. 246; Mpntesquieu v. Sandys, 18 Ves. 302; Hay's
Case, L. B. 10 Ch. 593.
(a) Tyrrell v. Bank of London, 10 H. L. C. 26.
(b) Lees v. Nuttall, 1 Euss. & Myl. 53; Rochefoucauld v. Boustead, [1897] 1 Ch.
196. See In re Finlay, Wilson d Co. v. Finlay, [1913] 1 Ch. 565.
(e) Carter v. Palmer, 8 CI. & F. 657 ; Lawless v. Mansfield, 1 Dr. & War. 557.
(d) Reed v. Norris, 2 Myl. & Cr. 361. (e) Bulkley v. Wilford, 2 CI. & P. 102.
(/) Leach v. Leach, 13 Sim. 804; In re Evans; Welch v. Channell, 26 Ch. D. 58;
Of. Strangways v. Read, [1898] 2 Ch. 419.
134 EQUITY JUEISPRDDBNCB. [CH. VII.

on the part of the guardian. For, in all such cases, the relation is still
considered as having an undue influence upon the mind of the ward,
and as virtually subsisting, especially if all the duties attached to the
situation have not ceased ; as, if the accounts between the parties have
not been fully settled, or if the estate still remains in some sort under
the control of the guardian (g).
§ 320. In the case to which these principles have been applied,
in order to set aside grants and other transactions between guardian
and ward, two circumstances of great importance have generally
concurred : first, that the grants and transactions have taken place
immediately upon the ward's attaining age; and, secondly, that the
former influence of the guardian has been demonstrated to exist to
an undue degree; or, in other words, that the parties have not met
upon equal terms. If, therefore, the relation has entirely ceased, not
merely in name but in fact, and if sufficient time has elapsed to put
the parties in complete independence as to each other; and if a full
and fair settlement of all transactions growing out of the relation has
been made, there is no objection to any bounty or grant conferred by
the ward upon his guardian (h). Indeed, in such cases, it is only the
performance of a highly moral duty, recommended as well by law as
by natural justice.
§ 321. In the next place, with regard to the relation of trustee
and cestui que trust, or rather beneficiary, or fide-commissary, as we
could wish the person beneficially interested might be called, to escape
from the awkwardness of a barbarous modification of a foreign
idiom (i). In this class of cases the same principles govern as in cases
of guardian and ward, with at least as much enlarged liberality of
application, and upon grounds quite as comprehensive. Indeed, the
cases are usually treated as if they were identical (fe). A trustee is
never permitted to partake of the bounty of the party for whom he acts,

(g) Hatch v. Hatch, 9 Ves. 292; Revett v. Harvey, 1 Sim. & St. 502; Wedderburn
V. Wedderburn, 4 M. & Cr. 41; Kempson v. Ashbee, L. K. 10 Ch. 15.
(h) Hylton v. Hyltort, 2 Ves. Sen. 547, 549.
(t) The phrase cestui que trust is a barbarous Norman law French phrase ; and is
so ungainly and ill adapted to the English idiom, that it is surprising that the good
sense of the English legal profession has not long since banished it, and substituted
some phrase in the English idiom, furnishing an analogous meaning. In the Roman
law the trustee was commonly called hceres fiduciarius ; and the cestui que trust, hceres
fidei commis sarins, which Dr. Halifax has not scrupled to translate fide-committee
(Halifax, Anal, of Civil Law, ch. 6, § 16, p. 34 ; id. ch. 8, § 2, 3, pp. 45, 46). I prefer
fide-commissary, as at least equally within the analogy of the English language. But
beneficiary, though a little remote from the original meaning of the word, would be a
very appropriate word, as it has not, as yet, acquired any general use in a different
sense. Hceres fidei commissarius was sometimes used in the civil law to denote the
trustee. See Vicat, Vocab. voce Fidei commissarius. The French law calls the
cestui que trust, fidei commissaire. See Perrifere, Diet. t>oce fidei commissaire. Merlin,
E^pertoire voce Substitution, et substitution fidei commissaire. Dr. Brown uses the
word fidei-commissary (1 Brown, Civil Law, 190, note).
(fc) Hatch V. Hatch, 9 Ves. 292, 296, 297; Bulkely v. Wilford, 2 CI. & P. 102, 177
to 183; ante, § 317, 320.
§ 320 322.] CONSTRUCTIVE FRAUD. 135

except under circumstances which would make the same valid, if it

were a ease of guardianship; that is, a trustee may purchase of his
cestui que trust, provided there is a distinct and clear contract, ascer-
tained to be such, after a jealous and scrupulous examination of all
the circumstances; and it is clear that the cestui que trust intended
that the trustee should buy ; and there is no fraud, no concealment, and
no advantage taken by the trustee of information aequijred by him as
trustee. But it is difficult to make out such a case, where the excep-
tion is taken, especially where there is any inadequacy of price or any
inequality in the bargain (I). And therefore, if a trustee, though
strictly honest, should buy for himself an estate of his cestui que trust,
and then should sell it for more, according to the rules of a court of
equity, from general policy, and not from any peculiar imputation of
fraud, he would be held still to remain a trustee to all intents and
purposes, and not to be permitted to sell to or for himself (w).
§ 322. But we are not to understand, from this last language,
that, to entitle the cestui que trust to relief, it is indispensable to show
that the trustee has made some advantage, where there has been a
purchase by himself; and that, unless some advantage has been made,
the sale of the trustee is good. That would not be putting the doctrine
upon its true ground, which is, that the prohibition arises from the
subsisting relation of trusteeship. The ingredient of advantage made
by him would only go to establish, that the transaction might be open
to the strong imputation of being tainted by imposition or selfish
cunning. But the principle applies, however innocent the purchase
may be in a given case. It is poisonous in its consequences. The
cestui que trust is not bound to prove, nor is the court bound to decide,
that the trustee has made a bargain advantageous to himself. The
fact may be so; and yet the party not have it in his power distinctly
and clearly to show it. There may be fraud, and yet the party not
be able to show it. It is to guard against this uncertainty and hazard
of abuse, and to remove the trustee from temptation, that the rule does
and will permit the cestui que trust to come at his own option, and,
without showing essential injury, to insist upon having the experiment
of another sale, or to compel the trustee to reconvey the estate to
himself on repayment of the purchase-money with 4 per cent, interest.
So that in fact, in all cases where a purchase has been made by a
trustee on his own account of the estate of his cestui que trust,
although sold at public auction, it is in the option of the cestui que
trust to set aside the sale, whether bond fide made or not (n). So a
trustee will not be permitted to obtain any profit or advantage to

(!) Coles V. Trecothick, 9 Ves. 246; Benningfield v. Baxter, 12 App. Cas. 167;
Williams v. Scott, [1900] A. C. 499.
(to) See Fox v. Mackreth, 2 Bro. C. C. 400; 2 Cox, 158, 320; 4 Bro. P. C. 258.
(n) Campbell v. Walker, 5 Ves. 678; 13 Ves. 601; Ex parte Lacey, 6 Ves. 625;
Morse v. Royal, 12 Ves. 355.
136 EQUITY JURISPRUDENCE. [CH. VII.

himself in managing the concerns of the trust, but whatever benefits

or profits are obtained will belong exclusively to the cestui que trust;
but the trustee is entitled to retain a collateral profit, although it is
acquired by him in consequence of his appointment (o). In short, it
may be laid down as a general rule, that a trustee is bound not to do
anything which can place him in a position inconsistent with the
interests of the trust, or which has a tendency to interfere with his
duty in discharging it (p). And this doctrine applies, not only to
trustees strictly so called, but to other persons standing in like
situation ; such as trustees and solicitors of a bankrupt estate, who
are never permitted to become purchasers at the sale of the bankrupt
estate (g). Further, a person in a fiduciary position is not permitted
to purchase up the debts of his beneficiaries on his own account; but,
whatever advantage is thus derived by him by purchases at an undue
value, is for the common benefit of the estate (?■). Indeed, the doctrine
may be more broadly stated ; that executors or administrators will not
be permitted, under any circumstances, to derive direct personal benefit
from the manner in which they transact the business, or manage the
assets, of the estate. And if a trustee misapply the funds of his
cestui que ti'ust or beneficiary, and purchase a judgment or other
security therewith, the latter has an election to take such judgment or
security, or to call upon the trustee to make good the original fund.
§ 323. There are many other cases of persons, standing, in regard
to each other, in the like confidential relations, in which similar
principles apply. Among these may be enumerated the cases which
arise from the relation of penitent and spiritual adviser (s), and per-
haps of master and servant (i). But it would occupy too much space
to go over them at large ; and most of them are resolvable into the
principles already commented on. On the whole, the doctrine may
be generally stated that wherever confidence is reposed, and one party
has it in his power, in a secret manner for his own advantage, to
sacrifice those interests which he is bound to protect, he will not be
permitted to hold any such advantage («)•
§ 323 (a.) Since the author wrote, a pertinent illustration has been
afforded by the case of joint stock companies. Generally speaking, a

(o) Kirkman v. Booth, 11 Beav. 273; In re Barber, Burgess v. Vinnicorne, 34

Ch. D. 77; In re Dover Coalfields Extension, Lim., [1908] 1 Ch. 65; In re Lewis,
Lewis V. Lewis, 103 L. T. 495; Bath v. Standard Land Co., [1911] 2 Ch. 618.
(p) Hamilton v. Wright, 9 CI. & F. 111.
(g) Ex parte Lacey, 6 Ves. 625; Ex parte James, 8 Yes. 337; Ex parte Bennett,
10 Ves. 381.
(r) Pooley v. Quilter, 2 De G. & J. 327.
(s) Huguenin v. Baseley, 14 Ve9. 273; Allcard v. Skinner, 36 Ch. D. 145; Morley
V. Loughman, [1893] 1 Ch. 736.
(t) Nantes v. Corrock, 9 Ves. 182; Consett v. Bell, 1 Y. & C. Ch. 569; Bate v.
Bank of England, 9 Jur. 545; Gibson v. Russell, 2 Y. & C. Ch. 104.
(u) Dent V. Bennett, 4 M. & Cr. 269.
§ 323 326.] CONSTRUCTIVE FRAUD. 137

director stands in a fiduciary position to the company (x), and cannot

retain a profit made by him, but the constitution of the company may
permit him to do so {y}, and even to override the wishes of the
majority of the shareholders (2), and in any event he can exercise his
individual rights as a corporator (a). Promoters are also bound to the
fullest disclosure (b). The term promoter has been defined as " a term
not of law, but of business, usefully summing up in a single word
a number of business operations familiar to the commercial world by
which a company is generally brought into existence " (c).
§ 324. The case of principal and surety may also, as a striking
illustration of this doctrine, be briefly referred to. The contract of
suretyship imports entire good faith and confidence between the parties
in regard to the whole transaction. Any concealment of material
facts, or any express or implied misrepresentation of such facts, or
any undue advantage taken of the surety by the creditor, either by
surprise or by withholding proper information, will undoubtedly
furnish a sufficient ground to invalidate the contract. Upon the same
ground, the creditor is, in all subsequent transactions with the debtor,
bound to equal good faith to the surety. If any stipulations, therefore,
are made between the creditor and the debtor which are not com-
municated to the surety, and are inconsistent with the terms of his
contract, or are prejudicial to his interests therein, they will operate
as a virtual discharge of the surety from the obligation of his con-
tract (d). And, on the other hand, if any stipulations for additional
security or other advantages are obtained between the creditor and the
debtor, the surety is entitled to the fullest benefit of them (e).
§ 325. Indeed, the proposition may be stated in a more general
form ; that if a creditor does any act injurious to the surety or incon-
sistent with his rights, or if he omits to do any act, when required by
the surety, which his duty enjoins him to do, and the omission proves
injurious to the surety, in all such cases the latter will be discharged,
and he may set up such conduct as a defence to any suit brought
against him in equity.
§ 326. It is upon this ground, that if a creditor, without any com-
munication with the surety, and assent on his part, should afterwards
enter into any new contract with the principal, inconsistent with the

(x) Imperial Mercantile Credit Association v. Coleman, L. E. 6 H. L. 189 ;

Cavendish Bentinck v. Fenn, 12 App. Gas. 652.
(y) Costa Rica Ry. v. Forwood, [1901] 1 Ch. 746.
(z) Quin & Axtens, Ltd. v. Salmon, [1909] A. C. 442.
(a) North West Transportation Co. v. Beatty, 12 App. Gas. 589.
(b) Erlanger v. New Sombrero Co., 3 App. Gas. 1218; Emma Silver Mining Co. v.
Orard, 11 Gh. D. 918; Lagunas Nitrate Co. v. Lagunas Syndicate, [1899] 2 Ch. 392.
(c) Bowen, J., Waley Bridge Co. v. Green, 5 Q. B. D. 109; see also Lindley, L.J.,
Lydney * Wigpool Iron Ore Co. v. Bird, 33 Ch. D. 85.
(d) Pidcoek v. Bishop, 3 B. & C. 605 ; Bonar v. Macdonald, 3 H. L. C. 226.
(e) Pearl v. Deacon, 1 De G. & J. 461.
138 EQUITY JURISPRUDENCE. [CH. VII.

former contract, or should stipulate, in a binding manner, upon a

sufficient consideration, for further delay and postponement of the
day of payment of the debt, that will operate in equity as a discharge
of the surety (/). But it is not every alteration of his position by the
act of the creditor, which will discharge the surety. To have this,
effect, the alteration must be such as interferes for a time with his
remedies against the principal debtor (g). And where the creditor, in,
making the arrangement with the principal to give time, or other-
wise vary the strict enforcement of the letter of the contract, reserves,
his rights against the surety, although without communicating this
fact to the surety, it will not operate as a release of the surety (h).
But there is no positive duty incumbent on the creditor to prosecute
measures of active diligence ; and, therefore, mere delay on his part
(at least if some other equity does not interfere), unaccompanied by
any valid contract for such delay, will not amount to laches, so as to
discharge the surety (i). Oil the other hand, if the creditor has any
security from the debtor, and he parts with it, without communication
with the surety, or by his gross negligence it is lost, that will operate,
at least to the value of the security, to discharge the surety (fe). And
even where done under a misapprehension, the consequences must
fall upon the person who did the act (I). It is immaterial in what
character the parties contracted originally. The moment the creditor
has notice that the relation of the parties inter se is that of principal
and surety, he must, in his subsequent dealings, respect the true
contract between the other parties {m).
§ 327. Sureties also, are entitled to come into a court of equity,
after a debt has become due, to compel the debtor to exonerate them
from their liability, by paying the debt; or sue in the creditor's name,
and collect the debt from the principal, if he will indemnify the creditor
against the risk, delay, and expense of the suit («.). And they have
a clear right, upon paying the debt to the principal, to be substituted
in the place of the creditor, as to all securities held by the latter for
the debt, and to have the same benefit that he would have therein (o).
This, however, is not the place to consider at large the general rights

(/) Rees V. Berrington, 2 Yes. Jun. 540; Bonar v. Macdonald, 3 H. L. C. 226 j

Perry v. National Provincial Bank of England, [1910] 1 Ch 464.
(g) Tucker v. Laing, 2 K. & J. 745.
ih) Webb V. Hewitt, 3 K. & J. 338; Green v. Wymer, L. E. 4 Ch. 204.
(i) Wright v. Simpson, 6 Ves. 734; Heath v. Hay, 1 Y. & Jer. 434; Carter v.
White, 25 Ch. D. 666.
(k) Mayhew v. Crickett, 2 Swanst. 185, 191, and note (a); Stirling v. Forrester,
2 Bli. 575.
(0 Lord Eldon, in Ex parte Wilson, 11 Ves. 410.
(m) Rouse v. Bradford Banking Co., [1894] A. C. 586.
(n) Wooldridge v. Norris, L. E. 6 Eq. 410; Ascherman v. Tredegar Dry Dock Co.,
[1909] 2 Ch. 401.
(o) Bowker v. Bule, 1 Sim. N. S. 29; Berridge v. Berridge, 44 Ch. D 168- Gee v
Liddell, [1913] 2 Ch, 62,
§ 327 — 331.] CONSTRUCTIVE FRAUD. 139

and duties of persons standing in the relation of creditors, debtors, and

sureties; and we shall have occasion again to advert to the subject,
when considering the marehalling of securities in favour of sureties (p).
§ 328. Let us now pass to the consideration of the third class of
constructive frauds, combining, in some degree, the ingredients of the
others, but prohibited mainly, because they unconseientiously com-
promit, or injuriously affect, the private rights, interests, or duties of
the parties themselves, or operate substantially as frauds upon the
private rights, interests, duties, or intentions of third persons.
§ 329. With regard to this last class, much that has been already
stated, under the preceding head of positive or actual fraud, as to
unconscionable advantages, overreaching, imposition, undue influence,
and fiduciary situations, may well be applied here, although certainly
with diminished force, as the remarks there made did not turn ex-
clusively upon constructive fraud.
§ 330. To this same class may also be referred many of the cases
arising under the Statute of Frauds, which requires certain contracts
to be in writing, in order to give them validity, or to be proved by
written evidence. In the construction of that statute, a general prin-
ciple has been adopted, that, as it is designed as a protection against
fraud, it shall never be allowed to be set up as a protection and support
of fraud. The Court of Chancery, in its later days, disclaimed, and
the High Court disclaims, any jurisdiction to grant relief upon the
ground that there is no writing ; but the court has granted relief where
a party has by fraud prevented written evidence being produced, as if
an heir should prevent an ancestor executing a will, as the statute
required, under sections which are now replaced by the Wills Act,
1837 (q) ; or if a party to a contract should obtain the suppression of
a written document by fraud or imposition (r) ; and there may be other
instances, but short of fraud there is nothing inequitable in relying upon
an unrepealed statute (s).
§ 331. And, here; we may apply the remark, that the proper
jurisdiction of courts of equity is to take every one's act, according
to conscience, and not to suffer undue advantage to be taken of the
strict forms of law, or of positive rules. Hence it is, that, even if
there be no proof of fraud or imposition; yet, if upon the whole cir-
cumstances, the contract appears to be grossly against conscience, or
grossly unreasonable and oppressive, courts of equity will sometimes
interfere and grant relief (t) ; although they certainly are very cautious
of interfering, unless upon very strong circmstances. But the mere
fact that the bargain is a very hard or unreasonable one, is not,

(p) Post, § 499. 502, 637.

(q) Viscountess Montacute v. Maxwell, 1 P. Wms. 616.
(r) Mallet v. Halfpenny, cited Free. Ch. at p. 404.
(s) Wood V. Midgley, 5 De G. M. & G. 41.
(t) Bowes V. Heaps, 3 Ves. & B. 117.
140 EQUITY JURISPRUDENCE. [CH. VII.

generally, sufficient, per se, to induce these courts to interfere (m).

And, indeed, it will be found that there are very few cases not infected
with positive or actual fraud, in which they do interfere, except
where the parties stand in some very peculiar predicament, and in
some sort, under the protection of the law, from age, or character, or
relationship (a;).
§ 333. But the great class of cases, in which relief is granted, under
this head, is where the contract or other act is substantially a fraud
upon the rights, interests, duties, or intentions of third persons. And,
here, the general rule is, that particular persons, in contracts, and
other acts, shall not only transact bond fide between themselves but
•shall not transact malA fide in respect to other persons, who stand in
such a relation to either, as to be afiected by the contract or the con-
sequences ofit (j/). And, as the rest of mankind, besides the parties
contracting, are concerned, the rule is properly said to be governed
by public utility (z).
§ 334. It is upon this ground, that relief has been constantly
.granted, in what are called catching bargains with heirs, reversioners,
and expectants, during the life of their parents or other ancestors (zz).
Many, and, indeed, most of these cases (as has been pointedly re-
marked by Lord Hardwicke), " have been mixed cases, compounded
of almost every species of fraud ; there being sometimes proof of actual
fraud, which is always decisive. There is always fraud presumed or
inferred from the circumstances or conditions of the parties contracting,
from weakness on one side and usury on the other, or extortion or
advantage taken of that weakness. There has always been an appear-
ance of fraud from the nature of the bargain, even if there be no proof
of any circumvention, but merely from the intrinsic unconscionabl&ness
of the bargain. In most of these cases have concurred deceit and illu-
sion on other persons, not privy to the fraudulent agrement. The
father, ancestor, or relation from whom was the expectation of the
estate, has been kept in the dark. The heir or expectant has been kept
from disclosing his circumstances, and resorting to them for advice,
which might have tended to his relief, and also reformation. This mis-
leads the ancestor, who has been seduced to leave his estate, not to his
heir or family, but to a set of artful persons, who have divided the spoil
beforehand " (a).
§ 335. Strong as this language may appear, it is fuUy borne out
hj the general complexion of the cases in which relief has been afforded.

(u) White v. Damon, 7 Ves. 30 ; Harrison v. Guest, i De G. M. & Gr. 424.

(x) See Huguenin v. Baseley, 14 Ves. 271; Davis v. Duke of Marlborough, 2
■Swanst. 149, and note (a); O'Rorke v. BoUnghroke, 2 App. Caa. 822.
(y) Per Lord Hardwicke, in Earl of Chesterfield v. Janssen, 2 Ves. Sen. 156, 157.
(z) Earl of Chesterfield v. Janssen, 2 Ves. Sen. 156, 157.
{zz) Earl of Chesterfield v. Janssen, 2 Ves. Sen. 125 ; Nevill v. Snelling, 15 Ch. D.
679.
(o) Lord Hardwicke, in Earl of Chesterfield v. Janssen, 2 Ves. Sen. 157.
§ 333 — 335a-.] constructive fraud. 141

Actual fraud, indeed, has not unfrequently been repelled (b). Belief
is granted, not only in the case of sales (c), and mortgages (d), where
the security is tangible, but to post obit bonds (e), and also to those
cases where the lender hoped to be able " to put the screw on " by
enforcing his security (/). Next, the parties seeking relief need not be
young, rash, -or dissolute ; parties aged thirty-eight and also thirty years
respectively have successfully invoked the rule (g). "It is not every
bargain which distress may induce one man to offer, that another is at
liberty to accept " {h). The jurisdiction to relieve against improvidence
is saved by section 1, sub-section 6 of the Moneylenders Act, 1900,
which, as amended by the Moneylenders Act, 1911, enables the court
to grant extended relief in transactions with moneylenders (i).
§ 335a. The doctrines held by courts of equity as to the require-
ments necessary to make a sale of reversionary interests valid, were so
severe that it became needful for the legislature to interfere, and accord-
ingly, the Sales of Eeversions Act, 1868 (31 & 32 Vict. c. 4) was passed,
which enacted that " no purchase, made bond fide and without fraud
or unfair dealing, of any reversionary interest in real or personal estate
should thereafter be opened or set aside merely on the ground of
undervalue ' ' (section 1) ; and it was provided further that under the
word " purchase " should be included every kind of contract, con-
veyance, or assignment, under or by which any beneficial interest in
any kind of property should be acquired. Now it will be observed that
although undervalue is not per se sufficient, it may yet be used as
evidence of unfair dealing upon which the court of chancery based its
title to relief (k). In addition to this there must be no fraud or unfair
dealing. In relation to this enactment it has been said that " these
changes of the law have in no degree whatever altered the onus
probandi in those cases, which, according to the language of Lord
Hardwicke, raise, ' from the circumstances or conditions of the parties
contracting (weakness on one side, usury on the other, or extortion,
or advantage taken of that weakness), a presumption of fraud.' Fraud
does not here mean deceit or circumvention; it means an uncon-
power arising out of these circumstances and
scientious use of the
conditions; and when the relative position of the parties is such as
prima faeie to raise this presumption, the transaction cannot stand
unless the person claiming the benefit of it is able to repel the

(b) Peacock v. Evans, 16 Ves. 512 ; Bowes v. Heaps, 3 Ves. & B. 117.
(c) Baker v. Monk, i De G. J. & S. 388; Fry v. Lane, 40 Ch. D. 312; Rees v. De
Bernardy, [1896] 2 Ch. 437.
(d) Bromley v. Smith, 26 Beav. 644; James v. Kerr, 40 Ch. D. 449.
(e) Earl of Chesterfield v. Janssen, 2 Ves. Sen. 125.
(/) Nevill V. SnelUng, 15 Ch. D. 679.
(g) Bromley v. Smith, 26 Beav. 644; Brenchley v. Higgins, 70 L. J. Ch. 788.
(h) Grant M.E., Bowes v. Heaps, 3 Ves. & B. 117.
(i) Samuel v. Newbold, [1906] A. C. 461.
(k) O'Rorke v. Bolingbroke, 2 App. Cas. 814 ; Fry v. Lane, 40 Ch. D. 312.
142 EQUITY JURISPRUDENCE. [CH. VII.

presumption by contrary evidence proving it to have been, in point of

fact, ' fair, just, and reasonable.' " (l). Formerly, a sale by auction
was prima facie evidence of the true value, vs'hile a sale by private
contract vi'as deemed to afford no criterion of vedue (m).
§ 3356. It should be further* observed, that if the expectant heir
or other person similarly defrauded be an infant, no question as to the
validity of contracts for the repayment of money lent to them can
arise, for by the Infants' Belief Act, 1874 (37 & 88 Vict. c. 62), it is
enacted that all contracts, whether by speciality or by simple contract,
thenceforth entered into by infants for the repayment of money
lent or to be lent, or for goods supplied or to be supplied (other than
contracts for necessaries), shall be absolutely void.
§ 339. The whole doctrine of courts of equity, with respect to
expectant heirs and reversioners, and others in a like predicament,
assumes that the one party is defenceless, and is exposed to the
demands of the other under the pressure of necessity. It assumes,
also, that there is a direct or implied fraud upon the parent or other
ancestor, who, from ignorance of the transaction, is misled into a false
confidence in the disposition of his property. Hence it should seem,
that one material qualification of the doctrine is, the existence of
such ignorance. If, therefore, the transaction has been fully made
known at the time to the parent, or other person standing in loco
parentis {n), as, for example, to the person from whom the spes su&ces-
sionis is entertained, or after the expiration of whose present estate
the reversionary interest is to become vested in possession, and it
is not objected to by him, the extraordinary protection, generally
afforded in cases of this sort by courts of equity, will be withdrawn.
A fortiori, it will be withdrawn, if the transaction is expressly
sanctioned or adopted by such parent or other person standing in
loco parentis (o). And it has been strongly said, that it would be
monstrous to treat the contracts of a person of mature age as the
acts of an infant, when his parent was aware of his proceedings, and
did nothing to prevent them. The parent might thus lie by, and
suffer his son to obtain the assistance which he ought himself to have
Tendered, and then only stand forward to aid him in rescinding
engagements, which he had allowed him to make, and to profit by (p).
§ 340. The other qualification of the doctrine is not less important.
The contract must be made under the pressure of some necessity ;
for the main ground of the doctrine is, the pressure upon the heir,

(l) Earl of Aylesford v. Morris, L. E. 8 Ch. 484; Brerwhley v. Higgins, 70

li. J. Ch. 788.
im) Shelly v. Nash, 3 Madd. 232; Earl of Aldborough v. Trye, 7 CI. & F. 436;
Jn re Slater's Trusts, 11 Ch. D. 227.
(n) Tyler v. Yates, L. R. 6 Ch. 665.
(o) King v. Hamlet, 4 Sim. 223; a.c. 2 Myl. & K. 456; O'Rorke v. Bolingbroke,
2 App. Cas. 814.
(p) King v. Hamlet, 2 Myl. & K. 436 ; s.c. 4 Sim. 182.
§ 335b — 343.] constructive fraud. 148

or the distress of the party, dealing with his expectancies, who is,
therefore, under strong temptations to make undue sacrifices of
his future interests (g). Both of these qualifications need not, indeed,
in all cases and under all circumstances, concur to justify relief. It
may be sufficient, that either of them forms so essential an ingredient
in the case as to give rise to a just presumption of constructive
fraud (r).
§ 841. The doctrine of courts of equity upon this subject, if it has
not been directly borrowed from, does in no small degree follow out
the policy of, the Eoman law in regard to heirs and expectants. By
the Macedonian decree (so called from the name of the usurer who
gave occasion to it), all obligations of sons, contracted by the loan of
money, while they were living in subjection to the paternal authority
and jurisdiction, were declared null without distinction. And they
were not allowed to be valid even after the death of the father; not
so much out of favour to the son as out of odium to the creditor, who
had made an unlawful loan, which was vicious in its origin as well as
in its example. " Verba Senatus consulti Macedoniani hsec sunt, etc.
Placere, ne cui, qui filiofamilias mutuam pecuniam dedisset, etiam
post mortem parentis ejus, cujus.in potestate fuisset, actio pe,titioque
daretur; ut scirent, qui pessimo exemplo fsenerarent, nullius posse
filiifamilias bonum nomen, expectata patris morte, fieri " (s). Upon
this decree Lord Hardwicke has remarked that the senate and law-
makers in Eome were not so weak as not to know that a law to

restrain prodigality, to prevent a son's running in debt in the life of

his father, would be vain in many cases. Yet they made laws to this
purpose, namely, the Macedonian decree already mentioned, happy if
they could in some degree prevent it; Est aliquod prodire terms [t]
§ 342. It is upon similar principles that post obit bonds, and other
securities of a like nature, are set aside when made by heirs and
expectants. A post obit bond is an agreement, on the receipt of
money by the obligor, to pay a larger sum, exceeding the legal rate
of interest, upon the death of a person from whom he (the obligor)
has some expectations, if he should survive him. Such bonds operate
as a virtual fraud upon the bounty of the ancestor, and disappoint his
intentions, generally by design, aad usually in the event («).
§ 348. A case of a very similar character is a contract by which
an expectant heir, upon the present receipt of a sum of money,
promises to pay over to the lender a large, though an uncertain
proportion, of the property which might descend to him upon the
death of his parent or other ancestor, if he should survive him. It is

(g) King v. Hamlet, i Sim. 182; s.c. 2 Myl. & K. 456.

(r) Earl of Portmore v. Taylor, 4 Sim. 182.
(s) Dig. Lib. 14, tit. 6, f. 1.
(t) Earl of Chesterfield v. Janssen, 2 Ves. Sen. 125, 158.
(«) Earl of Chesterfield v. Janssen, 2 Ves. Sen. 125.
 144 EQUITY JUEISPEDDENCE. [CH. VII.

a fraud upon such parent or other ancestor, and introductive of the

worst public mischiefs; for the parent or ancestor is thereby induced
to submit in ignorance to the disposition which the law makes of his
estate, upon the supposition that it will go to his heir, when in fact
a stranger is, against his will, made the substituted heir. It might
be very different if there was a fair, although a secret, agreement
between all the heirs to share the estate equally; for such an agree-
ment would have a tendency to suppress all attempts of one or more
to overreach the others, as well as to prevent all exertions of undue
influence (a;).
§ 344. From what has been already said, it follows, as a natural
inference, that contracts of this sort are not in all cases utterly void;
but they are subject to all real and just equities between the parties,
so that there shall be no inadequacy of price and no inequality of
advantages in the bargain. If in other respects these contracts are
perfectly fair, courts of equity will permit them to have effect, as
securities for the sum to which ex sequo et bono the lender is entitled ;
for he who seeks equity must do equity ; and, therefore, relief will not
be granted upon such securities, except upon equitable terms {y).
§ 345. And where, after the contemplated events have occurred,
and the pressure of necessity has been removed, the party freely and
deliberately, and upon full information, confirms the precedent
contract, or other treinsaction, or delays unduly to seek the assistance
of the court, courts of equity will generally hold him bound thereby ;
for if a man is fully informed, and acts with his eyes open, he may,
by a new agreement, bar himself from relief (a). But if the party
is still acting under the pressure of the original transaction or the
original necessity, or if he is still under the influence of the original
transaction, and of the delusive opinion that it is valid and binding
upon him, then, and under such circumstances, courts of equity will
hold him not barred from relief by any such confirmation (a).
§ 846. Similar principles will govern in cases where the heir or
other expectant is relieved from his necessities, and becomes opposed
to the person with whom he has been dealing, and seeks to repudiate
the bargain. In such eases he must not do any act by which the rights
or property of the other party will be injuriously affected after he is
thus deemed to be restored to his general capacity. If he does, he
becomes affected with the ordinary rule which governs in other cases,

(x) Wethered v. Wethered, 2 Sim. 183; Hyde v. White, 5 Sim. 524; Higgins v.
Hill, 56 L. T. 426. See Cook v. Field, 15 Q. B. 460.
(j) Earl of Aldborough v. Trye, 7 CI. & F. 436; Benyon v. Fitch, 35 Beav. 570;
Earl of Aylesford v. Morris, L. E. 8 Ch. 484.
(«) Earl of Chesterfield v. Janssen, 2 Ves. Sen. 125 ; Sibbering v. Earl of
Balcarres, 3 De G. & Sm. 735; Lord v. Jeffkins, 35 Beav. 1; Dimsdale v. Dimsdale,
3 Drew. 556.
(a) Savery v. King, 5 H. L. C. 627 ; Earl of Aylesford v. Morris, L. E. 8 Ch. 484 ;
Moxon V. Payne, L. E. 8 Ch. 881.
§ 344 — 349.] CONSTRUCTIVE FRAUD. 145

and forbids a party to repudiate a dealing, and at the same time to

avail himself fully of all the rights and powers resulting therefrom,
as if it were completely valid (b).
§ 347. Even the sale of a post obit bond at public auction will not
necessarily give it validity, or free it from the imputation of being
obtained under the pressure of necessity. For the circumstances
may be such as to establish that the expectant is acting without any
of the usual precautions to obtain a fair price, and is in great distress
for money, and is really in the hands, and under the control of those
who choose to become bidders for the purpose of fleecing him (c).
The case is not like the ease of an ordinary sale of a reversion at
public auction, where the usual precautions are taken; for there it
may be perfectly proper not to require the purchaser to show that
he has given the full value (d). "Where the sale is public, and free
and fair, it may be justly presumed that the fair market-price is
obtained, and there seems no reason to call in question its general
validity ; but it should be specially impeached. In sales of reversions
at public auction, there is not usually any opportunity, as there is
upon a private treaty, for fraud and imposition upon the seller. The
latter is in no just sense in the power of the purchaser. The sa|le
by public auction is, under ordinary circumstances, evidence of the
market-price (e). But the sale of post obit bonds at auction carries
with it, generally, a presumption of distress and pecuniary embarrass-
ment; and if the ordinary precautions are thrown aside, there> is a
violent presumption of extravagant rashness, imprudence, or circum-
vention.
§ 348. Contracts of a nature nearly resembling post obit bonds
have, in cases of young and expectant heirs, been often relieved
against, upon similar principles. Thus, where tradesmen and others
have sold goods to such persons at extravagant prices, and under cir-
cumstances demonstrating imposition, or undue advantage, or an
intention to connive at secret extravagance, and profuse expenditures,
unknown to their parents, or other ancestors, courts of equity have
reduced the securities, and cut down the claims to their reasonable
and just amount (/).
§ 349. Another class of constructive frauds upon the rights,
interest, or duties of third persons, embraces all those agreements
and other acts of parties, which operate directly or virtually to delay,
defraud, or deceive creditors. Of course, we do not here speak of
(b) King v. Hamlet, 2 Myl. & K. 458 ; Savery v. King, 5 H. L. C. 627 ; Scholefield
V. Templer, 4 De G. & J. 429.
(c) Fox V. Wright, 6 Mad. Ill; Ear! of Aldborough v. Trye, 7 CI. & F. 436.
(d) Earl of Aldborough v. Trye, 7 CI. & F. 436.
(e) Shelly v. Nash, 3 Mad. 232; Fox v. Wright, 6 Mad. 77; Earl of Aldborough v.
Trye, 7 CI. & F. 436; Lord v. Jeffkins, 3-5 Beav. 7.
(/) Bill V. Price, 1 Vern. 467, and Mr. Eaithby's note (1); Freeman v. Bishop,
2 Atk. 39.
B.J. 10
146 EQUITY JURISPRUDENCE. [CH. VII.

cases of express and intentional fraud upon creditors, but of such as

virtually and indirectly operate the same mischief, by abusing their
confidence, misleading their judgment, or secretly undermining their
interest. It is difficult, in many cases of this sort, to separate tho
ingredients, which belong to positive and intentional fraud, from
those of a mere constructive nature, v^hich the lavs^ pronounces
fraudulent upon principles of public policy. Indeed, they are often
found mixed up in the same transaction; and any attempt to distin-
guish between them, or to weigh them separately, would be a task of
little utility, and might, perhaps, mislead and perplex the inquiries
of students.
§ 350. It must be a fundamental policy of all enlightened nations,
to protect and subserve the rights of creditors ; and a great anxiety to
afford full relief against frauds upon them has been manifested : not
only in the civil law, but from a very early period in the common
law also. In the civil law it was declared, that whatever was done by
debtors to defeat their creditors, whether by alienation, or by other
disposition of their property, should be revoked or null, as the case
might require. "Ait Praetor; Quse fraudationis causa gesta erunt,
cum eo, qui fraudem non ignoraverit; de his curatori bonorum, vel
ei, cui de ea re actionem dare oportebit, intra annum, quo experiundi
potestas fuerit, actionem dabo. Idque etiam adversus ipsum, qui
fraudem fecit, servabo. Necessario Prsetor hoc edictum proposuit ; quo
edicto consuluit creditoribus, revocando ea, quseeunque in fraudem
eorum alienata sunt (g). Ait ergo Praetor; Quse fraudationis causa
gesta" erunt. Hsec verba generalia sunt, et continent in se omnem
omnino in fraudem factam, vel alienationem vel quemcunque con-
tractum. Quodcunque igitur fraudis causa factum est, videtur his
verbis revocari, qualecunque fuerit. Nam, latfe ista verba patent. Sive
ergo rem alienavit, sive acceptitatione vel pacto aliquem liberavit (h).
Idem erit probandum. Et si pignora liberet, vel quem alium in
fraudem creditorum preeponat " (f). And the rule was not only applied
to alienations, but to fraudulent debts, and, indeed, to every species
of transaction or omission, prejudicial to creditors. " Vel ei prsebuit
exceptionem, sive se obligavit fraudandorum creditorum causa, sive
numeravit pecuniam, vel quodcunque aliud fecit in fraudem credi-
torum; palam est, edictum locum habere, etc. Et qui aliquid fecit,
ut desinat habere, quod habet, ad hoc edictum pertinet. In fraudem
facere videri etiam eum, qui non facit, quod debet facere, intelli-
gendum est; id est, si non utitur servitutibus " (k).
§ 351. Hence, all voluntary dispositions, made by debtors, upon
the score of liberality, were revocable, whether the donee knew of

(9) Dig. Lib. 42, tit. 8, f. 1, § 1.

(/!) Dig. Lib. 42, tit. 8, f. 1, § 2.
(i) Dig. Lib. 42, tit. 8, f. 2.
(k) Dig. Lib. 42, tit. 8, f. 3, § 1, 2 ; id. f. 4.
§ 350 — 352.] CONSTRUCTIVE fraud. 147

the prejudice intended to the creditors or not. " Simili modo dicimus,
et si cui donatum est, non esse queerendum, ^n sciente eo, cui
donatum gestum sit; sed hoc tantum, an fraudentur creditores " (I).
And the Uke rule was applied to purchasers, even for a valuable con-
sideration, ifthey knew the fraudulent intention at the time of their
purchases, and thus became partakers of it, that they might profit by
it (m). " Quse fraudationis causa gesta erunt, cum eo, qui fraudem
non ignoraverit, de his, etc., actionem dabo. Si debitor in fraudem
creditorum minore pretio fundum scienti emptor! vendiderit; deinde
hi, quibus de revocando eo actio datur, eum petant; quaesitum est,
an pretium restituere debent '? Proculus existimat, omnimodi resti-
tuendum esse fundum, etiamsi pretium non solvatur ; et rescriptum
est secundum Proculi sententiam " (n).
§ 352. The common law adopted similar principles at an early
period. These principles, however, have been more fully carried into
effect by the statutes of 50 Edw. 3, c. 6, and 3 Hen. 7, c. 4, against
fraudulent gifts of goods and chattels; by the statute of 13 Eliz. c. 5,
against fraudulent conveyances of lands to defeat or delay creditors ;
and by the statute of 27 Eliz. c. 4, against fraudulent or voluntary
conveyances of lands to defeat subsequent purchasers. These statutes
have always received a favourable and liberal interpretation in all the
courts, both of law and equity, in suppression of fraud (o). Indeed,
the principles and rules of the common law, as now universally known
and understood, are so strong against fraud, in every shape, that
Lord Mansfield has remarked, that the common law would have
attained every end proposed by these statutes (p). This is, perhaps,
stating the matter somewhat too broadly, at least in regard to the
statute of 27 Eliz. c. 4. This statute applies to land and not to per-
sonalty (q). A series of decisions had established that a settler could
defeat a voluntary settlement of land by a subsequent sale for value
to a third party, even if he had notice of the settlement (r). By the
Voluntary Conveyances Act, 1893, however, the settlement must now
be, in fact, fradulent to be invalid. Courts of equity, from the
enlarged principles upon which they act, to protect the rights and
interests of creditors, give full effect to all the provisions, and exert
their jurisdiction upon the same construction of these statutes, which
is adopted by courts of law. They even go farther ; and (as we shall

(l) Dig. Lib. 42, tit. 8, f. 6, § 11.

(m) Dig. Lib. 42, tit. 8, f. 1.
(n) Dig. Lib. 42, tit. 8, f . 1 ; id. f. 7.
(o) Cadogan v. Kennett, Cow, 432.
(p) Com. Dig. Govin, B. 2. The statutes of 60 Edw. 3, c. 6, aad 3 Hen. 7, c. 4,
expressly declare all gifts, &c., of goods and chattels intended to defraud creditors, to
be null and void.
iq) Jones v. Croucher, 1 Sim. & Stu. 315.
(t) Doe V. Manning. 9 East, 59; Buckle v. Mitchell, 18 Ves. 110.
148 EQUITY JURISPRUDENCE. [CH. VII.

presently see) extend their aid to many cases not reached by these
statutes.

§ 353. And, in the first place, let us consider the nature and opera-
tion of the statute of 13 Eliz. e. 5, as to creditors. The object of
the legislature evidently was, to protect creditors from those frauds
which are frequently practised by debtors, under the pretence of
discharging a moral obligation; that is, under the pretence of making
suitable provisions for wives, children, and other relations. Indepen-
dently of the statute, no one can reasonably doubt that a gift or con-
veyance, whiph has neither a good nor a meritorious consideration to
support it, ought not to be valid against creditors ; for every man is
bound to be just before he is generous (s) ; and the very fact that he
makes a voluntary gift or conveyance to mere strangers to the pre-
judice of his creditors, affords a conclusive evidence that it is
fraudulent. The statute, while it seems to protect the legal rights
of creditors against the frauds of their debtors, anxiously excepts
from such imputation the bond fide discharge of moral duties. It
does not, therefore, declare all voluntary conveyances to be void; but
only all fraudulent conveyances to be void. And whether a con-
veyance be fraudulent or not is declared to depend on its being made
upon good consideration and bond- fide." It is not sufficient that
it be upon good consideration or bond fide. It must be both. And,
therefore, if a conveyance or gift be defective in either particular,
although it is valid between the parties and their representatives, yet
it is utterly void as to creditors (t).

§ 354. This leads us to the inquiry, what are deemed good con-
siderations inthe contemplation of the statute. A good consideration
is sometimes used in the sense of a consideration which is valid in
point of law; and then it includes a meritorious, as well as a valuable
consideration. But it is more frequently used in a sense contra-
distinguished from valuable; and then it imports a consideration of
blood, or natural affection, as when a man grants an estate to a near
relation merely founded upon motives of generosity, prudence, and
natural duty. A valuable consideration is such as money, marriage,
or the like, which the law esteems as an equivalent given for the
grant, and it is, therefore, founded upon motives of justice (m). Deeds,
made upon a good consideration only, are considered as merely volun-
tary; those made upon a valuable consideration are treated as
compensatory. The words " good consideration," in the statute, may
be properly construed to include both descriptions; for it cannot be
doubted, that it meant to protect conveyances, made bond, fide and

(.s) Copis V. Middleton, 2 Mad. 428.

(t) Twyne's Case, 3 Co. 81; Mathews v. Feaver, 1 Cox, 278.
(u) Black. Comm. 297.
§ 353 — 356a.] constructive fraud. 149

for valuable consideration, as well as those made bond fide upon the
consideration of blood or affection (x).
§ 355. In regard to voluntary conveyances, they are unquestion-
ably protected by the statute in all cases, where they do not break in
upon the legal rights of creditors. But when they break in upon
such rights, and so far as they have that effect, they are not per-
mitted to avail against those rights. If a man, therefore, who is
indebted, conveys property to his wife or children, such a conveyance
is, or at least may be, within the statute ; for, although the con-
sideration isgood, as between the parties, yet it is not, in contemplation
of law, bond fide; for it is inconsistent with the good faith which
a debtor owes to his creditors, to withdraw his property voluntarily
from the satisfaction of their claims {y) ; and no man has the right to
prefer the claims of affection to those of justice. This doctrine, how-
ever (as we shall presently see), requires, or at least may admit of,
some qualification in relation to existing creditors, where the circum-
stances of the indebtedness and the conveyance repel any possible
imputation of fraud, as where the conveyance is of a small property
by a person of great wealth, and his debts bear a very small proportion
to his actual means.
§ 356. But, at all events, the same doctrine does not apply to a
man not indebted at the time, or in favour of subsequent creditors.
There is nothing inequitable or unjust in a man's making a voluntary
conveyance or gift, either to a wife, or to a child, or even to a stranger,
if it is not, at the time, prejudicial to the rights of any other persons,
or in furtherance of any meditated design of future fraud or injury to
other persons (z).
§ 356a. It is perfectly clear, however, that the statute of 13 Eliz.
renders void settlements which fraudulently withdraw assets from
persons who may become creditors subsequent to its execution (a).
The question to be determined in each case is the fraudulent effect of
the conveyance, and this is necessarily largely a question of fact. It
is impossible, therefore, to reconcile all the decisions depending upon
the statute, or the language in which judges have expressed the grounds
of their ruling, and still greater difficulty is presented when we strive
to discovery what matters are to be regarded as circumstances of
evidence and what matters are to be treated as necessary conclusions.
One thing appears to be clear, and that is the increasing advantage
that the creditor enjoys under the later cases. An illusory considera-

(a;) Twyne's case, 3 Co. 81; Copis v. Middleton, 2 Mad. 430.

(y) Ibid.
(z) Townsend v. Windham, 2 Ves. Sen^ 11; Holloway v. Millard, 1 Mad. 414;
Battershee v. Farrington, 1 S^anst. 106, 113.
(a) Ex parte Russell, In re Butterworth, 18 Ch. D. 588; In re Ridler, Ridler v.
Ridler, 22 Ch. D. 74; Ex parte Gimblett, In re Lane Fox, [1900] 2 Q. B. 508.
150 EQUITY JURISPRUDENCE. [CH. VIl.

tion is not sufi&cient to save the conveyance if attacked, but it is not

essential that the purchaser should shovi? that he gave the highest
market value (b).
§ 355b. Fraud, for the purposes of the statute of 13 Eliz. c. 5, is a
matter of inference. " If a person owing debts makes a settlement
which subtracts from the property which is the proper fund for the
payment of those debts an amount without which the debts cannot be
paid, then, since it is the necessary consequence of the settlement
(supposing it effectual) that some creditors must remain unpaid, it
would be the duty of the judge to direct the jury that they must infer
the intent of the settlor to have been to defeat or delay his creditors,
and that the case is within the statute " (c). And even although the
settlor is solvent at the time he makes the voluntary settlement, yet
if he becomes insolvent within some short period after, the burden of
proving that he was solvent at the time when he executed the settle-
ment, will rest on the party who executed it, and not on the parties
who seek to set it aside (d); and if the voluntary settlement is
executed by a man who contemplates going into trade, or entering on
a new trade, of which he has not had experience, and the issue of
which he therefore knows to be uncertain, his subsequent creditors
will be entitled to set the settlement aside, if in the settlement the bulk
of the settlor's property is included (e).
§ 869. Having thus given the state of the law with regard to
voluntary conveyances, we proceed to remark that a conveyance, even
if for a valuable consideration, is not, under the statute of the 13 Eliz.,
valid in point of law from that circumstance alone. It must also be
bond fide; for if it be made with intent to defraud or defeat creditors,
it will be void, although there may, in the strictest sense, be a valuable,
nay, an adequate, consideration. This doctrine was laid down in
Twyne's case (3 Co. 81), and it has ever since been steadily adhered
to. Cases have repeatedly been decided, in which persons have given
a full and fair price for goods, and where the possession has been
actually changed ; yet being done for the purpose of defeating creditors,
the transaction has been held fraudulent, and, therefore, set aside (/).
A debtor may deprive a creditor of the fruits of his judgment by way
of execution by means of a sale for the full value of the goods {g).
§ 369b. In the next place, the statute 13 Eliz. c. 5 protects in
express terms a conveyance if made " upon good consideration and
(b) Muthews v. Feaver, 1 Cox 278; Copis v. Middleton, 2 Mad. 410; In re Ridler,
Ridler v. Ridler, 22 Ch. T>. 74.
(c) Freeman v. Pope, L. E. 5 Ch. 538.
(d) Townsend v. Westacott, 2 Beav. 340; Taylor v. Coenan, 1 Ch. D. 636.
(e) Maekay v. Douglas, L. E. 14 Bq. 106; Ex parte Russel, In re Butterworth,
19 Ch. D. 588.
(/) Cadogan v. Kennett, Cowp. 434.
(g) Wood V. Dixie, 7 Q B. 892; Hale v. Saloon Ommhus Co., 4 Drew. 492;
Darvill v. Terry, 6 H. & N. 807.
§ 355b — 373.] constructive fraud. 151

bond fide." A settlement is validated by a purchase for value of an

interest limited by it by a person who has no notice that its validity
could be successfully impugned {h).
§ 371. It may be added that, although voluntary conveyances are
or may be void as to existing creditors, they are perfect and effectual
as between the parties, and cannot be set aside by the grantor, if he
should become dissatisfied with the transaction (/). It is his own folly
to have made such a conveyance. They are not only valid as to the
gtantor, but also as to his- heirs, and all other persons claiming under
him in privity of estate with notice of the fraud (k). A conveyance of
this sort (it has been said, with greati truth and force) is void only as
against creditors; and then only to the extent in which it may be
necessary to deal with the conveyed estate for their satisfaction. To
this extent, and to this only, it is treated as if it had not been made.
To every other purpose it is good. Satisfy the creditor, and the
conveyance stands (I). And if a creditor is a party to such deed and
acquiesces in it, he cannot afterwards avoid it; nor can any one
claiming under him (tn.). Further if a man having made a. voluntary
settlement of land contracts to sell it, the vendee can compel a specific
performance of the contract against him, but that he, under ordinary
circumstances, cannot compel specific performance against the
vendee (n). But if the vendee says he is willing to complete, on getting
a good title, seeing that it is in the vendee's power to obtain a good
title, specific performance can be enforced against the vendee (o).
§ 372. The circumstances under which a conveyance will be deemed
purely voluntary, or will be deemed affected by a consideration
valuable in itself, or in furtherance of an equitable obligation, are
very, important to be considered ; but they more properly belong to a
distinct treatise upon the nature and validity of settlements.
§ 373. In like manner, what circumstances, connected with volun-
tary or valuable conveyances, are badges of fraud, or raise presumptions
of intentional bad faith, though very important ingredients in the
exercise of equitable jurisdiction, fall rather within the scope of
treatises on evidence, than of discussions touching jurisdiction (p). It
may, however, be generally stated, that whatever would at law be
deemed badges of fraud, or presumptions of ill faith, will be fully
acted upon in courts of equity. But, on the other hand, it is by no
means to be deemed a logical conclusion, that, because a transaction

(h) Halifax Joint Stock Bank v. Gledhill, [1891] 1 Ch. 31.

(j) Petre v. Espinasse, 2 Myl. & K. 496; Bill v. Cureton, 2 Myl. & K. 510.
(fe) Randall v. Phillips, 3 Mason 378.
(l) Sir W. Grant, in Curtis v. Price, 12 Ves. 103.
(m) Oliver v. King, 8 De G. M. & G. 110. See Ex parte Taylor, Sons d Co. ; In
re Brindley, [1906] 1 K. B. 377.
(n) Smith v. Garland, 2 Meriv. 123.
(o) Peter v. Nicolls, L. E. 11 Bq 391.
(p) Twyne's case, 3 Co. 80.
152 EQUITY JUEISPEUDENCE. [CH. VII.

could not be reached at law as fraudulent, therefore it would be equally

safe against the scrutiny of a court of equity ; for a court of equity
requires a scrupulous good faith in transactions which the law might
not repudiate. It acts upon conscience, and does not content itself
with the narrower views of legal remedial justice.
§ 374. The question has been much discussed how far a settle-
ment, made after marriage, in pursuance of an asserted parol agree-
ment before marriage, is valid, as against creditors, in cases affected
by tte Statute of Frauds. There is no doubt, that such a settlement,
made in pursuance of a prior valid written agreement, would be
completely effectual against creditors. But the difficulty is, whether
such a settlement, executed in pursuance of a parol contract, obliga-
tory in foro conscientix , ought to be protected, when made, although
it might not be capable of being enforced, if not made. Lord Thurlow
seems to have favoured the view that the settlement would be valid (g) ;
on the other hand we have the opposite view maintained by Sir
Thomas Plumer, M.E. (?•), and Lord Cranworth (s). Certainly Lord
Thurlow 's view is more consistent with the accepted interpretation
that the contract exists independently of the writing, and that the
Statute of Frauds is concerned only with the proof of the contract.
Perhaps the true solution will follow upon the lines of lost evidence.
If written proof has existed but is lost, then parol evidence may be
given of the lost instrument (i), but at the ' same the evi-
dence should be examined with the greatest care, and treated with
suspicion (u).
§ 375. The same policy, of affording protection to the rights of
creditors, pervaded the provisions of the statute of the 3rd and 4th
of Will. & Mary, c. 14, respecting devises in fraud of creditors, now
replaced by the Debts Eecovery Act, 1830, which has an enlarged
scope.
§ 377. These cases of interposition in favour of creditors being
founded upon the provisions of positive statutes, a question was made
at an early day whether they were exclusively cognizable at law ; or
they could be carried into effect also in equity. The jurisdiction of
courts of equity is now firmly established, for it extends to cases of
fraud, whether provided against by statute or not. And, indeed, the
remedial justice of a court of equity in many cases arising under
these statutes, is the only effectual one which can be administered;
as that of courts of law must often fail from the want of adequate
powers to reach or redress the mischief.
§ 378. There are other cases of constructive frauds against

(q) Dundas v. Dutens, 1 Ves. Jun. 196.

(r) Battersbee v. Farrington, 1 Swanst. 106.
(s) Warden v. Jones, 2 De G. & J. 276.
(t) Read v. Price, [1909] 2 K. B. 724.
(u) Nichol V. Bestwick, 28 L. J. Ex. i.
§ 374 — 379.] CONSTRUCTIVE FRAUD. 153

creditors which the wholesome moral justice of the law has equally
discredited and denounced. "We refer to that not unfrequent class
of cases in which, upon the failure or insolvency of their debtors,
some creditors have, by secret compositions, obtained undue advan-
tages, and thus decoyed other innocent and unsuspecting creditors
into signing deeds of composition, which they supposed to be founded
upon the basis of entire equality and reciprocity among all the creditors ;
when, in fact, there was a designed or actual imposition upon all but
the favoured few. The purport' of a composition or trust-deed, in
cases of insolvency, usually is, that the property of the debtor shall
be assigned to trustees, and shall be collected and distributed by
them among the creditors, according to the order and terms prescribed
in the deed itself. And, in consideration of the assignment, the
creditors, who become parties, generally agree to release all their
debts beyond what the funds will satisfy. Now, it is obvious that, in
all transactions of this sort, the utmost good faith is required ; and
the very circumstance that other creditors, of known reputation and
standing, have already become parties to the deed, will operate as a
strong inducement to others to act in the same way. But if the sig-
natures of such prior creditors have been procured by secret arrange-
ments with them, more favourable to them than the general terms
of the composition deed warrant, those creditors really act (as has
been said by a very significant although a homely figure) as decoy-
ducks upon the rest. They hold out false .colours to draw in others to
their loss and ruin.
§ 379. The doctrine was familiar in courts of law, and was not
peculiar to courts of equity (x), that such secret arrangements are
utterly void, and ought not to be enforced, even against the assenting
debtor, or his sureties, or his friends (y). There is great wisdom and
deep policy in the doctrine, and it is founded in the best of all protec-
tive policy, that which acts by way of precaution rather than by mere
remedial justice ; for it has a strong tendency to suppress all frauds
upon the general creditors by making the cunning contrivers the
victims of their own illicit and clandestine agreements. The relief is
granted not for the sake of the debtor, for no deceit or oppression
may have been practised upon him, but for the sake of honest, and
humane, and unsuspecting creditors. And, hence, the relief is granted
equally, whether the debtor has been induced to agree to the secret
bargain by the threats or oppression of the favoured creditors, or
whether he has been a mere volunteer, offering his services, and aiding
in the intended deception. Such secret bargains are deemed incapable
of being enforced or confirmed, but money paid under them is not
recoverable back, except under the provisions of the Bankruptcy Acts,
(x) Cockshott V. Bennett, 2 T. E. 763.
(y) Jackman v. Mitchell, 13 Ves 581; CuUingworth v. Lloyd, 2 Beav. 885; Ex
parte Milner, In re Milner, 15 Q. B. D. 605.
154 EQUITY JURISPRUDENCE. [CH. VII.

as a fraudulent preference, as it is a voluntary payment (a). And it is

wholly immaterial whether such secret bargains give to the favoured
creditors a larger sum, or an additional security or advantage, or only
misrepresent some important fact; for the effect upon other creditors
is precisely the same in each of these cases. They are misled into an
act to whict they might not otherwise have assented (a). The trans-
action is void whether the collateral advantage is extorted from the
debtor, or is provided by a third party (b). The principle only applies
to cases of collective bargaining on the footing of equality ; a creditor
may make an independent bargain with a debtor who is seeking to
compromise the claims of his creditors individually (c).
§ 380. In equity, any agreement, made by a bankrupt debtor in
fraud of his creditors, will be held void, and will be rescinded, upon the
ground of public policy, whenever it comes before a court of equity,
even though the suit happens to be at the instance of the insolvent
himself (d), unless the objection appears on the face of the instru-
ment (e).
§ 381. In concluding this discussion, so far as it regards creditors,
it is proper to be remarked, that although voluntary and other con-
veyances, infraud of creditors, are thus declared to be utterly void;
yet, they are so, only so far as the original parties and their privies,
and others claiming under them, who have notice of the fraud, are
concerned. For bond fide purchasers for a valuable consideration,
without notice of the fraudulent or voluntary grant, are of such high
consideration, that they will be protected, as well at law as in equity,
in their purchases (/). It would be plainly inequitable, that a party
who has, bond fide, paid his money upon the faith of a good title,
should be defeated by any creditor of the original grantor, who has
no superior equity, since it would be impossible for him to guard him-
self against such latent frauds. The policy of the law, therefore, which
favours the security of titles, as conducive to the public good, would
be subverted, if a creditor, having no lien upon the property, should
yet be permitted to avail himself of the priority of his debt, to defeat
such a bond fide purchaser. Where the parties are equally meritorious,
and equally innocent, the known maxim of courts of equity is. Qui
prior est in tempore, potior est in jure ; he is to be preferred, who has

(z) Wilson V. Bmj, 10 A. & E. 82.

(a)' Knight v. Hunt, 5 Bing. 432; CulUngworth v. Lloyd, 2 Beav. 385; McKewan
v. Sanderson, L. E. 20 Eq. 66.
(b) Knight v. Hunt, 5 Bing. 432; Farmers' Mart, Ltd. v. Milner, [1915] A. C.
106.

1 H. (c)
& Ellis V.
N. 938. McHenry, Levita's Claim, [1894] 3 Ch. 365. See Boyd v. Hind,
(d) Jackman v. Mitchell, 13 Vea. 581; McNeill v. Cahill, 2 Bligh. 228; Mare v.
Sandford, 1 Giff. 288; Wood v. Barker, L. R. 1 Eq. 139.
(e) Simpson v. Lord Howden, 3 M. & Cr. 97.
if) Prodgers v. Langham, 1 Sid. 133; Halifax Joint Stock Bank v. Gledhill,
[1891] 1 Ch. 31.
§ 380 — 384.] CONSTRUCTIVE FRAUD. 155

acquired the first title. This point, however, will naturally present
itself in other aspects, when we come to the consideration of the
general protection, afforded by courts of equity, to purchasers standing
in such a predicament.
§ 382. Other underhand agreements, which operate as a fraud
upon third persons, may easily be suggested, to which the same
remedial justice has been applied. Thus, where a father, upon the
marriage of his daughter, entered into a covenant, that upon his
death he would leave her certain tenements, and that he would, also
by his will, give and leave her a full and equal share, with her brother
and sister, of all his personal estate; and he afterwards, during his
life, transferred to his son a very large portion of his personal property,
consisting of public stock, but retained the dividends for his life; it
was held, that the transfer was void, as a fraud upon the marriage
articles; and the son was compelled to account for the same (g).
Covenants of this nature are proper in themselves, and ought to be
honourably observed. They ought not to be, and indeed are not, con-
strued to prohibit the father from making, during his lifetime, any
dispositions of his personal property among children, more favourable
to one than another. But they do prohibit him from doing any acts
which are designed to defeat and defraud the covenant. He may, if he
pleases, make a gift bona fide to a child ; but then it must be an
absolute and unqualified gift, which surrenders all his own interest,
and not a mere reversionary gift which saves the income to himself
during his own life {h).
§ 383. So if a friend should advance money to purchase goods for
another, or to relieve another from the pressure of his necessities,
and the other parties interested should enter into a private agree-
ment over and beyond that with which the friend is made acquainted,
such an agreement will be void at law, as well as in equity; for the
friend is drawn in to make the advance by false colours held out to
him, and under a supposition that he is acquainted with all the
facts (j). So the guaranty of the payment of a debt, procured from a
friend upon the omission by the parties to disclose material circum-
stances, isa virtual fraud upon him, and avoids the contract (fe).
§ 384. Another class of constructive frauds of a large extent, and
over which courts of equity exercise an exclusive and very salutary
jurisdiction, consists of those where a man designedly or knowingly
produces a false impression upon another, who is thereby drawn into
some act or contract, injurious to his own rights or interests. This

(g) Jones v. Martin, 5 Ves. 265 n. ; Randall v. Willis, 5 Ves. 261 ; 8 Bro. Pari. C.
242, by Tomlins.
(ill) Logan v. Wienholt, 1 CI. & P. 611.
(i) Jackson v. Duchaise, 3 T. R. 551.
(k) Pidcock V. Bishop, 3 B. & C. 605; Smith v. Bank of Scotland, 1 Dow, 272;
London General Omnibus Co. v. Holloway, [1912] 2 K. B. 72.
156 EQUITY JURISPRUDENCE. [CH. VII.

subject has been partly treated before ; but it should be again brought
under our notice in this connection (l). No man can reasonably doubt,
that if a party, by the wilful suggestion of a falsehood, is the cause
of prejudice to another, who has a right to a full and correct repre-
sentation ofthe fact, his claim ought in conscience to b'e postponed,
±0 that of the person whose confidence was induced by his represen-
lation. And there can be no real difference between an express
representation, and one that is naturally or necessarily implied from
the circumstances. The wholesome maxim of the law upon this
subject, is, that a party who enables another to commit a fraud is
answerable for the consequences (m) ; and, the maxim so often cited,
Fraus est celare fraudem, is, with proper limitations in its applica-
tion, a rule of general justice.
§ 385. In many cases, a man may innocently be silent; for, as
has often been observed, Aliud est tacere, aliud celare. But, in
other cases, a man is bound to speak out ; and his very silence
becomes as expressive as if he had openly consented to what is said
or done, and had become a party to the transaction. Thus, if a man,
having a title to an estate, which is offered for sale, and knowing his
title, stands by and encourages the sale, or does not forbid it, and
thereby another person is induced to purchase the estate, under the
supposition that the title of the actual vendor is good, the true owner,
so standing by and being silent, will be bound by the sale, and
neither he nor his privies will be at liberty to dispute the validity
of the purchase (n). So, if a man should stand by, and see another
person, as grantor, execute a deed of conveyance of land belongfing to
himself, and, knowing the facts, should sign his name as a witness,
he would in equity be bound by the conveyance (o). So, if a party
knowing himself to have a title to an estate (p), should stand by, and
allow another, whom he knows believes himself to be entitled, to
expend money upon the estate, without giving him notice, he would
not be permitted by a court of equity to assert that title against such
purchaser, at least not without fully indemnifying him for all his
expenditure (g). The same rule has been applied both at law and in
equity, where the owner of chattels, with a full knowledge of his own
title, has permitted another person to deal with these chattels as his
own, in his transactions with third persons, who have bargained and
acted in the confidence that the chattels were the property of the

(l) Ante, U 192-204.

(m) Bac. Max. 16.
in) Savage v. Foster, 9 Mod. 35. Although the author and most equity practi-
tioners class this as fraud, it is the familiar common law doctrine of estoppel. Pickard
V. Sears, 6 A. & E. 474; Freeman v. Cooke, 2 Ex, 654.
(o) Teesdale v. Teesdale, Sel. Ch. Caa. 59.
(p) Bell V. Marsh, [1903] 1 Ch. 528.
iq) Ramsden v. Dyson, L. E. 1 H. L. 129; Willmott v. Barber, 15 Ch. D. 96;
SumpterM. Hedges, [1898] 1 Q. B. 673.
§ 385 — 393.] CONSTRUCTIVE PRADD. 157

person with whom they dealt (r). Cases of this sort are viewed with
so much disfavour by courts of equity, that disabihty will not constitute
any excuse for the party guilty of the concealment or misrepresenta-
tion ;for neither infants nor femes covert are privileged to practise
deception or cheats on other innocent persons (s).
§ 386. In order to justify the application of this cogent moral
principle, it is indispensable that the party so standing by and
concealing his rights should be fully apprised of them, and should,
by his conduct or gross negligence, encourage or influence the
purchase; for if he is wholly ignorant of his rights, or the purchaser
knows them, or, if his acts, or silence, or negligence, do not mislead,
or in any manner affect the transaction, there can be no just inference
of actual or constructive fraud on his part.
§ 387. There are indeed old cases, where it has been held that
ignorance of title will not excuse a party; for, if he actually misleads
the purchaser by his own representations, although innocently, the
maxim is applied to him, that, where one of two innocent persons must
suffer, he shall suffer who, by his own acts, occasioned the confidence
and the loss (<). But this doctrine of the incidence of the loss is no
longer recognised (w). The true doctrine is either that there is an
estoppel, or that the negotiations have proceeded upon the assumption
that a certain state of circumstances exist, which is in truth a warranty
or condition.
§ 391. In all this class of cases, the doctrine proceeds upon the
ground of constructive fraud, or of gross negligence. And, therefore,
where the circumstances of the case repel any such inference, although
there may be some degree of negligence, yet courts of equity will not
grant relief (x). It has, accordingly, been laid down by a very learned
judge, that the cases on this subject go to this result only, that there
must be positive fraud, or concealment, or negligence so gross as to
amount to constructive fraud (y). And, if the intention be fraudulent,
although not exactly pointing to the object accomplished; yet the party
will be bound to the same extent as if it had been exactly so pointed (a).
§ 393. What circumstances will amount to undue concealment,
or to misrepresentation, in cases of this sort, is a point more fit for a
treatise of evidence, than for one of mere jurisdiction. But it has

(r) Nicholson v. Hooper, 4k Myl. & Cr. 179; Pickard v. Sears, 6 A. & E. 474.
(«) Savage v. Foster, 9 Mod. 35; Sugden, Vendors and Purch., ch. 16, p. 262,
9th edit. ; post, § 387.
(t) See .3 P. Will. 74, Mr. Cox's note; Pearson v. Morgan, 2 Bro. C. C. 388.
(u) Scholfield v. Earl of Londesborough, [1896] A. C. 514; Farquharson Bros.
& Co. V. King, [1902] A. C. 325.
(x) Beckett V. Gordley, 1 Bro. C. C. 353; Tourle v. Rand, 2 Bro. C. C. 652.
(y) Evans v. Bicknell, 6 Ves. 190, 191, 192; Hewitt v. Loosemore, 9 Hare 449;
Lord St. Leonards, V. and P. 14th edit. 755.
(z) Evans v. Bicknell, 6 Ves. 191, 192; Beckett v. Gordley, 1 Bro. C. C. 357, 1
Fonbl. Eq. B. 1, ch. 3, § 4; Plurrib v. Fluitt, 2 Anst. 432, 440.
 158 EQUITY JURISPRUDENCE. [CH. VII.

been held, that a first mortgagee's merely allowing the mortgagor to

have the title-deeds, or a first mortgagee's witnessing a second
mortgage-deed, but not knowing the contents, or even concealing
from a second • mortgagee information of a prior mortgage when he
made application therefor, the intention of the party applying to
lend money not being made known, are not of themselves sufficient
to affect the first mortgagee with constructive fraud -(a). There must
be other ingredients to give colour and body to these circumstances ;
for they may be compatible with entire innocence of intention and
object (b). Nothing but a voluntary, distinct, and unjustifiable con-
currence on the part of the first mortgagee, in the mortgagor's retaining
the title-deeds, is now deemed a sufficient reason for postponing his
priority. And, in regard to the other acts above stated, they must
be done under circumstances which show a like concurrence and
co-operation in some deceit upon the second mortgagee (c).
§ 393a.. The doctrine was discussed in an exhaustive judgment
of Fry, L.J., delivering the judgment of the whole Court of Appeal:
" The authorities which we have reviewed appear to us to justify the
following conclusions: — (1) That the court will postpone the prior
legal estate to a subsequent equitable estate : (a) where the owner
of the legal estate has assisted in or connived at the fraud which
has led to the creation of a subsequent equitable estate without
notice of the prior legal estate; of which assistance or connivance, the
omission to use ordinary care in inquiry after or keeping title-deeds
may be, and in some cases has been, held sufficient evidence, where
such conduct cannot otherwise be explained; (b) where the owner of
the legal estate has constituted the mortgagor his agent with authority
io raise money, and the estate thus created has, by the fraud or
misconduct of the agent, been represented as being the first estate.

(a) West V. Reid, 2 Hare 249 ; Colyer v. Finch, 5 H. L. C. 905. In the first case
Vice-Chanoellor Wigrara said : " In short, let the doctrine of constructive notice be
extended to all cases (it is, in fact, more confined in Plumb v. Fluitt, Evans v.
Bicknell, Cothay v. Sydenham, and other cases), but let it be extended to all cases
in which the purchaser has notice that the property is affected, or has notice of facts
raising a presumption that it is so, and the doctrine is reasonable, though it may some-
times operate with severity. But once transgress the limits which that statement of
the rule imposes, — once admit that a purchaser is to be effected with constructive notice
of the contents of instruments not necessary to, nor presumptively connected with the
title, only because by possibility they may affect it (for that may be predicted of almost
any instrument); and it is impossible, in sound reasoning, to stop short of the con-
clusion that every purchaser is affected with constructive notice of the contents of every
instrument, of the mere existence of which he has notice, — a purchaser must be pre-
sumed to investigate the title of the property he purchases, and may, therefore, be
presumed to have examined every instrument forming a link, directly or by inference,
in that title ; and that presumption I take to be the foundation of the whole doctrine.
But it is impossible to presume that a purchaser examines instniments not directly or
presumptively connected with the title, because they may by possibility affect it."
(fc) Evans v. Bicknell, 6 Ves. 172, 182, 190, 191, 192; Plumb v. Fluitt, 2 Anst.
432; Hewitt v. Loosemore, 9 Hare 449; Barnett v. Weston, 12 Ves. 133.
(c) Peter v. Russell, 2 Vern. 726, and Mr. Eaithby's note (1).
§ 393a — 394.] constructive fraud. 159

But (2) that the court will not postpone the prior legal estate to
the subsequent equitable estate on the ground of any mere careless-
ness or want of prudence on the part of the legal owner " (d)., If, on
the other hand, a purchaser having bargained for a better title and
getting nothing but an equitable title, may afterwards get in a legal
title, and may hold it, though, during the interval between the payment
and the getting in the legal title, he may have had notice of some prior
dealing, inconsistent with the good faith of the dealing with himself (e).
And, if two innocent persons take equitable mortgages from a fraudu-
lent mortgagor, mere carelessness or want of prudence on the part of
the fipst mortgagee in taking his security is not sufficient to postpone
him to the second; for that purpose, the negligence must be " gross,"
that is, so great as to make the first mortgagee responsible for the
fraud committed on the second mortgagee ; but, if the second mortgagee
obta,ins a legal title he will be preferred to the first mortgagee, unless
the legal estate has been obtained in breach of some equity which the
first purchaser possesses (/).
§ 394. It is curious to trace how nearly the Roman law approaches
that of England on this subject; thus demonstrating that if they had
not a common origin, at least each is derived from that strong sense
of justice which must pervade all enlightened communities. It is an
acknowledged principle of the Roman jurisprudence, that a creditor
who consents to the sale, donation, or other alienation of the property
of his debtor, which is pledged or mortgaged for his debt, cannot
assert his title against the purchaser, unless he reserves it; 'for his
loss of title cannot, under such circumstances, be asserted to be to his
prejudice; since it is by his consent; and otherwise the purchaser
would be deceived into the bargain. " Creditor, qui permittit rem
venire, pignus dimittit (g). Si consensit venditioni creditor, liberatur
hypotheca (h). Si in venditione pignoris eonsenserit creditor, vel ut
debitor hanc rem permutet, vel donet, vel in dotem det; dicendum
erit, pignus liberari, nisi salva causa pignoris sui, consensit vel ven-
ditioni vel eseteris " (i). But as to what shall be deemed a consent, the
Roman law is very guarded. For it is there said, that we are not to
take for a consent of the creditor to an alienation of the pledge, the
knowledge which he may have of it; nor the silence which he may
keep after he knows it; as, if he knows that his debtor is about
selling a house, which is mortgaged to him, and he says nothing

(d) Northern Counties of England Fire Insurance Company v. Whipp,.26 Ch. D.

494. See Farrand v. Yorkshire Bank, 40 Ch. D. 182. See also Carritt v. Real &
Personal Advance Co., 42 Ch. D. 263; Walker v. Lirrum, [1907] 2 Ch. 104.
(e) Blackwood v. London Chartered Bank of Australia, L. E. 5 P. C. Ill ; Taylor
V. Russell, [1892] A. C. 244.
(/) Phillips V. Phillips, 4 De G. P. & J. 208; Taylor v. Russell, [1892] A. C. 244.
(3) Dig. Lib. 50, tit. 17, f. 158.
Ih) Dig. Lib. 20, tit. 6, f. 7 ; Pothier, Pand. Lib. 20, tit. 6, art. 2, n. 21.
(i) Dig. Lib. 20, f. 4, § 1.
160 EQUITY JURISPRUDENCE. [CH. VII.

about it. But, in order to deprive him of his right, it is necessary

that it should appear by some act that he knows what is doing to his
prejudice, and consents to it; or, that there is some ground to charge
him with dishonesty for not having declared his right when he was
under an obligation to do it, by which the purchaser was misled.
Thus, if upon the alienation, the debtor declares that the property is
not encumbered, and the creditor knowingly signs the contract, as a
party or witness, thereby rendering himself an accomplice in the
false affirmation, he will be bound by the alienation. But the mere
signature of the creditor, as a witness to a contract of alienation,
will not of itself bind him, unless there are circumstances to show
that he knew the contents, and acted disingenuously and dishonestly
by the purchaser (fc). " Non videtur consensisse creditor, si, sciente
eo, debitor rem vendiderit, cum ideo passus est venire, quod sciebat,
ubique pignus sibi durare. Sed si subscripserit forte in tabulis
emptionis consensisse videtur, nisi manifest appareat deeeptum
esse " (l).
§ 395. Another class of constructive frauds consists of those where
a person purchases with full notice of the legal or equitable title of
other persons to the same property. In such cases he will not be
permitted to protect himself against such claims; but his own title
will be postponed, and made subservient to theirs (m). It would be
gross injustice to allow him to defeat the just rights of others by his
own iniquitous bargain. He becomes, by such conduct, paHiceps
criminis with the fraudulent grantor; and the rule of equity, as well
as of law, is, " Dolus et fraus nemini patrocinari debent " (n). And in
all such cases of purchasers with notice, courts of equity will hold
the purchaser a trustee for the benefit of the persons whose rights he
has thus sought to defraud or defeat (o). Thus, if title-deeds should be
deposited as a security for money (which would operate as an equitable
mortgage), and a creditor, knowing the fact, should subsequently take
a mortgage of the same property, he would be postponed to the
equitable mortgage of the prior creditor; and the notice would raise
a trust in him to the amount of such equitable mortgage (p). So,
if a mortgagee, with notice of a trust, should get a conveyance from
the trustee, in order to protect his mortgage, he would not be allowed
to derive any benefit from it; but he would be held to be subject to
the original trust, in the same manner as the trustee. For, it has

(k) Domat, B. 3, tit. 1, § 7, art. 15, and Strahan's note.

(l) Dig. Lib. 20, tit. 6, f. 8, § 15; Pothier, Pand. Lib. 20, tit. 6, art. 2, n. 26, 27:
(m) Eyre v. Dolphin, 2 Ball & B. 290; Trinidad Asphalte Go. v. Coryat, [1896]
A. C. 687. The anomalous case of a doweress — see Maundrell v. Maundrell, 10 Ves.
246 — is now obsolete; 8 & 9 Vict. u. 112 (the Satisfied Terms Act).
(n) 3 Co. 78.
(o) Maundrell v. Maundrell, 10 Ves. 260, 261, 270.
(p) Birch V. Ellames, 2 Anst. 427; Hiern v. Mill, 13 Ves. 114; Agra Bank v.
Barry, L. R. 7 H. L. 135.
 § 395 397.] CONSTRUCTIVE FRAUD. 161

been significantly said, that although a purchaser may buy an incum-

brance, orlay hold on any plank to protect himself, yet he shall not
protect himself by the taking of a conveyance from a trustee, with
notice of the trust; for he hereby becomes a trustee; and he must
not, to get a plank to save himself, be guilty of a breach of trust (g).
But a trust or equity, to affect the conscience of him who has got in
the legal estate, must be a trust or equity, not in favour of some
third person who may have no care or desire to insist upon it, but a
trust or equity in favour of the person against whom the legal estate
is set up (r).
§ 396. The same principle applies to cases of a contract to sell
lands, or to grant leases thereof. If a subsequent purchaser has
notice of the contract, he is liable to the same equity, and stands in
the same place, and is bound to do the same acts, which the person
who contracted, and whom he represents, would be bound to do (s).
§ 397. It is upon the same ground, that, in counties where the
registration of conveyances is required, in order* to make them perfect
titles against subsequent purchasers, if a subsequent purchaser has
notice, at the time of his purchase, of any prior unregistered con-
veyance, he shall not be permitted to avail himself of his title against
that prior conveyance (f). The object of all acts of this sort is, to
secure subsequent purchasers and mortgagees against prior secret
conveyances and incumbrances. But where such purchasers and
mortgagees have notice of any prior conveyance, it is impossible to
hold that it is a secret conveyance, by which they are prejudiced.
On the other hand, the neglect to register a prior conveyance is often
a matter of mistake, or of overweening confidence in the grantor ;
and it would be a manifest fraud, to allow him to avail himself of the
power, by any connivance with others, to defeat such prior convey-
ance (m). The ground of the doctrine is (as Lord Hardwicke has
remarked) plainly this: "That the taking of a legal estate, after
notice of a prior right, makes a person a maid fide purchaser; and
not that he is not a purchaser for a valuable consideration in every

(g) Saunders v. Dehew, 2 Vem. 271; Timson v. Ramsbottom, 2 Keea 36. This
is sometimes termed the tabula in naufragio, and must be limited as in the subsequent
text.
(r) Taylor v. Russell, [1892] A. C. 244.
(s) Crofton v. Ormsby, 2 Scho. & L. 583; Daniels v. Davison, 16 Ves. 249; 17
Ves. 438; Allen v. Anthony, 1 Mer. 282.
(t) These are the Yorkshire Eegistry Acts, 1884 and 1885, 7 Anne, c. 20, affecting
the County of Middlesex. By the 54 & 56 Vict. t. 64, the Middlesex Eegistry has
been transferred to the Land Eegistry established under the Land Transfer Act, 1875.
There is also a small district affected by the 15 Chas. II. c. 17, commonly known as
the Bedford Level Act. Le Neve v. Le Neve, 3 Atk. 646; Rolland v. Hart, L. E. 6
Ch. 678.
(u) Le Neve v. Le Neve, 3 Atk. 646; Agra Bank v. Barry, L. E. 7 H. L. 135;
Lee v. Clutton, 46 L. J. Ch. 48. See Benham v. Keane, 3 De G. P. & J. 318; Lord
Ashburton v. Nocton, [1915] 1 Ch. 274.
H.J. 11
162 EQUITY JURISPRUDENCE. [CH. VII.

other respect. This is a species of fraud and dolus malus itself; for
he knew the first purchaser had the clear right of the estate; and,
after knowing that, he takes away the right of another person, by
getting the legal title {x). And this exactly agrees with the definition
of the civil law of dolus malus "{y). " Now, if a person does not stop
his hand, but gets the legal estate, when he knows the equity was in
another machinatur ad circumveniendum "(a).
§ 398. This doctrine, as to postponing registered to unregistered
conveyances upon the ground of notice, has broken in upon the policy
of the Eegistration Acts in no small degree; for a registered convey-
ance stands upon a different footing from an ordinary conveyance.
It has, indeed, been greatly doubted whether courts ought ever to
have suffered the question of notice to be agitated as against a party
who has duly registered his conveyance. But they have said that
fraud shall not be permitted to prevail. There is, however, this
qualification upon the doctrine, that it shall be available only in cases
where the notice is so clearly proved as to make it fraudulent in the
purchaser to take and register a conveyance, in prejudice to the
known title of the other party (a).
§ 399. What shall constitute notice, in cases of subsequent pur-
chasers, isa point of some nicety, and resolves itself, sometimes into
matter of fact, and sometimes into matter of law (b). Notice may be
either actual and positive, or it may be implied and constructive (c).
Actual notice requires no definition; for in that case knowledge of
the fact is brought directly home to the party. Constructive notice
is in its nature no more than evidence of notice, the presumption of
which is so violent, that the court will not even allow of its being
controverted (d). There must not be, in the language of one very able
judge, " fraudulent and wilful blindness " or " fraudulent blind-
ness " (e). Or, as has been elsewhere said by the same authority, con-
structive notice is knowledge imputed by the court on presumption, too
strong to be rebutted, that the knowledge must have been com-
municated (/).

(x) he Neve v. Le Neve, 3 Atk. 646, and cases before cited. So in the late case
o£ Kettlewell v. Watson, 26 Ch. D. 501, it was held that a purchaser of land in a
registered county is bound to inquire for and examine the deed and documents,
memorials of which are registered.
(y) Dig. Lib. 4, tit. 3. f. 2; ibid. Lib. 2, tit. U, § 9.
(z) Le Neve v. Le Neve, 3 Atk. 646.
(a) Wyatt v. Banoell, 19 Ves. 439; Chadwick v. Turner, L. E. 1 Ch. 310;
Holland v. Hart, L. E. 6 Ch. 678; Lee v. Glutton, 46 L. J. Ch. 48.
(b) See post, § 1047, 1067.
(c) In a treatise like the present, it is impracticable to do more than to glance at
topics of this nature. The learned reader will find full information on the subject in
treatises which profess to examine it at large. See Lord St. Leonards' Vendors and
Purchasers, 14th ed. ch. 22, § 4, p. 727.
(d) Plumb v. Fluitt. 2 Anst. 438, per Eyre, C.B.
(e) Jones v. Smitli, 1 Hare, at pp. 56 and 60, per Wigram, V.-C.
(/) Hewitt V. Looseinore, 9 Hare 449.
§ 398 — 400a.] ooisstructive fraud. 163

§ 400. An illustration of this doctrine of constructive notice is

where the party has possession or knowledge of a deed under which
he claims his title, and it recites another deed which shows a title in
some other person ; there the court will presume him to have notice
of the contents of the latter deed, and will not permit him to intro-
duce evidence to disprove it {g). And generally it- may be stated, as
a rule on this subject, that where a purchaser cannot make out a title
but by a deed which leads him to another fact, he shall be presumed
to have knowledge of that fact (h). So the purchaser is, in like manner,
supposed to have knowledge of the instrument under which the party
with whom he contracts, as executor, or trustee, or appointee, derives
his power (i). Indeed, the doctrine is still broader; for, whatever is
sufficient to put a party upon inquiry (that is, whatever has a
reasonable certainty as to time, place, circumstances, and persons),
is, in equity, held to be good notice to bind him (k). Thus, notice of a
lease will be notice of its contents (I). So, if a person should purchase
an estate from the owner, knowing it to be in the possession of
tenants, he is bound to inquire into the estate (•m) which these tenants
have, and, therefore, he is affected with notice of all the facts as to
their estates. It is only a person in possession wiio can enforce his
rights, for inquiry would produce an answer defining his claim, but a
purchaser is not fixed with notice of the proprietary rights of a person
under whom the party in possession claims, still less of a stranger to
the title under which the party in possession claims (n).
§ 400a. The text of the learned author has not been modified in
any material respect in the two preceding sections. Modern practice
divides notice into three categories — ^actual, constructive, and imputed.
Actual notice is knowledge acquired personally by the party who is
fixed with notice ; constructive notice is notice of facts or deductions
which a party is deemed to have acquired by reason of his knowledge or
actual notice of other facts ; imputed notice (o), which is sometimes, but
inaccurately, termed constructive notice, is that which the law imputes
to a party who employs an agent, and the notice which the agent has

(g) Hewitt v. Loosemore, 9 Hare 449.

(h) Parker v. Brooke, 9 Ves. 583; Smith v. Capron, 7 Hare 185; Patman v.
Harland, 17 Ch. D. 353. This doctrine, however, is to be received with some qualifica-
tions. For though a deed disclosing a trust is in the chain of title, and would have to
be shown in defence of an action at law, the defence of bond fide purchaser without
notice will avail in equity, where knowledge of it was fraudulently withheld. Pilcher
V. Rawlins, L. E. 7 Ch. 259.
(t) Mead v. Lord Orrery, 3 Atk. 238; Sugden on Vendors and Purchasers, ch. 17,
§ 2. See post, § 422.
(fe) Parker v. Brooke, 9 Ves. 583; Daniels v. Davison, 16 Ves. 250; 17 Ves. 433;
Eyre v. Dolphin, 2 Ball & B. 290.
(I) Hall V. Smith, 14 Ves. 426.
(m) Daniels v. Davison, 16 Ves. 249; 17 Ves. 433; Allen v. Anthony, 1 Meriv. 282.
(n) Miles v. Langley, 1 Russ. & M. 39, affirmed; 2 Buss. & M. 626; Hunt v.
Luck, [1902] 1 Ch. 428.
(o) Espin V. Pemberton, 3 De G. & J. 547, 554, per Lord Chelmsford, L.C.
164 EQUITY JURISPRUDENCE. [CH. VII.

may itself be actual or constructive. The doctrine of imputed notice

is not one peculiar to courts of equity. " If a party employs an agent
who has full knowledge of circumstances, it must be presumed the
principal has the same knowledge " (p). But the converse does not
hold good in equity, and at the common law a party with knowledge
could not rely upon the ignorance of his agent (g).

§ 400b. By a series of refinements the Court of Chancery had come

to fix parties who employed an agent with constructive notice of facts
which the agent might once have known, but had certainly long since
forgotten. To restore the law within limits that should not work an
injustice to purchasers was partly the object of section 3 of the Con-
veyancing Act, 1882 (45 & 46 Vict. c. 39), which now regulates the
circumstances under which a purchaser shall be deemed to be fixed
with notice. It is in these terms — " (1) a purchaser shall not be pre-
judicially affected by notice of any instrument, fact, or thing, unless
(i.) It is within his own knowledge, or would have come to his know-
ledge, if such inquiries and inspections had been made as ought
reasonably to have been made by him ; or (ii.) In the same transaction
with respect to which a question of notice to the purchaser arises, it
has come to the knowledge of his counsel as such, or of his solicitor or
other agent as such, or would have come to the knowledge of his
solicitor or other agent as such, if such inquiries and inspections
had been made as ought reasonably to have been made by the
solicitor or other agent. (2) This section shall not exempt a
purchaser from any liability under, or any obligation to perform
or observe any covenant, condition, provision, or restriction con-
tained in any instrument under which his title is derived, mediately
or immediately, and such liability or obligation may be enforced in
the same manner, and to the same extent, as if this section had not
been enacted. (3) A purchaser shall not be affected by reason of
anything in this section contained where he would not have been so
affected if this section had not been enacted. (4) This section applies
to purchases made either before or after the commencement of this
Act (r). And by the definition clause (section 1) of the same statute :
purchaser includes a lessee or mortgagee, or an intending purchaser,
lessee, or mortgagee, or other person, who, for valuable consideration,
takes or deals for property, and purchase has a meaning corresponding
with that of purchaser." Section 3 does not affect the test of liability
in equivocal cases, namely, that a person is absolved if he fails to
pursue an inquiry acting in reliance upon an answer which is in fact
false, but that he is fixed with liability if he abstains from all inquiry,

(p) Doe d. Whitaker v. Hales, 7 Bing. 322, 325, per Tindal, Ch. J.
iq) Levick v. Epsom ri Leatherhead Ry., 1 L. T. (n.s.) 60.
(r) In re Cousins, 81 Ch. D. 671.
§ 400b 402.] CONSTRUCTIVE FRAUD. 165

for it cannot be assumed that a false answer or one leading to no

result would have been returned (s).

§ 400 c. The critical times for receiving notice for the purpose of
afiecting a purchaser with the proprietary rights of another are the
parting with his money, and the taking of his conveyance (t).

§ 401. How far the registration of a conveyance, in countries where

such registration is authorized and required by law, shall operate as
constructive notice to subsequent purchasers, by mere presumption
of law, independent of any actual notice, has been much discussed.
It is not doubted that a prior conveyance, duly registered, operates
to give full effect to the legal and equitable estate conveyed thereby,
against subsequent conveyances of the same legal and equitable
estate (m). But the question becomes important as to other collateral
effects, such as defeating the right of tacking of mortgages, and other
incidentally accruing equities between the different purchasers. For,
if the mere registry, in such cases, without actual knowledge of the
conveyance, operates as constructive notice, it shuts out many of
those equities which otherwise might have an obligatory priority.
It has been truly remarked, that there is a material difference
between actual notice and the operation of the Eegistry Acts. Actual
notice may bind the conscience of the parties ; the operation of the
Eegistry Acts may bind their title, but not their conscience (x).
§ 402. The doctrine seems at length to be settled, that the mere
registration of a conveyance shall not be deemed constructive notice
to subsequent purchasers, but that actual notice must be brought
home to the party, amounting to fraud (y). The subject certainly is
attended with no inconsiderable difficulty. Some learned judges
have expressed a doubt, whether courts of equity ought not to have
said, that in all cases of a public registry, which is a known reposi-
tory for conveyances, a subsequent purchaser ought to search, or be
bound by notice of the registry, in the same way as he would be by
a decree in equity, or by a judgment at law (z). Other learned judges
have intimated a different opinion; assigning as a reason, that if the
registration of the conveyance should be held constructive notice, it
must be notice of all that is contained in the conveyance ; and, then,

(s) S-mith V. Jones, 1 Hare 43; affirmed, 1 Ph. 244; Ware v. Lord Egmont,
4 De G. M. & Q. 460; Bailey v. Barnes, [1894] 1 Ch. 25.
(t) Jackson v. Rome, 4 Russ. 514; further proceedings, 3 L. J. 0. S. Ch. 32;
Collinson v. Lister, 7 De G. M. & G. 634.
(«) Wrightsm v. Hudson, 2 Eq. Abr. 609, pi. 7.
{x) Underwood v. Courtown, 2 Sch. & Lefr. 66. See Latouche v. Dunsany,
1 Sch. & Lefr. 137.
(y) Wyatt v. Barwell, 19 Ves. 435; Chadwick v. Turner, L. R. 1 Ch. 310;
Rolland v. HaH, L. R. 6 Ch. 678 ; Lee v. Glutton, 46 L. J. Ch. 48.
(z) Morecock v. Dickens, Ambler 480; Hine v. Dodd, 2 Atk. 275 ; Sugden, Vendors
and Purchasers, ch. 16, 17.
166 EQUITY JURISPRUDENCE. [CH. VII.

subsequent purchasers would be bound to inquire after the contents,

the inconveniences of which cannot but be deemed exceedingly
great (a). The question seems first to have arisen in a case of the
tacking of mortgages, about the year 1730; and it was then decided,
by Lord Chancellor King, that the mere registration of a second
mortgage did not prevent a prior mortgagee from tacking a third
mortgage, when he had no actual notice of the existence of the
second mortgage (b). This decision has ever since been steadily
adhered to, perhaps more from its having become a rule of property,
than from a sense of its intrinsic propriety.
§ 405. It is upon different grounds, that a purchase made of
land (c) actually in Htigation, pendente lite, for a valuable considera-
tion, and without any express or implied notice in point of fact, affects
the purchaser in the same manner as if he had such notice ; and he
will accordingly be so far bound by the judgment or decree as not to be
entitled to defeat the main object of the suit {d).
§ 406. Ordinarily, it is true that the judgment of a court binds
only the parties and their privies in representation or estate. But he
who purchases during the pendency of an action, is held bound by
the judgment that may be made against the person from whom he
derives title. The litigating parties are exempted from taking any
notice of the title so acquired; and such purchaser need not be made
a party to the action (e). "Where there is a real and fair purchase,
without any notice, the rule may operate very hardly. But it is a
rule founded upon a great public policy ; for otherwise, alienations
made during a,n action might defeat its whole purpose, and there
would be no end to litigation. And hence arises the maxim, pendente
lite, nihil innovetur ; the effect of which is not to annul the conveyance,
but only to render it subservient to the rights of the parties in the
htigation (/). As to the rights of these parties, the conveyance is
treated as if it never had any existence; and it does not vary them (g).
By the 2 & 3 Vict. c. 11, s. 7, it was enacted that a lis pendens should
not bind a purchaser or mortgagee without express notice thereof,
unless and until it is duly registered, and the registration to be
binding must be repeated every five years. And the court before
whom the litigation is pending may, by 30 & 31 Vict. c. 47, s. 2, on

(a) Latouche v. Dunsany, 1 Sch. & Lefr. 157; Underwood v. Cowrtown, 2 Sch. &
Lefr. 64, 66; Pentland v. Stokes, 2 Ball & B. 75.
(b) Bedford v. Backhouse, 2 Eq. Abr. 615, pi. 12; s.P. Wrightson v. Hudson,
2 Eq. Abr. 609, pi. 7 ; Cator v. Cooly, 1 Cox 182; Wiseman v. Westland, 1 Y. & J. 117.
(c) Wigram v. Buckley, [1894] 3 Ch. 483.
(d) Bellamy v. Sabine, 1 Dc G. & J. 666 ; Price v. Price, 35 Ch. D. 297.
(e) Bishop of Winchester v. Paine, 11 Vea. 195; Metcalf v. Pulvertoft, 2 Ves. &
B. 205.
(/) Co. Litt. 224 b; Metcalf v. Pulvertoft, 2 Ves. & B. 199; Gaskeld v. Durdin,
2 Bail & B. 169; Price v. Price, 35 Ch. D. 297.
(g) Bishop of Winchester v. Paine, 11 Ves. 194.
§ 405 409.] CONSTRUCTIVE FRAUD. 167

the determination of the lis pendens, or even during pendency, if

satisfied that the litigation is not prosecuted bond fide, order the
registration to be vacated without the consent of the party by whom
the lis pendens was registered. In a late case (h) it was held that in an
action by an equitable mortgagee for sale or foreclosure, the court
has power, on an ex parte application of the plaintiff, to grant an
interim injunction to restrain dealing with the legal estate on the
ground that a lis pendens is not an adequate protection to the plaintiff.
§ 407. In general, a judgment is not constructive notice to any
persons who are not parties or privies to it; and, therefore, other
persons are not presumed to have notice of its contents. A judgment
was made a general charge upon lands of the debtor by the Statute of
"Westminster 2. The right so acquired was a legal right, and with that
a court of equity could not interfere (i). Provisions have intermittently
been made for the registration of judgments and relieving purchasers
from the effect of unregistered judgments. These statutes have since
been repealed and according to the law now in force the writ of execu-
tion is registered, and from the date of registration of the writ of execu-
tion the land is bound, although further proceedings may be necessary
to render the land available in execution (fe).
§ 408. To constitute constructive notice, it is not indispensable
that it should be brought home to the party himself. It is sufficient,
if it is brought home to the agent, solicitor, or counsel of the party;
for, in such cases, the law presumes notice in the principal, since it
would be a breach of duty in the former not to communicate the
knowledge to the latter (I). But, in all these cases, notice to bind the
principal should be notice in the same transaction, or negotiation ;
for, if the agent, solicitor, or counsel was employed in the same
thing by another person, or in another business or affair, and at
another time, since which he may have forgotten the facts, it would
be unjust to charge his present principal on account of such a defect
of memory {m). It was significantly observed by Lord Hardwicke,
that, if this rule were not adhered to, it would make the titles of pur-
chasers and mortgagees depend altogether upon the memory of their
counsellors and agents; and oblige them to apply to persons of less
eminence as counsel, as being less likely to have notice of former
transactions (n).
§ 409. The doctrine, which has been already stated, in regard to
the effect of notice, is strictly applicable to every purchaser whose

(h) London and County Banking Company v. Lewis, 21 Ch. D. 401.

(i) See Benham v. Keane, 3 De G. P. & J. 318.
(k) Lord AshbuHon v. Nocton, [1915] 1 Ch. 274.
(I) Espin V. Pemberton, 3 De G. & J. 547. See Berwick S Co. v. Price, [1906]
1 Ch. 682.
(m) Fitzgerald v. Falconberg , Fitzgib. 211. This is now so by statute ; see § 400b.
()i) Warrick v. Warrick, 3 Atk. 290; Worsley v. Earl of Scarborough, 3 Atk. 292;
Lowther v. Carlton, 2 Atk. 242, 292.
168 EQUITY JURISPRUDENCE. [CH. VII.

title comes into his hands, affected with such notice. But it in no
manner affects any such title derived from another person, in whose
hands it stood free from any such taint. Thus, a purchaser with
notice may protect himself unless he is a trustee repurchasing trust
property for his own benefit (o), by purchasing the title of another bond
fide purchaser for a valuable consideration without notice ; for, other-
wise, such bond fide purchaser would not enjoy the full benefit of his
own unexceptionable title. Indeed, he would be deprived of the
marketable value of such a title; since it would be necessary to have
public notoriety given to the existence of a prior incumbrance, and
no buyer could be found, or none except at a depreciation equal to
the value of the incumbrance. For a similar reason, if a person who
has notice, sells to another who has no notice, and is a bond fide
purchaser for a valuable consideration, the latter may protect his
title, although it was affected with the equity arising from notice in
the hands of the person from whom he derived it; for, otherwise, no
man would be safe in any purchase, but would be liable to have his
own title defeated by secret equities, of which he could have no possible
means of making a discovery.
§ 410. This doctrine, in both of its branches, has been settled for
nearly two centuries and a half; and it arose in a case in which A.
purchased an estate, with notice of an incumbrance, and then sold it
to B., who had no notice; and B. afterwards sold it to C, who had
notice; and the question was, whether the incumbrance bound the
estate in the hands of C. The then Master of the EoUs thought, that
although the equity of the incumbrance was gone, while the estate
was in the hands of B., yet it was revived upon the sale to C. But
the Lord Keeper reversed the decision, and held, that the estate in the
hands of C. was discharged of the incumbrance, notwithstanding the
notice of A. and C. (p). This doctrine has ever since been adhered
to as an indispensable muniment of title (5). And it is wholly
immaterial of what nature the equity is, whether it is a lien, or an
incumbrance, or a trust, or any other claim; for a bond fide purchase
of an estate, for a valuable consideration, purges away the equity from
the estate, in the hands of all persons who may derive title under it,
with the exception of the original party, whose conscience stands bound
by the violation of his trust and meditated fraud. But, if the estate
becomes re-vested in him, the original equity will re-attach to it in his
hands (r).
§ 411. Indeed, purchasers of this sort are so much favoured in

(0) Delves v. Gray, [1902] 2 Ch. 600; Gordon v. Holland, 82 L. J. P. C. 81.

(p) Harrison v. Forth, Prec. Ch. 61.
(3) Sweet V. Southcote, 2 Bro. C. C. 66; McQueen v. Farquhar, 11 Ves: 467;
Barrow's Case, 14 Ch. D. 432; Wilkes v. Spooner, [1911] 2 K. B. 473.
(r) Bovey v. Smith, 1 Vern. 60, 84, 144; Delves v. Gray, [1902] 2 Ch. 606;
Gordon v. Holland, 82 L. J. P. C. 81.
§ 410 — 413.] CONSTRUCTIVE FRAUD. 169

equity, that it may be stated to be a doctrine now generally established,

that a bond fide purchaser for a valuable consideration, without notice
of any defect in his title at the time of his purchase, may lawfully buy
in any mortgage, or other incumbrance, upon the same estate for his
protection. If he can defend himself by any of them at law, his
adversary will have no help in equity to set these' incumbrances aside ;
for equity will not disarm such a purchaser; but will act upon the wise
policy of the common law, to protect and quiet lawful possessions, and
strengthen such titles. "We shall have occasion, hereafter, in various
cases, to see the application of this doctrine.
§ 412. And this naturally leads us to the consideration of the
equitable doctrine of tacking, as it is technically called, that is, uniting
securities, given at difierent times, so as to prevent any intermediate
purchasers from claiming a title to redeem, or otherwise to discharge
one lien, which is prior, without redeeming or discharging the other
liens also, which are subsequent to his own title (s). Thus, if a third
mortgagee, without notice of a second mortgage, should purchase in
the first mortgage, by which he would acquire the legal title, the second
mortgagee would not be permitted to redeem the first mortgage without
redeeming the third mortgage also; for, in such a case, equity tacks
both mortgages together in his favour. And, in such a case, it will
make no difference that the third mortgagee, at the time of purchasing
the first mortgage, had notice of the second mortgage; for he is still
entitled to the same protection (t).
§ 413. There is, certainly, great apparent hardship in this rule;
for it seems most conformable to natural justice, that each mortgagee
should, in such a case, be paid according to the order and priority of
his incumbrances, and this is the rule where the legal estate is out-
standing (m). The general reasoning, by which this doctrine is main-
tained, isthis : In sequali jure, melior est conditio possidentis. Where
the equity is equal, the law shall prevail ; and he that hath only a title
in equity shall not prevail against a title by law and equity in another.
But, however correct this reasoning may be when rightly applied, its
applicability to the case stated may reasonably be doubted. It is
assuming the whole case, to say that the right is equal, and the equity
is equal. The second mortgagee has a prior right, and at least aji equal
equity; and then the rule seems justly to apply, that, where the
equities are equal, that title which is prior in time shall prevail; Qui
prior est in tempore, potior est in jure (x).

(s) Marsh v. Lee, 2 Vent. 337; Lacey v. Ingle, 2 Ph. 413; Spencer v. Pearson,
24 Beav. 266. See Bailey v. Barnes, [1894] 1 Ch. 25.
(t) Marsh v. Lee, 2 Vent. 337.
(u) Frere v. Moore, 8 Pri. 475 ; London di County Bank v. Goddard, [1897] 1 Ch.
642; Taylor v. Londm & County Bank, [1901] 2 Ch. 231.
(x) The doctrine of tacking was abolished by the Vendor and Purchaser Act, 1874,
but was restored by the Land Transfer Act, 1875.
170 EQUITY JURISPRUDENCE. [CH. VII.

§ 414. It has been significantly said, that it is a plank, gained by

the third mortgagee, in a shipwreck, tabula in naufragio (y). But,
independently of the inapplicability of the figure, which can justly
apply only to cases of extreme hazard to life, and not to mere seizures
of property, it is obvious, that no man can have a right, in consequence
of a shipwreck, to convert another man's property to his own use, or to
acquire an exclusive right against a prior owner. The best apology
for the actual enforcement of the rule is, that it has been long estab-
lished, and that it ought not now to be departed from, since it has
become a rule of property.
§ 415. Lord Hardwicke has given the following account of the
origin and foundation of the doctrine. "As to the equity of this
court, that a third incumbrancer, having taken his security or mort-
gage without notice of the second incumbrance, and then, being puisne,
taking in the first incumbrance, shall squeeze out and have satisfaction
before the second ; that equity is certainly established in general ; and
was so in Marsh v. Lee, by a very solemn determination by Lord Hale,
who gave it the term of the creditor's tabula in naufragio. This is the
leading case. Perhaps it might be going a good way at first ; but it has
been followed ever since; and, I believe, was rightly settled only on
this foundation by the particular constitution of the law of this country.
It could not happen in any other country but this ; because the jurisdic-
tion of law and equity is administered here in different courts, and
creates different kinds of rights in estates. And, therefore, as courts
of equity break in upon the common law, where necessity and con-
science require it, still, they allow superior force and strength to a legal
title to estates ; and, therefore, where there is a legal title and equity
on one side, this court never thought fit, that, by reason of a prior equity
against a man, who had a legal title, that man should be hurt; and
this, by reason of that force, this court necessarily and rightly allows to
the common law and to legal titles. But if this had happened in any
other country, it could never have made a question ; for if the law and
equity are administered by the same jurisdiction, the rule, Qui prior
est in tempore, potior est in jure, must hold " (z).
§ 416. Indeed, so little has this doctrine of tacking to commend
itself, that it has stopped far short of the analogies, which would
seem to justify its application (a) ; and it has been confined to cases
where the party, in whose favour it is allowed, originally bond fide
advanced his money on the security of the land. Thus, if a puisne
creditor, by judgment, should buy in a prior mortgage, he would not
be allowed to tack his judgment to such a mortgage, so as to cut out
a mesne mortgagee (&). The reason is said to be, that a creditor can

(y) Marsh v. Lee, 2 Vent. 337.

(z) Wortley v. Birkhead, 2 Ves. Sen. 573.
(a) See ThorneycToft v. Crockett, 2 H. L. C. 239.
(b) Brace v. Duchess of Marlborough, 2 P. Will. 492 to 495 ; Ex parte Knott,
§ 414 419.] CONSTRUCTIVE FKAUD. 171

in no just sense be called a purchaser; for he does not advance his

money upon the immediate credit of the land ; and, by his judgment, he
does not acquire any right in the land. He has neither jus in re, nor
jus ad rem ; but a mere lien upon the land, which may, or may not,
afterwards be enforced upon it (c). But if, instead of being a judgment
creditor, he were a third mortgagee, and should then purchase in a
prior judgment, in such case he would be entitled to tack both together.
The reason for the diversity is, that in the latter case he did originally
lend his money upon the credit of the land; but in the former he did
not, but was only a general creditor, trusting to the general assets of
his debtor (d).
§ 417. Further advances may be tacked as against a puisne incum-
brance of whose security the legal mortgagee has no notice (e), as he
might in respect of sums due upon a statute or judgment upon the
presumption that he lent the further sum upon the statute or judgment
upon the same security, although it passed no present interest in the
land, but gave a lien only (/).
§ 418. And yet, such a prior mortgagee, having a bond debt, has
never been permitted to tack it against any intervening incumbrancers
of a superior nature between his bond and mortgage ; nor against other
specialty creditors ; nor even against the mortgagor himself ; nor against
a surety; but only against his heir, to avoid circuity of action (g). The
reason given is, that the bond debt, except as against the heir, is not a
charge on the land. And tacking takes place only when the party
holds both securities in the same right. For if a prior mortgagee
takes an assignment of a third mortgage, as a trustee only for another
person, he will not be allowed to tack two mortgages together, to the
prejudice of intervening incumbrancers (h).
§ 419. It cannot be denied, that some of these distinctions are
extremely thin, and stand upon very artificial and unsatisfactory
reasoning. The account of the matter given by Lord Hardwicke («'), is
probably the true one. But it is a little difficult to perceive how the
foundation could support such a superstructure, or rather, why the

11 Ves. 609; Lacey v. Ingle, 2 Ph. 413. See Mayor of Brecon v. Seymour, 26 Beav.
548.
(c) Averall v. Wade, LI. & G. 252 ; Beavan v. Earl of Oxford, 6 De G. M. & G.
507.
(d) Higgin v. Lyddal, 1 Ch. Cas. 149; Mackreth v. Symmons, 15 Ves. 354.
(e) Brace v. Duchess of Marlborough, 2 P. Wms. 491 ; Wyllie v. Pollen, 3 De G.
J. & S. 596; Hopkinson v. Bolt, 9 H. L. C. 514; West v. Waiiams, [1899] 1 Ch. 132.
(/) Shepherd v. Titley, 2 Atk. 352; Ex parte Knott, 11 Ves'. 617; Lacey v. Ingle,
2 Ph. 413. ,
(g) Lowthian'v. Hasel, 3 Bro. C. C. 163; Morret v. Paske, 2 Atk. 51; Price v.
Fastnedge, Ambler 685, and Mr. Blunt's note; Jones v. Smith, 2 Ves. Jun. 376;
Adams v. Glaxton, 6 Ves. 229 ; Forbes v. Jackson, 19 Ch. D. 615. See Thomas v.
Thomas, 22 Beav. 341; Talbot v. Frere, 9 Ch. D. 568.
(h) Morret v. Paske, 2 Atk. 53.
(i) Worthy v. Birkhead, 2 Ves. Sen. 574 ; ante, § 415.
172 EQUITY JURISPRUDENCE. [CH. VII.

intelligible equity of the case, upon the principles of natural justice,

should not be rigorously applied to it. Courts of equity have found
no difficulty in applying it, where the puisne incumbrancer has bought
in a prior equitable incumbrance ; for in such cases they have declared,
that where the puisne incumbrancer has not obtained the legal title ;
or where the legal title is vested in a trustee ; or where he takes in autre
droit; the incumbrances shall be paid in the order of their priority in
point of time, according to the maxim^ above mentioned (fc). The
reasonable principle is here adopted, that he who has the better right to
call for the legal title, or for its protection, shall prevail.
§ 420. The civil law has proceeded upon a far more intelligible and
just doctrine on this subject. It wholly repudiates the doctrine of
tacking; and gives the fullest effect to the maxim, Qui prior est in
tempore, potior est in jure, excluding it only in cases of fraud, or of
consent, or of a superior equity (J).
§ 421. But, whatever may be thought as to the foundation of the
doctrine of tacking in courts of equity, it is now firmly established.
It is, however, to be taken with this most important qualification, that
the party who seeks to avail himself of it is a bond fide purchaser,
without notice of the prior or intermediate incumbrance, at the time
when he took his security; for if he then had such notice, he has not
the slightest claim to the protection or assistance of a court of equity ;
and he will not be allowed to tack the amount of his subsequent
advance, or by purchasing a prior incumbrance, to tack his own tainted
mortgage or other title to the latter (m).
§ 422. Another instance of the application of this wholesome
doctrine of constructive fraud, arising from notice, may be seen in the
dealings with executors and other persons, holding a fiduciary character,
and third persons colluding with them in violation of their trust.
Thus, purchases from executors of the personal property of their testa-
tor are ordinarily obligatory and valid notwithstanding they may be
affected with some peculiar trusts or equities in the hands of the
executors. For the purchaser cannot be presumed to know that the
sale may not be required in order to discharge the debts of the testator,
for which they are legally bound, before all other claims. But, if the
purchaser knows or must be deemed to have known that the executor
is wasting and turning the testator's estate into money, the more easily
to run away with it, or for any other unlawful purpose, he will be
deemed particeps criminis, and his purchase set aside as fraudulent (n).

(k) Barnett v. Weston, 12 Ves. 130; Frere v. Moore, 8 Pri. 475 ; London £ County
Bank v. Goddard, [1897] 1 Ch. 642; Tarjlor v. London & County Bank, [1901] 2 Ch.
231.
(0 See Dig. Lib. 20, tit. 4, f. 16.
(m) Brace v. Duchess of Marlborough, 2 P. Will. 491, 495; Hopkinson v. Bolt,
9 H. L. C. 574; West v. Williams, [1899] 1 Ch. 132.
(n) Hill v. Simpson, 7 Ves. 152; McLeod v. Drummond, 14 Ves. 359; 17 Ves. 153;
Walker v. Taylor, 8 Jur. N. S. 681.
5 420 425.] CONSTRUCTIVE FRAUD. l73

§ 423. The reason for this diversity of doctrine has been fully
stated by Sir William Grant. " It is true ' ' (said he) ' ' that executors
are, in equity, mere trustees for the performance of the will; yet in
many respects, and for many purposes, third persons are entitled to
consider them absolute owners. The mere circumstance that they are
executors will not vitiate any transaction with them; for the power
of disposition is generally incident, being frequently necessary. And
a stranger shall not be put to examine whether, in the particular
instance, that power has been discreetly exercised. But, from that
proposition, that a third person is not bound to look to the trust in
every respect, and for every purpose, it does not follow that, dealing
with the executor for the assets, he may equally look upon him as
absolute owner, and wholly overlook his character as trustee, when he
knows the executor is applying the assets to a purpose wholly foreign
to his trust. No decision necessarily leads to such a consequence " (o).
The same doctrine is applied to the cases of executors or administrators
colluding with the debtors to the estate, either to retain or to waste
the assets; for, in such cases, the creditors will be allowed to sue
the debtors directly in equity, making the executor or administra-
tor also a party to the action, although, ordinarily, the executor or
administrator only can sue for the debts due to the deceased (p).
Indeed, the doctrine may be even more generally stated ; that he who
has voluntarily concurred in the commission of a fraud by another,
shall never be permitted to obtain a profit thereby against those who
have been thus defrauded.
§ 424. It seems at one time to have been thought, that no person
but a creditor, or a specific legatee of the property, could question
the validity of a disposition made of assets by an executor, however
fraudulent it might be. But that doctrine is so repugnant to true
principles, that it could scarcely be maintained whenever it came to
be thoroughly sifted (q). It is now well understood that pecuniary and
residuary legatees may question the validity of such a disposition;
and, indeed, residuary legatees stand upon a stronger ground than
pecuniary legatees generally; for, in a sense, they have a lien on the
fund, and may go into equity to enforce it upon the fund (r).
§ 425. The author then proceeded to consider under the present
head of constructive fraud, voluntary conveyances of freehold lands (s),
in regard to subsequent purchasers. This class was founded, in a great
measure, if not altogether, upon the provisions of the statute of

(o) Hill v. Simpson, 7 Ves. 166.

(p) Burroughs v. Elton, 11 Ves. 29; Holland v. Prior, 1 Myl. & K. 237; Travis v..
Milne, 9 Hare 141; Yeatman v. Yeatman, 7 Ch. D. 210.
(q) Mead v. Lord Orrery, 3 Atk. 235.
(r) Hill V. Simpson, 7 "Ves. 152; McLeod v. Drummond, 14 Ves. 859; s.c. 17 Ves-
169.
is) Price v. Jenkins, 5 Ch. D. 619.
174 EQUITY JURISPRUDENCE. [CH. VII.

27 Eliz. c. 4, which did not apply to personal estate (i). The object
of that statute was, to give full protection to subsequent purchasers
from the grantor, against mere volunteers, under prior conveyances.
As betvi^een the parties themselves, such conveyances are positively
binding, and cannot be disturbed; for the statute does not reach such
cases (m).
§ 426. It was for a long period of time a much litigated question
whether the effect of the statute was to avoid all voluntary convey-
ances (that is, all such as were made merely in consideration of
natural love or affection, or were mere gifts), although made bond
fide, in favour of all subsequent purchasers, with or without notice;
or whether it applied only to conveyances made with a fraudulent
intent, and to purchasers without notice. After no inconsiderable
diversity of judicial opinion, the doctrine was at length estabUshed
(whether in conformity to the language or intent of the statute is
exceedingly questionable), that all such conveyances were void as to
subsequent purchasers, whether they were purchasers with or without
notice, although the original conveyance was bona fide, and without
the slightest admixture of intentional fraud; upon the ground that
the statute in every such case infers fraud, and will not suffer the
presumption to be gainsaid (x). The doctrine, however, was admitted
to be full of difficulties; and it was accepted rather upon the pressure
of authorities, and the vast extent to which titles had been acquired
and held under it, than upon any notion that it had a firm foundation
in reason and a just construction of the statute. The rule stare decisis,
was here applied to give repose and security to titles fairly acquired,
upon the faith of judicial decisions {y). Eventually the legislature
intervened, and by the Voluntary Conveyances Act, 1893 (56 & 57 Vict,
c. 21), voluntary conveyances of freehold lands cannot be defeated by
a subsequent sale for value unless fraudulent in fact in their inception.
§ 435. The civil law proceeded upon the same enlightened policy.
In the case of alienations of movables, and immovables, bond fide
purchasers for a valuable consideration, having no knowledge of any
fraudulent intent of the grantor or debtor, were protected. " Ait
praetor; Quae fraudationis causa gesta erunt, cum eo, qui fraudem non
ignoraverit, actionem dabo " (z). Upon this, there follows this com-
ment. "Hoc Edictum eum coercet, qui sciens eum in fraudem
creditorum hoc facere, suscepit, quod in fraudem creditorum fiebat.
Quare, si quid in fraudem creditorum factum sit, si tamen is, qui cepit,
.ignoravit, cessare videntur verba Edicti " (a). And the very case is

(t) Jones v. Groucher, 1 Sim. & St. 315.

(u) Smith V. Garland, 1 Mer. 123; Johnson v. Legard, T. & E. 281.
(x) Doe V. Manning, 9 East 58.
iy) Trowell v. Shenton, 8 Ch. D. 318; Godfreij v. Poole, 13 App. Cas. 497.
.(«) Dig. Lib. 42, tit. 8, f. 1.
(0) Ibid. f. 6, § 8.
§ 426 — 439.] CONSTRUCTIVE FRAUD. 175

afterwards put, of a bond fide purchaser from a fraudulent grantee, the

validity of whose purchase is unequivocally affirmed. " Is, qui a
debitore, cujus bona possessa sunt, sciens rem emit, iterum alii bona
fide ementi vendidit; quaesitum sit, an secundus emptor conveneri
potest? Sed verier est Sabini sententia, bona fide emptorem non
teneri ; quia dolus ei duntaxat nocere debeat, qui eum admisit ; quemad-
modum diximus, non teneri eum, si ab ipso debitore ignorans emerit.
Is autem, qui dolo malo emit, bona fide autem ementi vendidit, in
solidum pretium rei, quod accepit, tenebitur " (fa). The same doctrine
is fully recognized by Voet (c). And its intrinsic justice is so persuasive
and satisfactory, that whether derived from Roman sources or not, it
would have been truly surprising not to have found it embodied in the
jurisprudence of England.
§ 436. Ind-eed, the principle is more broad and comprehensive ;
and, although not absolutely universal (for there are anomalies in the
case of judgment creditors, and the case of dower) (d) ; yet it is
generally true, and applies to cases of every sort, where an equity is
sought to be enforced against a bond fide purchaser of the legal estate
without notice, or even against a bond fide purchaser, not having the
legal estate, where he has a better right or title to call for the
legal estate than the other party. It applies, therefore, to cases of
accident and mistake, as well as to cases of fraud, which, however
remediable between the original parties, are not relievable, as against
such purchasers, under such circumstances.
§ 439. We have thus gone over the principal grounds upon which
courts of equity grant relief in cases of accident, mistake, and fraud.
And here the flexibility of courts of equity in adapting their judgments
to the actual relief required by the parties is strikingly illustrated.
Accident, mistake, and fraud are of an infinite variety in form,
character, and circumstances, and are incapable of being adjusted by
any single and uniform rule. Of each of them one might say, " Mille
trahit varies adverse sole colores." The beautiful character, pervading
excellence, if one may say, of equity jurisprudence is, that it varies
its adjustments and proportions, so as to meet the very form and
pressure of each particular case in all its complex habitudes. Thus, to
present a summary of what has been already stated, if conveyances or
other instruments are fraudulently or improperly obtained, they are
decreed to be given up and cancelled. If they are money securities,
on which the money has been paid, the money is decreed to be paid
back. If they are deeds, or other muniments of title, detained from
the rightful party, they are decreed to be delivered up. If they are
deeds suppressed or spoliated, the paity is decreed to hold the same

(6) Dig. Lib. 42, tit. 8, f. 9.

(c) 2 Voet, Comm. Lib. 42, tit. 8, § 10, p.l05.
(d) See ante, § 108, 381, 410; post, § 630.
176 EQUITY JURISPRUDENCE. [CH. VII.

rights as if they were in his possession and power. If there has been
any undue concealment, or misrepresentation, or specific promise
collusively broken, the injured party is placed in the same situation,
and the other party is compelled to do the same acts, as if all had been
transacted with the utmost good faith. If the party says nothing, but
by his expressive silence misleads another to his injury, he is com-
pellable to make good the loss; and his own title, if the case requires
it, is made subservient to that of the confiding purchaser. If a party,
by fraud or misrepresentation, induces another to do an act injurious
to a third person, he is made responsible for it. If, by fraud or mis-
representation, heprevents acts from being done, equity treats the
case, as to him, as if it were done; and makes him a trustee for the
other. If a will is revoked by a fraudulent deed, the revocation is
treated as a nullity. If a devisee obtains a devise by fraud, he is
treated as a trustee of the injured parties. In all these, and many
other cases which might be mentioned, courts of equity undo what has
been done, if wrong ; and do what has been left undone, if right.
§ 440. We may conclude this head, by calling the attention of
the reader to the remark (which has been necessarily introduced in
another place), that courts of equity will exercise a concurrent juris-
diction with courts of law in all matters of fraud, excepting only of
fraud in obtaining a will, which, if of real estate, was consistently
referred to a court of law to decide it, and which, if of personal estate,
was cognizable in the Court of Probate. But, even in this ease, the
bill might be retained, to abide the decision in the proper court, and
relief be decreed according to the event. No other excepted case is
known to exist; and it is not easy to discern the grounds upon which
this exception stands, in point of reason or principle, although it is.
clearly settled by authority. But where the fraud did not go to the
whole will, but only to some particular clause ; or where the fraud was
in unduly obtaining the consent of the next of kin to the probate,
courts of equity laid hold of these circumstances to declare the executor
a trustee for the next of kin (e).

(e) Allen v. McPherson, 1 H. L. C. 191; Meluish v. Milton, 3 Ch. D. 27; Priest-

man V. Thomas, 9 P. D. 210.
§ 440 — 442.] ACCOUNT. 17T

CHAPTER VIII.
ACCOUNT.

§ 441. Having disposed of these three great heads of concurrent

equitable jurisdiction in matters of accident, mistake, and fraud, the
undisputed possession of which has belonged to courts of equity from the
earliest period which can be traced out in our judicial annals, we
may now pass to others of a different and less extensive character.
We allude to the heads, where the jurisdiction, although it may attach
upon any or all of the grounds above mentioned, is not necessarily
dependent upon them, and, in fact, is exercised in a variety of cases
where they do not apply, upon another distinct ground, namely, that
the subject-matter is, per se, within the scope of equitable jurisdiction.
Among these are matters of account, and, as incident thereto, matters
of apportionment, contribution, and average ; liens, rents, and profits ;
waste; matters of administration, legacies, and marshalling of assets;
confusion of boundaries ; matters of dower ; marshalling of securities ;
matters of partition ; matters of partnership ; and, lastly, matters of
rent, so far as they are not embraced in the preceding head of Account.
§ 442. Xet us begin with matters of Account. One of the most
ancient forms of action at the common law is the action of account.
But the modes of proceeding in that action, although aided from time
to time by statutable provisions, were found so very dilatory, incon-
venient, and unsatisfactory, that as soon as courts of equity began
to assume jurisdiction in matters of account, as they did at a
very early period, the remedy at law began to decline; and, although
some efforts were made in subsequent times to resuscitate it in
England, it fell into almost total disuse (a). Courts of equity for a
long time exercised a general jurisdiction in all cases of mutual
accounts, upon the ground of the inadequacy of the remedy at law ;
and extfended the remedy to a vast variety of cases (such as to implied
and constructive trusts) to which the remedy at law never was
applied (b). The jurisdiction extended, not only to cases of an equit-

(a) See Att.-Gen. v. Dublin Corporation, 3 Bli. N. S. 314. In Godfrey v.

Saunders, 3 Wils. 73, 113, 117, which is one of the few modern actions of account in
England, Lord Chief Justice Wilmot said (p. 117), " I am glad to see this action of
account is revived in this court." But the parliamentary commissioners, in their
second report on the common law, 8th March, 1830 (pp. 9, 25, 26), had no scruple to
admit its inconvenience and dilatorinees, and that it had gone into disuse.
(b) See Corporation of Carlisle v. Wilson, 13 Ves. 275.
E.J. 12
178 EQUITY JURISPRUDENCE. [CH. VIII.

able nature, but to many cases where the form of the account was
purely legal, and the items, constituting the account, were founded on
obligations purely legal.
§ 443. The difficulties in the modes of proceeding in common law
actions of account, and the' convenience of the modes of proceeding in
suits in equity, to attain the ends of substantial justice, are stated in an
elementary work of solid reputation, with great clearness and force.
The language of one learned author is as follows: " The proceedings
in this action being difficult, dilatory, and expensive, it is now seldom
used, especially if the party have other remedy, as debt, covenant,
case, or if the demand be of consequence, and the matter of an
intricate nature; for, in such a case, it is more advisable to resort to
a court of equity, where matters of accompt are more commodiously
adjusted, and determined more advantageously for both parties ; the
plaintiff being entitled to a discovery of books, papers, and the
defendant's oath; and, on the other hand, the defendant being allowed
to discount the sums paid or expended by him ; to discharge himself
of sums under forty shillings by his own oath ; and if by answer or
other writing he charges himself, by the same to discharge himself,
which will be good, if there be no other evidence. Further, all
reasonable allowances are made to him ; and if after the accompt is
stated, anything be due to him upon the balance, he is entitled to
a decree in his favour " (c).
§ 444. To expound and justify the truth of these remarks, it may
be well to take a short review of the old action of account, and to see
to what narrow boundaries it was confined, and by what embarrass-
ments it was surrounded.
§ 445. At the common law, an action of account lay only in cases
where there was either a privity in deed, by the consent of the party,
as against a bailiff or receiver appointed by the party, or a privity in
law, ex provisione legis, as against a guardian in socage (d). An ex-
ception, indeed, or rather an extension of the rule, was, for the benefit
of trade and the advancement of commerce, allowed in favour of and
between merchants; and therefore, by the law-merchant, one naming
himself a merchant might have an account against another, naming
him a merchant, and charge him as receiver (e). But, in truth, in
almost every supposable case of this sort, there was an established
privity of contract. With this exception, however (if such it be), the
action was strictly confined to bailiffs, receivers, and guardians, in
socage (/). So strictly was this privity of contract construed, that
(c) Bac. Abr. Accompt. See, also, Att.-Gen. v. Dublin Corporation, 3 Bli. N. S.
312.
(d) 1 Co. Litt. 90 b ; ibid. 172 o ; 2 Ponbl. Eq. B. 2, ch. 7, § 6, and note ; Bac. Abr.
Accompt, A. ; Com. Dig. Accompt, A. 1 ; 2 Inst. 379.
(e) Co. Litt. 172 a; Earl of Devonshire's case, 11 Co. 89.
{/) BuUer, N. P. 127; 1 Eq. Abr. 5, note (a); 2 Fonbl. Eq. B. 2, ch. 7, § 6, and
note (n); Co. Litt. 172 a; 2 Inst. 379.
§ 443—446.] ACCOUNT. 179

the action did not lie by or against executors and administrators.

The statute of 13 Edw. 3, c. 28, gave it to the executors of a merchant;
the statute of 25 Edw. 3, c. 5, gave it to the executors of executors;
and the statute of 31 Edw. 3, c. 11, to administrators (g). But
it was not until the statute of 3 & 4 Anne, c. 16, that it lay
against executors and administrators of guardians, bailiffs, and
receivers (h).
§ 446. But in all cases of this latter sort, although there was no
remedy at the common law, yet a bill in equity might be maintained
for an account against the personal representatives of guardians, bailiffs,
and receivers; and such was the usual remedy prior to the remedial
statute of Anne (?). And no action of account lay at the common law
against wrongdoers (fc) ; or by one joint-tenant, or tenant in common,
or his executors or administrators, against the other, as bailiff, for
receiving more than his share ; or against his executors or administra-
tors, unless there was some special contract between them, whereby
the one made the other his bailiff ; for the relation itself was held not
to create any privity of contract by operation of law (!)■ This defect
was afterwards cured by the statute of the 3 & 4 Anne, c. 16 (m). The
common law was strict, as to who was to be accounted a bailiff or
receiver; for a bailiff was understood to be one who had the adminis-
tration and charge of lands, goods, and chattels, to make the best
benefit for the owner, and against whom, therefore, an action of
account lie for the profits, which he had made, or might, by his industry
or care, have reasonably made : his reasonable charges and expenses
being deducted (n). A receiver was one who received money to the
use of another to render an account ; but upon his account he was not
allowed his expenses and charges, except in the case of merchant
receivers. And this exception was provided (as it was said) by the law
of the land in favour of merchants, and for the advancement of trade
and traffic (o). So that it will be at once perceived, from these cases
(and many others might be mentioned (p)) that the remedy at the
common law was very narrow ; and although it was afterwards enlarged,
that would not of itself displace the jurisdiction originally vested in
courts of equity.

(g) Co. Litt. 90 b.

(h) Ibid. ; Buller, N. P. 127 ; Earl of Devonshire's Case, 11 Co. 89.
(t) 1 Eq. Cas. Abr. 5, note (o).
(k) Bac. Abr. Accompt, B. We shall presently see that courts of equity fre-
quently administer relief in cases of account against wrongdoers. See Bac. Abr.
Accompt, B. ; Bosanquet v. Dashwood, Cas. temp. Talb. 38, 41.
(Z) Co. Litt. 172, and Harg. note (8) ; Co. Litt. 186 o, 119 b, and Harg. note (83) ;
Wheeler v. Home, Willes 208 ; Bac. Abr. Accompt, A. ; 1 Saund. 216, Williams's note.
(m) 3 Black. Coram. 364.
(n) Co. Litt. 172.
(o) Ibid. 172 ffl.
(p) See Bac. Abr. Accompt, B., C. ; Com. Dig. Accompt, A., B., D. ; 8 Eeevea 337,
836, 839; 3 Beeyes 337 ; 3 Reeves 75, 76 ; 4 Reeves 388.
180 EQUITY JURISPRUDENCE. [CH. VIII.

§ 446a. In the next place, as to the modes of proceeding in

actions of account. At the common law, before either the statute of
Marlebridge, c. 23, or of Westminster 2nd, c. 11, there were two
methods of proceeding against an accountant; one, by which the party,
to whom he was accountable, might, by consent of the accountant,
either take the account himself, or assign an auditor or auditors to
take it; and then have his action of debt for the arrearages; or, in
more modern times, an action on the case, or insimul computassent .
And the accountant, if aggrieved, might have his writ of ex parte talis,
to re-examine the account in the exchequer. The other proceeding of
the plaintiff was, in the first instance, by way of a writ of account.
The process, by which this latter remedy might be made more effectual,
is particularly described in the statute of Marlebridge, and the statute
of Westminster 2nd, upon which it is unnecessary to dwell (5).
§ 447. In the action of account, there were two distinct courses of
proceeding. In the first place, the party might interpose any matter
in abatement or bar of the proceeding ; and if he failed in it, then there
was an interlocutory judgment, that he should account {quod computet)
before auditors (r). After this judgment was entered, it was the duty
of the court to assign auditors, who were armed with authority to
convene the parties before them, de die in diem, at any time or place
they should appoint until the accounting was determined. The time
by which the account was to be settled was prefixed by the court.
But, if the account were of a long or confused nature, the court would,
upon the application of the parties, enlarge the time. In taking the
account, the auditors in an action of account at the common law could
not administer an oath, except in one or two particular cases. But,
under the statute of 3 & 4 Anne, c. 16, the auditors were empowered
to administer an oath, and examine the parties touching the matters
in question, in cases within that Act (s).
§ 448. If, in the progress of the cause before the auditors, when
the items were successively brought under review, any controversy
should arise before the auditors, as to charging or discharging any
items, the parties had a right, if the points involved matters of fact,
to make up and join issues upon such items respiectively ; and, if the
points involved matters in law, they had a right in like manner to
put in and join demurrers upon each distinct item. These issues,
when so made up, were to be certified, by the auditors, to the court;
and then the matters of law were decided by the court; and the
matters of fact were tried by a jury, after which the accounts were
settled by the auditors according to the results of these trials. From
this circumstance the proceedings before the auditors were often

(q) Com. Dig. Accompt, A., and note (a); 3 Reeves 75, 76.
(r) 3 Black. Coram. 164; O'Connor v. Spaight, 1 Sch. & Lefr. 309.
(s) Co. Litt. 199, and Harg. note (83); Wheeler v. Home, Willes i208, 210; 1
Selwyn, N. P. 6; Buller, N. P. 127; Bao Abr. Wager of Laio, C.
§ 446o — 450.] ACCOUNT. 181

tedious, expensive, and inconvenient (<),- And, indeed, as different

points both of fact and law might arise in different stages of the suit
and in different examinations before the auditors, as vcell after as
before such issues had been joined and tried, it ought not to be sur-
prising, that the cause should be procrastinated for a great length of
time, by its transition from one tribunal to another, for the various
purposes incident to a due settlement of its merits. And besides these
difficulties, there were many actions of account in which the defen-
dant might wage his law, and thus escape from answering his
adversary's claim (m).
§ 449. This summary view of the modes of proceeding in the action
of account is sufficient to show, that it was a very unfit instrument
to ascertain and adjust the real merits of long, complicated, and cross
accounts. In the first place, it was inapplicable to a vast variety of
cases of equitable claims, of constructive trusts, of fraudulent con-
trivances and of tortious misconduct. In the next place, there was a
want of due power to draw out the proper proofs from the party's own
conscience ; so that if evidence aliunde was unattainable, there was,
and there could be, no effective redress. And it has been well observed
by Mr. Justice Blackstone, that, notwithstanding all the legislative
provisions in aid of the common-law action of account, " it is found by
experience, that the most ready and effectual way to settle these
matters of account is by a bill in a court of equity, where a discovery
may be had on the defendant's oath, without relying merely on the
evidence which the plaintiff may be able to produce " {x).
§ 450. Courts of equity, in suits of this nature, proceed, in many
respects, in analogy to what is done at law. The cause is referred to
a master (acting as an auditor), before whom an account is taken, and
he is armed with the fullest powers, not only to examine the parties
on oath, but to make all the inquiries by testimony under oath, and
by documents and books and vouchers, to be produced by the parties,
which are necessary for the due administration of justice. And when
his report is made to the court, any objections which have been made
before the master, and any exceptions taken to his report, may be
re-examined by the court at the instance of the parties, and the whole
case is moulded as, ex ssquo et bono, may be required {y). The court
may, besides, bring all the proper parties in interest before it, where
there are different parties concerned in interest; and, if any doubt
arises upon any particular demand, it may direct the same to be
ascertained by an issue and verdict at law. So that there cannot be

{t)Ex ■parte Bax, 2 Ves. 388; Bac. Abr. Accompt, P.; BuUer, N. P. 127, 128;
Yelverton, 202, Metcalf's note (1).
(«) Com. Dig. Pleader, 2 W. 45; Co. Litt. 90 b ; ibid. 295 b ; Archer's case, Cro.
Eliz. 579; Bac. Abr. Wager of Law, D., G.
(x) 3 Black. Comm. 164.
ly) Ex parte Bax, 2 Ves. 388.
182 EQUITY JURISPRUDENCE. [CH. VIII.

any real doubt that the remedy in equity, in cases of account,

is generally more complete and adequate than it is or can be
at law (»).
§ 451. This has, accordingly, been considered in modern times as
the true foundation of the jurisdiction. Mr. Justice Blackstone has,
indeed, placed it upon the sole ground of the right of the courts of
equity to compel a discovery — ' ' For want ' ' (said he) ' ' of this dis-
covery at law, the courts of equity have acquired a concurrent juris-
diction with every dther court in matters of account " (a). But this,
although a strong, yet is not the sole ground of the jurisdiction. The
whole machinery of courts of equity is better adapted to the purpose
of an account in general; and in many cases, independent of the
searching power of discovery, and supposing a court of law to possess
it, it would be impossible for the latter to do entire justice between
the parties; for equitable rights and claims, not cognizable at law,
are often involved in the contest. Lord Eedesdale has justly said
that, in a complicated account, a court of law would be incompetent
to examine it at Nisi Prius with all the necessary accuracy (c). This
is the principle on which courts of equity constantly act, by taking
cognizance of matters which, though cognizable at law, are yet so
involved with a complex account, that it cannot be properly taken at
law; and until the result of the account is known, the justice of the
case cannot appear (d). Matters of account (he had added) may,
indeed, be made the subject of an action ; but an account of this sort is
not a proper subject for this mode of proceeding. The old mode of
proceeding upon the writ of account shows it. The only judgment was,
that the party should account, and then the account was taken by the
auditors. The court never went into it (e).
§ 452. It is not improbable that, originally, in cases of account,
which might be cognizable at law, courts of equity interfered upon
the special ground of accident, mistake, or fraud. If so, the ground
was very soon enlarged, and embraced mixed cases not governed by
these matters. The courts soon arrived at the conclusion that the
true principle upon which they should entertain suits for an account
in matters cognizable at law was, that either a court of law could not
give any remedy at all, or not so complete a remedy as courts of equity.
And the moment this principle was adopted in its just extent, the
concurrent jurisdiction became almost universal, and reached almost
instantaneously its present boundaries (/).

(z) Corporation of Carlisle v. Wilson, 13 Ves. 278, 279.

(o) 3 Black. Comm. 437.
(c) O'Connor v. Spaight, 1 Sch. & Lefr. 930. See White v. Williams, 8 Ves. 193.
(d) O'Connor v. Spaight, 1 Sch. & Lefr. 309; Harrington v. Churchward, 29
L J. Ch. 521.
(e) Cooper, Eq PI. 134.
(/) Corporation oj Carlisle v. Wilson, 13 Ves. 278.
§ 451—459.] ACCOUNT. 183

§ 453. In virtue of this general jurisdiction in matters of account,

courts of equity exercise a very ample authority over matters appa-
rently not very closely connected vs'ith it, but whiclj naturally, if not
necessarily, attach to such a jurisdiction. Mr. Justice Blackstone has
said: " As incident to accounts, they take a concurrent cognizance of
the administration of personal assets; consequently, of debts, legacies,
the distribution of the residue, and the conduct of executors and
administrators. As incident to accounts, they also take the concurrent
jurisdiction of tithes and all questions relating thereto; of all dealings
in partnership and many other mercantile transactions ; and so of
bailiffs, factors, and receivers. It would be endless to point out all the
several avenues in human afiairs, and in this commercial age, vchich
lead to or end in accounts " (g). But it is far from being admitted
that the sole origin of equity jurisdiction on these subjects arises from
this source. It is one, but not the sole source. In many of these
cases, as well as in others, which will hereafter be considered, in which
accounts may be taken as incidents to the relief granted, there are
other distinct, if not independent, sources of jurisdiction; and
especially one source, which is the peculiar attribute of courts of equity,
the jurisdiction over trusts, not merely express, but implied and
constructive.
§ 458. Courts of equity also entertained jurisdiction in matters of
account, not only when there were mutual accounts, but also when
the accounts to be examined were on one side only, and a discovery
was wanted in aid of the account, and was obtained. But where
there were no mutual demands but a single matter on one side, and
no discovery was required, a court of equity would not entertain juris-
diction ofthe suit, although there might be payments on the other side,
which might be set oS ; for in such a case, there was not only a com-
plete remedy at law, but there was nothing requiring the peculiar aid
of equity, to ascertain or adjust the claim (h). To found the juris-
diction, in cases of a claim of this sort, there should be a series of
transactions on one side, and of payments on the other.
§ 469. So that, on the whole, it may be laid down as a general
doctrine, that in matters of account, growing out of privity of con-
tract, courts of equity had a general jurisdiction where there were
mutual accounts (and a fortiori, where the accounts were complicated),
and also where the accounts were on one side, but a discovery was
sought, and was material to the relief. And, on the other hand, where
the accounts were all on one side, and discovery was not sought, or if
sought was not required; and also, where there was a single matter
on the side of the plaintiff seeking relief, and mere sets off on the other

(g) 3 Black. Coram. 437.

(h) Hoare v. Ootencin, 1 Bro. C. C. 27; Mackenzie v. Johnston, i Mad. 374;
Massey v. Banner, 4 Mad. 418; Frietas v. Don Santos, 1 Y. & J. 574; Blyth v.
Whiffin, 27 L. T. 330.
184 EQUITY JURISPRUDENCE . [CH. VIII.

side, and no discovery was sought or required ; in all such cases courts of
equity would decline taking jurisdiction of the cause. The reason being
that if no peculiar remedial process or functions of a court of equity was
required, the claim would become a bare money claim and the court
would merely administer the same functions in the same way as a
court of law would in the suit. In short, it would act as a court of
law (z).
§ 459a. So far as England is concerned the preceding discussion
has become of academical interest, By force of the Judicature Act,
1873 (36 & 87 Vict. c. 66), s. 24, legal and equitable rights are concur-
rently administered in all actions, but by force of section 84, sub-sec-
tion 8 of the ■ same statute matters of account are allocated to
the Chancery Division, which alone has the proper administrative
machinery. Actions for an account involving the taking of an account
may come before the King's Bench Division, and in that event the
provisions of section 14 of the Arbitration Act, 1889 (52 & 53 Vict,
c. 49), enable the judge to refer cases, if the question in dispute consists
wholly or in part of matters of account, to a " special referee or
arbitrator " or to an " official referee or officer of the court."
§ 459b. By the Eules of the Supreme Court, 1883, Order XV. r. 1,
where a writ of summons has been indorsed for an account under
Order III. r. 8, of the same Eules, or where the indorsement involves
taking an account, if the defendant either fails to appear, or does not,
after appearance by affidavit or otherwise, satisfy the court or a judge
that there is some preliminary question to be tried, an order for the
proper accounts, with all necessary inquiries and directions, now usual
in the Chancery Division in similar cases, shall be forthwith made.
§ 459c. Appropriation. In matters of account where several
debts are due by the debtor to the creditor, it often becomes material
to ascertain to what debt a particular payment made by the debtor is
to be applied. This is called in our law the appropriation of payments.
It is called in the foreign law the imputation of payments (k), a phrase
apparently borrowed from the Eoman law, where the doctrine of the
appropriation of payments is carefully examined, and the leading
distinctions applicable to it amply discussed (l). The doctrine may, of
course, find a place wherever there exist separate and independent debts
between the parties ; but it is chiefly in cases of running accounts
between debtor and creditor, where various payments have been made
and various credits have been given at different times, that its applica-
tion is felt in its full force and importance, especially where the
dealings have been with a firm, as, for example, with bankers, and one

(i) Hoare v. Cotencin, 1 Bro. C. C. 27; Mackenzie v. Johnston, i Mad. 374;

Massey v. Banner, 4 Mad. 413; Frietas v. Don Santos, 1 Y. & J. 574; Blyth v.
Whiffin, 27 L. T. 330.
(k) Pothier on Oblig. by Evans, n. 528 (ibid. n. 661, Fr. edit. 1824).
(l) Pothier, Pand. Lib. 46, tit. 3, n. 89 to 103.
§ 459a— 459d!.] account. 185

or more of the partners have deceased, and the customer still continues
his dealings with the new firm, or the survivors of the old firm, and
moneys have been paid in, and drawn out, from time to time (m).
The same question often occurs, in cases of public officers, where
sureties have given different bonds, at different times, for the faithful
performance of the official duties, in respect of moneys received by
them at different periods, embracing one or more of the bonds. How,
in such cases, where running accounts are kept of debts and payments,
of credits and receipts, are the payments, made at different times,
before and after the change of the firm, or the change of sureties, to be
appropriated? In the first place, in the case of running accounts
between parties, where there are various items of debt on one side, and
various items of credit on the other side, occurring at different times,
and no special appropriation of the payments is made by either party,
the successive payments or credits are to be applied to the discharge of
the items of debit, antecedently due, in the order of time in which they
stand in the accounts ; or, in other words, each item of payment or
credit is applied in extinguishment of the earliest items of debt standing
in the account, until the whole payment or credit is exhausted (n).
In the next place, where there are no running accounts between the
parties, and the debtor himself makes no special appropriation of any
payment, there the creditor is generally at liberty to apply that pay-
ment to any one or more of the debts which the debtor owes him,
whether it be upon an account or otherwise (o).
§ 459d. The Roman law proceeded, in a great measure, if not
altogether, upon similar principles. But according to that law, the
election was to be made at the time of payment, as well in the case
of the creditor as in that of the debtor : " In re prsesenti, hoc est statim
atque solutum est: — 'Caeterum pdstea non permittitur " (p). If neither
applied the payment, the law made the appropriation according to
certain rules of presumption depending on the nature of the debts or
the priority in which they were incurred. And as it was the actuiil
intention of the debtor, that would, in the first instance, have governed ;
so it was his presumable intention that was first resorted to as the rule
by which the application was to be determined. In the absence, there-
fore, of any express declaration by either, the inquiry was, What
application would be most beneficial to the debtor? The payment was
consequently applied to the most burdensome debt, — to one that
carried interest, rather than to that which carried none, — to one
(m) Bank of Scotland v. Christie, 8 CI. & P. 214.
(n) Clayton's Case, 1 Meriv. 572; Bodenlmm v. Purchas, 2 B. & Aid. 39; Simson
v. Cooke, 1 Bing. 452; Simson v. Ingham, 2 B. & C. 65; Copland v. Toulmin, 7
CI. & F. 349; Bank of Scotland v. Christie, 8 CI. & P. 214.
(o) Bosanquet v. Wray, 6 Taunt. 597; Brooke v. Enderby, 2 Brod. & Bing. 70;
Kinnaird v. Webster, 10 Ch. D. 139; In re Sherry: London and County Bank v. Terry,
25 Ch. D. 692.
(p) Dig. Lib. 46, tit. 3, f. 5.
186 EQUITY JURISPRUDENCE. [CH. VIII-

secured by a penalty, rather than to that which rested on a simple

stipulation ;— and if the debts were equal, then to that which had been
first contracted. " In his vero, quae prassenti die debentur, constat,
yuctiens indistincte quid solvitur, in graviorem causam videri 3olutuin,
Bi autem nulla prsegravet, — id est si omnia nomina similia fuerint,
antiquiorem " (g). Pothier, in his edition of the Pandects, has collected
together all the texts of the Eoman law on this subject (?■) ; and he has
summed up the general results in his treatise on Obligations (s).
§ 459e. In the actual application of the doctrine to cases of
partnership, where a change of the firm has occurred by a dissolution
by death or otherwise, the rule is, that the estate of the deceased or
retiring partner is liable only to the extent of the balance due to any

(9) Dig. Lib. 46, tit. 3, f. 5.

(r) Pothier, Pand. Lib. 46, tit. 3, art. 1, n. 89 to 99.
(s) Pothier, Oblig. by Evans, n. 528 to 535 ; ibid. n. 561 to n. 572, French, 2nd edit.
1829. It may not be without use to insert here the leading rules stated by Pothier :
" First Eule. The debtor has the power of declaring on account of what debt he
intends to apply the sum which he pays. The reason which Ulpian gives is evident,
' possumus enim certam legem dicere, ei quod solvimus.' According to our rule,
although regularly the interest should be paid before the principal, yet if the debtor
of the principal and interest, upon paying a sum of money, has declared that he paid
on account of the principal, the creditor who has agreed to receive it cannot after-ftrards
contest such application. Second Eule. If the debtor, at the time of paying, makes no
application, the creditor to whom the money is due, for different causes, may make
the application by the acquittance which he gives. It is requisite, 1st, that this
application be made at the instant; 2nd, that it be equitable. Third Rule. When the
application has neither been made by the debtor nor by the creditor, it ought to be
made to that debt which the debtor at the time had the most interest to discharge.
The application should rather be made to a debt which is not contested than to one
that is ; rather to a debt which was due at the time of payment than to one which was
not. Among several debts which are due the application ought rather to be made
to the debt for which the debtor was liable to be imprisoned than to debts merely
civil, in respect of which process could only issue against his effects. Among civil
debts the application should rather be made to those which produce interest than to
those which do not. The application ought rather to be made to an hypothecatory debt
than to another. The application ought rather to be made to the debt for which the
debtor had given sureties than to those which he owed singly. The reason is, that in
discharging it, he discharges hmself from two creditors — from his principal creditor
and from his surety, whom he is obliged to indemnify. Now, a debtor has more interest
to be acquitted against two than against a single creditor. The application ought
rather to be made for a, debt of which the person who has paid was principal debtor,
than to those which he owed as surety for other persons. Fourth Eule. If the debts
are of an equal nature, and such that the debtor had no interest in acquitting one
rather than the other, the application should be made to that of the longest standing-
Observe, that of two debts contracted the same day, but with different terms, which
are both expired, the debt of which the term was the shorter, and consequently which
expired sooner, is understood to be the more ancient. Fifth Eule. If the different
debts are of the same date, and in other respects equal, the application should be
made proportionately to each. Sixth Eule. In debts which are of a nature to produce
interest, the application is made to the interest before the principal. This holds good
even if the acquittance, imported that the sum was paid to the account of the principal
and interest, ' in sortem et usuras.' The clause is understood in this sense, that the
sum is received to the account of the principal after the interest is satisfied. Observe,
that if the sum paid exceeds what is due for interest, the remainder is applied to the
principal, even if the application had been expressly made to the interest, without
mentioning the principal."
§ 459e— 459/.] account. 187

creditor at the time of the dissolution ; and that if the creditor continues
to keep a running account with the survivors, or the new firm, and
sums are paid to them by the- creditor, and sums are drawn on their
firm, and paid by them, and are charged and credited to the general
account, and blended together as a common fund, without any distinc-
tion between the sums due to the creditor by the old firm and the new ;
in such a case, the sums paid to the creditor are deemed to be paid
upon the general blended account, and go to extinguish, pro tanto, the
balance of the old firm, in the order of the earliest items thereof. " In
such a case " (it has been said by a very able judge), " there is no room
lor any other appropriation than that which arises from the order in
which the receipts and payments take place, and are carried into the
account. Presumably, it is the sum first paid in that is first drawn out.
It is the first it«m on the debit side of the account that is discharged,
or reduced by the first item on the credit side. The appropriation is
made by the very act of setting the two items against each other.
Upon that principle all accounts current are settled, and particularly
cash accounts. When there has been a continuation of dealings, in
what way can it be ascertained whether the specific balance, due on a
given day, has or has not been discharged, but by examining whether
payments to the amount of that balance appear by the account to
have been made? You are not to take the account backwards, and
strike the balance at the head, instead of the foot of it. A man's
banker breaks, owing him, on the whole account, a balance of £1,000.
It would surprise one to hear the customer say : ' I have been fortunate
enough to draw out all that I paid in during the last four years; but
there is £1,000 which I paid in five years ago, that I hold myself never
to have drawn out; and, therefore, if I can find anybody who was
answerable for the debts of the banking-house, such as they stood five
years ago, I have a right to say, that it is that specific sum which is
still due to me, and not the £1,000 that I paid in last week ' " (i).
This principle, as the language of the learned judge imports, only
applies to an account current (u), and the creditor may be entitled to
close the old account, and open a fresh one, and make that appropria-
tion which shall be most favourable to him (x).
§ 459/. On the other hand, if, under the like circumstances,
moneys have been received by the new firm, and drawn out by the
creditor from time to time, and upon the whole, the original balance
due to the creditor has been increased, but never at any time been
diminished, in the hands of the firm; in such a case, the items of
payment made by the new firm are still to be applied to the extinguish-
ment of the balance of the old firm, and will discharge the share of the

(t) Sir William Grant in Clayton's Case, 1 Meriv. 608, 609.

(u) The Mecca, [1897] A. C. 286.
(x) In re Sherry; London and County Bk. v. Terry, 25 Ch. D. 692.
188 EQUITY JURISPRUDENCE [CH. VIII.

deceased or retiring partner to that extent, but no farther ; for, in such

a case, the general rule as to running accounts is applied with its full
force (y). A fortiori, where payments* have been made, and no new
■sums have been deposited by the creditor with the new firm, the
payments will be applied in extinguishment, pro tanto, of the balance
due by the old firm, in the order of the items thereof (a).
§ 459gr. The cases which we have hitherto been considering, are
cases of running accounts ; and, under such circumstances, the rule
will apply equally to cases where a part of the debt is secured by a
guaranty or by sureties as well as where there are no such parties (a).
But, where there are no such running accounts, if no special appro-
priation ismade by the debtor, the creditor may, as we have seen (b),
apply the money to any legal demand which he has against the debtor,
whether it be a balance of an old account, or of a new account; for in
•such a case the interest of third persons is not concerned, and the case
of running accounts constitutes, as it were, an implied appropriation
by the parties to the account generally (c). And payments made
generally by a debtor to his creditor may be applied by the creditor to
a balance due to the creditor, although other debts have since been
incurred, upon which the debtor has given a bond, with a surety, for
security thereof (d). A creditor, having several debts due from the
same debtor, has a right to ascribe a payment made indefinitely and
without appropriation by his debtor, to whichever debt he may see
fit to apply it, and is entitled to make this appropriation and election
even at the latest hour, and whether a reasonable period after the
payment has elapsed or not (e).
§ 459/i. The rule in Clayton's Case does not apply to the case of a
trustee or any other person in a fiduciary position, who has paid trust
money in to his account at his banker's, and mixed it with his own
money, and afterwards drawn out money by cheques in the ordinary
manner, on the ground that we must presume a man' intended to act
rightly, unless we have proof to the contrary, and that therefore a

{y) Palmer's Case, 1 Meriv. 623, 624; Sleech's Case, 1 Meriv. 538; Bodenham v.
Furchas, 2 B. & Aid. 39. See In re Mason, 3 Mont. Deac. & De G. 490; Law Maga-
zine, May 1845, p. 184.
(z) Sleech's Case, 1 Meriv. 538, &c.
(a) Where a compromise of three different debts was made for a sum less than
their face, payment to be made by instalments, and if any instalment not paid, creditor
to be remitted to his original rights, and on the first debt a judgment had been
recovered, making it a lien on land : Held, that as against subsequent incumbrancers
an instalment must be applied pro ratA to the three debts. Thompson v. Hudson,
li. R. 6 Ch. 320.
(fc) Ante, § 459 b.
(c) Bosanquet v. Wray, 6 Taunt. 597; Brooke v. Enderby, 2 Brod. & Bing. 70.
(d) Kirby v. Duke of Marlborough, 2 M. & S. 18; Williams v. Rawlinson, 3 Bing.
71.
(e) Clayton's Case, 1 Mer. 606 ; Simson v. Ingham, 2 B. & C. 65 ; Hooper v. Keay,
1 Q. B. D. 178; Friend v. Young, [1897] 2 Ch. 421; Seymour v. Pickett, [1905] 1
K. B. 715.
§ 46%— 462.] ACCOUNT. 189

trustee must be considered to have drawn out his own money, in prefer-
ence to the trust money, unless clearly intended for the purposes of the'
trust (/). It was held also in the case which decided this point by
^^y, J-. that as between two cestuis que trust whose money the trustee
has paid in to his own account at the banker's, the rule in Clayton's
Case does apply, but the Court of Appeal pronounced no opinion on
this point.
§ 460. In cases of account not founded in any such privity of con-
tract, but founded upon relations and duties required by law, or upon
torts and constructive trust, for which equitable redress is sought, it
is more difficult to trace out a distinct line, where the legal remedy
ends, and the equitable jurisdiction begins.
§ 461. In our subsequent examination of this branch of jurisdiction,
it certainly would not be going beyond its first boundaries to include
within it all subjects which arise from the two great sources already
indicated, and terminate in matters of account ; namely, first, such as
have their foundation in contract, or quasi contract, and, secondly,
such as have their foundation in trusts, actual or constructive, or in
torts affecting property. But, as many cases included under one head
are often connected with principles belonging to the other, and as the
jurisdiction of courts of equity is often exercised upon various grounds,
not completely embraced in either ; or upon mixed considerations ; it
will be more convenient, and perhaps not less philosophical, to treat the
various topics under their own appropriate heads, without any nice
discrimination between them. We may thus bring together in this
place such topics only as do not seem to belong to more enlarged sub-
jects, or such as do not require any elaborate discussion, or such as
peculiarly furnish matter of illustration of the general principles which
regulate the jurisdiction.
§ 462. Let us, then, in the first place, bring together some cases
arising ex contractu, or quasi ex contractu, and involving accounts.
And here, one of the most general heads is that of agency, where one
person is employed to transact the business of another for a recompense
or compensation. The most important agencies of this sort which fall
under the cognizance of courts of equity, are those of solicitors, factors,
bailiffs, consignees, receivers, and stewards. In most agencies of this
sort, there are mutual accounts between the parties ; or, if the account
is on one side, as the relation naturally gives rise to great personal
confidence between the parties, it rarely happens that the principal
is able, in cases of controversy, to establish his rights, or to ascertain
the true state, of the accounts, without resorting to a discovery from
the agent. Indeed, in cases of factorage and consignments, and
general receipts and disbursements of money by receivers and stewards,
it can scarcely be possible, if the relation has long subsisted, that very

(/) Knatohbull v. Hughes Hallett, 13 Ch. D. 696.

190 EQUITY JURISPRUDENCE. [CH. VIII.

intricate and perplexing accounts should not have arisen, where, inde-
pendently ofa discovery, the remedy of the principal would be utterly
nugatory, or grossly defective. It would be rare, that specific sales
and purchases, and the charges growing out of them, could be ascer-
tained and traced out with any reasonable certainty; and still more
rare, that every receipt and disbursement could be verified by direct
and positive evidence. Courts of equity in all such agencies require
that the agent should keep regular accounts of all his transactions, with
suitable vouchers (g). And it is obvious, that if he can suppress all
means of access to his books of account and vouchers, the principal
would be utterly without redress, except by the searching power of
discovery, and the close inspection of all books, under the authority
and guidance of a master in chambers. The legal obligation of an
agent to keep accounts may be displaced by the terms of his appoint-
ment, and this may be inferred from a course of dealing between the
principal and his agent (h). Besides, agents are not only responsible
for a due account of all the property of their principals, but also for all
profits which they have clandestinely obtained by any improper use of
that property (;). And the only adequate means of reaching such
profits must be by discovery. In cases of fraud, also, it is almost
impracticable to thread all the intricacies of its combinations, except
by searching the conscience of the party, and examining his books and
vouchers (fe). An agent could not maintain a suit in equity against his
principal for an account unless he made out a special case, and a
servant who was to be remunerated by a share of the profits stood in
the same situation (1).
§ 463. In agencies also of a single nature, such as a single consign-
ment, or the delivery of money to be laid out in the purchase of an
estate, or of a cargo of goods ; or to he paid over to a third person ;
although a suit at law may be often maintainable, yet, if the thing
lie in privity of contract and personal confidence, the aid of a court
of equity is often indispensable for the attainment of justice. Even
when not indispensable, it may often be exceedingly convenient and
effectual, and prevent a multiplicity of suits. The party in such cases
often has an election of remedy. This doctrine was expounded with
great clearness and force by Lord Chief Justice Willes, in delivering
the opinion of the court, in a celebrated case. Speaking of the pro-
priety of sometimes resorting to a suit at law, he said: " Though a
l)ill in equity may be proper in several of these cases, yet an action

(g) Pearce v. Green, 1 Jac. & Walk. 135; Clarke v. Tipping, 9 Beav. 284; Make-
peace v. Rogers, i De G. J. & S. 649. See Gookes v. Cookes, 9 Jur. N. S. 843.
(h) Tindall v. Powell, 4 Jur. N. S. 944. Cj. Lord Salisbury v. Wilkinson, cited
6 Vea. 48.
(i) Massey v. Davies, 2 Vea. Jun. 318.
(k) Earl of Hariwicke v. Vernon, 14 Ves. 510.
(I) Harrington v. Churchward, 29 L. J. Ch. 521; Smith v. Leveaux, 2 De G J &
&. 1.
§ 463—465.] ACCOUNT. 191

at law will lie likewise. As if I pay money to another, to lay out in

the purchase of a particular estate, or any other thing, I may either
bring a bill against him, considering him as a trustee, and praying that
hfi may lay out the money in that specific thing; or I may bring an
action against him, as for so much money had and received for my
use. Courts of equity always retain such bills, when they are brought
under the notion of a trust; and therefore, in this very case [a con-
signment toa factor for sale], they have often given relief, where the
party might have had his remedy at law, if he had thought proper to
proceed in that way " (m).
§ 464. Perhaps the doctrine here laid down, although generally
true, is a little too broadly stated. The true source of jurisdiction in
such cases, is not the mere notion of a virtual trust; for then equity
jurisdiction would cover every case of bailment. But it took its rise
from the necessity of reaching the facts by a discovery ; and having
jurisdiction for such a purpose, the court, to avoid multiplicity of suits,
then proceeded to administer the proper relief (n). And hence it is that
in the case of a single consignment to a factor for sale, a court of equity
would entertain the suit for relief, as well as discovery; there being
accounts and disbursements involved, which, generally speaking, could
not be so thoroughly investigated at law (o), although (as we have seen)
a court of equity was cautious of entertaining suits upon a single trans-
action, where there were not mutual accounts. Nay, so far had the
doctrine been carried, that even though the case might appear, as a
matter of account, to be perfectly remediable at law ; yet if the parties
had gone on to a hearing of the merits of the cause, without any
preliminary objection being taken to the jurisdiction of the court upon
this ground, the court would not then suffer it to prevail, but would
administer suitable relief.
§ 465. Cases of account between trustees and cestuis que trust may
properly be deemed confidential agencies, and are peculiarly within
the appropriate jurisdiction of courts of equity. The same general
rules apply here, as in other cases of agency. A trustee is never
permitted to make any profit to himself in any of the concerns of his
trust (p). On the other hand, he is not liable for any loss which occurs
in the discharge of his duties, unless he has been guilty of negligence,
malversation, or fraud, the burden being upon him to show matter of
justification in order to relieve himself from liability (q). The same
doctrine is applicable to cases of guardians and wards, and other

(m) Scott V. Surman, Willes 405.

(n) Ante, § 71 ; 3 Black. Coram. 437 ; Mackenzie v. Johnston, 4 Mad. 374 ; Pearce
V. Green, 1 Jac. & Walk. 135.
(o) Mackenzie v. Johnston, i Mad. 374; Barry v. Stevens, 31 Beav. 258.
(p) Fox V. Mackreth, 2 Bro. C. C. 400; 2 Cox 158, 320; 4 Bro. P. C. 258; Docker
V. Somes, 2 M. & K. 655.
(g) Jones v. Lewis, 2 Ves. Sen. 241; Job v. Job, 7 Ch. D. 562; Briggs v. Massey,
51 L. J. Ch. 447 ; In re Brogden ; Billing v. Brogden, 38 Ch. D. 546.
192 EQUITY JUEISPRUDENCE. [CH- VlII,

relations of a similar nature. Directors of private companies are not

allowed to make a clandestine profit out of their dealings with the
companies which they manage (r).
§ 466. Cases of account between partners, between part-owners of
ships, and between owners of ships and the masters, fall under the like
considerations. They all involve peculiar agencies like those of bailiffs,
or managers of property, and require the same operative power of
discovery, and the same interposition of equity (s). The learned author
compared the liability of a co-owner of property to account in equity (f)
or under the statute of 4 Anne, c. 16, to his co-owner for receiving more
than his share to that of a bailiff, but this view has been judicially
denied (u).
§ 467. In many cases of frauds by an agent a court of common law
cannot administer effectual remedies; as, for instance, it cannot give
damages against his estate for a loss arising from his tort-s, when such
torts die with the person ; and a fortiori, the rule will apply to courts of
equity, which did not, as the Chancery Division is bound to do by the
Judipature Act, 1873, entertain suits for damages. But, where the
tort arises, in the course of an agency, from a fraud of the agent, and
respects property, courts of equity did treat the loss sustained as a debt
against his estate (a;).
§ 468. Courts of equity adopt very enlarged views in regard to
the rights and duties of agents; and in all cases where the duty of
keeping regular accounts and vouchers is imposed upon them, they
will take care that the omission to do so shall not be used as a means
of escaping responsibility, or of obtaining undue recompense. If an
accountable party does not keep proper and regular accounts and retain
vouchers (where it is customary to give receipts) (y), the court may
make a penal order, fixing the accountable party with a sum arbitrarily
assessed (z) ; further than this he vs'ill not be allowed the compensation
vy^hich otherwise would belong to his agency (a). Upon similar grounds,
as an agent is bound to keep the property of his principal distinct from
his own, if he mixes it up with his own, the whole will be taken, both
at law and in equity, to be the property of the principal until the agent
puts the subject-matter under such circumstances that it may be

(r) Benson v. Heathorn, 1 Y. & C. Ch. 326; Tyrrell v. Bank of London, 10 H L.

C. 26.
(s) Green v. Briggs, 6 Hare, 395; Turquand v. Wilson, 1 Ch. D. 85.
(t) Denys v. Shuckburgh, i Y. & C. Ex. 42; Job v. Cordeaux, i W. R. 806; Job
V. Potton, L. E. 20 Bq. 84.
(u) Kennedy v. De Trafford, [1897] A. C. 180.
(x) Lord Hardwicke v. Vernon, 4 Ves. 418.
iy) Skipieorth v. Skipworth, 9 L. J. N. S. Ch. 182; Cookes v. Gookes, 9 Jur. N S.
843.
(z) Walmsley v. Walmsley, 3 Jo. & L. 556; Duke of Leeds v. Earl of Amherst
20 Beav. 239.

(a) WJnte[1903]
V. Ramsay, v. Lady Lincoln,
2 K. B. 635.8 "Ves. 363; Gray v. Haiq, 20 Beav. 219. Gf. Andrews
§ 464 — 470.] ACCOUNT — appoetionment. 193

distinguished as satisfactorily as it might have been before the

unauthorized mixture on his part (b). In other words, the agent is
put to the necessity of showing clearly what part of the property
belongs to him; and soi far as he is unable to do this, it is treated
as the property of his principal. Courts of equity do not in these
oases proceed upon the notion that strict justice is done between
the parties; but upon the ground that it is the only justice that can
be done; and that it would be inequitable to suffer the fra,ud or
negligence of the agent to prejudice the rights of his principal (c).
§ 469. Another head is that of Apportionment, Contribution,
and General Average, which are in some measure blended together,
and require and terminate in accounts. In most of these cases, a
discovery is indispensable for the purposes of justice ; and where
this does not occur, there were other distinct grounds for the exercise
of equity jurisdiction, in order to avoid circuity and multiplicity of
actions. Some cases of this nature spring from contract; others,
again, from a legal duty, independent of contract; and others, again,
from the principles of natural justice, confirming the known maxim
of the law, Qui sentit ccnnmoduvt, sentire debet et onus. The two
latter may, therefore, properly be classed among obligations resulting
quasi ex contractu (d). This will abundantly appear in the sequel of
these Commentaries.
§ 470. And first, as to Apportionment and Conteibution, which
may conveniently be treated together. Lord Coke has remarked
that the word apportionment " cometh of the word portio, quasi
partio, which signifieth a part of the whole, and apportion signifieth
a division of a rent, common, &o., or a making of it into parts " (e).
It is sometimes used to denote the distribution of a common fund, or
entire subject among all those who have a title to a portion of it (/).
Sometimes, indeed, in a more loose but an analogous sense, it is
used to denote the contribution, which is to be made by different
persons, having distinct rights, towsCrds the discharge of a common
burden or charge to be borne by all of them. In respect, then, to
apportionment in its application to contracts in general, it is the
known and familiar principle of the common law, that an entire
contract is not apportionable. The reason seems to be, that as the
contract is founded upon a consideration dependent upon the entire
performance of the act, and if from any cause it is not wholly per-
formed, the casus foederis does not arise, and the law will not make
provisions for exigencies which the parties have neglected to provide

(6) Lupton V. White, 15 Ves. 432; re Oatway ; Hertslet v. Oatway, [1903] 2 Ch.
356.
(c) Lupton V. White, 16 Ves. 432, 441.
id) Dering v. Ear), of Winchelsea, 1 Cox 318 ; s.c. 2 Bros. & Pul. 270.
(e) Co. Litt. 1476.
(/) Ex parte Smyth, 1 Swanst. 338, 339, the reporter's note.
E.J. 13
194 EQUITY JURISPRUDENCE. [CH. VIII.

for themselves. Under such circumstances, it is deemed wholly

immaterial to the rights of the other party, whether the non-
performance has arisen from the design or negligence of the party
bound to perform it, or to inevitable casualty or accident (g). In each
case the contract has not been completely executed. The same rule
is applied to cases where the payment is to be made under a contract
upon the occurrence of a certain event or upon certain conditions.
In the application of this doctrine of the common law, courts of
equity have generally, but not universally, adopted the maxim,
Mquitas sequitur legem (h). Whether rightly or wrongly, it is now
too late to inquire, although, as a new question, there is much
doubt, whether in so adopting the maxim they have not in many
eases deserted the principles of natural justice and equity, as well
as the analogies by which they were governed in other instances,
in which they have granted relief. We have already had occasion
to cite cases in which this rigid doctrine as to non-apportionment
has been applied (i). There are, however, some exceptions to the rule
both at law and in equity, which we shall presently have occasion
to consider, and some in which courts of equity have granted relief,
where it would at least be denied at law (fc).
§ 471. At the common law, the cases were few in which an
apportionment under contract was allowed, and general doctrine being
against it, unless specially stipulated by the parties. Thus, for
instance, where a person was appointed collector of rents for another,
and was to receive £100 per annum for his services; and he died
at the end of three-quarters of the year, while in the service ; it was
held, that his executor could not recover £75 for the three-quarters'
service, upon the ground that the contract was entire, and there
could be no apportionment; for the maxim of the law is. Annua nee
debitum judex non separat ipsum (I). So, where the mate of a ship
engaged for a voyage at thirty guineas for the voyage, and died
during the voyage, it was held, that at law there could be no appor-
tionment of the wages (m).
§ 472. Courts of equity, to a considerable extent, act upon this
maxirn of the common law in regard to contracts. The Court of
Chancery, upon some supposed equity, allowed a claim in special
cases, for the return of an apportioned part of an apprenticeship

(g) Paradine v. Jane, Aleyn 26, 27; Story on Bailments, § 36; Ex parte Smyth,
1 Swanst. 338, 339, the reporter's note, and cases cited.
(h) Post, § 483.
(i) Ante, §§ 101 to 104.
(ft) Post, §§ 472, 479.
(!) Co. Litt. 150o,- Countess of Plymouth v. ThrogmoHon, 1 Salk. 65, 3 Mod. 153.
(m) Cutter v. Powell, 6 T. E. 320. See now Merchant Shipping Act, 1894,
ss. 156, 157, and Button v. Thompson, L. E. 4 C. P. 330.
in) Hirst v. Tolson, 2 Mac. & G. 34; Webb v. England, 29 Beav. 44. See ante,
§ 89.
§ 471 — 475.] ACCOUNT — apportionment. • 195

premium (n). Even a court of common law was beguiled into

committing the same error where the master was a solicitor, and
deciding " according to law and conscience, and not by any technical
rules " in the exercise of an assumed jurisdiction over solicitors as
officers of the court (o). In modem times a general or particular
jurisdiction to disregard the law of contract has been disclaimed (p).
" Courts of equity do not rectify contracts," said James, V.-C. (pp).
The proper course is to make a return of the premium the subject-
matter of express stipulation (q). An apportioned part of a premium
paid upon entering into a partnership may be recovered under section
40 of the Partnership Act, 1890 (53 & 54 Viot. c. 39), which
embodies the earlier law (r), and is in these terms: "Where one
partner has paid a premium to another on entering into a partnership
for a fixed term, and the partnership is dissolved before the expiration
of that term otherwise than by the death of a partner, the court
may order the repayment of the premium, or of such part thereof
as it thinks just, having regard to the terms of the partnership
contract and to the length of time during which the partnership
has continued ; unless (a) the dissolution is wholly or chiefly due
to the misconduct of the partner who' paid the premium, or (b) the
partnership has been dissolved by an agreement containing no provision
for a return of any part of the premium." In the case of a partner-
ship, the amount to be returned is ascertained as a simple proportion
sum (s). This could never be justified if the rule applied to an
apprenticeship, for the value of the services of an apprentice increases
progressively.
§ 475. In regard to rents, the general rule at the common law
leaned strongly against any apportionment thereof. Hence it was
well established, that, in case of the death of a tenant for life, in the
interval between two periods, at each of which a portion of rent
becomes due from the lessee, no rent could be recovered for the
occupation since the first of these periods (t). The rule seems to have
been rested on two propositions : 1st, That the entire contract cannot
be apportioned. 2nd, That under a lease with a periodical reservation
of rent, the contract for the payment of each portion is distinct and
entire. Hence it followed, that, on the determination of a lease by
the death of the lessor before the day appointed for the payment of

(o) Ex parte Bayley, 9 B. & C. 691.

(p) Whincup V. Hughes, L. B. 6 C. P. 78; Craven v. Stubbing, 34 L. J. Ch. 126;
Ferns v. Carr, 28 Ch. D. 409.
(pp) Mackenzie v. Coulson, L. E. 8 Eq. 375.
(q) Derby v. Humber, L. E. 2 C. P. 247.
(r) Lee v. Page, 30 L. J. Ch. 857; Atwood v. Maude, L. E. 3 Ch. 369; Lyon v.
Tweddell, 17 Ch. D. 529; Edmunds v. Robinson, 29 Ch. D. 170; Yates v. Cousins,
60 L. T. 535 ; Belfield v. Bourne, [1894] 1 Ch. 521.
(s) Pease v. Hewitt, 31 Beav. 22; Wilson v. Johnstone, L. E. 16 Bq. 606.
(t) Clun's Case, 10 Co. 127 ; Ex .parte Smyth, 1 Swanst. 338, and note.
196 ■ EQUITY JURISPRUDENCE. [CH. VIII.

the rent, the event, on the conapletion of which the payment was
stipulated, namely, occupation of the lands during the period stipu-
lated, never occurring, no rent became payable, and in respect of
time, apportionment was not in any case permitted.
§ 475a. There is a rule of administration, known as the rule in
Howe V. Lord Dartmouth {v.), which is discussed hereafter (x), and
which entitles a remainderman of settled residuary estate (y) to
require wasting property to be converted and invested in permanent
securities. The tenant for life enjoys a correlative right where
reversionary property falls into possession subsequently to the death
of the testator to claim an apportioned part of the fund on the
footing that it represents income (z). And where the testator's
residuary estate consists of a debt which, owing to the insolvency
of the debtor, is not received until after the testator's death, the
tenant for life is entitled to an apportioned part of the sum received
on the footing that it is interest (a).
§ 476. The common law rule as to apportionment was entirely
done away with by the Apportionment Act, 1870 (33 & 34 Vict. c. 35),
which embodies and extends earlier enactments (b) to the same
effect and provides, s. 2: "From and after the passing of this Act,
all rents, annuities, dividends, and other periodical payments in the
nature of income (whether reserved, or made payable under any
instrument in writing or otherwise), shall, like interest on money
lent, be considered as accruing from day to day, and shall be apportion-
able in respect of time accordingly." S. 3: " The apportioned part
of any such rent, annuity, dividend, or other payment, shall be
payable or recoverable in the case of a continuing rent, annuity,
or other such payment, when the entire portion of which such
apportioned part shall form part shall become due and payable, and
not before ; and in the case of a rent, annuity, or other such payment
determined by re-entry, death, or otherwise, when the next entire
portion of the same would have been payable if the same had not
so determined, and not before." S. 4: "All persons and their
respective, heirs, executors, administrators, and assigns, and also the
executors, administrators, and assigns respectively of persons whose
interests determine with their own deaths, shall have such or the
same remedies at law and in equity for recovering such, apportioned
parts as aforesaid when payable (allowing proportionate parts of all
just allowances), as they respectively would have had for recovering
such entire portions as aforesaid if entitled thereto respectively;
(u) 6 Ves. 96.
(x) § 1269.
(y) Bethune v. Kennedy, 1 M. & Cr. 114; In re Van Stranbenzee ; Boustead v.
Cooper, [1901] 2 Oh. 779.
(z) In re Earl of Chesterfield's Trusts, 24 Ch. D. 643.
(a) Turner v. Newport, 2 Ph. 14.
(b) 11 Geo. 2, c. 19, s. 15 ; 4 & 5 Will. 4, c. 22.
§ 475a — 478.] account — apportionment. 197

provided that persons liable to pay rents reserved out of or charged

on lands or other hereditaments of any tenure, and the same lands
or other hereditaments shall not be resorted to for any such apportioned
part forming part of an entire or continuing rent as aforesaid
specifically ; but the entire or continuing rent, including such
apportioned part, shall be recovered and received by the heir or
other person who, if the rent had not been apportionable under this
Act, or otherwise, would have been entitled to such entire or con-
tinuing rent, such apportioned part shall be recoverable from such
heir or other person by the executors, or other parties entitled under
this Act to the same, by action at law, or suit in equity." By s. 7,
the provisions of the Act are not to extend to any case in which
it is or shall expressly be stipulated that no apportionment shall take
place .(c).
§ 477. On the other hand, cases may easily be stated where
apportionment of a common charge, or, more properly speaking,
where contribution towards a common charge, seems indispensable
for the purposes of justice, and accordingly has been declared by the
common law in the nature of an apportionment towards the discharge
of a common burden. Thus, if a man, owning several acres of land,
was bound in a judgment or statute or recognizance operating as a
lien on the land, and afterwards he aliened one acre to A., another to
B., and another to C, &c. ; there, if one alienee, was compelled, in
order to save his land, to pay the judgment, statute, or recognizance,
he was entitled at the common law to contribution from the other
alienees (d). The same principle was applied in the^ike case, where
the land descended to parceners who made partition ;• and then, one
was compelled to pay the whole charge ; contribution would lie against
the other parceners. The same doctrine was also applied to co-
feoffees of the land, or of different parts of the land. In all these
cases (and others might be mentioned), a writ of contribution would
lie at the common law, or in virtue of the statute of Marlbridge (e).
§ 478. But there were many difficulties in proceeding in cases
where an apportionment or contribution was allowed at the common
law ; for, where the parties were numerous, as each was Uable to con-
tribute only for his own portion, separate actions and verdicts were
necessary against each. And thus a multiplicity of suits might
take place, and no judgment in one suit was conclusive in regard to
the amount of contribution in a suit against another person. The
like difficulty might arise in cases where an apportionment was to be

(c) The Apportionment Act does not apply to payments under order of court :
Jodrell V. Jodrell, L. E. 7 Eq. 461; nor to parish rates : In re Wearmouth Crown
Glass Company, 19 Ch. D. 640. See also Barker v. Perowne, 18 Ch. D. 180.
(d) HarbeH's Case, 3 Co. 12, 13.
(e) See Harbert's Case, 3 Co. lib ; Bering v. Earl of Winchelsea, 1 Cox 321 ; s.c.
2 Bos. & Pul. 270; Co. Litt. 165 a; Pitzherbert, Nat. Brev. 16.
198 EQUITY JURISPRUDENCE. [CH. VIII.

made under a contract for the payment of money or rent, where the
parties were numerous and the circumstances complicated. Whereat^.
in equity, all parties could at once be brought before the court in a
single suit; and the decree apportioning the rent was thus con-
clusive upon all the parties in interest (/).
§ 479. But the ground of equity jurisdiction, in cases of appor-
tionment of rent and other charges and claims, did not arise solely
from the defective nature of the remedy at common law, where such
a remedy existed. It extended to a great variety of cases where no
remedy at all existed in law, and yet where, ex sequo et bono, the party
was entitled to relief (g). Thus, for instance, where a plaintiff was
lessee of divers lands upon which an entire rent was reserved, and
afterwards the inhabitants of the town, where part of the lands lay,
claimed a right of common in part of the lands so let, and, upon a
trial, succeeded in establishing their right; in this case there could
be no apportionment of the rent at law, because, although a right of
common was recovered, there was no eviction of the land. But it was
not doubted that in equity a bill was maintainable for an apportion-
ment, ifa suitable case for relief were made out (h). So where, by an
ancient composition, a rent was payable in lieu of tithes, and the lands
came into the seisin and possession of divers grantees, the composition
would be apportioned among them in equity, though there might be no
redress at law (i). So, where money is to be laid out in land, if the
party who is entitled to the land in fee, when purchased, dies before
it is purchased, the money being in the meantime secured on a
mortgage, and the interest made payable half-yearly, the interest will
be apportioned .in equity between the heir and the administrator of
the party so entitled, if he dies before the half-yearly payment is
due (fc). So, where portions are payable to daughters at eighteen or
marriage, and, until the portions are due, maintenance is to be allowed,
payable half-yearly at specific times, if one of the daughters should
come of age in an intermediate period, the maintenance will be
apportioned in equity (l).
§ 483. But a far more important and beneficial exercise of equity
jurisdiction, in cases of apportionment and contribution, is, when
incumbrances, fines, and other charges on real estate are required to
be paid off, or are actually paid ofP, by some of the parties in
interest (m). This subject has already come incidentally under our

(/) Post, § 483 to 488. (g) Ante, § 472.

(/i) Com. Dig. Chancery, 2 E., 4 N. 9; Jew v. Thirkenell, 1 Ch. Cas. 31; b.c. 3
Ch. Eep. 11.
(i) Com. Dig. Chancery, 4 N. 6, cites Saville, 5. See Ayvsley v. Woodsworth,
2 Vea. & B. 331.
(k) Edwards v. Countess of Warwick, 2 P. Will. 176.
(!) Hay v. Palmer, 2 P. Will. 501. See also now, as to these, the Apportionment
Act, 1870, supra.
(m) Averall v. Wade, LI. & G. 252.
 § 479 — 485.] ACCOUNT — contribution — charges. 199

notice (n), but it requires a more ample examination in this place.

In most cases of this sort there is no remedy at law, from the extreme
uncertainty of ascertaining the relative proportions which difEerent
persons, having interests of a very different nature, quality, and
duration in the subject-matter, ought to pay. And when there is a
remedy, it is inconvenient and imperfect, because it involves
multiplicity of suits, and opens the whole matter for contestation
anew in every successive litigation (o).
§ 484. The subject may be illustrated by one of the most common
cases, that of an apportionment and contribution towards a mortgage
upon an estate where the interest is required to be kept down or the
incumbrance to be paid. Let us suppose a case where different parcels
of land or other property are included in the same mortgage, and these
different parcels or properties are aiterwards aliened to different
purchasers or donees, each holding in fee and severalty the parcel
sold or conveyed to himself. In such a case each purchaser or-
donee is bound to contribute to the discharge of the common burden
or charge in proportion to the value which his parcel bears to the
whole included in the mortgage (p). But to ascertain the relative
values of each is a matter of great nicety and difficulty; and unless
all the different purchasers could be joined in a single suit, as before
the Judicature Act, 1873, they could be in equity, although not at law,
the most serious embarrassments might arise in fixing the proportion
of each purchaser, and in making it conclusive upon all others.
§ 485. So, if there are different persons having different interests
in an estate under mortgage, as, for instance, parceners, tenants for
life or in tail, remaindermen, tenants in dower or for a term of years,
or for other limited interests, it is obvious that the question of appor-
tionment and contribution in redeeming the mortgage, as well as in
payment of interest, may involve the most important and intricate
inquiries ; and, to do entire justice, it may be indispensable that all
the parties in interest should actually be brought before the court.
Now, in a suit at the common law, this was absolutely impossible;
for no persons could be made parties except those whose interest was
joint and of the same nature and character, and was immediate and
vested in possession. So that resort to a court of equity, where all
these interests can be brought before the court and definitely ascer-
tained and disposed of, is indispensable. If to this we add that, in
most cases of mortgage, an account of what has been paid upon the
mortgage, either by direct payments or by perception of the rents and
profits of the estate, is necessary to be taken, we shall at once see
that the machinery of a court of common law was very ill adapted to

in) Ante, § 477.

(o) Ante, § 477, 478.
(p) Aldrich v. Cooper, 8 Ves. 382; Johnson v. Child, 4 Hare, 87; In re Athill;
Athill V. Athill, 16 Ch. D. 211 ; In re Jones, Farrington v. Forrester, [1893] 2 Ch. 461.
200 EQUITY JURISPRUDENCE. [CH. VIII.

any such purpose. But if we add, further, to all this, that there may
be mesne incumbrances (5) and other cross equities between some of
the parties, all of which are required to be adjusted in order to arrive at
a just result, aJid to attain the fuU end of the law by closing up all
future litigation, we shall not fail to be convinced that the only
appropriate, adequate, and effectual remedy must be administered in
equity. Indeed, from its very nature, as we shall have occasion to
see fully hereafter, the jurisdiction over mortgages belongs peculiarly
and exclusively to courts of equity.
§ 486. Very delicate, and often very intricate, questions arise in
the adjustment of the rights and duties of the different parties in
interest in the inheritance. In the first place, in regard to the paying
off of incumbrances. Where a tenant in fee simple pays off an
incumbrance the presumption is that there is a merger, and a transfer
to a trustee for his benefit is not conclusive evidence that he desired
to keep it alive (r). If a tenant in tail in possession pays off an
incumbrance, it wiU ordinarily be treated as extinguished ; and the
remainderman cannot be called upon for contribution unless the tenant
in tail has kept alive the incumbrance, or preserved the benefit of it
to himself by some suitable assignment, or has done some other act
or thing which imports a positive intention to hold himself out as a
creditor of the estate in lieu of the mortgage. The reason for this
doctrine is, that a tenant in tail can, if he pleases, become the absolute
owner of the estate; and, therefore, his discharge of incumbrances
is treated as made in the character of owner, unless he clearly shows
that he intends to discharge them and become a creditor thereby (s).
But the like doctrine does not apply to a tenant in tail in remainder,
whose estate may be altogether defeated by the birth of issue of
another person ; for it must be inferred that such a tenant in tail,
in paying off an incumbrance without an assignment, means to keep
the charge alive (t). A fortiori, the doctrine will not apply to the
case of a tenant in tail who is restrained by statute from barring
his estate tail or to the case of a tenant for life paying off an in-
cumbrancfor,
e; if he should pay it off without taking an assignment,
he would be deemed to be a creditor to the amount paid, upon the
ground that there can be no presumption that, with his limited interest,
he could intend to exonerate the estate (u). He cannot be presumed,
prima facie, to discharge the estate from the debt, for that would be
to discharge the estate of another person fmm the debt. But, in both

(q) Barnes v. Racster, 1 Y. & C. Ch. 401 ; Flint v. Howard, [1893] 2 Ch. 54.
(r) Hood V. Phillips, 3 Beav. 513.
(s) Kirkham v. Smith, 1 Ves. Sen. 258; Jones v. Morgan, 1 Bro. Ch. C. 206.
(t) Wigsell v. Wigsell, 2 Sim. & Stu. 364; Horton v. Smith, S K. & J. 624.
(«) Countess of Shrewsbury v. Earl of Shrewsbury , 1 Ves. Jun. 227; Faulkner v.
Daniel, 3 Hare, 217 ; In re Harvey; Harvey v. Hobday, 1896, 1 Ch. 137.
§ 486 — 488.] ACCOUNT — contribution — charges. 201

cases, the presumption may be rebutted by circumstances which

demonstrate a contrary intention.
§ 487. In respect to the discharge of incumbrances, it was for-
merly a rule in equity, that the tenant for life and the reversioner, or
remainderman, were bound to contribute towards the payment of
incumbrances, in a positive proportion, fixed by the court; so that
they paid a gross sum, in proportion to their interests in the estate.
The usual proportion was, for the tenant for life to pay one-third,
and the remainderman or reversioner to pay two-thirds of the charge.
A similar rule was applied to cases of fines paid upon the renewal
of leases. But the rule is now, in both cases, entirely exploded;
and a far more reasonable rule is adopted. It is this : that the
tenant shall contribute beyond the interest, in proportion to the
benefit he derives from the liquidation of the debt, and the con-
sequent cessation of annual payments of interest during his life
(which of course will depend much upon his age and the computation
of the value of his life) ; and it will be referred to a master, to
ascertain and report what proportion of the capital sum due the
tenant for life ought, upon this basis, to pay, and what ought to be
borne by the remainderman or reversioner {x). If the estate is sold
to discharge incumbrances (as the incumbrancer may insist that it
shall be), in such a case, the surplus, beyond what is necessary to
discharge the incumbrances, is to be applied as follows : the income
thereof is to go to the tenant for life, during his life ; and then
the whole capital is to be paid over to the remainderman or rever-
sioner (j/).
§ 488. In regard to the interest due upon mortgages and other
incumbrances, the question often arises by whom and in what
manner it is to be paid. And here the general rule is, that a tenant
for life as between himself and the remainderman is bound to keep
down and pay the interest, although he is under no obligation to pay
ofi the principal {z). But a tenant in tail is not bound to keep down
the interest; and if he does, his personal representative has no right to
be allowed the sums so paid, as a charge on the estate (a). The reason
of this distinction is, that a tenant in tail, discharging the interest, is
supposed to do it, as owner, for the benefit of the estate. He is not
compellable to pay the interest; because he has the power, at any
time, to make himself absolute owner against the remainderman and

{x) White V. White, 5 Ves. 24, 9 Ves. 554; Allan v. Backhouse, 2 Ves. & B. 65.
(J/) Waring v. Coventry, 2 M. & K. 406; Wrixon v. Vize, 2 Dm. & War. 192;
Makings v. Makings, 1 De G. P. & J. 470. See Redington v. Redington, 1 Ball & B.
131.
(z) Penrhyn v. Hughes, 5 Ves. 107 ; White v. White, 4 Ves. 33; Lloyd y. Johnes,
9 Ves. 37. Many cases may occur of far more complicated adjustments than are here
stated; but in a treatise like the present, little more than the general rules can b?,
indicated.
(o) Amesbury v. Brown, 1 Ves. Sen. 480, 481.
202 EQUITY JURISPRUDENCE. [CH. VIII.

reversioner. The latter have no equity to compel him, in their favour,

to keep down the interest, inasmuch, as if they take anything, it is
solely by his forbearance, and, of course, they must take it cum
onere (b).
§ 489. These remarks may suffice to -show (for it is not our purpose
to bring the minute distinctions upon these important subjects under
a full review (c) ) the beneficial operations of courts of equity, in appor-
tionments and contributions, upon this confessedly intricate subject;
and, also, how utterly inadequate a court of common law would be
to do complete justice, in a vast variety of cases, which may easily be
suggested. Without some proceedings, in the nature of an account
before a master, there would be no suitable elements, upon which
any court of justice could dispose of the merits of such cases, so as to
suppress future litigation, or to administer to the conflicting rights of
different parties.
§ 490. Another class of cases, which still more fully illustrates the
importance and value of this branch of equity jurisdiction, is that of
General Average, a subject of daily occurrence in maritime and
commercial operations. General average, in the sense of the maritime
law, means a general contribution, that is to be made by all parties
in interests, towards a loss or expense, which is voluntarily sustained
or incurred for the benefit of all (d). The principle upon which this
contribution is founded, is not the result of contract, but has its
origin in the plain dictates of natural law (e). It has been more
immediately derived to us from the positive declarations of the Roman
law, which borrowed it from the more ancient text of the Rhodian
jurisprudence. Thus, the Rhodian law, in cases of jettison, declared,
that, " If goods are thrown overboard in order to lighten a ship, the
loss, incurred for the sake of all, shall be made good by the contribu-
tion of all. ' Lege Rhodia ' (says the Digest), ' cavetur, ut si levandse
navis gratia jactus mercium factus est, omnium contributione sar-
ciatur, quod pro omnibus datum est ' " (/). But the principle is by no
means confined to cases of jettison; but it is applied to all other
sacrifices of property, sums paid, and expenses voluntarily incurred in
the course of maritime voyages for the common benefit of all persons

(b) There is an exception to the general rule, that a tenant in tail is not bound
to keep down the interest, which confirms, rather than impugns, the general rule. I£
the tenant in tail is an infant, his guardian or trustee will, in that case, be required to
keep down the interest. The reason is, that the infant, of his own free will, cannot
bar the remainder, and make himself absolute owner. Sergeson v. Sealey, 2 Atk.
416, and Mr. Saunders's note (1) ; Surges v. Mawbey, T. & R. 167.
(c) See 1 Bridgeman's Digest, Average and Contribution, III.; 1 Chitty, Eq. Dig.
Apportionment.
id) Abbott, Shipping, Pt. 3, ch. 8, § 1, p. 342; Moore, 297 ; Vin. Abr. Contribution
and Average, A. pi. 1, 2, 26.
(e) Bering v. Earl of Winchelsea, 1 Cox 318, 323; s.c. 2 Bos. & Pul. 270, 274;
Stirling v. Forrester, 3 Bligh 590, 596.
(/) Dig. Lib. 14, tit. 2, f. 1.
§ 489 491,] ACCOUNT — contribution — AVERAGE. 203

concerned in the adventure. The principle has, indeed, been confined

to a sacrifice of property, and the contribution confined to the pro
pert.y saved thereby, although it certainly might have gone farther,
and have required a corresponding apportionment of the loss or
sacrifice of property upon all persons, whose lives have been preserved
thereby, upon the same common sense of danger, and purchase of
safety, alluded to by Juvenal, when, in a similar case, his friend
desired his life to be saved by a sacrifice of his property : Fundite,
quae mea sunt etium puVcherrima.

§ 491. General average being, then, as has been already stated,

not confined to cases of jettison, but extending to other losses and
expenditures for the common benefit, it may readily be perceived
how difficult it would be for a court of law to apportion and adjust
the amount, which is to be paid by each distinct interest, which is
involved in the common calamity and expenditure. Take, for instance,
the common case of a general ship or packet, trading between Liver-
pool and New York, and having on board various shipments of goods,
not unfrequently exceeding a hundred in number, consigned to
different persons, as owners or consignees; and suppose a case of
general average to arise during the voyage, and the loss or expenditure
to be apportioned among all these various shippers according to their
respective interests, and the amount which the whole cargo is to
contribute to the reimbursement thereof. By the general rule of the
maritime law, in all cases of general average, the ship, the freight for
the voyage, and the cargo on board, are to contribute to such re-
imbursement, according to their relative values. The first step in
the process of general average, is to ascertain the amount of the loss
for which contribution is to be made, as, for instance, in the case
of jettison, the value of the property thrown overboard, or sacrificed
for the common preservation. The value is generally indefinite and
unascertained, and, from its very nature, rarely admits of an exact
and fixed computation. The same remark applies to the case of
ascertainment of the value of the contributory interest, the ship, the
freight, and the cargo. These are generally differently estimated by
different persons, and rarely admit of a positive and indisputable
estimation in price or value. Now, as the owners of the ship, and
the freight, and the cargo, may be, and generally are, in the supposed
case, different persons, having a separate interest, and often an adverse
interest to each other, it is obvious, that unless all the persons in
interest can be made parties in one common • suit, so as to have the
whole adjustment rriade at once, and made binding upon all of them,
infinite embarrassments must arise, in ascertaining and apportioning
the general average. In a proceeding at the common law, every party,
having a sole and distinct interest, had formerly to be separately
204 EQUITY JURISPRUDENCE. [CH. VIII.

sued (g); and as the verdict and judgment in one case was not only
not conclusive, but not even admissible evidence in another suit, as it
was res inter alios acta,; and as the amount to be recovered in each
case depended upon the value of all the interests to be affected, which,
of course, might be differently estimated by different juries, it is
manifest that the grossest injilstice, or the most oppressive litigation,
might taJse place in all cases of general average on board of general
ships. A court of equity, having authority to bring all the parties
before it, and to refer the whole matter to a master, to take an
account, and to adjust the whole apportionment at once, afforded a
safe, convenient and expeditious remedy. And it was accordingly a
mode of remedy in all cases, where a controversy arose, and a court
of equity existed in the place, capable of administering the remedy (K).
But claims for general average were usually determined in common
law courts. The court of. Admiralty had no jurisdiction to entertain
.an active claim for general average (?'), but the Admiralty Division,
as a branch of the High Court, has acquired full jurisdiction in the
matter (fe), and one which is frequently exercised.
§ 492. Another class of cases, to illustrate the beneficial effects of
■equity jurisdiction over matters of account, is that of Contribution
BETWEEN Sureties, who are bound for the same principal, and upon
his default, one of them is compelled to pay the money, or to perform
any other obligation, for which they all became bound. In cases of
-this sort, the surety who has paid more than his proper proportion,
is entitled to receive contribution from all the others, for what he has
■done in relieving them from a common burden {I). The common
law courts also allowed a surety who had paid more than his aliquot
■share to recover from a co-surety the amount of the excess (m), but
the aliquot share of liability was fixed at the csommon law by
reference to the number of sureties originally bound, and if one
of the sureties became insolvent, a surety singled out by the creditor
■as a defendant might find his liability exceed his contemplated
proportion (n). The equitable rule, which is that now prevailing,
ascertained the proportionate liability by reference to the solvent
sureties (o). Eegard must, however, be had to the contract of the
parties. Parties who have become bound by separate instrument
and at separate dates, may nevertheless be co-sureties (p); on the

(g) Abbott, Shipping, Pt. 3, ch. 8, § 17.

{h) Ibid. ; Shepherd v. Wright, Show. Pari. Cas. 18 ; Hallett v. Bousefleld, 18
■Vea. 190, 191.
(i) See Cargo ex Galam, 2 Moo. P. C. N. S. 216.
(k) The Oquendo, 38 L. T. 151.
(l) Derivg v. Earl of Winchelsea, 1 Cox, 318.
(■m) Kemp v. Einden, 12 M. & "W. 421.
in) Browne v. Lee, 6 B. & G. 689.
(o) Hitchman v. Stewart, 3 Drew. 271; Dallas v. Walls, 29 L. T. 599.
<p) Dering v. Earl of Winchelsea, 1 Cox, 318; Whiting v. Burke, L. E. 6 Ch. 342.
§ 492 — 494.] ACCOUNT — contribution — sureties. 205

other hand, each surety may be liable only for a distinct portion
of the debt (5). Where the obligation is based upon proportional
liability, each surety must be bound as a condition precedent to the
liability of any other (r).

§ 493. The cla,im certainly has its foundation in the clearest

principles of natural justice; for, as all are equally bound and are
equally relieved, it seems but just that in such a case all should
contribute in proportion towards a benefit obtained by all, upon the
maxim, Qui sentit commodum, sentire debet et onus. And the
doctrine has an equal foundation in morals ; since no one ought to profit
by another man's loss where he himself has incurred a like respon-
sibility. Any other rule would put it in the power of the creditor to
select his own victim ; and, upon motives of mere caprice or favouritism,
to make a common burden a most gross personal oppression. It
would be against equity for the creditor to exact or receive payment
from - one, and to permit, or by his conduct to cause, the other
debtors to be exempt from payment. And the creditor is always
bound in conscience, although he is seldom bound by contract, as far
as he is able, to put the party paying the debt upon the same footing
with those who are equally bound. It can be no matter of surprise,
therefore, to find, that courts of equity, at a very early period, adopted
and acted upon this salutary doctrine, as equally well founded in
equity and morality. The ground of relief does not, therefore, stand
upon any notion of mutual contract, express or implied, between the
sureties to indemnify each other in proportion (as has sometimes
been argued); but it arises from principles of equity, independent
of contract (s).

§ 494. In the Roman law analogous principles existed, although,

from the different arrangements of that system, they were developed
under very different modifications. By that law, sureties were liable,
indeed, for the whole debt due to the creditor, but this liability
was subject to three modifications. In the first place, the creditor was
generally bound to proceed by process of discussion (as it is now
called), in the first instance against the principal debtor, to obtain
satisfaction out of his effect-s, before he could resort to the sureties.
In the next place, in a suit against one surety, although each surety
was bound for the whole debt after the discussion of the principal
debtor; yet the surety in such suit had a right to have the debt
apportioned among all the solvent sureties on the same obligation,
so that he should be compellable to pay his own share only; and

(q) Coojie V. Twynam, T. & E. 426; Bolton v. Cooke, 3 L. J. 0. S. Ch. 87;;

Pendlebury v. Walker, 4 Y. & C. Ex. 424.
(r) Ellesmere Brewery Co. v. Cooper, [1896] 1 Q. B. 75.
(s) Bering v. Earl of Winchelsea, 1 Cox 318.
206 EQUITY JURISPRUDENCE. [CH. VIII

this was called the benefit of division (<). But if a surety should pay
the whole debt, without insisting upon the benefit of division, then
he had no right to recourse over against his co-sureties, unless (which
is the third case), upon the payment, he procured himself to be
substituted to the original debt (which he might insist on) by a
cession thereof from the creditor; in which case he might insist upon
a payment of a proper proportion from each of his co-sureties (m).
And, in case of the insolvency of either of the sureties, the share
of the insolvent was to be apportioned upon all the solvent sureties,
■pro raid (x). The same principles in a great measure, but not in all
cases, now regulate the same subject among the continental nations
of Europe whose jurisprudence is derived from the civil law (y).

(t) 1 Domat, B. 3, tit. 4, § 2, art. 1, 6; Pothier on Oblig. by Evans, n. 407;

Pothier, Pand. Lib. 46, tit. 1, § 5, art. 1, nn. 41 to 45; ibid. art. 3, nn. 51 to 61.
(u) 1 Domat, B. 3, tit. 4, § 4, art. 1; Pothier on Oblig. by Evans, nn. 407, 519,
520, 521 (556, 567, 558, of the French editions); Pothier, Pand. Lib. 56, tit. 1, art. 2,
nn. 45 to 51.
(x) 1 Domat, B. 3, tit. 4, art. 2; Pothier on Oblig. by Evans, nn. 407, 415, 418,
419, 420, 421, 445, 518, 519, 520, 521 (555 to 569 of French editions) ; ibid. 282 ; Pothier,
Pand. Lib. 46, tit. 1, art. 2, nn. 46 to 51; Dig. Lib. 46, tit. 1, f. 26; Cod. Lib. 8,
tit. 1, f. 26 ; Cod. Lib. 8, tit. 14, f. 2. See also 1 Bell, Comm. B. 3, Pt. 1, ch. 3, § 3,
arts. 283 to 286; Ersk. Inst. B. 3, tit. 3, arts. 61 to 74; 1 Domat, B. 3, tit. 1, § 3,
art. 6, and Domat's note; post, § 636.
(y) Merlin, B6pert. art. Disctission ; id. Division; Pothier on Oblig. by Evans, Pt.
2, ch. 6, art. 2, nn. 407, 415, 416; id. Pt. 2, ch. 3, art. 8, n. 280; id. Pt. 3, ch. 1, art. 6,
§ 2, nn. 619 to 524 (556 to 559 of the French editions) ; 1 Domat, B. 3, tit. 1, § 3,
art. 6, and Domat's note, ibid. ; Cod. Lib. 8, tit. 14, f. 2. The same principle, ."n
regard to the necessity of the creditors discussing the principal debtor before resorting
to the surety, has been adopted in most countries deriving their jurisprudence from the
civil law ; but it is not universally adopted. It prevails in France, Holland, and
Scotland; but not (as it seems) generally in Germany. See Mr. Chancellor Kent's
learned opinion in Hayes v. Ward, 4 Johns, Ch. 130 to 136, where he cites the foreign
authorities on this point. These authorities fully justify his statement. The following
extract from that opinion may be acceptable :— " According to the Roman law, in use
before the time of Justinian, the creditor, as with us, could apply to the surety, before
applying to the principal. Jure nostro est potestas creditor!, relicto reo, eligendi fide-
jusBores (Cod. Lib. 8, tit. 41, § 6) ; and the same law was declared in another imperial
ordinance (Cod. Lib. 8, tit. 41, § 19). But Justinian, in one of his ^^ovels (Nov. ch. 1,
entitled tit Creditores primo loco conveniant Principalem) , allowed to sureties the
exception of discussion, or beneficium ordinis, by which they could require that, before
they were sued, the principal debtor should, at their expense, be prosecuted to judgment
and execution. It is a dilatory exception, and puts off the action of the creditor against
the surety, until the remedy against the principal debtor has been sufficiently ex-
hausted. This provision in the Novels has not been followed in the states and cities of
Germany, except in Pomerania (Heinecc. Elem. Jur. Germ. Lib. 2, tit. 146, § 449,
460, 451, 465) ; but it has been adopted in those other countries in Europe, as France,
Holland, Scotland, &c., which follow the rules of the civil law (Pothier, Traits des
Oblig. No. 407 to 414; Code Napol&n, No. 2021 to 2023; Voet, Com. ad Pand. tit.
De Fidejussoribus, 46, 1, 14 to 20; Hub. Prselec. Lib. 3, tit. 21, § 6; Ersk. Inst. 504,
§ 61). A rule of such general adoption shows that there is nothing in it inconsistent
with the relative rights and duties of principal and surety, and that it accords with a
common sense of justice, and the natural equity of mankind." It may be well here to
state that I generally cite Pothier on Obligations from Mr. Evans's edition. It is
important to remark that after n. 456, in Evans's edition, the subsequent numbers
differ from the common French editions, owing to Pothier having in his later editions
inserted between that number and No. 457 a new section containing thirty-five
§: 494a — 498.] account — contribution — sureties. 207

§ 494a. In equity a surety is not entitled to contribution from

his co-surety until he has paid more than his just proportion of the
debt (a). If there is a judicial adjudication against one of several
sureties ascertaining his liability at a definite sum, he may have a
judgment declaring his right to contribution from co-sureties, and
ordering an indemnity, but short of this he has no right of action (a).
§ 497. If one of the sureties died, the remedy at lavs' was only
against the surviving parties; vs^hereas, in equity, it might be enforced
against the representative of the deceased party, and he would be
compelled to contribute his share to a surviving surety, who had paid
the whole debt (b). This latter rule now prevails in England by
force of the Judicature Act, 1873 (36 & 37 Vict. c. 66), s. 25, sub-s. 11.
§ 498. These are cases of contribution of a simple and distinct
character. But, in cases of suretyship, others of a very complicated
nature may arise, from counter equities between some or all of the
parties, resulting from contract, or from equities between themselves,
or from peculiar transactions regarding third persons. Thus, as already
noticed, although the general rule is, that there shall be a contribu-
tion between sureties, by the rule of equity, that may be modified by
express contract between them; and, in such a case, courts of equity
will be governed by the terms of such contract, in giving or refusing
contribution. In like manner, there may arise by implication, from
the very nature of the transaction, an exemption of one surety from
becoming liable to contribution in favour of another. Thus, if different
sureties should be bound by different instruments, for equal portions
of the debt of the same principal, and it clearly appeared that the
suretyship of each was a separate and distinct transaction, there
would be no right of contribution of one against the other (c). So, if
there should be separate bonds, given with different sureties, and one
bond is intended to be subsidiary to, and a security for, the other,
in case of a default in payment of the latter, and not to be a primary
concurrent security; in such a case, the sureties in the second bond
would not be compellable to aid those in the first bond by any
contribution (d).

numbers, so that No. 457 in Evans's edition stands in the common editions of Pothier,
No. 493. See Mr. Evans's note (o) to Pothier on Oblig. Pt. 2, ch. 6, § 9, p. 306.
This explanation may be useful to the reader to prevent mistakes, or supposed mistakes,
in the references usually made in English and American works to Pothier. Post,
§§ 635 to 640.
{z) Ex parte Snowdon, In re Snowdon, 17 Ch. D. 44; Stirling v. Burdett, [1911]
2 Ch. 418.
(o) Hughes Hallett v. Indian Mammoth Gold Mines Co., 22 Ch. D. 561 ; Wolmers-
hausen v. Gullick, [1893] 2 Ch. 614.
. (b) Primrose v. Bromley, 1 Atk. 89; In re Ennis ; Coles v. Peyton, [1893] 3 Ch.
238.
(c) Coope v. Twynam, 1 T. & Euss. 426. It would be different, if it should
appear that it was the same transaction split into different parts by the agreement of
all the parties.
(d) Craythome v. Swinburne, 14 Ves. 159 ; Bolton v. Cooke, 3 L. J. 0. S. Ch. 87.
208 EQUITY JURISPRUDENCK. [CH. VIII.

§ 498a. A question of another kind has arisen : How far, and under
what circumstances, the discharge of one surety by the creditor would
operate as a discharge of the other sureties from their hability. It
seems now to be clearly established that a release or discharge of one
surety by the creditor will operate as a discharge of all the other
sureties, if their right to contribution, or other contractual right be
affected thereby, but not farther or otherwise (e). And where a surety
guarantees the performance of two or more distinct acts, it would seem
that he might be discharged by the conduct of the obligee as to one
or more and remain bound as to the other (/). The efiEect of altering
the creditor's rights operating in discharge of the surety is discussed
elsewhere (g).
§ 499. Sureties axe not only entitled to contribution from each
other for moneys paid in discharge of their joint liabilities for the
principal; but they are also entitled to the benefit of all securities,
which have been taken by any one of them to indemnify himself
against such liabilities (h). And this is so although the surety who has
obtained a counter security only consented to be a surety upon the
terms of having the security given him, and although his co-sureties
were, when they entered into the contract of suretyship, ignorant of
his agreement to receive security. For the result of the leading ease
of Bering v. Earl of Winchelsea (i) is that, as between co-sureties,
there is to be equality of the burden and of the benefit, and therefore
whatever benefit one surety has received from the principal debtor,
he is bound as between himself and his co-sureties to bring that into
hotch-pot, in order that it may be ascertained what is the ultimate
burden which the co-sureties have to bear, so that that ultimate
burden may be distributed between them, equally or proportionably
as the case may require. Courts of equity have gone farther in
their favour, and held them entitled, upon payment of the debt due
by their principal to the creditor, to have the full benefit of all the
collateral securities, both of a legal and equitable nature, which the
creditor has taken as an additional pledge for his debt (fe). Thus, for
example, if, at the time when the bond of the principal and surety is
given, a mortgage also is made by the principal to the creditqr, as an
additional security for the debt; there, if the surety pays the debt,
he will be entitled to have an assignment of that mortgage, and to

(e) Nicholson v. Revell, 4 A. & E. 675; Evans v. Bumridge, 2 K. & J. 174; on

appeal 8 De G. M. & G. 100; Ward v. National Bk. of New Zealand, 8 App. Cas. 755.
(/) Harrison v. Seymour, L. E. 1 C. P. 518.
(g) Ante, § 326.
(h) Steel v. Dixon, 17 Ch. D. 825; In re Arcedeokne ; Atkins v. Arcedeckne, 24
Ch. D. 709 ; Berridge v. Berridge, 44 Ch. D. 168.
(i) 1 Cox 318.
(7c) Lake v. Brutton, 8 De G. M. & G. 440; Pearl v. Deacon, 24 Beav. 186; 1
De G. & J. 461; Aylwin v. Withy, 30 L. J. Ch. 860; Duncan, Fox d Co. v. N. and S.
Wales Bk., 6 App. Cas. 1.
§ 499.] ACCOUNT — CONTRIBUTION — SURETIES. 209

stand in the place of the mortgagee (I). And the same rule applies to
all securities taken by the creditor subsequent to the surety becoming
bound (jw). And, as the mortgagor cannot get back his estate again
without a reconveyance, that assignment and security will remain
a valid and effectual security in favour of the surety, notwithstanding
the bond is paid. This, indeed, is but an illustration of a much
broader doctrine established by courts of equity, which is, that a
creditor shall not, by his own election of the fund, out of which he
wiU receive payment, prejudice the rights which other persons are
entitled to; but they shall either be substituted to his rights, or they
may compel him to seek satisfaction out of the fund, to which they
cannot resort. It is often exemplified in cases where a party, having
two funds to resort to for payment of his debt, elects to proceed
against one, and thereby disappoints another party, who can resort to
that fund only. In such a case, the disappointed party is substituted
in the place of the electing creditor, or the latter is compelled to
resort, in the first instance, to that fund which will not interfere
with the rights of the other (n). The liability of the surety
to the creditor was only secondary to that of the principal
debtor in the eyes of the court of equity, and the surety was
entitled to insist that the creditor should pursue his remedies
against the debtor, or failing that that the surety should be authorized
to institute proceedings in the -name of the creditor who was entitled
to be indemnified against the costs (o). Accordingly if the principal
debtor went bankrupt, the surety was entitled to share in the dividend
proportionately to the amount of the debt which he had guaranteed,
and which he was called upon to pay (p). In considering the right
of a surety, regard must be had to the transaction. A surety is not
entitled to the benefit of a security given except in respect of that
part of a debt of which he has guaranteed the payment (q). It
must also be borne in mind that a party may constitute himself a
principal debtor by assuming the debt of a third person (r). There
only remains to be noticed the fact that the principal creditor possesses
no similar right against securities exacted by the surety (s).

il) Gedye v. Matson, 25 Beav. 310.

(m) Pearl v. Deacon, 24 Beav. 186; 1 De G-. & J. 461; Campbell v. Rothwell, 47
L. J. C. P. 144 ; Forbes v. Jackson, 19 Ch. D. 615.
(n) Aldrich v. Cooper, 8 Ves. 382; Trimmer v. Bayne, 9 Ves. 209; Hotham v.
Stone, T. & E. 227n.
(o) Wooldridge v. Norris, li. E. 6 Eq. 410; Aschuson v. Tredegar Dry Dock and
Wharf Co. [1908] 2 Ch. 401.
(p) Hobson V. Bass, L. K. 6 Ch. 792; Gray v. Seckham, L. E. 7 Ch. 680; Ellis
V. Emmanuel, 1 Ex. D. 157; Ex parte National Provincial Bk., In re Rees, 17 Ch.
D. 98.
(g) Wade v. Coope, 2 Sim. 155.
(r) Reade v. Lowndes, 23 Beav. 361; Wooldridge v. Norris, L. E. 6 Bq. 410;
Nicholas V. Ridley, [1904] 1 Ch. 192.
(s) In re Walker; Sheffield Bkg. Go. v. Clayton, [1892] 1 Ch. 621.
E.J. 14
210 EQUITY JURISPRUDENCE. [CH. VIII.

§ 499a. The principle seems in former times to have been carried

farther by courts of equity, and to have authorized the surety to
insist upon an assignment, not merely of collateral securities, properly
speaking, but of collateral incidents and dependent rights growing
out of the original debt. Thus, where the principal in a bond had
been sued and gave bail, and judgment was obtained against the
principal, and also against the bail, by the creditor, and afterwards
the sureties on the original bonds (who had counter-bonds) were com-
pelled to pay it, and then brought their bill in equity to have the
benefit of the judgment of the creditor against the bail by having it
assigned to them; it was decreed by the court accordingly. So that
although the bail were themselves but sureties as between themselves
and the principal debtor, yet, coming in the room of the principal
debtor, as to the creditor, it was held, that they likewise came in the
room of the principal debtor as to the sureties on the original bond (f).
This decision consequently established that the original sureties had
precisely the same rights that the creditor had, and were to stand in
his place. The original sureties had no direct contract or engage-
ment by which the bail were bound to them, but only a claim
against the bail through the medium of the creditor, to all whose
rights, and the power of enforcing them, they were held to be
entitled. This decision has been questioned; and although it may
be distinguishable in its circumstances from others on which we
shall have occasion to comment, yet it must now be deemed to be
much shaken in point of authority. But, however this may be, it
seems certain that a surety upon a second bond, given as collateral
security for the original bond, has a right, upon payment of his own
bond, to be substituted to the original creditor as ta the first bond,
and to iiave an assignment thereof as an independent subsisting
obligation for the debt (m).
§ 4995. Another point of more extensive importance in practice
was whether a surety who paid off the debt of the principal, for which
he was bound, could require the creditor, upon such payment, to
make an assignment to him of the debt and of the instrument by
which it was evidenced. It was decided in Copis v. Middleton (x) that
the surety had no such right. The ground of that decision was that by
the payment of the debt the title derived under the instrument had
become extinguished and functus officio; and, therefore, an assign-
ment thereof would be utterly useless; and if the surety should after-
wards sue for the debt at law in the name of the creditor, the
principal might plead such payment in bar of the action. And in
such a case it was held to make no difference in the right of the surety
to sue, that, upon payment of the debt, he had procured an assign-

(t) Wright V. Morley, 11 Ves. 22.

(u) Hodgson V. Shaw, 3 Myl. & K. 183. (x) 1 T. & Euss. 224.
§ 499 a — 500. J account — contribution — sureties. 211

ment thereof to be made to a third person, instead of to himself,

for his benefit. A judgment would of course stand upon the same
footing.
§ 499c. But the law in this respect was altered by the Mercantile
Law Amendment Act, 1856 (19 & 20 Vict. c. 97), s. 5, which enacts
that " Every person who, being surety for the debt or duty of another,
or being liable with another for any debt or duty, shall pay such debt
or perform such duty, shall be entitled to have assigned to him, or to
a trustee for him, every judgment, speciality, or other security which
shall be held by the creditor in respect of such debt or duty, whether
such judgment, speciality, or other security shall or shall not be
deemed at law to have been satisfied by the payment of the debt or
performance of the duty. And such person shall be entitled to stand
in the place of the creditor, and to use all the remedies, and, if need
be, and upon a proper indemnity, to use the name of the creditor in
any action or other proceeding at law or equity, in order to obtain
from the principal debtor or any co-surety, co-contractor, or co-
debtor, as the case may be, indemnification for the advances made,
and loss sustained by the person who shall have so paid such debt
or performed such duty ; and such payment or performance so made
by such surety shall not be pleadable in bar of any such action or other
proceeding by him : Provided always that no co-surety, co-contractor,
or co-debtor, shall be entitled to recover from any other co-surety,
co-contractor, or co-debtor, by the means aforesaid, more than a just
proportion to which, as between those parties themselves, such last-
mentioned person shall be justly liable."
§ 500. Upon this subject the doctrines of the Eoman law are as
follows. Not only is the surety by that law entitled in such cases to
the benefit of all the collateral securities taken by the creditor; but
he is also entitled to be substituted as to the very debt itself, to the
creditor, by way of cession or assignment. And upon such cession or
assignment upon payment of the debt by the surety, the debt* is in
favour of the surety, treated not so much as paid, as sold; not as
extinguished, but as transferred with all its original obligatory force
against the principal. " Fidejussoribus succurri solet, ut stipulator
compellatur ei, qui solidum solvere paratus est, vendere cseterorum
nomina. Cum is, qui et reum et fidejussores habens, ab uno ex fide-
jussoribus accepta pecunia, praestat actiones; poterit quidem dici,
nuUas jam esse, cum suum perceperit, et peroeptione omnes liberati
sunt. Sed non ita est; non enim in solutum accepit, sed quodam-
modo nomen debitoris vendidit. Et ideo habet actiones, quia tenetur
ad id ipsutn, ut praestet actiones " (y). Here we have the doctrine dis-
tinctly put, the objection to it stated, and the ground upon which
its solution depends affirmed. The reasoning may seem a little

(y) Dig. Lib. 46, tit. 1, ff. 17, 36.

212 EQUITY JURISPKUDENCB. [CH. VIII.

artificial; but it has a deep foundation in natural justice. The same

doctrine stands in substance approved in all the countries which
derive their jurisprudence from the civil law (s).
§ 501. The Eoman law carried its doctrines yet farther, in further-
ance of the great principles of equity. It held the creditor bound
not to deprive himself of the power to cede his rights and securities
to the surety, who should pay him the debt; and, if by any voluntary
and unnecessary act of his own, such a cession became impracticable,
the surety might, by what was technically called exceptio ceden-
darum actionum, bar the creditor of so much of his demand as the
surety might have received by a cession or assignment of his liens
and rights of action against the principal debtor. " Si creditor a
debitore culpa sua causa ceciderit, propfe est, ut actione mandati
nihil a mandatore consequi debeat; cum ipsius vitio acciderit, ne
mandatori possit actionibus cedere " (a). But this qualification should
be added, that a mere omission by the creditor to collect the debt
due of the hypothecated property, so that it is lost by his laches, will
not discharge the sureties; but the creditor must be guilty of some
wrongful act, as by a release on fraudulent surrender of the pledge,
in order to discharge the surety (&).
§ 502. The same doctrine has been in some measure transfused
into the English law in an analogous form, not indeed by requiring
an assignment or cession of the debt to be made ; but by putting
the surety paying the debt, under some circumstances, in the place
of the creditor (c). And if the creditor should knowingly have done
any act to deprive the surety of this benefit, the surety, as against
him, would be entitled to the same equity as if the act had not
been done (d).
§ 502a. A surety, who executes a bond on the faith of it being
executed by the principal debtor also, cannot be released from his
obligation on the ground that the principal has never executed it,
provided the principal has executed an instrument on which the
surety may sue him and become a speciality creditor of his (e). On the
other hand, where a surety executed a guarantee which he altered
in a material particular and thereby released other parties who had
executed as sureties, he was held to be himself released from all
liability, his right of proportional contribution being lost (/).
(z) Voet ad Pand. Lib. 46, tit. 1, § 27 ; Pothier on Obhg. by Evans, n. 275.
(o) Dig. Lib. 46, tit. 2, f. 95, § 11; Pothier, Pand. Lib. 46, tit. 1, n. 46, 47.
(b) Macdonald v. Bell, 3 Moo. P. C. 815, 332.
(c) Robinson v. Wilson, 2 Mad. 437. In the case of a Crown debtor, a surety is
substituted to the prerogative of the Crown, in regard to the debt, and then is admitted
to use the Crown remedies. The King v. Bennett, Wightw. 2 to 6 ; ante, § 499 to
499c, and notes.
(d) Alrich v. Cooper, 8 Vea. 388, 391, 395; Ex parte Rush forth, 10 Vea. 409;
Wright v. Morley, H Ves. 22.
(e) Cooper v. Evans, L. B. 4 Eq. 45.
(/) Ellesmere Brewery Co. v. Cooper, [1896] 1 Q. B. 75.
§ 501 — 505.]. ACCOUNT — CONTRIBUTION — SUEETIKS. 213

§ 503. There are many other cases of contribution, in which the

jurisdiction of courts of equity is required to be exercised, in order to
accomplish the purposes of justice. Thus, for instance, in cases of a
deficiency of assets to pay all debts and legacies, if any of the legatees
have been paid more than their proportion, before all the debts are
ascertained, they may be compelled to refund and contribute, in
favour of the unpaid debts, at the instance of creditors, at the instance
of other legatees, and where the personal representative had no notice
of the existence of the debt, at the instance of the executor himself (g).
A liability to pay uncalled capital in the event of its being subsequently
called up, is not a debt, and if the personal representative distributes
the estate without making a provision for its discharge, there is no
voluntary payment, and he may obtain a refund (h). This principle
is applicable to all contingent liabilities, at any rate if remote (i).
§ 504. In like manner, contribution lies between partners for any
excess, which has been paid by one partner beyond his share, against
the other partners, if upon a winding up of the partnership affairs
such a balance appears in his favour; or if, upon a dissolution, he
has been compelled to pay any sum, for which he ought to be
indemnified. The cases in which a recovery could be had at law by
way of contribution between partners were very few, and stood upon
special circumstances. The usual, and indeed almost the only,
effectual remedy, was in equity, where an account of all the partner-
ship transactions could be taken ; and the remedy to ascertain and
adjust the balance was, in a just sense, plain, adequate, and
complete (k). It is under the same circumstances that an action of
account at the common law lies; but that, as we have already seen,
is in most cases a very cumbersome, inconvenient, and tardy remedy.
The same remark applies to actions on sealed or on unsealed articles
of partnership, where there have been any breaches of the articles;
for there may be many breachs of them, during the continuance of the
partnership, which scarcely admit of adequate redress in this way.
This subject will, however, hereafter present itself in a more enlarged
form (I).
§ 505. Contribution also lies between joint-tenants, tenants in
common, and part owners, of ships and other chattels, in some
instances for charges and expenditures incurred for the common
benefit. But it seems unnecessary to dwell upon these cases, and
others of a like nature, as they embrace nothing more than a plain

(g) Noel v. Robinson, 1 Vern. 94, and Mr. Baithby's notes, ibid. ; Newman v.
Barton, 2 Vern. 206, and Mr. Raithby's note; Hardwick v. Mynd, 1 Anstr. 109;
Jewon V. Grant, 3 Swanst. 659.
{h) In re Kershaw; Whittaker v. Kershaw, 45 Ch. D. 320.
(J) Jervis v. Wolferstan, L. E. 18 Eq. 18.
(fc) Partnership Act, 1890, s. 24, sub-as. (1) and (2), s. 44; Sadler v. Hinxman,
S B. & Ad. 986; Brown v. Tapscott, 6 M. & W. 119.
(Z) Post, §§ 659 to 683.
214 EQUITY JURISPRUDENCE. [CH. VIII.

application of principles already fully expounded (m). We may

conclude this head with the remark, that the remedial justice of
courts of equity, in all cases of apportionment and contribution, is so
complete, and so flexible in its adaptation to all the particular circum-
stances and equities, that it has, in a great measure, superseded all
efforts to obtain redress in any other tribunals.
§ 506. EiBNS also give rise to matters of account; and although
this is not the sole, or indeed the necessary, ground of the interference
of courts of equity; yet, directly or incidentally, it becomes a most
important ingredient in the remedial justice administered by them
in cases of this sort. The subject, as a general head of equity
jurisdiction, will more properly fall under discussion in another place.
But a few considerations, touching matters of account involved in it,
may be here glanced at. A lien at the common law is not in strictness
either a jus in re or a jus ad rem; but it is simply a right to possess
and retain property, until some charge attaching to it is paid or
discharged (n). It generally exists in favour of artisans and others,
who have bestowed labour and services upon the property, in its repair,
improvement, and preservation (o). It has also an existence, in many
other cases, by the usages of trade (p); and in maritime transactions,
as in cases of salvage and general average (q). It is often created
and sustained in equity, unaccompanied by possession and where it is
unknown at law; as in cases of the sale of lands, where a lien exists
for the unpaid purchase-money or for purchase-money paid in
anticipation of a conveyance (r). It is not confined to cases of mere
labour and services on the very property, or connected therewith ;
but it often is, by the usage of trade, extended to eases of a general
balance of accounts, in favour of factors and others (s). Now it is
obvious, that most of these cases must give rise to matters of account;
and as no suit is maintainable at law for the property by the owner,
until the hen is discharged, and as the nature and amount of the lien
often are involved in great uncertainty, a resort to a court of equity,
to ascertain and adjust the account, seems, in many cases, absolutely
indispensable for the purposes of justice; since, if a tender were made
at law, it would be at the peril of the owner; and, if it was less than
the amount due, he would inevitably be cast in the suit, and be put to
the necessity of a new litigation under more favourable circumstances.
So, in many cases, where a lien exists upon various parcels of land,

(m) Kay v. Johnston, 21 Beav. 536; Pascoe v. Swan, 27 Beay. 508; Leigh v.
Dickeson, 15 Q. B. D. 60.
in) Jackson v. Cummins, 5 M. & W. 342; Forth v. Simpson, 13 Q. B. 680.
(o) Chase v. Westmore, 5 M. & S. 180 ; Steadman v. Hockley, 15 M. & W. 553.
(p) Kirkham v. Shawcross, 6 T. E. 14; Agra Bank's Claim, In re European Bk.,
L. E. 8 Ch. 41.
(q) Baring v. Day, 8 East, 57.
(r) Mackreth v. Symmons, 15 Ves. 329; Rose v. Watson, 10 H. L. C. 672.
(s) Godin v. London Assce. Co., 1 W. Bl. 104; Hudson v. Granger, 5 B. & A. 27.
§ 506 — 510.] ACCOUNT — CONTRIBUTION — LIENS. 215

some parts of which have been aiterwards sold to different purchasers,

and the lien is sought to be enforced upon the lands of the purchaser,
it may often become necessary to ascertain what parcels ought
primarily to be subjected to the lien in exoneration of others ; and a
bill for this purpose, as well as for an account of the amount of the
incumbrance, may be indispensable for the purposes of justice. Cases
of pledges present a similar illustration, whenever they involve
indefinite and unascertained charges and accounts.
§ 507. Let us, in the next place, bring together some few cases
involving accounts, which may arise either from privity of contract or
relation, or from adverse or conflicting interests.
§ 508. Under this head the jurisdiction of courts of equity in
regard to Rents and Profits may properly be considered. A great
variety of cases of this sort resolve themselves into matters of
account, not only when they arise from privity of contract, but also
when they arise from adverse cla,ims and titles, asserted by different
persons. Between landlord and tenant accounts often extend over a
number of years, where there are any special terms or stipulations in
the lease, requiring expenditures on one side and allowances on the
other. In such cases, where there are any controverted claims, a
resort to courts of equity is often necessary to a due adjustment of
the respective rights of each party (f).
§ 509. In some instances the Court of Chancery required the
plaintiff to establish his right at law before decreeing an account (m).
This topic was of some importance when the learned author wrote,
but has long since ceased to be so.
§ 510. But another class of cases is still more frequent, arising
from tortious or adverse claims and titles (x). Thus, where a judgment
creditor took the real estate of the judgment debtor in execution, it
was often necessary to take an account of the rents and profits, in
order to ascertain whether, and when, the debt had been satisfied,
by a perception of those rents and profits. At law, the tenant under
an elegit was not bound to answer in account, except for the extended
value (y). But, in courts of equity, as the elegit was a mere security
for the debt, the tenant was always compelled to account to the
terre-tenant («) for the rents and profits which he had actually received,
deducting, of course, all reasonable charges (a).

(t) See The King v. The Free Fishers of Whitstable, 7 East 353.
(u) 1 Ponbl. Eq. Bk. 1, Ch. 3, § 3, note {k): Fulteney v. Warren, 6 Ves. 73;
Adey v. Whitstable Co., 17 Ves. 324.
(x) Bac. Abr. Accompt, B.
(y) Altered by Judgments Act, 1837 (1 & 2 Vict, c 110) s. 11. See Price v.
Vamey, 3 B. & C. 733.
(z) Hele v. Lord Bexley, 17 Beav. 14.
(a) Owen v. Griffith, 1 Ves. 250; Ambl. 520; Yates v. Hantbley, 2 Atk. 362;
see Bull v. Faulkner, 1 De G. & Sm. 685.
216 EQUITY JURISPRUDENCE. [CH. VIII.

§ 511. It is observable that, in these cases of elegit, there exists a

privity in law. In the ordinary eases of mesne profits, where a clear
remedy existed at law, courts of equity would not interfere, but would
leave the party to his remedy at law. Some special circumstances were,
therefore, necessary, to draw into activity the remedial interference
of a court of equity (b); and, when these existed, it would interfere,
not only in cases arising under contract, but in some instances in cases
arising under direct or constructive torts. Thus, for instance, if a man
intruded upon lands, and took the profits, he was compellable to
account for them (c). But if the wrongdoer dies there is no remedy
against his estate unless it has been enriched by the proceeds
improperly acquired or received (d).
§ 512. Other cases may be easily put where a like remedial justice
is administered in equity, but, in all these cases, it will be found that
there has always been some peculiar equitable ground for interference;
such as fraud or accident, or mistake, the want of a discovery, some
impediment at law, the existence of a constructive trust, or the
necessity of interposing to prevent multiplicity of suits (e). It is
perfectly clear, that, if there is a trust estate, and the cestui que trust
comes into equity upon his title to recover the estate, he will be
decreed to have the further relief of an account of the rents and
profits (/). So, in the case of dower (of which more will presently be
said), if the widow were entitled to dower, and her claim were merely
upon a legal title; but she could not ascertain the lands out of which
she was dowable, and came into equity for discovery and relief; she
would be entitled to an account of the rents and profits, upon having
her title established (g). So, if an heir or devisee were compelled
to come into equity for a discovery of title-deeds and the ascertain-
ment of his title, or to put aside some impediments to his recovery ;
there he would be entitled to an account of the rents and profits (h).
§ 513. Another case connected with torts was, where a recovery
had been had in an ejectment, brought to recover lands, and after-
wards the plaintiff was prevented from enforcing his judgment by an
injunction, obtained on a bill brought by the tenant, who died before
the bill is finally disposed of. In such a case, at law, the remedy by
an action for the mesne profits was gone by the death of the tenant,
as actions of tort did not, till the Civil Procedure Act, 1833 (3 & 4

(6) Tilley v. Bridges, Prec. Ch. 252; 1 Bq. Abr. 285.

(c) Phillips V. Homfray, L. E. 6 Ch. 770; further proceedings (1896), 1 Ch. 465.
(d) Phillips V. Homfray, 24 Ch. D. 439. Cf. Batthyany v. Walford, 33 Ch. D.
269.
(e) Sayer v. Pierce, 1 Ves. Sen. 232; Curtis v. Curtis, 2 Bro. C. C. 628, 632, 633;
Tilley v. Bridges, Prec. Ch. 252.
(/) Dormer v. Fortescue, 3 Atk. 129.
(g) Curtis v. Curtis, 2 Bro. C. C. 620.
(h) Dormer v. Fortescue, 3 Atk. 124; Bennet v. Whitehead, 2 P. Will. 644;
Pulteney v. Warren, 6 Ves. 78.
§ 511 515.] ACCOUNT — TORTS. 217

Will. 4, c. 42, s. 2), survive at law. But a court of equity would, in

such a case, entertain a bill for an account of the mesne profits, in
favour of the plaintiff in ejectment, against the personal representa-
tives of the tenant; for it is inequitable that his estate should receive
the benefit and profits of the property of another person. It would
be a reproach to equity, if a man, who has taken the property of
another, and disposed of it in his lifetime, should, by his death, throw
the proceeds into his own assets, and leave the injured party
remediless (i). It is true, that the death of the tenant cannot be
treated as the case of an accident, against which a court of equity
would relieve. But there seems the most manifest justice in holding,
that, where property or its proceeds has come to the use of a party,
the mere fact that the title has originated in a tort should not prevent
the party, and his personal representatives, from rendering an account
thereof.
§ 514. There was also another distinct ground, which, although not
always followed out by the courts of equity, was, of itself, sufficient to
maintain the jurisdiction; and that is, that in these cases a discovery
was sought; and if it was effectual, then, to prevent multiplicity of
suits, the court ought to decree at once the payment of the mesne
profits which have been thus ascertained (fe). But a definite and very
satisfactory ground to maintain the jurisdiction in the older cases was,
that it was inequitable that a wrongdoer who, by active proceedings
against the injured party suspended the just operation of a suit or
judgment by an injunction, should thereby deprive the other party
of his rights and profits, belonging to the suit or judgment, if the
merits turned out to be ultimately in favour of the latter. He used,
under such circumstances, to be compelled to put the plaintiff in the
original suit in the same situation as if no injunction had intervened (l).
§ 515. Cases of Waste by tenants and other persons afford another
illustration of the same doctrine. There were some eases in which
the remedy was in a court of equity only prior to the Judicature
Act, 1873 (36 & 37 Vict. c. 66), and which was consequently known
as equitable waste (m). Thus, where one held customary lands of a
manor, and opened a copper mine in the lands, and dug the ore,
and sold great quantities of it in his lifetime, and then died, and his
heir continued digging and disposing of the ore in like manner; upon
a bill brought against the executor for an account, and against the

(t) Bishop of Winchester v. Knight, 1 P. Will. 407 ; Pulteney v. Warren,

6 Vea. 73; Phillips v. Homfray, 24 Ch. D. 439.
(k) See Jesus College v. Bloom, 3 Atk. 862; s.c. Ambler, 64; Whitfield v.
Bewitt, 2 P. Will. 240; s.c. 3 P. Will. 267; Dormer v. FoHesoue, 2 Atk. 282;
s.c. 3 Atk. 124; Townsend v. Ash, 3 Atk. 336, 337.
(I) Pulteney v. Warren, 6 Ves. 73; Grant v. Grant, 3 Euas. 598; further
proceedinga, 3 Sim. 340.
(m) Marquis of Lansdowne v. Marchioness of Lansdowne, 1 Mad. 116 ;
Marquis of Ormond v. Kynersley, 5 Mad. 369.
218 EQUITY JDKISPRUDENCE. [CH. VIII.

heir also for an account, it was decided, that the bill was maintainable,
both against the executor and the heir. Lord Cowper seems to have
entertained the jurisdiction upon general principles, and especially
upon the ground that the tenant was a sort of fiduciary of the lord;
and it was against conscience that he should shelter himself or his
representative from responsibility for a breach of trust in a court
of equity (n). At the present day relief is granted apart from any
consideration of trust (o).
§ 516. The case of Bishop of Winchester v. Knight (p) has been
supposed to have been decided upon the ground that, as to the
executor, there was no remedy at law ; and that as to the heir, there
was some fraud or concealment, and a necessity for a discovery; or
that, as to him, an injunction was sought. Without some one of
these ingredients it would be difficult to maintain the case in its
apparent extent, for there would otherwise be a complete and perfect
remedy at law. And in the later commentaries upon this case, this
has been the distinctive ground upon which its authority has been
admitted (g). But, as has been pointed out, the common law remedy
was inadequate and in some instances doubtful.
§ 517. Cases of waste, by the cutting down of timber by tenants,
have given rise to questions of the same sort in regard to jurisdiction.
In some of the cases upon this subject it seems to have been main-
tained that, although the remedy for waste was ordinarily at law,
yet if a discovery were wanted, that alone, if it turned out to be
important, and was obtained, would carry the ulterior jurisdiction to
account, in order to prevent multiplicity of suits (r) ; a ground the
sufficiency of which it seems difficult to resist upon general prin-
ciples (s).
§ 518. Lord Hardwicke, upon one occasion, expounded this ground
of jurisdiction very clearly (although he does not seem himself after-
wards to have been satisfied with so limiting it) (f), and said: " Waste
is a loss for which there is a proper remedy by action. In a court of
law the party is not necessitated to bring an action of waste, but he
may bring trover. These are the remedies, and, therefore, there is
no ground of equity to come into this court. For satisfaction of
damages is not the proper ground for the court to admit of these
sorts of bills, but the staying of waste; because the court presumes,

(n) Bishop of Winchester v. Knight, 1 P. Will. 407.

(o) Richards v. Noble, 3 Mer. 673; Tucker v. Linger, 8 App. Cas. 508;
Phillips V. Homfray, 24 Ch. D. 439.
(p) 1 P. Will. 407.
(q) Pratt v. Brett, 2 Mad. 62; Parrott v. Palmer, 8 M. & K. 632; Haigh v.
Jaggar, 2 Coll. 231.
(r) Whitfield v. Bewit, 2 P. Will. 240; Garth v. Cotton, 3 Atk. 751; Lee v.
Alston, 1 Bro. C. C. 194.
(s) See Barker v. Dacie, 6 Ves. 688; Doherty v. Allman, 3 App. Cas. 709.
(t) See Garth v. Cotton, 3 Atk. 756; s.c. 1 Ves. Sen. 524, 646.
§ 516 — 519.] ACCOUNT — TORTS. 219

when a man has done waste, he may do the same again; and, there-
fore, will suffer the lessor or reversioner, when he brings his bill for
injunction to stay waste, to pray, at the same time, for an account of
the waste done. And it is upon this ground, to prevent multiplicity
of suits, that this court will decree an account of waste done at the
time with an injunction. Just like the case of a bill for a discovery
of assets; an account may be pray«d for at the same time. And
though, originally, the bill was only brought for a discovery of
assets, yet, to prevent a multiplicity of suits, the court will direct an
account to be taken." But more logical grounds can be supplied in
most instances, for the title of the tenant generally rests in agreement
or is at any rate regulated by some contract (u). In the case of legal
waste by a limited owner, the right to an account depends upon the
plaintiff establishing his right to an injunction (x).
§ 518a. By the Judicature Act, 1873 (36 & 37 Vict. c. 66), s. 24,
sub-s. 3, it is provided that an estate for life without impeachment of
waste shall not confer or be deemed to have conferred upon the tenant
for life any legal right to commit waste of the description known as
equitable waste, unless an intention to confer such right shall
expressly appear by the instrument creating the estate. Equitable
waste arose where the interests of the parties were equitable (y), or
might consist in the abuse by a legal owner of his right to commit
waste to the prejudice of one entitled (even contingently) to the
estate («). And by the Settled Land Act, 1882 (45 & 46 Vict. c. 38),
s. 35, it is provided that where there is a teisant for life impeachable
for waste, and there is on the settled land timber ripe and fit for
cutting, the tenant for life may, with the consent of trustees or by
order of the court, cut and sell such timber, the proceeds of which shall
go, as to three-fourths as capital money under the Act, and as to one-
fourth to the tenant for life. In connection with the cutting of timber
and the right to the proceeds when cut, a distinction between timber
estates and other estates must be remembered. Upon a timber estate
the felled timber and loppings become the property of the limited
owner, provided the felling and topping is justifiable as a provident act
of husbandry (a).
§ 619. In regard to Tithes, also, and, incidentally, to Moduses
ajid other compositions, courts of equity in England exercised an

(u) Doherty v. Allman, 3 App. Cas. 709; Kehoe v. Marquis of Lansdowne

[1893] A. C. 451.
(x) Richards \. Noble, 3 Mer. 231; Gent v. Harrison Johns, 577; Higginbotham
V. Hawkins, L. K. 7 Ch. 676.
(y) Marquis of Lansdowne v. Marchioness of Lansdowne, 1 Mad. 116 ;
Marquis of Ormond v. Kynersley, 5 Mad. 369.
(z) Marker v. Marker, 9 Hare 1; Turner v. Wright, 2 De G. P. & J. 234,
(a) Lord Lovat v. Duchess of Leeds, 2 Dr. & Sm. 75; Honeywood v. Honey-
wood, L. E. 18 Eq. 306; In re Harrison, Harrison v. Harrison, 28 Ch. D. 220;
Dashwood v. Maguire [1891] 3 Ch. 306.
220 EQUITY JURISPRUDENCE. [CH. VIII.

extensive jurisdiction of an analogous nature (b). There was a very

ancient jurisdiction in the Court of Exchequer in the matter of tithes
until its jurisdiction in equity was abolished by 5 Vict. c. 5. Lord
Nottingham is said to have stated, that the jurisdiction in the
JExchequer over tithes, by bill in equity, was not earlier than the reign
of Henry VIII., and that it took its rise from the Statute of Augmen-
tations, in his reign (33 Hen. 8, c. 39) (c). But other persons assert
that it had a more early origin; and, in respect to extra -parochial
tithes, which are a part of the ancient inheritance of the crown, they
insist that suits for tithes must always have fallen within the compass
of the direct and substantial jurisdiction of the Court of Exchequer, as
a court of revenue ; and that the proper jurisdiction of tithes belonged
there (d). Be this as it may, the jurisdiction of the Court of Chancery
over the same subject seems to have been of a much later origin, or,
at least, to have been matter of doubt and controversy to a much
later period; the jurisdiction not having been firmly established until
after the restoration of Charles II. (e). This concurrent jurisdiction in
both courts was generally considered to be merely incidental and
collateral, arising from the general equitable jurisdiction of these courts
in matters of account, and in compelling a discovery (/). By force of
the Tithe Commutation Act, 1836 (6 & 7 Will. IV. c. 71), and amending
ftatutes all tithe was commuted into a rent-charge, moduses abolished,
and provision made for the recovery of tithe rent-charge. As tithe is
believed to be non-existent in any other part of the British Dominions,
it seems unnecessary to' refer further to the matter.
§ 521. Having passed under review some of the principal heads of
Equity Jurisdiction in matters of account, which do not require any
elaborate examination, or belong to subjects which peculiarly illus-
trate the nature of it, we may conclude this examination with some
few matters which appropriately belong to the head of Account, and
are incident to the exercise of this remedial jurisdiction in all its
iorms.
§ 522. In the first place, in all bills in equity for an account, both
parties were deemed actors when the cause was before the court upon
its merits. It is upon this ground that the party defendant, contrary
to the ordinary course of equity proceedings, was entitled to orders in
a cause to which a plaintiff alone is generally entitled. As, for
instance, in such a case, a defendant might have an order for a ne exeat
regno, even against a co-defendant (g). So, it is a general rule, that

(b) Com. Dig. Chancery, 3 C. ; id. Dismes, M. 13.

(c) Harg. note to Co. Litt. 159a, note 290; Anon. 1 Freem. 303.
(d) Hardcastle v. Smithson, 3 Atk. 244.
(e) Anon, 1 Freem. 203; Anon., 2 Ch. Cas. 337; s.c. 2 Freem. 27; 1 Mad.
Pr. Ch. 84.
(/) 3 Black. Comm. 437 ; Co. Litt. 159a, Hargrave's note, 290.
(g) Dane's Case, 1 P. Will. 263.
§ 521 — 523.] ACCOUNT — waste. 221

no person but a plaintiff can entitle himself to a decree. But in bills

for an account, if a balance were ultimately found in favour of the
defendant, he was entitled to a decree for such balance against the
plaintifi (h). And for a like reason, although a defendant could not
ordinarily revive a suit which had not proceeded to a decree ; yet, in a
bill of an account, if the 'plaintifif died after an interlocutory decree to
account, the defendant was entitled to revive the suit against the
personal representatives of the plaintiff (i). And if the defendant died,
his personal representative might revive the suit against the plain-
tiff (fc). The good sense of the doctrine seems to be that, wherever a
defendant may derive a benefit from further proceedings, whether
before or after a decree, he may be said to have an interest in it, and
consequently ought to have a right to revive it (Z). Redemption
actions, however, stand upon a different footing. No order could be
made against a mortgagor plaintiff, unless his bill contained an offer
to pay what should appear to be due on taking the account (wi), and
even where the bill contained an offer to redeem the court might refuse
to order payment of an adverse balance (n).
§ 523. In the next place, there are some matters of defence, either
peculiarly belonging to cases of account, or strikingly illustrative of
some of the principles already alluded to, under the head of accident,
mistake, or fraud. Thus, it is ordinarily a good bar to an action for
an account, that the parties have already in writing stated and adjusted
the items of the account, and struck the balance (o). In such a case
a court of equity would not int-erfere; for under such circumstances,
an action upon an account stated lay at law (p), and there was no
ground for resorting to equity which declined to entertain an action for
a bare money claim (q). If, however, there had been an account
stated, that might be set up by way of plea, as a bar to all discovery
and relief, unless some matter was shown which called for the inter-
position of a court of equity. As if there had been any mistake, or
omission, or accident, or fraud, or undue advantage, by which the
account stated was in truth vitiated, and the balance was incorrectly
fixed, there a court of equity would not suffer it to be conclusive upon
the parties ; but would allow it to be opened and re-examined. In

(h) Knebell v. White, 2 Y. & C. Ex. 15; Stainton v. Garron Co., 29 L. J. Ch.
587; 30 L. J. Ch. 713; 11 L. T. N. S. 1.
(i) Lady Stowell v. Cole, 2 Vern. 219, and Mr.. Eaithby's note; Horwood v,
Schmedes, 12 Ves. 311.
(k) Kent V. Kent, Prec. Ch. 197.
(I) Williams v. Cooke, 10 Ves. 406; Horwood v. Schemedes, 12 Ves. 311.
(m) Hollis V. Bulpitt, 13 W. E. 492.
(n) Knight v. Bowyer, 2 De G. & J. 421.
(o) Taylor v. Haylin, 2 Bro. C. C. 810; Johnson v. Curtis, cited in note ibid.
Chambers v. Goldwin, 9 Ves. 254.
(p) Lubbock V. Tribe, 3 M. and W. 607.
(q) Higginbotham v. Hawkins, L. E. 7 Ch. 676 ; Morgan v. Larivihe, L. E. 7
H. L. 433; Rogers v. Ingham, 3 Ch. D. 361.
222 EQUITY JURISPRDDENCE. [CH. Vni.

cases of gross fraud, or gross mistake, or undue advantage or imposi-

tion, or where a confidential relation exists between the parties, the
court, following the old practice, will generally direct the whole
account to be opened, and taken de novo ; failing proof of these matters
the court will allow the account to stand, with liberty to the plaintiff
to surcharge and falsify it; the effect of which is, to leave the account
in full force and vigour, as a stated account, except so far as it can be
impugned by the opposing party (r), who has the burden of proof on
him to establish errors and mistakes, as a condition precedent to
entitle him to have either form of order (s). Agreeably to these prin-
ciples where a party is ordered to account generally it is not unusual
to insert a direction that regard shall be had to settled accounts
between the parties (i). A party originally entitled to re-open an
account might by delay be relegated to a right to surcharge and
falsify (w).
§ 524. The liberty to surcharge and falsify includes not only an
examination of errors of fact, but of errors of law (x). So, in the case
of Daniell v. Sinclair (y), decided by the Privy Council, on appeal from
the Court of Appeal of New Zealand, it was held that, where a mort-
gage account had been settled on the footing of compound interest,
both parties wrongly understanding the mortgage deed to require the
same, that such mortgage account might be re-opened.
§ 525. These terms, " surchsu-ge " and " falsify," have a distinct
eense in the vocabulary of courts of equity, a little removed from
that which they bear in the ordinary language of common life. In
the language of common life we understand ' ' surcharge ' ' to import
an overcharge in quantity, or price, or value, beyond what is just,
correct, and reasonable. In this sense, it is nearly equivalent to
' ' falsify ' ' ; for every item which is not truly charged as it should be ,
is false; and, by establishing such overcharge, it is falsified. But in
the sense of courts of equity these words are used in contradistinction
to each other. A surcharge is appropriately applied to the balance of
the whole account; and supposes credits to be omitted, which ought
to be allowed. A falsification applies to some item in the debits; and
supposes that the item is wholly false, or in some part erroneous.
This distinction is taken notice of by Lord Hardwicke; and the words
used by him are so clear that they supersede all necessity for further
commentary. " Upon a liberty to the plaintiff to surcharge and
falsify," says he, "the onus probandi is always on the party having
(r) Coleman v. Mellersh, 2 Mac. & G. 309; Williamson v. Barhour, 9 Ch. D.
529; Gething v. Keighley, 9 Ch. D. 647.
(s) Taylor v. Haylin, 2 Bro. C. C. 310; Johnson v. Curtis, cited, ibid.;
Chambers v. Goldwin, 9 Ves. 254; In re Webb, Lambert v. Still [1894] 1 Ch. 73.
(t) Buckeridge v. Whalley, 33 L. J. Ch. 649; Holgate v. Shutt, 28 Ch. D. 111.
(m) Brownell v. Brownell, 2 Bro. C. C. 62; Miller v. Craig, 6 Beav. 432.
(x) Roberts v. Kuffin, 2 Atk. 112.
(y) 6 App. Cas. 181.
§ 524 — 526.] ACCOUNT — tithes. 223

that liberty ; for the court takes it as a stated account, and establishes
it. But, if any of the parties can show an omission, for which credit
ought to be, that is a surcharge ; or if anything is inserted that is a
wrong charge, he is at liberty to show it, and that is a falsification.
But that must be by proof on his side. And that makes a great differ-
ence between the general cases of an open account, and where [leave]
only to surcharge and falsify ; for such must be made out (a) . "
§ 525a.. It may not be superfluous to glance at one or two matters
of practice' which involve matters of principle. The court is now
specifically empowered by the Rules of the Supreme Court, 1883,
Order XXXIII. r. 3, to "give special directions with regard to the
mode in which the account is to be taken or vouched, and in particular
may direct that in taking the account, the books of account in which
the accounts in question have been kept shall be taken as prima facie
evidence of the truth of the matters therein contained, with liberty to
the parties interested to take such objections thereto as they may be
advised." This rule does no more than embody the pre-existing prac-
tice going back for many years (a). Where the accounting party, by
his acts, has rendered the taking of a correct account difficult or impos-
sible, a penal order may be made against him, as by fixing him with a
highly penal rate of interest (b), or making him liable fori a sum
arbitrarily fixed by way of damages (c), or directing that he shall be
liable for the total amount shown on the debit side, but have to justify
all items on the credit side (d), notwithstanding that errors are usually
corrected as of right (e).
§ 526. What shall constitute, in the sense of a court of equity, a
stated, or as it is generally called a settled, account, is in some measure
dependent upon the particular circumstances of the case. An account
in writing, examined and signed by the parties, will be deemed a
settled account, notwithstanding it contains the ordinary preliminary
clause, that errors are excepted (/). But in order to make an account
a settled account, it is not necessary that it should be signed by the
parties. It is sufficient if it has been examined and accepted by both
parties (g). And this acceptance need not be express; but may be
implied from circumstances; as where an account has been presented,
and no objection is made thereto, after a lapse of time, varying accord-
ing to the circumstances, it is treated as an acquiescence in the
(z) Pitt v. Cholmondeley, 2 Ves. Sen. 565, 566.
(a) Lord Hardwicke v. Vernon, 4 Ves. 411; Ghalmer v. Bradley, 1 J. & W. 51;
Skipworth v. Skipworth, 9 L. J. N. S. Ch. 182; Allfrey v. Allfrey, 1 Mac. & G. 87.
(b) Walmsley v. Walmsley, 3 Jo. & L. 556.
(c) Duke of Leeds v. Earl of Amherst, 20 Beav. 239.
(d) Morehouse v. Newton, 3 De G. & Sm. 307.
(e) Johnson v. Curtis, 2 Bro. C. C. 311 n. ; David v. Spurling, 1 Euss. & M. 64.
(/) Johnson v. Curtis, 2 Bro. C. C. 311n; David v. Spurling, 1 Russ. & M. 640;
ijommercial Bk. of Scotland v. Rhind, 3 Macq. H. L. 643; the common law
rule was the same ; Perry v. Attwood, 6 BU. & B. at p. 700.
(g) Willis v. Jernegan, 2 Atk. 261; Coventry v. Barclay, 3 De G. J. & S. 820.
224 EQUITY JURISPKUDENCE. [CH. VIU.

correctness of the account, which is to be, therefore, deemed a settled

account (h). In truth, in each case, the rule admits, or rather requires,
the same general exposition. It is, that an account rendered shall be
deemed an account stated, from the presumed approbation or
acquiescence of the parties, unless an objection is made thereto within
a reasonable time. That reasonable time is to be judged of, in ordinary
cases, by the habits of business at home or abroad; a-nd the usual
course is required to be followed, unless there are special circumstances
to vary it, or to excuse a departure from it. A customer is not bound to
examine his banker's pass book, immediately upon receiving it, but may
be fixed with notice of matters therein contained after the lapse of time
which the law considers reasonable (i). Conversely a banker is allowed
to correct errors in the passbook (k), but if he omits doing so for a con-
siderable time the customer may be entitled to treat the balance shown
as his own private property (l). And this last-mentioned ground of
estoppel is applicable where a party changes his position by reason of
a faulty account (m).
§ 527. Upon like grounds, a fortiori, a settled account will be
deemed conclusive between the parties, unless some fraud, mistake,
omission, or inaccuracy is shown. For it would be most mischievous
to allow settled accounts between the parties, especially where
vouchers have been delivered up or destroyed, to be unravelled, unless
for urgent reasons, and under circumstances of plain error, which
ought to be corrected. And, in cases of settled accounts, the court
will not generally open the account; but will, at most, only grant
liberty to surcharge and falsify, unless in cases of apparent fraud (n).
§ 528. In regard to acquiescence in stated accounts, although it
amounts to an admission, or presumption, of their correctness, it by
no means establishes the fact of their having been settled, even
though the acquiescence has been for a considerable time. There
must be other ingredients in the case to justify the conclusion of a
settlement (o).
§ 529. It was, too, a most material ground, in all bills for an
account, to ascertain whether they were brought to open and correct
errors in the account recenti facto; or whether the application was
made after a great lapse of time. In cases of this sort, where the
(fe) Willis v. Jernegan, 2 Atk. 251; Tickel v. Short, 2 Ves. 239; Hunter v.
Belcher, 2 De G. J. & S. 194; Parkinson v. Hanbury, 2 De G J. & S 450-
affd. L. E. 2 H. L. 1.

Bk of(«')India,
Cavendish
(1909),v. 2 Greaves, 24 Beav. 163 ; Kapitagilla Rubber Estates v. National
K. B. 1010.
(k) Commercial Bk. of Scotland v. Rhind, 3 Macq. H. L. 463.
(I) Skyring v. Greenwood, 4 B. & C. 281; Shaw v. Picton, 4 B. & C. 715
(m) Cave v. Mitts, 7 H. & N. 913.
(n) Brownell v. Brownell, 2 Bro. C. C. 62; Davis v. Spurling, 1 Euss. & M. 64;
Millar v. Craig, 6 Beav. 433; Wier v. Tucker, L. E. 14 Eq. 25.
(o) Lord Glancarty v. Latouch, 1 Ball & B. 428; Irving v. Young 1 Sim
& Stu. 333.
§ 527.] ACCOUNT — IN GENERAL. 225

demand was strictly of a legal nature, or might be cognizable at law,

courts of equity governed themselves by the same limitations as to
entertaining such suits as were prescribed by the Statute of Limita-
tions in regard to suits in courts of common law in, matters of account.
If, therefore, the ordinary limitation of such suits at law was six
years, courts of equity would foUow the same period of limitation (p).
In so doing, they did not act, in cases of this sort (that is, in matters
of concurrent jurisdiction) so rtiuch upon the ground of analogy to
the Statute of Limitations, as positively in obedience to such
statute (g). But where the demand was not of a legal nature, but was
purely equitable ; or where the bar of the statute was inapplicable ;
courts of equity had another rule, founded sometimes upon the
analogies of the law, where such analogy existed, and sometimes upon
its own inherent doctrine, not to entertain stale or antiquated demands,
and not to encourage laches and negligence (r). Hence, in matters of
account, although not barred by the Statute of Limitations, courts of
equity refused to interfere after a considerable lapse of time, from
considerations of public policy, from the difficulty of doing entire
justice, when the original transactions had become obscure by time,
and the evidence might have been lost, and from the consciousness
that the repose of titles and the security of property are mainly
promoted by a full enforcement of the maxim, Vigilantibus , non
dormientihus, jura suhveniunt. Under peculiar circumstances, how-
ever, excusing or justifying the delay, courts of equity would not
refuse their aid in furtherance of the rights of the party; since in
such cases there was no pretence to insist upon laches or negligence,
as a ground for dismissal of the suit (s) ; and in one case carried
back the account over a period of fifty years (t). But at the present day
the Chancery Division of the High Court is as much bound by the
Statutes of Limitations as is any other division of the High Court.

(p) Hovenden v. Lord Annesley, 2 Sch. & Lefr. 629; Smith v. Clay, 3 Bro.
C. C. 639, note.
(g) Hovenden v. Lord Annesley, 2 Sch. & Lefr. 629, 631.
(r) Millar v. Craig, 6 Beav. 433; Pritt v. Clay, 6 Beav. 503.
(s) Lopdell V. Creagh, 1 Bligh N. S. 255.
(t) Stainton v. Carron Co., 24 Beav. 346; further proceedings, 29 L. J. Ch. 687 ;
on appeal 30 L. J. Ch. 713; in H. L., 11 L. T. N. S. 1.

E.J. 15
226 EQUITY JURISPRUDENCK. [CH. IX.

CHAPTER IX.

ADMINISTRATION.

§ 530. Having thus gone over some of the more important cases
in which matters of account are involved, as the principal, and some-
times as the exclusive ground of jurisdiction, we shall now take leave
of this part of the subject, and proceed to the consideration of other
branches of concurrent jurisdiction in equity, in which, although
accounts are sornetimes involved, yet the jurisdiction is derived from,
or essentially connected with, other sources of jurisdiction; and
accounts, whenever taken, are mere incidents to other relief.
§ 531. And, in the first place, the jurisdiction of courts of equity
in the administration of the assets of deceased persons. The word
assets (a) is derived from the French word aissez, which means
sufficient, or enough ; that is, sufficient, or enough, in the hands of the
executor or administrator, to make him chargeable to the creditors,
legatees, and distributees of the deceased, so far as the personal
property of the deceased extends, which comes to the hands of the
executor or administrator for administration. In an accurate and legal
sense, all the personal property of the deceased which is of a saleable
nature, and may be converted into ready money, is deemed assets (b).
But the word is not confined to such property; for all other property
of the deceased which is chargeable with his debts or legacies, and is
applicable to that purpose, is in a large sense assets (c).
§ 532. It has been said that the whole jurisdiction of courts of
equity in the administration of assets is founded on the principle
that it is the duty of the court to enforce the execution of trusts,
and that the executor or administrator who has the property in his
hands is bound to apply that property to the payment of debts and
legacies, and to apply the surplus according to tie will of the
testator, or, in case of intestacy, according to the Statute of Distribu-
tions; so that the sole ground on which courts of equity proceed, in
cases of this kind, is to be deemed the execution of a trust (d).

(o) A misreading of the scribes' flourish, further exemplified in the conventional

abbreviation, viz., for videlicet. Cf. Butler and Baker's Gasie, 3 Co., at fo.
35b, where " escroll " of the text becomes the more familiar "escrow" in the
shoulder note.
(b) 2 Black. Comm. 510; Toller on Executors, B. 2, ch. 1, p. 137.
(c) Black. Comm. 244, 340; Toller on Executors, B. 3, ch. 8, p. 409.
(d) In re Thomas, Sutton Garden ti Co. v. Thomas [1912], 2 Ch. 348.
§ 530 — 534.] ADMINISTRATION. 227

§ 533. This is certainly a very satisfactory foundation on which to

rest the jurisdiction in many cases ; for, under many circumstances,
as an execution of a trust, the subject would be properly cognizable
in equity, and especially if the party would not be chargeable at law,
since it was the ordinary reason for a court of equity to grant relief
that the party was remediless at law. It has also been truly said that
the only thing inquired of in a court of equity is, whether the
property bound by. a trust has come into the hands of persons who
are either bound to execute the trust or to preserve the property for
the persons entitled to it. If we advert to the cases on the subject
we shall find that trusts are enforced not only against those persons
who are rightfully possessed of trust property as trustees, but also
against all persons who come into possession of the property bound by
the trust, as purchasers for value with notice of the trust, or transferees
who have not given value (commonly called volunteers), whether they
have notice of the trust or not. And whosoever so comes into
possession is considered as bound, with respect to that special property,
to the execution of the trust (e).
§ 534. Certainly to no persons can these considerations more
appropriately apply than to executors and administrators, and those
claiming under them, with notice of the administration and assets.
But if it were the sole ground of sustaining the jurisdiction, that it
is the case of a trust cognizable in equity alone, it would follow that,
instead of being a matter of concurrent jurisdiction, it would be a
matter belonging to the exclusive jurisdiction of equity. For,
although equity does not purport to entertain jurisdiction of all trusts
— some of them, such as cases of bailments, being ordinarily cog-
nizable at law (/)— yet, of such trusts as are peculiar to courts of
equity, the jurisdiction is exclusive in such courts. Now, we all know
that, formerly, both the courts of common law and the ecclesiastical
courts had cognizance of administrations, and many suits respecting
the administration of assets were daily entertained therein. Courts
of equity, therefore, in assuming general jurisdiction over cases of
administration, did indeed, in some measure, found themselves upon
the notion of a constructive trust in the executors or administrators (g) .
But the fact of there being a constructive trust was not the sole
ground of jurisdiction. Other auxiliary grounds also existed, such
as the necessity of taking accounts, and the consideration that the
remedy at law, when it existed, was not plain, adequate, and complete.
The jurisdiction, therefore, now assumed by courts of equity to so

(e) Thomdike v. Hunt, 3 De G. & J. 563; Hennessey v. Bray, 33 Beav. 96;

Sherijf v. Butler, L. E. 2 Bq. 549. A stranger who has received assets from an exe-
cutor de son tort cannot be called to account as executor de son tort, though the assets
can be followed in equity in his hands. Hill v. Curtis, L. E. 1 Bq. 90. See Rayner
V. Koehler, L. E. 14 Bq. 262.
(/) Black. Coram. 431, 432. (g) Bac. Abr. Legacy, M.
228 EQUITY JURISPRUDENCE. [CH. IX.

wide an extent over all administrations and the settlement of estates,

in cases of testacy and intestacy, is not (as it should seem) exclusively
referable to the mere existence of a constructive trust vi^hich is often
sufficiently remediable at law; but it is referable to the mixed con-
siderations already adverted to, each of which has a large operation
in equity.
§ 535. A little attention to the nature of the jurisdiction exercised
in the courts of common law and formerly by the ecclesiastical courts
in cases of administrations will abundantly show the necessity of the
interposition of courts of equity. In the first place, in suits at common
law, nothing more could be done than to establish the debt of the
creditor; and if there were any controversy as to the existence of
the assets and a discovery were wanted, or if the assets were not of
a legal nature, or if a marshalling of the assets were indispensable to
a due payment of the creditor's claim, it is obvious that the remedy
at law could not be effectual. But there might be other interests
injuriously affected by the judgment of a court of common law in a
suit by a creditor, which injury that court could not redress or prevent,
but which courts of equity could completely redress or prevent.
§ 536. In the next place, as to the ecclesiastical courts. They
had, it is true, an ancient jurisdiction over the probate of wills and
the granting of administrations ; and, as incident thereto, an authority
to enforce the payment of legacies of personal property (h). But
although an executor or administrator was compellable by statute to
account before the Ordinary or Ecclesiastical Judge, yet the Ordinary
might waive this obligation and in any event was to take the account
as given in by the executor or administrator, and could not oblige
him to prove the items of it or to swear to the truth of it (i).
§ 537. The statute of 31 Edw. 3, c. 11, put executors and ad-
ministrators upon the same footing as to accounting for assets, but
it in no manner whatsoever changed the mode of accounting by either
of them (k). A legatee might falsify the account of an executor or
administrator in the spiritual court, as might also the next of kin,
since the Statute of Distributions of 22 & 23 Car. 2, c. 10. But a
creditor of the estate could not falsify the account in the ecclesiastical
court, for his proper remedy was held to be at the common law (l).
By the statute of 21 Hen. 8, c. 5, s. 4, executors and administrators
were bound to deliver an inventory of the effects of the deceased upon
oath to the Ordinary. But the inventory could not be controverted
(h) Black. Coram. 494; 3 Black. Coram. 98; Bac. Abr. Legacies, M. ; 2 Fonbl. Eq.
B. 4, oh. 1, § 1, and notes ; Marriott v. Marriott, 1 Str. 666.
(t) 2 Fonbl. Bq. B. 4, oh. 3, § 2, and note (d); Boone's Case, T. Eaym. 470;
Archbishop of Canterbury v. Wills, X Salk. 315.
(ft) 2 Black. Coram. 496; 4 Burns, Bccles. Law, Wills, Distribution, Account, viii.
p. 368.
(I) Hinton v. Parker, 8 Mod. 168; Gatchside v. Ovington, 3 Burr. 1922; Arch-
bishop ofCanterbury v. Wills, 1 Salk. 315.
§ 535 — 540.] ADMINISTRATION. 229

in the ecclesiastical courts by a creditor, but only by a legatee (m).

Even an administration bond could not be broken by an omission to
pay a creditor's debt; but it was a security merely for those who are
interested in the estate (n). Indeed, before the Statute of Distribu-
tions, it was a matter greatly debated whether an administrator
could be compelled to make any distribution of an intestate's estate;
and, for a great length of time, it was held that an executor was in
all cases entitled to the personal estate of his testator not disposed of
by his will (o).
§ 538. The jurisdiction of the ecclesiastical courts being so mani-
festly defective in the case of creditors, resort was almost necessarily
had to courts of equity, to compel a discovery of assets and an account.
And where a creditor did not seek a general settlement of the estate
by a suit on behalf of himself and all other creditors, still, he was
entitled to a discovery in courts of equity, to enable him to recover
his own debt in an action at law (pj.
§ 539. In regard to legatees, also, the remedy was in many casQS
quite as defective. No remedy lay at the common law in cases of
pecuniary legacies (g) ; and although (as has been stated) a remedy did
lie in the spiritual courts ; yet, in a great variety of cases, that remedy
was insufficient and imperfect. Thus, if payment of a legacy were
pleaded to a suit in the ecclesiastical courts, and there was but one
witness of the fact (which the ecclesiastical courts would not admit
as sufficient proof, for their law required two), there the temporal
courts would grant a prohibition to further proceedings (r). So,
formerly, if a husband should sue for a legacy in the ecclesiastical
courts, the Court of Chancery would prohibit him; because the
ecclesiastical courts could not compel him to make any settlement on
his wife in consideration of the legacy (s). So, if a legacy were due to
an infant, the Court of Chancery would interfere, at the instance of
the executor, and prevent the spiritual courts from proceeding,
because the executor might be entitled to a bond to indemnify him,
and to a refund in case of a deficiency of assets (t). Many other cases
might be put of a like nature.
§ 540. But a stronger instance may be stated. If the testator did
not dispose of the residue of his estate; and yet, from the circum-

(m) Hinton v. Parker, 8 Mod. 168; Catchside v. Ovington, 3 Burr. 1922.

(n) Archbishop of Canterbury v. Wills, 1 Salk. 315; Greenside v. Benson, 3Atk.
248, 252; Ashley v. BailUe, 2 Ves. 368; Wallis v. Pipon, Ambler 183; Archbishop of
Canterbury v. House, Cowp. 140; Thomas v. Archbishop of Canterbury, 1 Cox 399.
(o) 2 Black. Comm. 514, 515 ; Toller on Executors, B. 3, ch. 6, p. 369.
(p) Com. Dig. Chancery, 2 C. 3; id. 3, B. 1, 2.
(g) Decks v. Strutt, 5 T. E. 690.
(r) Bac. Abr. Legacy, M. ; 3 Black. Comm. 112.
(s) 2 Fonbl. Eq. B. 4, Pt. 1, ch. 1, § 2, and note (d).
(t) Horrell v. Waldron, 1 Vern. 26; Noel v. Robinson, 1 Vern. 91. But see
Anon., 1 Atk. 491; Hawkins v. Day, Ambler 162.
230 KQUITY JDRISPRUDENCE. [CH. IX.

stances of the will, the executor was plainly not entitled to the
residue, there he would be held liable to distribute it, as a trustee for
the next of kin. But the spiritual courts had no jurisdiction what-
soever in such a case to enforce a distribution; for trusts were not
cognizable in those courts, and could not be enforced by them (m).
Even in the common case of a legacy of personal estate, the legacy
does not vest in the legatee until the executor assents to it ; and until he
assented, it could not be sued for in the spiritual courts. But courts of
equity consider the executor to be a trustee of the legatee, and will
compel him to assent to and pay the legacy as a matter of trust (x).
And if there were no legal assets to pay a legacy, although there were
ample equitable assets, the spiritual courts could not enforce payment
of the legacy; for they had no jurisdiction over equitable assets (y).
§ 541. In cases of distribution of the residue of estates, the remedy
in the spiritual courts was also, on other accounts, exceedingly
defective : for those courts did not possess any adequate means for a
perfect ascertainment of all the debts; or to compel a payment of
them, when ascertained, so as to fix the precise residuum ; or to protect
the executor or administrator in his administration, according to their
decree. Besides, the interposition of a court of equity may be required
for many other purposes, before a final settlement and distribution
of the estate; as, for instance, to compel an executor to bring the
funds into court, or to give security for the payment of debts, legacies,
and distributive shares, where there is danger of insolvency, or he is
wasting the assets, or where the debts, legacies, and distributive shares
are not presently payable, or payment cannot be presently enforced (z).
§ 542. The jurisdiction of courts of equity to superintend the
administration of assets, and decree a distribution of the residue, after
payment of all debts and charges among the parties entitled either as
legatees or as distributees, does not seem to have been thoroughly
established until near the close of the reign of Charles II. The
objection was then made that the spiritual courts had fuU. authority,
under the Statute of Distributions, to decree a distribution of the
residue. But upon a demurrer filed to a bill for a distribution, it
was held, by the Lord Chancellor, that, there being no negative
words in the Act of Parliament (the Statut« of Distributions), the
jurisdiction of the Court of Chancery was not taken away; for the
remedy in Chancery was more complete and effectual than that in the
spiritual courts ; or, to use the language of the court upon that occasion,

{u) Farnngton v. Knightley, 1 P. Will. 645, 548.

(x) Wind V. Jekyll, 1 P. Will. 672; Attenborough v. Solomon, 1913, A. C. 76.
(y) Barker v. May, 9 B. & C. 489.
(z) Strange v. Harris, 3 Bro. C. C. 365; Blake v. Blake, 2 Sch. & Lefr. 26,-
Scott V. Becher, 4 Pri. 346: Danby v. Danby, 5 Jur. N. S. 54; In re Braithwaite,
Braithwaite v. Wallis, 21 Ch. D. 121.
§ 541 544.] ADMINISTRATION. 231

the spiritual court in that case had but a lame jurisdiction (a). And,
although, ordinarily, in cases of concurrent jurisdiction, the decree
of the court first having possession of the cause is held conclusive ;
yet courts of chancery have not held themselves bound by decrees
of the spiritual courts in cases of distribution, from their supposed
inability to do entire justice (b).
§ 543. By the Court of Probate Act, 1857 (20 & 21 Vict. c. 85),
ss. 3, 4, and 23, the jurisdiction of the ecclesiastical courts over
testamentary matters was taken away and transferred to the Queen,
to be exercised by a Court of Probate then created; but it was
provided that no suits for legacies or suits for the distribution of
residues should be entertained by that court, or by any court or person
whose jurisdiction as to matters and causes testamentary was
abolished. The immediate effect of this statute was to confer an
exclusive jurisdiction upon the Court of Chancery to settle the ad-
ministration ofestates, and this jurisdiction was transferred to the
Chancery Division of the High Court by the Judicature Act, 1873
(36 & 37 Vict. c. 66). There is now a general concurrent jurisdiction
in the Court of Bankruptcy (c), and a limited concurrent jurisdiction
in the County Court (d).
§ 544. The application for aid and relief in the administration of
estates is sometimes made by the executor or administrator himself,
when he finds the affairs of his testator or intestate so much involved
that he cannot safely administer the estate except under the direction
of a court of equity. In such a case it is competent for him to
institute a suit against the creditors generally, for the purpose of
having all their claims adjusted, and a final decree settling the order
and payment of the assets (e). These used to be called bills of con-
formity (probably because the executor or administrator in such case
undertook to conform to the decree, or the creditors were compelled by
the decree to conform thereto) ; and they were not encouraged, because
they had a tendency to take away the legal preference which one
creditor might gain over another by his diligence. Besides, it was
said that these bills might be made use of by executors and ad-
ministrators tokeep creditors out of their money longer than they
otherwise would be (/). However correct these reasons may be for a
refusal to interfere in ordinary cases involving no difficulty, they are
not sufficient to show that the court ought not to interfere in behalf

(a) Matthews v. Newby, 1 Vern. 133; Howard v. Howard, 1 Vern. 134; Buede
v. Atleo, 2 Vern. 37 ; Petit v. Smith, 1 P. Will. 7, 1 Mad. Pr. Ch. 467.
(6) See Bissell v. Axtell, 2 Vern. 47, and Mr. Eaithby's note.
(c) In r£ Baker, Nicholls v. Baker, 44 Ch. D. 262.
(d) County Court Act, 1888 (51 & 52 Vict. c. 43), s. 67.
(e) Com. Dig. Chancery, 3 G. 6 ; Buccle v. Atleo, 2 Vern. 37.
(/) Morrice v. Bank of England, Cas. temp. Talb. 224.
232 EQUITY JURISPBUDENCE. [CH. IX.

of an executor or administrator under special circumstances where

injustice to himself or injury to the estate may otherwise arise (g).
§ 545. A doubt was, indeed, suggested whether a bill could be
maintained against all the creditors (h). But if the bill was brought
against certain known creditors who were proceeding at law, it may be
asked. What was the difficulty of proceeding in the same way as was
done as to all creditors, upon a bill brought by one or more creditors
in behalf of themselves and all other creditors? Upon, a decree for
the executor or administrator to account, all the creditors were or
might be required to present and prove their debts before the master
in the one case as in the other. But upon such a biU, brought by an
executor or administrator, the court would not formerly interpose, by
way of injunction, to prohibit creditors proceeding at law, until there
had been a decree against the executor or administrator to account
in that suit; for, otherwise, the latter might without reason make it
a ground of undue delay of the creditors (i).
§ 545a. A bill might also be maintained by personal representa-
tives for a discovery of assets belonging to the deceased (k).
§ 546. But the more ordinary case of relief, sought in equity in
cases of administration, is by creditors. A single creditor may proceed
for payment of his own debt, and seek a discovery of assets for this
purpose only (l). It he does so, and the proceedings are mdntainable,
the court does not decree a general account of debts ; but the common
course is to direct an account of the personal estate, and of that
particular debt which is ordered to be paid in the due course of
administration (m). If the debt is admitted or proved, and the personal
representative admits assets, the creditor takes an order for immediate
payment, and there is no necessity for a judgment for administration
or for accounts and enquiries (n).
§ 547. The more usual course, however, pursued in the case of
creditors, was for one or more creditors to file a bill (commonly called
a creditors' biU) by and on behalf of him, or themselves, and all other
creditors who should come under the decree, for an account of the
assets and a due settlement of the estate (o). And this applies as well
when the party suing is a creditor whose debt is payable in presenti,
as when his debt is due in juturo, if it be debitum i>i presenti, solven-
dum in juturo (p) ; and whether he has a mortgage or not (g). Bills of

(g) Com. Dig. Chancery, 3 G. 6.

Oi) Rush V. Higgs, i Ves. Jun. 638, 643. (t) Ibid.
(fc) Wright v. Bluck, 1 Vern. 106. See Walsh v. Stoddart. i Dr. and War. 159.
(!) Dulwich College v. Johnson, 2 Vern. 49.
(to) Monice v. Bank of England, Gas. temp. Talb. 217; Perry v. Phelips, 10
Vea. 38.
(n) Woodgate v. Field, 2 Hare, 211.
(o) See the case of The Creditors of Sir Charles Cox, 3 P. Will. 343.
(p) Whitmore v. Oxborrow, 2 Y. & C, Ch. 13.
(g) Greenwood v. Firth, 2 Hare 241, note; Aldridge v. Westbrook, 5 Beav. 138.
§ 545 — 548a.] administration. 233

this sort have been allowed upon the mere principle that, as executors
and administrators have vast powers of preference at law, courts of
equity ought, upon the principle that equality is equity, to interpose
upon the application of any creditor by such a bill, to secure a
distribution of the assets without preference to any one or more
creditors (r). And as a decree in equity is held of equal dignity and
importance with a judgment at law, a decree upon a bill of this
sort, being for the benefit of all creditors, makes them all creditors
by decree upon aji equality with creditors by judgment, so as to
exclude, from the time of such decree, all preferences in favour of the
latter (s).
§ 548. The usual decree, in the case of creditors' bills against the
executor or administrator, is (as it is commonly phrased) quod
computet, that is to say, it directs the master to take the accounts
between the deceased and all his creditors; and to cause the creditors,
upon due public notice, to come before him to prove their debts, at a
certain place, and within a limited period; and it also directs the
master to take an account of all the personal estaiie of the deceased
in the hands of the executor or administrator, and the same to be
applied in payment of the debts and other charges, in a due course
of administration (t). In all cases of this sort, any person interested in
estate as beneficiary or creditor is entitled to appear before the master,
and may there, if he chooses, contest the claim of any other person
claiming to be a creditor, in the same manner as if it were an
adversary suit (u).
§ 548a.. Under the practice introduced by the Eules of the Supreme
Court 1883, 0. LV., r. 4, it is usual to apply for administration of
the real and personal estate of a deceased person by a summons
designated an originating summons, and if the plaintiS resorts to a
writ he may be visited with the increased costs of choosing the
more expensive remedy (x). And in matters- within the jurisdiction
of the County Court, should resort to that tribunal at the risk of being
under the life penalty (y). There is no reason why the Bankruptcy
Court should be resorted to in preference to the High Court (a). The
persons entitled to sue out a summons for administration in the
High Court are, by Order LV., rules 3 & 4, the executors and
(r) Rush v. Higgs, i Ves. Jun. 638, 643; Gilpin v. Lady Southampton, 18 Ves.
469.
(s) Morrice v. Bank of England, Cas. temp. Talb. 217 ; Perry v. Phelips, 10 Ves.
38, 39, 40; Brooks v. Reynolds, 1 Bro. C. C. 183; Paxton v. Douglas, 8 Ves. 520.
(t) The Creditors of Sir Charles Cox, 3 P. Will. 343.
(m) Shewen v. Vanderhorst, 1 Euss. & M. 347; Fuller v. Redman, 26 Beav. 614;
Moodie v. Bannister, 4 Drew. 482, In re Wenham, Hunt v. Wenham [1892] 8 Ch.
59 ; Midgley v. Midgley [1898] 3 Ch. 282.
(x) In re Johnson, Wragg v. Shand, 53 L. T. 136; In re Francke, Drake
v. Francke, 57 L. J. Ch. 437.
(y) See Browne v. Rye, L. E. 16 Eq. 343; Crozier v. Dowsett, 31 Ch. D. 67.
(z) In re Baker, Nichols v. Baker, 44 Ch. D. 262.
234 EQUITY JURISPEUDENCE. [CH. IX.

administrators of a deceased person, or a creditor, devisee, legat-ee,

next of kin, or heir at law of a deceased person.
§ 549. As soon as the decree to account was made in such a suit,
brought in behalf of all the creditors, and not before, the executor or
administrator was, before the Judicature Act, 1873, entitled to an
injxmction out of Chancery, to prevent any of the creditors from
suing him at law, or proceeding in any suits already commenced,
except under the direction and control of the court of equity, where
the decree was passed (a). The object of the court, under such circum-
stances, was to compel all the creditors to come in and prove their
debts before the master; and to have the proper payments and
discharges made under the authority of the court; so that the executor
or administrator might not be harassed by multiplicity of suits, or
a race of diligence be encouraged between different creditors, each
striving for an undue mastery and preference. And this action of
the court presupposed, that all the legal rights of every creditor, and
the validity of his debt, might be, and, indeed, must be, determined
in equity, upon the same principles as it would be at law (b). But, in
order to prevent any abuse of such bills, by connivance between an
executor or administrator and a creditor, it was a common practice
to grant an injunction only, when the answer or afi&davit of the
executor or administrator stated the amount of the assets, and upon
the terms of his bringing the assets into court, or obeying such other
order of the court, as the circumstances of the case might require (c).
The same remedial justice was applied, where the application, instead
of being made by creditors, was made by legatees or trustees (d).
Now by the Judicature Act, 1873, s. 24, sub-s. 5, the same result would
be obtained by an application to the court in which the creditor is
suing, to stay proceedings on the ground that an administration action
is pending in the Chancery Division; or by a counter-claim for ad-
ministration followed by an application for a transfer of the action to
the Chancery Division.
§ 550. The considerations already mentioned apply to cases where
the assets are purely of a legal nature ; and no peculiar circumstances
require the interposition of courts of equity, except those appertaining
to the necessity of taking an account, and having a discovery, and
decreeing a final settlement of the estate. But in a great variety of
cases, the jurisdiction of courts of equity became indispensable, from
the fact, that no other courts possessed any adequate jurisdiction to
(o) Morrice v. Bank of England, Cas. temp. Talb. 217; Brooks v. Reynolds, 1
Bro. C. C. 183, and Mr. Belt's note; Clarke v. Earl of Ormonde, Jac. 122; In re
Roberts, Fowler v. Roberts, 2 Giff. 226; Marriage v. Skiggs, 4 De G. & J 4.
(b) Whitaker v. Wright, 2 Hare 310.
(c) Gilpin V. Lady Southampton, 18 Ves. 469; Clarke v. Earl of Ormonde, Jac.
122; Lee v. Park, 1 Keen 714; Mitford, Plead, by Jeremy 311.
(d) Brooks v. Reynolds, 1 Bro. C. C. 183; Perry v. Phelips, 10 Ves. 38; Jackson
V. Leap, 1 J. & W. 231 and note.
§ 549 552.] ADMINISTRATION. 235

reach the entire merits, or dispose of the entire merits. This was
necessarily the case where there were equitable assets as well as legal
assets, and, also, where the assets were required to be marshalled,
in order to a full and perfect administration of the estate, and to
prevent any creditor, legatee, or distributee from being deprived of
his own proper benefit, by reason of any prior claims which might
obstruct it.
§ 551. And, first, in relation to equitable assets. That portion
only of the assets of the deceased party are deemed legal assets
which by law are directly hable, in the hands of his executor or
administrator, to the payment of debts and legacies. It is not within
the design of these Commentaries to enter into a minute examination
of what are deemed legal assets. But, generally speaking, they may
be defined as assets which come into the hands and power of an
executor or administrator, or such as he is entrusted with by law,
virtute officii, to dispose of in the course of administration. In other
words, whatever an executor or administrator takes qua executor
or administrator, or in respect to his office, or which he can recover
in any court of equity as well as of law, is to be considered as legal
assets (e).
§ 552. Equitable assets are, on the other hand, aU assets which
are chargeable with the payment of debts or legacies in equity ; and
which do not fall under the description of legal assets. They are
called equitable assets, because the creditor of the deceased could
formerly only obtain payment out of them, by the aid and instrumen-
tality of a court of equity (/). They are also called equitable for
another reason; and that is, that the rules of distribution by which
they are governed are different from those of the distribution of legal
assets {g). In general, it may be said, that equitable assets are of
two kinds; the first is, where assets are created such by the intent
of the party; the second is, where they result from the nature of the
estate made chargeable. Thus, for instance, if a testator devises land
to trustees, to sell for the payment of debts, the assets resulting from
the execution of the trust, are equitable assets upon the plain intent
of the testator, notwithstanding the trustees are also made his
executors, for, by directing the sale 'to be for the payment of debts
generally, he excludes all preferences, and the property would not
before the Administration of Estates Act, 1833 (3 & 4 Will. 4, c. 104),
otherwise have been liable to the payment of simple contract debts {h).
The same principle applies, if the testator merely charges his lands
(e) Cook V. Gregson, 3 Drew. 547; Christy v. Courtenay, 26 Beav. 140; AU.-Gen,
V. Brunning, 8 H. L. C. 258.
(/) In re Power, Acworth v. Storie [1901], 2 Ch. 665.
(g) Talbot v. Frere, 8 Ch. D. 568; Walters v. Walters, 18 Ch. D. 182.
(/i) Newton v. Bennet, 1 Bro. C. C. 135; Silk v. Prime, 1 Bro. C. C. 138, noter
Clay V. Willis, 1 B. & C. 364; Barker v May, 9 B. & C. 489; Bain v. Sadler, L. E.
12 Eq. 570.
236 EQUITY JURISPRUDENCE. [CH. IX.

with the payment of his debts (0- On the other hand, if the estate
be of an equitable nature, and be chargeable with debts, the fund is
to be deemed equitable assets, unless by some statute it is expressly
made legal assets; for it cannot be reached except through the
instrumentality of a court of equity. And it may be laid down as a
general principle, that everything is considered as equitable Eissets,
which the debtor has made subject to his debts generally, and which,
without his act, would not have been subject to the payment of his
debts generally (fe).
§ 553. In the course of the administration of assets, courts of
■equity followed the same rules in regard to legal assets, which were
formerly adopted by courts of law; and gave the same priority to the
different classes of creditors, which was enjoyed at law; thus main-
taining a practical exposition of the maxim, Mquitas sequitur legem (I).
In the like manner, courts of equity recognized and enforced all ante-
cedent liens, claims, and charges in rem, existing upon the property
according to their priorities; whether these charges were of a legal or
of an equitable nature, and whether the assets were legal or equit-
able (m). One of these priorities was that enjoyed by specialty
creditors over creditors by simple contract which was abolished as from
January 1, 1870, by the Administration of Estates Act, 1869 (32 &
33 Vict. c. 46), sometimes still called Hinde Palmer's Act. This
■statute expressly preserves the full force of any lien, charge, or other
security which any creditor may hold or be entitled to for the payment
of his debt.
§ 554. But in regard to equitable assets (subject to the exception
already stated), courts of equity, in the actual administration of them,
adopted very different rules from those formerly adopted in courts of
law in the administration of legal assets. Thus, in equity, it was and
is a general rule that equitable assets shall be distributed equally, and
■pari passu, among all the creditors, without any reference to the
priority or dignity of the debts; for courts of equity regard all debts
in conscience as equal jure naturali, and equally entitled to be paid;
and here they follow their own favourite maxim that equality is equity ;
JEquitas est quasi sequalitas. And if the fund falls short, all the
creditors are required to abate in proportion (n).
§ 554a. The rules which the Court of Chancery applied in the
administration of .estates were part of the lex fori, and priorities were
determined according to the English law, and not according to that

(i) Silk v. Prime, 1 Bro. C. C. 138 n. ; Price v. North, 1 Ph. 85.

(k) Silk V. Prime, 1 Bro. C. C. 138 n.
(l) Att.-Gen. v. Brunning, 8 H. L. C. 258; Morrice v. Bank of England, Cas.
•temp. Talb. 220, 221.
(m) Freemoult v. Dedire, 1 P. Wms. 429; Pope v. Gwinn, 8 Ves. 28, note.
(n) Creditors of Sir Charles Cox, 3 P. Wins. 343; In re Poole, Thompson v. Ben-
net, 6 Ch. D. 739.
§ 553 555.] ADMINISTKATION. 237

of the law of the country where an obligation was incurred (o), but the
court gave full effect to charges upon property created by a contract
entered into outside its jurisdiction (p). A secured creditor formerly
possessed the right of realizing his security, and proving for the whole
debt in competition with the unsecured creditors, not receiving in the
result more than 20s. in the £1. In the case of an insolvent estate
this worked what was deemed a serious injustice to the unsecured
creditors, and has been altered by the introduction of the bankruptcy
rule by the Judicature Act, 1878 (86 & 37 Vict. c. 66), s. 10. The
secured creditor where the estate is insolvent must now adopt one of
four courses, (1) rely entirely on his security ; or (2) reahze his security
and prove for the balance ; or (8) value his security and prove for the
balance ; or (4) surrender his security and prove for the whole debt. If
he adopts courses (1) or (3) his security may be redeemed at the face
value or the assessed value as the case may be, and in the latter event
subject to the right of the creditor to amend his valuation in the event
of a clear mistake or a change of circumstances, unless he has accept'ed
payment (q).
§ 555. It frequently happens, also, that lands and other property,
not strictly legal assets, are charged, not only with the payment of
debts, but also with the payment of legacies. In that case, all the
legatees take pari passu; and if the equitable assets (after payment
of the debts) are not sufficient to pay all the legacies, the legatees are
all required to abate in proportion, unless some priority is specially
given by the testator to particular legatees; for, prima facie, the
testator must be presumed to have considered that he had assets
sufficient to answer all the legacies and to intend that all his legacies-
shall be equally paid (r). But suppose the case to be, that the equit-
able assets are sufficient to pay all the debts ; but, after such payment'
not sufficient to pay any of the legacies; and the property is charged
with the payment of both debts and legacies. In such a conflict of
rights, the question must arise, whether the creditors and legatees are
to share in proportion, pari passu; or the creditors are to enjoy a
priority of satisfaction out of the equitable assets. This was formerly
a matter of no inconsiderable doubt ; and it was contended with much-
apparent strength of reasoning that, as both creditors and legatees,
in such a case, take out of the fund by the bounty of the testator,
and not of strict right, they. ought to share in proportion, pari passu.
After some struggle in the courts of equity upon this point, it was at
(o) Pardo v. Bingham, L. B. 6 Eq. 485.
(p) In re de Nicols, de Nicols v. Curlier, [1900] 2 Ch. 410. See Lashley v. Hog, 2'
Coop. t. Cott, 449.
(q) See Exp. Drake, In re Ware, 5 Ch. D. 866; Gouldery v. Bartrum, 19 Ch. D.
394; Exp. Norris, In re Sadler, 17 Q. B. D. 728; Exp. Nat. Prov. Bk. of England,.
In re Newton [1896] 2 Q. B. 403.
(r) Beeston v. Booth, 4 Mad. 161 ; Thwaites v. Foreman, 1 Coll. 409; affd. 10 Jur.
483 ; In re Harris, Harris v. Harris, [1912] 2 Ch. 241.
238 EQUITY JURISPRUDENCE. [CH. IX.

length settled that, although as between themselves, in regard to

equitable assets, the creditors- are all equal, and are to share in propor-
tion, pari passu; yet, as between them and legatees, the creditors are
entitled to a priority and preference ; and that legatees can take nothing
until the debts are all paid (s).
§ 556. The ground of this decision was, that it is the duty of every
man to be just before he is generous; and no one can well doubt the
moral obligation of any man to provide for the payment of all his
debts. The presumption, therefore, in the absence of all other words,
showing a different intent (which intent would, however, no longer
prevail), was, and is, that a testator means to provide first, for the
discharge of his moral duties, and next, for the objects of his bounty,
and not to confound the one with the other. For, otherwise, the
testator would, in truth, and in foro conscientise , be disposing of
another's property, and not making gifts ultra ses alienum. The good
sense of this latter reasoning can scarcely escape observation. It
proceeds upon the just and benignant interpretation of the intention
of the party to fulfil his moral obligations in the just order which
natural law would assign to them.
§ 557. In cases where the assets were partly legal, and partly
equitable, courts of equity would not interfere to take away the legal
preference of any creditors to the legal assets. But, if any creditor
had been partly paid out of the legal assets by insisting on his
preference, and he sought satisfaction of the residue of his debt out
of the equitable assets, he would be postponed, till all the other
creditors, not possessing such a preference, had received out of such
equitable assets an equal proportion of their respective debts (t). This
doctrine is founded upon and flows from that which we have been
already considering, that in natural justice and conscience aU debts
are equal; that the debtor himself is equally bound to satisfy them all;
and that equality is equity. When, therefore, a court of equity was
called upon to assist a creditor, it had a right to insist, before relief
was granted, that he who seeks equity shall do equity ; that he should
not make use of the law in his own favour to exclude equity ; and at
the same time insist that equity should aid the defects of the law, to
the injury of equally meritorious claimants. The usual decree in cases
of this sort was, that the creditor who had exhausted (or should
exhaust) any part of the testator's estate in satisfaction of his debts,
should not come upon or receive any further satisfaction out of the
residue of the testator's estate (or the equitable assets) until the other
creditors should thereout be made up equal with him (u). This is
sometimes called marshalling the assets; but that appellation more

(s) Walker v. Meager, 2 P. Wms. 560; Kidney v. Coussmaker, 12 Ves. 136.

(t) Chapman v. Esqar, 1 Sm. & G. 575 ; Bain v. Sadler, L. E. 12 Eq. 570.
(«) See Aldrich v. Cooper, 8 Ves. 382.
 § 556 — 559.] ADMINISTRATION. 239

appropriately belongs (as we shall immediately see) to another mode

of equitable interference. The present is rather an exercise of equit-
able jurisdiction in refusing relief, unless upon the terms of doing
equity.
§ 558. In the next place, as to marshalling assets (strictly so called)
in the course of the administration (x). In the sense of the lexi-
cographers, tomarshal, is to arrange or rank in order ; and in this sense,
the marshalling of assets would be, to arrange or rank assets in the
due order of administration. This primary sense of the language has
been transferred into the vocabulary of courts of equity ; and has there
received a somewhat peculiar and technical sense, although still
germane to its original signification. In the sense of the courts of
equity, the marshalling of assets is such an arrangement of the difEerent
funds under administration as shall enable all the parties, having
equities thereon, to receive their due proportions, notwithstanding any
intervening interests, liens, or other claims of particular persons to
prior satisfaction, out of a portion of these fimds. THius, where there
exist two or more funds, and there are several claimants against them,
and at law one of the parties may resort to either fund for satisfaction,
but the others can come upon one only ; there, courts of equity exercise
the authority to marshal (as it is called) the funds, and by this means
enable the parties whose remedy at law is- confined to one fund only,
to receive due satisfaction (y). The general principle upon which
t courts of equity interfere in these cases is, that, without such inter-
ference, he who had a title to the double fund would possess £Ui
uni'easonable power of defeating the claimants upon either fund, by
taking his satisfaction out of the other, to the exclusion of them. So
that, in fact, it would be entirely in his election, whether they should
receive any satisfaction or not. Now, courts of equity treat such an
exercise of power as wholly unjust and unconscientious; and therefore
will interfere, not, indeed, to modify or absolutely to destroy the power,
but to prevent it from being made an instrument of caprice, injustice,
or imposition. Equity, it affording redress in such cases, does little
more than apply the maxim. Nemo ex alterius detrimento fieri debet
locupletior (z).
§ 559. And this principle is by no means confined to the adminis-
tration ofassets; but it is applied to a vast variety of other cases (as
we shall hereafter see); as, for instance, to cases of two mortgages
where one covers two estates, and the other but one ; to cases of extents
by the Crown; and, indeed, to cases of double securities generally (a).
It may be laid down as the general rule of the courts of equity in cases
of this sort, that, if a creditor has two funds, and in the exercise of
(x) Post, § § 633 to 643.
(y) Aldrich v. Cooper, 8 Ves. 382; In re Cornwall, 3 Dru. & War. 173.
(z) See Mills v. Eden, 10 Mod. 499; ante, §§ 327, 499; post, §§ 633 to 642.
(a) Aldrich v. Cooper, 8 Ves. 382; In re Cornwall, 3 Dra. & War. 173.
240 EQUITY JURISPRUDENCE. [OH. IX.

his undoubted right pursues his remedy against one or other of his
securities, a creditor with a security over one of the funds shall be-
compensated to the extent to which he has been disappointed by the
election of the other creditor (&). The rule has been extended to the
case of other persons standing in a similar predicament. Where a
person mortgages two properties to secure one and the same sum of
money, and afterwards devises them to different beneficiaries, the
charges are apportioned upon the properties according to their respec-
tive values, and the beneficiary who pays more than the apportioned
part may recover the excess from the other beneficiary, unless it clearly
appear that the parties have agreed that the properties shall stand
security in specific order (c). So where an agent mortgaged property
of his principal for his personal debt in excess of his authority, and
the mortgagee enforced his right to repayment against the principal's
property, the principal was held entitled to enforce against the property
of the agent liberated by this act of the mortgagee so much of the
sum advanced by the mortgagee as exceeded that which the agent was
authorized to raise (d). The rule is applicable whether the properties
mortgaged be land (e), or personalty (/), or partly one and partly the
other (g).
§ 560. But, although the rule is so general, yet it is not to be
understood without some qualifications. It is never applied except
where it can be done without injustice to the creditor, or other party
in interest, having a title to the double fund, and also without injustice
to the common debtor (h). Nor is it applied in favour of persons who
are not common creditors of the same common debtor, except upon
some special equity. ITius, a creditor of A. has no right, unless some
peculiar equity intervenes, to insist that a creditor of A. and B. shall
proceed against B.'s estate alone for the satisfaction of his debt, so
that he may thereby receive a greater dividend from A.'s estate (t).
So, where a creditor is a creditor upon two estates for the same debt,
he "will be entitled to receive dividends to the full amount from both
estates, until he has been fully satisfied for his debt; for his title in
such a case is not to be made to yield in favour of either estate, or the
creditors of either to his own prejudice (fc). It has, indeed, been said
by Lord Hardwicke, that courts of equity have no right to marshal

(b) Clifton V. Burt, 1 P. Wms. 678 and Mr. Cox's note.

(c) Aldrich V. Cooper, 8 Ves. 382; Johnson v. Child, i Hare, 87; In re Athill,
Athill V. Athill, 16 Ch. D. 211.
(d) Ex parte Skyrme, In re Burge, Woodall if Co. [1912] 1 K. B. 393.
(e) Aldrich v. Cooper, 8 Ves. 382; In re Athill, Athill v. Athill, 16 Ch. D. 211.
(J) Ex parte Skyrme, In re Burge, Woodall & Co. [1912] 1 K. B. 393.
ig) In re Cornwall, 3 Dru. & War. 173; Johnson v. Child, i Hare, 87.
(h) Barnes v. Rackster, 1 Y. & C. Ch. 401 ; Earl of Clarendon v Barham,
1 Y. & C. Ch. 688; Flint v. Howard [1893] 2 Ch. 54.
(j) Ex parte Kendall, 17 Ves. 514; post, §§ 642 to 645.
(ft) Bonser v. Cox, 6 Beav. 84.
§ 560 — 563.] ADMINISTRATION. 241

the assets of a person who is alive, but only the real and personal
assets of a person deceased ; for the assets are not subject to the juris-
diction of equity until his death (Z). But this language is to be
understood with reference to the case in which it was spoken; for there
is no doubt that there may be a marshalling of the real and personal
assets of living persons under particular circumstances, where peculiar
equities attach upon the one or the other; although such cases are
very rare (m).
§ 561. The rule of courts of equity, in marshalling assets in the
course of administration, is, that every claimant upon the assets of a
deceased person shall be satisfied, as far as such assets can, by any
arrangement consistent with the nature of their respective claims, be
appHed in satisfaction thereof {n). The rule must necessarily, in its
application to the actual circumstances of different cases, admit, nay,
must require, very different modifications of relief. It may be illus-
trated by the suggestion of a few cases, which present its application
in a clear view, and show the limitations belonging to it.
§ 562. In tlie first place, before the Administration of Estates Act,
1833 (3 & 4 Will. 4, c. 104), if a specialty creditor received satisfaction
out of the personal assets of the deceased, a simple contract creditor
(who had before the statute no claim except upon the personal assets)
in equity stood in the place of the specialty creditor against the real
assets, so far as the latter had exhausted the personal assets in pay-
ment of his debts, and no farther. But the court would not, in cases
of this sort, extend the relief to creditors farther than the nature of the
contract would justify it. Therefore it must have been a specialty
creditor of the person whose assets were in question ; such a one as
might have had a remedy against both the real and personal estate
of the deceased debtor, or against either of them. For it was not every
specialty creditor in whose place the simple contract creditors could
come to affect the real assets. If the specialty creditor himself could
not affect the real estate, as, if the heirs were not bound by the
specialty; or if there were no personal covenant binding the party to
pay ; or if the creditors were not creditors of the same person, and had
not any demand against both funds, as being the property of the same
person; in these and the like cases, there was no ground for the inter-
position ofcourts of equity (o).
§ 568. On the other hand, if a specialty creditor, having a right to
resort to two funds, had not as yet received satisfaction out of either,

(/) Lacam v. MerUns, 1 Ve«. Sen. 312.

(m) See Ex parte Kendall, 17 Ves. 514; Barnes v. Rackster, 1 T. & C. Ch. 401;
Earl of Clarendon v. Barham, 1 T. & C. Ch. 688; Flint v. Howard [1893] 2 Ch. 54;
Ex parte Skyrme, In re Barge Woodall & Co. [1912] 1 K. B. 393.
(n) See Clifton v. Burt, 1 P. Will. 679, Mr. Cox's valuable note (1), from which
I have freely drawn.
(o) Clifton V. Burt, 1 P. Will. 679, Cox's note (1) ; Aldrich v. Cooper, 8 Ves. 382 ;
Ex parte Kendall, 17 Ves. 514. '
E.J. 16
242 EQUITY JUHISPRUDENCE. [OH. IX.

a court of equity would not interfere, either to throw him for satis-
faction upon the fund which could be effected by him only, to the
intent that the other fund should be clear for him who can have access
to the latter only; or put the creditor to his election between the one
fund and the other. There are, indeed, many cases in which it has
been, said that a doubly secured creditor is " thrown on " a particular
security in exoneration or relief of another, but it would be contrary
to all equitable principles to interfere with a party claiming for value
in the ex,ercise of his proprietary rights. According to the true prin-
ciple, ifthe creditor resorted to the fund, upon which alone the other
party had any security, it would decree satisfaction pro tanto to the
latter out of the other fund (p). The usual decree in such cases was,
that " in case any of the specialty creditors should exhaust any part
of the personal estate, then the simple contract creditors were to stand
in their place, and receive a satisfa<^tion pro tanto out of" the real
assets (g).
§ 564. The same principle applied to the case of a mortgagee, who
exhausted the personal estate in the payment of his debt. In such a
case the simple contract creditors were allowed to stand in the place
of the mortgagee, in regard to the real estate bound by the mort-
gage (r). And, where the personal assets had been so applied in
discharge of a mortgage, the simple contract creditors might, in
furtherance of the same principle, have compelled the heir to refund
so much of the personal assets as had been applied to pay ofi the
mortgage (s).
§ 564a. It was formerly doubted whether the same principle applied
to the case of a vendor of an estate, whose unpaid purchase-money
was, after the death of the purchaser, paid out of his personal estate.
But it was afterwards settled that, in such a case, the simple contract
creditors of the purchaser should stand in the place of the vendor,
with respect to his lien on the estate so sold, against the devisee, as
well as against the heir of the same estate (i). But by force of the
Real Estate Charges Act, 1867 (30 & 31 Vict. c. 69), this illustration
can no longer arise in practice, as the heir or devisee would have to
refund the balance so paid in any event.
§ 565. In general, legatees were entitled to the same equities
where the personal estate was exhausted by specialty creditors ; for
they would otherwise have been without any means of receiving the
bounty of the testator (m). So they were permitted, in like manner,
to stand in the place of the specialty creditors, against the real assets
(p) Hatherley, Jj.C— Dolphin v. Aylward, L. E. 4 H. L. & J. 501.
(g) Davies v. Tofp, 1 Bro. C. C. 526; Aldrich v. Cooper, 8 Ves. 382; Sproule v
Prior, 8 Sim. 189.
(r) Aldrich v. Cooper, 8 Ves. 382.
(s) Wilson V. Fielding, 2 Vern. 763.
(t) Selby V. Selby, 4 Euss. 336.
(u) Tipping v. Tipping, 1 P. Wms. 730; Burton v. Pierpoint, 2 P. Wms. 81.
§ 564 — 566a.] administration. 243

descended to the heir (x). So they were permitted, in like manner, to

stand in the place of a mortgagee, who had exhausted the personal
estate in paying his mortgage. And their equity would prevail, not
only in cases where the mortgaged prernises had descended to the
heir-at-law ; but also where they had been devised to a devisee, who is
to take subject to the mortgage (y). But their equity will not prevail
against a devisee of the real estate not mortgaged, whether he be a
specific or a residuary devisee, residuary devises being now specific by
force of the Inheritance Act, 1833 (3 & 4 Will. 4, c. 106); for he also
took by the bounty of the testator; and between persons, equally
taking by the bounty of the testator, equity would not interfere, unless
the testator had clearly shown some ground of preference or priority
of the one over the other (z). So that there was a distinction between
the case where the estate was devised, and there were specialty
creditors, and the case where it was devised, and there was a mortgage
on it. In the latter case, the legatees stood in the place of the mort-
gagee, ifhe exhausted the personal assets ; in the former case, they did
not stand in the place of the specialty creditors. The reason assigned
is, that a specialty debt is no lien on land in the hands of the obligor,
or his heir or devisee. But a mortgage is a lien, and an estate in
the land. By a devise of land mortgaged, nothing passes but the
equity of redemption, if it is a mortgage in fee; if it is for years, the
reversion and equity of redemption pass.
§ 566. In like manner, where lands are subjected to the payment
of all debts, legatees are permitted to stand, in regard to such lands,
in the place of simple contract creditors, who have come upon the
personal estate, and exhausted it so far as to prevent a satisfaction of
their legacies (a). So, where legacies given by a will are charged on
real estate, but legacies by codicil are not; the former legatees will be
compelled to resort to real assets, if there is a deficiency of the assets
to satisfy both (b).
§ 566a. Upon analogous grounds, if the subject-matter of a specific
legacy is pledged, mortgaged or otherwise incumbered by the testator,
the specific legatee is entitled to have the property redeemed by the
executor, out of the general assets of the testator, unless the in-
cumbrance exceed the value of the property, in which event his right
is limited to that value (c).

(x) Clifton V. Burt, 1 P. Wms. 678, and Cox's note; Fenhoulet v. Passavant,
1 Dick. 253.
(y) Lutkins v. Leigh, Caa. temp. Talb. 53; Forrester v. Leigh, Ambler, 171;
Lomas v. Wright, 2 M. & K. 769 ; Porcher v. Wilson, 14 W. E. 1011 ; Lord Lilford
v. Powys-Keck, 35 Beav. 77.
(z) Clifton v. Burt, 1 P. Wms. 678; and Cox's note; Biederman v. Seymour, 3
Beav. 368; Mirehou^e v. Scaife, 2 M. & Cr. 695.
(a) Paterson v. Scott, 1 De G., M. & G. 531; In re Salt, Brothwood v. Keeling
[1895] 2 Ch. 203.
(b) Norman v. Morrill, i Ves. 769.
(c) Knight v. Davis, 3 Myl. & K. 358; Bothamley v. Sherson, L. R. 20 Eq. 304.
244 EQUITY JURISPRUDENCE. [CH. IX.

§ 567. The dcwtrine adopted in all these cases, of allowing one

creditor to stand in the place of another having two funds to resort
to, and electing to take satisfaction out of one, to which alone another
creditor can resort, was probably transferred from the civil law into
equity jurisprudence. It is certainly founded in principles of natural
justice; and it early worked its way, undei* the title of substitution,
into the civil law, where it was applied in a very large and liberal
manner. But upon this subject we shall have occasion to speak
hereafter in another place (d).
§ 568. There were other ca^es in which the marshalling of assets
was in like manner enforced in courts of equity; as, for instance, in
favour of the widow of a person deceased. After the death of the
husband, his creditors could not take his widow's necessary apparel in
satisfaction of their debts (e). With this exception, a widow's
paraphernalia were generally subject to the payment of the debts of
her husband. But, in favour of the widow, and to preserve her
paraphernalia, courts of equity will interfere, by turning creditors
entitled to proceed against real assets or funds, over to these assets
and funds for satisfaction. And if the paraphernalia have been
actually taken by creditors in satisfaction of their debts, the widow
will be allowed to stand in their place, and the assets will be
marshalled so as to give her a compensation pro tanto (/).
§ 569. So long as the Mortmain Act (9 Geo. 2, c. 36) was in
force, legacies or bequests by will to charitable uses, payable out
of real estate, or charged on real estate, or to arise from the sale
of real estate, were utterly void. And courts of equity, following
out the intent and object of the statute, refused to interfere in favour
of legatees of personal property for charity, by marshalling assets
for this purpose in any case whatever; as, by throwing the debts
or legacies on real assets for payment; or, by allowing the charity
legatees to stand in the place of any creditor or legatee who had
exhausted the personal estate, against the real assets, but would
give effect to an express direction of the testator that charitable
legacies were to be paid out of pure personalty in priority to all other
charges (gr). Since the Mortmain and Charitable Uses Act, 1891,
marshalling as applied to charities will be of little importance.
§ 570. Hitherto we have been speaking of marshalling assets in
favour of creditors, legatees, or widows. But it is not to be under-
stood that these are the only persons entitled to the benefit of this
wholesome doctrine of courts of equity. Heirs-at-law and devisees

(d) Post, § 635, 636, 637.

(e) Black. Comm. 436; Noy's Maxims, ch. 49; Townshend v. Windham, 2 Ves. 7.
(/) Earn on Assets, ch. 18, pp. 363, 354, and the cases there cited; Aldrich v.
Cooper, 8 Vea. 397. See Masson TempUer cC Co. v. De Fries [1909] 2 K. B. 831.
(g) Philanthropic Sac. v. Kemp, 4 Beav. 681; Robinson v. Geldard, 3 Mac. & G.
735; Beaumont v. Olivera, L. E. 4 Ch. 309; Miles v. Harrison, L. E. 9 Ch. 316.
§ 567 — 571]. ADMINISTRATION. 245

are, in a great variety of cases, entitled to the protection resulting

from the just application of this equitable remedy. Thus, for instance,
if an heir or devisee of real estate is sued by a bond-creditor, he
may, in many cases, be entitled to stand in the place of such specialty
creditor against the personal estate of the deceased testator or
intestate (h).
§ 571. In order more fully to comprehend the nature and limita-
tions of this doctrine, it is necessary to state that, in the view of
courts of equity, the personal estate of the deceased constitutes the
primary and natural fund for the payment of his debts; and they
will direct it to be applied in the first instance to that purpose, unless
from the will of the deceased, or from some other controlling equities,
it is clear that it ought not to be so applied (?'). But, in the order of
satisfaction out of the personal estate of the deceased, if it is not
sufficient for all purposes, creditors are preferred to legatees; specific
legatees are preferred to the heir and devisee of the real estate,
charged with specialties or with the payment of debts (fc) ; the devisee
of mortgaged premises is preferred to the heir-at-law of descended
estates (I) ; and a fortiori the devisee of premises not mortgaged is pre-
ferred to the heir-at-law (m). The natural inference is that the testator
intended effect to be given to all his specific gifts, and specific
legatees and specific devisees contribute rateably in proportion to the
respective values of the subject-matter to make good to creditors any
deficiency in the assets (n). Where the equities of the legatees and
devisees are equal, which (as we have seen) is sometimes the case,
courts of equity remain neutral, and silently suffer the law to
prevail (o). But where the personal assets are sufficient to pay all
the debts and legacies and other charges, there the heir or devisee,
who has been compelled to pay a debt or an incumbrance of his
ancestor or testator, binding upon him, is entitled (unless there
be some other equity which repels the claim) to have the debt paid
out of thci personal assets in preference to the residuary legatees o:r
distributees. Thus, for instance, if a specialty debt or mortgage
of an ancestor or testator is paid by the heir or devisee, he is entitled
to have it paid out of the personal assets in the hands of the executor,

(h) Mogg v. Hodges, 2 Ves. Sen. 62; Galton v. Hancock, 2 Atk. 424, 425.
(j) See Co. Litt. 208 b, Butler's note (106).
(k) Cope V. Cope, 2 Salk. 449.
(I) Toller on Executors, B. 3, ch. 8, p. 418 ; Howell v. Price, 1 P. Will. 294, Mr.
Cox's note; Cope v. Cope, 2 Salk. 449, Mr. Evans's note.
(m) Chaplin v. Chaplin, 3 P. Will. 364; Davies v. Topp, 1 Bro. C. C. 824;
Manning v. Spooner,
(n) Tombs 3 "Ves.
v. Boch, 114. 490; Hensman v. Fryer, L. E. 3 Ch. 420; Lancefield
2 Coll.
V. Iggulden, L. E. 10 Ch. 136.
(o) The whole subject was largely discussed in Davies v. Tropp, 1 Bro. C. C. 524,
and in Mr. Cox's note to Howell v. Price, 1 P. Will. 294; and Evelyn v. Evelyn, 2
P. Will. 664; Bootle v. Blundell, 1 Meriv. 215 to 238; Earn on Assets, ch. 28, §§ 1 to 4,
ch. 29, §§ 1 to4.
246 EQUITY JURISPRUDENCE. [CH. IX.

unless the testator, by express words or other manifest intention, has

clearly exempted the personal assets from the payment (p). In
considering these cases the student must remember the change
introduced by the Eeal Estates Charges Act, 1854, 1867, and 1877
(17 & 18 Vict. c. 113, 30 & 81 Vict. c. 69, and 40 & 41 Vict. c. 34),
which cast upon the successor to real estate the burden of charges
existing thereon, unless the ancestor or testator has made express
provision to the contrary. But this would not affect the right of
the mortgagee to pursue his remedies which are left unaffected by
the statutes, and accordingly the principles of marshalling acquire
a new importance for the purpose of adjusting the burden according
to its true incidence.
§ 572. What constitutes proof of am intended exemption by the
testator is not, in many cases, ascertainable upon abstract principles,
but depends upon circumstances (g). It is certain, however, that a
devise of all the testator's real estate, subject to the payment of
his debts, or a devise of a particular estate, subject to the payment of
debts, is not alone sufficient to exempt the personal estate (r). But,
on the other hand, if the real estate is directed to be sold for the
payment of debts, and the personal estate is expressly bequeathed
to legatees, there the personal estate will, by necessary implication,
be exempted (s).
§ 573. The doctrine of the court, in aU cases of this sort, is
supposed to be founded upon the saxne principle; that is, to follow
out the intention of the t-estator. The personal estate is deemed the
natural and primary fund for the payment of all debts; and the
testator is presumed to act upon this legal doctrine until he shows
some other distinct and unequivocal intention. The general rule,
therefore, of courts of equity, although sometimes delivered in one
form and sometimes in another, is (as Lord Hardwicke has expressed
it) that the personal estate shall be first applied to the payment of
debts, unless there be express words, or a plain intention of the
testator to exempt his personal estate, or to give his personal estate
as a specific legacy ; for he may do this, as well as give the bulk of his
real estate by way of specific legacy (i).
§ 574. But, although the personal estate is thus decreed the
general and primary fund for the payment of debts, and still remains
so, notwithstanding the real estate is also collaterally chargeable ; yet
the rule was otherwise, or rather was differently applied, where the

{p\ Howell V. Price, 1 P. Will. 291, 294, and Cox's note (1); Duke of Ancasterv.
Mayer',
(g) 1Bootle
Bro. C.
v. C. 454; Tower
Blundell, 1 Mer.v. 193.
Lord Rous, 18 Ves. 132.
(r) Ouseley v. Anstruther, 10 Beav. 453; Whieldon v. Spode, 15 Beav. 537; Wells
V. Row, 48 L. J. Ch. 476.
(s) Plenty v. West, 16 Beav. 173; Gilbertson v. Gilbertson, 34 Beav. 854.
(t) Walker v. Jackson, 2 Atk. 625; ante, § 556; Powell v. Riley, 12 Eq. 175.
§ 572 — 574a..] administration. 247

charge of the debt was principally and primarily upon the real estate,
and the personal security of covenant was only collateral; for the
primary fund ought in conscience, in all cases, to exonerate the
auxiliary fund {u). Having regard to the statutes next to be noticed,
it seems unnecessary to preserve the discussion of this topic by the
learned author.
§ 574a. The law as to the primary liability of the general personal
estate to pay mortgages and other charges on lands devised or
descended has been entirely altered by the Eeal Estate Charges
Act, 1854 (17 & 18 Vict. c. 113), and amending Acts. This Act
enacted that, ' ' when any person shall, after the passing of this Act,
die seised of or entitled to any interest in any land <x other heredita-
ments, which shall, at the time of his death, be charged with the
payment of any sum or sums of money by way of mortgage, and such
person shall not by his will, deed, or other document, have signified
any contrary or other intention, the heir or devisee to whom such
lands or hereditaments shall descend or be devised, shall not be
entitled to have the mortgage debt discharged or satisfied out of the
personal estate or any other real estate of such person, but the lands
or hereditaments so charged shaU as between the different persons
claiming through or under the deceased person be primarily liable
to the payment of all mortgage debts with which the same shall
be charged, every part thereof, according to its value, bearing a pro-
portionate part of the mortgage debts charged on the whole thereof."
And the words ' ' have signified any contrary or other intention
have been defined by the Eeal Estates Charges Act, 1867 (30 & 31
Vict. c. 69), " in the construction of the will of any person who may
die after the 31st day of December, 1867, a general direction that the
debts or all the debts of the testator shall be paid out of his personal
estate shall not be deemed to be a declaration of his intention contlrary
to or other than the rule established by the last-mentioned Act,
unless such contrary or other intention shall be further declared by
words expressly or by necessary implication referring to all or some
of the testator's debt or debts charged by way of mortgage on any
part of his real estate." By the same Act the word " mortgage"
in the principal Act was extended to include the vendor's lien for
impaid purchase-money if the vendor left the land by will. By a
further amending Act, the Real Estates Charges Act, 1877 (40 & 41
Vict. c. 34), the vendor's lien on lands purchased by an intestate was
included, and the same Act also embraced leasehold interests within
the scope of the Act. It has been said that the Act of 1877 must be
regarded as a legislative declaration that the statutes are to receive

{») See Co. Litt. 208 fc, Butler's note (106); Evelyn v. Evelyn, 2 P. Will. 664,
and Cox's note (1).
246 EQUITY JDEISPRDDENCB. [CH. IX.

unless the testator, by express words or other manifest intention, has

clearly exempted the personal assets from the payment (p). In
considering these cases the student must remember the change
introduced by the Eeal Estates Charges Act, 1854, 1867, and 1877
(17 & 18 Vict. c. 113, 30 & 81 Vict. c. 69, and 40 & 41 Vict. c. 34),
which cast upon the successor to real estate the burden of charges
existing thereon, unless the ancestor or testator has made express
provision to the contrary. But this would not affect the right of
the mortgagee to pursue his remedies which are left unafiected by
the statutes, and accordingly the principles of marshalling acquire
a new importance for the purpose of adjusting the burden according
to its true incidence.
§ 572. What constitutes proof of an intended exemption by the
testator is not, in many cases, ascertainable upon abstract principles,
but depends upon circumstances (g). It is certain, however, that a
devise of all the testator's real estate, subject to the payment of
his debts, or a devise of a particular estate, subject to the payment of
debts, is not alone sufficient to exempt the personal estate (r). But,
on the other hand, if the real estate is directed to be sold for the
payment of debts, and the personal estate is expressly bequeathed
to legatees, there the personal estate will, by necessary implication,
be exempted (s).
§ 573. The doctrine of the court, in all cases of this sort, is
supposed to be founded upon the same principle; that is, to follow
out the intention of the testator. The personal estate is deemed the
natural and primary fund for the payment of all debts; and the
testator is presumed to act upon this legal doctrine until he shows
some other distinct and unequivocal intention. The general rule,
therefore, of courts of equity, although sometimes delivered in one
form and sometimes in another, is (as Lord Hardwicke has expressed
it) that the personal estate shall be first applied to the payment of
debts, unless there be express words, or a plain intention of the
testator to exempt his personal estate, or to give his personal estate
as a specific legacy ; for he may do this, as well as give the bulk of his
real estate by way of specific legacy (t).
§ 574. But, although the personal estate is thus decreed the
general and primary fund for the payment of debts, and still remains
so, notwithstanding the real estate is also collaterally chargeable; yet
the rule was otherwise, or rather was differently applied, where the

(p)_ Howell V. Price, 1 P. Will. 291, 294, and Cox's note (1); Duke of AncasterY.
Mayer',
(g) 1Bootle
Bro. C.
v. C. 454; Tower
Blundell, 1 Mer.v. 193.
Lord Rous, 18 Ves. 132.
(r) Ouseley v. Anstruther, 10 Beav. 463; Whieldon v. Spode, 15 Beav. 537; Wells
V. Row, 48 L. J. Ch. 476.
(s) Plenty v. West, 16 Beav. 173; Gilbertson v. Gilbertson, 34 Beav. 354.
(t) Walker v. Jackson, 2 Atk. 625; ante, § 556; Powell v. Riley, 12 Eq. 175.
 § 572 — 574a..] administration. 247

charge of the debt was principally and primarily upon the real estate,
and the personal security of covenant was only collateral; for the
primary fund ought in conscience, in all cases, to exonerate the
auxiliary fund (u). Having regard to the statutes next to be noticed,
it seems unnecessary to preserve the discussion of this topic by the
learned author.
§ 574a. The law as to the primary liabihty of the general personal
estate to pay mortgages and other charges on lands devised or
descended has been entirely altered by the Eeal Estate Charges
Act, 1854 (17 & 18 Vict. c. 113), and amending Acts. This Act
enacted that, "when any person shall, after the passing of this Act,
die seised of or entitled to any interest in any land or other heredita-
ments, which shall, at the time of his death, be charged with the
payment of any sum or sums of money by way of mortgage, and such
person shall not by his will, deed, or other document, have signified
any contrary or other intention, the heir or devisee to whom such
lands or hereditaments shall descend or be devised, shall not be
entitled to have the mortgage debt discharged or satisfied out of the
personal estate or any other real estate of such person, but the lands
or hereditaments so charged shaU as between the diSerent persons
claiming through or under the deceased person be primarily liable
to the payment of all mortgage debts with which the same shall
be charged, every part thereof, according to its value, bearing a pro-
portionate part of the mortgage debts charged on the whole thereof. ' '
And the words ' ' have signified any contrary or other intention ' '
have been defined by the Eeal Estates Charges Act, 1867 (30 & 31
Vict. c. 69), " in the construction of the will of any person who may
die after the 31st day of December, 1867, a general direction that the
debts or all the debts of the testator shall be paid out of his personal
estate shall not be deemed to be a declaration of his intention contrary
to or other than the rule established by the last-mentioned Act,
unless such contrary or other intention shall be further declared by
words expressly or by necessary implication referring to all or some
of the testator's debt or debts charged by way of mortgage on any
part of his real estate." By the same Act the word " mortgage"
in the principal Act was extended to include the vendor's lien for
impaid purchase-money if the vendor left the land by will. By a
further amending Act, the Eeal Estates Charges Act, 1877 (40 & 41
Vict. c. 34), the vendor's lien on lands purchased by an intestate was
included, and the same Act also embraced leasehold interests within
the scope of the Act. It has been said that the Act of 1877 must be
regarded as a legislative declaration that the statutes are to receive

(u) See Co. Litt. 208 b, Butler's note (106) ; Evelyn v. Evelyn, 2 P. Will. 664,
and Cox's note (1).
250 EQUITY JURISPRUDENCE. [CH. IX.

sale or other transaction of an executor, attempting to bind the assets

in his character of executor (g), so as to let in the claim of creditors
and others who are principally interested, there must be some fraud,
or collusion, or misconduct between the parties. A mere secret
intention of the executor to misapply the funds unknown to the other
party dealing with him, or a subsequent unconnected misapplication
of them, will not affect the purchaser. He must be conusant of such
intention, and designedly aid or assist in its execution (h). But in
the view of courts of equity, there is a broad distinction between cases
of a sale or pledge of the testator's assets for a present advance and
cases of such a sale or pledge for an antecedent debt of the executor;
for, in the latter case, the parties must be generally understood to co-
operate in a, misapplication of the assets from their proper purpose,
unless that inference is repelled by the circumstances (i).
§ 581. The general doctrine now maintained by courts of equity
upon this subject, cannot be better summed up than it is by a learned
judge (Sir John Leach) in an important case. " Every person "
(said he) "who acquires personal assets by a breach of trust or a
devastavit by the executor, is responsible to those who are entitled
under the will, if he is a party to the breach of trust. Generally
speaking, he does not become a party to the breach of trust by
buying or receiving, as a pledge for money advanced to the executor
at the time, any part of the personal assets, whether specificaUy given
by the will or otherwise; because this sale or pledge is held to be
prima facie consistent with the duties of an executor. Generally
speaking, he does become a party to the breach of trust, by buying
or receiving in pledge any part of the personal assets, not for money
advanced at the time, but in satisfaction of his private debt ; because
this sale or pledge is prima facie inconsistent with the duty of an
executor. I preface both of these propositions with the term
' generally speaking,' because they both seem to admit of ex-
ceptions"(k). And it may be added, that, whenever there is a mis-
ap lication of the personal assets, and the assets or their proceeds
can be traced into the hands of any persons affected with notice of
such misapplication, there the trust will attach upon the property or
proceeds in the hands of such persons, whatever may have been the
extent of such misapplication or conversion (I). The personal repre-

ig) Hill V. Simpson, 7 Ves. 152, In re Cooper, Cooper v. Vesetj, 20 Ch. D. 611;
Attenborough v. Solomon [1913] A. C. 76.
(h) Hill V. Simpson, 7 Ves. 152; McLeod v. Drummond, 14 Ves. 355, 17 Ves.
152; Walker v. Taylor, 8 Jur. N. S. 681.
(j) Hill V. Simpson, 7 Ves. 152. See Mr. Eoscoe's learned note to Whale v.
Booth, 4 Doug. 47, note (66).
(7c) Keane v. Robarts, 4 Mad. 357, 358.
(l) Adair v. Shaw, 1 Sch. & Lefr. 261, 262. The same principle may be further
illustrated by the cases already mentioned, where creditors and others are permitted
to sue the debtors of the deceased, when they collude with the executor or administra-
§ 581 — 583.] ADMINISTRATION. 251

sentative can only effectively dispose of specific items of the estate.

He cannot create a general charge upon the estate for moneys paid
to him, even where they are ostensibly borrowed for the purposes of
the estate (m).
§ 582. In cases where, during coverture, the assets of a feme
covert executrix were wasted by the husband, and he then died, no
action at law lay by the creditors against the assets of the husband.
But courts of equity did, in such a case, interfere, and relieve the
creditors upon the ground of the breach of tinist in the husband,
by his wrongful conversion of the assets of the wife's testator (n.).
The equitable rule now prevails by force of the Judicature Act, 1873,
s. 25, sub-s. 11.
§ 583. And here we might treat of the nature and extent of the
jurisdiction which courts of equity will exercise in regard to the
assets of foreigners, collected under what is called an ancillary
administration (because it is subordinate to the original administra-
tion), taJsen out in the country where the assets are locally situate.
This subject, however, has been largely discussed in another place,
in considering the conflict of the laws of different countries upon the
subject of administrations of property situate therein, and, therefore,
it wiU be but very briefly taken notice of here (o). In general, it may
be said that, where a domestic executor or administrator collects
assets of the deceased in a foreign country, without any letters of
administration taken out, or any actual administration accounted for
in such foreign country, and brings them home, they will be treated
as personal assets of the deceased, to be administered here under
the domestic administration (p). And where such assets have been
collected abroad, under a foreign administration, and such administra-
tion is still open, the executor or administrator can be called upon
to account for such assets under the domestic administration (g), but
regard is generally paid to the law peculiar to the foreign country (r).
And, indeed, in many instances probates of wills and letters of
administration are not granted in any country in respect to assets
generally, but only in respect to such assets as are within the juris-
diction of the country by which the probate is established or the
administration granted. In a modern decision which contains an
elaborate review of previous decisions, the law was laid down as
follows : — The personal assets (not including leaseholds) of a person

tor, although they are not suable except by the executor or administrator. See ante,
§§ 422 to 424.
(to) Farhall v. Farhall, lu. E. 7 Ch. 123.
(n) Adair v. Shaw, 1 Sch. & Lefr. 261, 262, 263.
(o) See Story, Comm. on Conflict of Laws, ch. 13, § 492 to 530.
(p) Dowdale's Case, 6 Co. 46b, Att.-Gen. v. Dimond, 1 Or. & Jerv. 370.
(g) Ewing v. Orr-Ewing , 9 App. Gas. 34; Ewing v. Orr-Ewing, 10 App. Cas. 453.
(r) Waterhouse v. Stansjield, 9 Hare, 234, 10 Hare, 254; Cook v. Gregson, 2
Drew. 286 ; Harrison v. Harrison, L. E. 8 Ch. 342.
252 EQUITY JUBISPRUDENCE. [CH. IX.

having a foreign domicile are governed for the purpose of legal

representation, of collection and of administration as distinguished
from distribution, by the lex loci rei sitse; for the purposes of
succession and enjoyment they are governed by the lex domicilii (s).
Land including leaseholds can only be administered by the lex loci
rei siix {t).

(s) Blackwood v. Reg., 8 App. Cas. 82. See also Macdonald v. Macdonald, L. R.
14 Eq. 60.
(t) Birtwhistle v. Vardill, 2 CI. & P. S71 ; 7 CI. & P. 895; Harrison v. Harrison,
Jj. K. 8 Ch. 342; Freke v. Lord Carherry, L. E. 16 Eq. 461; Duncan v. Lawson, 41
§ 590, 591.] u!GACiES. '25»

CHAPTER X.

LEGACIES.

§ 590. Another head of the original concurrent jurisdiction in equity

is in regard to Legacies. This subject has been in part incidentally
treated before; but it is proper to bring the subject more fully under'
review. It seems that, originally, the jurisdiction over personal
legacies was claimed and exercised in the temporal courts of common
law ; or, at least, that it was a jurisdiction mixti fori, claimed and
exercised in the county court, where the bishop and sheriff sat
together (a). Afterwards (at least from the reign of Henry III.),
the spiritual or ecclesiastical courts obtained exclusive jurisdictioni
over the probate of wills of personal property; and, as incident thereto,
they acquired jurisdiction (though not exclusive) over legacies (6).
This latter jurisdiction continued in the ecclesiastical courts until their
jurisdiction over suits for legacies was taken away by the Court of
Probate Act, 1857, s. 23, which provided that, no suits for legacies or
suits for the distribution of legacies should be entertained by the then
newly created court, or by any court or person whose jurisdiction as.
to matters and causes testamentary was thereby abolished. The
suits for legacies and distribution of residues are therefore left entirely
to the Court of Chancery, now the Chancery Division of the High
Court.
§ 591. In regard to legacies, it was finally settled after some
conflict of authority, that no action would lie at the common law to
recover the amount of a pecuniary legacy, but that the remedy was
exclusively in the courts of equity (c). But in cases of specific
legacies of goods and chattels, after the executor has assented thereto,
the property vested immediately in the legatee, who might maintain
an action at law for the recovery thereof (d). And there are decisionsp.
which establish that an executor might be made liable, upon an

(a) Swinb. on Wills, Pt. 6, § 11, pp. 430, 431, 432; 2 Black, Coram. 491, 492; 3 id..
61, 96, 96 ; Marriott v. Marriott, 1 Str. 667, 669, 670 ; 2 Roper on Legacies, by White,,
ch. 25, p. 685 ; 1 Eeeves, Hist, of the Law, 92, 308.
(6) 3 Black. Comm. 98; Com. Dig. Prohibition, Q. 17; Bac. Abr. Legacies, M. r
Atkins V. Hill, Cowp. 287.
(c) Deeks v. Strutt, 5 T. E. 690.
(d) Doe V. Guy, 8 East 120.
254 EQUITY JURISPRUDENCE. [CH X.

admission of liability, for money had and received or upon an account

stated in an action at law for the recovery thereof (e).
§ 592. The ground upon which the general jurisdiction of the
common law courts was denied was the pernicious consequences which
would follow from allowing such an action at law; for courts of law,
if compellable to entertain the jurisdiction, could not impose any terms
upon the parties. Thus, for instance, a suit might be maintained by
a husband for a legacy given to his wife, without making any provision
for her, or for her family; whereas, a court of equity would require
such a provision to be made (/).
§ 593. But it is very certain, that courts of equity exercised a
concurrent jurisdiction with all other courts in cases of legacies,
whether the executor had assented thereto or not (g). The grounds
of this jurisdiction are various. In the first place, the executor is
treated as a trustee for the benefit of the legatees; and, therefore,
as a matter of trust, legacies are within the cognizance of courts of
equity, whether the executor has assented thereto or not. This
seems a universal ground for the jurisdiction (h). In the next place,
the jurisdiction is maintainable in all cases where an account of
discovery or distribution of the assets is sought upon general principles.
Indeed, Lord Mansfield seems to have thought that the jurisdiction
arose as an incident to discovery and account (i). In the next place,
ihere was, in many cases, the want of any adequate or complete
remedy in any other court (fc).
§ 594. Obvious as some of these grounds are to found a general
jurisdiction in equity in cases of legacies, it does not appear that
•the jurisdiction was not ordinarily exercised originally. Lord Kenyon
indeed has said, the jurisdiction over questions of legacies was not
exercised in equity until the time of Lord Chancellor Nottingham (1).
In this remark. Lord Kenyon was probably under some slight mistake ;
for traces are found of an exercise of the jurisdiction as early as the
time of Lord Chancellor EUesmere, in cases where the defendant
answered the bill, and took no exceptions ; although he appears to
iiave entertained the opinion that the ecclesiastical courts were more
proper to give relief in cases of legacies (m). But it is highly
probable that the jurisdiction was not firmly established beyond
scontroversy until Lord Nottingham's time.
(e) Roper v. Holland, 3 A. & B. 99; Hart v. Minors, 2 Cr. & M. 700; Howard v.
Brownhill, 23 L. J. Q. B. 23.
(/) Deeks v. Strutt, 5 T. E. 692.
(g) Franco v. Alvares, 3 Atk. 346.
(h) Eoper on Legacies, by White, ch. 25, p. 685; Farrington v. Knightley, 1 P.
Will. 549, 554; Wind v. J»%!i, 1 P. Will. 575; Hurst v. Beach, 5 Mad. 360; Atten-
/borough v. Solomon, 1913 A. C. 76.
(i) Atkins v. Hill, Cowp. 287, 2 Mad. Pr. Ch. 1, 2.
(k) 2 Mad. Pr. Ch. 1, 2, 8.
(1) Deeks v. Strutt, 5 T. E. 692.
(m) 2 Mad. Pr. Ch. 1, 2.
§ 592—605.] LEGACIES. 255

§ 595. Indeed, in many cases, courts of equity exercised an

exclusive jurisdiction in regard to legacies; as, for instance, where the
bequest of the legacy involved the execution of trusts, either express
or implied ; or vi'here the trusts, engrafted on the bequest, vs^ere them-
selves to be pointed out by the court.
§ 602. In regard to legacies charged on land, courts of equity,
for the reasons already stated, also exercised an exclusive jurisdiction.
In deciding upon the validity and interpretation of purely personal
legacies, courts of equity implicitly followed the rules of the civil
law (n). But in legacies charged on land, they followed the rules
of the common law, as to the validity and interpretation thereof (o).
§ 603. But the beneficial operation of the jurisdiction of courts of
equity, in cases of legacies, is even more apparent in some other cases,
where the remedies are peculiar to such courts, and are protective of
the rights and interests of legatees. Thus, for instance, in cases of
pecuniary legacies, due and payable at a future day, courts of equity
will compel security to be given for the due payment thereof,' even
if the legacy be contingent (p). An annuity under a will being a
legacy payable by instalments, an annuitant possesses a similar
right (g). But if the annuity arises under an instrument antecedent
to the will, it is a debt and other considerations apply (r).
§ 604. Another class of cases of the same nature is, where a
specific legacy is given to one for life, and after his death to another;
there the legatee in remainder was formerly entitled, in all cases, to
come into a court of equity, and to have a decree for security from
the tenant for Ufe, for the due delivery over of the legacy to the
remainderman. But the modem rule is, not to entertain such a
bill, unless there be some allegation and proof of waste; or of danger
of waste of the property. Without such ingredients, the remainder-
man is only entitled to have an inventory of the property bequeathed
to him, so that he may be enabled to identify it; and, when his
absolute right accrues, to enforce a due delivery of it (s).
§ 605. This may suffice, in this place, on the subject of the peculiar
jurisdiction of courts of equity in cases of legacies, when the relief
sought and given is of a precautionary and protective nature. The
subject wiU again come under review in the consideration of bills
quia timet (t).

(n) Franco v. Alvares, 3 Atk. 246; Hurst v. Beach, 5 Mad. 360; 2 Mad. Pr. Ch.
1, 2; 2 Ponbl. Eq. B. 4, Pt. 1, ch. 1, § 4, and note (h).
(o) Reynish v. Martin, 3 Atk. 333, 334; Paschall v. Ketterich, Dyer 151 (b), (5).
But see Dyer, 264, b.
(p) Webber v. Webber, 1 Sim. & S. 311; King v. Maicott, 9 Hare, 692; In re
Hall, Foster v. Metcalfe, [1903] 2 Ch. 226.
(g) In re Parry, Scott v. Leake, 42 Ch. D. 670.
(r) In re Hargreaves, Dicks v. Hare, 44 Ch. D. 236.
(s) Leeke v. Bennett, 1 Atk. 471 ; Bill v. Kynaston, 2 Atk. 82.
(t) Post, §§ 844, 845, 846.
256 EQUITY JURISPRUDENCE. [CH. X,

§ 606. In regard to a donation mortis causa, which, is a sort of

amphibious gift between a gift inter vivos and a legacy, it was not
properly cognizable by the ecclesiastical courts; neither does it fall
regularly within an administration; nor does it require any act of the
executor to constitute a title in the donee (u). It is, properly, a gift
of personal property (x), by a party who is in peril of death, upon
condition, that it shall presently helong to the donee, in case the donor
shall die, but not otherwise (y). A gift of title-deeds has been held
to be effective donation mortis causa of a mortgage security (a). But
although a mortgage involves an interest in land, it is regarded in the
eyes of a court of equity primarily as a debt, for the repayment of
which the land stands as security (a). To give it effect, there must be
a delivery of it by the donor; and this delivery may be antecedent to
the gift (b), but whatever form it takes, whether actual or symbolical,
it is essential to the validity of this form of gift (c). By an extension
which may be traced historically, many subject matters which would
be inadmissible for the purposes of gifts inter vivos by tradition,
because they are not susceptible of manual delivery, are allowed to be
proper subject matters of a donation mortis causa by what has recently
been defined as an inchoate or imperfect delivery (d). These gifts are
held to be effective notwithstanding the provisions of the Wills Act,
1837 (e), and this introduces an anomalous state of things, for a person
may establish his right to an unlimited amount by his own uncorrobo-
rated evidence (/), whereas if a testator puts pen to paper to make a
gift of £5 or even less, the elaborate formalities of the Wills Act cannot
be evaded.
§ 607. The notion of a donation mortis caasd was originally derived
into the English law from the civil law. In that law it was thus
defined : ' ' Mortis causa donatio est, quae propter mortis fit sus-
picionem ; cum quis ita donat, ut, si quid humanitus ei contigisset,
haberet is, qui accepit. Sin autem supervixisset is, qui donavit,
reciperit; vel si eum donationis psenituisset, aut prior decesserit is, cui
donatum sit " (g). It was a long time a question among the Eoman
(«) Boper, Leg. by White, ch. 1, § 2, p. 2; Thompson v. Hodgson, 2 Str. 777;
Ward V. Turner, 2 Vee. 431. (x) Ward v. Turner, 2 Ves. 439.
iy) Tate v. Hilbert, 2 Ves. Jun. 121; Staniland v. Willott, 8 Mac. & G. 664;
Gosnaham v. Guise, 15 Moo. P. C. 216 ; Treasury Solicitor v. Lewis, [1900] 2 Ch. 812.
(z) Dujfield v. Elwes, 1 Bli. N. S. 497.
(o) Thornborough v. Baker, 3 Swanst. 628; Holford v. Yate, 1 K. & J. 677;
Campbell v. Holyland, 7 Ch. D. 166.
(b) Gain v. Moon, [1896] 2 Q. B..283.
(c) Jones V. Selby, Free. Ch. 200; Bunn v. Markham, 7 Taunt. 224; Mustapha
V. Wedlake, [1891] W. N. 201; In re Johnson, Sandy v. Reilly, 92 L. T. 357.
(d) In re Wasserberg, Union of London & Smith's Bank v. Wasserberg, [1915]
1 Ch. 195. The earliest case is the decision of the House of Lords in Duffield v,
Elioes, 1 Bli. N. S. 497.
(e) Moore v. Darton, 4 De G. & Sm. 517.
(/) In re Farman, Farman v. Smith, 57 L. J. Ch. 637.
(g) Inst. Lib. 2, tit. 7, § 1.
§ 606—608.] LEGACIES. 257

lawyers, whether a donation mortis causa ought to be reputed a gift

or a legacy, inasmuch as it partakes of the nature of both (et utriusque
causae qusedam habebat insignia); and Justinian finally settled, that it
should be deemed of the nature of legacies : ' ' Has mortis causa
Donationes ad exemplum legatorum redactse sunt per omnia " (h).
§ 607a. According to the civil law, a donatio mortis causa may be
made subject to a trust or condition. " Eorum, quibus mortis causa
donatum est, fidei committi quoquo tempore potest; quod fidei com-
missum, haeredes, salva Falcidise ratione, quam in his quoque dona-
tionibus exemplo legatorum, locum habere placuit, praestabunt. Si
pars donationis fidei commisso teneatur, fidei commissum quoque
munere Falcidse fungetur. Si tamen alimenta praestari voluit,
coUationis totum onus in residuo donationis esse respondendum erit
ex defuncti voluntate, qui de ma jore pecunia praestari non dubie voluit,
integra (i). Ab eo, qui neque legatum neque fidei commissum, neque
haereditatem vel mortis causa donationem acceptit nihil per fidei com-
missum relinqui potest " (fe). In our courts it seems to be established
that a gift m.ortis causa is good, although it is coupled with a trust or
condition (l). It has been indeed suggested that the trust or condition
should be declared contemporaneously with the gift, or under circum-
stances which would incorporate the trust or condition with the
gift (m-) ; but it is diificult to appreciate the grounds upon which this
opinion is based. A trust, except it be of lands, may be declared by
parol, and unless the recipient assented to the new terms the donor
could resume possession (n).
§ 608. It has been already stated, that in the interpretation of
purely personal legacies courts of equity follow the rules of the civil
law ; and in those which are charged on lands the rules of the common
law (o). But, although this is generally true, it is not to. be taken
for granted, that courts of equity do, in all cases, follow the rules of
courts of common law, in deciding upon the nature, extent, inter-
pretation, and effect of legacies. There. are some cases, in which
courts of equity act upon principles peculiar to themselves in relation
to legacies. But any attempt to point them out in a satisfactory
manner would require a general review of the whole doctrine of
legacies, a task which is incompatible with the objects of the present
Commentaries.

(h) Inet. Lib. 2, tit. 7, § 1.

(i) Dig. Lib. 31, tit. 1, f. 77, § 1.
(k) Cod. Lib. 6, tit. 42, f. 9.
(I) Hill v. Hill, 8 M. & W. 401.
(m) Dunne v. Boyd, Ir. E. 8 Eq. 609.
(n) Bunn v. Markham, 7 Taunt. 224.
(o) Ante, § 602.

J'. .J. 17
258 EQUITY JURISPRUDENCE. [CH. XI.

CHAPTER XI.

CONFUSION OF BOUNDARIES.

§ 609. Having disposed of the subjects of Administration and

Legacies, we shall next proceed to the consideration of another head
of concurrent jurisdiction, axising from the confusion of the boundaries
of land, and the confusion or entanglement of other rights and claims
of an analogous nature, calling for the interposition of courts of equity,
in order to restore, and ascertain, and fix therrt.
§ 610. In the first place, in regard to Confusion of Boundaries.
The issuing of commissions to ascertain boundaries is certainly a very
ancient branch of equity jurisdiction. A number of cases of this
sort will be found in the earliest of the chancery reports. Thus, in
Midlineux v. Mullineux, in 14th Jae. I., a commission was awarded,
" to set out lands, that lye promiscuously, to be liable for the payment
of debts." In Peckering v. Kimpton, 5 Car. I. (o), a commission was
awarded, " to set out copyhold lands free from lands which lye
obscured; if the commissioners cannot sever it, then to set out so
much in lieu thereof. ' '
§ 611. It is not very easy to ascertain with exactness the origin
of this jurisdiction (6). It has been supposed by Lord Northington
and Lord Thurlow, that consent was the ground upon which it was
originally exercised (c). There are two writs in the register concerning
the adjustment of controverted boundaries, from one of which (in the
opinion of Sir WiUiam Grant) it is probable that the exercise of this
jurisdiction in the Court of Chancery took its commencement (d).
The one is the writ De Raiionalibus divisis, which properly lies where
two men have lands in divers towns or hamlets, so that one is seised
of the land in one town or hamlet, and the other of the land in the
other town or hamlet by himself ; and they do not know the boundaries
of the towns or hamlets, whereby to ascertain which is the land of one
and which is the land of the other. In such a case, to set the bounds

(a) Tothill 39 (edit. 1649). See also Wake v. Conyers, 1 Eden, 337, note; Mar-
quis of Bute V. The Glamorganshire Canal Co., 1 Phil. 681; Co. Litt. 169 a; Har-
grave's note 23, vii.
(b) Hargrave's note 23, vii., to Co. Litt. 169a.
(c) Speer v. Crawter, 2 Meriv. 417.
(d) Speer v. Crawter, 2 Meriv. 417; Eegist. Brevium, 157b.
§ 609 — 614.] CONFUSION OP boundaries. 259

certain, this writ lies for the one against the other (e). The other writ
is De Perambulcdione facienda. This- writ is sued out with the assent
of both parties, where they are in doubt of the bounds of their lord-
ships or manors or of their towns. And upon such assent, the writ
issues to the sheri£E to make the perambulation, and to set out the
bounds and limits between them in certainty (/). And it is added, in
Fitzherbert (in which he foUows the rule of the Begistrum Brevium),
that the perambulation may be made for divers towns and in divers
counties; and the parties ought to come into the chancery, and there
acknowledge and grant that a perambulation be made betwixt them;
and the acknowledgment shall be enrolled in the chancery, and there-
upon a commission or writ shall issue forth.
§ 612. Sir William Grant further conjectured that the jurisdiction
having thus originated in consent, the next step would probably be
to grant the commission on the application of one party, who showed
an equitable ground for obtaining it, such as that a tenant or copy-
holder had destroyed, or not preserved, the boundaries between his
own property and that of his lessor or lord. And to its exercise, on
such an equitable ground, no objection has ever been made (g) ; and,
it may be added, no just objection can be made.
§ 613. This account of the origin of the chancery jurisdiction seems
highly probable in itself; but however satisfactory it may seem, it can
scarcely be said to afford more than a reasonable conjecture, and is
not a conclusive proof that such was the actual origin. In truth,
the recent discoveries made of the actual exercise of chancery juris-
diction in early times, as disclosed in the report of the Parliamentary
Commissioners, already referred to in a former part of these Com-
mentaries, are sufficient to teach us to rely with a subdued confidence
upon all such conjectural sources of jurisdiction (h). It is very
certain that, in some cases, the Court of Chancery has granted
commissions, or directed issues, on no other apparent ground than
that the boundaries of manors were in controversy.
§ 614. The civil law was far more provident than ours upon the
subject of boundaries. It considered that there was a tacit agree-
ment, or duty, between adjacent proprietors, to keep up and preserve
the boundaries between their respective estates; and it enabled all
persons having an interest to bring a suit to have the boundaries
between them settled, and this, whether they were tenants for years,
usufructuaries, mortgagees, or other proprietors. The action was
called actio finium regendorum ; and if the possession was also in
dispute, that might be ascertained and fixed in the same suit, and,

(e) Pitzherb. Nat. Brev. 300 [128].

{/) Pitzherb. Nat. Brev. 300 [138].
ig) Speer v. Crawler, 2 Meriv. 417.
(h) Ante, §§ 37 to 44, and notes.
260 EQUITY JURISPEUDENCE. [CH. XI.

indeed, was incident to it (j). Perhaps it might not have been

originally unfit for courts of equity to have entertained the same general
jurisdiction, in cases of confusion of boundaries, upon the ground of
enforcing a specific performance of the implied engagement or duty
of the civil law. Such a broad origin or exercise of the jurisdiction
has, however, never been claimed or exercised.
§ 615. But whatever may have been the origin of this branch of
jurisdiction, it is one which has been watched with a good deal of
jealousy by courts of equity of late years; and there seems no inclina-
tion to favour it, unless special grounds are laid to sustain it. The
general rule now adopted is, not to entertain jurisdiction, in cases of
confusion of boundaries, upon the ground that the boundaries are in
controversy; but to require that there should be some equity super-
induced by the act of the parties; such as some particular circum-
stances of fraud; or some confusion, where one person has ploughed
too near another; or some gross negligence, omission, or misconduct
on the part of persons whose special duty it is to preserve or perpetuate
the boundaries, or with the object of preventing a multiplicity of
suits (k).
§ 616. Where there is an ordinary legal remedy there is certainly
no ground for the interference of courts of equity, unless some
peculiar equity supervenes which a court of common law cannot take
notice of or protect. It has been said by Lord Northington that,
where there is no legal remedy, it does not therefore follow that there
must be an equitable remedy, unless there is also an equitable right.
Where there is a legal right there must be a legal remedy ; and if
there is no legal right, in many cases there can be no equitable one.
On this account he dismissed a bill to settle the boundaries between
manors, it appearing that there was no dispute as to the right of soil
and freehold on both sides of the boundary marks (which right was
admitted by the bill to be in the defendant), and that the right
of seigniory alone (an incorporeal hereditament), and not that of
the soil, was in dispute. And his lordship on this occasion remarked,
that " all the cases where the court has entertained bills for estab-
lishing boundaries have been where the soil itself was in qustion, or
where there might have been a multiplicity of suits " (l).
§ 617. So, in a case where a bill was brought by one parish
against another to ascertain the boundaries of the two parishes in
making their rates; and a number of houses had been built upon
land formerly waste; and it was doubtful to which parish each

(t) See 1 Domat, B. 2, tit. 6, § 1, 2, pp. 308, 309; Co. Litt. 169o, Hargrave's
note (23); Dig. Lib. 10, tit. 1, f. 1.
(k) Wake v. Conyers, 1 Eden, 331; Speer v. Crawter, 2 Meriv. 410; Marquis of
Bute V. Glamorganshire Canal Co., 1 Ph. 681; Att.-Gen. v. Stephens, 6 De G. M.
& G. 111.
(;) Wake V. Conyers, 1 Eden, 331.
 § 615 — 619.] CONFUSION OF BOUNDARIES. 261

pEirfc of the waste belonged; Lord Thurlow refused to interfere, and

observed that the greatest inconvenience might arise from doing so.
For, if a commission were granted, and the bounds set out by com-
missioners, any other parties, on a different ground of dispute, might
equally claim another commission. These other commissioners might
make a different return, and so, in place of settling differences, endless
confusion would be created (w). In another report of the same case,
he is reported to have said. If he should entertain the bill, and
direct an issue in such a case as that, he did not see what case
would be peculiar to the courts of law, and he did not know how to
extract a rule from The Mayor of York v. Pilkington. Where there
was a common right to be tried, such a proceeding was to be under-
s.tood. That boundary between the two jurisdictions was apparent.
This is the case, where the tenants of a manor claim a right of
common by custom, because the right of all the tenants of the manor
is tried by trying the right of one. But in the case before him, he
saw no common right, which the parishioners had in the boundaries
of the parish. It would be to try the boundaries of all the parishes
in the kingdom on account of the poor-laws. The ground of dis-
missing the bill seems, from these very imperfect statements of the
case, to have been, first, that the proper remedy was at law ; and,
secondly, that no equity was superinduced, for it would not even
suppress multiplicity of suits.
§ 618. In Atkins v. Hatton (n), the court refused to entertain a bill
brought by the rector of a parish principally for an account of tithes,
and to have a commission to settle the boundaries of the parish and
the glebe. The court said, " The plaintiff here calls upon the court
to grant a commission to ascertain the boundaries of the parish, upon
the presumption that all the lands which shall be found within
those boundaries would be tithable to him. That is, indeed, a prima
facie inference ; but by no means conclusive. And there is no
instance of the court ever granting a commission, in order to attain a
remote consequential advantage. It is a jurisdiction which courts of

equity have always been very cautious of exercising. '^' It is observable,

that no special equity was here set up. But the party desired the
commission solely upon the ground of founding a possible right against
some persons for tithes, upon the ground, that the land which they
occupied was intra-parochial and tithable. This was properly a matter
at law to be ascertained by a special suit against every owner or
occupant of land severally, and not against them jointly, in a bill
to ascertain boundaries.
§ 619. These cases are sufficient to show, that the existence of a
controverted boundary by no means constitutes a sufficient ground

(to) St. Luke's Parish v. St. Leonard's Parish, or Waring v. Hotham, 1 Bro.
C. C. 40; 2 Dick. 550; cited 2 Anst. 395. (n) 2 Anst. 386,
262 EQUITY JURISPRUDENCE. [CH. XI.

for the interposition of courts of equity, to ascertain and fix that

boundary. Between independent proprietors such cases would be
left to the proper redress at law. It is, therefore, necessary, to
maintain such a bill (as has been already stated), that some peculiar
equity should be superinduced (o). In other words, there must be some
equitable ground attaching itself to the controversy. And we may,
therefore, inquire, what will constitute such a ground. This has
been in part already suggested. In the first place, it may be stated,
that if the confusion of boundaries has been occasioned by fraud, that
alone will constitute a sufficient ground for the interference of the
court (p). And if the fraud is established, the court would by com-
mission or under the modern practice, will by inquiring in chambers,
ascertain the boundaries, if practicable; and, if not practicable, will
do justice between the parties by assigning reasonable boundaries, or
setting out lands of equal value (g).
§ 620. In the next place, it will be a sufficient ground for the
exercise of jurisdiction, that there is a relation between the parties,
which makes it the duty of one of them to preserve and protect
the boundaries; and that by his negligence or misconduct, the con-
fusion of boundaries has arisen. Thus, if, through the default of a
tenant, or a copyholder (who is under an implied obligation to preserve
them), there arises a confusion of boundaries, the court will interfere,
as against such tenant or copyholder, to ascertain and fix the
boundaries (r). It has been said that a tenant for life is under a
similar obligation to the remainderman (s). But, it is indispensable
to establish by suitable proof, that the boundaries, without such
assistance, cannot be found (t). And the relation of the parties,
entitling them to the redress, must also be clearly stated ; for where
the parties claim by adverse titles, without any super-induced equity,
we have already seen, that the remedy is purely at law (w).
§ 621. In the next place, a bill in equity would lie to ascertain and
fix boundaries, when it will prevent a multiplicity of suits. This
is an old head of equity jurisdiction ; and it has been very properly

(o) Wake V. Conyers, 1 Eden, 331; Speer v. Crawler, 2 Meriv. 410; Marquis of
Bute V. Glamorganshire Canal Co., 1 Ph. 681; Att.-Gen. v. Stephens, 6 De G. M.
6 G. 111.
(p) This 16 underatood to have been the ground of the decision of the House of
Lords in Rous v. Barker, 4 Bro. P. C. 660, reversing the decree of the Exchequer in
the same cause. See Atkins v. Hatton, 2 Anst. 806.
(q) Speer v. Crawter, 2 Meriv. 418; Godfrey v. Littells, 1 Euss. & M. 59; 2
Ruse. & M. 620; Att.-Gen v. Stephens, 6 De G. M. & G. Ill; Spike v. Harding,
7 Ch. D. 871; Searle v. Cooke, 43 Ch. D. 519.
(r) Duke of Leeds v. Earl of Strafford, 4 Ves. 180; Att.-Gen. v. Fullerton, 2 Ves.
& B. 263; Spike v. Harding, 7 Ch. D. 871; Searle v. Cooke, 43 Ch. D. 519.
(s) Att.-Gen. v. Stephens, 6 De G. M. & G. 111.
(t) Miller v. Warmington, 1 Jac. & W. 484.
(«) Miller v. Warmington, 1 Jac. & W. 484'; Bouverie v. Prentice, 1 Bro. C. G.
200.
§ 620 — 623.] CONFUSION of boundaeies. 263

applied to cases of boundaries (x). Indeed, in many cases of this

na,ture, as for instance, where the right afieets a large number of
persons, such as a common right in lands, or in a waste claimed by
parishioners, commoners, and others, where the boundaries have
become confused by lapse of time, accident, or mistEuke, the appro-
priate remedy to adjust such conflicting claims, and to prevent
expensive and interminable litigation, seems properly to be in
equity (y). And it is not a complete answer to an action to settle
the boundaries between two estates, that they are situate in a British
colony if, in other respects, the bill is, from its frame, properly main-
tainable (a), but it would seem that no relief would be given, if the
lands were situate in a foreign country (a).
§ 622. There are cases of an analogous nature (which constitute
the second class of cases, arising from confusion or entanglement of
other rights and claims than to lands), where a mischief, otherwise
irremediable, arising from confusion of boundaries, has been redressed
in courts of equity. Thus, where a rent is chargeable on lands, and
the remedy by distress is, by confusion of boundaries or otherwise,
become impracticable, the jurisdiction of equity has been most
beneficially exerted to adjust the rights and settle the claims of the
parties (fe).
§ 623. Other illustrations will present themselves more appro-
priately under other heads, in the course of these Commentaries.
One instance, however, may be mentioned, in which courts of equity
administer the most wholesome moral justice, following out the
principles of law, and that is, where an agent, by fraud or gross
negligence, has confoimded his own property with that of his principal,
so that they are not distinguishable. In such a case, the whole will
be treated in equity as belonging to the principal, so far as it is
incapable of being distinguished (c).

{x) Wake V. Conyers, 1 Eden, 331; Warring v. Hotham, 1 Bro. C. C. 40.

(y)Marquis of Bute v. Glamorganshire Ganal Co., 1 Phil. 681.
(2)Carteret v. Petty, 2 Swanst. 323 n. ; Perm v. Lord Baltimore, 1 Ves. 444;
Tulloch V. Hartley, 1 Y. & C. Ch. 114. See Black Point Syndicate v. Eastern Con-
cessions, Lim., 79 L. T. 658.
(a) In re Hawthorne, Graham v. Massey, 23 Ch. D. 743.
(b) Duke of Bridgewater v. Edwards, 6 Bro. P. C. 368; Duke of Leeds v. 'New
Radnor Corp., 2 Bro. C. C. 338, 518; Basingstoke Corp. v. Lord Bolton, 3 Drew. 50.
(c) Lupton V. White, 16 Ves. 432; In re Oatway, Herstlet v. Oatway, [1903]
2 Ch. 356.
264 EQUITY JURISPRUDENCE. [CII. XII.

CHAPTER XII.
DOWER.

§ 624. Another head of concurrent equitable jurisdiction is in matters

of Dower. As dower is a strictly legal right, it might seem, at first
view, that the proper remedy belonged to courts of common law.
The jurisdiction of courts of equity, in matters of dower for the
purpose of assisting the widow by a discovery of lands or title-deeds,
or for the removing of impediments to her rendering her legal title
available at law, has never been doubted. And, indeed, it is extremely
difficult to perceive any just ground upon which to rest an objection
to it, which would not apply with equal force to the remedial justice
of courts of equity, in all other cases of legal rights in a similar
predicament. But the question has been made, how far courts of
equity should entertain general jurisdiction to give general relief in
those cases where ihere appears to be no obstacle to her legal remedy.
Upon this question there has, in former times, been no inconsiderable
discussion, and some diversity of judgment. But the result of the
various decisions upon this subject is, that courts of equity assumed
and exercised a general concurrent jurisdiction with courts of law
in the assignment of dower in all cases (o). The ground most commonly
suggested for this result was, that the widow was often much em-
barrassed, inproceedings upon a writ of dower at the conamon law,
a cumbrous process which has now been abolished by statute, to
discover the titles of her deceased husband to the estates out of which
she claimed her dower (the title-deeds being in the hands of heirs,
devisees, or trustees) ; to ascertain the comparative value of different
estates ; and to obtain a fair assignment of her thu'd part (b). In
such cases, where the title of the widow to her dower was not
disputed, the court proceeded directly to the assignment of dower;
but, if the title were disputed, the widow was required to establish
her right by an issue at law (c).
§ 626. Upon principle, there would not seem to be any real diffi-
culty in maintaining the concurrent jurisdiction in courts of equity

(a) Curtis v. Gtirtis, 2 Bro. C. C. 620; Mundy v. Mundy, 2 Vea. Juu. 122; s.c. 4.
Bro. C. C. 294.
(b) Mitf. Eq. PI. 121-123, by Jeremy, and note (a).
(c) Curtis V. Curtis, 2 Bro. C. C. 620.
§ 624—628.] DOWER. 265

ia all cases of dower; for a case can scarcely be supposed in which

the widow may not want either a discovery of the title-deeds, or of
dowable lands; or some impediment to her recovery at law removed;
or an account of mesne profits before the assignment of dower; or
a more full ascertainment of the relative values of the dowable
lands ; and for any of these purposes (independent of cases of accident,
mistake, or fraud, or other occasional equities), there seems to be a
positive necessity for the assistance of a court of equity. And, if a
court of equity has once a just possession of the cause in point of
jurisdiction, there seems to be no reason why it should stop short
of giving full relief, intead of turning the dowress round to her
ultimate remedy at law, which is often dilatory, and always expensive.
And the mere circumstance, that a discovery of any sort may be
wanted to enforce the claim, would, under such circumstances, seem
to furnish a sufficient reason why the jurisdiction for discovery should
carry the jurisdiction for relief (d).
§ 627. Lord Eldon has put this matter in a strong light. After
having remarked, that he did not know any ease, in which an heir
had claimed, merely as heir, an account (of mesne profits), without
stating some impediment to his recovery at law; as, that the defendant
has the title-deeds necessary to maintain his title; that terms are
in the way of his recovery at law; or other legal impediments, which
do, or may probably, prevent it; upon which probability, or upon
the fact, the court might found its jurisdiction ; he proceeded to say :
" The case of the dowress is upon a principle somewhat, and not
entirely, analogous to that of the heir. An indulgence has been
allowed to her case, upon the great difficulty of determining a priori,
whether she could recover at law, ignorant of all the circumstances,
and the person, against whom she seeks relief, &c., having in his
possession all the information necessary to .establish her rights.
Therefore it is considered unconscientious in him to expose her to all
that difficulty, to- which, if that information was fairly imparted, as
conscience and justice require, she could not possibly be exposed (e).
§ 628. But the propriety of maintaining a general jurisdiction in
equity, in matters of dower, is still more fully vindicated in a most
elaborate opinion of Lord Alvanley, when Master of the Eolls, in
a case which now constitutes the polar star of the doctrine. After
adverting to the fact, that dower is a mere legal demand, and the
widow's remedy is at law, he said: " But then, the question comes
whether the widow cannot come, either for a discovery of those facts,
which may enable her to proceed at law; and on an allegation of

(d) See Dormer v. Fortescue, 3 Atk. 130, 131; Moor v. Black, Gas. temp. Talb.
126; Curtis v. Curtis, 2 Bro. C. C. 620; Mundy v. Mundy, 2 Ves. Jun. 122; i Bro.
C. 0. 294.
(e) Pulteney v. Warren, 6 Ves. 89. See Co. Litt. 208, Butler's note (105), as to
dower in the case of a mortgage for a term of years.
266 EQUITY JURISPRUDENCE. [CH. XII.

impediments thrown in her way in her proceedings at law, this court

has not a right to assume a jurisdiction to the extent of giving her
relief for her dower; and, if the alleged facts are not positively denied,
to give her the full assistance of the court, she being, in conscience
as well as at law, entitled to her dower." He then proceeded to
state the reasons why the widow should have the assistance of the
court by relief, as well as by discovery; insisting that the case of
the widow is not distinguishable from that of an infant, where the
relief would be clearly granted; and that it would be unconscientious
to turn her round to a suit at law, for the recovery of her dower,
which must be supposed to be necessary for her to live upon, when
she has been compelled to resort to equity for a discovery. And he
finally concluded by saying, that the widow laboured under so many
disadvantages at law that she was fully entitled to every assistance
that this court could give her, not only in paving the way for her to
establish her right at law, but also by giving complete relief when
the right was ascertained (/).
§ 629. Dower, the author suggested, was highly favoured in equity.
As dower in equitable estates was first conferred by the Dower Act,
1833, the statement is open to doubt. All that the Court of Chancery
did was assist the dowress in asserting her legal rights.
§ 630. Indeed, a bill for a discovery and relief has been maintained
against a purchaser for a valuable consideration without notice, upon
the ground that the suit for dower was upon a legal title, and not
upon a mere equitable claim, to which only the plea of a purchase
for a valuable consideration can properly apply (g). This decision
has been often found fault with, and, in some cases, the doctrine
of it denied. It has, however, been vindicated, with great apparent
force, upon that ground (h).
§ 680a. Owing to the operation of the Dower Act, 1833 (3 & 4
Will. 4, c. 105), questions of dower do not often arise, although they
from time to time come before the Chancery Division. The dowress
must assert her claim either to a share of the rents or to have lands
assigned to her within twenty years after the husband's death, or her
claim will be barred by her laches, although, according to the general
rule, the Statute of Limitations is inapplicable (t).

(/) Curtis V. Curtis, 2 Bro. C. C. 620, 630 to 634.

ig) Williams v. Lambe, 3 Bro. C. C. 264.
(h) Boper, Husband and Wife, 446, 447. See Collins v. Archer, 1 Kuss. & M,
284 ; Ind, Coope d Co. v. Emmerson, 12 App. Gas. 300.
(i) Williams v. Thomas, [1909] 1 Ch. 713.
§ 629 — 633.] MARSHALLING OF SECURITIES. 267

CHAPTER XIII.
MARSHALLING OF SECURITIES.

§ 633. Another head of concurrent jurisdiction, in courts of equity,

is that of Marshalling Securities (a). We have already had occasion,
in another place, to consider the topic of marshalling assets in cases
of administration, to which the present bears very close analogy ;
ajid also the doctrine of apportionment and contribution between
sureties, to which it also has a near relation. The general principle
is, that, if one party has a lien on, or interest in, two funds, or
properties, for a debt, and another party has a lien on, or interest in,
one only of the funds or properties for another debt, the latter has a
right in equity to compel the former to resort to the other fimd, in the
first instance, for satisfaction, if that course is necessary for the satis-
faction of the claims of both parties, wherever it wiM not trench upon
the rights, or operate to the prejudice, of the party entitled to the
double fund (b). There must be two funds or properties actually in
existence. Thus in the case of a company incorporated prior to the
statutes which enabled shareholders to limit their liability in respct
of debts due to general creditors, it was held that the policy-holders
could not require a call to be made to the extent of the debts due and
paid to the general creditors in order that a particular fund might
be increased for the purpose of paying them, they being limited in
remedy to that fund (c). Also, if A. has a mortgage upon two
different estates for the same debt, and B. has a mortgage upon one
only of the estates for another debt, B. has a right to throw A., in
the first instance, for satisfaction upon the security, which he, B.,
cannot touch; at least, where it will not prejudice A.'s rights, or
improperly control his remedies (d). The expression " throwing " the
creditor upon a particular fund or security is a repetition of the
language of the cases. But the inaccuracy consists in defining the
effect rather than the means by which a particular result is attained.
It would be contrary to an elementary principle of equity to interfere
with the rights of a creditor for value. He is permitted to exercise

(o) Aldrich v. Cooper, 8 Ves. 382.

(b) Ibid.; Ex parte Kendall, 17 Ves. 514; In re Athill, Athill v. AtUll, 16 Ch. D,
211.
(c) In re Professional Life Assurance, L. R. 3 Eq. 668.
(d) Gibson v. Seagrim, 20 Beav. 614.
266 EQUITY JUEISPRUDENCB. [CH. XII.

impediments thrown in her way in her proceedings at law, this court

has not a right to assume a jurisdiction to the extent of giving her
relief for her dower; and, if the alleged facts are not positively denied,
to give her the full assistance of the court, she being, in conscience
as well as at law, entitled to her dower." He then proceeded to
state the reasons why the widow should have the assistance of the
court by rehef, as well as by discovery; insisting that the case of
the widow is not distinguishable from that of an infant, where the
reUef would be clearly granted; and that it would be unconscientious
to turn her round to a suit at law, for the recovery of her dower,
which must be supposed to be necessary for her to live upon, when
she has been compelled to resort to equity for a discovery. And he
finally concluded by saying, that the widow laboured under so many
disadvantages at law that she was fully entitled to every assistance
that this court could give her, not only in paving the way for her to
establish her right at law, but also by giving complete relief when
the right was ascertained (/).
§ 629. Dower, the author suggested, was highly favoured in equity.
As dower in equitable estates was first conferred by the Dower' Act,
1833, the statement is open to doubt. All that the Court of Chancery
did was assist the dowress in asserting her legal rights.
§ 630. Indeed, a bill for a discovery and relief has been maintained
against a purchaser for a valuable consideration without notice, upon
the ground that the suit for dower was upon a legal title, and not
upon a mere equitable claim, to which only the plea of a purchase
for a valuable consideration can properly apply (g). This decision
has been often found fault with, and, in some cases, the doctrine
of it denied. It has, however, been vindicated, with great apparent
force, upon that ground (h).
§ 630a. Owing to the operation of the Dower Act, 1833 (3 & 4
Will. 4, c. 105), questions of dower do not often arise, although they
from time to time come before the Chancery Division. The dowress
must assert her claim either to a share of the rents or to have lands
assigned to her within twenty years after the husband's death, or her
claim will be barred by her laches, although, according to the general
rule, the Statute of Limitations is inapplicable (t).

{/) CuHis V. Curtis, 2 Bro. C. C. 620, 630 to 634.

(g) Williams v. Lambe, 3 Bro. C. C. 264.
(h) Eoper, Husband and Wife, 446, 447. See Collins v. Archer, 1 Euss. & M.
284; Ind, Coope d Co. v. Emmerson, 12 App. Cae. 300.
(!) Williams v. Thomas, [1909] 1 Ch. 713.
§ 629 633.] MARSHALLING OF SECURITIES. 267

CHAPTER XIII.
MARSHALLING OF SECURITIES.

§ 633. Another head of concurrent jurisdiction, in courts of equity,

is that of Marshalling Securities (a). We have already had occasion,
in another place, to consider the topic of marshalling assets in cases
of administration, to which the present bears very close analogy;
and also the doctrine of apportionment and contribution between
sureties, to which it also has a near relation. The general principle
is, that, if one party has a lien on, or interest in, two funds, or
properties, for a debt, and another party has a lien on, or interest in,
one only of the funds or properties for another debt, the latter has a
right in equity to compel the former to resort to the other fund, in the
first instance, for satisfaction, if that course is necessary for the satis-
faction of the claims of both parties, wherever it wiU not trench upon
the rights, or operate to the prejudice, of the party entitled to the
double fund (b). There must be two funds or properties actually in
existence. Thus in the case of a company incorporated prior to the
statutes which enabled shareholders to limit their liability in respct
of debts due to general creditors, it was held that the policy-holders
could not require a call to be made to the extent of the debts due and
paid to the general creditors in order that a particular fund might
be increased for the purpose of paying them, they being limited in
remedy to that fund (c). Also, if A. has a mortgage upon two
different estates for the same debt, and B. has a mortgage upon one
only of the estates for another debt, B. has a right to throw A., in
the first instance, for satisfaction upon the security, which he, B.,
cannot touch; at least, where it will not prejudice A.'s rights, or
improperly control his remedies (d). The expression " throwing " the
creditor upon a particular fund or security is a repetition of the
language of the cases. But the inaccuracy consists in defining the
effect rather than the means by which a particular result is attained.
It would be contrary to an elementary principle of equity to interfere
with the rights of a creditor for value. He is permitted to exercise

(a) Aldrich v. Cooper, 8 Ves. 382.

(b) Ibid. ; Ex ■parte Kendall, 17 Ves. 514; In re Athill, Athill v. Athill, 16 Ch. D,
211.
(c) In re Professional Life Assurance, L. K. 3 Eq. 668.
(d) Gibson v. Seagrim, 20 Beav. 614.
270 EQUITY JUEISPEUDENCE. [CH. XIII.

drawn, had not the preferable creditor intervened; and this sum is
held to be purchase money of the conveyance. This, construction,
preserving the preferable debt entire in the person of the second
creditor, entitles him to draw payment of that debt out of the other
tenement. By this equitable construction matters are restored to
the same state as if the first creditor had drawn his payment out of
the separate subject, leaving the other entire, for payment of the
second creditor. Utility, also, concurs to support this equitable
claim " (o).
§ 638. In this and the subsequent section the learned author
referred to the right of a surety to a transfer of securities from the
creditor, and to insist that the debtor should pay off the debt. With
all deference to so learned an authority, this matter is hardly pertinent
to the marshalling of securities.
§ 640. As between a debtor and his creditor, where the latter has
a formal obligation of the debtor, and also a security or a fund, to
which he may resort for payment, there seems to be no ground to say
(at least, unless some other equity intervenes), that a court of equity
ought to compel the creditor to resort to such fund, before he asserts
his claim by a personal suit against his debtor. Why, in such a case,
should a court of equity interfere to stop the election of the creditor,
as to any of the remedies which he possesses in virtue of, or under,
his contract? There is nothing in natural or conventional justice which
requires it. It is true that a different doctrine has been strenuously
maintained by very learned judges, in a most elaborate manner (p).
But their opinions, however able, have been met by a reasoning
exceedingly cogent, if not absolutely conclusive, on the other side.
And, at all events, the settled doctrine now seems to be, in conformity
to the early, as well as the latest, decisions, that the debtor himself
has no right to insist that the creditor, in such a case, should pretermit
any of his remedies, or elect between them, unless some peculiar equity
springs up from other circumstances (q).
§ 641. The civil law, as we have seen, in the case of sureties,
required the creditor, in the first instance, to pursue his. remedy
against the debtor. But, if the surety thought himself in peril of
loss by the delay of the creditor, he might compel the latter to sue
the debtor; and thus obtain his indemnity. "Fidejussor" (says the
Digest (r)) " an, et prius quam solvat, agere possit, ut liberetur? Nee
tamen semper expectandum est, ut solvat, aut judicio accepto con-

(o) 1 Kaims, Equity, B. 1, Pt. 1, ch. 3, § 1, pp. 122, 123.

(p) See Lord Thurlow's opinion in Wright v. Nutt, 3 Bro. C. C. 326, and Lord
Loughborough in Folliot v. Ogden, 1 H. Bl. 124. See also Averall v. Wade, LI. &
G. temp. Sugd. 255.
(q) HoUitch v. Mist, 1 P. Will. 695; Wright v. Simpsmi, 6 Ves. 713; WoHhing-
ton V. Abbott, [1910] 1 Ch. 588.
(t) Dig. Lib. 17, tit. 1, f. 38; ante, §§ 327, 494.
§ 638 — 644.] MARSHALLING OF SECURITIES. 271

demnetur; si diu in solutione reus cessabit, aut certe bona sua dissi-
pabit; prsesertim, si domi pecuniam fidejussor non habebit, qua
numerata creditori, mandati actione conveniat. " This is a very
wholesome and just principle (s).
§ 642. But although courts of equity will thus administer relief to
both parties in cases of double funds, which are subject to the same
debt; and will, in favour of sureties, marshal the securities for their
benefit; yet this will be so done only in cases where no injustice is
done to the common debtor; for then other equities may intervene.
And the interposition always supposes, that the parties seeking aid
are creditors of the same common debtor; for if they are not, they
are not entitled to have the funds marshalled, in order to leave a
larger dividend out of one fund, for those who can claim only against
that. The principle may be easily illustrated, by supposing the case
of a joint debt due to one creditor by two persons, and a several debt
due by one of them to another creditor. In such a case, if the joint
creditor obtains a judgment against the joint debtors, and the several
creditor obtains a subsequent judgment against his own several debtor;
a court of equity will not compel the joint creditor to resort to the
funds of one of the joint debtors, so as to leave the second judgment
in full force against the funds of the other several debtor. At least,
it will not do so, unless it should appear that the debt, though joint
in form, ought to be paid by one of the debtors only ; or there should
be some other supervening equity.
§ 643. Another case has been put, of a similar nature, by Lord
Eldon. " We have gone this length" (said he): "If A. has a right
to go upon two funds, and B. upon one, having both the same debtor,
A. shall take payment from that fund, to which he- can resort exclu-
sively, that, by those means of distribution, both may be paid. That
takes place, where both are creditors of the same person, and have
demands against funds, the property of the same person. But it was
never said, tha.t, if I have a demand against A. and B., a creditor of
B. shall compel me to go against A., without more; as if B. himself
could insist, that A. ought to pay in the first instance, as in the
ordinary case of drawer and acceptor, or principal and surety, to the
intent, that all obligations arising out of these complicated relations
may be satisfied. But if I have a demand against both, the creditors
of B. have no right to compel me to seek payment from A., if not
founded in some equity, giving B. the right for his own sake, to
compel me to seek payment from A " (t).
§ 644. Upon this ground, where there was a partnership of five
persons, one of whom died, and the other four partners continued the

(s) See the learned opinion of Mr. Chancellor Kent in Campbell v. Macomb,
4 Johns. 538.
(t) Ex parte Kendall, 17 Ves. 520; Solicitors and General Insce. v. Lamb, 2 De
G. J. & S. 251.
272 EQUITY JURISPRUDENCE. [CH. XIII,

partnership, and afterwards became bankrupt; and the creditors of

the four surviving partners sought to have the debts of the five paid
out of the assets of the deceased partner, so that the dividend of the
estate of the four bankrupts might be thereby increased in favour of
their exclusive creditors; without showing, that the assets of the
deceased partner ought, as between the partners, to pay those debts,
or that there was any other equity to justify the claim; the court
refused the relief («). On that occasion, the Lord Chancellor (x) said :
That, even if it was clear that the creditors of the five partners could
go against the separate assets of the deceased partner (which, of
course, depended upon equitable circumstances, as the legal remedy
was against the survivors only); yet, if it was not clear that the
survivors had a right to turn the creditors of the five against those
assets, it did not advance the claim, that, without such arrangement,
the creditors of the four would get less. Unless the latter could
establish, that it is just and equitable, that the estate of the deceased
partner should pay in the first instance, they had no right to compel
a creditor to go against that estate, who had a right to resort to both
funds. Indeed, there might exist an opposite equity : that of com-
pelling the creditor to go first against the property of the survivors,
before resorting to the estate of the deceased partner.
§ 645. The ground of all these decisions is the same general
doctrine already suggested, though the application of that doctrine
is necessarily varied by the circumstances. Where a creditor has a
right to resort to two persons who are his joint and several debtors,
he is not compellable to yield up his remedy against either, since he
has a right to stand upon the letter and spirit of his contract, unless
some supervening equity changes or modifies his rights. If each
debtor is equally bound in equity and justice for the debt, as in the
case of joint debtors or partners, where both have had the full benefit
of the debt, the interference of a court of equity, to change the
responsibility from both debtors or partners to one, would seem to be
utterly without any principle to support it, unless there was a duty in
one of the debtors or partners to pay the debt in discharge of the
other. And, if this be so, a fortiori, the creditors of one of the
debtors, or partners, cannot be entitled to such interference for their
own benefit; for they can, in no just sense, in such a case, work out
any right, except through the equity of the debtor or partner under
whom their title is derived.

(u) Ex parte Kendall, 17 Ves, 614. (x) Lord Eldoc

§ 645, 646.] PAKTiTiON. 273

CHAPTER XIV.
PARTITION.

§ 646. Another head of concurrent jurisdiction is that of Partition

in cases of real estate by joint tenants, tenants in common, and
coparceners. It is not easy, as has been well observed by Mr.
Fonblanque, to trace back or establish the origin of any branch of
equitable jurisdiction (a). But the jurisdiction of courts of equity to
partition freehold lands, including manors and manorial rights (fe), for
it did not extend to copyhold or customary lands (c), is, beyond ques-
tion, very ancient (d). It is curious enough to observe the terms of
apparent indignatiQn with which Mr. Hargrave has spoken of this
jurisdiction, as if it were not only new, but a clear usurpation. Yet
he admits its existence and practical exercise as early as the reign of
Queen Elizabeth (e)— a period so remote that at least one-half of the
law, which is at present, by way of distinction, called the common
law, and regulates the rights of property and the operation of eon-
tracts, and especially of commercial contracts, has had its origin since
that time. "A new and compulsory mode of partition (says Mr.
Hargrave) has sprung up, and is now fully established, namely, by
decree of chancery, exercising its equitable jurisdiction on a. bill filed,
praying for a partition, in which it is usual for the court to issue a
commission for the purpose to various persons who proceed without a
jury. How far this branch of equitable jurisdiction, so trenching upon
the writ of partition, and wresting from a court of common law its
ancient exclusive jurisdiction of this subject, might be traced by
examining the records of chancery, I know not. But the earliest
instance of a bill of partition, I observe, to be noticed in the printed
books, is a case of the 48th Elizabeth, in Tothill's Transactions of
Chancery, title " Partition " (/). According to this short report of the
case, the court interfered from necessity, in respect of the minority of
one of the parties, the book expressing that, on that account, he could
not be made a party to a writ of partition; which reason seems very
inaccurate; for, if Lord Coke is right, that writ doth lie against an

(a) 1 Fonbl. Bq. B. 1, ch. 1, § 3, note (/).

(6) Hanbury v. Hussey, 14 Beav. 152.
(c) Jope V. Morshead, 6 Beav. 213.
(d) See generally Agar v. Fairfax, 17 Ves. 533.
(e) See Mr. Fonblanque'a remarks on the passage, 1 Fonbl. Eq. B. 1, ch. 1, § 3,
note (/). (/) Speke v. Walrond, dc. (o), Tothill's Trans. 155 (edit. 1649).
E.J. 18
274 EQUITY JDEISPRDDENCE. [CH. XIV.

infant, and he shall not have his age in it, and after judgment he is
bound by the partition (g). But probably, in Lord Coke's time, this
was a rare and rather unsettled mode of compelling partition; for, I
observe, in a case in chancery, of the 6th Charles I., which was referred
to the judges on a point of law between two coparceners, that the
judges certified for issuing a writ of partition between them, and that
the court ordered one accordingly; which, I presume, would scarcely
have been done if the decree for partition and a commission to
make it had then been a current and familiar proceeding with,
chancery (h). However, it appears by the language of the court in
a very important cause, in which the grand question was, whether the
Lord Chancellor here could hold plea of a trust of lands in Ireland that,
in the reign of James II., bills of partition were become common " (i).
§ 647. These remarks of the learned author are open to much
criticism, if it. were the object of these commentaries to indulge in
such a course of discussion. It cannot, however, escape notice that,
when the learned author speaks of this branch of equitable jurisdiction
as trenching upon the writ of partition, and wresting from the courts of
common law their ancient exclusive jurisdiction over the subject,
he assumes the very matter in controversy. That the writ of partition
is a very ancient course of proceeding at the common law is
not doubted. But it by no means follows, that the courts of
common law had an exclusive jurisdiction over the subject of '
partition. The contrary may fairly be deemed to have been the case,
from the notorious inadequacy of that writ to attain, in many cases,
the purposes of justice. Thus, for instance, we know that until the
reign of Henry VII. no writ of partition lay, except in the case of
parceners. Littleton (§ 264) expressly says, " For, such a writ lyeth by
parceners only." And to show how nan-owly the whole remedial
justice of this writ was construed, it was the known settled doctrine,
that, if " two coparceners be, and one should aliene, in fee, the
remainder parcener might bring a writ of partition against the alienee ;
but the alienee could not have such a writ against the parcener. And
the like diversity existed in cases of a writ of partition by or against a
tenant by the curtesy " (fc). Now, such a case would, upon the very
face of it, constitute a clear case for the interposition of a court of
chancery; upon the ground of the total defect of any remedy at law,
and yet of an unquestionable equitable right to partition. Cases of
joint tenancy and tenancy in common afford equally striking illustra-
tions. Until the statute of 31 Henry 8, c. 1, and 32 Henry 8, c. 32, no
writ of partition lay at law for a joint-tenant or tenant in common (I).
And yet the grossest injustice might have arisen, if a court of chancery
could not in such a case have interposed and granted relief, upon the
ig) Co. Litt. 171 b. (h) Drury v. Drury, 1 Ch. Eep. 49.
(t) Hargrave's note (2) to Co. Litt. 169 d. (h) Co. Litt. 175 a.
{/) Co. Litt. 175 a; 2 Black. Coram. 185; Cora. Dig. Parcener, C. 6.
§ 647—649.] PARTITION. 275

analogy to the legal remedy. The reason given at the common law
against partition in such cases was more specious than solid. It was,
that a joint tenancy being an estate originally created by the act or
agreement of the parties, the law would not permit any one or more of
the tenants to destroy the united possession without a similar universal
consent. The good sense of the doctrine would rather seem to be, that
the joint tenancy being created by the act or agreement of the parties,
in a case capable of a severance of interest, the joint interest should
continue (exactly as in cases of partnership) so long as, and no longer
than, both parties should consent to its continuance.
§ 648. Mr. Justice Blackstone has cited the civil law, as con-
firmatory ofthe reasoning of the common law : ' ' Nemo enim invitus
compellitur ad communionem " (m). But that law deemed it against
good morals to compel joint owners to hold a thing in common; since
it could not fail to occasion strife and disagreement among them.
Hence, the acknowledged rule was, "In communione vel societate
nemo compellitur invitus detineri " (n). And, therefore, a decree of
partition might always be insisted on, even when some of the part-
owners did not desire it. " Communi dividend© judicium ideo neces-
sarium fuit, quod p>-o socio actio magis ad personales invicem prsesta-
tiones pertinet, quam ad communem rerum divisionem (o). Etsi non
omnes, qui rem communem habent, sed certi ex his dividere desiderant,
hoc judicium inter eos accipi potest " (p).
§ 649. But, independently of considerations of this sort, which
might have brought many cases of partition into the Court of Chancery,
in very early times, from the manifest defect of any remedy at law,
there must, have been many oases, where bills for partition were
properly entertainable upon the ordinary ground of a discovery wanted,
or of other equities, intervening between the parties (q). Lord Lough-
borpugh, upon one occasion, said that there is no original jurisdiction
in chancery in partition, which is a proceeding at the common law (r).
This may be true sub modo, where the party is completely remediable
at law; but not otherwise. On another occasion his lordship said : " A
party, choosing to have a partition, has the law open to him; there is
no equity for it. But the jurisdiction of this court obtained upon a
principle of convenience. It is not for the court to say, one party shall
not hold his estate, as he pleases ; but another person has also the same
right to enjoy his part, as he pleases; and, therefore, to have the estate
divided. The law has provided, that one shall not defeat the right of
the other to the divided estate. Then the only question is, whether
(m) Dib. Lib. 12, tit. 6, f. 26, § 4 ; 2 Black. Comm. 185, note (c).
(n) Cod. Lib. 3, tit. 37, f. 5 ult.
(o) Dig. Lib. 10, tit. 3, f. 1.
(p) Dig. Lib. 10, tit. 3, f. 8; Fulbeck's Parallel, B. 2, pp. 57, 68; Brsk. Inst.
B. 3, tit. 3, § 56; 1 Stair's Inst. 48.
(q) See Watson v. Duke of Northumberlavd, 11 Ves. 155, arguendo.
(r) Mundy v. Mundy, 2 Ves. Jun. 124.
276 EQUITY JURISPRUDENCE. [CH. XIV.

the legal mode of proceeding is so convenient, as the means this court

affords, to settle the interests between them with perfect fairness and
equality? It is evident that the commission is much more convenient
than the writ; the valuation of these proportions is much more con-
sidered: the interests of all parties are much better attended to; and
it is a work carried on for the common benefit of both " (s).
§ 650. This language (it must certainly be admitted) is sufficiently
loose and general. But it appears to be by no means a just description
of the true nature and reason of the jurisdiction of courts of equity in
oases of partition. It is not a jurisdiction founded at all in mere con-
venience; but in the judicial incompetency of the courts of common
law, to furnish a plain, complete, and adequate remedy for such cases ;
for the writ of partition at the common law was a real action, a cum-
brous, oppressive, and highly technical form of procedure finally
abohshed by statute 3 & 4 WiU. 4, c. 27, s. 36. After that date the
jurisdiction of the Court of Chancery became exclusive, and is now
vested in the Chancery Division of the High Court by section 34, sub-
section 3of the Judicature Act, 1873 (36 & 37 Vict. c. 66). The true
ground is far more correctly stated by Lord Eedesdale, in his admirable
treatise on Pleadings in Equity. " In eases of partition of an estate,"
says he, " if the titles of the parties are in any degree complicated,
the difficulties which have occurred in proceeding at the common law
have led to applications to courts of equity for partitions, which are
efieoted by first ascertaining the rights of the several persons interested ;
and then issuing a commission to make the partition required; and,
upon the return of the commissioners, and confirmation of that return
by the court, the partition is finally completed by mutual conveyances
of the allotments made to the several parties " (i). According to the
modern practice, the rights of the parties are adjusted by means of a
reference to chambers.
§ 651. The ground, here stated, is of a complication of titles, as
the true foundation of the jurisdiction. But it is not even here
expressed with entire legal precision. However complicated the titles
of the parties might be, still, if they could be thoroughly investigated
at law, in the usual course of proceedings in the common-law courts,
there would seem to be no sufficient reason for transferring the juris-
diction of such cases to the courts of equity. The true expression of
the doctrine should have been, that courts of equity interfere in cases
of such a complication of titles, because the remedy at law is inadequate
and imperfect, without the aid of a court of equity to promote a dis-
covery, or to remove obstructions to the right, or to grant some other
equitable redress (u).

(s) Cahnady v. Calmady, 2 Ves. Jrrn. 570. See also Baring v Nash, 1 Ves &
B. 555.
(t) Mitford, Eq. PI. by Jeremy, 120; 1 Fonbl. Eq. B. 1, ch. 1, § 3, note (/),
pp. 120, 121. (m) Agar v. Fairfax, 17 Ves. 533.
§ 650 — 654.] PARTITION. 277

§ 652. " Partition at law " (said Lord Eedesdale), " and in equity,
are different things. The first operates by the judgment of a court
of law, and delivering up possession in pursuance of it; which con-
cludes all the parties to it. Partition in equity proceeds upon
conveyances to be executed by the parties; and, if the parties be not
competent to execute the conveyances, the partition cannot be effec-
tually had " {x). Hence, if the infancy of the parties, or other
circumstances, prevented such mutual conveyances, the decree could
only extend to make the partition, give possession, and order enjoyment
accordingly, until eSectual conveyances could be made. If the defect
arose from infancy, the infant must have had a day after attaining
twenty-one years to show cause against the decree. If a contingent
remainder, not barrable or extinguishable, were limited to a person not
in existence, the conveyance could not be made until he came into
being, and was capable, or until the contingency was determined. An
executory devisee might occasion a similar embarrassment. And, in
either of these cases, a supplemental bill was necessary to carry the
original decree into execution (y). The difficulties indicated have been
removed by legislation the effect of which will be discussed hereafter.
§ 653. It is upon this account, that Lord Hardwicke has spoken
of the remedy by partition in equity, as being discretionary, and not
a matter of right in the parties. "Here" (said he) "the reason"
(that the plaintiff should show a title in himself, and not allege,
generally, that he is in possession of a moiety of the land) " is because
conveyances are directed, and not a partition only, which makes it
discretionary, in this court, where a plaintiff has a legal title (whether)
they (it) will grant a partition or not; and where there are suspicious
circumstances in the plaintiff's title, the court will leave him to
law" (z). His lordship was here speaking of legal titles; for, in the
same case, he expressly stated, that, where the bill for a partition was
founded on an equitable title, a court of equity might determine it; or
otherwise, there would be no remedy (a). And, indeed, if there are no
suspicious circumstances, but the title is clear at law, the remedy for a
partition in equity is as much a matter of right, as at law (b).
§ 654. In regard to partitions, there was also another distinct
ground upon which the jurisdiction of courts of equity was maintain-
able, as it constituted a part of its appropriate and peculiar remedial
justice. It is, that courts of equity were not restrained, as courts of
law were, to a mere partition or allotment of the lands and other real
estate between the parties, according to their respective interests in

{x) Whaley v. Dawson, 2 Sch. & Lefr. 371, 372.

iy) Mitford, Eq. PI. by Jeremy, 120, 121.
(z) Cartwright v. Pultney, 2 Atk. 380.
(a) Cartwright v. Pultney, 2 Atk. 380.
(b) Baring v. Nash, 1 Ves. & B. 555, 556; Parker v. Gerrard, Ambler 236, and
Mr. Blunt 's note.
278 EQUITY JURISPRUDENCE. [CH. XIV.

the same, and having regard to the true value thereof; but courts
of equity might, with a view to the more convenient and perfect
partition or allotment of the premises, decree a pecuniary compen-
sation to one of the parties for owelty or equality of partition, so as to
prevent any injustice or unavoidable inequality (c). This a court of
common law was not at liberty to do; for when a partition was
awarded by such a court, the exigency of the writ was, that the
sheriff should cause, by a jury of twelve men, a partition to be made
of the premises between the parties, regard being had to the true value
thereof; without any authority to mate compensation for any in-
equality in any other manner (d). This was in itself a sufficient
ground of equity jurisdiction.
§ 655. Cases of a different nature, involving equitable compensa-
tion, to which a court of law is utterly inadequate, may easily be put;
such, for instance, as cases, where one party has laid out large sums
in improvements on the estate. For, although, under such circum-
stances, the money so laid out does not, in strictness, constitute a
lien on the estate (e) ; yet, a court of equity will not grant a partition
without first directing an account, and compelling the party applying
for partition to make due compensation (/). So, where one tenant in
common has been in personal occupation or in the exclusive per-
ception ofthe rents and profits, on a bill for a partition, the court will
fix him with an occupation rent or direct an account of the rents and
profits received (g). So, where one tenant in common, supposing
himself to be legally entitled to the whole premises, has erected
valuable buildings thereon, he will be entitled to an equitable partition
of the premises, so as to give him the benefit of his improvements;
or if that cannot be done, he will be entitled to a compensation for
those improvements (h).
§ 656. Indeed, in a great variety of eases, especially where the
property is of a very complicated nature, as to rights, easements,
modes of enjoyment, and interfering claims, the interposition of a court
seems indispensable for the purposes of justice. For since partition
is ordinarily a matter of right, no difficulty in making a partition is

(c) Co. Litt. 176 a and fc ; ibid. 168 a. See Earl of Clarendo7i v. Hornby, 1 P. "Will.
446; Warner v. Baynes, Ambler 589; Storey v. Johnson-, 2 Y. & C. 586; Mole v.
Mansfield, 15 Sim. 41.
(d) Kay v. Johnston, 21 Beav. 536.
(e) Co. Litt. 167 a; Com. Dig. Pleader, 3 F. 4. Littleton (§ 251) has spoken of
a rent-charge in cases of partition for owelty or equality in partition. But this not
in a case of compulsory partition by writ; but of a voluntary partition by deed cr
parol, as the context abundantly shows. Co. Litt. 169 b ; Litt. § 260, 852.
(/) Swan V. Swan, 8 Price 518; In re Jones, Farrington v. Forester, [1893] 2 Oh.
461.
(g) Hill V. Fulbrook, 1 Jac. 574; Pascoe v. Swan, 27 Beav. 508; Teasdale v.
Sanderson, 33 Beav. 634.
(h) See Parker v. Trigg, W. N. (1874), p. 27; Watson v. Gass, 51 L. J. Ch. 480;
Williams v. Williams, 68 L. J. Ch. 628; Kenrick v. Mountstephen, 48 W. B. 141.
§ 655—658.] PARTITION. 279

allowed to prevail in equity, whatever may be the case at law, as the

powers of the court are adequate to a full and just compensatory
adjustment (i). There have been cases disposed of in equity which
seemed almost impracticable for allotment at law, as in the case of
the Cold Bath Fields, in which Lord Hardwicke did not hesitate to
act, notwithstanding the admitted difficulties (fc). The Court of
Chancery would order a partition if there were parties before the court,
who possessed competent present interests, such as a tenant for life,
or for years (Z); but not parties entitled in reversion or remainder
expectant upon a present interest (m), and the order so made was
binding upon those parties only who were before the court, and those
whom they virtually represent as parties entitled in remainder although
not yet in existence (n) : and the interests of third persons are not
affected (o). And it is not an unimportant ingredient in the exercise
of equity jurisdiction, in cases of partition, that the parties in interest
may be brought before the court, far more extensively than they can
be by any processes known to the courts ofi law, for the purpose of
doing complete justice (p). It is no longer necessary to make all
persons interested parties to the proceedings in the first instance (g).
§ 657. In equity, too (and it would seem that the same rule
prevails at law, though this has sometimes been doubted), where
there are divers parcels of lands, messuages, and houses, partition need
not be made of each estate separately, so as to give to each party
his moiety or other portion in every estate. But the whole of one
estate may be allotted to one, and the whole of another estate to the
other, provided that his equal share is allotted to each (?■). But it is
obvious that, at law, such a partition can rarely be conveniently made,
because the court cannot decree compensation, so as to make up for
any inequality, which must ordinarily occur in the allotment of
different estates to each party. In equity it is in the ordinary
course (s).
§ 658. It is upon some or all of these grounds, the necessity of a
discovery of titles, the inadequacy of the remedy at law, the difficulty
of making the appropriate and indispensable compensatory adjust-
ments, the peculiar remedial processes of courts of equity, and their
ability to clear away all immediate obstructions against complete
justice, that these courts have assumed a general concurrent juris-
(i) Ante, § 653.
(it) Warner v. Baynes, Ambler 589.
(l) Wills V. Slade, 6 Ves. 498; Baring v. Nash, 1 Ves. & B. 555; Gaskell v
Gaskell, 6 Sim. 643; Heaton v. Dearden, 16 Beav. 147.
(m) Evans v. Bagshaw, L. E. 5 Ch. 840.
(n) Story on Bq. PI. § 144 to 148; Gaskell v. Gasskell, 6 Sim. 643.
(o) Agar v. Fairfax, 17 Ves. 544; Watkins v. Williams, 3 Mao. & G. 622.
(p) Anon., 3 Swanst. 139, note (b).
iq) Partition Act, 1868 (31 & 32 Vict. c. 40), s. 9.
(r) Earl of Clarendon v. Hornby, 1 P. Will. 446; Peers v. Needham, 19 Beav. 316.
(s) Ante, § 664.
280 EQUITY JURISPRUDENCE. [CH. XIV.

diction with courts of law in all cases of partition. So that, it is not

now deemed necessary to state, in the bill, any peculiar ground of
equitable interference (t). And, unless I am greatly misled in my
judgment, this review of the true sources and objects of this concurrent
jurisdiction demonstrates, in the most satisfactory manner, how ill-
founded the animadversions of Mr. Hargrave (already cited) are, upon
the exercise of this jurisdiction (u). But the most conclusive proof in
its favour is, that, wherever it exists, it has almost entirely superseded
any resort to courts of law to obtain a partition. In making partition,
however, courts of equity generally follow the analogies of the law;
and will decree in such cases, as the courts of law recognize as fit for
their interference (x). But courts of equity are not therefore to be
understood as limiting their jurisdiction in partition to cases cognizable
or relievable at law; for there is no doubt, that they may interfere in
cases where a partition would not lie at law (y) ; as, for instance, in
the case where an equitable title is set up (a) or where the estate to be
divided is incorporeal. With regard to equitable estates a distinction
must be drawn between those cases in which trustees hold property
upon trust for sale, and those in which they merely have a power of
sale. In the former case there could be no partition, for in the eyes of
a court of equity the parties would only be entitled to the j)roperty in
its converted state, unless all the parties being sui juris elected to take
the property in its unconverted "state (a).
§ 658a. Many improvements in procedure in partition actions have
been introduced by the Partition Act, 1868 (31 & 32 Vict. c. 40), and
the Partition Act, 1876 (39 & 40 Vict. c. 17), the most material being
the power to order a sale and division of the proceeds, against the will
of one or more of the parties interested. Prior to this statute if the
only outstanding interest was vested in an infant the court could by
a side wind, if a sale were in fact beneficial to the infant, make an
order to that effect (6) ; but against the wish of an adult part owner
there could be no sale (c). Under sect. 3 of the Act of 1868, the court
.is invested with a discretion to order a sale upon the application, of
any of the parties interested, and notwithstanding the dissent or dis-
ability ofany others of them " if it appears to the court that by reason
of the nature of the property to which the suit relates, or of the number
of the parties interested or presumptively interested therein, or of the
absence or disability of some of those parties, or of any other circum-

(t) Mitford, Eq. PI. by Jeremy, 120.

(a) Ante, § 646.
(x) Ante, § 646; Wills v. Slade, 6 Vea. 498; Baring v, Nash, 1 Ves. & B. 55S.
(y) Swan v. Swan, 8 Price 519.
(z) Cartwright v. Pultney, 2 Atk. 380; Com. Dig. Chancery, 4 E., Partition;
ante, § 653.
(o) Biggs v. Peacock, 22 Ch. D. 284; Boyd v. Allen, 24 Ch. D. 622.
(b) Davis v. Turvey, 32 Beav. 554 ; Huhbard v. Hubbard, 2 H. & M. 88.
(c) Griffies v. Griffies, 8 L. T. 758.
§ 658a..] PARTITION. 281

stance," a sale and distribution of the proceeds would be more bene-

ficial to the parties (i). By sect. 4 of the same statute, " the party
or parties interested, individually or collectively, to the extent of one
moiety or upwards in the property ' ' may force a sale unless the court
" sees good reason to the contrary " (e). The only instance in which
opposition has been successfully made to an application for a sale
under sect. 4, was where it appeared that the party asking for a sale
was actuated by spite or ill-will (/). There is also a power to order a
sale on the application of any party "unless the other parties interested
in the property, or some of them, undertake to purchase the share of
the party requesting a sale " (g).
(d) Pitt V. Jones, 5 App. Cas. 659.
(e) Pemberton v. Barnes, L. E. 6 Ch. 685; Porter v. Lopes, 7 Ch. D. 358.
(/) Saxton V. BaHley, 48 L. J. Ch. S19.
Ig) WiUiams v. Games, L. E. 10 Ch. 204; Richardson v. Feary, 39 Ch. D. 45.
282 EQUITY JURISPRUDENCE. [OH. XV.

CHAPTER XV.

PARTNERSHIP.

§ 659. Another head of concurrent jurisdiction arising from similar

causes is in relation to Partnership (a). In cases of this nature,
where a remedy at law actually exists, it is often found to be very
imperfect, inconvenient, and circuitous. But in a very great variety
of cases, there is, in fact, no remedy at all at law to meet the exigency
of the case. We shall, in the first instance, take notice of such
remedies as exist at law; and then proceed to the consideration of
others, which are peculiar to courts of equity.
§ 660. And here it may be pi'oper to begin by a reference to that,
which is, in its own nature, preliminary to all other inquiries, to
wit, the actual existence of the partnership itself. Although, in
many cases, written articles or instruments of partnership exist, as
the foundation of the joint concerns ; yet, in many other cases, the
partnership itself exists merely in parol; and even in cases of
written articles, there are many defects and omissions, which the
parties have left unprovided for. Now a controversy may arise in
regard to the existence of the partnership between the partners
themselves, or between them and third persons. In each case its
existence may ^mainly depend upon the discovery which formerly
could only be obtained through the instrumentality of a court of equity.
If written articles exist, they may be suppressed or concealed; if
none exist it may be impracticable to obtain due knowledge of the
partnership by any competent witnesses in the ordinary course of law.
But, in by far the most numerous and important class of cases, that
of secret and dormant partners, ther« ordinarily was not any adequate
means at law to get at the names or numbers of the partners. In
all such cases, the powers of a court of equity were most effective
by means of a bill of discovery, in bringing out all the facts, as well

(o) See Com. Dig. Chancery, 3 V. 6. By the Judicature Act, 1873, s. 3i, sub-s. 3.
the dissolution of partnerships, or the taking of partnership or other accounts, is
assigned to the Chancery Division of tlifi High Court of Justice. The law of partner-
ship has been codified by the Act to Declare and Amend the Law of Partnership (53
& 54 Vict. c. 39). This Act defines " Partnership " as follows : " Partnership is the
relation which subsists between persons carrying on a business in common with a view
to profit."
§ 659—663.] PARTNERSHIP. 283

in controversies between the partners themselves, as between them

and third persons.
§ 661. But admitting a partnership to exist, let us now proceed to
consider what were formerly the remedies at law which exist between
the partners themselves. These, of course, were formerly dependent
upon the nature of the partnership, and the grievance for which a
remedy is sought. If the articles of partnership were under seal, and
any violation of any of the stipulations therein contained existed, it
might be, and was, properly, remediable by an action of covenant (b).
If there were written articles not under seal, or the partnership was by
a parol agreement, the proper remedy for any breach of the stipula-
tions was by an action of assumpsit. But, as we shall presently see,
both these remedies were utterly inadequate to provide for many
exigencies and injuries, which might arise out of the violation of
partnership rights and duties.
§ 662. The most extensive, and generally the most operative,
remedy at law, between partners, was an action of account. This was
the appropriate, and, except under very peculiar circumstances, was
the only, remedy, at the common law, for the final adjustment and
settlement of partnership transactions. It is a very ancient remedy
between partners, in which one, naming himself a merchant, may
sue his partner for a reasonable account, naming him a merchant,
and charging him as the receiver of the moneys of himself, arising
from whatever cause or contract, for the common profit of both,
according to the law-merchant (c).
§ 663. But it is wholly unnecessary to dwell upon the inadequacy
of this remedy in cases of partnership, as all the remarks already
made in respect to the dilatory, cumbrous, and inconvenient pro-
ceedings in actions of account (d), apply, with augmented force, to
cases of partnership where it is absolutely impossible, in many
cases, to settle the concerns of the partnership, without the production
of books, vouchers, and other documents belonging to the partner-
ship, and the personal examination of the partners themselves.
So intimate is the confidence and so universal the community of
interest and operations between partners, that no proceedings, not
including a thorough and minute discovery, can enable any court to
arrive at the meaaas of doing even reasonable justice between them.
And, in addition to the common difficulties in ordinary cases, the
death of either partner puts an end, at the common law, to any
means of enforcing this remedy by account; for it being founded
in privity between the parties, no suit lay by or against the personal
representative of the deceased partner to compel an account (e).

(b) Schlencker v. Moxsy, 3 B. & C. 789.

(c) Co. Litt. 172 a; Pitz. P. B. 117, D.
<d) Ante, §§ 442 to 449. (e) Ante, § 446.
284 EQUITY JUEISPRUDENCB. [CH. XV.

§ 664. In a few cases, indeed, where there has been a covenant or

promise to account, courts of law have attempted to approximate
towards an efiectual remedy in the shape of damages for a breach of
the obligation. But it is manifest, that, even in these cases, the
damages must be wholly uncertain, unless an account can be fully
and fairly taken between the parties; for, otherwise, there wiU be no
rule by which to ascertain the damages. There has, too, been a
struggle, in cases where one partner has been compelled to advance
or pay money on the partnership account out of his own private
funds, to give him a remedy at law for a contribution from the other
partners. But it is difficult to perceive, how, except under very
peculiar circumstances, such a remedy will lie. For it is impossible,
during the continuance of the partnership, without taking a general
account,. to say, that any one partner, so called upon to advance or
to pay money, is, on the whole, a creditor of the firm to such an
amount. And if he is, how, in point of technical propriety, can he
institute a remedy against his other partners alone, as contradis-
tinguished from the partnership ? It is very certain, that, if he
should lend the partnership a sum of money, he* could not sue for it
at law, for he could not sue himself; and it is not very easy to
perceive a clear distinction between this and the former case. And
if it should turn out, upon taking a general account, that such partner
was a debtor to the partnership, it would be unreasonable and useless
to allow him to recover the very money which he must refund to the
partnership ; for the maxim of common sense, as well as of common
justice is Frustra petis, quod statim alteri reddere cogeris (/).
§ 665. Cases have also occurred in which suits at law have been
maintained for the breach of an agreement to furnish a certain
sum or stock for the partnership purposes. In such a case the trans-
action is not so much a partnership transaction as an agreement to
launch the partnership ; and an agreement to pay money or furnish
stock for such a purpose, is an individual engagement of each partner
to the other (g). For the breach of such an agreement, there seems no
reasonable objection to the maintenance of a suit at law. But, what
should be the measure of the damages must depend upon the cir-
cumstances ofeach particular case. No general rule can be laid
down to govern all cases. If the partnership has no specific term
fixed for its continuance, in many cases the damages would be merely
nominal. If it has such a specific fixed term, the damages must
necessarily be of a very uncertain nature and extent. The whole
sum agreed for the partnership stock could not be the true rule; for
that would be in effect to give one partner the whole capital stock.
And, on the other hand, the possible profits of the partnership, if

(/) Branch's Maxims, p. 03; Sprange v. Lee, [1908] 1 Ch. 424.

ig) Sue Venning v. Leckie, 13 Bast, 7; Gale v. Leckie, 2 Stark. 107.
§ 664 667.] PAUTNERSHIP. 285

earned on, would not furnish a rule because of the uncerta

inty of
such profits, and possibly to arise in future, and the injury
being certain at the time of the breach. not

§ 666. The remedial justice administered by courts of equity is far

more complete, extensive, and various, adapting itself to the particular
nature of the grievance, and granting relief in the most beneficial
and effectual manner, vi'here no redress whatsoever, or very imperfect
redress, could be obtained at law. In the first place, they may decree-
a specific performance of a contract to enter into a partnership for a
specific term of time (for it would, ordinarily (h), be useless to enforce-
one, which might be dissolved instantly at the will of either party),
and to furnish a share of the capital stock, which a court of law is
incapable of doing. This remedy, however, if ever, is rarely granted (().
§ 667. In like manner, after the commencement and during the-
continuance of the partnership, courts of equity will, in many cases,
interpose to decree a specific performance of agreements in the articles
of partnership (k). If, for instance, there be an agreement to insert
the name of a partner in the firm name, so as to clothe him
publicly with all the rights of acting for the partnership, and there-
be a studied, intentional, prolonged, and continued inattention to the-
application of the partner to have his name so used and inserted in-
the firm name, courts of equity will grant a specific relief by an
injunction against the use of any other firm name, not including his.
But the remedy in such cases is strictly confined to cases of studied
delay and omission, and relief will not be given for a temporary,
accidental, or trivial omission {I). So, where a partner in breach of
the general law or of an express provision in the articles engages
in a competing business, courts of equity will act by injunction to-
enforce his performance of his obligation to restrict his industry
to the partnership; and, if profits have been made by any partner,
in violation of such an agreement, in any other business, the profits
will be decreed to belong to the partnership (m). So, if it is agreed
that upon the dissolution of a partnership a certain partnership book
shall belong to one of the partners and the other shall have a copy
of it, courts of equity will decree a specific performance (n). Indeed,,
a partner will be ordered to rest-ore the books to the place of business
of a partnership (or the principal place if more than one), unless the

(h) This qualification (ordinarily) is necessary ; for a specific performance inay, in

some cases, be important to establish rights under a partnership which has no fixed
term for its continuance. Mr. Swanston, in his excellent note to Crawshay v. Maule,.
1 Swanst. 511, 512, 513, has clearly shown the propriety of the qualification.
(i) Sichel v. Mosenthal, 30 Beav. 371; Scott v. Bayment, L. E. 7 Eq. 112.
(k) Const V. Harris, T. & E. 496; Watney v. Trist, 46 L. J. Ch. 412.
(i) Marshall v. Colman, 2 J. & W. 266; Cheesman v. Price, 35 Beav. 142.
(m) Partnership Act, 1890, s. 30; Aas v. Benham, [1891] 2 Ch. 244.
(n) Lingen v. Simpson, 1 Sim. & Stu. 600.
286 EQUITY JURISPRUDENCE. [CH. XV.

articles make some other provision for their disposal (o). And
numerous other examples, illustrative of the general principle, might
be given (p).
§ 668. The Court of Chancery, in the case of a partnership
existing during the pleasure of the parties, with no time fixed for its
renunciation, did on one occasion interfere (as it should seem) to
qualify or restrain that renunciation; but such a jurisdiction would
now be exercised with the utmost caution, if it were not entirely
disclaimed (g).
§ 670. These are instances (and others might be mentioned) of
the remedial justice of courts of equity, in carrying into specific effect
the articles of partnership where the remedy at law would be wholly
illusory or inadequate. But it is not hence to be inferred that courts
of equity would, in all cases, interfere to enforce a specific per-
formance of such articles. Where the remedy at law was entirely
adequate, no relief will be granted in equity. And a stipulation,
purporting to divest the ordinary jurisdiction of the common tribunals
of justice, such as an agreement, in case of any disputes, to refer the
same to arbitrators, was regarded both by courts of equity and of the
common law as illegal (?•) ; but it has since been enacted that persons
may make agreements to submit matters in dispute between them
to arbitration, so far binding, that if either party brings an action in
violation of such an agreement, the other party may apply for a stay
of proceedings (s).
§ 671. The remedial justice of courts of equity is not confined to
cases of the nature above stated. They may not only provide for a
more effectual settlement of all the accounts of the partnership after
a dissolution, but they may take steps for this purpose, which courts
of law are inadequate to afford. After some difference of opinion and
conflicting decisions it has been settled that they may interpose, and
decree an account, where a dissolution has not taken place, and is
not asked for, although, ordinarily, they are not inclined to decree an
account, unless under special circumstances, if there is not an actual
or contemplated dissolution, so that all the affairs of the partnership
may be wound up (t).
§ 672. But where such dissolution has taken place, an account
will not only be decreed, but, if necessary, a manager or receiver will
be appointed to close the partnership business, and make sale of the
partnership property; so that a final distribution may be made of the

(o) Partnership Act, 1890, 6. 24, sub-s. 9; Greatrex v. Oreatrex, 6 De G. & Sm.
692.
(p) Hall v. Hall, 12 Beav. 414.
(q) See Chavany v. Van Sommer, cited 1 Swanst. 611, 512,' in a note; Burdon v.
Barkus, i De G. P. & J. 42; Green v. Howell, [1910] 1 Ch. 495.
(r) See Scott v. Liverpool Corp., 3 De G. & J. 334.
(s) Arbitration Act, 1889 (52 & 53 Vict. c. 49), s. 4.
(t) Walworth v. Holt, 4 Myl. & Cr. 619; cf. Watney v. Trist, 45 L. J. Ch. 412.
§ 668— 673a.] partnership. 287

partnership efiects (u). The accounts are usually directed to be taken

(as has been already suggested) before a master, who examines the
parties, if necessary, and requires the production of all the books,
papers, and vouchers of the partnership, and he is armed from time
to time, by the court, with all the powers necessary to efiectuate
the objects of the reference to him. If it is deemed expedient and
proper, the court will restrain the partners from collecting the debts,
or disposing of the property of the concern, and- will direct the
moneys of the firm received by any of them to be paid into court.
In this way it adapts its remedial authority to the exigencies of each
particular case (x).
§ 673. But, perhaps, one of the strongest cases to illustrate the
beneficial operation of the jurisdiction of courts of equity in regard to
partnership, was their power to dissolve the partnership during the
term for which it was stipulated. This was a peculiar remedy which
courts of common law were incapable of administering, by the nature
of their organization, and has since been confirmed by section 35
of the Partnership Act, 1890 (53 & 54 Vict. c. 39). Such a dissolution
may be granted, in the first place, on account of the insanity, or
permanent mental incapacity, of one of the partners (y). In the
next place it may be granted if the defendant partner becomes in
any other way permanently incapable of performing his part of the
partnership contract («). In the next place, it may be granted
on account of the gross misconduct of one or more of the partners,
if the party applying for the dissolution is not the defaulter (a).
But trifling faults of misbehaviour, which do not go to the substance
of the contract, do not constitute sufiicient ground to justify a decree
for a dissolution (6). Another cause for a dissolution is a wilful and
persistent breach of the articles by the defendant partner (c). So, if
the business can only be carried on at a loss (d); The remaining
ground is where circumstances have arisen which " render it just and
equitable" that the partnership should be dissolved (e).
§ 673a. By the Lunacy Act, 1890 (53 & 54 Vict. c. 5), s. 119,
"where a person, being a member of a partnership firm, becomes

(u) Featherstonehaugh v. Fenwick, 17 Ves. 298; Cook v. Collingridge, 1 Jac. 607;

Rigd'eti v. Pierce, 6 Mad. 353.
(x) Foster v. Donald, 1 Jac. & Walk. 252; Richardson v. Bank of England,
4 M. & Cr. 165.
iy) Partnership Act, 1890, s. 35 (o); and Anon., 2 K. & J. 441.
(«) Partnership Act, 1890, s. 35 (b) ; Whitwell v. Arthur, 35 Beav. 140.
(a) Partnership Act, 1890 s. 35 (c) ; Essell v. Hayward, 30 Beav. 222; Price v.
Cheesman, 35 Beav. 142.
(b) Goodman v. Whitcomb, 1 J. & W. 589; Anderson v. Anderson, 25 Beav. 190.
(c) Partnership Act, 1890, s. 35 (d).
(d) Partnership Act, 1890, s. 35 (e) ; Bailey v. Ford, 13 Sim. 495.
(e) Partnership Act, 1890, s. 35 (/). See Baring v. Dix, 1 Cox 213; Goodman v.
Whitcomb, 1 J. & W. 589; Watney v. Wells, 30 Beav. 56; Leary v. Shout, 33 Beav.
582.
288 EQUITY JURISPRUDENCE. [CH. XV.

lunatic, ' ' the judge exercising jurisdiction in lunacy ' ' may, by order,
dissolve the partnership."
§ 674. There were other considerations which made a resort to a
court of equity, instead of a court of law, not only a more convenient,
but even an indispensable, instrument for the purposes of justice.
Thus, real estate may be bought and held for the purposes of the
partnership, and really be a part of the stock in trade. The convey-
ance in such a case may be in the name of one, for the benefit of all
the partners; or in the name of all, as tenants in common, or as
joint-t-enants (/). In case of the death of a partner, by which a dissolu-
tion takes place, the real estate might become severed at law from
the partnership funds, and vest in the surviving partner exclusively,
or in the heirs of a deceased partner, in common with the survivor,
according to the particular circumstances of the case. In taking an
account of the partnership effects at law, it was impossible for the
court, for the benefit of creditors, to brin^ such real estate into the
account ; or to direct a sale of it ; or to hold it a part of the partnership
funds. ■ It was perforce treated in courts of law just as its character
was according to the common law. But in a court of equity, in such a
case, the real estate was treated, to all intents and purposes, as a
part of the partnership funds, whatever might be the form of the
conveyance. For a court of equity considered the real estate, to all
intents and purposes, as personal estate; and subjected it to all the
equitable rights and liens of the partners, which would apply to it
if it were personal estate. And this doctrine not only prevailed, as
between the partners themselves and their creditors ; but as between
the representatives of the partners also. So that real estate, held in
fee for the partnership, and as a part of its funds, upon the death of
the partner intestate presumptively devolved upon his personal and
not upon his real representative (g). This rule has now been confirmed
by section 22 of the Partnership Act, 1890.
§ 675. The lien, also, of partners upon the whole funds of the
partnership, for the balance finally due to them respectively, seems
incapable of being enforced in any other manner than by a court of
equity, through the instrumentality of a sale. Besides, the creditors
of the partnership have the preference to have their debts paid out
of the partnership funds, before the private creditors of either of the
partners. On the other hand, the separate creditors of each partner
are entitled to be first paid out of the separate effects of their debtor,
before the partnership creditors can claim anything; which also can
be accomplished only by the aid of a court of equity ; for at law a
joint creditor may proceed directly against the separate estate. This
is another illustration of the doctrine of marshalling assets, and

(f) Lake v. Craddock, 3 P. Will. 158; Wray v. Wray, [1905] 2 Ch. 349.
(!7) Att.-Gen. v. Hubbuck, 13 Q. B. D. 275.
§ 674—677.] PARTNERSHIP. 289

proceeds upon analogous principles being worked out by the equity

of the partners to be recouped, or their equitable liability to refund;
and it is commonly applied in cases of insolvency, or bankruptcy (h).
There are certain exceptions to the rule, which confirm, rather than
abate, its force; as they stand upon peculiar reasons (i).
§ 676. In like manner, in cases of partnership debts, if one of the
partners dies and the survivor becomes insolvent or bankrupt, the
joint creditors have a right to be paid out of the estate of the
deceased partner, through the medium of the equities subsisting
between the partners (k). Indeed, a broader principle is now estab-
lished; and it is held that bankruptcy is not necessary, in order to
justify the creditors of the partnership in resorting to the assets of
the deceased partner ; and that such creditors may, in the first
instance, proceed against the executor or administrator of the deceased
partner, leaving him to his remedy over against the surviving partners ;
though, certainly, the surviving partners, in such a case, would be
proper parties, if not necessary parties, to the suit (I). The learned
author concluded from this that in equity all partnership debts were
to be treated as joint and several, a position no longer maintain-
able (m). The true principle is thaf the Court of Chancery did not
interfere with the creditor's right to levy execution on one of several
judgment debtors, but gave the debtor who paid more than his fair
share a remedy over against other judgment debtors. The principle
is not restricted to partnership joint debts (n).
§ 677. In regard to partnership property, another illustration, of a
kindred character, involving the necessity of an account, may be put
to establish the utility and importance of equity jurisdiction. Until
section 23 of the Partnership Act, 1890, restricted the right of a
judgment creditor having a separate demand to a charging order
upon his debtor's interest in the partnership assets, and a right to
accounts and enquiries to ascertain whati that interest was, a sheriff
might levy upon the joint property of the partnership. In such a
case, however, the creditor could levy, not the moiety or undivided
share of his debtor in the property, as if there were no debts of the
partnership, or lien »on the same for the balance due to the other
partner; but he could levy the interest only of his debtor, if any,
in the property, after the payment of all debts and other charges
thereon (o). In short, he could take only the same interest in the

(h) Twiss v. Massey, 1 Atk. 67; Lodge v. Prichard, 1 De G. J. & S. 610; In re

Head, Ex parte Head's Executors, 1894, 1 Q. B. 638.
(i) Campbell v. Mullett, 2 Swanst. 551; In re Bridgett, Cooper v. Adams [1895]
•2 Ch. 557.
(k) Lodge v. Prichard, 1 De G. J. & S. 610. See Partnership Act, 1890, ». 42.
(I) Wilkinson v. Henderson, 1 Myl. & K. 582.
(m) Kendall v. Hamilton, 4 App. Cas. 504. (n) Sleech's Case, 1 Mer. 529, 539.
fo) West V. Skip, 1 Ves. Sen. 239; Button v. Morrison, 17 Ves. 193; Helmore v.
Smith, 35 Ch. D. 436!
E.J. 19
290 EQUITY JURISPRUDENCE. [CH. XV.

property which the judgment debtor himself would have upon the
final settlement of aJl the accounts of the partnership. When, there-
fore, the sheria seized such property upon an execution, he seized
only such undivided and unascertained interest; and if he sold under
the execution, the sale conveyed nothing more to the vendee, who
thereby became a tenant in common, than the rights and interests
of the judgment debtor in the property seized (p). In truth, the sale
did not transfer any part of the joint property to the vendee, so as to
entitle him to take it from the other partners; for that would be,
to place him in a better situation than the partner himself. But it
gave him, properly speaking, a right in equity to call for an account,
and thus to entitle himself to the interest of the partner in the
property which shall, upon the settlement of the account, be
ascertained to exist. It is obvious, from what has been already stated,
how utterly inadequate the means of a court of law were to take such
an account. And, indeed, under a levy of this sort, it is not easy to
perceive what authority a court of law had to interfere at all, to take
an acootmt of the partnership transactions; or by what process it
could enforce it. In such a case, therefore, the proper remedy for
the other partners, if nothing was due to the judgment debtor out of
the partnership funds, was to file a bill in equity against the vendee
of the sheriff, to have the proper accounts taken (q).
§ 679. Another illustration of the beneficial result of equity juris-
diction, in cases of partnership, may be found in the not uncommon
case of two firms dealing with each other, where some or all of the
partners in one firm are partners with other persons in the other
firm. Upon the technical principles of the common law, in such
cases, no suit could be maintained at law in regard to any transactions
or debts between two firms; for, in such suit, all the partners must
haver joined, and have been joined ; and no person could maintain a
suit against himself, or against himself and others. The objection
was at law a complete bar to the action. Nay, even after the death
o£ the partner or partners, belonging to both firms, no action, upon
any simple contract, or mutual dealing, ex contractu, was maintain-
able by the survivors of one firm against those of the other firm ;
for, in a legal view, there never was any subsisting contract between
the firms; as a pai-tner cannot contract with himself (r). If, how-
ever, the contract were by deed, the death of the common partner
would have entitled the surviving partners of one firm to maintain
an action of covenant against the surviving partners in the other (s).
(p) West V. Skip, 1 Ves. Sen. 239; Skipp v. Harwood, 2 Swanst. 586; Chapman
V. Koops, 3 Bos. & Pul. 289; Holmes v. Mentze, 4 A. & E. 127 ; Habershon v. Blurton,
1 De G. and Sm. 121.
(q) Chapman v. Koops, 3 Bos. & Pul. 289; Waters v. Taylor, 2 Ves. & B. 300,
301 ; Habershon v. Blurton, 1 De G. & Sm. 121.
(r) Bosanquet v. Wray, 6 Taunt. 597; Sharman v. Brandt, L. B. 6 Q. B. 720;
Ellis V. Kerr [1910] 1 Ch. 529. (s) Rose v. Poulton, 2 B. «s Ad. 822.
§ 679—682.] PARTNERSHIP. 291

§ 680. But there never has been any difficulty in proceeding in

courts of equity to a final adjustment of all the concerns of both firms,
in regard to each other; for, in equity, it is sufficient, that all parties
in interest are before the court as plaintiffs or as defendants; and
they need not, as at law, in such a case, be on the opposite sides of
the record. In equity, all contracts and dealings between such firms,
of a moral and legal nature, are deemed obligatory, though void at
law. Courts of equity, in all such cases, look behind the form of the
transactions to their substance ; and treat the different forms, for the
purposes of substantial justice, exactly as if they were composed of
strangers, or were in fact corporate companies (i).
§ 681. Upon similar grounds, one partner cannot, at law, main-
tain a suit against his copartners, to recover tlhe amount of money,
which he has paid for the partnership ; since he cannot sue them
without suing himself, also, as one of the partnership. And, if one
partner, in fraud of the partnership rights or credits, should release
an action, that release would, at law, be obligatory upon all the
partners. But a court of equity would not, under such circumstances,
hesitate to relieve the partnership (m).
§ 682. Courts of equity, in this respect, act upon principles
familiarly recognized in the civil law, and in the jurisprudence of
those nations which derive their law from that most extensive source.
This wiU abundantly appear, by reference to the known jurisprudence
of Scotland, and that of the continental nations of Europe (a;).
Indeed, it would be a matter, not merely of curiosity, but of solid
instruction (if this were the proper place for such an examination),
to trace out the strong lines of analogy between the laws of partner-
ship, as understood in England, and especially as administered in
equity, and that of the Eoman jurisprudence. Unexpected coinci-
dences are everywhere to be found ; while the differences are com-
paratively few; and, for the most part, these arise, rather from the
different processes and forms of administering justice in different
countries, than from any general diversity of principles (y). Among
other illustrations, we may cite the general doctrine, that the partner-
ship property is first liable to the partnership debts ; that the right
of any one partner is only to his share of the surplus ; that joint
creditors have a priority or privilege of payment before separate

(t) Ex parte Sillitoe, 2 L. J. 0. S. Ch. 137 ; Ex parte Castell, 5 L. J. 0. S. Ch. 71 ;

Piercey v. Fynney, L. E. 12 Eq. 69.
(u) Jones V. Yates, 9 B. & C. 532; Piercey v. Finney, L. E. 12 Eq. 69.
(x) See 2 Bell, Com. B. 7, ch. 2, § 2, art. 1214.
(y) To establish this statement, the learned reader may be referred to the Digest,
Lib. 17, tit. 2, Pro. Socio; and Voet, Com. ad. id. ; Vinnius, Com. Inst. Lib. 3, tit. 26.
1 Domat, Civil Law, tit. Partnership, B. 1, tit. 8, per tot. ; 2 Bell, Com. i, ch. 2, arts.
1250 to 1263; Code Civil of France, arts. 1832 to 1873; Pothisr, Traits de Soci^te,
per tot.
292 EQUITY JURISPRUDENCE. [CH. XV.

creditors (z); and that the estates of deceased partners are liable
to contribute towards the payment of the joint debts (a).
§ 683. This review of some of the more important eases in which
courts of equity interfere in regard' to partnerships, does (unless my
judgment greatly misleads me) establish, in the most conclusive
manner, the utter inadequacy of courts of law to administer justice
in most cases, growing out of partnerships, and the indispensable
necessity of resorting to courts of equity, for plain, complete, and
adequate redress. Where a discovery, on account, a contribution, an
injunction, or a dissolution is sought, in cases of partnership, or even
where a due enforcement of partnership rights, and duties, and
credits, is required, it is impossible not to perceive, that, generally, a
resort to courts of law would be little more than a solemn mockery
of justice. Hence, it can excite no surprise, that courts of equity
now exercise a full concurrent jurisdiction with courts of law in all
matters of partnership; and, indeed, it may be said, that, practically
speaking, they exercise an exclusive jurisdiction over the subject in
all eases of any complexity or difficulty.

(z) 1 Domat, B. 1, tit. 8, § 3, art. 10.

(a) Ibid. § 6, arts. 1, 2; Pothier, Traits de Societe, nn. 96, 136, 161, 162.
 § 683 693.] CANCELLATION OF DEEDS. 293

CHAPTER XVI.
PECULIAR REMEDIES IN EQUITY — CANCELLATION AND DELIVERY OF
INSTRUMENTS.

§ 688. We shall now proceed to the consideration of the other branch

of concurrent jurisdiction, that in which the peculiar remedies afforded
by courts of equity constitute the principal, although not the sole,
ground of jurisdiction.
§ 692. One head of equity jurisdiction embraces that large class
of cases, where the Eescission, Cancellation, or Delivery up of
agreements, securities, or deeds is sought, or a Specific Performance
is required of the t-erms of such agreements, securities, or deeds,
as indispensable to reciprocal justice. It is obvious that courts of law
are utterly incompetent to make a specific decree for any relief of
this sort (a) ; and, without it, the most serious mischiefs may often
arise to the parties interested. The subject naturally divides itself
into two great branches. In the first place, what are the cases in
which courts of equity will undertake to rescind, cancel, or direct a
surrender of contracts, securities, and deeds? And, in the second
place, what are the cases in which courts of equity will enforce a
specific performance of them?
§ 698. Before proceeding to the consideration of these distinct and
important subjects, it may be proper to suggest, that the application
to a court of equity for either of these purposes is not, strictly speak-
ing, a matter of absolute right, upon whiph the court is bound to pass
a final judgment. But it is a matter of sound discretion, to be exer-
cised by the court, either in granting or in refusing the relief prayed,
according to its own notion of what is reasonable and proper under
all the circumstances of the particular case (b). Thus, for instance, a
court of equity will sometimes refuse to order a specific performance
of an agreement, which it will yet decline to order to be delivered up,
cancelled, or rescinded (c). On the other hand, a specific performance
will be ordered upon the application of one party when it would be
denied upon the application of the other. And an agreement will be
rescinded or cancelled upon the application of one party, when the
court would decline any interference at the instance of the other (d).

(o) Bromley v. Holland, 7 Ves. 3; Simpson v. Lord Howden, 3 M. & Cr. 97.
(b) MoHlock v. Buller, 10 Ves. 292.
(c) Mortlock V. Buller, 10 Ves. 292 ; Turner v. Harvey, Jac. 178.
(d) Cooke V. Clayioorth, 18 Ves. 12. See § 206.
294 EQUITY JUEISPRUDENCE. [CH. XVI.

So that we are here to understand, that the interference of a court of

equity is a naatter of mere discretion; not, indeed, of arbitrary and
capricious discretion, but of sound and reasonable discretion, secun-
dum arbitrium boni judicis (e). And in all cases of this sort, where
the interposition of a court of equity is sought, the court will, in
granting relief, impose such terms upon the party as it deems the
real justice of the case to require; and, if the plaintiff refuses to
comply with such terms, his bill will be dismissed (/). The maxim
here is emphatically applied — He who seeks equity must do equity.
§ 693a. By the 34th section of the Judicature Act, 1873, it is
provided that the jurisdiction as to the rectification, the setting aside,
and the cancellation of deeds and other written instruments, shall be
assigned to the Chancery Division of the High Court.
§ 694. In the first place, then, let us consider in what cases the
coiu-t will direct the Delivery up, Cancellation, or Eescission of
agreements, securities, deeds, or other instruments. It is obvious
that the jurisdiction, exercised in cases of this sort, is founded upon
the administration of a protective or preventive justice. If, therefore,
the instrument was void for matter apparent upon the face of it,
there was no call to exercise the jurisdiction, with the possible ex-
ception of instruments forming a clause upon the title to land (g).
The party is relieved upon the principle, as it is technically called
quia timet; that is, for fear that such agreements, securities, deeds,
or other instruments may be vexatiously or injuriously used against
him, when the evidence to impeach them may be lost; or that they
may now throw a cloud or suspicion over his title or interest. We
have already had occasion to take notice of a great variety of cases,
in which agreements, securities, deeds, and other instruments have
been set aside, and decreed to be delivered up, on the ground of
accident, mistake, and fraud (h). Under the two former heads, it will
readily be perceived, upon th^ slightest examination, that a rescission,
or cancellation of the agreements, securities, deeds, or other instru-
ments, would not, in a great many cases, be an appropriate, adequate,
or equitable relief. The accident or mistake may be of a nature which
does not go t-o the very foundation and merits of the agreement;
but may only require that some amendment, addition, qualification, or
variation should take place, to make it at once just and reasonable
and fit to be enforced. But it can rarely be said that, in cases of
fraud, actual or constructive, the same observations properly apply.

(e) Buckle v. Mitchell, 18 Ves. Ill; Revell v. Hussey, 2 Ball & B. 288; Eastern
Counties Ry. v. Hawkes, 5 H. L. C. 331; Haywood v. Cope, 25 Beav. 140.
(/) Earl of Aldborough v. Tyre, 7 CI. & F.. 436 ; Oakes v. Turquand, L. E. 2 H. L.
325; Bank of Montreal v. Stuart, [1911] A. C. 120.
(g) Bromley v. Holland, 7 Ves. 8; Simpson v. Lord Howden, 3 M. & Cr. 97.
{h) Willan v. Willan, 16 Ves. 72; Ball v. Storie, 1 Sim. & St. 210; Metropolitan,
dc, Soc. V. Brown, 26 Beav. 454.
§ 693a — 696.] cancellation of deeds. 295

If there is actual fraud, there seems the strongest ground for the
interference of a court of equity to rescind a contract, security, or
other instrument. And if the fraud be constructive, still, for the most
part, it ought to draw after it the same consequences, either as a
breach of trust, or an abandonment of duty or a violation of public
policy. But although fraud may, in all these cases, furnish a sufficient
ground to rescind a contract in jure strictissimo ; yet there may be
circumstances which may justly mitigate the rigid severity of the
law ; or may place the parties in pari delicto ; or may require a court
of equity, from the demerit of the plaintiff in the particular trans-
action, to abstain from the slightest interference; or may even induce
it, if it should rescind the contract, to do so only upon the terms
of due compensation, and the allowance of the countervailing equities
of the plaintiff (i).
§ 695. Without attempting to go over the different classes of cases
of fraud (which have been already enumerated), it may be stated,
that courts of equity will generally set aside, cancel, and direct to be
delivered up, agreements and other instruments, however solemn in
their form of operation, where they are voidable, and not merely
void, under the following circumstances : First, where there is actual
fraud in the party defendant, in which the party plaintiff has not
participated (k). Secondly, where there is a constructive fraud
against public policy, and the party plaintiff has not participated
therein (?). Thirdly, where there is a fraud against public policy,
and the party plaintiff has participated therein, but public policy
would be defeated by allowing it to stand (w). Fourthly, where there
is a constructive fraud by both parties, but they are not in pari
delicto (n). And lastly, where since the execution of the instrument
a state of things has arisen quite different from that contemplated
by the instrument, and rendering it inoperative in the future (o).
§ 696. But in many cases, where the instrument is declared void
by positive law, and also, where it is held void or voidable upon other
principles, courts of equity will impose terms upon the party, if the
circumstances of the case require it. Thus, before the repeal of the
usury laws, courts of equity would not interpose in favour of the
borrower, except upon the payment or allowance of the debt fairly
due and interest at the legal rate (p) ; and a similar principle is applied

(i) Ante, § 50; Holbrook v. Sharpey, 19 Ves. 131.

(k) Reese River Silver Mining Co. v. Smith, L. R. 4 H. L. 64; Adam v. New-
bigging, 13 App. Cas. 308.
(l) Hugerenin v. Baseley, 7 Ves. 273.
(m) Williams v. Bayley, L. E. 1 H. L. 200.
(n) Bromley v. Holland, 7 Ves. 3; Saunders v. Newbold [1905], 1 Ch. 260; affd.
nom Samuel v. Newbold [1906], A. C. 461.
(o) McDonnell v. Hesilrige, 16 Beav. 346; Bond v. Walford, 82 Ch. D. 288.
(p) Scott V. Nesbit, 4 Bro. C. C. 641.
296 EQUITY JURISPRUDENCE. [CH. XVI.

where a catching bargain with an heir or expectant is challenged (g).

So, in cases of the setting aside and cancellation, and delivery up of
annuity securities because they were not duly registered, courts of
equity would direct an account of all receipts and payments on each
side, and require the just balance to be paid by the proper party (r).
And similar principles are applied to other cases, where the trans-
action is deemed indefensible, and yet there is an equitable right to
compensation.
§ 697. On the other hand, where the party seeking relief is the
sole guilty party, or where he has participated equally and deliberately
in the fraud; or where the agreement, which he seeks to set aside,
is founded in illegality, immorality, or base and unconscionable
conduct on his own part; in such cases courts of equity will leave
him to the consequences of his own iniquity ; and will decline to
assist him to escape from the toils which he has studiously prepared
to entangle otliers, or whereby he has sought to violate with impunity
the best interests and morals of social life (s). And if acts of this sort
have been deliberately done under circumstances in which innocence
has been betrayed, or confidence seduced, or falsehood or concealment
systematically practised, a fortiori, courts of equity could not, without
straining the administration of justice, interfere to save the party
from the just results of his own gross misconduct, when the failure of
success in the scheme would manifestly be the sole cause of his
praying relief.
§ 698. A question has oft-en occurred how far courts of equity
would or ought to interfere to direct deeds and other solemn instru-
ments to be delivered up and cancelled, which are utterly void, and
not merely voidable. The doubt has been, in the first place, whether,
as an instrument utterly void is incapable of being enforced at law,
it is not a case where the remedial justice to protect the party may
not be deemed adequate and complete at law, and therefore where
the necessity for the interposition of courts of equity is obviated.
And, in the next place, whether, if the instrument be void, and ought
not to be enforced, the more appropriate remedy in a court of equity
would not be, to order a perpetual injunction to restrain the use of
the instrument, rather than to compel a delivery up and cancellation
of the instrument.
§ 700. But whatever may have been the doubts or difficulties
formerly entertained upon this subject, they seem by the more modem
decisions to be fairly put at rest. If the instrument is void for matter
apparent upon the face of the instrument, the intervention of a court

(q) Earl of Aylesford v. Morris, L. E. 8 Ch. 484.

(r) Bromley v. Holland, 7 Ves. 3.
(s) Brackenbury v. Brackenhury, 2 J. & W. 391; Ayerst v Jenkins, L. E 16
Eq. 275.
§ 697 — 703.] CANCELLATION OF DEEDS. 297

of equity is unnecessary and now no longer exercised (t). But if the

illegality be not so apparent, and the instrument ought not to be used
or enforced, it is against conscience for the party holding it to retain
it; since he can only retain it for some sinister purpose. If it is a
negotiable instrument, it may be used for a fraudulent or improper
purpose, to the injury of a third person (m). If it is a deed purporting
to convey lands or other hereditaments, its existence in an uncancelled
state necessarily has a tendency to throw a cloud over the title (x).
If it is a mere writt-en agreement, solemn or otherwise, still, while it
exists, it is always liable to be applied to improper purposes; and it
may be vexatiously litigated at a distance of time, when the proper
•evidence to repel the claim may have been lost or obscured, or when
the other party may be disabled from contesting its validity with as
much ability and force as he can contest it at the present moment (y).
But the proper course in such a case is to resort to proceedings to
perpetuate testimony («).
§ 701. The whole doctrine of courts of equity on the subject
hitherto discussed is referable to the general jurisdiction which it
exercises in favour of a party quia timet. It is confined strictly to
cases where the instrument, having been executed, is inherently void
upon grounds of law or equity; and not where the objection arises by
matter subsequent to the execution of the instrument (a).
§ 703. But the jurisdiction of courts of equity to decree a delivery
up or cancellation of deeds or other instruments-, is not limited to cases
in which some inherent defect in their original character renders them
either voidable or void. On the contrary, its remedial justice is often
and most beneficially applied, by affording specific relief, in cases of
unexceptionable deeds and other instruments, in favour of persons
who are legally entitled to them (6). This, indeed, is a very old head
of equity jurisdiction, and has been traced back to so early a period as
■the reign of Edward IV. (c). It is a most important branch of equity
jurisprudence ; and is exerted, in all suitable cases of a public or
private nature, in favour of persons entitled to the custody and posses-
sion of deeds and other writings. Thus, heirs-at-law, devisees, and
other persons, entitled to the custody and possession of the title-deeds
of their respective estates, may, if they are detained or withheld from
them, obtain a judgment for a specific delivery of them (rf). The same

(t) Simpson v. Lord Howden, 3 M. & Cr. 97.

(u) Williams v. Bayley, L. B. 1 H. L. 200.
(x) Pierce v. Webb, 3 Bro. C. C. 16 n. ; Onions v. Cohen, 2 H. & M. 354.
(y) Bromley v. Holland, 7 Ves. 3, 20, 21; Peake v. Highfield, 1 Euss. 559;
Duncan v. Worrall, 10 Price 31.
(z) Brooking v. Maudsley, 38 Ch.D. 636.
(a) Duncan v. Worrall, 10 Price 31; Thornton v. Knight, 16 Sim. 509.
(b) Brown v. Brown, 1 Dick. 62; Gibson v. Ingo, 6 Hare, 112.
(c) Armitage v. Wadstoorth, 1 Mad. 192.
(d) Duncombe v. Mayer, 8 Ves. 320; Leathes v. Leathes, 5 Ch. D. 221; Ind,
298 EQUITY JUEISPRUDENCE. [CH. XVI.

doctrine applies to other instruments and securities, such as bonds,

negotiable instruments, and other evidences of property, which are
improperly withheld from the persons, who have an equitable or legal
interest in them (e); or who have a right to have them preserved.
This redress a court of common law was incapable of a£Eording, since
the prescribed forms of its remedies rarely enable it to pronounce a
judgment in rem, in such cases, which is, or can be made, efiectual.
It is true that an action of replevin might in some few cases lie, and
give the proper remedy, if the thing could be found, and in that event
a court of equity disclaimed jurisdiction as there was a sufficient
remedy at the common law (/). But in &n action of detinue there
was no effective judgment in rem at the common law until the passing
of the Mercantile Law Amendment Act, 1856, the statutory provisions
being now embodied in sect. 52 of the Sale of Goods Act, 1893 (56 &
57 Viet. c. 71), and R. S. C, 1883, Order XLVIII, rule 1 (g). And
generally in other actions at law, damages only were recoverable; and
such a remedy must, in many cases, be wholly inadequate (h). This
constitutes the true ground for the prompt interposition of courts of
equity for the recovery of the specific deeds or other instruments.
§ 704. Upon similar principles, persons having rights and interests
in real estate are entitled to come into equity for the purpose of
having an inspection and copies of the deeds under which they claim
title (t). And in like manner, remaindermen, and reversioners, and
other persons, having limited or ulterior interests in real estate, have
a right in many cases to come into equity, to have the title-deeds
secured for their benefit (k) or their interests otherwise secured. But
in all such cases the court will exercise a sound discretion as to giving
judgment; for it is by no means an absolute right of the party to have
the title-deeds in all cases secured, or brought into chancery for
preservation. If such a practice was suffered universally to prevail,
the title-deeds of half the estates in the country might be brought into
court. To entitle the party, therefore, to seek relief, it must clearly
appear that there is danger of a loss or destruction of the title-deeds
in the custody of the persons possessing them ; or the court has to
undertake the administration of the property ; or the person possessing
them has incumbered his interest (1).

Goope S Co. V. Emmerson, 12 App. Cas. 300. See In re Newen, Newen v. Barnes,
[1894] 2 Ch. 297.
(e) Gibson v. Ingo, 6 Hare, 112; Williams v. Bayley, L. K. 1 H. L. 200.
(/) See Shaw v. Earl Jersey, 4 C. P. D. 359.
ig) Phillips V. Jones, 15 Q. B. 859; Ex parte Drake, in re Ware, 5 Ch. D. 866.
(h) Fells V. Bead, 3 Ves. 70; Dowling v. Betjermann, 'i 3. & H. 544.
(i) Lambert v. Rogers, 2 Mer. 489; Hercy v. Ferrers, 4 Beav. 97; Dams v. Earl
of Dysart, 20 Beav. 405; Pennell v. Earl of Dysart, 27 Beav. 542; Brown v Wales,
L. E. 15 Bq. 142.
(h) Jenner v. Morris, L. K. 1 Ch. 603; Stanford v. Roberts, L. E. 6 Ch. 307.
(Z) Leathes v. Leathes, 5 Ch. D. 223; Ex parte Rogers, 26 Ch. D. 31 ; In re Newen,
Newen v. Barnes [1891] 2 Ch. 297.
§ 704 — 706.] CANCELLATION OF DEEDS. 299

§ 704a. A party may have covenanted to produce deeds or have

given a statutory acknowledgment to the like purpose, under sect. 9
of the Conveyancing and Law of Property Act, 1881 (44 k 45 Vict,
c. 41), these covenants or undertakings may be enforced specifically
against the party in possession of the muniments, but stand upon a
different footing to the general jurisdiction exercised where no contract
exists.
§ 705. Cases also may occur, where a deed, or other instrument,
originally valid, has, by subsequent events, such as by satisfaction
or payment, or other extinguishment of it, legal or equitable, become
functus officio; and yet, its existence may be either a cloud upon the
title of the other party, or subject him to the danger of some future
litigation when the facts are no longer capable of complete proof, or
have become involved in the obscurities of time (m). Under such
circumstances, although the deed or other instrument has become a
nullity, yet courts of equity will interpose, upon the like principles, to
prevent injustice, and will decree a delivery and cancellation of the
instrument. This, indeed, is a very old head of equity; and traces of
it are to be found in some of our earliest reports (»).
§ 705a. A debt can only be released in equity if there exists a valid
consideration or an instrument under seal (o), or if the creditor
appoints his debtor executor and manifests, even informally, a wish to
forgive the debt (p). Now a valuable consideration does not require
a benefit to the promiser, it is sufficient that the promisee performs
some act required of him by the promiser. Accordingly, if the debtor
can show that he has been induced to alter his position by reason of
some informal promise by. the creditor to forgive the debt, in terms
compatible with a present gift (q), the debtor: is entitled to a cancella-
tion or return of any security which he may have given to his
creditor (r).
§ 706. There is also a curious case of an analogous nature, which
was finally decided by the House of Lords, in which the powers of a
court of equity were applied to give relief to an extent which no court
of law would for a moment have entertained. The testator, on his
death-bed, said to his executrix, that he had the bond of B., but when
he died B. should have it, and that he should not be asked or troubled
for it. The executrix, after the death of the testator, put the bond in
suit; and thereupon, B. brought a bill for a discovery, and dehvery up,
and cancellation of the bond. And it was decreed accordingly at the
hearing by the Lord Chancellor, and his decree was affirmed by the
(to) Flower v. Marten, 2 M. & Cr. 459; Bond v. Walford, 32 Ch. 238.
(n) Gary, 17 ; ante, § 700.
(o) Cross v. Sprigg, 6 Hare, 552; Peace v. Hains, 11 Hare, 151; Gee v. Liddell,
35 Beav. 629.
(p) Strong v. Bird, L. E. 18 Bq. 31S ; In re Pink, Pink v. Pink [1912] 2 Ch. 528.
fg) See Smith v. Warde, 15 Sim. 56; In re Pink, Pink v. Pink [1912] 2 Ch, 528.
(r) Aston v. Pye, cited 5 Ves. at p. 350; Flower v. Marten, 2 M. & Cr. 459.
300 EQUITY JURISPRUDENCE. [CH. XVI.

House of Lords (s). This case carries the doctrine of an implied trust
or equitable extinguishment of a debt to the very verge of the law.
The case would be clearly unsupportable as a donaiio mortis causa as
there was no actual tradition; and it must stand upon the parol
evidence to establish a trust to have the bond delivered up, not touched
or provided for by the testator's will (t).
§ 706a.. Whether all the cases referable to this branch of equity
are strictly maintainable or not, having regard to the cases which
decide that the Court of Chancery would not enforce voluntary eon-
tracts, or assist the donee or assignee where the gift or assignment
inter vivos was voluntary, is a topic which affords some difficulty to
the student, until he is taught or reminded that there is another class
of case where the donor or assignor has done all that is possible to
divest himself of any beneficial interest in favour of some named or
ascertainable person ; in other words, has constituted himself a trustee
for some other or others (u). The cases are all reconcilable in point
of law, the difficulty is caused in applying well settled principles to
divergent facts, and the inferences that difEerent minds will draw from
particular premises.
§ 706b. The topics discussed suggest a class of cases which occupy
«ome space in the reports, viz., the setting aside of voluntary deeds
and settlements. So far as can be judged relief in these cases has only
been granted where the settlor is a person incapable of forming a sane
conclusion by reason of mental infirmities inherent or the result of
advanced years. Judges have no doubt in many cases given wrong
reasons for a wise conclusion. In so doing they have only illustrated
the undoubted fact that like other mortals they are not infallible (x).
This much is clear cujvs est dare ejus est disponere, therefore a power
of revocation need not be inserted in a voluntary settlement, for that
would be tantamount to saying that a man cannot give what is his
own. The matter was finally disposed of by the full Court of Appeal
in Chancery (j/). Nor is the fact that the deed contains absurd and
improvident provisions more than a circumstance of evidence that a
document is not a deliberate expression of intention (z). The party
impeaching the validity of an instrument must establish his case,
omnia rite esse acta presumuntur (a). The representatives of a party

(s) Wekett v. Raby, 2 Bro. P. C. by Tomlins, 386.

(t) See Ghamberlaine v. Ghamberlame , 2 Freem. 34; Reech v. Kennigate Ambler
67, S. C. 1 Ves. Sen. 123.
(«) Kekewich v. Manning, 1 De G. M. & G. 176; Cochrane v. Moore 25 O B
D. 57.
(x) " Even a Lord Chancellor may
Matton V. Harris [1892], A. C. 647, 564.possibly make a mistake," Lord Macnaghten,
(y) Hall v. Hall, L. E. 8 Ch. 430.
(z) Button V. Thompson, 23 Ch. D. 278.
(o) Henry v. Armstrong, 18 Ch. D. 668; Tucker v. Bennett, 38 Ch. D. 1.
§ 706a — 708.] cancellation of deeds. 301

entitled to rectify an instrument enjoy the same right after his

death (b).
§ 707. In all these cases, where a delivery up or cancellation of
deeds or other instruments is sought, either upon the ground of their
original invalidity or of their subsequent satisfaction, or because the
party has a just title thereto or derives an interest under them, courts
of equity act upon an enlarged and comprehensive policy; and, there-
fore, in granting the relief, they will impose such terms and qualifica-
tions as shall meet the just equities of the opposing party. Thus, for
instance, if the heir-at-law seeks a discovery and delivery of the title-
deeds of the estate of his ancestor against a jointress, he will not be
allowed the relief unless upon the terms of confirming her jointure (c).
Cases of this sort afford a very frequent illustration of the maxim, that
he who seeks the aid of equity must do equity.
§ 708. There yet remains another class of cases in which the
remedial power of courts of equity was applied to compel a specific
delivery of the thing to which another person had a clear right. We
here allude to the jurisdiction toi entertain actions for the delivery of
specific chattels. Ordinarily, in cases of chattels, courts of equity did
not interfere to decree a specific delivery, because by an action at law
a full compensation could be obtained in damages, although the thing
itself could not be specifically obtained before the passing of the
Mercantile Law x\mendment Act, 1856 (19 & 20 Vict. c. 97), which,
by sect. 2, conferred a right upon common law courts to compel specific
delivery of goods. These provisions have been replaced by sect. 52
of the Sale of Goods Act, 1892 (56 & 57 Vict. c. 71), which confers a
discretionary power to enforce specifically a contract to deliver specific
or ascertained goods. Where the remedy at law was perfectly adequate
and effectual to redress the injury, there was no reason why courts of
equity should afford any aid to the party (d). Indeed, it may be truly
said, that the value of goods and merchandise varies so much at
different times that it might not unfrequently be inequitable to decree
a specific performance of contracts respecting them, since it might be
wholly disproportionate to the injury sustained. Where the seller has
contracted to sell chattels to the plaintiff and further that he will not
sell them to any one else, although the court might not enforce the
contract so as to compel specific delivery, it would prevent a sale in
breach of the negative stipulation by injunction (e), and a person
knowing the terms of the contract could derive no benefit from the
breach (/).
(b) Anderson v. Elsworth, 3 Giff. 154.
(c) Towers v. Davys, 1 Vern. 479; Petre v. Petre, 3 Atk. 511.
(d) Buxton v. Lister, 3 Atk. 383; Fothergill v. Rowland, L. E. 17 Eq. 132;
Dominion Coal Co. v. Dominion Steel and Iron Co. [1909] , A. C. 293.
(e) Donnell v. Bennett, 22 Ch. D. 835.
(/) Beech, v. Ford, 7 Hare, 208; De Mattos v. Gibson, 4 De G. & J. 276; National
Phonograph Co. v. Edison Bell National Phonograph Co. [1908] 1 Ch. 335.
302 EQUITY JURISPRUDENCE. [CH. XVI.

§ 709. But there are cases of personal goods and chattels in which
the remedy at law by damages would be utterly inadequate, and leave
the injured party in a state of irremediable loss. In all such cases
courts of equity would interfere, and grant full relief by requiring a
specific delivery of the thing which was wrongfully withheld. This
may occur where the thing is of a peculiar value and importance, and
the loss of it cannot be fully compensated in damages when withheld
from the owner, and then relief will be granted in equity (g). Thus,
where the lord of a manor was entitled to an old altar-piece, made of
silver, and remarkable for a Greek inscription and dedication to
Hercules, as treasure-trove within his manor, and it had been sold by
a wrongdoer, it was decreed to be delivered up to the lord of the manor,
as a matter of curious antiquity, which could not be replaced in value,
and which might, by being defaced, become greatly depreciated (h).
So, where an estate was held by the tenure of a horn, and a bill was
brought by the owner to have it delivered up to him, it was held main-
tainable, for it constituted an essential muniment of his title (i). The
same rule has been applied to a box of jewels (fc). The same principle
applies to any other chattel whose principal value consists in its
antiquity; or its being the production of some distinguished artist; or
in its being a family relic, ornament, or heirloom ; such, for instance,
as ancient gems, medals, and coins; ancient statues and busts; paint-
ings of old and distinguished masters; and even those of a modem
date, having a peculiar distinction and value, such as family pictures
and portraits and ornaments, and other things of a kindred nature (I).
In some instances a fiduciary relation has existed between the parties,
and this is regarded as an additional reason for the exercise of the
equitable jurisdiction to decree specific delivery (m).
§ 710. There are other eases, where courts of equity have inter-
fered to decree a specific delivery of chattels under an agreement of
sale, or for an exclusive possession and enjoyment for a term of years.
But all these cases stand upon very peculiar circumstances, where
the nature of the remedy at law is inadequate to complete redress;
or where some other ingredients of equity jurisdiction are mixed up in
the transaction, such as the necessity of interference to prevent mul-
tiplicity of suits, or irreparable mischief (n). Thus, for instance,
where, on the dissolution of a partnership, an agreement was made
that a particular book used in the trade should be considered the
exclusive property of one of the partners, and that a copy of it should
(g) Fells V. Read, 3 Ves. 70.
(h) Duke of Somerset v. Gookson, 3 P. Will. 390.
(i) Pusey v. Pusey, 1 Vern. 273.
(k) Saville v. Tankred, 1 Ves. Sen. 101, Belt's Suppl. 70.
(I) Fells V. Read, 3 Ves. Jun. 70.
(m) Wood V. RowcUffe, 3 Hare, 304, affd. 2 Ph. 382 ; Pooley v. Rudd, 14 Beav. 34.
(n) See Nutbrown v. Thornton, 10 Ves. 159 ; Thompson v. Harcourt, 1 Bro. P. G.
193; Arundell v. Phipps, 10 Ves. 139; Lloyd v. Loaring, 6 Ves. 773.
§ 709 — 711.] CANCELLATION OF DEEDS. 303

be given to the other, a specific performance of the agreement was

decreed as to the copy ; for it is clear, that at law no adequate redress
could have been obtained (o). So, a decree was made against a lessee
of alum-works, to prevent an apprehended breach of a covenant, to
leave a certain amount of stock on the premises at the expiration of
the term; there being ground of suspicion that he did not mean to
perform the covenant (p). So, a decree was made against a land-
lord, to restore to a tenant certain farm stock taken by the former
in violation of the terms of his contract (g). These cases all proceed
upon the same principle oiquia timet, and the danger of irreparable
mischief (r).
§ 711. And formerly, where the court would not decree a specific
performance and delivery of chattels, it would yet entertain the suit
to decree compensation against the party for his omission to perform
his contract. Thus, for instance, where there was a contract for the
delivery of specific stock, the court refused to decree a specific per-
formance, but, at the same time, entertained the bill for the purpose
of giving compensation for the non -delivery (s). But this subject
will naturally come more properly under review in the succeeding
chapter.

(o) Lingen v. Simpson^ 1 Sim. & Stu. 600.

(p) Ward V. Duke of Buckingham, cited 10 Ves. 161.
(g) Nutbrown v. Thornton, 10 Ves. 159.
(r) Nutbrown v. Thornton, 10 Ves. 159.
(«) Cud V. Rutter, 1 P. Will. 570, and Cox's notee (2 and 3).
304 SPECIFIC PEBFOEMANCE. [CH. XVII.

CHAPTER XVII.

SPECIFIC PERFORMANCE OF AGREEMENTS AND OTHER DUTIES.

§ 712. Having thus gone over some of the principal grounds upon
which courts of equity will interpose to decree the rescission, cancella-
tion, or delivery up of agreements, securities, and other instruments,
and the delivery of chattels to the rightful owners, we shall in th&
next place pass to the consideration of the other branch of our
inquiries; namely, what are the cases in which courts of equity will
interpose and decree a specific performance of agreements?
§ 713. With reference to the present subject, agreements may be-
divided into three clases : (1) those which respect personal property ;
(2) those which respect personal acts ; and (3) those which respect
real property. And we shall presently see, that the jurisdiction now
actually exercised by courts of equity is not co-extensive in all these
classes of cases, but at the same time it may be fairly resolved into
the same general principles.
§ 714. It is well known that by the common law every contract or
covenant to sell or transfer a thing, if there was no actual transfer,
was treated as a mere personal contract or covenant; and, as such,
if it remained unperformed by the party, no redress could be had,
except in damages ; this was in effect, in all cases, allowing the party
the election either to pay damages, or to perform the contract or
covenant at his sole pleasure. But courts of equity deemed such a
course in many instances inadequate for the purposes of justice ; and,
considering it a violation of moral and equitable duties, they did not
hesitate to interpose, and require from the conscience of the offending
party a strict performance of what he could not, without manifest
wrong or fraud, refuse.
§ 716. The jurisdiction of courts of equity to decree a specific
performance of contracts, is not dependent upon, or affected by, the
form or character of the instrument. What these courts seek to be
satisfied of is, that the transaction in substance amounts to, and is
intended to be, a binding agreement for a specific object, whatever
may be the form or character of the instrument. Thus, if a bond
with a penalty is made upon condition to convey certain lands upon
the payment of a certain price, it will be deemed in equity an
agreement to convey the land at all events and not to be discharged
by the payment of the penalty, although it has assumed the form
§ 712 — 717.] SPECIBIC PERFORMANCE. 305

of a conditdon only (a). Courts of equity, in all cases of this sort,

look to the substance of the transaction, and the primary object of the
parties; and where that requires a specific performance, they will
treat the penalty as a mere security for its due performance and
attainment.
§ 716. The jurisdiction of courts of equity to decree a specific
performance of agreements, is certainly of a very -ancient date, if it
be not coeval with the existence of these courts in England. It may
be distinctly traced back to the reign of Edward IV. ; for, in the
Year Book of 8th Edward IV. 46, it was expressly recognized by
the Chancellor as a clear jurisdiction. But the particular instance
given there arguendo and assented to by the Chancellor is a promise to
build a house. This jurisdiction was exercised so lat© as 1740 (b) to
the fullest extent ; but although not disclaimed in its entirety at the
present day, it is only exercised within such narrow limits that it
is practically non-existent (c). Whatever may be the origin and
antiquity of the jurisdiction to decree a specific performance, it is
now clearly established, and is in daily and most beneficial exercise
for the purposes of justice. The ground of the jurisdiction is, that a
court of law is incompetent to decree a specific performance, and can
relieve the injured party only by a compensation in damages, which,
in many cases, would fall far short of the redress which his situation
might require. Wherever, therefore, the party wants the thing in
specie, axid he cannot otherwise be fully compensated, courts of equity
will generally grant him a specific performance (d).
§ 717. And this constitutes the true and leading distinction in the
present exercise of equity jurisdiction in regard to decreeing specific
performance. It does not proceed (as is sometimes erroneously sup-
posed) upon any distinction between real estat« and personal estate;
but upon the ground, that damages at law may not, in the particular
case, afford a complete remedy (e). Thus, courts of equity will decree
performance of a contract for land, not because of the particular
nature of land, but because the damages at law, which must be
calculated upon the general value of land, may not be a complete
remedy to the purchaser, to whom the land purchased may have a
peculiar and special value (/). So, courts of equity would not
generally decree performance of a contract for the sale of stock or
goods ; not because of their personal nature, but because the damages
at law, calculated on the market-price of the stock or goods, are as
(a) Logan v. Wienholt, 1 CI. & P. 611; French v. Macale, 2 Dru. & War. 269;
Jones V. Heavens, i Ch. D. 636; National Provincial Bk. v. Marshall, 40 Ch. D. 112.
(b) Pembroke v. Thorpe, 2 Swanst. 437 n.
(c) Wolverhampton (Corp), v. Emmons [1901] 1 K. B. 515.
(d) Doloret v. Rothschild, 1 Sim. & Stu. 590 ; Adderley v. Dixon, 1 Sim. & Stu. 607 ;
Eastern Counties Ry. v. Hawkes, 5 H. L. C. 331.
(e) Adderley v. Dixon, 1 Sim. & Stu. 607. 20
(/) Hall V. Warren, 9 Ves. 606; Eastern Counties Ry. v. Hawkes, 6 H. L. C. 331.
306 EQUITY JURISPRUDENCE. [CH. XVII.

complete a remedy for the purchaser, as the deliveryof the stock or

goods contracted for ; inasmuch as with the damages he may ordinarily
purchase the same quantity of the like stock or goods (g).
§ 718. But although the general rule now is, not to entertain
jurisdiction in equity for a specific performance of agreements
respecting goods, chattels, stock, chases in action, and other things
of a merely personal nature; yet the rule is (as we have seen) a
qualified one, and subject to exceptions; or, rather, the rule is limited
to cases where a compensation in damages furnishes a complete and
satisfactory remedy. Instances have already been given (h) and
may be supplemented by the following illustrative cases : A foreign
ship in an English port-, where the owner was abroad, and not
amenable to the jurisdiction of the English courts (0; or goods
exportable duty free, none other enjoying the same privilege being
available (fc).
§ 719. Lord Hardwicke has himself put the case of a shipbuilder
contracting for the purchase of a great quantity of timber, by reason
of the vicinity of the timber, and this may be well known and
understood on the part of the seller, in which case a specific
performance might be indispensable to justice (l). It was held by
Vice-Chancellor Kindersley, in Falcke Vr Gray (m), that specific
performance of a contract for the sale of a chattel will be decreed
where pecuniary damages would not be an adequate compensation,
as where the article is of unusual distinction and curiositj', and of
doubtful value. And in another more recent case (n), it was said
the courts of equity have jurisdiction to order the delivery up to an
artist of a picture painted by himself, as having a special value, and
the legal remedy being inadequate.
§ 720. Other illustrations may be found in cases, not merely of
sales, but of matters peculiarly resting in contracts of a very different
nature. Thus, where a covenant was made in a lease of some alum-
works, to leave certain stock upon the premises, a specific performance
was decreed; because the trade would be greatly damaged if the
covenant were not specifically performed, contrary to the real justice
of the case between the parties, and the landlord had stipulated for
a sort of enjoyment of the premises after the expiration of the
lease (o).
§ 721. Of the like nature are the common cases of covenants
between landlords and tenants, where injunctions, in the nature of a
(g) Doloret v. Rothschild, 1 Sim. & Stu. 590.
(h) Ante, § 708.
(s) Hart V. Herwig, L. E. 8 Ch. 860.
(k) See Hughes v. Orteme, 33 L. J. Q. B. 335.
(I) Buxton v. Lister, 3 Atk. 384, 385.
(m) Falcke v. Gray, 1 Drew. 651.
(n) Dowliyig v. Betjemann, 2 J. & H. 544.
(o) Ward v. Duke of Buckingham, cited 10 Ves. 161.
§ 718 724.] SPECIFIC PEEFOEMANCE. 307

specific performance, are often decreed; as, for instance, covenants

not to remove manure or crops at the end of a lease; covenants not
to plough meadovir; covenants not to dig gravel, sand, or coal. In all
cases of this sort, although tlie court acts merely by injunction, to
prevent the breach of the particular covenant, it in effect secures
thereby a specific performance ; and it may at once be seen, that such
interposition is indispensable to prevent irreparable mischief (p).
§ 722. Cases of agreements to form a partnership, and to execute
articles accordingly, may also be specifically decreed, although they
relate exclusively to chattel interests; if no adequate compensation
can, in such cases, be made at lave (g). Upon the like ground courts
of equity vi^ill decree the specific performance of a covenant to grant
a lease, or to renew a lease (r) ; so, of a contract for the sale of the
goodwill of a trade, and of a valuable secret connected with it (s) ;
so, of a contract to keep the banks of a river or canal in repair (i) ;
so, of a contract for the sale of an annuity payable out of the dividends
of stock (u) ; so, of a contract for the sale of debts proved under a
commission of bankruptcy, where an assignment of the debt had not
been already executed (x) ; so, if a party covenants that he will not
carry on his trade within a certain distance or in a certain place,
within which the other party carries on the same trade, a court of
equity will restrain the party from breaking the agreement so made,
if valid (y). In each of these cases, the judgment operates, pro tardo,
as a specific performance.
§ 723. Where the specific performance of a contract respecting
chattels will be decreed upon the application of one party, courts of
equity will maintain the like suit at the instance of the other party,
although the relief sought by him is merely in the nature of a com-
pensation in damages or value; for, in all such cases, the court acts
upon the ground that the remedy, if it exists at all, ought to be
mutual and reciprocal, as well for the vendor as for the purchaser {z).
§ 724. Although the doctrine seems well settled, that a contract
for the sale of government stock will not now be ordered to be

(p) City of London v. Pugh, i Bro. P. C. 395; Kimpton v. Eve, 2 Ves. & B. 349;
Pratt V. Brett, 2 Madd. 62; French v. Macale, 2 Dru. & War. 269.
(g) See ante, § § 666-668a.
(r) Earl of Shelburne v. Biddulph, 6 Bro. P. C. 356; Burke v. Smyth, 3-Jo. & Lat.
193; Moss v. Barton, L. E. 1 Eq. 474.
(s) Bryson v. Whitehead, 1 Sim. & Stu. 74. But see Baxter v. Conolly, 1 Jac. &
Walk. 576; Coslake v. Till, 1 Euss. 378.
(t) Lane v. Newdigate, 10 Ves. 192.
(it) Withy V. Cottle, 1 Sim. & Stu. 174. See also Pritchard v. Ovey, 1 Jac. &
Walk. 396.
(x) Adderley v. Dixon, 1 Sim. & Stu. 607; Wright v. Bell, 5 Price. 326.
(y) Lumley v. Wagner, 1 De G. M. & G. 604; Morris v. Saxelby, [1916] A. C.
688.
(z) Withy v. Cottle, 1 Sim. & Stu. 174; Adderley v. Dixon, 1 Sim. & Stii. 607;
Forrest v. Elwes, 4 Ves. 497 ; Flight v. Bolland, 4 Euss. 298.
308 EQUITY JDRISPKUDENCE. [CH. XVII.

specifically performed because it is ordinarily obtainable in the market,

and the damage suffered (if aoy) is capable of an exact compensation
in damages; yet it is well known, that, as late as Lord Hardwicke's
time, such contracts were so decreed in Chancery (a). And, in more
recent times, it has been held, that an action will lie for specific
performance of a contract for the purchase of government stock in
favour of a holder of scrip receipts, purporting to give the title to the
bearer thereof where the bill prayed for the delivery of the certificates,
which gave the legal title to stock, upon the ground that a court
of law could not give the property; but could only give a remedy in
damages, the beneficial effect of which must depend upon the personal
responsibility of the party (b). If this, however, be a sufficient ground
to entertain the jurisdiction, it seems universally applicable to all
bills for a specific performance. In the case of a contract to convey
shares in a railway, or other private corporation, specific performance
is the appropriate remedy, because such shares are of uncertain
value, and not always readily obtainable in the market (c).
§ 725. Some of the cases already stated are not purely cases
respecting the- sale, transfer, or enjoyment of personal chattels; but
may properly be deemed to involve personal acts and proceedings.
But it is difficult to separate the one class entirely from the other;
and they naturally flow into each other. In regard, however, to con-
tracts for personal acts and proceedings, there is some diversity of
judgment in the authorities, as to the cases and circumstances in
which a specific performance ought to be decreed in equity. Thus,
for example, it has been a matter of some conflict of opinion, how far
.courts of equity ought to entertain a suit for the specific performance
of a covenant to build or rebuild a house of a specified form and size
on particular land. In the earlier cases, the jurisdiction was main-
tained (d) ; and Lord Hardwicke recognized it in its full extent, at the
same time that he denied that a covenant to repair a house ought to
be specifically performed (e). In more recent times the jurisdiction
has not been disputed, but it has come to be recognized that its
exercise is likely to inflict hardship upon the defendant, while the
plaintiff would be amply compensated by an award of damages.
The rule now established is that specific performance of a contract
to build will not be granted unless the three following circumstances
all occur: The first is that the building work is so clearly defined
by the contract that the court can see what is the exact nature of the
(a) Cud V. Rutter, 1 P. Will. 570, 571; Nutbrown v. Thornton, 10 Ve«. 161?
Mason v. Armitage, 13 Ves. 25.
(b) Doloret v. Rothschild, 1 Sim. & Stu. 590.
(c) Duncuft V. Albrecht, 12 Sim. 189 ; Cheale v. Kenward, 3 De G. & J. 27 ; Poole
V. Middleton, 29 Beav. 646.
{(/) Holt V. Holt, 2 Vern. 322; Allen v. Harding, 2 Eq. Abr. 17, pi. 6.
(e) City of London v. Nash, 3 Atk. 511, 515; Pembroke v Thorp, 3 Swanst. 437,
note; Rook v. Worth, 1 Ves. Sen. 461.
§ 725 — 730.] SPECIFIC performance. 309

work to be done; secondly, that damages will not be an adequate

compensation for a breach of the contract to execute the work; and
thirdly, that the defendant has obtained possession of the land upon
which the work is to be done on the faith of his contract to build (/).
§ 729. In regard to many other contracts for personal acts and
proceedings, which are of a very different character, similar observa-
tions may apply. Thus, for instance, a covenant to renew a lease,
will, as we have seen, be specifically decreed (g). So, a covenant to
invest money in lands, and settle it in a particular manner (h). So,
an agreement to settle the boundaries between two estates (i). And
generally courts of equity will compel acts to be performed to clothe
a party with a legal title, as by the execution of formal instruments,
or the indorsing of negotiable instruments (k). Many other cases
might easily be put to illustrate the same doctrine; as the case of a
covenant not to build upon a contiguous estate, to the injury of an
ancient messuage ; of a covenant not to cut down timber-trees, which
are peculiarly ornamental to the mansion of the covenantee ; of a
covenant not to erect any noisome or injurious manufacturing estab-
lishment on an estate adjacent to that of the covenantee ; of a covenant
not to carry on the same trade with the covenantee in the same street
or town ; and of a covenant that a house to be built adjacent to
other houses should correspond with them in its elevation (I).
§ 730. Courts of equity will, upon analogous principles, interpose
in many cases, to decree a specific performance of express, and even
of implied contracts, where no actual injury has as yet been sus-
tained, but it is only apprehended from the peculiar relation between
the parties. This proceeding is commonly called a bill Quia timet,
in analogy to some proceedings at law, where, in some cases, a writ
may be maintained before any actual molestation, distress, or im-
pleading ofthe party (m). Thus, as we have seen, a surety may file a
bill to compel a debtor, on a bond in which he has joined, to pay the
debt when due, whether the surety has been actually sued or not (n.).
And upon a covenant to save harmless, a bill may be filed to relieve
the covenantee under similar circumstances (o). So, where property is
covenanted to be secured for certain purposes, and in certain events,

(/) Storer v. G. W. Ry., 2 Y. & C. Ch. 48; Wilson v. Northampton and Banbury
By., L. E. 8 Ch. 279; Wolverhampton (Corp.) v. Emmons, [1901] 1 K. B. 515.
(g) Earl of Shelburne v. Biddulph, 6 Bro. P. C. 356; Burhe v. Smyth, 3 Jo. &
Lat. 193.
(h) Vernon v. Vernon, 2 P. Wms. 594; Jeston v. Key, L. E. 6 Ch. 610; Lee v.
Lee, 4 Ch. D. 175.
(i) Penn v. Lord Baltimore, 1 Ves. Sen. 444.
(k) Lyde v. Munn, 1 Myl. & K. 683; Claringbould v. Curtis, 21 L. J. Ch. 541.
(l) Renals v. Cowlishaw, 11 Ch. D. 866; Spicer v. Martin, 14 App. Cas. 12.
(m) Co. Litt. 100 a; post, § 825, 826, 850.
(n) WooUridge v. Norris, L. E. 6 Eq. 410.; AscHcrman v. Tredegar Dry Dock
Co., [1909] 2 Ch. 401.
(o) Pember v. Mathers, 1 Bro. C. C. 53.
310 EQUITY JURISPRUDENCE. [CH. XVII.

and there is danger of its being alienated or squandered, courts of

equity will interpose to secure the property for original purposes (p).
And, generally, it may be stated, that in cases of contracts, express
or implied, courts of equity will interpose to preserve the funds
devoted to particular objects under such contracts, and decree, what
in effect is a specific performance, security to be given, or the fund
to be placed under the control of the court. This subject will present
itself in some other aspects hereaiter; and does not, therefore, require
a fuller development in this place (q).
§ 736. In cases of covenants and other contracts, where a specific
performance is sought, it is often material to consider how far the
reciprocal obligations of the party seeking the relief have been
fairly and fully performed. For if the latter have been disregarded,
or they are incapable of being substantially performed on the part of
the party so seeking relief, or from their nature they have ceased to
have any just application by subsequent events, or it is against public
policy to enforce them, courts of equity will not interfere. Thus,
where two persons had agreed to work a coach from Bristol to
London, one providing the horses for a part of the road, and the
other for the remainder; and, in consequence of. the horses of the
latter being taken in execution, the former was obliged to furnish
horses for the whole road, and claimed the whole profits; the court,
on a bill by the party, who was so in default, for an account of the
profits, and to restrain the other party from working the coaches with
his own horses on the whole road, refused to interfere; because the
default might again occur, and subject the defendant to an action (r).
On the other hand, where a husband sought to prove against his
deceased father-in-law's estate for the value of his life interest in
certain property which his father-in-law had covenanted to settle;
it was held to be no answer that the husband had not performed the
stipulations in the same settlement in respect of property which he
was to settle, he being entitled thereto for life and entitled in the
event which had happened of the death of his wife without issue, to
a general power of appointment over that fund, and consequently
able to defeat the trusts of the settlement to that extent (s).
§ 737. So, where a conveyance in fee had been made of certain
lands, and the feoffee covenanted not to use the land in a particular
manner, with a view to the more ample enjoyment of the adjoining

(p) Spiller V. SpHler, 3 Swanst. 556 ; London and County Bk. v. Lewis 21 Ch D
490.
(<?) § § 731 to 736 are taken up with a discussion as to -whether a specific perform-
ance would be decreed of a covenant by a husband that his wife should levy a fine or
execute any lawful conveyance to bar her right in his estate or her own estate. Owing
to changes in the law of husband and wife, this discussion has only an historical in
terest, and is therefore omitted.
(r) Smith v. Fromont, 2 Swanst. 330.
(s) Jeston V. Key, L. E. 6 Ch, 610.
§ 736 — 738.] SPECIFIC performance. 311

lands by the feoffor; and afterwards, by the voluntary acts of the

feoffor and those claiming under him, the character and condition
of the adjoining land had been so greatly altered, that the contem-
plated benefits were entirely gone; the court refused to interfere to
compel a specific performance by injunction, and left the party to his
remedy at law on the covenant (t). But in a subsequent case, where
A. purchased a piece of ground in the centre of a square in London,
and covenanted not to use it otherwise than as a pleasure-ground, an
injunction was granted, restraining a subsequent purchaser from A.
from using the ground in violation of the covenajtit (u).
§ 737a.. With the growth of population, the law relating to
restrictive covenants affecting the user of land has been developed,
and the learned author's statement requires to be supplemented.
It is inexpedient to discuss the cases at length in a book primarily
intended for the use of students. The cases range themselves con-
veniently under one or other of two heads, but under which the
particular instance is to be classed is a matter of great difficulty,
depending as it does upon a consideration of all the facts. Land
may be sold upon terms which make the restrictive stipulations a
bargain between the immediate contracting parties, who are at liberty
to vary the terms of the contract between them (x), and this they
may do either in express terms or by waiver or acquiescence ■in a
breach, and in the latter case the waiver or acquiescence will generally
be limited in effect to the particular breach (y). And the benefit
of covenants of this description may be made to run with the land at
law and in equity (z), although the burden can only be made to run
with the land sold in equity (zz). On the other hand, there may be
what is known as a building scheme which confers a right upon pur-
chasers of lots to sue purchasers of other lots for failure to observe
restrictive stipulations relative to the use of land (a). And in this
case the common vendor cannot dispense with the conditions or refuse
to observe them (6).
§ 738. Before proceeding to the remaining head of specific per-
formance, that of contracts respecting real estate, which will occupy
our attention to a far greater extent, it may be proper to mention,
that before Lord Somers's time, the practice used to be, on bills for a
specific performance, to send the party to law ; and if he recovered
anything by way of damages, the Court of Chancery then entertained

(t) Duke of Bedford v. Trustees of the British Museum, 2 Myl. & K. 552.
(u) Tulk V. Moxhay, 13 Jur. 89, 2 Phil. 774.
(x) Renals v. Cowlishaw, 11 Ch. D. 866; Osborne v. Bradley, [1903] 2 Ch. 446.
(y) Sayers v. Collyer, 28 Ch. D. 103; Knight v. Simmonds, [1896] 2 Ch. 294,
(«) Rogers v. Hosegood, [1900] 2 Ch. 388.
(zz) Haywood v. Brunswick Permanent Benefit Building Soc, 8 Q. B. T>. 403.
(a) Rowell v. Satchell, [1903] 2 Ch. 212.
(b) Spicer v. Martin, 14 App. Cas. 12 ; In re Birmingham and District Land Go,
V. Allday, [1893] 1 Ch. 342.
 312 EQUITY JURISPRUDENCE. [CH. XVII.

a suit; otherwise the bill was dismissed (o). And, hence the opinion
has been expressed, that, unless damages were recoverable at law,
no suit could be maintained in equity, for a specific performance.
But the whole class of cases of specific performance of contracts
respecting real estate, where the contract is by parol, and there has
been a part performance, or where the t-erms of the contract have
not been strictly complied with, and yet equity relieves the party,
are proofs that the right to maintain a suit in equity, to compel a
specific performance, does not, and cannot properly be said to depend
upon the party's having a right to maintain a suit at law for damages.
In cases of specific performance, courts of equity sometimes follow
the law, and sometimes go far beyond the law; and their doctrines,
if not wholly independent of the point, whether damages would be
given at law, are not in general dependent upon it. Whoever should
assume the existence of a right to damages in an action at law, as
the true test of the jurisdiction in equity, would find himself involved
in endless perplexity; for sometimes damages were formerly recover-
able at law, where courts of equitj' would not decree a specific per-
formance (d), and, on the other hand, damages might not be recover-
able at law, and yet relief would be granted in equity (e). Under
the present practice, where a party fails to substantiate his claim
to specific performance, but is entitled to damages as the appropriate
rehef, it is the duty of the court- to proceed at once to assess
them (/).
§ 742. In truth, the exercise of this whole branch of equity juris-
prudence, respecting the rescission and specific performance of
contracts, is not a matter of right in either party; but it is a matter
of discretion in the court {g); not, indeed, of arbitrary or capricious
discretion, dependent upon the mere pleasure of the judge, but of
4 that sound and reasonable discretion which governs itself as far as it
may, by general rules and principles; but at the same time, which
withholds or grants relief according to the circumstances of each
particular case, when these rules and principles will not furnish any
exact measure of justice between the parties (h). On this account it
is not possible to lay down any rules and principles, which are of
absolute obligation and authority in all cases; and, therefore, it
would be a waste of time to attempt to limit the principles, or the
exceptions, which the complicated transactions of the parties, and the
ever-changing habits of society, may, at different times, and under
(c) Dodsley v. Kinnersley, Ambler 406.
(d) Shrewsbury and Birmingham Ry. v. L. ,(■ N. W. Ry.^ 17 Q. B. 652; in equity
6 H. L. C. 113.
(e) Lester v. Foxcroft, Colles P. C. 108; Coles v. Pilkington, L. E. 19 Eq. 174.
(/) Tamplin v. James, 15 Ch. D. 215; Olley v. Fisher. 34 Ch. D. 367.
ig) Clowes v. Higginson, 1 Ves. & B. 527; Scott v. Alvarez, [1895] 2 Ch. 603.
(h) Hall V. Warren, 9 Ves. 605; Revell v. Hussey, 2 Ball. & B. 280; Haywood J
Cope, 25 Beav. 140; Smith v. Colbourns, [1914] 2 Ch. 533.
§ 742 — 746.] SPECIFIC performance. 313

different circumstances, require the coui't to recognize or consider.

The most that can be done is, to bring under review some of the
leading principles and exceptions which the past times have furnished,
as guides to direct and aid our future inquiries.
§ 743. Let us now, in the next place, proceed to the consideration
of the remaining and far the most numerous class of cases, in which
courts of equity are called upon to decree a specific performance of
contracts; that is to say, contracts respecting land. These are
assigned to the Chancery Division of the High Court by section 34 of
the Judicature Act, 1878 (86 & 37 Vict. c. 66). An action cannot be
maintained for the specific performance of a contract where the subject-
matter is land situate in a country not subject to the British crown (i).
But if the land is situate in a country so subject (be it even a colony
or dependency), then the action is maintainable. Accordingly, it was
held by Lord Hardwicke, that the specific performance of a contract,
respecting the boundaries of the colonies of Pennsylvania and Mary-
land, entered into by the proprietaries, might be decreed by the Court
of Chancery in England (k). The like doctrine was held in the case of
an agreement respecting the Isle of Man, where a specific performance
was decreed by the Court of Chancery in England, although the isle
was without the realm (i). In like manner, in a contract respecting
lands in Ireland, a specific performance has been decreed (m).
§ 744. The incapacity to enforce the decree in rem constitutes no
objection to the right to entertain such a suit (n). Where, indeed, the
lands lie within the reach of the process of the court., courts of
equity will not exclusively rely on the proceedings in personam;
but will put the successful party in possession of the lands, if
the other party remains obstinate, and refuses to comply with the
decree (o).
§ 745. But to return to the class of cases where a specific per-
formance is sought on contracts respecting land, situate in the
country where the suit is brought. This class may be subdivided
into two heads. (1) Where relief is sought upon parol contracts
within the Statute of Frauds (29 Car. 2, ch. 3) ; and (2) where it is
sought under written contracts, not falling within the scope of that
statute.
§ 746. It has been already suggested, that courts of equity are
in the habit of interposing to grant relief in cases of contracts
respecting real property, to a far greater ext«nt than in cases respecting

(8) In re Hawthorn, Graham v. Massey, 23 Ch. D. 743.

(k) Penn v. Lord Baltimore, 1 Ves. Sen. 444.
(/) Earl of Athol v. Earl of Derby, 1 Ch. Gas. 221.
(m) Archer v. Preston, cited 1 Vern. 77 ; s.c. 1 Bq. Abr. 133.
(n) Earl of Arglasse v. Muschamp, 1 Vern. 135.
(o) Penn v. Lord Baltimore, 1 Ves. Sen. 454; Roberdeau v. Rous, 1 Atk. 643;
Stribley v. Hawkie, 3 ^tk. 275.
314 EQUITY JURISPHUDENCE. [CH. XVII.

personal property; not, indeed, upon the ground of any distinction

founded upon the mere nature of the property, as real or as personal;
but, at the same time, not wholly excluding the consideration of such
a distinction. In regard to contracts respecting personal estate, it
is (as has already been intimated) generally true that no particular
or peculiar value is attached to any one thing over another of the
same kind ; and that a compensation in damages meets the full merits,
as well as the full objects, of the contracts. If a man contracts for
the purchase of a hundred bales of cotton, or bags of sugar or of
cofiee, of a particular description or quality, if the contract is not
specifically performed, he may, generally, with a sum equal to the
market-price, purchase other goods of the same kind of a like
description and quality ; and thus completely obtain his object, and
indemnify himself against loss (p). But, in contracts respecting a
specific messuage or parcel of land, the same considerations do not
ordinarily apply. The locality, character, vicinage, soil, easements or
accommodations of the land generally, may give it a peculiar and
special value in the eyes of the purchaser ; so that it cannot be replaced
by other land of the same precise value but not having the same
precise local conveniences or accommodations (q) ; and, therefore,
a compensation in damages would not be adequate relief. It would
not attain the object desired ; and it would generally frustrate the
plans of the purchaser. And hence it is, that the jurisdiction of courts
of equity to decree specific performance, is, in cases of contracts
respecting land, imiversally maintained; whereas, in cases respecting
chattels, it is limited to special circumstances.
§ 747. Courts of equity, too, in cases of contracts respecting real
property, have been in the habit of granting this relief, not only to
a greater extent, but also under circumstances iai^ more, various and
more indulgent than in cases of contracts respecting chattels. For
they do not confine themselves to cases of a strict legal title to relief.
Another principle, equally beneficial, is well known and established,
that courts of equity will not permit the forms of law to be made the
instruments of injustice; and they will, therefore, interpose against
parties attempting to avail themselves of the rigid rules of law for
unconscientious purposes. When, therefore, advantage is taken of a
circumstance that does not admit of a strict performance in the
contract, if the failure is not in a matter of substance, courts of equity
will interfere (r). Thus, they are in the habit of relieving in contracts
for real property, where the party, from his own inadvertence or
neglect, has suffered the proper time to elapse for the punctilious
performance of his contract, and from that and other circumstances,
(/)) Ante, §§ 716, 717, 718 to 724.
(q) Adderley v. Dixon, 1 Sim. & Stu. 607; Peers v. Lambert, 7 Beav. 546.
(r) Halsey v. Grant, 13 Ves. 73; Hill v. Buckley, 17 Ves. 394; Wilson v.
Williams, 3 Jur. N. S. 810; Rudd v. Lascelles, [1900] 1 Ch. 81*.
§ 747 — 750.] SPECIFIC performance. 315

he could not maintain an action to recover damages at law until

the equitable rule was made generally applicable by section 25, sub-
section 7of the Judicature Act, 1873 (37 & 38 Vict. c. 66) (s). Even
where nothing exists to prevent the parties suing at law, so many
circumstances are necessary to enable him to recover, at law, that
the mere formal proofs alone render it very inconvenient and
hazardous so to proceed, even if the legal remedy would (as in
many cases it would not) be adequate to the demands of substantial
justice.
§ 748. On these accounts (as has been well remarked), courts of
equity have enforced contracts of this sort, where no action for
damages could be maintained; for, at law, the party plaintiff must
have strictly performed his part; and the inconvenience of insisting
upon that in all cases is sufficient to require the interference of
courts of equity. They dispense with that which would make a
compliance with what the law requires oppressive; and, in various
cases of such contracts, they are in the constant habit of relieving a
party who has acted fairly, although negligently (t).
§ 749. On the other hand, as the interference of courts of equity
is discretionary, they will not enforce a specific performance of such
contracts at the instance of the vendor, where his title is involved in
difficulties which cannot be removed readily, although, perhaps, at
law, an action might be maintainable against the defendant for
damages for his not completing his purchase (u).
§ 750. Indeed, the proposition may be more generally stated, that
courts of equity will not interfere to decree a specific performance,
except in cases where it would be strictly equitable to make such
a decree (x). There is no pretence to say, that it is the doctrine
of courts of equity to carry into specific execution every contract in
all cases, where that is found to be the legal intention and effect
of the contract between the parties. If, in any case, the parties
have so dealt with each other, in relation to the subject-matter of a
contract, that the object of one party is defeated, while the other
party is at liberty t-o do as he pleases, in relation to that very subject;
or if, in fact, the character and condition of the property, to which
the contract is attached, have been so altered, that the terms and
restrictions of it are no longer applicable to the existing state of
things; in such eases courts of equity will noti grant any relief, but
will leave the parties to their remedy at law (y).

(s) Seton V. Slade, 7 Ves. 265; Stickney v. Keeble, [1915] A. C. 386.

(t) Lord Bedesdale, in Lennon v. Napper, 2 Sch. & Lefr. 684.
(«) Lechmere v. Brazier, 2 J. & W. 287; Fraser v. Wood, 8 Beav. 339; Nokes v.
Lord Kilmorey, 1 De G. & Sm. 444.
(x) Webster v. Cecil, 30 Beav. 62; Higgins v. Samels, 2 J. & H. 460; Earl of
Durham v. Lsgard, 34 Beav. 611; Rudd v. Lascelles, [1900] 1 Ch. 815.
(y) Duke of Bedford v. Trustees of the British Museum, 2 Myl. & K. 552.
316 EQUITY JURISPRUDENCE. [CH. XVII.

§ 751. Where, indeed, a contract respecting real property is in its

nature and circumstances unobjectionable, it is as much a matter of
course for courts of equity to decree a specific performance of it, as it
is for a court of law to give damages for the breach of it (a). And
generally, it may be stated, that courts of equity will decree a specific
performance, where the contract is in writing, and is certain, and is
fair in all its parts, and is for an adequate consideration, and is
capable of being performed (a), but not otherwise. The form of the
instrument, by which the contract appears, is wholly unimportant.
Thus, if the contract appears only in the condition of a bond secured
by a penalty, the court will act upon it as an agreement, and will not
suffer the party to escape from a specific performance by offering to
pay the penalty (b). On the other hand, if courts of equity refuse to
interfere, they inflict no injury upon the plaintiff; for no decision is
made, which affects his right to proceed at law for any redress by
way of damages to which he may be entitled. The whole effect of the
dismissal of his suit is, that he is barred of any equitable relief.
§ 751a. Courts of equity will also, in allowing or denying a specific
performance, look not only to the nature of the transaction, but also
to the character of the parties who have entered into the contract.
Thus, if the purchase be made by trustees for the benefit of a cestui
que trust, and there be a substantial misdescription of the premises,
courts of equity will not enforce against them a specific performance
with compensation, as being prejudicial to the cestui que trust and
incapable of being ascertained (c).
§ 752. With these explanations in view, let us now proceed to
examine, in the first place, in what cases a specific performance will
be decreed of contracts respecting lands, where they are within the
provisions of the Statut-e of Frauds (29 Car. II. c. 3). That statute
declares that ' ' All interests in lands, tenements, and hereditaments,
except leases for three years, not put in writing and signed by the
parties or their agents authorized by writing, shall not have, nor be
deemed in law or equity to have, any greater force or effect than
leases or estates at will." It further enacts that, "No action shall
be brought, whereby to charge any person upon any agreement made
upon consideration of marriage, or upon any contract or sale of lands,
tenements, or hereditaments, or any interest in or concerning the
same, or upon any agreement, that is not to be performed within the
space of one year from the making thereof, unless the agreement,
upon which such action shall be brought, or some memorandum or
note thereof, shall be in writing, and signed by the party or his lawful

(z) Hall V. Warren, 9 Ves. 608; Eastern Coimties By. v. Hawkes, 5 H. L. C. 331.
(a) Denton v. Stewart, 1 Cox 258; Greenaway v. Adams, 12 Ves. 395, 400.
(b) Logan v. Weinholt, 1 CI. & F. 611; French v. Macale, 2 Dru. & War. 269.
(c) Wedgwood v. Adams, 6 Beav. 600.
§ 751 — 754.] SPECIFIC PERFORMANCE. 317

agent." By the same statute, declarations of trust of land (d), created

by the parties, cannot be enforced unless manifested and proved by
writing; but trusts resulting by implication of law are to remain as
they stood before the passing of the Act.
§ 753. The objects of this statute are such, as the very title
indicates, to prevent the fraudulent setting up of pretended agree-
ments, and then supporting them by perjury. But, besides these
direct objects, there is a manifest policy in requiring all contracts of
an important nature to be reduced to writing, since otherwise, from
the imperfection of memory, and the honest mistakes of witnesses, it
must often happen, either that the specific contract is incapable of
exact proof, or that it is unintentionally varied from its precise original
terms. So sensible were courts of equity of these mischiefs, that they
constantly refused, before the statute, to decree a specific performance
of parol contracts, unless confessed by the party in his answer, or
unless they were in part performed (e).
§ 754. It is obvious that courts of equity are bound, as much as
courts of law, by the provisions of this statute; and, therefore, they

((f) McFadden v. Jenkyns, 1 Ph. 153; Cochrane v. Moore, 25 Q. B. D. 57.

(e) Lord St. Leonards, in his learned treatise on Vendors and Purchasers, ch. 4,
§ 2, pp. 107, 108 (7th edit.), has reviewed the cases and stated the result. " There
are four cases in Tothill, which arose previously to the Statute of Frauds, and appear
to be applicable to the point under consideration ; for equity, even before the Statute
of Frauds, would not execute a mere parol agreement, not in part performed. In the
first case, Williams v. Neville, Toth. 135, which was heard in the 38th of Eliz., relief
was denied, ' because it was but a preparation for an action upon the case.' In the
two next cases (Feme v. Bullosk, Toth. 206, 208; Clark v. Hackwell, id.), which came
on in the 9th of Jac. 1, parol agreements were enforced, apparently on account of the
payment of a very trifling part of the purchase-money ; but the particular circumstances
of these cases do not appear. The last case reported in Tothill (Miller v. Blandist,
Toth. 85) was decided in the 30th of Jac. 1, and the facts are distinctly stated? The
bill was to be relieved concerning a promise to assure land of inheritance, of which
there had not been any execution, but only 55s. paid in hand, and the bill was dis-
missed. This point received a similar determination in the next case on the subject
before the statute, which is reported in 1 Ch., and was determined in the 15th of
Car. 2. Simmons v. Cornelius, 1 Ch. 128. So the same doctrine was adhered to in
a case which occurred three years afterwards, and is reported in Freeman, Anon.,
2 Freem. 128; for, although a parol agreement for a house, with 20s. paid, was decreed
without further execution proved, yet it appears by the judgment, that the relief would
not have been granted if the defendant, the vendor, had demurred to the bill, which he
had neglected to do, but had proceeded to proof. The last case I have met with previ-
ously to the statute, was decided in the 2lBt of Car. 2, Voll v. Smith, 3 Ch. 16, and
there a parol agreement, upon which only 203. were paid, was carried into specific
execution. This case probably turned, like the one immediately preceding it, on the
neglect of the defendants to demur to the bill. It must be admitted that the foregoing
decisions are not easily reconcilable ; yet, the result of them clearly is, that payment
of a trifling part of the purchase-money was not ■-■ part performance of a parol agree-
ment. Whether payment of a considerable sum would have availed a purchaser does
not appear. In Toth. 67, a case is thus stated : ' Moyl v. Home, by reason £200 was
deposited towards payment, decreed.' This case may, perhaps, be deemed an autho-
rity, that, prior to the statute, the payment of a substantial part of the purchase-money
would have enabled equity to specifically perform - parol agreement ; but it certainly
is too vague to be relied on." Ibid., p. 120.
318 EQUITY JURISPRUDENCE. [CH. XVII.

are not at liberty to disregard them (/). That they do, however,
interfere in some cases within the reach of the statute, is equally
certain. But they do so, not upon any notion of any right to dispense
with it, but for the purpose of administering equities subservient to its
true objects, or collateral to it, and independent of it (g).
§ 755. In the first place, then, courts of equity will enforce a
specific performance of a contract within the statute, not in writing,
where it is fully set forth in the statement of claim and admitted in
the defence of the defendant (h). The statute is obviously designed
to guard against fraud and perjury; and where there is no conflict of
evidence, the ease then is taken entirely out of the mischief intended
to be guarded against by the statute (i). Another reason was suggested
by the learned author; and that was that the agreement, although
originally by parol, became thereby evidenced by writing under the
signature of the party which is a complete compliance with the terms
of the statute. This reason is clearly inadmissible, for although the
statutory requirements are satisfied by a writing coming into existence
after the contract is entered into (k), the writing must have been in
existence before action brought (I).
§ 756. But where the defence admits the parol agreement, and
insists upon the Statute of Frauds as a defence, the question arises
whether courts of equity will allow the statut-e, under such circum-
stances, as a bar; or whether they will, notwithstanding the statute,
decree a specific performance upon the ground of the confession.
Upon this question, there has been no small conflict of judicial
opinion. Lord Macclesfield expressly decreed a specific performance
in such a case (m).
§ 757. But this opinion must now be deemed to be entirely over-
ruled, and the doctrine firmly established, that even where the defence
admits the parol agreement, if it insists, as it must now do (n), by
way of defence, upon the protection of the statute, the defence must
prevail as a competent bar (o). This doctrine seems conformable to
the true intent and objects of the statute, which does not affect the

(/) Emmet v. Dewhurst, 3 Mac. & G. 587 ; Caton v. Caton, L. E. 1 Ch. 137 ; 2
H. L. 127 ; May v. Piatt, [1900] 1 Ch. 616.
ig) Mallet v. Halfpenny, cited Prec. Ch. at p. 404; Middleton v. Middleton, 1
J. & W. 94; Wood V. Midgley, 5 De G. M. & G. 41.
(h) Att.-Gen. v. Sitwell, 1 Y. & C. Ex. at p. 583; Ex parte National Provincial Bk.
of England; in re Boulter, 4 Ch. X>. 241.
(i) Bacon, V.-C, Ex parte National Provincial Bk. of England, in re Boulter,
4 Ch. D. 241.
(k) In re Holland, Gregg v. Holland, [1902] 2 Ch. 360.
U) Lucas V. Dixon, 22 Q. B. D. 357.
(m) Child
3 Swanst. 423, V.note.
Godolphin, 1 Dick. 39;"s.c. cited 2 Bro. C. C. 566; Child v. Comber,
(n) E. S. C. 1883, Order XIX., rule 15; Catling v. King, 5 Ch. D. 660.
(o) Blagden v. Bradbear, 12 Ves. 466.
§ 755 — 760.] SPECIFIC performance. 319

validity of the contract, but merely the method of proof (p), and
by insisting on the statute, the defendant merely exercises his right
to put the plaintiff to a strict proof of his case.
§ 759. In the next place, courts of equity will enforce a specific
performance of a contract within the statute, provided it affects
land (g), where the parol agreement has been partly carried into
execution. The distinct ground, upon which courts of equity interfere
in cases of this sort, is, as before observed, that the statute does
not affect the validity of the contract. It would, therefore, have
entitled a defendant to an action for trespass quare clausum fregit,
to prove a verbal agreement for a sale of land under a plea of leave
or licence. Where the act of the party defendant would have been
a trespass but for the verbal agreement, then the agreement may be
sued upon in equity as a substantive cause of action (r).
§ 760. But the more difficult question is to ascertain what, in the
sense of courts of equity, is to be deemed a part performance, so as to
extract the case from the reach of the statute. It seems formerly to
have been thought that a deposit, or security, or payment of the
purchase-money, or a part of it, or at least of a considerable part of
it, was such a part performance as took the case out of the statute.
But that doctrine was open to much controversy, and is now finally
overthrown (s). Indeed, the distinction taken in some of the cases,
between the payment of a small part and the payment of a consider-
able part of the purchase-money seems quite too refined and subtle ;
for, independently of the difficulty of saying what shall be deemed
a small, and what a considerable, part of the purchase-money, each
must, upon principle, stand upon the same reason; namely, that it
is a part performance in both cases, or not in either. One ground,
why part payment is not now deemed a part performance, sufficient
to take a case out of the statute, is, that the money can be recovered
back again at law (t), and, therefore, the case admits of full and
direct compensation. This ground is not, however, quit« satisfactory;
for the party may become insolvent before the judgment at law can
be executed. But the purchaser is also entitled to an equitable lien
upon the land for the money paid by him (m). Another ground has
been stated. It is, that the statute has said, in another clause (that

(p) See Buckmaster v. Harrop, 7 Ves. 346; Whitbread v. Brockhurst, 1 Bro. C. C.

417; s.c. 2 Ves. & B. 153, note; Morphett v. Jones, 1 Swanst. 181 ; GUnan v. Cooke, 1
Sch. & Lefr. 41; Mr. Eaithby's note to Hollis v. Edwards, 1 Yarn. 159; Leroux v.
Brown, 12 C. B. 801.
(g) Britain v. Rossiter, 11 Q. B. D. 123; Maddison v. Alderson, 8 App. Cas. 467.
(r) Wilson v. West Hartlepool By., 2 De G. J. & S. 475; Mills v. Haywood,
6 Ch. D. 196 ; Dickinson v. Barrow, [1904] 2 Ch. 339.
(s) Clinan v. Cooke, 1 Sch. & Lefr. 22; Caddick v. Skidmore, 2 De G. & J. 62.
(tj Wilde v. Fort, 4 Taunt. 334.
(u) Rose V. Watson, 10 H. L. C. 672; Whitbread & Co. v. Watt, [1902] 1 Ch. 835.
320 EQUITY JURISPRUDENCE. [CH. XVII.

wbich respects contracts for goods), that part payment, by way of

earnest, shall operate as a part- performance. And hence, the courts
have considered this clause as excluding agreements for lands, because
it is to be inferred, that, when the legislature said it should bind in
the case of goods, and were silent as to the case of lands, they meant
that it should not bind in the case of lands (x).
§ 761. But a more general ground, and one which has met with
some favour, is, that nothing is to be considered as a part performance
which does not put the party into a situation which is a fraud upon
him, unless the agreement is fully performed (y). This is hardly
accurate, although the converse holds good, namely, that where
it would be a fraud upon the party in the nature of a surprise, not to
give effect to the verbal agreement, the statute will be displaced.
Thus, for instance, if upon a parol agreement a man is admitted
into possession, he could be made a trespasser, unless allowed to set
up a parol agreement for the purpose of defending himself against a
charge as a trespasser, and against an action to account for the profits
in such a case, the evidence of a parol agreement would seem to be
admissible for his protection; and if admissible for such a purpose,
there seems no reason why it should not be admissible throughout (2).
A ease still more cogent might be put, where a vendee, upon a parol
agreement for a sale of land, should proceed to buUd a house on the
land, in the confidence of a due completion of the contract. In such
a case, there would be a manifest fraud upon the party, in permitting
the vendor to escape from a due and strict fulfilment of such agree-
ment (a). Such a case is certainly distinguishable from that of part
payment of the purchase-money, for the latter may be repaid, and the
parties are then just where they were before, especially if the money
is repaid with interest. A man who has parted with his money is
not in the situation of a man against whom an action may be brought,
and who may otherwise suffer an irreparable injury (b).
§ 762. In order to make the acts such as a court of equity will
deem part performance of an agreement within the statute, it is
essential that they should clearly appear to be done solely with a
view to the agreement being performed. For, if they are acts which
might have been done with other views, they will not take the case
out of the statute, since they cannot properly be said to be done by
way of part performance of the agreement (c). On this account, acts,.

(x) Clinan v. Cooke, 1 Sch. & Lefr. 22.

(y) Clinan v. Cooke, 1 Sch. & Lefr. 22.
(z) Pain V. Coombs, 1 De G. & J. 34; Wilson v. West Hartlepool Ry., 4 De ft.
J.
Ch. & 339.
S. 475; Mills v. Hayward, 6 Ch. D. 196. See Dickinson v. Barrow, [1904] 2'
(a) Lester v. Foxcroft, Colles P. C. 108; Savage v. Foster, 9 Mod. 35; Coles v.
Pilkington, L. E. 19 Eq. 174.
(b) Wilde v. Fort, 4 Taunt. 334 ; Sutherland v. Briggs, 1 Hare 26.
(c) Frame v. Dawson, 14 Ves. 386; Ex parte Hooper, 19 Ves. 479; Morphett v.
§ 761 — 763a..] specific performance. 321

merely introductory or ancillary to an agreement, are not considered

as a part performance thereof, although they should be attended with
expense. Therefore, delivering an abstract of title, giving directions
for conveyances, going to view the estate, fixing upon an appraiser
to value stock, making valuations, admeasuring the lands, registering
conveyances, and acts of the like nature, are not sufficient to take a
case out of the statute (d). They are all preliminary proceedings,
and are, besides, of an equivocal character, and capable of a double
interpretation ; whereas acts, to be deemed a part performance, should
be so clear, certain, and definite in their object and design, as to refer
exclusively to a complete and perfect agreement, of which they are a
part execution.
§ 763. In like manner, the mere possession of the land contracted
for will not be deemed a part performance, if it be obtained wrong-
fully by the vendee, or if it be wholly independent of the contract.
Thus, if the vendee enter into possession, not under the contract, but
in violation of it, as a trespasser, the case is not taken out of the
statute. So, if the vendee be a tenant in possession under the
vendor; for his possession is properly referable to his tenancy, and
not to the contract (e). But if the possession be delivered and obtained
solely under the contract; or if, in case of tenancy, the nature of the
holding be different from the original tenancy, as by the payment of
a higher rent, or by other unequivocal circumstances, referable solely
and exclusively to the contract; there, the possession may take the
case out of the statute. Especially will it be held to do so, where
the party let into possession has expended money in building or
repairs, or other improvements ; for under such circumstances, if the
parol contract were to be deemed a nullity, he would be liable to be
treated as a trespasser; and the expenditure would not' only operate
to his prejudice, but be the direct result of a fraud practised upon
him (/).

§ 763a. It seems to be now settled that possession, taken pre-

viously to, but continued after, a parol agreement, may be a sufficient
act of part performance to exclude a defence founded on the Statute
of Frauds, if the entry being tortious originally, the continuance in
possession has been acquiesced in by the defendant, or if the possession
can otherwise be referred to the (contract alleged (g).

Jones, 1 Swanst. 181; Reynolds v. Waring, Younge, 346; Maddisonv. Alderson, 8

App. Cas. 467.
(d) Pembroke v. Thorpe, 3 Swanst. 437 n. ; Clarke v. Wright, 1 Atk. 12; Whaley
V. Bagenal, 1 Bro. P. C. 345; Frame v. Dawson, 14 Ves. 386.
(e) Cole V. White, cited 1 Bro. C. C. 409; Frame v. Dawson, 14 Ves. 386; Glinan
V. Cooke, 1 Sch. & L. 22; Lindsay v. Lynch, 2 Sch. & Lefr. 1.
(/) Wills V. Stradling, 3 Ves. 378; Gregory v. Mighell, 18 Ves. 328; Morphett
V. Jones, 1 Swanst. 172; Fabian y. Nunn, L. E. 1 Ch. 35.
(3) Gregory v. Mighell, 18 Ves. 328; Hodson v. Heuland, [1896] 2 Ch. 428.
322 EQUITY JURISPRUDENCE. [CH. XVII.

§ 763b. In recent times the opinion has been expressed judicially

that the following propositions result from the authorities : —
(1) "The doctrine of part performance of a parol agreement,
which enables proof of it to be given notwithstanding the Statute
of Frauds, though principally applied in the case of contracts for
the sale or purchase of land, or for the acquisition of an interest
in land, has not been confined to those cases.
(2) " Probably it would be more accurate to say it applies to all
cases in which a court of equity would entertain a suit for specific
performance, if the alleged contract had been in writing.
(3) " The most obvious case of part performance is where the
defendant is in possession of land of the plaintiff under the parol
agreement.
(4) ' ' The reason for the rule is that, where the defendant has
stood by and allowed the plaintiff to fulfil his part of the contract,
it would be fraudulent to set up the statute.
(5) " But this reason applies wherever the defendant has
obtained and is in possession of some substantial advantage under
a parol agreement, which, if in writing, would be such as the
court would direct to be specifically performed.
(6) " The doctrine applies to a parol agreement for an ease-
ment, though no interest in land is intended to be acquired " (h).
§ 764. But in order to take a case out of the statute, upon the
ground of part performance of a parol contract, it is not only indis-
pensable that the acts done should be clear and definite, and referable
exclusively to the contract, but that the contract should also be
established by competent proofs to be clear, definite, and unequivocal
in all its "terms. If the terms are uncertain, or ambiguous, or not
made out by satisfactory proofs, a specific performance will not (as,
indeed, upon principle it should not) be decreed. The reason would
seem obvious enough, for a court of equity ought not to act upon
conjecture ; and one of the most important objects of the statute was,
to prevent the introduction of loose and indeterminate proofs of what
ought to be established by solemn written contracts. Yet it is certain
that, in former tinaes, very able judges felt themselves at liberty to
depart from such a reasonable course of adjudication, and granted
relief, notwithstanding the uncertainty of the terms of the contract.
In other words, the court framed a contract for the parties, ex lequo
et bono, where it found none (i). Such a latitude of jurisdiction seems
unwarrantable upon any sound principle, and, accordingly, it has
been expressly renounced in more recent times (fc). It may, perhaps,
be true that, in such cases of part, performance, the court has not been
(h) McManus v. Cooke, 35 Ch. D. 681, 697.
(i) Anon., 5 Vin. Abr. 523, pi. 40; ibid. 622, pi. 38; Anon., cited 6 Ves. 470;
Allan V. Bower, 3 Bro. C. C. 149.
(k) Milnes v. Gery, 14 "Ves. 400; Reynolds v. Waring, Younge, 846.
§ 7636 — 766.] specific performance. 323

deterred from making an inquiry, before a master, into the terms of

the contract, by the mere fact that all the terms are not sufficiently
before the court to enable it to make a final decree (I). But if such
an inquiry should end in leaving the contract uncertain, so that the
court cannot say what its precise import and limitations are, then the
court will withhold a final decree for a specific performance (m).
§ 765. It must be admitted that the exceptions thus allowed do
greatly trench upon the policy and objects of the Statute of Frauds;
and, perhaps, there might have been as much wisdom originally in
leaving the statute to its full operation, without any attempt to create
exceptions, even in cases where the statute would enable the party
to protect himself from a performance of his contract through a medi-
tated fraud. For, even admitting that such cases might occur, they
would become more and more rare as the statute became better under-
stood ;and a partial evil ought not to be permitted to control a general
convenience. And, indeed, it is far from being certain that these very
exceptions do not assist parties in fraudulent contrivances, and increase
the temptations to perjury, quit* as often as they do assist them in
the promotion of good faith and the furtherance of justice. These
exceptions have also led to great embarrassments in the actual adminis-
tration of equity; and although in some cases one may clearly see that
no great mischiefs can occur from enforcing them, yet, in others,
difficulties may be stated in their practical application which compel
us to pause, and to question their original propriety.
§ 766. Considerations of this sort have led eminent judges to
declare that they would not carry the exceptions of cases from the
Statute of Frauds farther than they were compelled to do. by former
decisions (n). Lord Eedesdale has strongly said, " The statute was
made for the purpose of preventing perjuries and frauds, and nothing
can be more manifest to any person who has been in the habit of
practising in courts of equity than that the relaxation of that statute
has been a ground of much perjury and much fraud. If the statute
had been rigorously observed, the result would probably have been
that few instances of parol agreements would have occurred. Agree-
ments would, from the necessity of the case, have been reduced to
writing ; whereas it is manifest that the decisions on the subject have
opened a new door to fraud, and that, under pretence of part execution,
if possession is had in any way whatsoever, means are frequently
found to put a court of equity in such a situation that, without depart-
ing from its rules, it feels itself obliged to break through the statute.
And, I remember, it was mentioned in one case, in argument, as a

(I) Allan V. Bower, 3 Bro. C. C. 149, and Mr. Belt's notes, p. 151, notes (2), (3).
(m) Lindsay v. Lynch, 2 Sch. & Lefr. 7, 8.
(n) Lord Alvanley, M.E., Forster v. Hale, 3 Ves. at p. 713; Alexander, C.B.,
Reynolds v. Waring, Younge, at p. 350.
324 EQUITY JURISPHUDKNCE. [CH. XVII.

common expression at the bar, that it had become a practice to

improve gentlemen out of their estates. It is, therefore, absolutely
necessary for courts of equity to niake a stand, and not carry the
decisions farther " (o).
§ 767. We have already had occasion to see that parol agreements,
even with part performance, will not be decreed to be specifically
executed unless the whole terms of the contract are clear and
definitely ascertained (p). The same rule applies to cases of written
contracts. If they are not certain in themselves, so as to enable the
court to arrive at the clear result of what all the terms are, they will
not be specifically enforced (q). In the first place, it would be
inequitably to carry a contract into effect where the court is left to
ascertain the intentions of the parties by mere conjecture or guess;
for it might be guilty of the error of decreeing precisely what the
parties or one of them never did intend or contemplate (r). In the
next place, if any terms are to be supplied, it must be by parol
evidence ; and the admission of such evidence would let in all the
mischief intended to be guarded against by the statute. Indeed, it
would be inconsistent with the general principles of evidence (although
there are exceptions (s) ) which are administered in courts of equity
as well as in courts of law ; for the general rule in both courts is, that
parol evidence is not admissible to vary or explain a written con-
tract (t); the natural inference being that the parties regard a formal
instrument as embodying the whole terms of their ultimate agreement,
an inference which may be displaced by appropriate evidence (u).
Evidence is admissible and indeed necessary to identify the subject-
matter (x).
§ 768. Another exception to the statute, turning upon similar
considerations, is, where the agreement is intended by the parties to
be reduced to writing, according to the statute ; but it is prevented
from being done by the fraud of one of the parties. In such a case,
courts of equity have said that the agreement shall be specifically
executed, for otherwise, the statute, designed to suppress fraud, would

(o) Lindsay v. Lynch, 2 Sch. c& Lefr. 4, 5, 7.

(p) Ante, §§ 751, 764o.
(g) Harnett v. Yeilding, 2 Sch. & Lefr. 649; Taylor v. Partington, 7 De G.
M. & G. 328; Douglas v. Baynes, [1908] A. C. 477.
(r) Lindsay v. Lynch, 2 Sch. & Lefr. 7, 8; Harnett v. Yeilding, 2 Sch. & Lefr.
555 ; Holloway v. Headington, 8 Sim. 324.
(s) Some of these exceptions have been already considered under the heads of
Accident, Mistake, and Fraud; but the full examination of the subject belongs to a
treatise on Evidence.
(t) Marq. Townshend v. Stangroom, 6 Ves. 328; Rich v. Jackson, in note, 6 Ves.
334, note (c); Woollam v. Hearn, 7 "Ves. 211.
(«) Harris v. Rickett, 4 H. & N. 1; Loxley v. Heath, 1 De G. F. & J. 489;
Legott V. Barrett, 16 Ch. D. 306; Page v. Midland Ry., [1894] 1 Ch. 11.
(x) Ogilvie v. Foljambe, 3 Mer. 63; Macdonald v. Longbottom, 1 Ell. & B. 977;
Shardlow v. Cotterill, 20 Ch. D. 90.
§ 767 — 769.] SPECIFIC performance. 325

be the greatest protection to it (y). Thus, if one agreement in writing

should be proposed and drawn, and another should be fraudulently
and secretly brought in and executed in lieu of the former, in this and
the like cases equity would relieve. So, if instructions are given by
an intended husband to prepare a marriage settlement, and he promises
to have the settlement reduced to writing, and then fraudulently aJid
secretly prevents it from being done, and the marriage takes effect, in
consequence of false assurances and contrivances, a specific perform-
ance wiU be decreed (2). But, if there has been no fraud, and no
agreement to reduce the matter to writing ; but the one party has
placed reliance solely upon the honour, word, or promise of the other,
no relief will be granted (o) ; for in such a case the party chooses to
rest upon a parol agreement, and must take the consequences (b).
And the subsequent marriage is not deemed a part performance,
taking the case out of the statute, contrary to the rule which prevails
•in other cases of contract. In this respect it is always treated as a
peculiar case standing on its own grounds (c). So, if a man should
treat for a loan of money on mortgage, and the conveyance is to be
by an absolute deed of the mortgagor, and a defeasance by the mort-
gagee ; and, after the absolute deed is executed, the mortgagee
fraudulentlj' refuses to execute the defeasance, equity will decree a
specific performance (d). So, where a father had purchased lands in
fee, and on his death-bed told his eldest son that the lands were
purchased with his second son's money, and that he intended to give
them to him, and the eldest son promised that he should enjoy them
accordingly, and the father died, and the eldest son refused to comply
with his promise ; it was held that the promise should be specifically
performed, upon the ground of fraud, notwifhstanding the objection
that there ought to have been a declaration of the use or trust, under
the statute (e). Other cases of a like character have occurred under
the head of fraud, and similar considerations may apply in cases of
accident and mistake, clearly and incontrovertibly made out (/).
§ 769. And here it is important to take notice of a distinction
between the case of a plaintiff seeking a specific performance in
(y) Montacute v. Maxwell, 1 P. Will. 618 ; s.c. 1 Eq. Abr. 19, Free. Ch. 526.
(z) Ibid. See ante, § § 331, 374; Taylor v. Beech, 1 Vea. 297, 298; Redding
V. Wilkes, 3 Bro. C. C. 400; Dund<is v. Dutens, 1 Ves. Jun. 196, 199; s.c. 2 Cox 234.
(a) Wood V. Midgley, 5 De G. M. & G. 41.
(b) It has sometimes been attempted to except from the statute oases where the
parties have expressly agreed that their contract should be reduced to writing. But
this doctrine, except in cases of fraud, has been expressly denied. Hollis v. Whiteing,
1 Vern. 151, 159; Whitchurch v. Bevis, 2 Bro. C. C. 565.
(c) Caton v. Gaton, L. E. 1 Ch. 65 ; Johnstone v. Mappin, 60 L. J. Ch. 241.
(d) Maxwell v. Montacute, Prsc. Ch. 526; Walker v. Walker, 2 Atk. 99; Young
v. Peachey, 2 Atk. 258; Joynes v. Satham, 3 Atk. 389.
(e) Sellack v. Harris, 5 Vin. Abr. 621, pi. 31; Podmore v. Gunning, 7 Sim. 644;
post, § 1265.
(/) See ante, under the heads of Accident, Mistake, and Fraud, §§ 99, 206,
256, 386.
326 EQUITY JURISPRUDENCE. [CH. XVII.

equity, and the case of a defendant, resisting such a performance.

We have already seen, that the specific execution of a contract in
equity is a matter, not of absolute right in the party, but of sound
discretion in the court (g). Hence, it requires a much less strength of
case on the part of the defendant to resist an action to perform a
contract, than it does on the part of the plaintiff to maintain an action
to enforce a specific performance; for the refusal to enforce a specific
performance of a contract, does not deprive the party of his remedy
at law (h). An agreement to be entitled to be carried into specific
performance, ought (as we have seen) to be certain, fair and just in all
its parts (i). Courts of equity will not decree a specific performance
in cases of fraud or mistake (k) ; or of hard and unconscionable bar-
gains ;or where the decree would produce injustice ; or where it would
compel the party to an illegal or immoral act; or where it would be
against public policy (I) ; or where it would involve a breach of trust ;
or where a performance has become impossible; and, generally, not in
any cases where such a decree would be inequitable under all the
circumstances (iw).
§ 770. But courts of equity do not stop here; for they will let in
the defendant to defend himself, by evidence to resist a judgment,
where the plaintiff would not always be permitted to establish his case
by the like evidence. Thus, for instance, courts of equity will allow
the defendant to show, that, by fraud, accident, or mistake, the thing
bought is different from what he intended; or that material terms
have been omitted in the written agreement; or that there has been
a variation of it by parol (n) ; or that there has been a parol discharge
of a written contract (o). The ground of this doctrine is that which
has been already alluded to, that courts of equity ought not to be
active in enforcing claims, which are not, under the actual circum-
stances, just, as between the parties. The statute has said, that no
person shall be charged with the execution of an agreement, who has
not personally, or by his agent, signed a written agreement. But the
statute does not say, that, if a written agreement is signed, the same
exceptions shall not hold to it, as did before the statute. Now, before

(g) Ante, § 742.

(h) Vigers v. Pike, 8 CI. & F. 562, and Lord Cottenham's remarks, p. 645;
Tamplin v. James, 16 Ch. D. 215.
(t) Buxton V. Lister, 3 Atk. 385; Harnett v. Yeilding, 2 Sch. & Le£r. 554; Ellard
V. Landaff, 1 Ball & Beat. 250; ante, § § 693, 750, 751, 767. See also Drysdale v.
Mace, 5 De G. M. & G. 103.
(k) Davis v. Shepherd, L. E. 1 Ch. 410. Where mistake is not mutual, but parties
can be restored to statu quo, equity will rectify with option on part of defendant to
rescind. Harris v. Pepperell, L. E. 5 Eq. 1. See Bloomer v. Spittle, L. E. 13 Eq. 427.
(l) See Flanagan v. Great Western Ry., L. R. 7 Eq. 116.
(m) Ante, § 650; Kimberley v. Jennings, 6 Sim. 340; Harnett v. Yeilding, 2 Sch.
& Lefr. 554, 555 ; Greenaway v. Adams, 13 Ves. 399, 400 ; Denton v. Stuart, 1 Cox 258.
(n) Woollam v. Hearn, 7 Ves. 211.
(0) Morris v. Baron & Co., [1918] A. C. 1.
§ 770 — 772.] SPECIFIC peefoemance. 327

the statute, if a bill had been brought for a specific performance, and
it had appeared that the agreement had been prepared contrary to the
intentions of the defendant, he might have resisted the performance of
it. The statute has made no alteration in this respect in the situation
of the defendant. It does not say a written agreement shall bind;
but only that an unwritten agreement shall not be enforceable (p).
There are, however, certain exceptions to this doctrine, which have been
allowed to prevail; as, for example, where the defendant sets up, in
his defence to a bill for the specific performance of a written contract,
that there has been a parol variation or addition thereto by the parties ;
if the plaintiff assents thereto, he may amend his claim, and at his
election have a specific performance of the written contract, with such
variations or additions so set up ; for, under such circumstances, there
is a written admission of each party to the parol variation or addition,
and there can be no danger of injury to the parties, or evasion of the
rules of evidence, or of the Statute of Frauds (g). So, the court may
decree a specific performance in favour of the plaintifi, notwithstanding
he does not make out the case stated by his bill, if he offers to comply
with the contract as the defendant states it (r).
§ 771. In general, it may be stated that, to entitle a party to a
specific performance, he must show that he has been in no default in
not having performed the agreement, and that he has taken all proper
steps towards the performance on his own part. If he has been guilty
of gross laches, or if he applies for relief after a long lapse of time,
unexplained by equitable circumstances, his action will be dismissed ;
for courts of equity do not, any more than courts of law, administer
relief to the gross negligence of suitors (s). But this doctrine is to be
taken (as we shall presently see) with some qualifications. For,
although courts of equity will not encourage laches, yet if there has
not been a strict legal compliance with the terms of the contract and
the non-compliance does not go to the essence of the contract, relief
will be granted (t).
§ 772. It has been laid down, that, if a man has performed a valu-
able part of an agreement, and is in no default for not performing
the residue, there it is but reasonable that he should have a specific
execution of the other part of his contract, or at least should recover
back what he has paid, so that he may not be a loser. For, since he
entered upon the performance in contemplation of the equivalent
from the other party, there is no reason why an accidental loss should
fall upon him any more than upon the other (m). A distinction has
(p) Lord Selborne, L.C, Jervis v. Berrlkge, L. E. 8 Ch. at p. 360; Snelling v.
Thomas, L. B. 17 Eq. 303.
(g) London and Birmingham Ry. v. Winter, Cr. & Ph. 57.
(r) Marquess Townshend v. Stangrom, 6 Ves 328 ; Smith v. Wheatcroft, 9 Ch. D.
223.
(s) Howe v. Smith, 27 Ch. D. 89; Cornwall v. Benson, [1900] 2 Ch. 298.
(t) Post, § § 776, 777. (u) Gilb. Lex Prsetor. 240, 241 ; post, § § 775, 976.
328 EQUITY JURISPRUDENCE. [CH. XVII.

been put upon this subject by Lord Chief Baron Gilbert, which is
entitled to consideration because it apparently reconciles authorities
which might otherwise seem discordant. It is the distinction between
cases in which the plaintiff is in statu quo as to all that part of his
agreement which he has performed, and those casefe in which he is
not in statu quo. In the former cases, equity will not enforce the
agreement, if the plaintiff cannot completely perform the whole of
his part of it; in the latter cases, equity will enforce it, notwith-
standing he is incapable of performing the remainder by a subsequent
accident (x).
§ 773. Thus, upon a marriage settlement, A. contracted to settle
a manor on his wife and the heirs of their bodies, and to clear it
of incumbrances, and to settle a separate maintenance on her, and
likewise to sell some pensions, in order to make a further provision
for her and the issue of the marriage ; and his father-in-law agreed
to settle £3,000 per annum on A. for life, remainder to the wife for
life, and so to the issue of the marriage. A. cleared the manor of
incumbrances, and settled it accordingly, and settled also the separate
maintenance ; but he did not sell the pensions, nor settle the further
provisions. The wife died without issue; and A. brought his bill
to have the £3,000 settled on him during his life. The court refused
to decree it; because A. was in statu quo, as to all that part of the
agreement which he had performed, and not having performed the
whole, and the other part being now impossible, and no compensation
being possible to be adjusted for it, he had no title in equity to a
specific performance, since such performance would not be mutual.
But the issue of A., if any, might have been relieved, because they
would have been in no default. This case illustrates the first propo-
sition (j/).
§ 774. But (which is the second case) if a man has performed so
much of the agreement, as that he is not in statu quo, and is in no
default for not performing the residue, there he shall have a specific
execution of the agreement from the other party. As, if a man has
contracted for a portion to be received with the wife, and has agreed
to settle lands of a certain value upon the wife, and her issue free of
incumbrances ; and he sells part of his lands to disincumber the other
lands, and is proceeding to disincumber and settle the rest. In such
a case, if the wife should die without issue before the settlement is
actually made, yet he shall have the portion, because he cannot be
placed in statu quo, having sold a part of his lands; and there was

(x) Gilb. Lex PrsBtor. 240.

(j/) Gilb. Lex Prsetor. 240, 241; Feversham v. Watson, Bep. temp. Pinch 445;
s.c. 2 Preem. 35. But see Hovenden's note to 2 Preem. 35 (4). The case seems to
have been put in the reports upon the ground that the covenants of the plaintiff were
by vpay of condition precedent, which could not be dispensed with in equity. Eep.
temp. Pinch 447 ; 2 Preem. 35.
§ 773 — 777.] SPECIFIC performance. 329

no default in him, since he was going^ on to perform his contract; and,

therefore, the accident of the wife's death shall not prejudice him («).
§ 776. Where the terms of an agreement have not been strictly
complied with, or are incapable of being strictly complied with; still,
if there has not been gross negligence in the party, and it is con-
scientious that the agreement should be performed; and if compensa-
tion may be made for an injury occasioned by non-compliance with the
strict terms; in all such cases courts of equity will interfere, and
decree a specific performance. For the doctrine of courts of equity is,
not forfeiture, but compensation (a) ; and nothing but such a decree
will, in such cases, do entire justice between the parties (b). Indeed,
in some cases courts of equity will decree a specific execution, not
according to the letter of the contract, if that will be unconscientious ;
but they will modify it according to the change of circumstances (c).
§ 776. One of the most frequent occasions on which courts of
equity are asked to decree a specific performance of contract is, where
the terms for the performance and completion of the contract have
not, in point of time, been strictly complied with. Time is not
generally deemed in equity to be of the essence of the contract for the
sale of land, unless the parties have expressly so treated it, or it neces-
sarily follows from the nature and circumstances of the contract (d).
And " whatever the leaning of the Court in earlier times may have
been, the tendency of the modern cases has been to hold the parties
seeking the assistance of the Court on bills for specific performance to
the rule of equity, which requires them to be prompt in asking such
assistance " (e). Even where time is of the essence of the contract, it
may be waived by proceeding in the purchase after the time has
elapsed; and if time was not originally made by the parties of the
essence of the contract, yet it may become so by notice, if th'e other
party is afterwards guilty of improper delays in completing the pur-
chase (/). It should be observed that in some cases the nature of
the property contracted for makes time of the essence of the contract,
as, for instance, if the thing sold is a public-house, or of an uncertain
and fluctuating value (g).
§ 777. Courts of equity will also relieve the party vendor, by
decreeing a specific performance, where he has been unable to comply
with his contract according to the terms of it, from the stat« of his
(z) Gilb. Lex Prsetor. 241, 242; Meredith v. Wynn, 1 Eq. Abr. 71; s.c. Prec. Ch.
312.
(a) Page v. Broom, i Buss. 6, 19; ante, § 772; post, § 776.
(b) Davis v. Hone, 2 Sch. & L. 347 ; Lennon v. Napper, 2 Sch. & L. 684.
(c) Davis V. Hone, 2 Sch. & L. 347.
(d) Seton v. Slade, 7 Vea. 265, 2 Wh. & T. L. C. 475; Wheeler v. D'Esterre, 2
Dow, 359; Renter v. Sala, 4 C. P. D. 239; Stickney v. Keehle, [1915] A. C. 386.
(e) Wigram, V.C., Southcomb v. Bishop of Exeter, 6 Hare, 219, 220.
(/) King v. Wilson, 6 Beav. 124 ; Gee v. Pearse, 2 De G. & Sm. 325 ; Bruner v.
Moore, [1904] 1 Oh. 305 ; Stickney v. Keehle, [1915] A. C. 386.
(g) Day v. Luhke, L. E. 5 Eq. 133; Gowles v. Oale, L. R. 7 Ch. 12.
330 EQUITY JURISPRUDENCE. [CH. XVII.

title at the time, if he comes within a reasonable time, and the defect
is cured (h). So, if there has been no unnecessary delay, courts of
equity will sometimes decree a specific performance in favour of the
vendor, aJthougli he was unable to make a good title at the time when
action was brought (i). So, if the circumstances of the quality or quan-
tity of land are not correctly described, and the misdescription is not
very material, and admits of complete compensation, courts of equity
will decree a specific performance. In all such cases, courts of equity
look to the substance of the contract, and do not allow small matters
of variance to interfere with the manifest hitention of the parties, and
especially where full compensation can be made to the party on account
of any false or erroneous description (k).
§ 778. But where there is a substantial defect in the estate sold,
either in the tdtie itself, or in the representation or description, or
the nature, character, situation, extent, or quality of it, which is un-
known to the vendee, and in regard to which he is not put upon
inquiry, there a specific performance will not be decreed against
him (I). Upon the like ground a party contracting for the entirety of
an estate, will not be compelled to take aji undivided aliquot part
of it (w). A vendor having a partial interest in land and contracting
to sell a larger interest, may compel a specific performance, if he can
force or obtain the concurrence of all other necessary parties (?j.). But
a vendor having no interest therein cannot force the title of a third
party upon an unwilling purchaser (o). And as a further illustration
of the principle that equity regards the substance rather than the
letter, a vendor may force a titie from himself, if valid, although
different from that contra-cted to be shown (p). At law the rule was
otherwise (g).
§ 778*. And where the plaintiffs, a railway company, agreed with
the defendants to execute a branch railway according to specifications
furnished by their engineer, and to give a bond to secure the perform-
ance of the contract, it was held that the agreement could not be
enforced as regards the construction of the railway, because, from the
nature of the works, the court could not superintend their execution
consistently with public convenience ; nor could they enforce the

(h) Guest V. Homfray, 5 Ves. 818; Esdaile v. Stephenson, 1 Sim. & Stu. 122;
Wynn v. Morgan, 7 Ves. 202; In re Atkinson v. Hersell, [1912] 2 Ch. 1.
(8) Hoggart v. Scott, 1 Euss. & Myl. 293; s.c. Tamlyn 500; Curling v. Flight,
2 Ph. 613.
(fe) Poole V. Shergold, 1 Cox 273; 2 Bro. C. C. 118; Casamajor v. Strode, 2 M.
& K. 706; Denny v. Hancock, L. R. 6 Ch. 1. See ante, § 141.
(I) Peers v. Lambert, 7 Beav. 546.
(m) Dalby v. Pullen, 3 Sim. 29.
(n) Graham v. Oliver, 3 Beav. 124; Sidebotham v. Barrington, 3 Beav. 524;
4 Beav. 110 ; 6 Beav. 261 ; In re Baker and Salmon, [1907] 1 Ch. 238
(o) In re Bryant and Bamingham, 4 Ch. D. 218.
(p) Games v. Bonner, 54 L. J. Ch. 517.
(g) Forster v. Hoggart, 15 Q. B. 155.
§ 778 — 779a.] specific perfoemance. 331

plaintiffs' portion of the contract, to procure the land; and they would
not therefore decree a part performance of the contract, by the
execution of the stipulated bond, if indeed, in any case of the advance
of money, and the agreement to execute a bond for its repayment, a
court of equity will compel the execution of the bond. The remedy
at law would seem ample in all such cases (r).
§ 779. We have thus far principally spoken of cases of actions by
the vendor against the purchaser for a specific performance, where
the contract has not been, or cannot be, strictly complied with. But
actions may also be brought by the purchaser for a specific performance
under similar circumstances where the vendor is incapable of making
a complete title to all the property sold, or where there has been a
substantial misdescription of it in important particulars; or where
the terms, as to the time and manner of execution, have not been
punctually or reasonably complied with on the part of the vendor.
In these and the like cases, as it would be unjust to allow the vendor
to take advantage of his own wrong, or default, or misdescription,
courts of equity allow the purchaser an election to proceed with the
purchase pro tanto, or to abandon it altogether. The general rule
in all such cases, is that the purchaser, if he chooses, is entitled to
have the contract specifically perforrned, as far as the vendor can
perform it, and to have an abatement out of the purchase-money or
compensation, for any deficiency in the title, quantity, quality, des-
cription, or other matters touching the estate, unless the granting of
this extraordinary remedy should inflict unreasonable hardship upon
the seller (s).

§ 779a.. The proper construction of the clause that ' ' if any error,
misstatement, or omission in the particulars should be discovered, the
error should not annul the sale,", and similar clauses, has been the
subject of much discussion in the courts. The law as laid down by
Tindal, C.J., in FligM v. Booth; in the following terms, has been uni-
versally followed: — "Where the misdescription, although not pro-
ceeding from fraud, is, in a material and substantial point, so far
affecting the subject-matter of the contract that it may reasonably be
supposed that, but for such misdescription, the purchaser might never
have entered into the contract at all, in such case the contract is
avoided altogether, and the purchaser is not bound to resort to the
clause of compensation " (t).

(r) South Wales Ry. v. Wythes, 1 Kay & J. 186. See also Paris Chocolate
Co. V. Crystal Palace Co., 3 Sm. & Giff. 119, cited and followed in Bellamy v. Deben-
ham, [1891] 1 Ch. 412, 422.
(s) Hooper v. Smart, L. E. 18 Bq. 683; Horrocks v. Rigby, 9 Ch. D. 180; In re
G. N. Ry. and Sanderson, 25 Ch. D. 788; In re Fawcett and Holmes, 45 Ch. D. 150;
Rudd V. Lascelles, [1900] 1 Ch. 815.
(t) 1 Bing. N. C. 370, 377. Approved and followed in In re Fawcett and Holmes,
42 Ch. D. 150.
332 EQUITY JURISPEUDENCE. [CH. XVII.

§ 780. Perhaps it may be truly said, that in some of the cases, in

which, in former times, the strict terms of the contract, as to time,
•description, quantity, quality, and other circumstances of the estate
sold, were dispensed with, courts of equity went beyond the true
limits, to which every jurisdiction of this sort should be confined, as
it amounted to a substitution pro tanto, of what the parties had not
■contracted for (u). But the tendency of the modern decisions is to
bring the doctrine within such moderate bounds as seem clearly indi-
cated by the principles of equity, and by a reasonable regard to the
convenience of mankind, as well as to the common accidents, mistakes,
infirmities, and inequalities belonging to all human transactions {x).
§ 781. We have hitherto been considering cases of contracts
jespecting lands within the reach of the Statute of Frauds. But
other cases within the reach of other clauses of the Statute of Frauds
liave occurred, and may again occur, in which, also, the remedial
justice of courts of equity ought to be exerted by decreeing a specific
performance of the contemplated act of trust. Thus, if a man, in
confidence of the parol promise of another to perform the intended
a,ct, should omit to make certain provisions, gifts, or arrangements for
other persons, by will or otherwise, such a promise would be specific-
ally enforced in equity against such a promisee ; although founded on
■& parol declaration, creating a trust contrary to the Statute of Frauds ;
for it would be a fraud upon all the other parties to permit him to
(derive a benefit from his own breach of duty and obligation [y).
Therefore, where an executor promised the testator to pay a legacy,
.and told the testator he need not put it into his will, he was decreed
•specifically to perform it (a). So, where a testator was about altering
■his will, for fear that there would not be assets enough to pay all the
legacies, and his heir-at-law persuaded him not to alter it, promising
to pay all the legacies, he was decreed specifically to perform his
promise (a). And the same result would follow where the party bene-
fited was innocent of the fraud (b).
§ 782. These may suffice as illustrations of the class of cases
calling for a specific performance, which are within the purview of
the Statute of Frauds. And we shall now proceed, in the next place,
to a brief statement of the other class of cases already referred to,
namely, those where relief is sought under written or parol contracts
not within the Statute of Frauds. Many of these cases have already

(u) See Halsey v. Grant, 13 Ves. 76; Dtewe v. Hanson, 6 Vea. 678; Bowyer v.
Bright, 13 Ves. 702; Chattock v. Muller, 8 Ch. D. 177.
(x) Drewe v. Hanson, 6 Ves. 678.
iy) Ante, § § 64, 256, 439.
(z) Beech v. Kennigate, Ambler 67 ; s.c. 1 Ves. 123.
(a) Chamberlaine v. Chamberlaine , 2 Ereem. 34.
(b) Lutterel v. Lord Waltham, cited 14 Ves. 290; 1 J. & W. 96 ; Bulkley v Wil-
Jord, 2 CI. & F. 102.
 § 780 — 785.] SPECIFIC peefoemance. 33S

been incidentally taken notice of under the other heads, and especially
under the heads of Accident, Mistake, and Fraud (c).
§ 783. Illustrations may easily be put, of cases where no action
whatsoever would He at law between the parties. Thus, if A. should
enter into a contract with B., which contract B. should afterwards,
assign to a third person, there no action would have been maintain-
able at law before the Judicature Acts by such assignee against A.,
or by A. against such assignee, on such contract. But a bill in equity-
would well lie by either of them against the other, either to enforce-
a specific execution of the contract, or to set it aside in the same
manner, and under the same circumstances, as such a bill would lie
between the immediate parties to it (d), provided the original contract-
ing parties were parties to the suit, so that all equities could be properly
adjusted. We all know, that privity of contract between the parties
was, in general, indispensable to a suit at law; but courts of equity
act in favour of all persons claiming by assignment under the parties,,
independent of any such privity (e).
§ 784. Upon similar principles, if a person has, in writing, con-
tracted to sell land, and afterwards refuses to perform his contract,
and then sells the land to a purchaser with notice of the contract, the--
latter will be compelled to perform the contract of his vendor, for he-
stands upon the same equity; and although he is not personally
liable on the contract, yet he will be decreed to convey the land in-
the same manner as his vendor (/) ; in other words, he is treated as a
trustee of the first vendee. So, if a power is reserved in a marriage
settlement, for a feme covert to dispose of her separate property, real
and personal, courts of equity will enforce the specific performance of
it in favour of any party claiming title from her against her husband,
although at law it might, in many cases, formerly have been difficulfc
to prevent the latter from exercising power over it (g).
§ 785. The cases of contracts to grant an annuity for a life or lives,
and to settle the boundaries between contiguous estates, have been,
already mentioned as proper matters for an action for specific perform-
ance (h). So, where an agreement was made by persons, who were
presumptive heirs to another person, to divide the estate equally
between them, without any reference to any will which might be made
by such person, it was held valid; and that it should be specifically
decreed (i). So, contracts to invest money in land, and, on the other

(c) See ante, § § 99, 152 to 157, 161, 330, 331.

(d) Moxhay v. Inderwick, 11 Jur. 837; Hacker v. Mid-Kent By., 11 Jur. N. S.
634; Fenwick v. Bulman, L. E. 9 Eq. 165; Durham Brothers v. Robertson, [1898J
1 Q. B. 765. See HoU^n v. Hayn, 1 Mer. 47 ; Shaw v. Foster, L. E. 5 H. L. 321,
(e) Post, §§ 1040, 1057.
(/) Potter V. Sanders, 6 Hare 1. See McCreight v. Foster, L. E. 5 H. L. 321.
(g) Power v. Bailey, 1 Ball & Beat. 49; Fettiplace v. Gorges, 3 Bro. C. C. 8 ;•
post, §§ 788, 789, 790. (h) Ante, §§ 722, 729, 730.
(i) Beckley v. Newland, 2 P. Will. 182; id. 698; ante, § 265.
334 EQUITY JURISPRUDENCE. [CH. XVII.

hand, to turn land into money, have been held proper for a specific
performance. So, a contract to make mutual wills, if one of the
parties has died, having made a will according to the agreement, will
be decreed in equity to be specifically executed out of assets by the
surviving party, if he has enjoyed the benefit of the will of the other
party (k). So, a general covenant to indemnify a party for the pur-
chase-money due for land, upon an assignment thereof to an assignee,
although it sounds only in damages, will be decreed to be specifically
performed by the assignee, upon the principle of quia timet (1).
§ 786. Another curious case, illustrative of the extent to which
courts of equity wiU go to enforce a specific performance of contracts
against parties and privies in estate, in cases where a fraudulent
evasion is attempted, has been propounded and acted upon in the
House of Lords. If a person covenants, or agrees, or in any other
jnanner validly binds himself to give to A., by his will, as much pro-
perty as he gives to any other child, he may put it out of his power
±o do so, by giving away all his property in his lifetime. Or, if he
binds himself to give to A. as much as he gives to B. by his will, he
may, in his lifetime give to B. what he pleases, so as, by his will,
he shall give to A. as much as he gives to B. But then the gifts
which he makes in his lifetime, to B. must be out and out. For,
if to defraud or defeat the obligation which he has thus entered into,
he gives to B. any property, real or personal, over which he retains a
control, or in which he reserves an interest to himself; then, in order
io protect the agreement or obligation which he has entered into, and
to defeat the fraud attempted upon that agreement or obligation and
to prevent his escaping, as it were, from his own contract, courts of
equity will treat this gift to B. in the same manner as if it were purely
-testamentary, and were included in a will; and the subject-matter of
the gift will be brought back and made the fund out of which to
perform the obligation. At all events, it will be made the measure
for calculating and ordering the performance of, and dealing with,
-the claim arising under that agreement or obligation (m).
§ 787. These cases are sufficient to point out the general course
of remedial justice in equity in all cases of specific performance,
vs'hether they are within or without the Statute of Frauds. To go
over all the doctrines applicable to the subject, in all the varieties,
-would require a discussion wholly incompatible with the objects of
this work. The principles already expounded may serve to explain
the true nature and extent of the jurisdiction at present exercised, —
a jurisdiction which has been an appropriate theme of praise on all
occasions in which the claims of courts of equity to public favour have
(k) Dufour v. Pereira, cited 3 Ves. 412, 416.
(l) Ante, § 730; post, § 849.
(m) Logan v. Wienholt, 7 Bligh N. S. 1; 1 CI. & P. 611. See In re Parkin
mil v. Schwatz, [1892] 3 Ch. 510. »
 § 786 — 789.] SPECIFIC performance. 335

been vindicated by their friends or assailed by their enemies. In

conclusion, it may, however, be proper to remark, that all the cases
for a specific performance, vchich we have been examining, presuppose
the contract to be between competent parties, and founded upon a
valuable and meritorious consideration ; for courts of equity will not,
as we have seen, and shall presently more fully see (n), carry into
specific execution any merely nude pads or voluntary agreements, not
founded upon some valuable or meritorious consideration ; nor between
parties not sui juris or competent to contract, such as infants (o) ; nor
(as we have already seen) any agreements which are against public
policy,, or are immoral, or which involve a breach of trust (p).
§ 788. It may also be stated, that, in general, where the specific
execution of a contract respecting lands will be decreed between the
parties it will be decreed between all persons claiming under them in
privity of estate, or of representation, or of title, unless other con-
trolling equities are interposed (q). If a person purchases lands with
knowledge of a prior contract to convey them, he is (as we have seen)
affected by all the equities which affected the lands in the hands of
the vendor (r). The lien of the vendor for the purchase-money attaches
to them, and such purchaser may be compelled either to pay the
purchase-money, or to surrender up the land, or to have it sold for
the benefit of the vendor. In this view, the remedy of the vendor
against such purchaser may be said to be in rem, rather than in
personam. On the other hand, if the vendee under such a contract
conveys the same to a third person, the latter, upon paying the pur-
chase-money, may compel the vendor, and any person claiming under
him in privity, or as a purchaser with notice, to complete the contract
and convey the title to him (s).
§ 789. The general principle upon which this doctrine proceeds, is,
that from the time of the contract for the sale of the land, the vendor,
as to the land, becomes a trustee for the vendee, and the vendee, as
to the purchase-money, a trustee for the vendor, who has a lien upon
the land therefor (t). And every subsequent purchaser from either,
with notice, becomes subject to the same equities as the party would
be from whom he purchased (u). In cases of this sort, if the original
vendee dies, after having sold the lands to a third person, who is to

(m) Ante, § § 433, 706, 706a, 750, 769; post, § § 793o, 973, 977, 987, 1040.
(o) Flight V. Bolland, i Euas. 298, 301; ante, §§ 723, 751, note.
(p) Toison v.
(g) Smith V. Hibbard,
Sheard, 52 Ch. D. 730.
Dick. 19; Morris, Lim. constitutes
As to what v. Saxelby,'notice
[1916]of A. C. 688.
assignment,
preventing the vendor from conveying to original vendee, see McCreight v. Foster,
L. E. 5 Ch. 604; L. E. 5 H. L. 321; Crabtree v. Poole, L. E. 12 Bq. 13.
(r) Potter v. Sanders, 6 Hare 1.
(s) Winged v. Lefebury, 2 Eq. Abr. 32, pi. 43; Taylor v. Stibbert, 2 Ves, Jun.
437; Daniels v. Davison, 16 Ves. 249; s.c. 17 Ves. 433; ante, § 784.
(t) Seton V. Slade, 7 Ves. 264; Lysaght v. Edwards, 2 Ch. D. 499; Clarke v.
Ramuz, [1891] 2 Q. B. 546.
(«) Whitbread £ Co. v. Watt, [1902] 1 Ch. 835.
336 EQUITY JURISPRUDENCE. [CH. XVII.

pay the purchase-money, his personal representatives are entitled to

proceed against such purchaser in equity, to indemnify them, and to
pay the purchase-money. On the other hand, if the vendor dies, his.
personal representatives may enforce the lien for the purchase-money
against the land in the possession of the purchaser. But who, as
between the heirs and personal representatives of the vendee or a sub-
sequent purchaser, is to bear the charge, that is, whether it is to be
borne by the personal estate or by the land purchased, is a matter
properly belonging to other branches of equity jurisdiction, in which
the marshalling of assets is considered (x).
§ 790. There is another consideration which is incident to this
subject, and to which courts of equity have given an attention and
effect proportioned to its importance. In the view of courts of law,
contracts respecting lands, or other things, of which a specific
execution will be decreed in equity, are considered as simple executory
agreements, and as not attaching to the property in any manner, as
an incident, or as a present or future charge. But courts of equity
regard them in a very different light. They treat them, for most
purposes, precisely as if they had been specifically executed. Thus,
if a man has entered into a valid contract for the purchase of land,
he is treated in equity as the equitable owner of the land, and the
vendor is treated as the owner of the money. The purchaser may
devise it as land, even before the conveyance is made, and it passes;
by descent to his heir as land (j/). The vendor is deemed in equity to
stand seised of it for the benefit of the purchaser; and the trust (as
has been already stated) attaches to the land, so as to bind the heir
of the vendor, and every one claiming under him as a purchaser, with
notice of the trust («). The heir of the purchaser may come into equity
and insist upon a specific performance of the contract. On the other
hand, the vendor may come into equity for a specific performance of
the contract on the other side, and to have the money paid; for the
remedy, in oases of specific performance, is mutual (a), and the
purchase-money is treated as the personal estate of the vendor, and
goes as such to his personal representatives. In like manner, land,
articled or devised to be sold, and turned into money, is reputed as
money, and money, articled or bequeathed to be invested in land, has,
in equity, many of the qualities of real estate, and is descendible and
devisable as such, according to the rules of inheritance in other
cases (b). So, if a trustee should take property with absolute directions
to sell and convert it into money, there, although the directions were
not carried into effect during the life of the party creating the trust,

(x) Roberts v. Marchant, 1 Ph. 370; Hoddel v. Pugh, 33 Beav. 489.

(y) Seton v. Slade, 7 Ves. 264, 274; post, § 1212.
(z) Ante, §§ 788, 789.
(a) Ante, § 723; post, § § 796, 1212.
(b) Fletcher v. Ashbumer, 1 Bro. C. C. 496.
§ 790 — 793.] SPECIFIC pekformance. 337

the property would be deemed personalty. But if the charge is not

absolute, as if a testator should charge his real estate for the payment
of his debts, it will retain its character as real estate, so far as the
charge does not extend, until it is actually converted (c). The like rule
will apply to the case of real estate, conveyed by way of mortgage with
a power upon default of payment to sell the premises, and pay over
the residue to the mortgagor, after payment of the mortgage ; there, if
no sale should be mad© until after the death of the mortgagor, it will
pass by his devise to his devisee, or to his heir, as real estate, and not
as personalty (if).
§ 791. The ground of this latter doctrine is, that courts of equity
will regard the substance, and not the mere form, of agreements and
other instruments; and will give them the precise effect which the
parties intended, in furtherance of that intention. It is presumed
that the parties, in directing money to be invested in land, or land
to be turned into money, intend that the property shall assume the
very character of the property into which it is to be converted, what-
ever may be the manner in which that direction is given. And no
one will deny that it is competent, at lea^t in a court of equity, for
the owner of the fund to make land money, or money land, at his
sole will and pleasure.
§ 792. But, although these are the general principles adopted by
courts of equity, yet they are not without limitations and qualifica-
tions, standing upon peculiar reasons, but still consistent with those
principles. Thus (as we have seen), nothing is looked upon in equity,
as done, but what ought to be done; not what might have been
done. Nor will equity consider things as thus done in favour of
everybody; but only in favour of those who have a right to pray that
they might be done.
§ 793. Upon the ground of intention, also, if it can be collected
from any present or subsequent acts of the parties, that it is their
intention, notwithstanding any will, or deed, or other instrument,
that the property shall retain its present character, either in whole
or in part, courts of equity will act upon that intention (e). Thus, for
instance, if money is directed by will, or other instrument, to be laid
out in land, or land is directed to be turned into money, the party
entitled to the beneficial interest may in either case, if he elects so
to do, prevent any conversion of the property from its present state,
and hold it as it is. And this election he may make, as well by acts
or declarations, clearly indicating a determination to that effect, as
by an application to a court of equity (/). It is this election, however,

(c) In re GoswelVs Trusts, [1915] 2 Ch. 106.

(d) Bourne v. Bourne, 2 Hare, 38.
(e) Ackroyd v. Smithson, 1 Bro. C. C. 503; Wheldale v. Partridge, 8 Ves. 227;
Mutlow V. Bigg, 1 Ch. D. 385.
(/) Seeley v. Jago, 1 P. Will. 389, where Lord Chancellor Cowper said, " It is
E.J. 22
338 EQUITY JURISPRUDENCE. [CH. XVII.

and not the mere right to make it, which changes the character of the
estate, so as to make it real or personal at the will of the party entitled
to the whole beneficial interest. If he does not make such an election
in time to stamp the property with a character different from that
which the will or other instrument gives it, the latter character
accompanies it, with all its legal consequences, into the hands of
those who are entitled to it in that character. So that, in case of
the death of the party thus beneficially entitled, without having
made an election, the property will pass to his heirs, or personal repre-
sentatives, inthe same manner it would have done if the trust had
been executed and the conversion had been actually made in his
lifetime (g).
§ 793a. We have already had occasion to remark, throughout the
whole of the discussion, respecting a-ctions for specific performance of
contracts, that it has been constantly supposed that the contract was
one founded upon a valuable consideration in the contemplation of
law (h). In respect to voluntary contracts, or such as are not founded
in a valuable consideration, we have already had occasion to state,
that courts of equity do not interfere to enforce them, either as
against the party himself or as against other volunteers claiming
under him (i). Thus, for example, if a party should enter into a
voluntary agreement to transfer stock to another, or to give him a
sum of money, or to convey to him a certain real estate, courts of
equity would not assist in. enforcing the agreement, either against
the party entering into the agreement, or against his personal repre-
sentatives; for the party contracted with is a mere volunteer. The
same rule is applied to imperfect gifts, inter vivos, to imperfect
volimtary assignments of debts and other property, to voluntary
executory trusts, and to voluntary defective conveyances (fe).

vain to lay out this money on land for B. and C, when the next moment they may
turn it into money; and equity, like nature, does nothing in vain."
ig) Smith v. Claxton, 4 Madd. 484; Jessop v. Waison, 1 M. & K. 665; In re
Bicherson, Scales v. Heyhoe, [1891] 1 Ch. 379.
(h) Ante, § 787.
(t) Ante, §§ 706, 706a, 787; Tate v. HilbeH, 2 Ves. Jun. 112; Jeffreys v.
Jeffreys, 1 Cr. & Phil. 136, 141; Meelc v. Kettlewell, 1 Phil. 342.
(&) Ellison V. Ellison, 6 Vea. 662; Ex parte Pye, 18 Ves. 149; Edwards v. Jones,
1 Myl. & Cr. 226 ; Weale v. Ollive, 17 Beav. 252 ; Green v. Paberson, 32 Ch. D. 95.
§ 793a — 795.] compensation and damages. 339

CHAPTER XVIII.
COMPENSATION AND DAMAGES.

§ 794. It is in cases of bills brought for a specific performance that

questions principally (although not exclusively) arise, as to com-
pensation and damages being awarded by courts of equity; and
therefore it is convenient in this place to consider the nature and
extent of the jurisdiction exercised by courts of equity as to com-
pensation and damages (a). It may be stated as a general proposition,
that, for breaches of contract, and other wrongs and injuries, cognizable
at law, courts of equity did not entertain jurisdiction to give redress
by way of compensation or damages, where these constituted the sole
objects of the bill (fa). For, wherever the matter of the bill was merely
for damages, and there was a perfect remedy therefor at law, it was
considered far better that they should be ascertained by a jury than
by the conscience of an equity judge (o). And indeed the just
foundation of equitable jurisdiction failed in all such cases, as there
was a plain, complete, and adequate remedy at law. Compensation or
damages could be and were decreed in equity but only as incidental to
other relief sought by the bill and granted by the court; or where
there is no adequate remedy at law; or where some peculiar equity
intervened (d). Thus, for example, if, pending a suit for a specific
performance of an agreement for a demise of quarries, a part of the
subject-matter of the demise is abstracted, compensation might under
the old practice have been obtained therefor by a supplemental bill (e).
§ 795. The mode by which such compensation or damages used to
be ascertained was either by a reference to a master, or by directing
an issue, quantum damnificatus , which was tried by a jury. The
latter used to be almost the invariable course in former times, in all
cases where the compensation was not extremely clear as to its
elements and amounts. But the same inquiries may be had before a

(a) The same principle of compensation and damages is applied in granting relief
against penalties and forfeitures, as will be seen in a future page.
(b) Higginbotham v. Hawkins, L. E. 7 Ch. 676; Morgan v. Lariviire, L. R. 7
H. L. 423.
(c) Gilb. For. Eom. ch. 12, p. 219; CliffoTd v. Brooke, 13 Ves. 130, 131, 134;
Blore V. Sutton, 3 Meriv. 247, 248; Newham v. May, 13 Price, 749, 752.
id) Newha.m v. May, 13 Price, 732; Cligord v. Turrell, 1 Y. & C. Oh. 138; on
appeal, 14 L. J. Ch. 390.
(e) Nelson v. Bridges, 2 Beav. 239.
340 EQUITY JURISPRUDENCE. [CH. XVIII-

master; and in cases where such inquiries do not involve much

complexity of facts or amounts, this course is now often adopted (/).
Or the damages may be assessed by the court at the hearing, and if
the plaintiff is not rea-dy with his evidence, the trial has been adjourned
to give him time to obtain the necessary evidence (g).
§ 796. Wherever compensation or damages are incidental to other
relief, as, for instance, where a specific performance is decreed upon
the application of either party, with an allowance to be made for
any deficiency as to the quantity, quality, or description of the
property, or for any delay in performing the contract; there, it
eeems clear, that the jurisdiction properly attaches in equity; for
it flows, and is inseparable from the proper relief (h). So, where an
action is brought by the vendor against the vendee for specific
performance of the contract of sale, and of payment of the purchase-
money, if the judgment is for a specific performance, equity will
decree the payment of the purchase-money also, as the remedies of the
parties must be mutual, although the vendor might in many cases
have a good remedy at law for the purchase-money (i). The learned
author then discussed certain doubts that had been expressed by Lord
Eldon, Lord Eedesdale, and Sir William Grant. M.E., which after his
day had been set at rest by subsequent decisions to which reference
has already been made in this chapter, and which have long since
possessed but an historical interest by reason of legislation.
. § 796a,. By the Chancery Amendment Act, 1858, still usually
referred to as Lord Cairns' Act (21 & 22 Vict. c. 27), s. 2, it was
enacted that in all cases in which the court had jurisdiction to
en,tertain an application for an injunction against a breach of any
covenant, contract, or agreement, or against the commission or
continuance of any wrongful act, or for the specific performance of
any covenant, contract, or agreement, in all these cases it should be
lawful for the same court, if it should think fit, to award damages to
the party injured, either in addition to, or in substitution for, such
injunction, and such damages might be assessed in such manner as the
court should direct. This statute has been repealed but with the
saving of " any jurisdiction or principle, or rule of law or equity
established or confirmed " by it, by the Statute Law Eevision Act,
1881 (44 & 45 Vict. c. 59). The statute does not confer aji original
jurisdiction to award damages, and if the right to specific performance

(/) Gilb. For. Bom. 219; Denton v. Stewart, 1 Cox 258; Greenaway v. Adams,
12 Ves. 401, 402; Todd v. Gee, 17 Ves. 278, 279.
(g) Higginbotham v. Hawkins, L. E. 7 Ch. 676; Jacques v. Millar, 6 Ch. D.
153; Wesley v. Walker, 26 W. E. 368. Lord Justice Pry recommends in his book on
Specific Performance, 2nd edit. p. 555, that this last course should whenever prac-
ticable be adopted.
(h) Ante, §§ 709, 711.
(j) Withy V. Cottle, 1 Sim. & Stu. 174 ; Adderley v. Dixon, 1 Sim. & Stu. 607 ;
Clifford V. Turrell, 1 Y. & C. Ch. 138, affirmed 14 L. J. Ch. 890.
§ 796 — 7966.] compensatiok and damages. 341

has been lost, as by laches, the right to damages under the Act falls
with it (fe).
§ 796b. The Supreme Court established by the Judicature Act,
1873 (36 & 37 Viet. c. 66), is, as has been already stated (I), a court
of complete jurisdiction, and where a party would have failed to
establish his claim to relief in equity and have been awarded damages
in a court of law, the court should at once proceed to give him his
alternative remedy (m).

(/c) Ferguson v. Wilson, L. E. 2 Ch. 77; Lavery v. Pursell, 39 Ch. D. 508.

(1) Ante, § 48.
(m) Tamplin v. James, 15 Ch. D. 215. This decision has sometimes been over-
looked in practice; e.g., Lavery v. Pursell, 39 Ch. D. 508; Scott v. Alvarez, [1915]
2 Ch. 603.
342 INTERPLEADER. [CH. XIX.

CHAPTER XIX.
INTERPLEADER.

§ 800. With these remarks on the jurisdiction of courts of equity, as

to specific performance, and competisation and damages, we may
dismiss the subject, and proceed to another head of concurrent
equitable jurisdiction, arising principally from the peculiar remedies
administered therein; and that is, Interpleader. A learned author
has treated this, and one other branch of equity jurisprudence (that
of interference in cases of irreparable mischief and injury), as not
strictly belonging either to the concurrent, or the exclusive, or the
auxiliary jurisdiction of courts of equity. Perhaps, in strictness, this
may be correct, but it more nearly falls within the first than within
either of the others (a). Having regard to the enlarged jurisdiction
of the Supreme Cotirt, it will be unnecessary to discuss the limits
within which courts of equity entertained bills of interpleader with the
same particularity as the learned author.
§ 801. The remedy by interpleader was not unknown to the
common law ; but it had a very narrow range of purpose and application.
The interpleader at law was where there was a joint bailment by
both claimants (b). It was a common practice, in the early times of
the English law, for parties, by joint agreement, to deposit title-deeds,
and other deeds and things, in the hands of third persons, to await
the performance of covenants, or the doing of some other act, upon
which they were to be redelivered to one or the other of the parties.
It often happened, under such circumstances, that questions subse-
quently arose, whether the act had been properly performed, or the
terms strictly complied with; and if, when either party supposed the
crisis, on which the deed or thing was demandable, to have arrived,
any dispute existed, as to the right, or as to the fact, an action of
detinue (the appropriate action for such a case) became inevitable.
Now, by the common law, in such a case, the depositary might, if
such an action was brought against him, plead for his protection the
fact of such delivery or bailment upon certain conditions, and his
willingness to deliver the property to the party entitled to it, and
his ignorance whether the condition were performed or not; and

(a) Cooper, Eq. PI. Introd. p. 33.

(b) Cramshay v. Thornton, 2 Myl. & Cr. 1, 21.
§ 800 — 805.] INTERPLEADER. 343

thereupon he might pray, that a process of gamishment (that is, a

process of monition or notice) might iss.ue to compel the other depositor
to appear and become a defendant in his stead. This was properly
called the process of gamishment.
§ 802. The process of interpleader was very nearly allied to that
of garnishment; and it arose, when both of the parties, who concurred
in a joint bailment, brought several actions of detinue against the
depositary, under like circumstances, for a redelivery of the thing
deposited. The depositary might then plead the facts of the case,
and pray that the plaintiffs in the several actions might interplead
with each other. This was properly the process of interpleader. The
proceeding seems highly reasonable in itself, to prevent the depositary
from being harassed by suits in which he had no interest.
§ 803. The same process was also applied to cases where the thing
in controversy came to the possession of the depositary by finding,
and he was sued in detinue by different persons, each claiming to be
the owner in severalty. And it seems also to have been applied to
cases of a bailment by A., to the depositary to rebail to B. ; where
both A. and B. sued the depositary in detinue. But if there was no
privity between the parties, but each plaintiff coimted upon a several
independent bailment against the depositary, there, it was said, the
plaintiffs were not compellable to interplead, for it was the depositary's
own folly, and he must abide by it (c).
§ 804. The remedy, however, such as it was, was principally
confined to actions of detinue, although it was applied to a few other
cases, such as writs of quare impedit, and writs of right of ward.
But it was not allowed to any personal action except detinue; and
then only, as we have seen, when it was founded either in privity of
contract, or upon a finding.
§ 805. From this description of the process of interpleader at the
common law, it is obvious that it could afford a very imperfect remedy
in a great variety of cases. Indeed, as the action of detinue was
subsequently supplanted by the action of trover (in which interpleader
did not lie at the common law), little or no practical advantage could
be derived from it in modem times (d). The only remedy, therefore,
for the relief of a person sued, or in danger of being sued, by several
claimants of the same property, was that of filing a bill to compel
them, by the authority of a court of equity, to interplead, either at law
or in equity (e).

(c) Beeves, Hist, of the English Law, ch. 23, pp. 453, 454. See Rich v. Aldred,
6 Mod. 216; Story on Bailments, §§ 111, 112. (d) Cooper, Eq. PI. 47, 48, 49.
(e) The reader is referred to the able Eeport of the Common Law Commissioners
made to Parliament, and printed by the order of the House of Commons, in March,
1880 (p. 24), for further information on this subject. Mr. Reeves has, in his History
of the English Law (vol. iii. pp. 448 to 455), brought together some of the cases of
difficulty in the proceeding of interpleader at the common law. They abundantly
show the inadequacy of the remedy.
344 EQUITY JURISPRUDENCE. [CH. XIX.

§ 806. It is observable, that the jurisdiction of courts of equity, to

compel an interpleader, followed, to some extent, the analogies of the
law (/). It was properly applied to cases where two or more persons
severally claimed the same thing under different titles, or in separate
interests, from another person, who, not asserting any title or interest
therein himself, and not knowing to which of the claimants he ought
of right to render the debt or duty claimed, or to deliver the property
in his custody, was either molested by an action or actions brought
against him, or feared that he might suffer injury from the conflicting
claims of the parties. He, therefore, applied to a court of equity to
protect him, not only from being compelled to pay or deliver the
thing claimed to both the claimants, but also from the vexation
attending upon the suits, which were, or possibly might be, instituted
against him (g).
§ 807. The true origin of the jurisdiction is, that there either was
no remedy at all at law, or the legal remedy was inadequate in the
given case. If an interpleader at law would lie in the case, and it
would be effectual for the protection of the party, then the jurisdiction
in equity failed. So, if the party himself, seeking the aid of the court
by bill of interpleader, claimed an interest in the subject-matter, as
well as the other parties, there was no foundation for the exercise
of the jurisdiction; for, in such a case, he ha-d other appropriate
remedies. So, if the plaintiff had lent himself in any way to further
the claims of either party to the fund in controversy, or to aid one in
obtaining possession thereof, to the exclusion of the other, he could
obtain no relief by this bill. For a bill of interpleader always supposed
that the plaintiff was the mere holder of a stake; which was equally
contested by the other parties, and as to which the plaintiff stood
wholly indifferent between them; so that when their respective rights
were settled, nothing further remained in controversy. But that
could never be truly said to be the case, when the plaintiff asserted a
personal right or claim, which remained to be settled between him
and the other parties ; or the plaintiff sought relief in the premises
against either of them {h). The true ground upon which the plaintiff
came into equity was, that, claiming no right in the subject-matter
himself, he was, or might be, vexed by having two legal or other
processes, in the names of different persons, going on against him at
the same time. He came, therefore, into court upon the most obvious
equity, to insist that those persons, claiming that to which he made
no claim, should settle that contest among themselves, and not with
him or at his expense and hazard (;). If their respective titles were

(/) See Metcalf v. Hervey, 1 Ves. Sen. 249.

ig) Moore v. Usher, 7 Sim. 383; Grawshay v. Thornton, 2 M. & Cr. 1; Glyn v.
Duesbury, 11 Sim. 139.
(h) Mitchell v. Hayne, 2 Sm. & Stu. 63 ; Moore v. Usher, 7 Sm. 383.
(i) Langston v. Boylston, 2 Yea. Jun. 109.
§ 806 812.] INTERPLEADER. 345

doubtful, there was so much the more reason why he should not to
harassed by suits to ascertain and fix them; and unless, under such
circumstances, courts of equity afforded him protection, he would, in
almost every event, be a sufferer, however innocent and honourable
his own conduct may have been.
§ 808. In regard to bills of interpleader, it was not necessary, to
entitle the party to come into equity, that the titles of the claimants
should be both purely legal or both purely equitable; it was sufficient
to found the jurisdiction that one title was legal and the other was
equitable (k). Indeed, where one of the claims was purely equitable,
it seemed indispensable to come into equity; for, in such a case, there
could be no interpleader awarded at law (l). Thus, for instance, if a
debt or other claim had been assigned, and a controversy arose between
the assignor and the assignee respecting the title, a bill of interpleader
might have been brought by the debtor, to have the point settled, to
whom he should pay (-m). Where the title of all the claimants was
purely equitable, there was a still broader ground to entertain bills in
the nature of a bill of interpleader; for courts of equity, in virtue of
their general jurisdiction, might grant relief in such cases. Nor was it
necessary (as may be gathered from what has been already said) that
a suit should have been actually commenced by either or both of the
conflicting claimants, against the party, either at law or in equity. It
was sufficient that a claim was made against him, and that he was in
danger of being molested by conflicting rights (n).
§ 809. But in every case of a bill of interpleader, the court, in
order to prevent its being made the instrument of delay or of collusion
with one of the parties, required that an affidavit of the plaintiff
should be made, that there was no collusion between him and any of
the other parties; and, also, if it was a case of money due by him,
that he should bring the money into court; or, at least, should offer to
do so by the bill (o). An affidavit of no collusion was conclusive, the
question could only be raised at the hearing, but where charged, an
undertaking in damages by the plaintiff might be required (p).
§ 812. And here it may be proper to state, that, in the cases of
tenants seeking relief by bill of interpleader, it must have appeared
that the persons claiming the same rent, claimed in privity of contract
or tenure, as in the case of a mortgagor and mortgagee, or of a trustee

(fe) Pons v. Gilham, 9 Coop. Eq. 56; Morgan v. Marsack, 2 Meriv. 107.
(I) Duke of Bolton v. Williams, i Bro. C. C. 309; s.c. 2 Ves. Jun. ]51, 152.
(m) See Wright v. Ward, i Buss. 215 ; Lowndes v. Cornford, 18 Ves. 299.
(n) Langston v. Boylston, 2 Ves. Jun. 107; Morgan v. Marsack, 2 Meriv. 107;
Fairbrother v. Prattent, 5 Price, 303; s.c. Dan. 64, 70; Jones v. Thomas, 2 Sm. &
G. 186.
(o) Dungey v. Angove, 3 Bro. C. C. 36 ; 2 Ves. Jun. 310; Langston v. Boylston,
2 Ves. Jun. 109, 110; Warington v. Wheatstone, Jac. 202.
(p) Dungey v. Angove, 1 Bro. C. C. 36 ; 2 Ves. Jun. 310; Manby v. Robinson,
L. E. 4 Ch. 347.
346 EQUITY JURISPRUDENCE. [CH. XIX.

and cestui que trust ; or, where the estate is settled to the separate use
of a married woman, of which the tenant has notice, and the husband
had been in receipt of the rent. In cases of this sort, the tenant does
not dispute the title of his landlord; but he affirms that title, and the
tenure and contract, by which the rent is payable; and puts himself
upon the mere uncertainty of the person to whom he is to pay the
rent. But if a claim to the rent should be set up by a mere stranger,
under a title paramount, and not in privity of contract or tenure (as,
if the stranger should bring ejectment against the tenant), there
the tenant cannot compel his landlord to interplead with such a
stranger; for it is not a demand of the same nature, or in the same
right. The stranger cannot demand the rent as such, but he has, if
successful in the ejectment, only a right to damages for use and
occupation; whereas the landlord claims the rent, as such, in privity
of contract, tenure, and title. The debt or duty is not the same ; and
interpleader lies only, when it is so, or in privity (g). And the same
principle was applied where the plaintiff had attorned in respect of
goods (r).
§ 813. These last cases may serve as proofs of the truth of the-
remark already made, that equity, in. bills of interpleader, followed to
some extent the analogies of the law; for we have seen that privity
of contract was generally necessary to found a jurisdiction at law in
cases of bailment upon a writ of interpleader. But in many other
respects, the bill of interpleader in equity differed from that of law.
In all the cases above mentioned no interpleader would lie at law ;
for they involved no mutual or joint bailment, and no claim, founded
upon a finding by the plaintiff.
§ 814. What the true limit of the jurisdiction upon bills of inter-
pleader was, in cases where di^erent persons claimed the same
specific chattel or thing from a third person upon the ground of title
as owners, is not a matter, perhaps, settled by the authorities in
a very precise manner. In general, this remedy could be claimed
by persons standing in the situation of mere stakeholders, such as
auctioneers, agents, factors, and consignees, between whom and the
different claimants there was a privity of contract or duty (s) ; but
the agent might be precluded from setting up the title of others by
distinctly recognizing the title of one (t). But this qualification has
ceased to exist by force of the statutory amendment of the law (u).
There does not seem any difficulty, upon principle, in maintaining that
a bill of interpleader may be brought by a stakeholder against three

(g) Dungey v. Angove, 1 Bro. C. C. 36; 2 Ves. Jun. 310, 312; Homan v. Moore,
4 Price, 1.
(r) Grawshay v. Thornton, 2 M. & Cr. 1. See Nicholson v. Knowles, 5 Madd. 47.
(s) Fairbrother v. Prattent, Dan. 64; Hoggart v. Cutis, Or. & P. 197.
(t) Nicholson v. Knowles, 5 Madd. 47; Grawshay v. Thornton, 2 M. & Cr. 1.
(«) Attenborough v. St. Katharine's Doch Go., 3 C. P. D. 450.
§ 813 8246.] INTERPLEADER. 347

persons, each claiming, in a distinct and different right, the same

property, as well as against two persons claiming in the same
manner (x).
§ 821. A bill of interpleader could not be maintained by any person
who did not admit a title in two claimants, and did not also show
two claimants in existence capable of interpleading (y). Thus, a
sheriff, who seized goods in execution, could not sue a bill of inter-
pleader upon account of adverse claims existing to the property ; for, as
to one of the defendants, he necessarily admitted himself to be a
wrongdoer («). It was essential, also, in every bill of interpleader, that
the plaintiff should show that each of the defendants claimed a right,
and such a right as they might interplead for; for otherwise both the
defendants might demur; the one, because the bill showed no claim of
right against him; the other, because the bill, showing no claim of
right in the co-defendant, showed no cause of interpleader (a).
§ 824. But although a bill of interpleader, strictly so called, lay
only where the party applying claimed no interest in the subject-*
matter ; yet there were many cases where a bill, in the nature of a bill
of interpleader, would lie by a party in interest, to ascertain and
establish his own rights, where there are other conflicting rights
between third persons (6). In these cases, the plaintiff sought relief
for himself, whereas in an interpleading bill, strictly so called, the
plaintiff only asked that he might be at liberty to pay the money
or deliver the property to the party to whom it of right belonged, and
might, thereafter, be protected against the claims of both. In the
latter case the only decree to which the plaintiff was entitled, was a
decree that the bill was properly filed; or, in other words, that he
should be at liberty to pay the rnoney, or bring the property into
court, and have his costs, and that the defendants interplead, and
settle the conflicting claims between themselves.
§ 824b. Interpleader is now regulated by the Rules of the
Supreme Court, 1888, Ord. LVII. The Order enacts as follows: —
1. Relief by way of interpleader may be granted (a) Where the
person seeking relief (in this Order called the applicant) is under
liability for any debt, money, goods, or chattels (c), for or in respect
(*) Hoggart v. Cutis, 1 Or. & Phil. 197.
(y) East and West India Dock Co. v. Littledale, 7 Hare, 57;. Desborough v,
Harris, 5 De G. M. & G. 439. As to the latter decision, see 59 Vict. c. 8.
(z) Slingsby v. Boulton, 1 Ves. & B. 334. But a bill by the sheriff against the
execution creditor and the assignee in bankmptcy of the execution debtor was main-
tained in Child v. Mann, 3 Eq. 806, and since the 1 & 2 Will. 4, c. 58, he has had
the right to interplead. See infra, § 824b.
(a) The language of the Common Law Commissioners, in the Eeport to Parlia-
ment, March, 1830, p. 24, is : " The only course now resorted to for the relief of a
person sued, or in danger of being sued, by several claimants, is that of filing a bill
to compel the parties, by the authority of a court of equity, to interplead at law."
(b) Vyvian v. Vyvian, 4 De G. F. & J. 183.
(c) In Robinson v. Jenkins, 24 Q. B. D. 275, it was held that shares are chattels
and can be the subject of interpleader.
348 EQUITY JURISPRUDENCE. [CH. XIX.

of which he is, or expects to be, sued by two or more parties (in

this Order called the claimants) making adverse claims thereto;
(b) Where the applicant is a sheriff or other officer charged with the
execution of process by or under the authority of the High Court,
and claim is made to any money, goods, or chattels taken or intended
to be taken in execution imder any process, or to the proceeds or
value of any such goods or chattels by any person other than the
person against whom the process issued. 2. The applicant must
satisfy the court or a judge, by affidavit or otherwise — (a) That the
applicant claims no interest in the subject-matter in dispute, other
than for charges or costs; and (b) That the applicant does not collude
with any of the claimants; and (c) That the applicant is willing to
pay or transfer the subject-matter into court, or to dispose of it as the
court or a judge may direct. 3. The applicant shall not be disentitled
to relief by reason only that the titles of the claimants have not a
common origin, but- are adverse to and independent of one another.
§ 825 826. ] BILLS QUIA TIMET. 349

CHAPTER XX.
BILLS QUIA TIMET.

§ 825. In the next place, let us proceed to the consideration of another

class of cases, where the peculiar remedies administered by courts of
equity constitute the principal, although not the sole, ground of
jurisdiction, and that is. Bills Quia timet (a). We have already
had occasion, in another place, to explain, in some measure, the
nature of these bills and the origin of the appellation, and to show
their application to cases of covenants and contracts with sureties
and" others, where a specific performance is necessary to prevent future
mischief. They are called (as we have seen) Bills Quia timet, in
analogy to certain writs of the common law, whose objects are of a
similar nature. Lord Coke has explained this matter very clearly in
his Commentary on Littleton. " And note " (says he) " that there
be six writs in law that may be maintained. Quia timet, before any
molestation, distress, or impleading. As, (1) A man may have a Writ
of Mesne (whereof Littleton here speaks) before he be distrained ; (2) A
Warrantia chariee, before he be impleaded ; (3) A Monstraverurd, before
any distress or vexation; (4) An Audita querela, before any execution
sued ; (5) A Curia claudenda, before any default of inclosure ; (6) A Ne
injuste vexes, before any distress or molestation. And these be called
Brevia anticipantia, writs of prevention (6).
§ 826. Now, bills in equity, Quia timet, answer precisely to this
latter description. They are in the nature of writs of prevention, to
accomplish the ends of precautionary justice. They are, ordinarily,
applied to prevent wrongs or anticipated mischiefs, and not merely
to redress them when done. The party seeks the aid of a court of
equity, because he fears {quia timet) some future probable injury to
his rights or interests, and not because an injury has already occurred,
which requires any compensation or other relief. The manner in

(o) Ante, § § 701 to 710, 730. See also 1 Mad. Ch. Pr. 178, 179; Vin. Abr. tit.
Quia timet, A. and B. ofThese would now take the form of an action in the Chancery-
Division in the nature a bill Quia timet.
(b) Co. Litt. 100 a. The writ of Audita querela was abolished by Order XLII.
s. 22, of the Judicature Act, 1873, but by the same section it was provided that any
party against whom judgment has been given might apply to the court for a stay of
execution or other relief against such judgment on the ground of facts which have
arisen too la.te to be pleaded, and such relief may be given as to the court shall seem
fit.
350 EQUITY JURISPRUDENCE. [CH. XX.

which this aid is given by courts of equity is, of course, dependent

upon circumstances. They interfere sometimes by the appointment
of a receiver to receive rents or other income, sometimes by an order
to pay a pecuniary fund into court, sometimes by directing security
to be given, or money to be paid over, and sometimes by the mere
issuing of an injunction or other remedial process, thus adapting their
relief to the precise nature of the particular case and the remedial
justice required by it. In Fletcher v. Bealey (c), Mr. Justice Pearson
explained the law as to actions Quia timet as follows: — " There are at
least two necessary ingredients for a Quia timet action. There must,
if no actual damage is proved, be proof of imminent danger, and
there must also be proof that the apprehended damage will, if it
comes, be very substantial. I should almost say it must be proved
that it will be irreparable, because, if the danger is not proved to be
so imminent that no one can doubt that, if the remedy is delayed the
damage will be suffered, I think it miost be shown that, if the damage
does occur at any time, it will come in such a way and under such
circumstances that it wiU be impossible for the plaintiff to protect
himself against it if relief is denied to him in a Quia tim,et action.
§ 827. In regard to equitable property, the jurisdiction is equally
applicahle to cases where there is a present right of enjoyment, and
to oases where the right of enjoyment is future or contingent. The
object of the bill in all such cases is to secure the preservation of the
property to its appropriate uses and ends ; and wherever there is
danger of its being converted to other purposes, or diminished, or
lost by gross negligence, the interference of a court of equity .becomes
indispensable. It will, accordingly, take the fund into its own hands,
or secure its due management and appropriation, either by the agency
of its own officers or otherwise. Thus, for instance, if property in the
hands of a trustee for certain specific uses or trusts (either expressed
or implied) is in danger of being diverted or squandered to the injury
of any claimant having a present or future fixed title thereto, the
administration will be duly secured by the court, according to the
original purposes, in such a manner as the court may, in its discretion,
under all the circumstances, deem best fitted to the end; as by the
appointment of a receiver, or by payment of the fund, if pecuniary,
into court, or by requiring security for its due preservation and
appropriation.
§ 828. The same principle is applied to the cases of executors and
administrators, who are treated as trustees of the personal estate of
the deceased party. If there is danger of waste of the estate, or-
collusion between the debtors of the estate and the executors or
administrators, whereby the assets may be subtracted, courts of equity
(c) 28 Ch. D. 688; see p. 698. In this case, applying the above rule, the claim
for an injunction was dismissed, but without prejudice to the right of the plaintiff to
bring another action in case of actual injury or imminent danger.
§ 827—830.] BILLS QUIA TIMET. 351

will interfere and secure the fund; and, in case of collusion with
debtors, they wiU order the latter if parties to the suit to pay the
amount of their debts into court (d). Or they may appoint a
receiver (e).
§ 829. The appointment of a receiver, when directed, is m^ade for
the benefit and on behalf of all the parties in- interest, whether parties
to the suit or not, and not for the benefit of the plaintiff or of one
defendant only (/). It may be granted in any case of equitable property,
upon suitable circumstances. Thus, where there are creditors,
annuitants, and others, some of whom are creditors at law, claiming
under judgments, and others are creditors claiming upon equitable
debts ; if the property be of such a nature that, if legal, it may be taken
in execution, it may, if equitable, be put into the possession of a
receiver, to hold the same, and apply the profits, under the direction of
the court, for the benefit of all the parties, according to their respec-
tive rights and priorities (g). The same rule applies to cases where
the property is legal, and judgment creditors have taken possession
of it under prior writs of execution; for it is competent for the court
to appoint a receiver in favour of annuitants and equitable creditors,
not disturbing the just prior rights, if any, of the judgment credi-
tors (h). Hence, the appointment of a receiver, in cases of this sort, is
often called an equitable execution. But in a very late case (i) it was
held by the Court of Appeal that the use of the term " equitable
execution " tends to error. What a person obtains " by the appoint-
ment of a receiver, is not execution, but equitable relief, which is
granted on the ground that there is no remedy by execution at law;
it is a taking out of the way a hindrance which prevents execution at
common law."
§ 830. It has been said that the general rule of equity, to appoint
a receiver for an equitable creditor against a person having an equit-
able estate, without prejudice to persons who have prior estates, is to
be understood in this limited sense, that it is to be without prejudice
to persons having prior legal estates, and so that it will not prevent
their proceeding to obtain possession from the court if they think
proper. And, with regard to persons having prior equitable estates,

(d) Manton v. Manton, 40 L. J. Ch. 93; In re Beeny, Ffrench v. Sproston,

[1894] 1 Ch. 499; ante, § § 422, 423, 424, 581, and note; post, § 836.
(e) Bainbrigge v. Blair, 3 Beav. 421.
(/) Davis y. Duke of Marlborough, 1 Swanst. 83 ; s.c. 2 Swanst. 123 ; Neate v.
Pink, 3 Mao. & G. 476 ; Harris v. Beauchamp, [1894] 1 Q. B. 801.
(g) Anglo-Italian Bank v. Davies, 9 Ch. D. 275; Smith v. Cowan, 6 Q. B. D. 75;
Searle v. Choat, 25 Ch. D. 723.
(h) Davis v. Duke of Marlborough, 1 Swanst. 83; s.c. 2 Swanst. 125, 135, 139,
140, 141, 145, 173; White v. Bishop of Peterborough, 3 Swanst. 117, 118.
(i) In re Shephard, Atkins v. Shephard, 431 Ch. D. 131, per Cotton, L. J., at p.
135. In that case it was held that a receiver could not be appointed of the equitable
estate of a judgment debtor, who was dead at the time the order for a receiver was
made, in the absence of any person to represent his estate.
352 EQUITY JURISPRUDENCE. [CH. XX.

the court will take care, in appointing a receiver, not to disturb their
prior equities; and, for that purpose, it will direct inquiries to deter-
mine the priorities among equitable incumbrancers, permitting legal
creditors to act against the estates at law, and settling the priorities of
equitable creditors (fc).
§ 831. The appointment of a receiver is a rnatter resting in the
sound discretion of the court and the power conferred upon the Supreme
Court by the Judicature Act, 1873, s. 25, sub-s. 8, wherever it is just
or convenient to do so, has not altered the principles upon which the
court of chancery formerly acted (l). The receiver, when appointed, is
treated as virtually an officer of the court, and subject to its orders (m).
Lord Hardwicke considered this power of appointment to be of
great importance, and m.ost beneficial tendency ; and he significantly
said: "It is a discretionary power, exercised by the court, with as
great utility to the subject as any authority which belongs to it; and
it is provisional only, for the more speedy getting in of a party's estate,
and securing it for the benefit of such person who shall appear to be
entitled; and it does not at all affect the right " (n).
§ 832. The exercise of the power being thus discretionary, it would
be difficult, with any precision, to mark out the limits within which
it is ordinarily circumscribed, even if such a task were within the scope
of these Commentai-ies. As, however, the equitable rights and inci-
dents to such an appointment are often highly important to the parties
in interest, and may affect the rights and remedies of third persons
having adverse claims, it will be proper in this place to state some of
the principles by which this discretion is regulated.
§ 838. Before doing so, it may not be without use to suggest what
some of those rights and incidents are; and the more so, as similar
rights and incidents belong to cases of sequestration (o). In the first
place, upon the appointment of a receiver of the rents and profits of
real estate, if there are tenants in possession of the premises, they are
compellable to attorn; and the court thus becomes virtually, pro hdc
vice, the landlord (p). In the next place, the appointment of such a
receiver is generally deemed to entitle him to possession of the pre-
mises. It does not, indeed, in all cases, amount to a turning of the
other party out of possession ; for, in many cases, as in the case of an
infant's estate, the receiver's possession is that of the infant. But
where the rights are adverse in the different parties in the suit, the
possession of the receiver is treated as the possession of the party who

(fc) Lord Eldon, in Davis v. Duke of Marlborough, 2 Swanst. 145, 146; Searle v,
Choat, 25 Ch. D. 723.
(I) Harris v. Beauchamp, [1894] 1 Q. B. 801.
(m) Angel v. Smith, 9 Vee. 335 ; Hutchinson v. Massareene, 2 Ball & Beat. 55.
(n) Skip v. Harwood, 3 Atk. 564.
(o) Angel v. Smith, 9 Ves. 338. See In re Hoare, Hoare v. Owen, [1892] 3
Ch. 94.
(p) Sharp V. Carter, 3 P. Will. 379.
§ 831 835.] BILLS QUIA TIMET.. 353

ultimately establishes his right to it. The receiver, however, cannot

proceed in any ejectment against the tenants of any estate, except
by the authority of the court (q). Nor will the possession of the
tenants be ordinarily disturbed by the court, where a receiver is
appointed;
§ 833 a. In the next place, a receiver, when in possession, has very
little discretion allowed him ; but he must apply, from time to time,
to the court for authority to do such acts as may be beneficial to the
estate. Thus, he is not at liberty to bring or to defend actions ; or to
let the estate ; or to lay out money ; unless by the special leave of the
court (r). In the next place, when such a receiver is in possession,
under the process or authority of the court, in execution of a judg-
ment or order, his possession is not to be disturbed, even by an eject-
ment under an adverse title, without the leave of the court. For his
possession is deemed the possession of the court; and the court will
not permit itself to be made a suitor in a court of law (s). The proper
and usual mode adopted under such circumstances, is, for the party,
claiming an adverse interest, to apply to be permitted to intervene pro
interesse s-uo. He is then allowed to enforce his rights (if any) accord-
ing to the evidence which he adduces (t).
§ 834. Let us now proceed to consider some of the cases, in which
a receiver will be appointed. We have already seen, that, in cases
of elegit and conflicting legal equitable debts and charges upon the
estate, it is a common course to appoint a receiver, for the benefit of
all concerned (u). In cases, also, where an estate is held by a party,
under a title obtained by fraud, actual or constructive, a receiver will
be appointed (x). And also where the interest of a judgment debtor
is not legal, but equitable. In this case the appointment of a receiver
acts as an equitable execution (y).
§ 835. But it is not infrequent for a bill Quia timet to ask for the
appointment of a receiver against a party who is rightfully in posses-
sion, or who is entitled to the possession of the fund, or who has an
interest in its due administration. In such cases, courts of equity
will pay a just respect to such legal and equitable rights and interests
of the possession of the fund, and will not withdraw it from him by
the appointment of a receiver, unless the facts, averred and established
in proof, show that there has been an abuse, or is danger of abuse, on

(g) Wynn v. Lord Newborough, 3 Bro. C. C. 88; s.c. 1 Ves. Jun. 164.
(r) Bristowe v. Needham, 2 Ph. 170; Viola v. Anglo-American Cold Storage Co.,
[1912] 2 Ch. 306.
(s) Angel v. Smith, 9 Ves. 335; Russell v. East Anglian Ry., 3 Mac. & G. 104.
(t) Searle v. Ghoat, 26 Ch. D. 723.
(u) Ante, § 829.
(x) Huguenin v. Baseley, 13 Ves. 105; Stilwell v. Wilkins, Jac. 280.
iy) Hatton v. Haywood, L. E. 9 Ch. 229; Anglo-Italian Bank v. Davies, 9 Ch.
D. 275 ; Ex parte Watkins, 11 Ch. D. 691 ; 13 Ch. D. 262 ; Ex parte Evans, 13 Ch. D.
252; Smith v. Cornell, 6 Q. B. D. 75; Fuggle v. Bland, 11 Q. B. D. 711.
E.J. 23
354 EQUITY JURISPRUDENCE. [CH. XX.

his own part. For the rule of such courts is not to displace a bond fide
possessor from any of the just rights attached to his title, unless there
be some equitable ground for interference (z).
§ 836. This principle may be easily illustrated in the common case
of executors and administrators. They are by law entrusted with
authority to collect and administer the assets of the deceased party;
and courts of equity will not interfere with their management and
administration of such assets upon slight grounds. Whenever, there-
fore, the appointment of a receiver is sought against an executor or
administrator, it is necessary to est-ablish by suitable proofs, that there
is some positive loss, or danger of loss, of the funds; as, for instance,
soma waste or misapplication of the funds, or some apprehended danger
from the bankruptcy, insolvency, or personal fraud, misconduct, or
negligence of the executor or administrator (a). If there be a solvent
executor, no appointment will be made (b). Mere poverty of the party
will not, of itself, constitute a sufficient ground; but there must be
other ingredients to justify the appointment (c).
§ 837. So, where there are several incumbrances on an estate, as
the first incumbrancer is entitled to the possession of the estate and
the receipt of the rents and profits, a court of equity will not deprive
him of such possession and profits unless upon sufficient cause shown.
But if the first incumbrancer is not in possession, and does not desire
it; or if he has been paid off; or if he refuses to receive what is due
to him; there a receiver may be appointed upon the application of a
subsequent incumbrancer. But in all cases of this sort, where the
court acts in favour of subsequent incumbrancers, it is cautious, in
thus interfering, not to disturb any prior rights or equities ; and there-
fore, before it acts finally, it will endeavour to ascertain the priorities
and equities of all the incumbrancers ; and then it will apply the funds,
which are received, according to such priorities and equities, in case
the incumbrancers entitled thereto shall make a seasonable applica-
tion for the purpose {d).
§ 888. So, where the tenants of particular estates for life, or in
tail, neglect to keep down the interest due upon incumbrances upon
the estates, courts of equity will appoint a receiver to receive the rents
and profits, in order to keep down the interest; for this is but a mere
act of justice to the incumbrancers, and also to those who may be
otherwise interested in the estates (e). But here, again, it is to be
(«) Tyson v. Fairclough, 2 Sim. & St. 142; Carrow v. Ferrior, L. E. 3 Ch. 719;
Foxwell V. Van Grutten, [1897] 1 Ch. 64.
(a) In re Johnson, L. E. 1 Ch. 325; In re Hopkins, Dowd v Hawkin, 19 Ch D
61.
(b) Bowen v. Phillips, [1897] 1 Ch. 174.
(c) Anon., 12 Ves. 4; Howard v. Papera, 1 Madd. 142.
(d) White V. Bishop of Peterborough, 3 Swanst. 109; Berney \. Sewell,! J. &W.
647 ; Wood v. Rowe, 2 J, & W. 554 ; Langton v. Langton, 7 De G. M. & G. 30.
(e) Giffard v. Hart, 1 Sch. & Lefr. 407, note; Bertie v. Lord Abingdon, 3 Meriv
560.
§ 836 — 842.] BILLS QUIA TIMET. 355

remembered, that the court will not force incumbrancers to receive

their interest; and, therefore, if they would avail themselves of the
privileges of receiving the interest, they must make a seasonable appli-
cation for the purpose (/).
§ 839. But although courts of equity will not appoint a receiver,
except upon special grounds, justifying such an interference in the
nature of a bill Quia timet ; yet there are cases in which it will inter-
pose, and require money to be paid into court by a party who stands
in the relation of a trustee to the property, without any ground being
laid to show that there has been any abuse or any danger to the fund.
Thus, in eases of bills brought by creditors, or legatees, or distributees,
against executors or administrators, for a settlement of the estate, if
the executors or administrators admit assets in their hands, and the
court takes upon itself a settlement of the estate, it will direct the
assets to be paid into court {g).
§ 840. The like doctrine has been applied to cases where an execu-
tor or administrator has lodged funds of the estate in the hands of a
banker, avowedly as assets. In such cases, upon the application of a
party in interest, as, for instance, of a creditor or a legatee, the banker
will be directed to pay the money into court; for it is a rule in equity
to follow trust-money whenever it may be found in the hands of any
person who has not prima facie a right to hold it, and to order him to
bring it into court (h).
§ 841. The general rule, upon which courts of equity proceed in
requiring money to be paid into court, is this, that the party, who is
entitled to the fund, is also entitled to have it secured. And this rule
is equally applicable to cases where the plaintiffs, seeking the payment,
are solely entitled to the whole fund, and to cases where they have
acquired such an interest in the whole fund, together with others, as
entitles them, on their own behalf and the behalf of others, to have
the sum secured in court. Now, this is precisely the case in what is
commonly called a creditor's action for the administration of an
estate (i).
§ 842. And courts of equity will, in cases of this sort, not only
order money to be paid into court, but they will also direct that papers
and writings in the hands of executors and administrators shall be
deposited in court, for the benefit of those interested, unless there are
other purposes which require that they should be retained in the hands
of the executors or administrators (k).

if) Gvesley v. Adderley, 1 Swanst. 573; Thomas v. Brigstoeke, i Euss. 64;

Flight V. Camac, 25 L. J. Ch. 654.
(g) Freeman v. Fairlie, 3 Mer. 29 ; Neville v. Matthewman, [1894] 3 Ch. 345.
(h) See Bowsher v. Watkins, 1 Eusb. & Myl. 277; Gedge v. Trail, 1 Euss. & Myl.
281, note; Law v. Law, 2 Coll. 41.
(i) Ante, § § 543, 544, 546.
(k) Freeman v. Fairlie, 3 Meriv. 29, 30.
356 EQUITY JURISPRUDENCE. [CH. XX.

§ 843. The preceding remarks are principally (but not exclusivesly)

applicable to cases of equitable property, whether the right of enjoy-
ment thereof be present, future, or contingent. In regard to legal
property, it is obvious that, where the right of enjoyment is present,
the legal remedies will be generally found sufficient for the protection
and vindication of that right. But where the right of enjoyment is
future or contingent, the party entitled is often without any adequate
remedy at law for any injury which he may in the meantime sustain
by the loss, destruction, or deterioration of the property in the hands
of the party who is entitled to the present possession of it. Thus,
for instance, if personal property should be given by a will to A. for
life, and after his death to B., there is, as we have seen, at law, no
remedy to secure the legacy to B., whether it be of specific chattels,
or of a pecuniary nature (l).
§ 844. Indeed, by the ancient common law, there coxild in general
be no future right of property, created in personal goods and
chattels, to take place in expectancy; for they were considered to be
of so transitory a nature, and so liable to be lost, destroyed, or other-
wise impaired, that future interests in them were not, in the law,
treated as of any account (m). One exception was permitted, at an
early period, as to goods and chattels given by will in remainder, after
a bequest for life. But that was at first allowed only where the use
of the goods or chattels, and not the goods or chattels themselves, was
given to the first legatee ; the property being supposed to continue
all the time in the executor of the testator (n). That distinction has
since been disregarded ; and the limitation in remainder is now equally
respected, whether the first legatee takes the use, or the goods and
chattels themselves for life (o).

(I) Ante, § 603; 1 Bq. Abr. 360, pi. 4.

(m) 2 Black. Comm. 398; 1 Eq. Abr. 360, pi. 4; Fearne on Conting. Bern, by
Butler (7th edit.), pp. 401 to 407, 413, 414.
(n) 2 Black. Comm. 398; Hyde v. Parrat, 1 P. Will. 1, and caees there cited;
Tissen v. TUsen, 1 P. Will. 502.
(o) 2 Black. Comm. ; Anon., 2 Preem. 145, 206; Hyde v. Parrat, 1 P. Will. 1, 6;
Vpwell V. Halsey, 1 P. Will. 651; Vachel v. VacheJ, 1 Ch. Cas. 129, 130; Foley v.
Burnell, 1 Bro. C. C. 274, 278; Co. Litt. 20 (o), Harg. note (5); Fearne on Conting.
Eem. and Exec. Dev. (7th edit.), by Butler, pp. 401 to 407. This subject is discussed
very much at large in Mr. Fearne's Essay on Contingent Bemainders and Executory
Devises, from pp. 401 to 407 (7th edit.), by Butler. There is in the same work a very
valuable discussion upon the rights of the tenant for life in the goods and chattels,
and how far the same may be taken in execution by his creditors. The result of the
whole discussion seems to be, that the creditors cannot subject the property to their
claims beyond the rights of the tenant for life therein.- Mr. Fearne seems to consider
that the validity of the executory dispositions of personal chattels (i.e., in remainder
after a life estate) was originally founded, and still rests, on the doctrine and inter-
position ofcourts of equity. But he admits, that in chattels real the right is recog-
nized at law. Fearne on Conting. Eem. pp. 412, 413 (7th ed.) ; Matthew Manning's
Case, 8 Co. 95; Lampet's Case, 10 Co. 47; post, § 847, note; Bac. Abr. Uses and
Trusts, G. 2, p. 109 (Gwillim's edit.); Wright v. Cartwright, 1 Burr. 282. See In re
Smith's Will, 20 Beav. 197.
§ 843 849.] BILLS QUIA TIMET. 357

§ 845. In all cases of this sort, where there is a future right of

enjoyment of personal property, courts of equity will now interpose
and grant relief upon a bill Quia, timet, where there is any danger of
loss or deterioration, or injury to it, in the hands of the party who is
entitled to the present possession. We have already had occasion to
take notice of the manner in which this remedial jurisdiction is applied
in oases of legacies, whether pecuniary or specific, and whether vested
or contingent (p). The same doctrine is applied to cases of annuities,
charged on the personal estate (g).
§ 846. The same remedial justice wiU be applied to other cases, as
well as to legacies and personal annuities. Thus, for instance, where
a future interest in personal property is assigned by the owner to his
creditors, the latter may come into a court of equity to have the pro-
perty secured to their future use (r). On one occasion of this sort.
Lord Hardwicke said, that nothing was better settled than that,
" whenever a demand was made, out of assets certainly due, but pay-
able at a future time, the person entitled thereto might come against
the executor to have it secured for his benefit, and set apart in the
meantime, that he might not be obliged to pursue those assets through
several hands." Nor is there any ground for the distinction taken
between a legacy afed a demand by contract (s).
§ 847. Upon the same ground, where, under marriage articles, the
plaintiff, in case she survived her husband, had a contingent interest
in certain South Sea Annuities, and a certain promissory note, which
was specifically appointed for the payment of the same, to be allowed
her, and the defendant had threatened to aliene the property and
securities, on a bill Quia timet, a decree was made, that the defendant
should give security to have the same forthcoming (t).
§ 848. So, where a party, seised of lands in fee, grants a rent-
charge in fee, issuing thereout, and afterwards devises the lands to
A. for life, with remainder to B. in fee, B. may maintain a bill Quia •
timet, to compel A. to pay the arrears during his life, for fear that
otherwise the whole would fall on his reversionary estate (m). And
the like principle would apply, undeu like circumstances, to a legacy,
payable in futuro, and chargeable on land, to compel the tenant for
life to pay or secure a proportion of the legacy (as).
§ 849. Another case of the apphcation of the remedial justice of
courts of equity by a bill of Quia timet is in cases of sureties of debtors

(p) Ante, § 603, 604; Fearne on Conting. Kem. p. 413 (7th edit.), by Butler;
id. p. 414.
(g) Batten v. Earnley, 2 P. Will. 163; Slanning v. Style, 3 P. Will. 336, 837.
(r) Johnson v. Mills, 1 Ves. Sen. 282, 288.
(s) Ibid.
(t) Flight V. Cook, 2 Ves. Sen. 619. This doctrine is discussed at large in Eq.
Abr. 360, pi. 4. See also Fearne on Cont. Bern. pp. 401 to 415 by Butler; Bac. Abr.
Uses and Trusts, G. 2; and ante, § § 843, 844.
(u) Hayes v. Hayes, 1 Ch. Cas. 223. {x) Ibid.
358 EQUITY JURISPRUDENCE. [CH. XX.

and others. We have already seen, that if a surety, after the debt
has become due, has any apprehension of loss or injury from the delay
of the creditor to enforce the debt against the principal debtor, he may
bring an action of this sort to compel the debtor to discharge the debt
or other obligation, for which the surety is responsible (y). Nay, it
has been insisted (as we have also seen) that the surety may come into
equity, and compel the creditor to sue the principal, and collect the
debt from him in discharge of the surety, at least, if the latter will
xmdertake to indemnify the creditor for the risk, delay, and expense
of the suit.
§ 851. There are other cases, where a remedial justice is applied
in the nature of bills Quia timet, as where courts of equity interpose
to prevent the waste, or destruction, or deterioration of property,
pendente lite, or to prevent irreparable mischief. But these cases will
more properly come under review in our subsequent inquiries in
matters of injunction.

(y) Ante, § § 327, 330, 639, 722, 729.

§ 851 — 853.] BILLS OF PEACE. 359

CHAPTER XXI.
BILLS OF PEACE.

§ 852. We come, in the next place, to the consideration of what are

technically called Bills of Peace (a). These bills sometimes bear a
resemblance to bills Quia, timet (b), which latter (as has beeji already
stated) seem to have been founded upon analogy to certain proceed-
ings at the common law. Quia timet. Bills Quia timet, however, are
quite distinguishable from the former in several respects, and are
always used as a preventive process, before a suit is actually instituted;
whereas bills of peace, although sometimes brought before any suit is
instituted to try a right, are most generally brought after the right
has been tried at law. It is not my design, in this place, to enter upon
the subject of the cases generally, in which courts of equity will decree
a perpetual injunction ; for that will more properly be examined under
another head; (c) but simply to treat of bills seeking an injunction,
and strictly falling under the denomination of bills of peace.
§ 853. By a bill of peace we are to understand a bill brought by
a person to establish and perpetuate a right which he claims, and
which, from its nature, may be controverted by different persons, at
different times, and by different actions; or, where separate attempts
have already been unsuccessfully made to overthrow the same right,
and justice requires that the party should be quieted in the right, if
it is already sufficiently established ; or if it should be sufficiently
established under the direction of the court. The obvious design of
such a bill is to procure repose from perpetual litigation, and, there-
fore, it is justly called a bill of peace. The general doctrine of public
policy, which, in some form or other, may be found in the jurisprudence
of every civilized country, is, that an end ought to be put to litigation,
and, above all, to fruitless litigation: Interest reipublicse ut sit finis
litium. If suits might be perpetually brought to litigate the same
questions between the same parties, or their privies, as often as either
should choose, it is obvious that remedial justice would soon become
a mere mockery ; for the termination of one suit would only become
the signal for the institution of a new one ; and the expenses might

(o) Co. Litt. 100 (a). Since the Judicature Act it would be called an action in
the nature of a bill of peace, and could be brought either in the Chancery Division o-
in the Queen's Bench Division of the High Court.
(b) Ante, § 825. (c) Post, § § 873 to 968.
360' EQUITY JURISPRUDENCE. [CH. XXI.

become ruinous to all the parties. The obvious ground of the jurisdic-
tion of courts of equity, in cases of this sort, is to suppress useless
litigation, and to prevent multiplicity of suits.
§ 854. One class of cases, to which this remedial process pro-
perly applied was, where there was one general right to be established
against a great number of persons. And it might be resorted to, either
where one person claims or defends a right against many, or where
many claim or defend a right against one (d). In such cases, courts of
equity interposed in order to prevent multiplicity of suits (e); for, as
each separate party might sue, or might be sued, in a separate action
at law, and each suit would only decide the particular right in question
between the plaintiff and defendant in that action, litigation might
become interminable. Courts of equity, therefore, having a power to
bring all the parties before them, would at once proceed to the ascer-
tainment ofthe general right ; and, if it be necessary, they would ascer-
tain it by an action or issue at law, and then make a decree finally
binding upon all the parties (/).
§ 855. Bills of this nature may be brought by a lord against tenants
for an encroachment under colour of a common right; or by tenants
against the lord for disturbance of a common right; by a party in
interest to establish a toll due by a custom ; by a like party to establish
the right to profits of a fair, there being several claimants ; by a lord
to establish an inclosure, which he has approved under the statute of
Merton, and which his tenants throw down, although sufficient
common of pasture is left {g).
§ 856. So, where a party has possession, and claims a right of
fishery for a considerable distance on the river, and the riparian pro-
prietors set up several adverse rights; he may have a bill of peace
against all of them to establish his right, and quiet his possession (h).
So, a bill of peace will lie to settle the amount of a general fine to be
paid by all the copyhold tenants of a manor. So, it will lie to establish
a right of common of the freehold tenants of a manor (('). So, it will
(d) Sheffield Watenoorks v. Yeomanjr, L. E. 2 Ch. 8; Phillips v. Hudson, L. E.
2 Ch. 243.
(e) Elme Hospital v. Andover, 1 Vern. 266; Hanson v. Gardiner, 7 Ves. 309, 310;
Ware v. Horwood, 14 Ves. 32, 33; Dilley v. Doig, 2 Ves. Jun. 486; Cooper, Eq. PI.
Introd. p. xxxiv.
(/) Lord Tenham v. Herbert, 2 Atk. 483, 484. Under Bolt's Act (25 & 26 Vict,
u. 42), courts of equity were given power to determine the right themselves.
(3) How V. Tenants of Bromsgrove, 1 Vern. 22; Elme Hospital v. Andover, 1
Vern. 266; Pawlet v. Ingres, 1 Vern. 308; Brown v. Vermuden, 1 Ch. Gas. 272; Budge
V. Hopkins, 2 Eq. Abr. p. 170, pi. 27 ; Conyers v. Abergavenny , 1 Atk. 284, 286 ; Poor
V. Clark, 2 Atk. 615; Weekes v. Slake, 2 Vern. 301; Arthington v. Fawkes, 2 Vern.
356 ; Corporation of Carlisle v. Wilson, 13 Ves. 279 ; 280 ; Hanson v. Gardiner, 7 Ves.
305, 309, 310; Duka of Norfolk v. Myers, 4 Mad. 60, 117.
(h) Mayor of Yorkv. Pilkington, 1 Atk. 282; Tenham v. Herbert, 2 Atk. 483.
See New River Company V. Greaves, 2 Vern. 431, 432.
(j) Middleton v. Jackson, 1 Ch. 18 (33) ; Popham v. Lancaster, 1 Ch. 96 ; Cowper
V. Clerk, 3 P. Will. 167; Powell v. Powis, 1 Y. & Jer. 159.
§ 854 — 859.] BILLS OF peace. 361

lie to establish a duty, claimed by a municipal corporation against

many persons, although there is no privity between them (fe).
§ 857. But to entitle a party to maintain a bill of peace, it must
be clear that there is a right claimed, which affects many persons, and
that a suitable number of parties in interest are brought before the
court; for, if the right is disputed between two persons only, not for
themselves and all others in interest, but for themselves alone, the
bill will be dismissed ; for it cannot then conclude any persons but the
very defendants (I).
§ 858. It seems, too, that courts of equity will not, upon a bill of
this nature, decree a perpetual injunction for the establishment or the
enjoyment of a right of a party, who claims in contradiction to a public
right; as if he claims an exclusive right to a highway, or to a common
navigable river, or an exclusive right to a rope-ferry across a river;
for it is said, that this would be to enjoin all the people of the state or
country {m). But the true principle is, that courts of equity will not,
in such cases, upon principles of public policy, intercept the assertion
of public rights.
§ 859. Another class of cases to which bills of peace were ordinarily
applied, is, where the plaintiff had, after repeated and satisfactory
trials, established his right at law ; and yet was in danger of further
litigation and obstruction to his right from new attempts to controvert
it. Under such circumstances, courts of equity would interfere, and
grant a perpetual injunction to quiet the possession of the plaintiS,
and to suppress future litigation of the right (n). This exercise of
jurisdiction was formerly much questioned. Lord Cowper, in a cele-
brated case, where the title to land had been five several times tried
Ln an ejectment, and five verdicts given in favour of the plaintiff, re-
fused to sustain the jurisdiction for a perpetual injunction; and said
that the application was new, and did not fall under the general notion
of a bill of peace, and this was only a suit between A. and B., and one
man is able to contend against another. But his decision was over-
ruled by the House of Lords, and a perpetual injunction was decreed,
upon the ground that it was the only adequate means of suppressing
oppressive litigation and irreparable mischief (o). And this doctrine
has ever since been steadily adhered to. However, courts of equity

(k) City of London v. Perkins, i Bro. Pari. C. 157, 1 Mad. Pr. Ch. 138, 139;
Mayor of York v. Pilkington, 1 Atk. 284; Lord Tenham v. Herbert, 2 Atk. 483, 484.
(l) Disney v. Robertson, Bunb. 41; Cowper v. Clerk, 3 P. Will. 15; Welby v.
Duke of Rutland, 3 Bro. Pari. C. 575; Weller v. Smeaton, 1 Bro. C. C. 672; Baker
V. Rogers, 2 Eq. Abr. 171, pi. 2; Select Gas. in Ch. 74, 75.
(m) 1 Mad. Pr. Ch. 139; Hilton v. Lord Scarborough, 2 Eq. Abr. 171, pi. 2.
But a ferrynian, having an exclusive right of ferriage, may bring a bill of peace
against those infringing his privilege. Letton v. Gooden, 2 Eq. 123.
(n) See Com. Dig. Chancery, D. 13; Earl of Bath v. Sherwin, Prec. Ch. 261;
B.C. 10 Mod. 1.
(o) Earl of Bath v. Sherwin, Prec. Ch. 261; s.c. 10 Mod. 1; s.c. 2 Bro. Pari. C.
217; Leighton v. Leightm, 1 P. Will. 671, 672.
362 EQUITY JURISPRUDENCE. ■ [CH. XXI.

would not interfere in such cases before a trial at law; nor until the
right had been satisfactorily established at law. But if the right were
satisfactorily established, it was not material what number of trials
had taken place, whether two only, or more (p).
§ 860. These seem to be the only classes of cases in which bills of
peace, technically so called, will lie. But there are other cases bear-
ing a close analogy to them, in which a like relief is granted; as, for
instance, cases of confusion of boundaries, which, however, require
some superinduced equity; and cases of quit-rents, where the remedy
at law is either lost or deficient. Cases of mines aad collieries may
also be mentioned, where courts of equity will entertain bills in the
nature of bills Qiiia timet, and bills of peace, where there is danger
that the mine may be ruined in the meantime, before the right can be
established; and upon such a bill the court will grant an adequate
remedy by quieting the party in enjoyment of his right, by restoring
things to their old condition, and by establishing the right by a
decree (5). Other cases, also, where the object of the bill is to prevent
vexatious suits, will occur under the head of Injunctions (r).

(p) Devonsher v. Newenham, 2 Sch. & Lefr. 208, 209; Leighton v. Leighton,
1 P. Will. 671, 672; Lord Tenham v. Herbert, 2 Atk. 483; Earl of Darlington v.
Bowes, 1 Eden 270, 271, 272; Weller v. Smeaton, 1 Cox 102; s.c. 1 Bro. Ch. C. 573.
(g) Falmouth {Lord) v. Innys, Mos. 87, 89; post, § 929. In Bush v. Western,
Preo. Ch. 530, the plaintifiE had been in possession of a watercourse upwards of sixty
years, and the defendant claimed the land through which the watercourse ran, under
a foreclosed mortgage. The defendant obstructed the watercourse, and the plaintiff
brought a bill for an injunction to quiet his, the plaintiff's, possession, and it was held
maintainable, notwithstanding there was a remedy at law, and the title had not been
established at law.
(r) Post, § § 925 to 930.
§ 860—863.] INJUNCTIONS. 363

CHAPTER XXII.
INJUNCTIONS.

§ 861. The last subject which is proposed to be treated under the

second head of concurrent equity jurisdiction; namely, where the
peculiar remedies, afforded by courts of equity, formerly constituted
the principal although not the sole ground of jurisdiction, is that of
Injunctions. A writ of injunction is now abolished and is replaced by
a judgment or order which enjoins a party to do a particular thing, or
to refrain from doing a particular thing (a). The most common form
of a writ of injunction was that which operated as a restraint upon the
party in the exercise of his real or supposed rights ; and was sometimes
called the remedial writ of injunction. The other form, commanding
an act to be done, was sometimes called the judicial writ, because it
issued after a decree, and was in the nature of an execution to enforce
the same ; as, for instance, it might contain a direction to the party
defendant to yield up, or to quiet, or to continue, the possession of the
land, or other property, which constituted the subject-matter of the
decree in favour of the other party.
§ 862. The object of this process, which was most extensively used
in equity proceedings, was generally preventive and protective, rather
than restorative ; although it was by no means confined to the former.
It sought to prevent a meditated wrong more often than to redress an
injury already done. It was not confined to cases falling within the
exercise of the concurrent jurisdiction of the court-; but it equally
applied to cases belonging to its exclusive and to its auxiliary jurisdic-
tion. It is treated of, however, in this place, principally, because it
formed a broad foundation for the exercise of concurrent jurisdiction in
equity. In cases, calling for such redress, there was always a prayer
in the bill for this process and relief; and hence, bills of this sort. were
commonly called injunction bills.
§ 863. Indeed, unless an injunction were specifically prayed for
by the bill, it was the settled practice not to grant this remedial pro-
cess because
; (it has been said) the defendant might make a difierent
case by his answer against the general words of the bill, from what he
would have done against the specific prayer for an injunction. This,

(a) Rules of the Supreme Court, 1883, 0. 50, r. 11. See Eden, Injunctions; Kerr,
Injunctions.
364. EQUITY JURISPRUDENCE. [CH. XXII.

at least, constituted an exception from the general doctrine, £is to the

efficacy of the prayer for general reUef (b). The Supreme Court in all
its branches has now jurisdiction to grant an injunction in all cases in
which it shall appear to the court to be " just or convenient," by force
of section 25, sub-section 8 of the Judicature Act, 1873 (36 & 37 Vict.
a. 66), and the general effect of this section (shortly stated) is to leave
the old practice of the court of Chancery respecting the granting or
-withholding of an injunction untouched (c).
§ 864. The writ of injunction was peculiar to courts of equity,
although there were some cases where courts of law exercised analo-
gous powers; such as by the writ of prohibition and estrepement in
cases of waste (d). The cases, however, to which these legal processes
were applicable were so few, and so utterly inadequate for the purposes
■of justice, that the processes themselves fell into disuse; and almost
all the remedial justice of this sort was administered through the in-
strumentality ofcourts of equity. The jurisdiction in these courts,
then, had its true origin in the fact, that there was either no remedy
at all at law, or the remedy was imperfect and inadequate. The juris-
diction was for a long time most pertinaciously resisted by the courts
of common law, especially when it was applied by an injunction to
stay suits and judgments in these courts. But it was firmly estab-
lished in the reign of King James I. upon an express appeal to that
monarch.
§ 865. It has been justly remarked by an eminent civilian, that
injunctions, issued by the courts of equity in England, partook of the
nature of interdicts according to the Roman law (e). The term inter-
dict was used in the Eoman law in three distinct, but cognate senses.
It was, in the first place, often used to signify the edicts made by the
prsetor declaratory of his intention to give the remedy in certain cases,
chiefly to preserve or to restore possession. And hence such an inter-
dict was called edictal : " Edictale, quod praetoriis edictis proponitur,
ut soiant omnes ea forma posse imploriari. ' ' Again, it was used to
signify his order or decree, applying the remedy in the given case
before him; and then it was called decretal : " Deere tale, quod praetor
pro re nata implorantibus decrevit. ' ' And in the last place it was used
to signify the very remedy sought in the suit commenced under the
praetor's edict; and thus it became the denomination of the action
itself.

(b) Savory v. Dyer, Ambler 60; Cooke v. Martyn, 2 Atk. 3; Grimes v. French,
2 Atk. 141; Dormer v. Fortescue, 3 Atk. 131; Manaton v. Molesworth, 1 Eden 26-
2 Mad. Pr. Ch. 173.
(c) James, L. J., Day v. Brownrigg, 10 Ch. D. at p. 307; Cotton, L. J., North
London Ry. v. G. N. Ry., 11 Q. B. D. at p. 39; A. L. Smith, L. J., Kitts v. Moore,
[1895] 1 Q. B. 264.
(d) In the case of Jefferson v. The Bishop of Durham, 1 Bos. & Pul. 105, 120 to
132, the subject of these remedies in courts of law, in cases of waste, is very learnedly
discussed. (e) Halifax, Eoman Civil Law, ch. 6, p. 102.
§ 864—868.] INJUNCTIONS. 365

§ 866. It is in the second sense above stated, that the interdict of

the Eoman law bears a resemblance to the injunction of courts of
equity. It is said to have been called interdict because it was origin-
ally interposed in the nature of an interlocutory decree betv/een two
parties contending for possession, until the property could be tried.
But afterwards the appellation was extended to final decretal orders,
of the same nature. In the Institutes, interdicts are thus defined :
Interdicts were certain forms of words, by which the praetor either'
commanded or prohibited something to be done ; and they were chiefly
used in controversies respecting • possession or quasi possession.
" Erant autem interdicta formae atque coneeptiones verborum, quibus-
praetor aut jubebat aliquid fieri aut fieri prohibebat. Quod tunc
Maxime flebat, cum de possessione aut quasi possessione, inter aliquos;
contendebatur. " (/). They were divided into three sorts, prohibitory,
restitutory, and exhibitory interdicts. Prohibitory were those by
which the praetor forbade something to be done, as when he forbade
force to be used against a lawful possessor; restitutory, by which he
directed something to be restored, as when he commanded possession
to be restored to any one, who had been ejected from the possession by
force ; exhibitory, by which he ordered a person or thing to be pro-
duced (g). After this definition or description of the various sorts o£
interdicts, the Institutes proceed to state that some persons neverthe-
less have supposed that those only can be properly called interdicts,
which were prohibitory ; because to interdict is properly to denounce
and prohibit ; and that the restitutory and exhibitory interdicts should
properly be called decrees. But that by usage they are all caljed inter-
dicts, because they are pronounced between two persons. " Sunt
tamen qui putent, propria interdicta ea vocari, quae prohibitoria sunt,
quia interdicere sit denuntiare et prohibere; Eestitutoria autem et.
exhibitoria, proprie decreta vocari. Sed tamen obtinuit, omnia inter-
dicta appellari, quia inter duos dicuntur " (h).
§ 867. Another division of interdicts in the Eoman law was into
those which were (1) to gain or acquire possession; or (2) to retain
possession; or (3) to recover possession (i). And again, another divi-
sion was into those which were (1) single, in which each of the litigant
parties sustained one character, that of plaintiff or actor, or defendant
or reus ; or (2) double, in which each of the litigant parties sustained
two characters, that of plaintiff or actor, and that of defendant or
reus (k).
§ 868. From this summary account of the Eoman interdicts, whicli
were, after a time, superseded by what were called extraordinary

(/) Inst. Lib. 4, tit. 15, Introd.

(g) Ibid. § 1; Halifax on Civil Law, ch. 6, p. 101; Dig. Lib. 43, tit. 1, ff. 1, 2.
(h) Inst. Lib. 4, tit. 15, § 1.
(J) Ibid. § § 2, 3, 4. ■
(k) Ibid. § 7.
 366 EQUITY JURISPRUDENCE. [CH. XXII.

actions, in which judgment was pronounced without any antecedent

interdict, and in the same manner as if a beneficial action had been
given in consequence of an interdict (l), it is easy to perceive that they
partake very much of the nature of injunctions in courts of equity,
and were apphed to the same general purposes ; that is to say, to
restrain the undue exercise of rights, to prevent threatened wrongs,
to restore violated possessions, and to secure the permanent enjoy-
ment of the rights of property.
§ 869. In the early course of chancery proceedings, injunctions to
quiet the possession of the parties before the hearing were indiscrim-
inately granted to either party, plaintiff or defendant, in cases where
corporeal hereditaments were the subject of the suit; the object of
them being to prevent a forcible change of possession by either party
pending the litigation (m). These injunctions bore a very close resem-
blance to the interdict, Uti possidetis, of the Eoman law, which was
granted to either party in a suit, who was then in possession, in order
that he might be secured therein as the legal possessor during the
litigation. " Hoc interdictum (Uti possidetis) de soli possessore
scriptum est, quem potiorem praetor in soli possessione habebat; et est
prohibitorium ad retinendam possessionem (n). Est igitur hoc inter-
dictum, quod vulgo Uti possidetis appellatur, retinendse possessionis ;
nam hujus rei causa redditur, ne vis fiat, ei, qui possidet (o). Hoc
interdictum duplex est; et hi, quibus competit, et actores et rei
-sunt " (p).
§ 870. The interdict, Unde vi, in the Eoman law, was granted to
restore a possession forcibly taken away; whereas, the interdict, Uti
possidetis, was granted to preserve a present possession. " lUud (in-
ierdictum unde vi)," says the Digest, " enim restituit vi amissam pos-
ses ionem ;hoc (interdictum uti possidetis) tuetur, ne amittatur
possessio. Denique praetor possidenti vim fieri vetat; et illud quidem
interdictum oppugnat possessorem; hoc tuetur" (q).
§ 871. It is obviously incompatible with the object of these Com-
mentaries toenumerate in detail (even if such a ta.sk were practicable)
the various cases in which a writ of injunction was formerly granted
by the courts of equity. Many cases of this sort have already been
incidentally taken notice of in the preceding pages; and others again
will occur hereafter. What is proposed to be done in this place is, to
(l) Ibid. § 8.
(m) 2 Collect. Jurid. 196; Beames, Ord. ch. 15, and note (49). One of Lord
Bacon's Ordinances (26) is, that "Injunctions for possession are not to be granted
before a decree; but where the possession hath continued by the space of three years
Toetoie the bill exhibited; and upon the same title, and not upon any title by leave, or
rotherwise determined." Beames, Ord. ch. 15.
(n) Dig. Lib. 43, tit. 17, f. 1, § 1.
(o) Ibid. f. 1, § 4.
(p) Ibid. I. 3, § 1. Proceedings analogous to those in the Roman law are recog-
nized in the Scottish jurisprudence. Ersk. Inst. p. 764, § 47.
(q) Dig. Lib. 43, tit. 17, f. 1, § 4.
§ 869—873.] INJUNCTIONS. 367

enumerate some only of the more common cases, in which it is applied,

rather as illustrations of the nature and extent of the jurisdiction, than
as a complete analysis of it.
§ 872. A learned writer enumerated, among the most ordinary
objects of the remedial writ of injunctions, the following : " To restrain
tile indorsement or negotiation of notes and bills of exchange, the sale
of land, the sailing of a ship, the transfer of stock, or the alienation
of a specific chattel ; to prevent the wasting of assets or other property
pending litigation ; to restrain a trustee from assigning the legal estate,
or from setting up a term of years, 'or assignees from making a divi-
dend; to prevent the removing out of the jurisdiction, marrying or
having any intercourse, which the court disapproves of, with a ward ; to
restrain the commission of every species of waste to houses, mines,
timber, or any other part of the inheritance; to prevent the infringe-
ment of patents, and the violation of copyright, either by publication
or theatrical representation; to suppress the continuance of public
or private nuisances; and by the various modes of interpleader,
restraint upon multiplicity of suits, or quieting possession before the
hearing, to stop the progress" of vexatious litigation. ' ' But he immedi-
ately adds: " These, however, are far from being all the instances, in
which this species of equitable interposition is obtained. It would,
indeed, be difficult to enumerate them all ; for in the endless variety of
cases, in which a plaintiff is entitled to equitable relief, if that relief
consists in restraining the commission or the continuance of some act
of the defendant, a court of equity administers it by means of the writ
of injunction " (r).
§ 873. The illustrations of the jurisdiction which will be attempted
in our pages, will be principally limited to cases of injunctions to
restrain the alienation of property; to restrain waste; to restrain
nuisances ; to restrain trespasses ; and to prevent other irreparable mis-
chiefs. We shall then add some few instances of special injunctions
in order more fully to develop the nature and extent of this most
beneficial process of preventive and remedial justice. " Injunctions are
either interlocutory or perpetual. Interlocutory injunctions are such
as are to continue until the hearing of the cause upon its merits or
generally until further order. Perpetual injunctions are such as form
part of the decree made at the hearing upon the merits, whereby the
defendant is perpetually inhibited from the assertion of a right, or per-
petually restrained from the commission of an act which would be
contrary to equity and good conscience. The perpetual injunction is in
effect a decree, and concludes a right. The interlocutory injunction is
merely provisional in its nature, and does not conclude a right. The
effect and object of the interlocutory injunction is merely to preserve
the property in dispute in statu quo until the hearing or further order.

(r) Eden on Injunct. ch. 1, pp. 1, 2. See also 1 Mad. Ch. Pr. 106.
368 EQUITY JURISPRUDENCE. [CH. XXII.

In interfering by interlocutory injunction, the court does not, in

general, profess to anticipate the determination of the right, but merely
gives it as its opinion that there is a substantial question to be tried,
and that, till the question is ripe for trial, a case has been made out for
the preservation of the property in the meantime in statu quo. A man
who comes to the court for an interlocutory injunction is not required
to make out a case which will entitle him at all events to relief at the
hearing. It is enough if he can show that he has a fair question to
raise as to the existence of the right which he alleges, and can satisfy
the court that the property shoilld be preserved in its present actual
condition, until such question can be disposed of" (s).
§ 873a.. When the learned author wrote, and for many years there-
after, the Court of Chancery restrained proceedings pending in common
law and other courts by means of an injunction. As regards the institu-
tion of proceedings, it has been held that the Chancery Division still
has jurisdiction to restrain a party from so acting (t). But it is now
enacted by the Judicature Act, 1878, s. 24, sub-s. 5 of which pro-
vided—: No cause or proceeding at any time pending in the High Court
of Justice, or before the Court of Appeal, shall be restrained by pro-
hibition orinjunction; but every matter of equity on which an injunction
against the prosecution of any such cause or proceeding might have
been obtained, if this Act had not passed, either unconditionally, or on
any terms or conditions, may be relied on by way of defence thereto;
Provided always, that nothing in this Act contained shall disable either
of the said courts from directing a stay of proceedings in any cause or
matter pending before it if it shall think fit; and any person, whether
a party or ijot to any such cause or matter, who would have been
entitled, if this Act had not passed, to apply to any court to restrain
the prosecution thereof, or who may be entitled to enforce, by attach-
ment or otherwise, any judgment, decree, rule, or order, contrary to
which all or any part of the proceedings in such cause or matter may
have been taken, shall be at liberty to apply to the said courts respec-
tively, bymotion in a summary way, for a stay of proceedings in such
cause or matter, either generally or so far as may be necessary for the
purposes of justice ; and the court shall thereupon make such order as
shall be just (m). And by other provisions of the same section matters
may be raised, by way of defence or substantive application, so that
the general policy of the act may be effected, and all matters in con-
troversy between the parties may be completely and finally determined,
and all multiplicity of legal proceedings concerning any of such matters
avoided.
§ 899. It has sometimes been made a question whether courts of
equity have authority to st-ay proceedings in the courts of foreign^
(s) Kerr on Injunctions, 3rd edit. pp. 9, 10.
(t) Besant v. Wood, 12 Ch. D. 605.
(«) See Wright v. Redgrave, 11 Ch. D. 24.
§ 873(t— 906.] INJUNCTIONS. 369

countries. Nothing can be clearer than the proposition that the courts
of one country cannot exercise any control or superintending authority
over those of another country. The independence, equality, and
sovereignty of every country would repudiate any such interference as
inconsistent with its own supremacy within its own territorial domains.
But although the, courts of one country have no authority to stay pro-
ceedings inthe courts of another, they have an undoubted authority to
control all persons and things within their own territorial limits. When,
therefore, both parties to a suit in a foreign country are resident within
the territorial limits of another country, the , coiurts of equity in the
latter may act in personam upon those parties, and direct them, by
injunction, to proceed no farther in such suit. In such a case these
courts act upon acknowledged principles of public law in regard to
jiurisdiction. They do not pretend to direct or control the foreign court,
but, without regard to the situation of the subject-matter of the dispute,
they consider the equities between the parties, and decree in persondm
according to those equities, and enforce obedience to their decrees by
process in ■personann. Hence, the jurisdiction of courts of equity to
relieve, in cases of contracts and other matters, respecting lands
situated in foreign countries (a;). But although the jurisdiction may
exist, it is only exercised with the greatest caution and under such
limitations as to render it practically non-existent (i/). Jurisdiction is
only exercised where there is some personal equity as fraud {z), or a
money claim as in the case of waste (a), or an equitable right as in the
case of a mortgage (6). Generally speaking the pendency of proceed-
ings before a foreign tribunal is a reason for staying proceedings in this,
unless the relief obtainable in each forum is not identical (c).
§ 905. In the next place, let us proceed to the consideration of the
granting of injunctions to restrain the alienation of property in the
largest sense of the words. The propriety of this sort of relief will at
once be seen, by considering a very few cases, in which it is indispen-
sable to secure the enjoyment of a specific property ; or to preserve the
title to such property; or to prevent frauds or gross and irremediable
injustice in respect to such property.
§ 906. In regard to negotiable securities, if transferred to a bond
fide holder without notice, the latter would be entitled to recover upon
them, notwithstanding any fraud in their original concoction, or the loss

(x) Penn v. Lord Baltimore, 1 Ves. Sen. 444.

(y) Carron Iron Co. v. Madaren, 5 H. L. C. 416; In te Hawthorne, Graham v.
Massey, 23 Ch. D. 743; Eastern Concessions, Ltd. v. Black Point Syndicate, 79 L. T.
638; Deschamps v. Miller, [1908] 1 Ch. 856. For a history of the establishment of
the jurisdiction see Lord Portarlington v. Soulby, 3 M. & K. 104.
(z) Lord Portarlington v. Soulby, 3 M. & K. 104.
(a) Carteret v. Petty, 2 Swanst. 323 n.
(6) British South Africa Co. v. De Beers Consolidated Mines, [1910] 2 Ch. 502;
reversed on other grounds [1912] A. C. 52.
(c) Ostell V. Le Page, 2 De G. M. & G. 892; Noriss v. Chambers, 3 De G. P
& J. 246 ; Hyman v. Helm, 24 Ch. D. 531.
E.J. 24
370 EQUITY JURISPRUDENCE. [CH. XXII.

of them by the real owner, it is therefore often indispensable to the

security of the party, against whose rights they may be thus made
available, to obtain an injunction prohibiting any such transfer (d).
§ 907. The same principle is applied to restrain the transfer of
stocks. Thus, for instance, where there is a controversy respecting
the title to stock under different wills, an injunction will be granted
to restrain any transfer pendente lite (e). So, an injunction will be
granted where the title to stock is controverted between principal
and agent (/) ; or where a trustee or agent attempts to transfer it for
hia own benefit, and to the injury of the party beneficially entitled
to it (g). So, also, to restrain the payment of money, where it is
injurious to the party to whom it belongs ; or where it is in violation
of the trust to which it should be devoted Qi). So, too, to restrain
the transfer of diamonds or other valuables, where the rightful owner
may be in danger of losing them (t).
, § 908. In like manner an injunction will be granted to restrain a
party from making vexatious alienations of real property, pendente
lite (k). So, also, to restrain a vendor from conveying the legal title of
real estate pending an action for the specific performance of a contract
for the sale of that estate (I). For, in every such case, the plaintiff
may be put to the expense of making the vendee a party to the pro-
ce dingsand,
; at all events, his title, if he prevails in the action, may
be embarrassed by such new outstanding title under the transfer (w).
Although the maxim is. Pendente lite nil innovetur, that maxim is
not to be understood as warranting the conclusion, that the conveyance
so made is absolutely null and void at all times, and for all purposes.
The true interpretation of the maxim is, that the conveyance does not
vary the rights of the parties in that action; and they are not bound
to take notice of the title acquired under it; but with regard to them
the title is to be taken as if it had never existed. Otherwise, actions
would be indeterminable, if one party, pending the suit, could, by
conveying to others, create the necessity for introducing new parties (n).
§ 909. In the next place, let us proceed to the consideration of
injunctions in the oases of waste (o). The state of the common law
with regard to waste was very learnedly expounded by Lord Chief

{d} Hood v. Aston, 1 Euss. 412.

(e) King v. King, 6 Vea. 172.
(J) Ghedworth v. Edwards, 8 Ves. 46.
ig) Stead v. Clay, 1 Sim. 294; 4 Euss. 550; Rogers v. Rogers, 1 Anst. 174.
(h) Reeve v. Parkins, 2 Jac. & Walk. 390; Green v. Lowes, 3 Bro. C. C. 217;
Pearce v. Piper, 17 Vea. 1.
(») Ximines v. Franco, 1 Dick. 149 ; Tonnins v. Prout, 1 Dick. 387.
(ft) Daly v. Kelly, 4 Dow 440 ; ante, § 406 ; post, § 953.
(/) Echliff V. Baldwin, 16 Ves. 267 ; London and County Bank v Lewis, 21 Ch
D. 460.
(m) Echliif V. Baldwin, 16 Ves. 267.
(n) Ante, § § 405, 406; Bellamy v. Sabine, 1 De G. & J. 566.
(o) See Com. Dig. Chancery, 11 D. 4 X. .
§ 907—909.] INJUNCTIONS. 371

Justice Eyre, in a celebrated case (p) ; and it can be best stated in his
own words. " At common law " (said he) " the proceeding in waste
was by writ of prohibition from the Court of Chancery, which was
considered as the foundation of a suit between the party suffering
by the waste and the party committing it. If that writ was obeyed,
the ends of justice were answered. But, if that was not obeyed,
and an alias and pluries produced no effect, then came the original
writ of attachment out of chancery, returnable in a court of common
law, which was considered as the original writ • of the court. The
form of that writ shows the nature of it. It was the same original
writ of attachment, which was, and is, the foundation of all pro-
ceedings in prohibition, and of many other proceedings in this court
at this day, &c. That writ being returnable in a court of common
law, and most usually in the Court of Common Pleas, on the defendant
appearing, the plaintiff counted against him ; he pleaded ; the question
was tried ; and, if the defendant was found guilty, the plaintiff recovered
single damages for the waste committed. Thus the matter stood at
common law. It has been said (and truly so, I think, so far as can
be collected from the text-writers) that at the common law, this pro-
ceeding lay only against tenant in dower, tenant by the curtesy, and
guardian in chivalry; it was extended, by different statutes (stat. of
Marlbridge, c. 24; stat. of Gloucester, c. 5), to farmers, tenants for
life, and tenants for years, and, I believe, to guardians in socage (g).
That which these statutes gave by way of remedy was not so properly
the introduction of a new law as the extension of an old one to a, new
description of persons. The course of proceeding remained the same as
before these statutes were made. The first Act which introduced any-
thing substantially new was that (stat. of Gloucester, c. 13) which gave
a writ or waste or estrepement , pending the suit. It follows, of course,
that this was a judicial writ, and was to issue out of the courts of
common law. But, except for the purpose of staying proceedings
pending a suit, there is no intimation in any of our text-writers that
any prohibition could issue from those courts. By the statute of West-
minster 2nd, the writ of prohibition is taken away, and the writ of
summons is substituted in its place; and, although it is said by Lord
Coke, when treating of prohibition at the common law, that ' it may be
used at this day;' those words, if true at all, can only apply to that very
ineffectual writ, directed to the sheriff, empowering him to take the
posse comitatus, to prevent the commission of waste intended to be
done. The writ, directed to the party, was certainly taken away by the
statute. At least, as far as my researches go, no such writ has
issued, even from chancery, in the common cases of waste by tenants

(p) Jefferson v. Bishop of Durham, 1 Bos. & Pul. 120.

(g) Mr. Eeeves (Hist, of the Law, vol. 1, p. 186; vol. 2, pp. 73, 74, 148, note)
seems to suppose that these statutes were but an affirmance of the common law. In
this opinion he is opposed by Lord Coke and other great authorities.
372 EQUITY JURISPRUDENCE. [CH. XXII.

in dower, tenants by the curtesy, and guardians in chivalry, tenants

for life, &o. &c., since it was taken away by the statute of Westminster
2nd. Thus the common-law remedy stood, with the alteration above
mentioned, and with the judicial writ of estrepement introduced
pendente lite " (r).
§ 910. To this luminous exposition of the state of the common law,
it may be added, that there was, by the common law, another remedy
of a preventive nature in the writ of estreptement. This lay after a
judgment obtained in a real action, before possession was delivered by
the sheriff, to prevent the tenant from committing waste in the lands
recovered (s). And the statute of Gloucester (6 Edw. 1, c. 5), which
gave the writ of estrepement pendente lite, also directed (c. 5) that
the tenant should forfeit the place wasted, and also treble damages (t).
§ 911. The remedy by writ of estrepement was applicable only to
cases of real actions; and, when the proceeding by ejectment became
the usual mode of trying a title to land, as the writ of estrepem,ent
did not apply, courts of equity, acting upon the principle of preserving
the property, pendente lite, supplied the defect, and interposed by
way of injunction (w). Eeal actions are now abolished by statute.
§ 912. But courts of equity have, by no means, limited themselves
to an interference in cases of this sort. They have, indeed, often
interfered in restraining waste by persons having limited interests in
property, on the mere ground of the common-law rights of the parties,
and the diflSculty of obtaining the immediate preservation of the
property from destruction or irreparable injury, by the process of the
common law. But they have also extended this salutary relief to cases
where the remedies provided in the courts of common law could not be
made to apply; and, where the titles of the parties were purely of an
equitable nature; and, where the waste was, what was commonly,
although with no great propriety of language, called equitable waste (a;) ;
meaning acts which were deemed waste only in courts of equity; and
where, as we have already seen, no waste had been actually committed,
but was only meditated or feared to be done by a bill Quia timet {y).
§ 913. In order to show the beneficial nature of the remedial inter-
ference of courts of equity in cases of waste, it may not be without
use to suggest a few oases where it was indispensable for the purposes
of justice, and there was either no remedy at all at law, or none which
is adequate. In the first place, there were many cases where a person

(r) Jefferson v. Bishop of Durham, 1 Bos. & Pul. 120; Harrow School v. Alder-
ton, 2 Boa. & P. 86.
(s) Com. Dig. Waste, A., B. ; Fitz. Nat. Brev. 60; 3 Black. Comm. 225 to 227.
(t) Com. Dig. Waste, 0. 1; itl. Chancery, D. 11 ; 2 Inst. 299; 3 Black. Comm.
227 to 299.
(u) Pultney v. Shelton, 5 Ves. 261, note; 3 Black. Comm. 227.
(x) Marquis of Downshire v. Lady Sandys, 6 "Ves. 109; Chamberlain v. Dummer
1 Bro. C. C. 166; post, § 916.
iy) Ante, § § 825 to 846.
 § 910—915.] INJUNCTIONS. 373,

was dispunishable at law for committdng waste, aaid yet a court of

equity would enjoin him. As, where there is a tenant for life, remainder
for life, remainder in fee, the tenant for life will be restrained, by
injunction, from committing waste ; although, if he did commit waste,
no action of waste would have lain against him at common law by the
remainderman for life, for he has not the inheritance, or by the
remainderman in fee, by reason of the interposed remainder for life («).
But for permissive waste, there is no remedy against a tenant for life
either at law or in equity (a). So, a ground landlord may have an
injunction to stay waste against an under-lessee (b). So, an injunction
may be obtained against a tenant from year to year, after a notice to
quit, to restrain him from removing the crops, manure, &c., according
' to the usual course of husbandry (c). So, it may be obtained against a
lessee, to prevent him from making material alterations in a dwelling-
house, to the damage of the inheritance, but not otherwise (d).
§ 914. In the next place, courts of equity will grant an injunction
in cases where the aggrieved party has equitable rights only; and,
indeed, it has been said, that these courts will grant it more strongly
where there is a trust estate (e). Thus, for instance, in cases of mort-
gages, if the mortgagor in possession commits waste, or threatens to
commit it, an injunction wiU- be granted, if the security be deficient (/),
and in the converse case would enjoin a mortgagee if his security were
admittedly sufficient {g), yet there was no remedy at common law.
So, where there is a contingent estate, or an executory devise over,
dependent upon a legal estate, coinrts of equity will not permit waste
to be done to the injury of such estate ; more especially not, if it is an
executory devise of a trust estate (h).
§ 915. In the next place, in regard to equitable waste, which may
be defined to be such acts as at law would not be esteemed to be waste,
tinder the circumstances of the ease, but which, in the view of a court of
equity, are so esteemed, from their manifest injury to the inheritance,
although they are not inconsistent with the legal rights of the party
committing them. As, if there be a tenant for life without impeach-
ment for waste, and he should pull down houses, or do other waste
wantonly and maliciously, a court of equity would restrain him; for,
it is said, a court of equity ought to moderate the exercise of such a

{z) Garth v. Cotton, 1 Dick. 183 ; s.c. 1 Ves. 555.

(o) Powis V. Blagrave, i De G. M. & Gr. 484; In re Gartwright, Avis v. Newman,
41 Ch. D. -532.
(b) Farrant v. Lovell, 3 Atk. 723; s.c. Ambler, 105.
(c) Kimpton v. Eve, 2 V. & B. 349; Pratt v. Brett, 2 Mad. 62.
(d) Jones v. Chappie, L. E. 2 Eq. 539 ; Doherty v. Allman, 3 App. Gas. 709.
(e) StansfieU v. Habergham, 10 Ves. 273; Turner v. Wright, 2 De G. P. & J.
234. See Blake v. Peters, 1 De G. J. & S. 345.
(/) Humphreys v. Harrison, 1 J. & W. 581; King v. Smith, 2 Hare, 239.
(g) See Row& v. Wood, 2 J. & W. 553; Millett v. Davy, 31 Beav. 470.
(h) Stansfield v. Habergham, 10 Ves. 278.
374 EQUITY JURISPEUDENCE. [CH. XXII.

power, .and, pro bono publico, restrain extravagant humorous waste (i).
Upon this ground, tenants for hfe without impeachment for waste, and
tenants in tail, after possibility of issue extinct, have been restrained,
not, only from acts of waste to the destruction of the estate, but also
from cutting down trees planted for the ornament or shelter of the
premises (fe), even if planted by the tenant for life himself (i). So,
a tenant for life, without impeachment of waste, has been restrained
from cutting timber where certain trustees had powers inconsistent with
his right, and to which it was expressly made subject (m). In all such
cases the party is deemed guilty of a wanton and unconscientious abuse
of his rights, ruinous to the interests of other parties.
§ 915<3.. By the 3rd paragraph of s. 25 of the Judicature Act, 1873,
it is provided that an estate for life, without impeachment of waste,
shall not confer, or be deemed to have conferred, upon the tenant for
life, any legal right to commit waste of the description known as equit-
able waste, unless an intention to confer such right shall expressly
appear by the instrument creating the estate.
§ 916. Upon similar grounds, although courts of equity will not
interfere by injunction to prevent waste in cases of tenants in com-
mon, or coparceners, or joint-tenants, because they have a right to
enjoy the estate as they please ; yet they will interfere in special cases;
as, where the party committing the waste is insolvent; or, where the
waste is destructive of the estate, and not within the usual legitimate
exercise of the right of enjoyment of the estate (n).
§ 917. From this very brief view of some of the more important
cases of equitable interference in oases of waste, the inadequacy of
the remedy at common law, as well to prevent waste, as to give redress
for waste already committed, was so unquestionable, that there is no
wonder that the resort to the courts of law, in a great measure, fell
into disuse. The action of waste was of rare occurrence in later
times (o) ; an action on the case for waste being generally substituted
in its place, whenever any remedy was sought at law. The remedy
in equity was so much more easy, expeditious, and complete, that it
was almost invariably resorted to. By such remedy, not only could
future waste be prevented, but, as we have already seen, an account
might be decreed, and compensation given for past waste (p).

(t) Abraham v. Budd, 2 Freem. Ch. 63; Lord Barnard's Case, Prec. Ch. 451,-
Aston V. Aston, 1 Ves. Sen. 268.
(k) Marquis of Downshire v. Lady Sandys, 6 Ves. 107; Att.-Gen. v. Duke of
Marlborough, 3 Mad. 498; Newdigate v. Newdigate, 1 CI. & P. 601.
(!) Coffin V. Coffin, 1 Jac. 70.
(m) Kekewich v. Marker, 3 Mae. & G. 311.
(n) Smallman v. Onions, 3 Bro. C. C. 621; Hole v. Thomas, 7 Ves. 589; Arthur
V. Lamb, 2 Dr. & Sm. 428; Bailey v. Hobson, L. R. 5 Ch. 180.
(o) Harrow School v. Alderton, 2 Bos. & Pul. 86; Redfem v. Smith, 1 Bing. 382;
2 Bing. 262.
(p) Ante, § § 515 to 618.
§ 915a — 921.] INJUNCTIONS. 375

§ 918. The interference of courts of equity in restraint of waste

was originally confined to cases founded in privity of title; and for
the plaintiff to state a case, in which the defendant pretended that
the plaintiff was not entitled to the estate, or in which the defendant
was asserted to claim under an adverse right, was said to be, for the
plaintiff to state himself out of court. But at present the courts
have, by insensible degrees, enlarged the jurisdiction to reach cases
of adverse claims and rights, not founded in privity ; as, for instance,
to cases of trespass, attended with irreparable mischief, which we
shall have occasion hereafter to consider (q).
§ 919. The jurisdiction, then, of courts of equity, to interpose, by
way of injunction, in cases of waste, may be referred to the broadest
principles of social justice. It is exerted, where the remedy at law is
imperfect, or is wholly denied; where the nature of the injury is such
that a preventive remedy is indispensable, and it should be permanent;
where matters of discovery and account are incidental to the proper
relief ; and where equitable rights and equitable injuries call for redress,
to prevent a malicious, wanton, and capricious abuse of their legal
rights and authorities by persons having but temporary and limited
interests in the subject-matter. On the other hand, courts of equity
will often interfere in cases where the tenant in possession is impeach-
able for waste, and direct timber to be felled, which is fit to be cut, if
in danger of running into decay, and thus will secure the proceeds for
the benefit of those who are entitled to it (r).
§ 920. In the next place, let us proceed to the consideration of the
granting of injunctions in cases of nuisances. Nuisances may be of
two sorts : (1) such as are injurious to the public at large, or to public
rights; (2) such as are injurious to the rights and interests of private
persons.
§ 921. In regard to public nuisances, the jurisdiction of courts of
equity seems to be of a very ancient date; and has been distinctly
traced back to the reign of Queen Elizabeth (s). The jurisdiction is
applicable, not only to public nuisances, strictly so called, but also to
purprestures upon pubUc rights and property. Purpresture, according
to Lord Coke, signifies a- close, or inclosure, that is, when one en-
croaches, or makes that several to himself which ought to be common
to many (t). The term was, in the old law writers, applied to cases
of encroachment, not only upon the King, but upon subjects. But,
in its common acceptation, it is now understood to mean an encroach-
ment upon the King, either upon part of his demesne lands, or upon
rights and easements held by the Crown of the public, such as upon

(g) Haigh v. Jaggar, 2 CkiU. 231 ; Earl Talbot v. Scott, 4 Kay & J. 96.
(r) Peters v. Blake, 6 L. J. Ch. 157 ; Honywood v. Honywood, L. E. 18 Eq. 306 ;
Seagrave v. Knight, L. B. 2 Ch. 628.
(s) Eden on Injunct. ch. 11, pp. 224, 225.
(t) 2 Inst. 38, 272.
376 EQUITY JURISPRUDENCE. [CH. XXII.

highways, public rivers, forts, streets, squares, bridges, quays, and

other public accommodations (u).
922. In cases of purpresture, the remedy for the Crown is either
by an information of intrusion at the common law, or by an information
at the suit of the Attorney-General in equity. In the case of a judg-
ment upon an information of intrusion, the erection complained of,
whether it be a nuisance or not, is abated. But upon a decree in equity,
if it appear to be a mere purpresture, without being at the same time
a nuisance, the court may direct an inquiry to be made, whether it is
most beneficial to the Crown, to abate the piupresture, or to suffer the
erections to remain and be arrested (x). But if the purpresture be also
a public nuisance, this cannot be done ; for the Crown cannot sanction
a public nuisance.
§ 923. In cases of public nuisances, properly so called, an indict-
ment lies to abate them, and to punish the offenders. But an
information also lies in equity to redress the grievance by way of
injunction. The instances of the interposition of the court, however,
are (it is said) rare, and principally confined to information seeking
preventive relief. Thus, informations in equity have been maintained
against a public nuisance by stopping a highway. Analogous to that
there have been many cases on the equity side of the Court of
Exchequer, the jurisdiction of which is now vested in the Supre^me
Court, of nuisance to harbours, which are a species of highway. If
the soil belongs to the Crown, there is a species of remedy for the
purpresture above mentioned for that. And a similar jurisdiction was
exercised in the case of marine foreshores {y).
§ 924. The ground of this jurisdiction of courts of equity in ca,ses
of purpresture, as well as of public nuisances, undoubtedly is, their
ability to give a more complete and perfect remedy than is attain-
able at law, in order to prevent irreparable mischief, and also to
suppress oppressive and vexatious litigation. In the first place, they
can interpose (where the courts of law could not, until recent times)
to restrain and prevent such nuisances, which are threatened or are in
progress, as well as to abate those already existing. In the next place,
by a perpetual injunction, the remedy is made complete through all
future time ; whereas, an information or indictment at the common law
can only dispose of the present nuisance; and for future acts new
prosecutions must be brought. In the next place, the remedial justice
in equity may be prompt and immediate, before irreparable mischief
is done ; whereas, at law, till lately, nothing could be done, except after

(«) Ibid.; Hale in Harg. Law Tracts, ch.. 8, pp. 74, 78; Att.-Gen. v. Forbes, 2
Myl. & Cr. 123; Earl of Ripon v. Hobart, 8 Myl. & K. 169, 179, 180, 181.
(x) Hale in Harg. 81; Att.-Oen. v. Richards, 2 Anst. 603.
iy) See Att.-Gen. v. Richards, 2 Anst. 603; Att.-Gen. v. Parmeter, 10 Price, 378;
in H. L. nom. Parmeter v. Gibbs, 10 Price 412 ; Att.-Gen. v. Emmerson [1891]
A. C. 649.
§ 922—926.] INJUNCTIONS. 377

a trial, and upon the award of judgment. In the next place, a court
of equity will not only interfere upon the information of the Attorney-
General, but also upon the application of private parties (z), directly
affected by the nuisance ; whereas, at law, in many cases the remedy is,
or may be, solely through the instrumentality of the Attorney-
General (d).
§ 925. In regard to private nuisances, the interference of the courts
by injunction is undoubtedly founded upon the ground of restraining
irreparable mischief, or of suppressing oppressive and interminable,
litigation, or of preventing multiplicity of suits. It is not every case,
which -will furnish a right of action against a party for a nuisance,
which will justify the interposition of the courts to redress the injury
or to remove the annoyance. But there must be such an injury, as
from its nature is not susceptible of being adequately compensated
by damages at law, or such as, from its continuance or permanent mis-
chief, must occasion a constantly recurring grievance, which cannot be
otherwise prevented but by an injunction (b). Thus, every common
trespass is not a foundation for an injunction, where it is only con-
tingent, fugitive, or temporary, but if repetition be threatened, or if it
is continued so long- as to become a nuisance, an injunction may be
granted, to restrain the person from repeating or continuing it (c). So,
a mere diminution of the value of property by the nuisance, without
irreparable mischief, will not furnish any foundation for equitable
relief (d).
§ 926. On the other hand, where the injury is irreparable, as where
loss of health, loss of trade, destruction of the means of subsistence,
or permanent ruin to property, may or will ensue from the wrongful
act or erection; in every such case courts of equity will interfere by
injunction, in furtherance of justice and the violated rights of the
party (e). Thus, for example, where a party builds so near the house
of another party as to darken his windows, against the clear rights of
the latter by prescription, courts of equity will interfere by injunction
to prevent the nuisance being committed, but will not generally inter-
fere after the building is completed, although an action for damages

(z) See Soltau v. De Held, 2 Sim. N. S. 133.

(a) See the observations of Lord Cattenham, L.C., in Att.-Gen. v. Forbes, 2
Myl. & Cr. 123.
(b) Swaine v. G. N. By., i De G. J. & S. 211; Salvin v. N. Brancepeth Coal Co.,
L. B. 9 Ch. 70S; Shelf er v. City of London Electric Lighting Co., [1895] 1 Ch. 287;
Ruchmer v. Polsue d Alfieri, Ltd., [1906] 1 Ch. 234.
(c) Goulson V. White, 3 Atk. 21; Gaunt v. Fynney, L. E. 8 Ch. 8; Harrison v.
Duke of Rutland, [1893] 1 Q. B. 142.
(d) Att.-Gen. v. Sheffield Gas Consumers Co., 3 De G. M. & G. 304; Att.-Gen.
V. Cambridge Consumers Gas Co., L. E. 4 Ch. 71; Colls v. Home and Colonial Stores,
[1904] A. C. 179.
(e) Imperial Gas Light and Coke Co. v. Broadbent, 7 H. L. C. 600; Metropolitan
Asylums Board v. Hill, 6 App. Gas. 193; Shelf er v. City of London Electric Lighting
Co., [1895] 1 Ch. 287; Wood v. Conway Corporation, [1914] 2 Ch. 47.
378 EQUITY JURISPRUDENCE. [CH. XXII,

would lie at law; for the latter can in no just sense be deemed an
adequate relief in such a case (/). The injury is material, and operates
daily to destroy or diminish the comfort and use of the neighbouring
house ; and the remedy by a multiplicity of actions, for the continuance
of it, would furnish no substantial compensation.
§ 926a. It has been said on many occasions that there can be no
prescriptive right to commit a nuisance, on the other hand the measure
of what constitutes a nuisance has always been tested by the ' ' ordin-
ary notions of mankind." Acquiescence for a long period of time in
suffering acts which amount to a nuisance without protest may well be
accepted as conclusive evidence that the subject matter of corhplaint
is not an unreasonable exercise of individual freedom according to the
"ordinary notions of mankind." And although this reason has not
been given in any judicial exposition of the law, it has probably influ-
enced the refusal of relief even in cases of information at the suit o£
the attorney-general (g).
§ 927. Cases of a nature calling for the like remedial interposition
of courts of equity axe — The obstruction or pollution of watercourses (h),
the diversion of stream from mills, the back flowage on mills, and
the pulling down of the banks of rivers, and thereby exposing adjaceat
lands to inundation or adjacent mills to destruction (i). So, where
easements or servitudes are annexed by grant or covenant, or otherwise,
to private estates ; or where privileges of a public nature, and yet bene-
ficial to private estates, are secured to the proprietors contiguous to
public squares or other places dedicated to public uses, the due enjoy-
ment of them will be protected against encroachments by injunction.
So, an injunction will be granted against a corporation to prevent an
abuse of the powers granted to them to the injury of other persons (k).
So, an injunction will be granted against the erection of a new ferry
injurious to an old-estabhshed ferry (I). So, to restrain the ringing of
bells by a Eoman Catholic community, although the same was done
only on Sundays (m). So, to prevent a tenant from removing mineral
and other deposits from the bed of a stream running through a farm
which he occupies (n). Other illustrations are afforded by the right of

(/) Colls V. Home and Colonial Stores, [1904] A. C. 179; Cowper v. Laidler,
[1903] 2 Ch. 337; Higgins v. Belts, [1905] 2 Ch. 210.
(g) Att.-Gen. v. Sheffield Gas Consumers Co., 3 De G. M. & G. 304.
(h) Att.-Gen. v. Terry, L. E. 9 Ch. 423; Ballard v. Tomlinson, 29 Ch. D. 194;
Jones V. Llandajf Urban Council, [1911] 1 Ch. 393. The pollution of streams is also
dealt with by the Public Health Act, 1875, and the Rivers Pollution Act, 1876.
(t) Robinson v. Lord Byron, 1 Bro. C. C. 588; Lane v. Newdigate, 10 Ves. 194;
see Maxey Drainage Board v. G. N. Ry., 106 L. T. 429.
(fc) Coates v. Clarenoe Railway Company, Eues. & Myl. 181.
(I) Gory V. Yarmouth and Norwich Ry., 3 Hare, 693; Hammerton v. Earl of
Dysart, [1916] A. C. 67.
(m) Soltau v. De Held, 2 Sim. N. 8. 133.
(n) Thomas v. Jones, 1 Y. & Coll. Ch. 510.
§ 9260^931.] INJUNCTIONS. 379

support (o), and ancient lights (p), if the damage is serious and per-
manent.
§ 928.. It is upon similar grounds that courts of equity interfered
before the Judicature Act, 1873, in cases of trespass — that is to say,
to prevent irreparable mischief, or to suppress multiplicity of suits and
oppressive litigation. For, if the trespass v^ere fugitive and temporary,
and adequate compensation could be obtained in an action at law, there
was no ground to justify the interposition of courts of equity. Form-
erly, indeed, courts of equity were extremely reluctant to interfere at
all, even in regard to cases of repeated trespasses. But, later did so, if
the acts done, or threatened to be done, to the property would be ruin-
ous or irreparable, or would impair the just enjoyment of the property
in future. If, indeed, courts of equity had not interfered in cases of
this sort, there, would (as has been truly said) be a great failure of jus-
tice in the country (g). But by the Judicature Act, 1873, s. 25, sub-s.
8, it is provided that if an injunction is asked either before, or at, or
after the hearing of any cause or matter to prevent any threatened or
apprehended waste or trespass, such injunction may be granted, if the
court shall think fit, whether the person against whom such injunction
is sought is or is not in possession under any claim of title or otherwise,
or, if out of possession, does or does not claim a right to do the act
sought to be restrained under any colour of title, and whether the
estates claimed by both, or by either of the parties, are legal or equit-
able (r).
§ 930. It is upon similar principles, to prevent irreparable mischief,
or to suppress multiplicity of suits and vexatious litigation, that courts
of equity interfere in cases of patents for inventions, and in cases of
copyrights, to secure the rights of the inventor, or author, and his
assigns and representatives. It is wholly beside the purpose of the
present Commentaries to enter upon the subject of the general rights of
inventors and authors, or to state the circumstances under which an
exclusive property, in virtue of those rights, may be acquired or lost.
Our observations will rather be limited to the consideration of the cases
in which courts of equity will interfere to protect those rights, when
acquired, by granting injunctions.
§ 931. It is quite plain, that, if no other remedy could be given in
cases of patents and copyrights than an action at law for damages, the
inventor or author might be ruined by the necessity of perpetual litiga-
tion, without ever being able to have a final establishment of his rights,
(o) Hunt V. Peake, Johns, 705; Howley Park Coal and Council Co. v. L. <t N. W.
By., [1911] A. C. 11.
(p) Tapling v. Jones, 11 H. L. C. 290; Colls v. Home and Colonial Stores, [1904J
A. C. 179; Cowper v. Laidler, [1903] 2 Ch. 337; Higgins v. Betts, [1905] 2 Ch. 210.
(g) Thomas v. Oakley, 18 Ves. 184; Haigh v. Jaggar, 2 Coll. 231; Earl Talbot v.
Scott, IK. & J. 96 ; Harrison v. Duke- of Rutland, [1893] 1 Q. B. 142.
(r) Stannard v. Vestry of St. Giles, Camberwell, 20 Ch. D. 190; Foxwell v. Van
Grutten, [1897] 1 Ch. 64.
380 EQUITY JDEI9PRUDENCE. [OH. XXII.

§ 932. Indeed, in cases of this nature, it is almost impossible to

know the extent of the injury done to the party without a discovery
from the party guilty of the infringement of the patent or copyright;
and if it were otherwise, mere damages would give no adequate relief.
For example, in the case of a copyright, the sale of copies by the de-
fendant isnot only in each instance taking from the author the profit
upon the individual book, which he might otherwise have sold ; but it
may also be injuring him, to an incalculable extent, in regard to the
value and disposition of his copyright, which no inquiry for the purpose
of damages could fully ascertain (s).
§ 933. In addition to this consideration, the plaintiff could at law
have no preventive remedy, which should restrain the future use of
his invention, or the future publication of his work, injuriously to his
title and interest. And it is this preventive remedy which constitutes
the peculiar feature of equity jurisprudence, and enables it to accom-
plish the great purposes of justice. Besides, in most cases of this sort,
the bill usually seeks an account, in one case of the books printed, and,
in the other, of the profits which have arisen from the use of the inven-
tion, from the persons who have pirated the same. And this account
will, in all cases where the right is established, be decreed as incidental,
in addition to the other relief by a perpetual injunction (t).
§ 934. In cases, however, where a patent had been granted for an
invention, it was not a matter of course for courts of equity to interpose
by way of injunction. If the patent had been but recently granted,
.and its validity had not been ascertained by* a trial at law, the court
would not formerly act upon its own notions of the validity or invalidity
of the patent, and grant an immediate injunction ; but it would require
it to be ascertained by a trial in a court of law, if the defendant denied
its validity, or put the matter in doubt. But, if the patent had been
granted for some length of time ; and the patentee had put the inven-
tion into public use; and had had an exclusive possession of it under
bis patent for a period of time, which might fairly create the just pre-
sumption ofan exclusive right, the court would, in such a case, ordin-
arily interfere by way of preliminary injunction, pending the proceed-
ings ;reserving, of course, unto the ultimate decision of the cause, its
own final judgment on the merits. But since the Judicature Act, 1873,
the validity or invalidity of the patent is determined in the court which
grants or refuses the injunction (u).
§ 935. Similar principles apply to cases of copyright (x). But it
does not seem indispensable to relief in either cases, that the party

(«) Hogg v. Kirby, 8 Ves. 215 at pp. 224, 225; Wilkins v. Aiken, 17 Ves. 424.
(t) Colbum V. Sims, 2 Hare 543; Lever v. Goodwin, 36 Ch. D. 1. There is a
Btatutory jurisdiction to order the delivery up of pirated copies,
(li) HaUey v. Brotherhood, 15 Ch. D. 514.
(x) Wilkins v. Aiken, 17 Ves. 424.
§ 932—938.] INJUNCTIONS. 381

should have a strictly legal title. It is sufficient that under the patent
or copyright, the party has a clear equitable title (y).
§ 936. There are some peculiar principles, applicable to cases of
copyright, which deserve notice in this place, and are not generally
applicable to patents for inventions. In the first place, no copyright
can exist, consistently with principles of public policy, in any work of
a clearly irreligious, immoral, libellous, or obscene description. In
the case of an asserted piracy of any such work, if it be a matter of
any real doubt, whether it falls within such a predicament or not,,
courts of equity will not interfere by injunction to prevent or to restrain
the piracy ; but will leave the party to his remedy at law (a).
§ 937. It is true, that an objection has been taken to this course
of proceeding, that by refusing to interfere in such cases to suppress
the publication, a court of equity virtually promotes the circulation of
offensive and mischievous books. But the objection vanishes, when
it is considered that the court does not affect to act as a censor morum,
or to punish or restrain injuries to society generally. It simply with-
holds its aid from those who, upon their own showing, have no title to
protection, or to assert a property in things which the law will not,
upon motives of the highest concern, permit to be deemed incapable
of founding a just title or property (a).
§ 938. The soundness of this generous principle can hardly admit
of a question. The chief embajrassment and -difficulty lie in the appli-
cation of it to particular cases. If a court of equity, under colour of
its general authority, is to enter upon all the moral, theological, meta-
physical, and political inquiries, which, in past times, have given rise
to so many controversies, and in the future may well be supposed to
provoke many heated discussions; and if it is to decide dogmatically
upon the character and bearing of such discussions, and the rights of
authors, growing out of them ; it is obvious, that an absolute power is'
conferred over the subject of literary property, which may sap the very

(y) Mawman v. Tegg, 2 Buss. 385.

(z) I am not unaware that Lord Eldon has held the opposite of this doctrine; and
that is, that if it does admit of real doubt, whether the work be irreligious, im-
moral, libellous, or seditious, or not, an injunction ought to be denied, upon the mere
ground of the doubt. It has been thought that there is great difficulty in adopting this
doctrine, denying the protection of an injunction in matters of property upon mere
doubts. Primd, facie the copyright confers title ; and the onus is on the other side tO'
show clearly that, notwithstanding the copyright, there is an intrinsic defect in the
title. See Lawrence v. Smith, Jac. 472.
(o) Walcot V. Walker, 7 Ves. 1 ; Southey v. Sherwood, 2 Meriv. 435 ; Lawrence
V. Smith, Jac. 471, 474, note. But Mr. Kerr, in his work on Injunctions, 3rd edit. p..
497, is of opinion that these cases would not be followed at the present day. As the
learned author remarks, " The right of an author in his manuscript before publication,
is an absolute and exclusive one, and cannot be affected by the nature of the contents.
The nature and character of the work are fit considerations for the court, in determin-
ing whether it ought to be protected after publication under the statutory law of copy-
right, but should not be gone into where a man is illegally deprived of an absolute andi
exclusive right of property."
382 EQUITY JURISPRUDENCE. [CH. XXII.

foundations on which it rests, and retard, if not entirely suppress, the

means of arriving at physical as well as metaphysical truths. Thus,
for example, a judge, who should happen to believe that the immateri-
ality of the soul, as well as its immortality, was a doctrine clearly
revealed in the Scriptures (a point upon which very learned and pious
minds have been greatly divided), would deem any work anti-Christian
which should profess to deny that point, and would refuse an injunc-
tion to protect it. So, a judge, who should be a Trinitarian, might
most conscientiously decide against granting an injunction in favour of
an author enforcing Unitarian views; when another judge, of opposite
opinions, might not hesitate to grant it (b).
§ 939. In the next place, in cases of copyright, difficulties often
arise, in ascertaining whether there has been aji actual infringement
thereof, which are not strictly applicable to cases of patents. For in-
stance, in dealing with the same topic, authors must reproduce the
same ideas, and frequently in identical language (c), or independent
labours may end in the production of identical maps, or designs (d).
So, of translations (e). It is, for instance, clearly settled not to be any
infringement of the copyright of a book, to make bond fide quotations
or extracts from it, or a bond fide abridgment of it; or to make a bond
fide use of the same common materials in the composition of another
■work (/). And a work, consisting partly of compilations and selections
from former works, and partly of original compositions, may be the
subject of copyright (g). But what constitutes a bond fide case of ex-
tracts, or a bond fide abridgment, or a bond fide use of common
materials, is often a matter of most embarrassing inquiry. The true
question, in all cases of this sort, is (it has been said), whether there
has been a legitimate use of the copyright publication, in the fair exer-
cise of a mental operation, deserving the character of a new work. If
there has been, although it may be prejudicial to the original author,
it is not an invasion of his legal rights. If there has not been, then
it is treated as a mere colourable curtailment of the original work, and
a fraudulent evasion of the copyright (h). But this is another mode
of stating the difficulty, rather than a test affording a clear criterion
to discriminate between the cases (i). Pirating the wood engravings

(b) Lawrenoe v. Smith, Jao. 471; Bowman v. Secular Society, Ltd., [1917]
A. C. 406.
(c) Jarrold v. Houldston, 3 K. & J. 708; Pike v. Nicholas, L. E. 5 Ch. 231:
(d) Wilkins v. Aiktn, 17 Ves. 422.
(e) Wyatt v. Barnard, 3 Ves. & B. 77 ; Ghatterton v. Cave, 3 App. Gas. 483.
(/) Campbell v. Scott, 11 Sim. 31. But in Tinsley v. Lacy, 1 H. & M. 747, Lord
Jiatherley said the cases as to abridgment had gone far enough, and expressed his
disapproval of several of the dicta on the subject. See Kerr on Injunctions, 3rd edit
pp. 366, 367.
(g) Lewis v. Fullarton, 2 Beav. 6.
Qi) Kelly v. Morris, L. B. 1 Bq. 697; Pike v. Nicholas, Xj. E. 5 Ch. 251.
(t) See Campbell v. Scott, H Sim. 31; Bramwell v. Haleomb, 3 Myl. & Or. 737;
Lewis v. Fullarton, 2 Beav. 6.
§ 939—940.] INJUNCTIONS. 383

printed in a book as illustrations of the stories therein, and using them

in a book as illustrations of different stories, is an infringement of a
copyright, which may be restrained by injunction [k). It has been held
that a prQse translation of a copyright prose romance, having no quali-
ties of a paraphrase, is not an infringement of the author's copyright
of the original, although the author had procured the work to be trans-
lated into the same language as the alleged infringement, and in that
language also copyrighted (I). A person writing words to an old air,
and procuring an accompaniment and preface, and publishing the whole
together, is entitled to a copyright in the whole (m).
§ 940. A difficulty of a similar character often arises, in the ascer-
tainment of the fact whether a work is original or not. Of some
intellectual productions, the originality admits of as little doubt as the
originality of some inventions or discoveries. But, in a great variety
of cases, the differences between the known and the unknown, between
the new and the old, between the original and the copy, depend upon
shades of distinction extremely minute and almost inappreciable. It
is obvious that there can be no monopoly of thoughts, or of the expres-
sion of them. Language is common to all ; and in the present advanced
state of literature, and learning, and science, most species of literary
works must contain much which is old and well known, mixed up with
something which perhaps is new, peculiar, and original. The character
of some works of this sort may, beyond question, be in the highest sense
original; such, for example, as the works of Shakespeare, and Milton,
and Pope, and Sir Walter Scott; although all of them have freely used
the thoughts of others. Of others, again, the original ingredients may
be so small and scattered, that the substance of the volumes may be
said to embrace little more than the labour of sedulous transcription,
and colourable curtailment of other works. There are others of an
intermediate class, where the intermixture of original and borrowed
materials may be seen in proportions more nearly approaching to an
equality with each other. And there are others, again, as in oases of
maps, charts, translations, and road-books, where, the materials being
equally open to all, there must be a close identity or similitude in the
very form and use of the common materials. The difficulty here is, to
distinguish what belongs to the exclusive labours of a single mind from
vs^hat are the common sources of the materials of the knowledge used
by all. Suppose, for instance, the case of maps : one man may pub-
lish the map of a country : another man, with the same design, if he
has equal skill and opportunity, may by his own labour produce almost
a facsimile. He has certainly a right so to do. But then from his right
through that medium, it does not follow that he would be at liberty

(k) Bogue v. Houlston, 5 De C3-. & Sm. 267; Bradbury v. Hotten, 8 Ex. 1. And,
photographing is within the prohibition. Gambart v. Ball, 14 C. B. N. S. 306.
(!) Murray v. Bogue, 1 Drew. 353.
(m) Leader v. Purday, 17 C. B. 97 ; Wood v. Boosey, 3 Q. B. 228.
384 EQUITY JURISPRUDENCE. [CH. XXII.

to copy the other map, and claim it as his own. He may work on the
same original materials; but he cannot exclusively and evasively use
those already collected and embodied by the skill, industry, and ex-
penditures ofanother (n).
§ 941. In some cases of this nature a court of equity will take upon
itself the task of inspection and comparison of books alleged to be a
piracy (o) ; or the matter may be referred to an expert (p) or to the
master, who then reports whether the books differ, and in what re-
spects; and, upon such a report, the court usually acts in making its
interlocutory, as well as its final decree (g).
§ 942. In cases of the invasion of a copyright by using the same
materials in another work, of which a large proportion is original, it
constitutes no objection that an injunction will in effect stop the sale
and circulation of the work which so infringes upon the copyright. If
the parts which are original cannot be separated from those which
are not original, without destroying the use and value of the original
matter, he who has made the improper use of that which did not belong
to him must suffer the consequences of so doing. If a man mixes
what belongs to him with what belongs to another, and the mixture
is forbidden by the law, he must again separate them, and bear all the
mischief and loss which the separation may occasion. The same rule
applies to the use of literary matter (7*). It proceeds upon the same
general principle of justice which applies to the ordinary case of a con-
fusion of property by premeditation or wanton impropriety (s).
§ 943. We may now proceed to the consideration of other cases
where, upon similar grounds of irreparable mischief, or the inadequacy
of the remedy at law, or the prevention of multiplicity of suits, courts
of equity interfere by way of injunction. And here, we may take
notice, in the first place, of a class of cases bearing a close analogy to
that of copyrights; that is to say, cases where courts of equity inter-
fere to restrain the publication of unpublished manuscripts. In cases
of literary, scientific, and professional treatises in manuscripts, it is
obvious that the author must be deemed to possess the original owner-
ship, and be entitled to appropriate them to such uses as he shall please.
Nor can he justly be deemed to intend to part with that ownership by
depositing them in the possession of a third person, or by allowing a
third person to take and hold a copy of them. Such acts must b*e
deemed strictly limited, in point of right, use, and effect, to the very
occasions expressed or implied, and ought not to be construed as a

(n) Wilkins v. Aiken, 17 Ves. 424, 425; Longman v. Winchester, 16 Ves. 269,
271; Matthewson v. Stockdale, 12 Ves. 270; Carey v. Faden, 5 Ves. 24.
(0) Bramwell v. Holcomb, 3 M. & Cr. 737; Lewis v. Fullarton, 2 Beav. 6.
(p) Gyles V. Wilcox, 2 Atk. 141.
(g) Garnan v. Bowles, 2 Bro. C. C. 80; Lartte v. Leadbetter, 4 Ves. 681.
(r) Mawman v. Tegg, 2 Euss. 112; Ghatterton v. Gave, 3 App. Gas. 483; Leslie
V. Young, [1894] A. C. 335.
(s) Story, Comm. on Bailment, § 40; ante, § § 468, 623.
§ 941 — 945.] , INJUNCTIONS. 385

general gift or authority for any purposes of profit or publication to

which the receiver may choose to devote them. The property, then,
in such manuscripts, not having been parted with in cases of this sort,
if any attempt is made to publish them without the consent of the
author or proprietor, it is obvious that he ought to be entitled to protec-
tion in equity. And, accordingly, this course of granting injunctions
against such unauthorized publications has been constantly acted upon
in courts of equity, and has been applied to all sorts of literary com-
positions (t).
§ 944'. Upon the same principle, the publication of private or confi-
dential letters has been restrained where the publication has been
attempted without the consent of the author (u). Upon one occasion
of this sort the question arose whether letters having this character
remained in any respect the property of the writer after they were
transmitted to the person to. whom they were addressed. It was held
that they did ; that by sending letters the writer does not part wholly
with his property in the literary compositions, nor give the receiver the
power of publishing them, and that at most the receiver has only a
special property in them, and possibly may have the property of the
paper. But this does not give a licence to any person whatsoever to
publish them to the world, unless for the purpose of vindicating his
character, and at most the receiver has only a joint property with the
writer. Whether he is to be considered as having such joint property
or not, letters must be treated as within the laws protecting the rights
of literary property ; and a. violation of those rights in that instance is
attended with the same legal consequences as in the case of an un-
published manuscript of an original composition of any other
description (x).
§ 945. In Gee v. Pritchard (y), Lord Eldon explained the doctrine
of courts of equity on this subject to be founded, not on any notion
that the publication of letters would be painful to the feelings of the
writer, but upon a civil right of property, which the court is bound to
respect. That the property is qualified in some respects ; that, by
sending a letter, the writer has given, for the purpose of reading it, and
in some cases of keeping it, a property to the person to whom the
letter is addressed; yet, that the gift is so restrained, that, beyond
the purposes for which the letter is sent, the property is in the sender.
Under such circumstances, it is immaterial whether the intended
publication is for the purpose of profit or not. If for profit, the party

(t) Macklin v. Richardson, Ambler 694; Abernethy v. Hutchinson, 3 L. J. C. G.

Ch. 209; Caird v. Sime, 12 App. Gas. 326; Mansell v. Valley Printing Co., [1908]
2 Ch. 441.
iu) Pope V. Curl, 2 Atk. 342. See Philip v. Pennell, [1907] 2 Ch, 577.
{x) Lord Percival v. Phipps, 2 Ves. & B. 19; Earl of Lytton v. Devey, 54 L. J.
Ch. 293; Lord Ashburton\. Pape, [1918] 2 Ch. 469.
(y) 2 Swanst. 402.
E.J. 25
386 EQUITY JUKISPRUDENCB. [CH. XXII.

is then selling ; if not for profit, he is then giving that, a portion of

which belongs to the writer.
§ 946. A question has been made, and a doubt has been suggested,
how far the protection ought to be given, to restrain the publication of
mere private letters on business or on family concerns, or on matters
of personal friendship, and not strictly falling within the line of literary
compositions (0).
§ 948. Fortunately for public as well as for private peace and morals,
the learned doubts on this subject have been overruled; and it is now
held, that there is no distinction between private letters of one nature
and private letters of another. For the purposes of pubhc justice,
publicly administered, according to the established institutions of the
country, in the ordinary modes of proceeding, private letters may be
required to be produced and published. But it by no means follows,
that private persons have a right to make such publications on other
occasions, upon their own notion of taking the administration of
justice into their own hands, or for the purpose of vindicating their
own conduct, or of gratifying their own enmity, or of indulging a gross
and diseased public curiosity, by the circulation of private anecdotes, or
family secrets, or personal concerns (a).
§ 949. Principles of a similar nature have been applied for the
assistance of persons, to whom letters are written, and by whom they
are received, in order to protect such letters from publication in any
manner injurious to the rights of property of the lawful owners
thereof (6). So, they have been applied in all cases where the publica-
tion would be a violation of a trust or confidence, founded in con-
tract (c), or implied from circumstances. Thus, for example, where
a person delivers scientific or literary oral lectures, it is not competent
for any person who is privileged to hear them, to publish the substance
of them from his own notes (d) ; for the admission to hear such lectures
is upon the implied confidence and contract, that the hearer will not
use any means to injure or to take away the exclusive right of the
lecturer in his own lectures (e). And one may be restrained by injunc-
tion from publishing the contents of documents, the knowledge of which
he obtains from the production of the documents, as exhibits, or under
the order of the court (/).

(z) Perceval v. Phipps, 2 Ves. & B. 24 to 28.

(o) Gee V. Pritchard, 2 Swanst. 402; Philip v. Pennell, [1907] 2 Ch. 577; Lord
Ashburton v. Pape, [1913] 2 Ch. 469.
(b) Earl of Granard v. Dunkin, 1 Ball & Beat. 207; Thompson v. Stanhope,
Ambler 737.
(c) See Lord Perceval v. Phipps, 2 Ves. & B. 19, 27.
(d) Abemethy v. Hutchinson, 3 L. J. 0. S. Ch. 209; Nichols v. Pitman, 26 Ch. D.
374; Gaird v. Sime, 12 App. Cas. 326.
(e) Williams v. Prince of Wales Life Ins. Co., 23 Beav. 338; Hopkinson v Lord
Burghley, L. R. 2 Ch. 447.
(/) Macklin v. Richardson, Ambler, 694; Morris v. Kelly, 1 Jao. & W. 481.
 § 946—9516.] INJUNCTIONS. 387

§ 950. So, where a dramatic performance has been allowed by the

author to be acted at a theatre, no person has a right to pirate such
performance, and to publish copies of it surreptitiously ; or to act it at
another theatre without the consent of the author or proprietor; for
his permission to act it at a public theatre does not amount to an aban-
donment ofhis title to it, or to a dedication of it to the public at large.
§ 951. So, an injunction will be granted ggainst publishing a maga-
zine in a party's name who has ceased to authorize it (g); so, to
restrain the directors of a joint-stock company from publishing a
prospectus, which, without authority, stated A. to be a trustee of the
company (h); or, from using the name of a newspaper, published by
.the plaintiff, for the fraudulent purpose of deceiving the public, by
suggesting to the public that the plaintiff was in some way interested
in the concern (i). So, an injunction will be granted against vending
an article of trade under the assumed name of a party, or with false
labels, to the injury of the same party, who has already acquired a
reputation in trade by it (fe). So, an injunction will be granted to
restrain the owner from running omnibuses, having on them such names
and words, and devices, as to form a colourable imitation of the words,
names, and devices on the omnibuses of the plaintiff; for this has a
natural tendency to deprive the plaintiff of the fair profits of his busi-
ness, by attracting custom under the false representation that the
omnibuses of the defendant belong to and are under the management
of the plaintifi (I). So, an injunction will be granted to prevent the use
of names, marks, letters, or other indicia of a tradesman, by which to
pass off goods to purchasers as the manufacture of that tradesman,
when they are not so (m).
§ 951a. In applications for injunctions for using trade marks, the
plaintiff must come into court, however, with clean hands. If he has
himself been using false marks, or indulged in practices tending to
deceive the public, relief may be refused in a court of equity (n).
§ 951b. And where one sells his share in a partnership business then
in operation, it imports the sale of the goodwill of the business. This
comprehends every positive advantage which has been acquired by the
firm in carrying on its business, whether connected with the place or
the name of the firm; but it does not imply a prohibition against the
retiring partner carrying on the same business in the same place, so
that he do it under such a name as not to give the impression that he

ig) Hogg v. Kirby, 8 Ves. 215.

(h) Routh v. Webster, 10 Beav. 561.
(i) Walter v. Ashton, [1902] 2 Ch. 282.
(fe) Croft v. Day, 7 Beav. 84; Burgess v. Burgess, 3 De G. M. & G. 896; Turton
V. Turton, i2 Ch. D. 128.
(I) Knott V. Morgan, 2 Keen 213.
(m) Wortherspoon v. Currie, L. E. S H. L. 508; Reddaway v. Banham, [1896]
A. C. 199.
(n) Perry v. Truefitt, 6 Beav. 66; Newman v. Pinto, S7 L. T. 31.
388 EQUITY JURISPRUDENCE. [CH. XXII.

is the successor of the old firm (o). On the sale of the goodwill of a
business the purchaser is entitled to use the vendor's name for ordinary
business purposes (p), but only on condition that he does not, by so
doing, expose the vendor to any liability (q) ; and if, on the sale of a
business, the goodwill is not expressly assigned, there is no right on the
part of the purchaser to use the firm name (r).
§ 951c. A leading case in regard to the extent of the jurisdiction
of courts of equity, as to their remedial justice by way of injunction,
is the Emperor of Austria v. Day and Kossuth (s) ; where it was held
that the plaintiff, although not entitled to an injunction from a court of
equity in England to stop any proceedings there, the object and
tendency of which might be to abridge or destroy his prerogative rights,
and interests as a foreign sovereign with whom the government was on
terms of amity, might maintain an action to restrain the defendant
from manufacturing notes of an insurrectionary government, as it
affected his proprietary rights in respect of the circulating medium.
So a plaintiff resident abroad may obtain the assistance of English courts
to restrain the defendant from acts calculated to lead people to believe
that the goods of the defendant sold in England are those of the plain-
tiff (t). But there is no jurisdiction to restrain the defendant from
committing a tort outside the jurisdiction of English courts (u).
§ 951d. Before the Judicature Acts it was held that the Court of
Chancery had no power by injunction to restrain the publication of a
libel, because its power was confined to cases where there was injury,
either actual or prospective, to property (x), but under the extensive
powers conferred by 36 & 37 Vict. c. 66, s. 25, sub-s. 8, which enacts,
inter alia, that an injunction may be granted by an interlocutory order
of the court, in all cases in which it shall appear to the court to be just
or convenient that such order should be made, it is held that an injunc-
tion can now be granted to restrain the publication of libellous
matter (y), or false representations calculated to injure the plaintifi's
trade (z). This can be done even on an interlocutory application, but

(o) Trego v. Hunt, [1896] A. C. 7 ; Burchell v. Wilde, [1900] 1 Ch. 551 ; Curl
Brothers v. Webster, [1904] 1 Ch. 685.
(p) Levy v. Walker, 10 Ch. D. 436.
(q) Thynn.! v. Shove, 45 Ch. D. 577, 582.
(r) Gray v. Smith, 43 Ch. D. 208.
(«) 3 De Q. P. & J. 217.
(t) Collins Co. V. Broicn, 3 K. &' J. 423; Collins Co. v. Gurwen, 3 K. & J. 428;
Sociite Anonyme Panhard et Levassor v. Panhard Levassor Motor Co., [1901] 2
Ch. 513.
(u) Morocco Bound Syndicate v. Harris, [1895] 1 Ch. 534; Cp. Lecouturier v.
Reg., [1910] A. C. 262.
(x) Prudential Assurance Company v. Knott, 10 Ch. 142.
(y) Saxby v. Easterbrook, 3 C. P. D. 339; Hill v. Hart-Davies, 21 Ch. D. 298;
Thomas v. Edwards, 14 Ch. D. 284; Liverpool Household Stores Association v Smith,
37 D. Ch. 170.
(z) Thorley's Cattls Food Company v. Massam, 6 Ch. D. 582; Spalding v.
Gamage (No. 2), 84 L. J. Ch. 449.
§ 951c— 953.] INJUNCTIONS, 389

the court should be slow to act. For, to justify the court in granting
an interim injunction, it must come to a decision upon the question
of libel or not libel before the jury have decided whether it is a libel or
not. Therefore the jurisdiction is of a delicate nature. It ought only
to be exercised in the clearest cases, where any jury would say that
the matter complained of was libellous, and where if the jury did not
so find, the court would set aside the verdict as unreasonable (a). And
an interlocutory injunction will never be granted unless there is some
reason to suppose that injury will be done either to the person or the
property of the plaintiff (b). So, on the same principle, the court has
jurisdiction to restrain a person from making slanderous statements,
calculated to injure the business of another person, even though such
statements be made orally, and not by writing or printing (c) ; but in
this case, also, the jurisdiction should be exercised with great care (d).
But the court will not restrain, by an interim injunction, trade circulars
honestly issued, even though calculated to damage the plaintiff's busi-
ness, unless there is a very strong prima facie case on- the evidence
before the court that there is a violation qt some contract entered into
between the plaintiff and the defendant (e).
§ 952. Upon similar grounds of irreparable mischief, courts of
equity will restrain a party from making a disclosure of secrets com-
municated tohim in the course of a confidential employment. And
it matters not, in such cases, whether the secrets be secrets of trade or
secrets of title, or any other secrets of the party important to his
interests (/). Thus, a party has been restrained from using the secret
of compounding a medicine not protected by patent, when it appeared
that the secret was imparted to him, to his own knowledge, in breach
of faith or contract, on the part of the person so communicating it (g).
§ 953. Before closing this subject, we shall now proceed to state a
few other cases of special injunctions, in order more fully to illustrate
the nature and linaits of the jurisdiction, and the importance of it, to
prevent a total failure of remedial justice. There are, for instance,
many cases, in which courts of equity will interfere by injunction, to
prevent the sale of real estates; as to restrain the vendor from selling
to the prejudice of the vendee, pending an action for the specific per-
formance ofa contract respecting an estate ; for it might put the latter

(a) Quartz Hill Consolidated Gold Mining Company v. Beall, 20 Ch. D. 501;
Bonnard v. Ferryman, [1891] 2 Ch. 269.
(b) Salomons v. Knight, [1891] 2 Ch. 294.
(c) Hermann Loog v. Bean, 26 Ch. D. 306; Hayward v. Hayward, 34 Ch. D. 198.
{d) Hermann -Loog v. Bean, 26 Ch. D. 306; see p. 317.
(e) Sociiti Anonyme des Manufactures de Glaces v. Tilghman's Patent Sand
Blast Company, 25 Ch. D. 1; Tallerman v. Dowsing Radiant Heat Co., [1900] 1
Ch. 1.
(/) Cholmondeley v. Clinton, 19 Ves. 261, 267 ; Youatt v. Winyard, 1 Jao. &
Walk. 394; Prince Albert v. Strange, 1 Mac. & G. 25.
(g) Morison v. Moat, 9 Hare 255; Amber Size and Chemical Co. v. Manzel,
[1913] 2 Ch. 239.
390 EQUITY JURISPRUDENCE. [CH. XXII.

to the expense of making the purchaser a party, in order to give perfect

security to his title (h). But if the contract is not clearly enforceable
the jurisdiction will not be exercised (i).
§ 954. In like manner, sales may be restrained in all cases where
they are inequitable, or may operate as a fraud upon the rights or
interests of third persons ; as in cases of trusts and special authorities,
where the party is abusing his trust or authority (k). And where sales
have been made to satisfy certain trusts and purposes, and there is
danger of a misapplication of the proceeds, courts of equity will also
restrain the purchaser from paying over the purchase-money (l). And,
genf^rally, where the necessity of the case requires it, a court of equity
will interfere to prevent a defendant from affecting property in litiga-
tion, by contracts, conveyances, or other acts (w).
§ 955. Cases of injunctions against a transfer of stocks, of annuities,
of ships, and of negotiable instruments, furnish an appropriate illus-
tration of the same principle (n) ; as also do injunctions to restrain
husbands from transferring property in fraud of the legal or equitable
rights of their wives (o). -
§ 955a. The question has been made, how far a court of equity has
jurisdiction to interfere in cases of public functionaries, who are exer-
cising special public trusts or functions. As to this, the established
doctrine now is, that so long as those functionaries strictly confine
themselves within the exercise of those duties which are confided to
them by the law, this court will not interfere. The court will not inter-
fere to see whether any alteration or regulation which they may direct
is good or bad; but, if they are departing from that power which the
law has vested in them, if they are assuming to themselves a power
over property which the law does not give them, this court no longer
considers them as acting under authority of their commission, but treats
them, whether they be a corporation or individuals, merely as persons
dealing with property without legal authority (p).
§ 956. We have already had occasion to take notice of the granting
of injunctions in the cases of persons having future interests in chattels,
as in remainder after an immediate estate for life (g). The same prin-
ciple isapplied to cases of personal property, bequeathed as heirlooms,

(fe) Echliff V. Baldwin, 16 Ves. 267 ; Curtis v. Marquis of Buckingham, 3 Ves.

& B. 168; Metropolitan Railway v. Woodhouse, 34 L. J. Ch. 297. See ante § 406,
908.
(t) Hadley v. London Bank of Scotland, 3 De G. J. & S. 63.
(k) Anon., 6 Mad. 10; Parrott v. Congreve, 18 L. J. Ch. 279.
(l) Green v. Lowes, 3 Bro. C. C. 217 ; Matthews v. Jones, 2 Anst. 506.
(m) Great Western Ry. v. Birmingham, dc, Ry., 2 Phil. 597; Shrewsbury and
Chester Ry. v. Shrewsbury and Birmingham Ry., 1 Sm. N. S. 410.
(n) Lord Chedworth v. Edwards, 8 Ves. 46; Hood v. Aston, 1 Euss. 412; Stead
V. Clay, 1 Sim. 294; 4 Euss. 550; ante, § 907.
(o) Flight V. Cook, 2 Ves. Sen. 619; Roberts v. Roberts, 2 Cox 422.
(p) Frewin v, Lewis, 4 Myl. & Cr. 250.
(g) Ante, §§ 843, 844.
§ 954 — 958a.] injunctions. 391

or settled in trust to go with particular estates. Thus, for example,

household furniture, plate, pictures, statues, books, and libraries, are
often bequeathed or settled in trust, to go with the title of certain
family mansions and estates. In such cases, courts of equity will
enforce a due observance of the trust, and restrain the parties having
a present possession from wasting the property or doing any acts incon-
sistent with the trust (r).
§ 957. Injunctions will also be granted in urgent cases to restrain
the sailing of a ship, upon the application of a part-owner whose shai-e
is unascertained, in order to ascertain that share, and to obtain the
usual security, given in the admiralty, for the due return of the ship (s),
or upon the application of ^he buyer, to enforce specific performance
of a contract for the sale and purchase of a ship (t). So, they will be
granted against the removal of timber, which has been wrongfully cut
down (u).
§ 958. Injunctions will also be granted to compel the due observ-
ance of personal negative covenants (x). Thus, in the old case of the
parish bell, where certain persons owning a house in the neighbourhood
of a church entered into an agreement to erect a cupola and clock, Jn
consideration that the bell should not be rung at five o'clock in the
morning to their disturbance. The agreemeijt being violated, an
injunction was afterwards granted to prevent the bell being rung at
that hour (j/). Upon the same ground a celebrated play-writer, who
had covenanted not to write any dramatic performances for another
theatre, was, by injunction, restrained from violating the covenant (a).
So, an author, who had sold his copyright in a work, and covenanted not
to publish any other to its prejudice, was restrained by injunction
from so doing (a).
§ 958a. Notwithstanding some apparent vacillation in the decisions
of the courts of equity, in regard to the propriety of enforcing the
negative portion of a contract by injunction, where they cannot enforce
the specific performance of the affirmative counter stipulations, which
constitute the main basis of the contract, it seems now to be estab-
lished that the court will interfere to prevent the violation of a negative
stipulation in a contract under the circumstances mentioned; but it
must now be considered as settled law, tiiat in the absence of a

(r) Ante, §§ 843, 844, and note, § 845; Gadogan v. Rennet, Cowp. 435, 436; Co.
Litt. 20 a, Hargrave's note (5).
(s) Haley v. Goodson, 1 Meriv. 77; Ghristie v. Craig, 2 Mer. 137. See CastelU
V. Gook, 7 Hare, 89.
(t) Hart V. Herwig, L. E. 8 Ch. 860.
(u) Anon., I Ves. Jun. 93.
(x) Ante, § 710, 718, 721, 722, 850.
iy) Martin v. Nutkin, 2 P. Will. 266.
(z) Morris v. Colman, 18 ^' j. 437.
(a) Barfield v. Nicholson, 2 Sim. & Stu. 1 ; Ingram v. Stiff, 5 Jur. N. S. 947.
392 EQUITY JURISPRUDENCE. [CH. XXII.

negative stipulation in an agreement for service, the remedy of

injunction will not be available, whatever other remedies are open to
a plaintiff (b).
§ 959. Courts of equity also used to interfere, and effectuate their
own decrees in many cases by injunctions, in the nature of a judicial
writ or execution for possession of the property in controversy; as, for
example, by injunctions to yield up, deliver, quiet, or continue the
possession, followed up by a writ of assistance (c). Injunctions of this
sort are older than the time of Lord Bacon, since, in his Ordinances,
they are treated as a well-known process. Indeed, they have been dis-
tinctly traced back to the reign of Elizabeth and Edward the Sixth, and
even of Henry the Eighth (d). In some respects they bore an analogy
to sequestrations ; but the latter process, at least since the reign of
James the First, has been applied not merely to the lands in con-
troversy in the cause, but also to other lands of the party (e). This
form of injunction is now obsolete.
(b) Lumley v. Wagner, 1 De G. M. & G. 604; Whitwood Chemical Co. v. Hard.
man, [1891] 2 Ch. 416.
(c) Penn v. Lord Baltimore, 1 Ves. Sen. 454; Dove v. Dove, 1 Cox 101; s.o. 1
Bro. C. C. 373; 2 Dick. 617; Huguenin v. Baseley, 15 Ves. 180.
(d) Beam. Ord. Ch. 15, 16.
(e) Ibid, and note (c), p. 363; id. 16, and note 55; Barton, Suit in Eq. 87 ; 2 Mad.
Pr. Ch. 163.
§ 959—962.1 TRUSTS. 393

CHAPTER XXIII.
EXCLUSIVE JURISDICTION — TRUSTS.

§ 960. Having taken the general s.urvey of equity jurisprudence in

cases of concurrent jurisdiction, we shall, in the next place, proceed
to the consideration of another head proposed in these Commentaries,
that of Exclusive Jurisdiction. And this again, like the former
head, is divisible into two branches : the one dependent upon the
subject-matter, the other upon the nature of the remedy to be
administered. The former comprehends Trusts, in the largest and
most general sense of the word, whether they are express or implied,
direct or constructive, created by the parties, or resulting by operation
of law. The latter comprehends all those processes or remedies,
which are peculiar and exclusive in courts of equity, and through the
instrumentality of which they endeavour to reach the purposes of
justice in a manner unknown or unattainable at law.
§ 961. And, in the first place, let us examine the nature and
extent of the jurisdiction of courts of equity in matters of trust,
which will be found directly or remotely to embrace most of the
subjects of their exclusive jurisdiction. It has been well observed,
that the principles of law, which guided the decisions of the courts of
common law, were principally formed in tdmes when the necessities
of men were few, and their ingenuity was little exercised to supply
their wants. Hence, it has happened, that there are many rights
according to the principles of natural and universal justice, for
injuries to which the law, as administered by those courts, has
provided no remedy. This is particularly the case in matters of trust
and confidence, of which the ordinary courts of law, in a vast variety
of instances, take no cognizance. The positive law being silent on
the subject, courts of equity, considering the conscience of the party
intrusted, as bound to perform the trust, in order to prevent a total
failure of justice, interfered to compel the performance of it. And, as
they will compel the performance of the trust, so, on the other hand,
they will assist the trustees, and protect them in the due performance
of the trust, whenever they seek the aid and direction of the court
as to the establishment, the management, or the execution of it.
§ 962. For the most part, indeed, matters of trust and confidence
are exclusively cognizable in courts of equity; there being few cases,
except bailments, and rights founded in contract, and formerly
394 EQUITY JURISPRUDENCE. [CH. XXIII.

remedial by an action of assumpsit, and especially by an action for

money had and received, in which a remedy could ever have been
given in the courts of law. Thus, for example, a debt, or chose in
action, was not generally assignable, at law, except in cases of
negotiable instruments. And, hence, the assignee was ordinarily
compellable to seek redress against the assignor and the debtor solely
in courts of equity.
§ 963. It is not within the design of these Commentaries to enter
upon a minute examination of the nature and peculiarities of trusts,
as known to English jurisprudence, or to attempt, by any develop-
ment of the history of their rise and progress, to ascertain the exact
boundaries of the jurisdiction at present exercised over them. In
general, it may be said, that trusts constitute a very important and
comprehensive branch of equity jurisprudence ; and that, when the
remedy in regard to them ends at law, then the exclusive jurisdiction
in equity, for the most part, begins.
§ 964. A trust, in the most enlarged sense in which that term is
used in English jurisprudence, may be defined to be an equitable
right, title, or interest in property, real or personal, distinct from the
legal ownership thereof (a). In other words, the legal owner holds the
direct and absolute dominion over the property in the view of the
law; but the income, profits, or benefits thereof in his hands, belong
wholly, or in part, to others. The legal estate in the property is
thus made subservient to certain uses, benefits, or charges in favour
of others ; and these uses, benefits, or charges constitute the trusts
which courts of equity will compel the legal owner, as trustee, to
perform in favour of the cestui que trust, or beneficiary. Three things
are said to be indispensable to constitute a valid trust : first, sufficient
words to raise it; secondly, a definite subject; and thirdly, a certain
or ascertained object (b).
§ 965. It is in the highest degree probable, that those trusts,
which are exclusively cognizable in courts of equity, were, in their
origin, derived from the Eoman law, being very similar, in their
nature, to the fidei commissa of that law. As the jurisdiction of a
peculiar praetor was created for the express purpose of protecting
property fidei oommissum, so the jurisdiction of our courts of equity,
if not created, was soon extended, for the purpose of protecting and
enforcing the execution of trusts. Indeed, it is impossible to suppose,
that in a country professing to have an enlightened jurisprudence,
obligations and trusts in regard to property, binding in conscience
and duty, and which, ex sequo et bono, the party ought to perform,
should be left without any positive means of securing their due

(o) Lord Hardwicke, in Sturt v. MelUsh, 2 Atk. 612, said : " A trust is, where
there is such a confidence between parties, that no action at law will lie ; but is merely
a case for the consideration of this court."
(b) Malim v. Keighley, 2 Ves. J. 333, 529; Cruwys v. Colman, 9 Ves. 323.
§ 963—968.] TRUSTS. 395
»
fulfilment; or that they might be violated without rebuke, or evaded
with impunity.
§ 966. In the Institutes of Justinian, a summary account is given
of the origin and nature at the Roman fidei commissa. It is there
observed, that anciently all trusts were unenforceable (precarious) ; for
no man could, without his own consent, be compelled to perform what
he was requested to do. But, when testators were unable directly to
bequeath an inheritance or legacy to certain persons, if they did
bequeath it to them, they gave it in trust to other persons, who were
capable of taking it by will. And therefore such bequests were called
trusts {fidei commissa), because they could not be enforced by law,
but depended solely on the honour of those to whom they were
intrusted. Afterwards, the Emperor Augustus, having been frequently
solicited in favour of particular persons, either on account of the
solemn adjurations of the party, or on account of the gross perfidy of
other persons, commanded the consuls to interpose their authority.
This, being a just and popular order, was by degrees converted into a
permanent jurisdiction. So great, indeed, was the favour in which
trusts were held, that at length a special praetor was created to
pronounce judgment in cases of trusts; and hence he was called the
Commissary of Trusts (Fidei Commissarius) (c).
§ 967. This brief sketch of the origin and nature of trusts in the
civil law does, in a very striking manner, illustrate the origin and
nature of trusts in the common law of England, in regard to real
property. It has been well remarked by Mr. Justice Blackstone, that
uses and trusts in English jurisprudence are, in their original, of a
nature very similar, or rather exactly the same, answering more to
the fidei commissum than to -the usus jructus of the civil law; the
latter being the temporary right of using a thing, without having the
ultimate property or full dominion of the substance (d).
§ 968. Lord Coke, describing the nature of a use or trust in land
according to the common law, uses the following language : A use is
a trust or confidence reposed in some other, which is not issuing out
of the land, but as a thing collateral, annexed in privity to the estate
of the land, and to the person touching the land, scilicet, that cesiui
que use (the beneficiary) shall take the profit, and that the term-tenant
shall make an estate according to his direction. So, a cestui que use
had neither jus in re nor ]us ad rem, but only a confidence and trust
for which he had no remedy by the common law; but for breach of
trust his remedy was by subpoena in chancery (e). Thus, we see, that
the original fiduciary estate, from its nature, imparted a right to the

(c) Inst. B. 2, tit. 23, § 1; 2 Black Comm. 327, 328; Bao. on Uses, 19.
(d) Black Comm. 327; Bac. on Uses, 19.
(e) Co. Litt. 272 b; Chudleigh's Case, 1 Co. 121, a, b ; Bac. Abr. Uses and
Trusts, A. B.
396; EQUITY JURISPRUDENCE. [CH. XXIII.

enjoyment of the profits of the land, as distinct from the seisin of the
land, and the rights issuing thereout.
§ 969. The introduction of uses and trusts into England has been
generally attributed to the ingenuity of the clergy, in order to escape
from the prohibitions of the Mortmain Acts. But whether this be
the true origin of them or not, it is very certain that the general
convenience of them in subserving the common interests of society,
as well as in enabling parties to escape from forfeitures in times of
civil commotion, soon gave them an extensive public approbation, and
secured their permanent adoption into the system of English juris-
prudence (/). And they have since been applied to a great variety of
cases, which never could have been in the contemplation of those who
originally introduced them; but which, nevertheless, are the natural
attendants upon a refined and cultivated state of society, where wealth
is widely diffused, and the necessities and conveniences of families, of
commerce, and even of the ordinary business of human life, require
that trusts should be established, temporary or permanent, limited or
general, to meet the changes of past times, as well as to provide for
the exigencies of times to come (g).
§ 970. According to the spirit of over-nice and curious learning
belonging to the age, uses in lands, upon their introduction into
English jurisprudence, were refined upon with many elaborate dis-
tinctions, to cure the mischiefs arising from which the Statute of
Uses of 27 Henry VIII. ch. 10, was enacted, the general intent
of which was to transfer the use into possession, and to make the
cestui que use complete owner of the lands, as well at law as in
equity. But as the statute did not in its terms apply to all sorts
of uses, and was construed not to apply to uses ingrafted on uses
(which constitute one great class of modern trusts in lands), it
failed in a great measure to accomplish the ends for which it was
designed (h). Thus, for example, it was held not to apply to trusts
or uses created upon term of years; or to trusts of a nature requiring
the trustee still to hold out the estate, in order to perform the trusts;
and, generally, not to trusts created in relation to mere personal
property (i).

(/) 2 Black. Comm. 328, 329; Bac. Abr. Uses and Trusts, A. B. ; Gilb. Lex Pr»t.
259, 260. See also Lloyd v. Spillet, 2 Atk. 149, 150 ; Hopkins v. Hopkins, 1 Atk. 591 ;
ante, § 48.
(g) 2 Black. Comm. 330.
(h) 2 Black. Comm. 332, 333; Butler's note (231) to Co. Litt. 271 b.
(i) 2 Black. Comm. 335 to 337; Butler's note (1) to Co. Litt. 290 b, and to Co.
Litt. 271 b, note (1), iii. § 5; Bac. Abr. Uses and Trusts, B., C, D., G., 2 H. ; Bac.
Abr. Trusts, A. It is said, that a tenant by the curtesy cannot stand seised to a use,
for he is in by the act of law in consideration of marriage, and not in privity of
estate; and for a like reason also tenant in dower, by the better opinion, cannot stand
seised to a use. Sanders on Uses, ch. 1, § 11, pp. 62, 63. But in equity such a tenant
would nevertheless be affected by the use or trust.
§ 969—973.] TRUSTS. 397

§ 971. In regard to uses, it seems formerly to have been a matter

of considerable doubt, whether at the common law they could be
raised by parol, or even by writing without a seal. Lord Chief Baron
Gilbert has extracted a distinction from the different cases, which will
in some measure reconcile their apparent contrariety. It is in effect
that a use might be raised at the common law by parol upon any
conveyance which operated by way of transmutation of possession, or
passed the possession by some solemn act, such as a feoffment ; since
the estate itself might, by the common law, pass by a parol feoffment;
and therefore, by the same reason, a use of the estate might be
declared by parol. But where a deed was requisite to the passing of
the estate itself, there a deed was also necessary for the declaration
of the uses. Thus, for example, a man could not covenant to stand
seised to use without a deed (k).
§ 972. However this may have been, the Statute of Frauds of 29
Charles II., ch. 8, s. 7, requires all declarations or creations of trusts
or confidences of any lands, tenements, and hereditaments to be
manifested and proved by some writing, signed by the party entitled
to declare such trusts, or by his last will in writing ; and section 8 of the
statute excepts trusts "of lands or tenements" arising, resulting,
transferred, or extinguished by operation of law, which obviously
excludes declarations of trusts of personalty which may be declared
verbally (I). Neither does it prescribe any pariacular form or solemnity
in writing; nor that the writing should be under seal. Hence, any
writing sufficiently evincive of a trust, as a letter, or other writing of
a trustee, stating the trust, or any language in writing, .clearly expres-
sive of a trust, intended by the party, although in the form of a desire
or a request, or a recommendation, will create a trust by
implication (m). And where a trust is created for the benefit of a
third person, although without his knowledge, he may afterwards
affirm it, and enforce the execution of it in his own favour, at
least, if it has not, in the intermediate time, been revoked by the
person who has created the trust {n}.
§ 978. Uses or trusts, to be raised by any covenant or agreement
of a party in equity, must be founded upon some meritorious or
some valuable consideration; for courts of equity will not enforce
a mere gratuitous gift (donum gratuitum), or a mere moral obligation..
Hence it is, that, if there be a mere voluntary executory trust created,
courts of equity will not enforce it (o). And, upon the same ground,
if two persons for a valuable consideration, as between themselves,.
(k) Gilb. Uaes, 270, 271.
(I) Benbow v. Townsend, 1 M. & K. 506; McFadden v. Jenkins, 1 Phil. 183;
Cochrane v. Moore, 25 Q. B. D. 57.
(to) Vandenberg v. Palmer, 4 K. & J. 204. See Kekewich v. Manning, 1 De G.
M. & G. 176.
(w) Acton v. Woodgate, 2 Myl. & Z. 492.
(o) Jefferys v. Jejferys, Cr. & Ph. 153.
398 EQUITY JURISPRUDENCE. [CH. XXIII.

covenant to do some act for the benefit of a third person, who is a

mere stranger to the consideration, he cannot enforce the covenant
against the two, although each one might enforce it against the
other (p). But it is otherwise in cases where the use or trust is
already created and vested, or otherwise fixed in the cestui que trust ;
or where it is raised by a last vrill and testament (q). Thus, for
example, if A. should direct his debtor to hold the debt in trust for
B., and the debtor should accept the trust, and communicate the fact
to both A. and B., the trust, although voluntary, would be enforced
in favour of B., and binding on A. ; for nothing remains to be done
to fix the trust. So, if A. had declared himself trustee for B. of the
same debt, the saxne doctrine would apply (r).
§ 974. Trusts in real property, which are exclusively cognizable
in equity, are now in many respects governed by the same rules as
the like estates at law, and afford a striking illustration of the maxim
xquitas sequitur legem. Thus, for example, they are descendible,
devisable, and alienable; and heirs, devisees, and alienees may, and
generally do, take therein the same interests in point of construction
and duration, and they are affected by the same incidents, properties,
and consequences, as would under like circumstances apply to similar
estates at law (s). We say generally, because there are exceptions
to the doctrine above stated. Thus, for example, the construction put
upon executory trusts arising under agreements and wills, sometimes
differs, in equity, from that in regard to executed trusts. And trusiis
in terms for years and personalty will be often recognized and
enforced in equity, which would be wholly disregarded at law (t).
§ 975. In regard to trusts, the analogy to estates at the common
law is not only followed, as to the rights and interests of the cestui
que trust, but also as to the remedies to enforce, preserve, and
extinguish those rights and interests. Thus, for instance, there cannot,
strictly speaking, be a disseisin, abatement, or intrusion, as to a trust
estate. But, nevertheless, there may be such an adverse claim of a

(p) Sutton V. Viscount Chetwynd, 3 Mer. 249; Davenport v. Bishop, 2 Y. & 0.

Ch. 451 ; 1 Ph. 698.
(g) In re Gurteis' Trusts, L. E. 14 Eq. 217.
(r) McFadden v. Jenkins, 1 Phil. 152. See also Stapleton v. Stapleton, 14
Sim. 186.
(«) 2 Black. Comm. 337. The most remarkable deviation, in executed trusts, from
the rules in relation to legal estates, is that a man may be tenant by the curtesy of
a trust estate of his wife; but a woman was not, till the Dower Act, entitled to dower
in a trust estate of her husband. Lord Eedesdale, in D'Arcy v. Blake, 2 Sch. & Lefr.
387, has given the best account of the origin of this anomaly.
(f) Austen v. Taylor, Ambler 376 ; s.c. 1 Eden 361 ; Massenburgh v. Ash, 1 Vern.
234, 304. Hence, in executory trusts created by a will, the rule in Shelley's Case,
1 Co. 99 (aa it is called), will not be strictly followed in equity; but the same construc-
tion will be had, as governs in regard to marriage articles, if the same intent 's
apparent on the face of the will. There is, however, a distinction between marriage
articles and executory trusts arising under wills, as to the inference of the intention
of the parties. It is stated post, § 984.
§ 974—976.] TRUSTS. 399

trust estate by an adverse claimant, taking the rents and profits, as

may amount to an equitable ouster of the rightful claimant; and such
as, if continued twelve years, would, by analogy to legal remedies,
bar any assertion of his right in equity (u). We have already had
occasion to consider this subject in reference to statutes of limitations
generally (aj). And it may be here added, that bars, to relief in equity
from lapse of time are also entertained in courts of equity,
independently of the express provisions of any statute of Hmita-
tions {y). By the Judicature Act, 1873, sect. 25, sub-sect. 2, it is
provided that no claim of a cestui que trust against his trustees for
any property held on an express trust, or in respect of any breach of
such trust, shall be held to be barred by any statute of limitations.
But a trustee may also claim the benefit of the Statute of Limitations
except where the claim is founded upon fraud or fraudulent breach of
trust to which he is party or privy, or is to recover trust property or
the proceeds thereof still retained by the trustee and converted to his
use («).
§ 976. It is a general rule in courts of equity, that wherever a
trust exists, either by the declaration of the party, or by intendment
or implication of law, and the party creating the trust has not
appointed any trustee to execute it, equity will follow the legal
estate, and decree the person, in whom it is vested (not being a bond
fide purchaser for a valuable consideration without notice, or other-
wise entitled to protection), to execute the trust, or to transfer the
property: For, it is a rule in equity, which admits of no exception,
that a court of equity never wants a trustee (a). This is often applied
to the cases of powers of sale of lands, given by will for the payment
of debts and other purposes which are in the nature of a trust. In
such cases, if the power becomes extinct at law, either from no person
being appointed in the will to execute it, or from the party designated,
dying before the execution of it, courts of equity will decree the
execution of such trust, and compel the party in possession, as heir or
devisee of the legal estate in the lands, to perform it (b). And,
generally, it may be stated, that where the property has been
bequeathed in trust, without the appointment of a trustee, if it is
personal estate, the personal representative is deemed the trustee ; and
if real estate, the heir or devisee is deemed the trustee, and is bound
to its due execution (c). And now, by the Conveyancing Act, 1881,

(u) Cholmondeley v. Clinton, 2 Jac. & Walk. 1; ihii. 191, note,

(cc) Ante, §§ 55, 529, 771; -post, §§ 1520, 1521. (y) Ante, § 65.
(z) Trustee Act, 1888, sect. 8. In re Somerset, Somerset v. Earl Poullett, [1894]
1 Ch. 231 ; How v. Earl WinteHon, [1896] 2 Ch. 626.
(a) Co. Litt. 290 b. Butler's note (1); Co. Litt. 113 n, Butler's note (51); ante,
§ 98; Dodkin v. Brunt, L. E. 6 Bq. 580; In re Birchall, Birchall v. Ashton, 40 Ch.
D. 436.
(b) Co. Litt. 113 a, Butler's note (1); ibid. 290, Butler's note (1).
(c) 1 Mad. Pr. Ch. 365; Dilrow v. Bone, 3 Giff. 538.
 400 EQUITY JURISPRUDENCE. [CH. XXIII.

sect. 30, it is enacted that where an estate or interest of inheritance, or

limited to the heir as special occupant, in any tenements or heredita-
ments, corporeal or incorporeal, invested- on any trust, or by way of
mortgage in any person solely, the same shall on his death, notwith-
standing any testamentary disposition, devolve to and become vested in
his personal representatives or representative from time to time in like
manner as if the sa,m6 were a chattel real vesting in them or him ; and,
accordingly, all the like powers for one only of several joint personal
representatives, as ' well as for a single personal representative, and
for all the personal representatives together, to dispose of and other-
wise deal with the same, shall belong to the deceased's personal
representatives or representative from time to time, with aU the like
incidents, but subject to all the like rights, equities, and obligations,
as if the same were a chattel real vesting in them or him ; and for
the purposes of this section, the personal representatives, for the time
being of the deceased, -shall be deemed in law his heirs and assigns
within the meaning of all trujsts and powers.
§ 977. The power of a trustee over the legal estate or property
vested in him, properly speaking, exists only for the benefit of the
cestui que trust. It is true, that he may as legal owner do acts to the
prejudice of the rights of the cestui que trust, and he may even
dispose of the estate or property, so as to bar the interests of the
latter therein; as by a sale to a bond fide purchaser, for a valuable
consideration without notice of the trust. But when the alienation is
purely voluntary, or where the estate devolves upon the , personal
representative or personal i-epresentatives of the trustee, or where the
alienee has notice of the trust, the trust attaches to the estate, in the
same manner as it did in the hands of the trustee himself, and it will
•be enforced accordingly in equity (d). And although the trustee may,
by a mortgage, or other specific lien, without notice of the trust, bind
the estate or the property; yet it is not bound by any judgments, or
any other claims of creditors against him (e). How i&v acts of
forfeiture by the trustee ought to be allowed to bind the estate of the
cestui que trust, has been a matter of considerable diversity of
judgment, but by the Forfeiture Act, 1870 (33 & 34 Vict. c. 23),
forfeiture for treason and felony has been abolished.
§ 978. What powers may be properly exercised over trust property,
by a trustee, depends upon the nature of the trust, and sometimes
upon the character and situation of the cestui que trust. "Where the
cestui que trust is of age, or sui juris, the trustee has no right (unless
express power is given) to change the nature of the estate, as by
converting land into money, or money into land, so as to bind the
cestui que trust. But where the ce.stui que trust is not of age, or sui
juris, it is frequently necessary to his interests that the trustee should
(d) Pye V. George, 1 P. Will. 129; Saunders v. Dehew, 2 Vern. 271.
(e) Farr v. Newman, 4 T. E. 621.
§ 977—981.] TRUSTS. 401

possess the power; and in case his interests require the conversion, the
acts of the trustee, bond fide done for such a purpose, seem to be
justifiable.
§ 979. It has also been laid down, as a general rule, that the
cestui que trust may call upon the trustee for a conveyance to execute
the trust (/), and that, what the trustee may be compelled to do by a
suit, he may voluntarily do without a suit (g). But the latter branch
of the rule admits, if it does not require, many qualifications in its
practical application; for, otherwise, a trustee may incur many perils,
the true nature and extent of which may not be ascertainable, until-
there has been a positive decision upon his acts by a court, of equity,
or a positive declaration by such a court, of the acts which he is at
liberty to do (h).
§ 980. Passing from these more general considerations in regard
to Trusts, and the jurisdiction exercised in equity over them, we may
next proceed to examine them under the heads, into which they are
usually divided, of Express Trusts, and Implied Trusts, the latter
comprehending all those trusts, which are called constructive and
resulting trusts. Express trusts are those which are created by the
direct and positive acts of the parties by some writing, or deed, or
will. Not that, in those cases, the language of the iastrument need
point out the nature, character, and limitations of the trust in direct
terms ipsissiv^is verbis ; for it is sufiicient that the intention to create
it can be fairly collected upon the face of the instrument from the
terms used; and the trust can be drawn, as it were, ex visceribus
verboruwr. Implied trusts are those which are deduoible from the
nature of the transaction, as a matter of clear intention, although not
found in the words of the parties ; or which are superinduced upon
the transaction by operation of law, as matter of equity, independent
of the particular intention of the parties.
§ 981. The most usual cases of express trusts are found in pre-
liminary sealed agreements, such as marriage articles, or articles for
the purchase of lands; or in formal conveyances, such as marriage
settlements, terms for years, mortgages, and other conveyances and
assignments for the payment of debts, or for raising portions, or for
other special purposes; or in last wills and testaments, in a variety
of bequests and devises, involving fiduciary interests for private
benefit or public charity. Indeed, many of these instruments (as we
shall abundantly see) will also be found to contain implied, constructive
and resulting trusts; and the separate consideration of them through-
out would, therefore, be scarcely attainable, without frequent
repetitions of the same matters as well as of the same illustrations.

(/) Willis V. Hiscox, 1 M. & Cr. 197 ; Buttanshaw v. Martin, Johns. 89.
(g) See Jervoise v. Duke of Northumberland, 1 Jac. & Walk. 559, 571.
(h) Moody v. Walters, 16 Ves. 302, 303, 807 to 314.
E.J. 26
402 EQUITY JURISPRUDENCE. [CH. XXIII.

§ 982. In regard to each of these subjects, there are a great many

nice and refined doctrines and distinctions, which have been ingrafted
into equity jurisprudence, the full examination of which belongs rather
to single treatises upon each particular topic, than to a general survey
of the system, such as is embraced in the design of the present
Commentaries. It may be added, that many of these doctrines and
distinctions are the creations of courts of equity, acting upon the
enlarged principles of social justice ex sequo et bono, rather than
express trusts created by the acts of the parties, as an exposition and
execution of their declared intentions. So that they may properly be
said to fall within the scope of implied or constructive trusts. In our
subsequent remarks upon all of these topics (which will necessarily
be brief) no attempt will be made nicely to distinguish between those
trusts which are express and those which are implied. Both will
occasionally be blended, unless where the particular nature of the
trusts calls for some discrimination between them.
 § 982, 983. J MARRIAGE SETTLEMENTS. 403

CHAPTER XXIV.
MARRIAGE SETTLEMENTS.

§ 988. And, in the first place, in regard to Marriage Settlements.

Where an instrument, designed as a marriage settlement, is final in
its character, and the nature and extent of the trust estates created
thereby are clearly ascertained and accurately defined, so that nothing
further remains to be done according to the intention of the parties,
there the trusts will be treated as executed trusts, and courts of equity
will construe them in the same way as legal estates of the like nature
would be construed at law upon the same language. Thus, if the
language of the instrument would give a fee-simple to the parents in a
legal estate, they will be held entitled to a fee-simple in the trust
estate (a-). But where no marriage settlement has actually been
executed, but mere marriage articles only for a settlement, there, courts
of equity, when called upon to execute them, will indulge in a wider
latitude of interpretation, and will construe the words, according to
the presumed intention of the parties, most beneficially for the issue
of the marriage. In executing such articles they will put it out of the
power of the parents to defeat the issue, by requiring that the limita-
tions in the marriage settlement should be what are called limitations
in strict settlement; that is to say, instead of giving the parents a
fee tail, the limitations will be made to them for life, with remainders
to the first and other sons in succession, according to seniority, in
the fee tail; and if the articles are applicable to daughters, with
remainder to the daughters as tenants in common in fee-tail, with
cross remainders (b) between them in case of the death of any one of
the daughters without issue, with remainders over (c). And in cases
of executory trusts arising under wills, a similar favourable construction
will be made in favour of the issue in carrying them into effect, if the
. court can clearly see from the terms of the will that the intention of
the testator is to protect the interests of the issue in the same way [d).

(a) Jervoise v. Duke of Northumberland, 1 Jac. & Walk. 559; Cooper v. Kynoch,
L. E. 7 Ch. 398. Marriage settlements are not affected by the Married Women's Pro-
perty Act, 1882, for by 6. 19 of that Act it is provided that nothing in this Act con-
tained shall interfere with or affect any settlement or agreement for a settlement
made, or to be made, whether before or after marriage, respecting the property of
any married woman.
(6) Cross remainders are never implied in a deed. Doe v. Dorvell, 5 T. E. 518.
(c) Rochfort V. Fitzmaurice, 4 Dr. & War. 1.
(d) Lord Glenorchy v. Bosville, Cas. t. Talb. 3.
404 EQUITY JURISPRUDENCE. [CH. XXIV.

§ 984. There is, however, a distinction between executory trusts

created under marriage articles, and those created under wills, which
has been adverted to in some of the reported cases. In cases of
marriage articles, courts of equity will, from the nature of the instru-
ment, presume it to be intended for the protectdon and support of the
interests of the issue of the marriage, and will, therefore, direct the
articles to be executed in strict settlement, unless the contrary purpose
clearly appear. For, otherwise, it would be in the power of the
father to defeat the purpose of protecting and supporting such interests,
and to appropriate the estate to himself. But, in executory trusts
under will, all the parties take from the mere bounty of the testator;
and there is no presumption that the testator means one quantity of
interest rather than another, an estate for life in the parent rather than
an estate tail; for he has a right arbitrarily to give what estate he
thinks fit, to the parent, or to the issue. If, therefore, the words of
marriage articles limit an estate for life to the father, with remainder
to the heirs of his body, courts of equity will decree a strict settlement,
in conformity to the presumed intention of the parties. If the same,
words should occur in executory trusts created by a will, there is no
like presumption of intention, but in each case the matter resolves
itself into a question of construction whether the instrument defines
precisely the interests of the parties, or indicates the objects leaving
the court to define their interests (e).
§ 985. In furtherance of the same beneficial purpose in favour of
issue, courts of equity will construe an instrument which might, under
one aspect, be treated as susceptible of a complete operation at law,
to contain merely executory marriage articles, if such an intent is
apparent on the face of it; for this construction may be most impor-
tant to the rights and interests of the issue (/). So an instrument,
as to one part of the property comprised in it, may be construed to be
a final legal settlement; and as to other property merely to be
executory articles {g).
§ 986. There is also a distinction in courts of equity as to the
parties, in whose favour the provisions of marriage articles will be
specifically executed or not (h). The parties seeking a specific execu-
tion of such articles may be those who are strictly within the reach
and influence of the consideration of the marriage, or claiming through
them; such as the wife and issue, and those claiming under them;

(e) Jenoise v. Duke of Northumberland, 1 J. & W. 559; Rochfort v. Fitzmaurice,

2 Dr. & War. 1 ; Egerton v. Earl Brownlow, 4 H. L. C. 1 ; Sackville-West v. Viscount
Holmesdale, L. E. 4 H. L. 544.
(/) Trevor v. Trevor, 1 P. Will. 622; 5 Bro. P. C. 122.
ig) Papillon v. Voice, 2 P. Wms. 471; Duke of Newcastle v Countess of Lincoln,
3 Ves. 387 ; 12 Ves. 217.
(h) Articles were enforced in favour of husband, though he had broken the contract
on his part, there being part performance by the marriage, and the covenants being
independent. Jeston v. Key, L. R. 6 Ch. 610.
§ 984 989.] MARRIAGE SETTLEMENTS. 405

or tihey may be mere volunteers, for whom the settlor is under no

natural or moral obligation to provide, and yet who are included
within the scope of the provisions in the marriage articles; such as
his distant heirs or relatives, or mere strangers. Now, the distinction
is, that marriage articles will be specifically executed upon the
application of any person within the scope of the consideration of the
marriage, or claiming under such person; but not generally upon the
application of mere volunteers (j). But where the action is brought by
persons who are within the scope of the marriage consideration, or
claiming under them, there, courts of equity will decree a specific
execution throughout, as well in favour of the mere volunteers, as of
the plaintiSs in the suit. So that, indirectly, mere volunteers may
obtain the full benefit of the articles, in the cases where they could
not directly insist upon such rights. The ground of this peculiarity
is, that when courts of equity execute such articles at all they execute
them in toto and not partially (k). They can rectify instruments, but
cannot rectify contracts (I).
§ 987. It has been already stated, that, generally marriage articles
will not be decreed in favour of mere volunteers (m). But an excep-
tion is allowed in the case of a widow who may stipulate for a benefit
in favour of her children by a former marriage, and these children may
enforce that provision {n). This decision is quite anomalous, and
although too long established to be examined, or overruled, is inapplic-
able to the case of the children of a widower (o).
§ 988. In regard to terms for years and personal chattels, it may
be observed, that they are capable of being limited in equity in strict
settlement, so as to be transmissible, like heirlooms. The statute
de donis only extends to real estates of inheritance. But, neverthe-
less, estates pour autre vie, and terms of years, and personal chattels
are now held to be susceptible of being strictly settled, and rendered
inalienable almost for as long a time as if they were strictly
entailable (p).
§ 989. In regard to estates pour amtre vie, they may, at law, be
devised or limited in strict settlement by way of remainder, like
estates of inheritance; and the remainderman will take as special
occupant (g). But those who have an interest therein in the nature of

(t) § § 706a, 793a, 973.

\h.) Davenport v. Bishop, 2 Y. & C. Ch. 451; 1 Ph. 698.
(0 Mackenzie v. Goulson, L. E. 8 Eq. 368, 375.
(m) Ante, § § 95, 169, 706a, 793a; West v. Erissey, 2 P. Will. 349; Kettleby v.
Atwood, 1 Vern. 298, 471.
(n) Newstead v. Searles, 1 Atk. 265; Gale v. Oale, 6 Ch. D. 144.
(o) In re Cameron and Wells, 37 Ch. D. 30.
(p) Ware v. Polhill, 11 Ves. 257; Campbell v. Sanders, 1 Sch. & Lefr, 281;
Christie v. Gosling, L. E. 1 H. L. 279; Countess of Harrington v. Earl of Harring-
ton, L. E. 5 H. L. 87.
(g) Low V. Burron, 3 P. Will. 262, and Mr. Cox's notes; Fearne on Conting, Bern.,
by Butler, pp. 493 to 499 (7th edit.).
406 EQUITY JURISPRUDENCE. [CH. XXIV.

estates tail, may bar their issue, and all remainders over, by the
alienation of the estate pour autre vie, without the formality of
enrolling the assurance within six months after execution (r).
§ 990. In regard to estates in terms of years and personal chattels,
the manner of settling them is different; for in them no remainder
can at law be limited. But they may be entailed at law by an
executory devise, or by a deed of trust in equity, as effectually as
estates of inheritance, and with the same limitations as to per-
petuity (s). However, the vesting of an interest in a term for years
or in chattels in any person, equivalent to a tenancy in tail, confers
upon such person the absolute property in such term or chattels, and
bars the issue, and all subsequent limitations, as effectually as a deed
enrolled would do in cases of pure entails, or as an alienation would
do in the case of conditional fees, and estates pour autre vie (t). If,
in the case of a term of years, or of chattels, the limitations over are
too remote, the whole property vests in the first taker (m).
§ 991. In marriage settlements it is that we principally find limita-
tions made to trustees to preserve contingent remainders. Trusts of
this sort arose out of the doctrine in Chudleigh's Case (w), and
Archer's Case (x), although it is said, that they were not put in
practice until the time of the Usurpation; they represented " the
most common way of conveyancing to prevent the disappointing con-
tingent estates " so early as 1662 (y). The object of these limitations
was to prevent the destruction of contingent remainders by the tenant
for life, or other party, before the rennainder comes m esse, and is
vested in the remainderman. The great dispute in Chudleigh's Case
was concerning the power of feoffees to uses, created since the Statute
of Uses of 27 Henry VIII. ch. 10, to destroy contingent uses by
fine or feoffment before the contingent uses came into being. It
was determined, that the feoffees possessed such a power; and also,
that they had in them a possibility of seisin to serve such contingent
uses when they come into being, and a scintilla juris, or power of
entry, in case their estate was devested, to restore that possibility.
At this time it had not been decided that the destruction of the
particular estate for life, by the feoffment or other conveyance of the
cestui que use for life, before the contingent remainder became vested,

(r) Co. Litt. 20 a, note (5) ; Pearne on Conting. Rem., by Butler, pp. 493 to 499
(7th edit.) ; Blake v. Luxton, Q. Coop. 178.
(s) Co. Litt. 18 b, Hargrave's note (7); Co. Litt. 20
94, 95; Fearne on Conting. Rem., by Butler, 402, 403 (7th o,edit.);
Hargrave's note (5); Co.
1 Mad. Pr. Ch. 367.
(t) Murthwaite v. Jenkinson, 2 B. & C. 357; Ward v. Bevill, 1 Y. & J. 512;
Countess of Harrington v. Earl of Harrington, L. R. 5 H. L. 87.
(u) Co. Litt. 20 a, Hargrave's note (5); 1 Mad. Pr. Ch. 367.
iw) 1 Co. 120.
(x) 1 Co. 66.
(y) Loyd v. Brooking, 1 Vent, at p. 189 ; Fearne on Conting. Rem., by Butler 325
326 (7th oditi
§ 990 — 994.] MARRIAGE SETTLEMENTS. 407

was a destruction of the contingent remainder. But that point was

settled in the affirmative a few years afterwards in Archer's Case (2).
§ 992. There being then at law, under these determinations, a
power in the general feoffees to uses, either to preserve or to destroy
these contingent uses ad libitum, and also a power in the cestui que
use for life also to destroy them, there arose a necessity to remedy
these defects. And it was done by limiting a vested estate to named
trustees and their heirs, during the life of the person entitled to the
antecedent life estate, upon an express trust to preserve such contin-
gent remainders. So that thereby the whole inheritance might come
entire to the cestui que use in contingency, in like manner as trustees
to uses ought to have preserved them before the Statute of Uses,
when they were but trusts to be executed by courts of equity (a).
§ 993. It was at first a question, whether upon such a. limitation
to trustees, after a prior limitation for life, they took any estate in
the land, or only a right of entry on the forfeiture or surrender of the
first tenant for life, by reason that the limitation, being only during
his life, could not commence or take effect after his death. But it
was settled, that the trustees had the immediate freehold in them, as
an estate pour autre vie ; and at law they could maintain and defend
any action respecting the freehold (b). Upon this ground it is that
such trustees are entitled to an injunction in equity to prevent waste
in the lands, and in mines, and timber thereon ; as these constitute a
valuable, and sometimes the most valuable, portion of the inheritance,
which the trustees are bound to preserve (c).
§ 994. On the other hand, courts of equity would treat, as a distinct
breach of trust, every act of such trustees inconsistent with their
proper duty, and will give relief to the parties injured by such mis-
conduct (d). If, therefore, they should, in violation of their trust, join
in any conveyance to destroy the contingent uses or remainders, they
were held responsible therefor. If the persons, taking under such
conveyance, were volunteers, or had notice of the trust, they were
held liable to the same trusts, and decreed to restore the estate. If
they were purchasers without notice, then the lands were, indeed,
discharged of the trust; but the trustees themselves would be held
liable for the breach in equity, and would be decreed to purchase
lands vdth their own money, equal in value to the lands sold, and to
hold them upon the same trusts and limitations as they held those
sold by them (e).

(z) Archer Case, 1 Co. 66 ; Feame on Conting. Rem., by Butler, 290, and note (h) ;
id. 291 to 301 ; Chudleigh's Case, 1 Co. 120. (a) Garth v. Cotton, 1 Dick. 194.
(6) Pearne on Conting. Eem., by Butler, 217, 326 (7th edit.) ; Parkhurst v. Smith,
Willea, 327.
(c) Garth v. Cotton, 1 Dick. 195 to 197, 205, 208, 219; Stansfield v. Habergham,
10 Ves. 278. (d) Garth v. Cotton, 1 Dick. 199.
(e) Mansel v. Mansel, 2 P. Will. 678; Biscoe v. Perkins, 1 V. & B. 485; Fearne
on Conting. Rem., by Butler, 326, 327 (7tli edit.).
408 EQUITY JURISPRUDENCE. [CH. XXIV.

§ 995. But it was not every case, in which a trustee had joined
in a conveyance to destroy contingent remainders, that they would be
deemed guilty of a breach of trust. In some cases courts of equity
might even compel them to join in conveyances, which would affect
or destroy such remainders. And, in such cases, it has been supposed
that what they might be compelled to do by suit, if voluntarily done,
would not be deemed a breach of trust. But the cases, in which
courts of equity would compel trustees to join in such conveyances,
were (as has been correctly said) rare. They had happened under
peculiar circumstances; either of pressure to discharge incumbrances
prior to the settlement; or in favour of creditors, where the settlement
was voluntary ; or for the advantage of persons, who were the first
objects of the settlement; as for example, to enable the first son to
make a settlement upon an advantageous marriage (/).
§ 996. There is no question, however, that the trustees might join
with the cestui que trust in tail in any conveyance to bar the entail;
for that was no breach of trust, but precisely what they might be
compelled, upon seeking instructions from the court, to do ; although
the cestui que trust himself might have barred such entail without
their joining in it. But there was a great distinction between cases
where courts of equity would compel trustees to join in a conveyance
to destroy contingent remainders, and cases where they would decree
them to be guilty of a breach of trust for such an act when it was
voluntarily done by them. Thus, for example, courts of equity would
not punish trustees, as guilty of a breach of trust, for joining in a
conveyance of the cestui que trust in tail, to bar the entail. And
yet it is equally clear, that they would not compel them to join in such
conveyance. The ground of this distinction was, that trustees to
support contingent remainders were considered as honorary trustees
for the benefit of the family; and the interests of mankind required
them to be treated as such by all courts of justice. And unless a
violation of their trust appeared, courts of equity ought not to have
taken away all their discretion ; or to direct them not to join in any
conveyance without the order of such a court, although the trustees
might be of opinion that the interests of the family required it. The
effect of such a doctrine would have been to make the courts of equity
the trustees of all the estates in the country [g).
§ 996a. The learning as to the duties of trustees to preserve con-
tingent remainders has been rendered of little importance by the
Amendment of the Law of Eeal Property Act, 8 & 9 Vict.' c. 106,
which enacted that a contingent remainder shall be, and if created
before the passing of the Act shall be deemed to have been capable

(/) Fearne on Conting. Rem., by Butler, 331 to 337 and the cases there cited;
Moody V. Walters, 16 Ves. 283.
(g) Fearne on Conting. Rem., by Butler, 331 to 337 and the cases there cited;
Moody V. Walters, 16 Ves. 283; Biscoe v. Perkins, 1 Ves. & B. 485.
§ 995 — 996a.] marriage settlements. 409

of taking effect, notwithstanding the determination by forfeiture,

surrender, or merger, of any preceding estate of freehold, in the same
manner in all respects as if such determination had not happened.
And by 40 & 41 Vict. c. 33, it was enacted that every contingent
remainder created by any instrument executed after the passing of the
Act, which would have been valid as a springing or shifting use or
executory dovise or other limitation, had it not had a sufficient estate
to support it as a contingent remainder, shall, in the event of the
particular estate determining before the contingent remainder vests,
be capable of taking effect in all respects as if the contingent remainder
had originally been created as a springing or shifting use or executory
devise or other executory limitation.
410 EQUITY JURISPRUDENCE. [CH. XXV.

CHAPTER XXV.
TERMS FOE YEARS.

§ 998. In the next place, in regard to Terms for Years, whereby

trusts are created to subserve the special objects of the parties. The
creation of long terms for yeaxs, for the purpose of securing money
lent on mortgage of the land, took its rise from the inconveniences
of the ancient way of making mortgages in fee by way of feoffment
and other solemn conveyances, with a condition of defeasance. For,
by such mode, if the condition was not punctually performed, the
estate of the mortgagee became absolute at law and was subject to
incumbrances made by him, and even (as some thought) to the dower
of his wife. Hence it became usual to create long terms of years upon
the like condition; because, among other reasons, such terms on the
death of the mortgagee became vested in his personal representatives,
who were also entitled to the debt, and could properly discharge
it (a). But, as this subject will be more fully considered hereafter (b),
it is only necessary to say in this place, that, by analogy to the case of
mortgages, terms for years were and are often created for securing
portions for children, and for other special trusts. Such terms did not
determine upon the m^ere performance of the trusts for which they were
created, unless there were a special proviso to that effect in the deed.
The legal interest thus continued in the trustee after the trusts were
performed ; although the owner of the fee was entitled to the equitable
and beneficial interest therein. At law the possession of the lessee for
years is deemed to be the possession of the owner of the freehold (c).
And, by analogy, courts of equity held that where the tenant for the
term of years was but a trustee for the owner of the inheritajice, he
should not oust his cestui que trust, or obstruct him in any act of
ownership, or in making any assurances of his estate. In these
respects, therefore, the term was consolidated with the inheritance.
It followed the descent to the heir, and all the alienations made of the
inheritance, or of any particular estate or interest carved out of it by
deed, or by will, or by act of law (d). In short, a term attendant upon

(a) Co. Litt. 290b, Butler's note (1), § 13; ibid. 208a, note (1); Bac. Abr.
Mortgage, A.
(b) See post, Chapter on Mortgages, § § 1004 to 1035.
(c) Jefferson v. Morton, 2 Wms. Saund. at p. 22, note (4).
(d) Co. Litt. 290b, Butler's note (1), § 13.
§ 998 — 999a.] ' terms foe years. 411

the inheritance by express declaration, or by implication of law, may

be said to be governed in equity by the same rules, generally, to which
the inheritance is subject.
§ 999. Still, although the trust or benefit of the term was annexed
to the inheritance, the legal interest of the term remained distinct and
separate from it at law, and the whole benefit and advantage to be
made of the term arose from this separation. For, if two or more
persons had claims upon the inheritance under different titles, a term
of years attendant upon it was still eo distinct from it, that, if any one
of them obtained an assignment of it, then (unless he is affected by
some of the circumstances which equity considers as fraudulent, or as
otherwise controlling his rights) he was entitled, both at law and
in equity, to the estate for the whole continuance of the term, to the
utter exclusion of all the other claimants (e). This, if the term was
of long duration, absolutely deprived all the other claimants of the
enjoyment of the land.
§ 999a.. The learning on this subject is obsolete in England, and
all satisfied terms which are attendant upon the inheritance either by
express declaration or by construction of law have ceased and deter-
mined since December 31, 1845, by force of the statute 8 & 9 Vict.
c. 112. And the statute also enacts that every satisfied term of
years, although by the Act made to cease and determine, is to afford
every person the same protection against incumbrances as it would
have afforded if it had continued to exist, and then for the purpose
of such protection be considered in every court of law and of equity to
be a subsisting term.

(e) Willoughby v. Willoughby, 1 T. E. 763.

412 EQUITY JURISPRUDENCE. ' [CH. XXVI.

CHAPTER XXVI.

MORTGAGES.

§ 1004. In the next place as to Mortgages. It is wholly unnecessary

to enter into a minute examination of the origin and history of this
well-known and universally received security in the countries governed
by the common law. During the existence of the system of feudal
tenures in its full rigour, mortgages could have had no existence in
English jurisprudence, as they were incompatible with the leading
objects of that system (a). The maxim of the feudal law was
" Feudalia, invito domino, aut agnatis, non recte subjiciuntur
hypothecae, quamvis fructus, posse esse, receptum est" (b). But,
as soon as the general right of alienation of real property was admitted,
the necessities of the people almost immediately led to the introduction
of mortgages (c). Littleton has enumerated two sorts, which were
distinguished by the names of vadium vidum, and vadium
mortuum (d). The latter was, in the common law, oaUed a
mortgage, from two French words, m,ort {m,ortuum,, or dead), and
g^a^e {vadium, pignus, or pledge), because if not redeemed at the
stipulated time, it was dead to the debtor (e). The former was called
simply a" living pledge, in contradistinction to the latter, for the reason
given by Lord Coke. " Vivum autem dicitur vadium, quia nunquam
moritur ex aliqua parte, quod ex suis proventubus acquiratur " (/).
Thus, if a man borrowed £100 of another, and made over an estate of
lands to him, until he received the same sum out of the issues and
profits of the land, it was called a vivum, vadium,; for neither the
money nor the land dieth or is lost. But, if a feoffment was made of
land, upon condition that, if the feoffor paid to the feoffee the sum of
£100 on a certain day, he might re-enter on the land; there, if he did
not pay the sum at the day, he could not, at the common law, after-

(o) Glanville, Lib. 10, c. 6.

(b) Bac. Abr. Mortgage, A.
(c) 2 Fonbl. Eq. B. 3, ch. 1, § 1, and note (o).
(d) Litt. § § 327, 332; Co. Litt. 202b, 205o. " A mortuum vadium was similar
to, and was probably derived from, the antichnesis of the Roman Law." Edwards
on Property in Land, 2 Ed. p. 223, note (Ji).
(e) Glanville seems to give a somewhat different explanation. " Mortuum vadium
dicitur illud, cujus fructus vel reditus interim percepti in nullo se acquietant." Glanv.
Lib. 10, 0. 6.
(/) Co. Litt. 205 a.
§ 1004—1006.] MORTGAGES. 413

wards re-enter ; but (as Littleton said) the land was taken away from
him for ever, and so dead to him. And if he did pay at the day, then
the pledge was dead as to the feoffee ; and, therefore, the feoffee was
called tenant in mortgage, the estate being mortuum vadium {g).
§ 1005. It has been generally supposed, that the notion of mort-
gages, and of the redemption thereof, in the English law, was borrowed
from the Eoman law, although Mr. Butler contends that they were
strictly founded on the common law doctrine of conditions (h). What-
ever truth there may be in this latter observation, as to the origin of
mortgages of lands in the English law, there is no doubt that the notioa
of the equity of redemption was derived from the Eoman law, and that
it is purely the creature of courts of equity. In the Roman law there
were two sorts of transfers of property, as security for debts ; namely,
the pignus and the hypotheca. The pignus, or pledge, was when any-
thing was pledged as a security for money lent, and the possession
thereof was passed to the creditor, upon the condition of returning it
to the owner when the debt was paid. The hypotheca was, when the
thing pledged was not delivered to the creditor, but remained in the
possession of the debtor (t). In respect to what was called an hypothe-
cary action. there was no difference between them. " Inter pignus "
(says the Institutes) " autem et hypothecam (quantum ad actionem
hypotheearium attinet) nihil interest; nam de qua re inter creditorem
et debitorem convenerit, ut sit pro debito obligata, utraque hac appella-
tione continetur. Sed in aliis differentia est. Nam pignoris appella-
tione eam proprie rem contineri dieimus, quae simul etiam, traditur
ereditori ; maxime si mobilis sit. At eam quas sine traditione nuda
conventione tenetur, proprie hypothecae appellatione contineri diei-
mus " (fe). The Digest states the distinction with still more pregnant
brevity. ' ' Proprie pignus dieimus, quod ad creditorem transit -
hypothecam, cum non transit, nee possessio ad creditorem " (l).
§ 1006. In the Roman law, it seems that the word pignus was
often used indiscriminately to describe both species of securities,
whether applied to movables or immovables. Thus, it is said in the
Digest : ' ' Pignus contrahitur non sola traditione, sed etiam nuda con-
ventione, etsi non traditum est " (m). But, in an exact sense, pignus
was properly applied to movables, and hypotheca to immovables..

(g) Littleton, § 332; Co. Litt. 206a; 2 iSlaek. Comm. 157.

(K) In respect to mortgages of lands, this opinion of Mr. Butler's is certainly
entitled to great consideration ; for Littleton expressly puts mortgages as estates on
conditions. In respect to mortgages and pledges of personal property, there may have
been originally a distinction, borrowed from the civil law. Glanville, Lib. 10, c. 6.
Courts of equity, in a great variety of cases of both sorts, act upon the principles of
tlie civil law.
(i) Bac. Abr. Mortgage, A.; Byall v. Rolle, 1 Atk. 166, 167; Story on Bailments,,
§ 286.
(7c) Just. Inst. Lib. 4, tit. 6, § 7; Dig. Lib. 20, tit. 1, f. 5, § 1.
(n Dig. Lib. 13, tit. 7, f. 9, § 2.
(to) Ihid. tit. 13, f. 1.
414 EQUITY JURISPRUDENCE. [CH. XXVI.

" Pignus appellatum " (says the Digest) "a pugno, quia res quae
pignori dantur, manu traduntur. Unde etiam videri potest verum esse,
quod quidam putant, pignus proprie rei mobilis constituti " (w). So
that it answered very nearly to the corresponding term pledge in the
common law, which, although sometimes used in a general sense to
include mortgages of land, is, in the stricter sense, confined to the pawn
and deposit of personal property. In the Eoman law, however, there
was generally no substantial difference in the nature and extent of the
rights and remedies of the parties, between movables and immovables,
whether pledged or hypothecated. But in the common law, as we shall
presently see, the difference as to rights and remedies between a pledge
of personal property and a mortgage of real estate, or even of personal
property, is very marked and important (o).
§ 1007. In the Eoman law there were two sorts of actions, applic-
able to pledges and hypothecations ; the action called actio pignera-
titia, and that called actio hypothecaria. The former was properly
an action in personam, and divisible into two sorts: (1) Actio directa,
which lay in favour of the debtor against the creditor to compel him
to restore the pledge when the debt had been paid (p) ; (2) Actio con-
traria, which lay in favour of the creditor against the debtor, to recover
the proper value or compensation, when the latter had retained posses-
sion of the pledge, or when the title to it had failed by fraud or other-
wise ;or when the creditor sought compensation for expenses upon
it (g). The actio hypothecaria, on the other hand, was strictly in rem,
and was given to the creditor to obtain possession of the pledge, in
whosesoever hands it might be.
§ 1008. Without dwelling more upon topics of this sort, which are
purely technical, it may be useful to state as illustrative of some of the
doctrines admitted into equity jurisprudence, that under the civil law,
although the debt for which the mortgage or pledge was given, was not
paid at the stipulated time, it did not amount to a forfeiture of the right
of property of the debtor therein. It simply clothed the creditor with
the authority to sell the pledge and reimburse himself for his debt,
interest, and expenses ; and the residue of the proceeds of the sale then
belonged to the debtor. It has been supposed by some writers, that
to justify such a sale, it was indispensable that it should be made under
a decretal order of some court upon the application of the creditor.
But, although the creditor was at liberty to make such an application,
it does not appear that he might not act, in ordinary cases, without
any such judicial sanction, after giving the proper notice of the intended
sale, as prescribed by law, to the debtor. When the debtor could not

(n) Ibid. tit. 13, f. 50, tit. 16, f. 238, § 2; Story on Bailments, § 286; Ryall v.
Bowles, 1 Ves. 338; s.c. 1 Atk. 166, 167.
(o) Story on Bailments, § 286, 287.
(p) Just. Inst. Lib. 3, tit. 15, § 4.
iq) Dig. Lib. 13, tit. 7, f. 3, § § 8, 9.
§ 1007—1010.] MORTGAGES. 415

be found, and notice could not be given to him, such a decretal order
seems to have been necessary (r). And, vi'here a sale could nat be
effected, a decree, in the nature of a foreclosure, could be obtained
under certain circumstances, by which the absolute property would be
vested in the creditor (g).
§ 1009. This authority to make a sale, might be exercised, not only
when it was expressly so agreed between the parties, but when the
agreement between them was silent on the subject. Even an agree-
ment between them, that there should be no sale, was so far invalid,
that a decretal order of sale might be obtained upon the application of
the creditor (t). On the other hand, if by the agreement it was

expressly stipulated that," if the debt was not paid at the day, the
property should belong to the creditor in lieu of the debt, such a stipu-
lation was held void as being inhuman and unjust (u).
§ 1010. In some cases, also, by the civil law, a sort of tacking of
debts could be insisted on by the mortgagee against the mortgagor; but
not against intermediate incumbrancers (a;). And where movables and

(r) Cod. Lib. 8, tit. 34, f. 3, § § 1 to 3; Story on Bailments, § 309.

(s) Cod. Lib. 8, tit. 34, f. 3, § § 2, 3; Story on Bailments, § 309.
(t) Dig. Lib. 13, tit. 7, f. 4; Cod. Lib. 8, tit. 28, 1. 14.
(«) Cod. Lib. 8, tit. 35, 1. 3.
(s) Ibid. 27, f. 1; Dig. Lib. 20, tit. i, f. 20. In a previous part of this work
(§ § 415, 420) it was stated, that the doctrine of tacking mortgages was not
known in the civil law. Of course, the remarks there made were applicable tn
the case of tacking a first and third mortgage, to the exclusion of an intermediate
mortgagee; and not what may be called a tacking of debts by the mortgagee, in the
case of a mortgagor seeking redemption. It is clear that the civil law, in the case of
the mortgagor seeking to redeem, did not permit it, unless the mortgagor paid, not
only the debt for which the mortgage was given, but all other debts due to the mort-
gagee. Si in possessione fueris constitutus (says the Code) nisi ea quoque pecunia
tibi a debitore reddatur, vel offeratur, quss sine pignore, debetur, earn restituere propter
exoeptionem doli mali non cogeris. Jure enim contendis, debitores earn solam pecu-
niam, cujus nomine ea pignora obligavenmt, offerentes audiri non oportere, nisi pro
ilia satisfecerint, quam mutuam simpliciter acoeperunt. But then it is immediately
added that this does not apply to the case of a second creditor. Quod in secundo credi-
tore locum' non habet ; nee enim iLecessitas ei imponitur chirographarium etiam
debitum priori creditore offere. (Cod. Lib. 8, tit. 27, f. 1.) For it was expressly held
in the civil law that, where there was a first mortgage, and then a second mortgage,
and then the first mortgagee lent another sum to the debtor, he could not tack it
against the second mortgagee. Pothier, Pand. Lib. 20, tit. 4, n. 10; Dig. Lib. 20,
tit. 4, f. 20. Mr. Chancellor Kent (4 Kent, Comm. Lect. 58, p. 136, note (o) ; ibid.,
pp. 175, 176, 3rd edit.) has said, that, in the civil law, the mortgagee was even
allowed to tack another incumbrance to his own, and thereby to gain a preference
over an intermediate incumbrance; for which he cites Dig. Lib. 20, tit. 4, f. 3. If,
as I presume, his meaning is, that the tacking gave a preference over the intermediate
incumbrancer; with great deference, I do not find that the passage cited supports the
doctrine ; and it seems contrary to the passages already cited from Cod. Lib. 8, tit. 27,
1. 1, and Dig. Lib. 20, tit. 4, f. 20. There are other passages in the Code, on the
subject of a subsequent mortgagee acquiring the rights of a first mortgagee, by paying
his mortgage, and thereby confirming his own title by substitution. But it appears
to me that they do no more than subrogate the subsequent mortgagee to all the rights
of the first mortgagee; and that they do not enlarge thoae rights. See Code, Lib. 8,
tit. 18, 1. 1, 5; 1 Domat, B. 3, tit. 1, § 3, arts, 7, 8; ibid. B. 3, tit. 1, § 6, arts. 6, 7 ;
Heinecc. Elem. Pand. Ps. 4, tit. 4, § 35. Doctor Brown, too (1 Brown, Civ. Law,
416 EQUITY JUEISPEUDENCB. [CH. XXVI.

immovables were included in the same mortgage, the movables were

first to be sold and applied in the course of payment (y).
§ 1011. These instances are sufficient to show some .strong analogies
between the Koman law and the equity jurisprudence of England on
the subject of mortgages, and to evince the probability, if not the
certainty, that the latter has silently borrowed some of its doctrines
from the former source. But to develop them at large would occupy
too much space; and we may now, therefore, return to the more
immediate subject of mortgages at the common law.
§ 1012. We have already had occasion to take notice of the incon-
veniences attendant upon the creation of mortgages in fee, and of the
substitution in their stead of terms for years (z). But, in truth,
whether the one course or the other was adopted, so far as the common
law was concerned, the mortgagor was subjected to great hardships and
inconveniences, if he did not strictly fulfil the conditions of the mort-
gage at the very time specified ; as he thereby forfeited the inheritance,
or the term, as the case might be, however great might be its intrinsic
value, compared with the debt for which it was mortgaged.
§ 1013. Courts of equity, therefore, acting upon their general prin-
ciples, could not fail to perceive the necessity of interposing to prevent
such manifest mischief and injustice, which were wholly irremediable
at law. They soon arrived at the just conclusion, that mortgages ought
to be treated as the Roman law had treated them, as a mere security
for the debt due to the mortgagee ; that the mortgagee held the estate,
although forfeited at law, as a pledge (a) ; and that the mortgagor had,
what was significantly called an equity of redemption, which he might
enforce against the mortgagee, as he could any other equitable right,
if he applied within a reasonable time to redeem and offered a full pay-
ment of the debt, and of all equitable charges. The title to relief has
been rested upon the general ground that time was not deemed of the
essence of the contract, subject to the limitation regarding stale
claims (fc). It may also be referred " to the common rule of the court,
as to conditions precedent. If the court can put the parties in the same
situation as if the condition had been performed, it will never suffer a

208; id. 202), insists that a mortgagee might tack another incumbrance to his mort-
gage; and if he lent more money by way of further charge on the estate, he was, in
the civil law, preferred, as to this charge also, before a mortgage, created in the inter-
mediate time. He cites the Dig. Lib. 20, tit. i, f. 3, which does not (as has been
already stated) seem to support the conclusion. In the equity jurisprudence of England
(as we have seen), the heir of a mortgagor cannot (although the mortgagor himself
may) redeem without paying the bond-debt of the mortgagor, as well as the mortgage
debt. Ante, § 418; and tacking is also permitted against mesne incumbrancers in cer-
tain cases. See ante, § § 412 to 419.
(y) Dig. Lib. 42, tit. 1, f. 16, § 2.
(«) Ante, § 998.
(a) Thornbrough v. Baker, 1 Ch. Gas. 283; 3 Swanst. 628.
(b) Seton v. Slade, 7 Ves. 265.
§ 1011 — 1015.] MORTGAGES. 417

forfeiture to attach " (c). The latter seems the safer ground as a
mortgage could not be made irredeemable by contract (d).
§ 1014. These doctrines of courts of equity, were at first strenuously
resisted, and found little public favour owing to the rigid character of
the common law, and the sturdy prejudices of its advocates. We are
tpld by Lord Hale, that, in the fourteenth year of Eichard II., Parlia-
ment would not admit of an equity of redemption (e), although it seems
not long after to have struggled into existence (/). Even as late as the
latter part of the reign of Charles II., the same great judge was so
little satisfied with encouraging an equity of redemption, that in a case
before him for a redemption, he declared, that by the growth of equity
on equity, the heart of the common law is eaten out and legal settle-
ments are destroyed (g). And, perhaps, the triumph of common-sense
over professional prejudices has never been more strikingly illustrated
than in the gradual manner in which courts of equity have been enabled
to draw mortgages frora the stem and unrelenting character of condi-
tions at the common law (h). Even after the equity of redemption
was admitted, it was long maintained, that if the money was not paid
at the time appointed, the estate became liable in the hands of the
mortgagee to his legal charges, to the dower of his wife, and to
escheat (i). And it was a common opinion, that there was no redemp-
tion against those who came in by the post. This introduced mort-
gages for long terms of years, the nature of which we have already
somewhat considered (k).
§ 1015. Courts of equity, having thus succeeded in establishing the
doctrine, in conformity to common-sense and common justice, that the
mortgage is but a pledge or security for the payment of the debt, or
the discharge of the other engagements for which it was originally
given ; it yet remained to be determined what was the true nature and
character of the equity of redemption, and of the relations between the
mortgagor and mortgagee. It has been well observed, that these were
not actually settled until a comparatively recent period (I). It was
formerly contended that the mortgagor, after forfeiture of the condi-
tion, had but a mere right to reduce the estate back into his own posses-
sion by payment of the debt, or other discharge of the condition. But

(c) Taylor v. Popham, 1 Bro. C. C. 167.

(d) Howard v. Harris, 1 Vem. 33, 190; Fairclough v. Swan Brewery, [1912]
A. C. 565.
(e) Roscarrick v. BaHon, 1 Ch. C. 219; 2 Ponbl. Bq. B. 3, ch. 1, § 2, note (c).
(/) Butler's note (1) to Co. Litt. 204 h.
ig) Roscarrick v. Barton, 1 Ch. C. 219.
(h) Butler's note (1) to Co. Litt. 204 b ; Bao. Abr. Mortgage, A.
(i) Ibid. ; 2 Black. Comiitt. 158.
(k) Ante, § 998, and note. Mr. Butler has stated the advantages and disadvan-
tages of mortgages by vfay of long terms of years, in «■ very accurate manner in his
note (1) to Co. Litt. 204 b.
(I) Com. Dig. Chancery, 4 A. 1. A trust for sale given as security is a mortgage.
Locking v. Parker, L. E. 8 Ch. 30.
B.J. 27
418 EQUITY JDEISPEUDBNCB. [OH. XXVI.

it has long been firmly established, that the mortgagor has a beneficial
estate in the land in equity, which may be granted, devised, and
entailed; and is liable to tenancy by the curtesy, but was not, before
the Dower Act, liable to dower (m). Further, the mortgagor enjoys all
rights incident to proprietorship (n).
§ 1016. In regard to the estate of the mortgagee, it being treate4,
in equity, as a mere security for the debt, it follows the nature of the
debt. And, although, where the mortgage is in fee, before the Con-
veyancing Act, 1881, the legal estate used to descend to the heir of
the mortgagee, yet, in equity, the estate of the mortgagee was always
deemed a chattel interest and personal estate, and belonged to the
personal representative as assets (o). And now, by s. 30 of that Act,
it is enacted that where an estate or interest of inheritance, or limited
to the heir as special occupant, is vested on any trust, or by way of
mortgage, in any person solely, the same shall, on his death, notwith-
standing any testamentary disposition, devolve to, and become vested
in, his personal representatives or representative from time to time, as
if the same were a chattel real vesting in him or them. It is upon the
same ground, that an assignment of the debt by the mortgagee carries
with it, in equity, as an incident, the interest of the mortgagee in the
mortgaged property; unless, indeed, the instrument of assignment
contains a plain exception of the latter. The mortgagee is, however,
entitled (unless there be some agreement to the contrary) to enter into
possession of the lands and to take the rents and profits, if he chooses
so to do. But, in such cases, he must account therefor towards the
discharge of the debt, after deducting all reasonable charges and
allowances (p). So, he may grant leases of the premises, and might,
previously to the Conveyancing Act, 1881, have avoided any leases
which had been made by the mortgagor subsequent to his mortgage (q).
The learned author in this and other paragraphs had expressed the
opinion that a mortgagee was a trustee for the mortgagor. He may be
as soon as the debt is discharged, whatever be the means, a trustee of
the land or of the surplus proceeds of sale ; but so long as the relation
of mortgagor and mortgagee subsists, he holds the property for his own
benefit and is in no sense a trustee for the mortgagor (r). Accordingly
a mortgagee of renewable leaseholds, if out of possession, may obtain a

(m) Casborne v. Scarfe, 1 Atk. 603; Tarn v. Turner, 39 Ch. D. 546.

(re) Fairclough v. Marshall, i Ex. D. 37; Gelder Apsimon iC Co. v. Smcerhy
Bridge Flour Society, 44 Ch. D. 374.
(o) 2 Fonbl. Bq. B. 3, ch. 1, § 13, note (e); Co. Litfc. 208 b, Butler's note (1);
1 Mad. Pr. Ch. 412; Com. Dig. Chancery, 4 A. 9.
(p) Mayer v. Murray, 8 Ch. D. 424. See Parkinson v. Hanbury, L. R. 2 H. L. 1.
(9) An advanced paynieut of rent to the mortgagor is not good against the mort-
gagee, though made in ignorance of the mortgage. De Nicholls v. Saunders, L E
5 C. P. S89.
(r.) Kirkwood v. Thompson, 2 H. & M. 892 ; affd. 2 De G. J. & S. 613 ; Warner v.
Jacob, 20 Ch. D. 220; Taijlor v. Russell, [1892] A. C. 244. See Darlow v Cooper
34 Beav. 281.
§ 1016—1017.] MORTGAGES. 419

renewal of the lease for his own benefit, unless there has been some
fraud or underhand contrivance on his part (s). On the other hand, a
mortgagor could not derogate from his grant (t).
§ 1016a. Where the mortgagee enters into possession of the mort-
gaged property, he is of course accountable for the rents and profits.
And courts of equity will, under such circumstances, ordinarily require
annual rests to be made in settling the accounts, unless the interest of
the mortgage is in arrear at the time when the mortgagee takes pos-
session, orthere exist special circumstances (m). And when the prin-
cipal mortgage debt is entirely paid off, annual rests upon the mort-
gagee's subsequent receipts are made as a matter of course (x).
§ 1016b. In respect to the rights of a mortgagee in possession, or
selling under his power of sale, it may be stated that he will in equity
be allowed for all repairs necessary for the support of the property; and
for general improvements even if made without the acquiescence or
consent of the mort-gagor, provided they enhance the value of the estate,
and are not of such a nature as to cripple the right or power of redemp-
tion (y). Notice to the mortgagor is only material when the expendi-
ture is unreasonable for the purpose of showing the mortgagor
acquiesced in it (a). And in no case will a court of equity permit a
mortgagee to commit waste or do damage to the estate, as, for example,
by pulling down cottages (a).
§ 1017. In regard to the mortgagor, he is not, unless there be some
special agreement to that effect, entitled of right to the possession of
the land mortgaged. But he holds it solely at the will and by the
permission of the mortgagee, who may at any time, by an ejectment
without giving any prior notice, recover the same against him or his
tenants. In this respect, the estate of the mortgagor at law is inferior
to that of a tenant at will (b). But so long as he continues in posses-
sion by the permission of the mortgagee, he is entitled to take the
rents and profits in his own right, without any account whatsoever
therefor to the mortgagee (c). Indeed, for all purposes, except where
the interest of the mortgagee is concerned, the mortgagor is treated as
the substantial owner of the estate (d) He will not, however, be per-

(s) Nesbitt v. Tredennick, 2 Ball & B. 29.

(t) Leigh v. Burnett, 29 Ch. D. 231.
(m) Sheppard v. Elliot, i Madd. 254; Schofield v. Ingham, C. P. Coop. 477; Hor-
lock V. Smith, I Coll. 287.
(x) Ashworth v. Lord, 36 Ch. D. 545.
iy) Sandon v. Hooper, 6 Beav. 246 ; Tipton Green Colliery v. Tipton Moat Col-
liery, 7Ch. T>. 192; Shepard v. Jones, 21 Ch. D. 469; Henderson v. Astwood, [1894]
A. C. 150.
(z) Shepard v. Jones, 21 Ch. D. 469. (a) Shepard v. Jones, 21 Ch. D. 469.
(b) Butler's note (1) to Co. Litt. 204 b; Keech v. Hall, Doug. 21; Moss v. Galli-
more, Doug. 279.
(c) Ex parte Wilscm, 2 Ves. & B. 252; In re Hoare, Hoare v. Owen, [1892] 3
Ch. 94.
(.d) Van Gelder Apsimon & Co. v. Sowerby Bridge Flour Society, 44 Ch. D. 374.
420 EQUITY JUEISPEUDENCE. [CH. XXVI.

mitted to do any acts jeopardizing the sufficiency of the security of the

mortgagee (c).
§ 1018. As to what constitutes a mortgage, there is no difficulty
whatever in courts of equity, although there may be technical embar-
rassments in courts of law. The peurticular form or words of the con-
veyance are unimportant; and it may be laid down as a general rule,
subject to few exceptions, that wherever a conveyance, assignment, or
other instrument, transferring an estate, is originally intended between
the parties as a security for money, or for any other incumbrance
whether this intention appear from the same instrument or from any
other (/), it is always considered in equity as a mortgage, and conse-
quently is redeemable upon the performance of the conditions or
stipulations thereof (g). Even parol evidence is admissible in some
cases, as in cases of fraud, accident, and mistake, to show that a con-
veyance, absolute on its face, was intended between the parties to be
a mere mortgage or security for money ; but the evidence is - to be
regarded with suspicion (h).
§ 1019. So inseparable, indeed, is the equity of redemption from a
mortgage, that it cannot be disannexed, even by an express agreement
of the parties. If, therefore, it should be expressly stipulated, that
unless the money should be paid at a particular day, or by or to a par-
ticular person, the estate should be irredeemable, the stipulation would
be utterly void (z). In this respect courts of equity act upon the same
principle, which (we have seen) is avowed in the civil law (k) ; and most
probably it has been borrowed from that source. A distinction also is
taken, like that in the civil law, between a conditional purchase, or an
agreement for a repurchase, and a mortgage, properly so called (l).
The former, if clearly and satisfactorily proved to be a real sale, and
not a mere transaction to disguise a loan, will be held valid, although
every transaction of this sort is watched with jealousy (w).
§ 1020. Mortgages may not only be created by the express deeds
and contracts of the parties, but they may also be implied in equity
from the nature of the transactions between the parties; and then
they are termed equitable mortgages. Thus, for instance, it is now
(e) Humphreys v. Harrison, 1 Jac. & W. 581 ; King v. Smith, 2 Hare, 239.
{/) Gordon v. Selby, 11 Bligh N. S. 351 ; Waters v. Mynn, 14 Jur. 341.
(g) Butler's note (1) to Co. Litt. 203b.
(h) Langton v. Horton, 5 Beav. 9; Holmes v. Matthews, 9 Moo. P. C. 413.
(t) Butler's note (1) to Co. Litt. 204 h ; Howard v. Harris, 1 Vern. 190; Fair-
clough v. Swan Brewery Co., [1912] A. C. 565.
(fc) Ante, § 1009; Story on Bailm. § 345.
(I) Potest ita fiere pignoris datio, hypothecffive (says the Digest), ut si intra certum
tempus Don sit aoluta peeunia, jure emptoris possideat rem, justo pretio tunc sesti-
mandam ; hoc enim caeu videtur quodammodo conditionalis esse venditio. Dig. Lib.
20, tit. 1, f. 16, § 9. This approaches nearer to a right of pre-emption than to a con-
ditional sale. See Orby v. Trigg, 2 Eq. Cas. Abr. 599, pi. 25; s.c. .9 Mod. 2.
(to) Butler's note (1) to Co. Litt. 204 h ; Goodman v. Grierson, 2 Ball & Beat.
278; Williams v. Owen, 5 M. & Cr. 303; Perry v. Meadowcroft, 4 Beav. 197- affd
12 L. J. Ch. 104.
§ 1018—1020.] MORTGAGES. 421

settled that if the debtor deposits his title-deeds to an estate with a

creditor, as security for an antecedent debt, or upon a fresh loan of
money, it is a valid agreement for a mortgage between the parties,
and is not within the operation of the Statute of Frauds (n). This
doctrine has sometimes been thought difficult to be maintained either
upon the ground of principle or public policy. And although it is firmly
established, it was at first received with no small hesitation and dis-
approbation, and a disposition was strongly evinced not to enlarge its
operation (o). It is generally applied to enforce parol agreements to
make a mortgage, or to make a deposit of title-deeds for such a purpose ;
but it is strictly confined to an actual, immediate, and bond fide deposit
of the title-deeds with the creditor (p), or with some other person over
whom the depositor has no control (g) ; as a security, in order to create
the lien. It is not necessary that all the title-deeds relating to the
property should be deposited, in order to constitute a mortgage by
deposit, it is sufficient that material title-deeds have been handed
over (r). The mere deposit of title-deeds by a debtor with his creditor
presumptively creates an equitable mortgage by deposit (s), but in the
case of a claim against the estate of a dead person usually requires to
be corroborated (t). As equity looks upon that as done which has been
agreed to be done, and prefers substance to form (u), as indeed does
the common law (x), handing over title-deeds with a view to the execu-
tion of a formal document will create a charge for moneys advanced,
unless it appear that it was the intention of the parties that no charge
should be created until a formal document was executed (j/). A deposit
of deeds may create a charge not only for moneys contemporaneously
advanced, but for subsequent advances if those be the conditions
agreed upon, where the original advance is made (z), otherwise there
must be evidence to displace the objection of the Statute of Frauds (a).
Although the charge may be available between the immediate parties
the charge may not be effectual against the adverse claim of a party
claiming under the mortgagor as a bond fide purchaser for value
without notice, and possessed of the legal estate (6).

(n) Russell v. Russell, 1 Bro. C. C. 269, decided by Lord Thurlow, and Mr. Belt's
note (1). See an excellent statement of the principle by Lord Abinger, C.B., Keys v.
Williams, 3 Y. & C. Ex. 55, at p. 69.
(o) Ex parte Haigh, 11 Ves. 403; Ex parte Hooper, 19 Ves. 477; 1 Mer. 7.
(p) Fenwick v. Potts, 8 De G. M. & G. 506; Ex parte Broderick, 18 Q. B. D.
380, 766. (q) Lloyd v. Attwood, 3 De G. & J. 214.
(r) Goodwin v. Waghorn, 4 L. J. N. S. Ch. 172 ; Lacon v. Allen, 3 Drew. 579.
(s) Bozon V. Williams, 3 Y. & J. 150.
(t) Chapman v. Chapman, 13 Beav. 308.
(«) Fairclough v. Marshall, 4 Ex. D. 37. (x) Doe v. Davies, 2 M. & W. 502.
(y) Edge v. Worthington, 1 Cox. 211; Keys v. Williams, 3 Y. & C. Ex. 55; Lloyd
V. Attwood, a De G. & J. 614.
(z) Ex parte Longston, 17 Ves. 227; Maugham v. Ridley, 8 L. T. N. S. 309.
(a) Ex parte Kensington, 2 Ves. & B. 79.
(6) Bozon V. Williams, 3 Y. & J. 150; West v. Reed, 2 Hare, 249; Ratclijfe v.
Barnard, L. E. 6 Ch. 652.
422 EQUITY JUaiSPRUDENCB. [CH. XXVI.

§ 1021. As to the kinds of property which may be mortgaged, it

may be stated that, in equity, whatever property, personal or real, is
capable of an absolute sale, may be the subject of a mortgage. This
is in conformity to the doctrine of the civil law: " Quod emptionem
venditionemque recipit, etiam pignorationem recipere potest " (c).
Therefore, rights in remainder and reversion, possibilities coupled with
an interest, rents, franchises, and choses in action, are capable of being
mortgaged. After considerable doubt, it is finally settled that even a
mere naked possibility or expectancy, such as that of an heir or of a
devisee or legatee, can validly be the subject of a mortgage (d). In
this respect the civil law seems to differ from ours ; for a party might
by that law mortgage property, to which he had no present title by
contract or otherwise (e).
§ 1022. As to the persons who axe capable of mortgaging an estate,
nothing need be said in this place, except so far as regards persons who
have qualified interests therein, or are trustees in autre droit, or are
clothed with particular powers for limited purposes. And here, very
difficult questions may arise, as to the construction of such powers, and
the competency of such persons to make mortgages. Thus, for example,
if a power is given to trustees to sell for the purpose of raising money,
a question may arise, whether they may raise money by way of mort-
gage. But the solution of such questions properly belongs to a treatise
on powers (/).
§ 1023. As to the right of redemption. From what has been already
stated, it is clear that the equity of redemption is not only a subsisting
estate and interest in the land in the hands of the heirs, devisees,
assignees, and representatives (strictly so called) of the mortgagor ; but
it is also in the hands of any other persons, who have acquired any
interest in the lands mortgaged by operation of law, or otherwise, in
privity of title (g). Such persons have a clear right to disengage the
property from all incumbrances, in order to make their own claims
beneficial or available. Hence a tenant for life, a tenant by the curtesy,
a jointress, a tenant in dower, in some cases (h), a reversioner, a remain-
derman, ajudgment creditor, a tenant by elegit, the lord of a manor
(c) Dig. Lib. 20, tit. 1, f. 9, § 1.
(d) Beckley v. Newland, 2 P. Will. 182; Hobson v. Trevor, 2 P. Will. 191, decided
by Lord Macclesfield ; Wright v. Wright, 1 Ves. Sen. 409, decided by Lord Hard-
wicke; Wethered v. Wethered, 2 Sim. 183; Lyde v. Mynn, 1 Myl. & K. 683.
(e) 1 Domat, B. 3, tit. 1, § 3, art. 6, 20. In Ex parte Arrowsmith, In re Levison,
18 Ch. D. 967, it was held that a mortgage of pew rents made by the vicar of a dis-
trict church is void under the Act 13 Bliz. o. 20. But in In re Mirams, [1891] 1 Q. B.
694, it was held that the chaplain of a workhouse could make a valid mortgage of his
salary, on the ground that he was not a public officer, and therefore that it was not
against public policy to allow him to mortgage. Vide supra, § 294.
(/) Sugden on Powers, ch. 9, § 2, p. 437; id. art. 3, pp. 472, 478 (2nd edit.);
Mills V. Banks, 3 P. Will. 1, 6.
ig) Co. Litt. 208, Butler's note (1).
(??,) Co. Litt. 208, Butler's note (1); Swannock v. Lifford, Ambler, 6; Kinnoul v.
Money, 3 Swanst. 208 ; Dawson v. Bank of Whitehaven, 6 Ch. D. 218.
§ 1021 1024. J MORTGAGES. 423

holding by escheat (z), and, indeed, every other person, being an incum-
brancer, orhaving legal or equitable title, or lien therein, may insist
upon a redemption of the mortgage, in order to due enforcement of
their claims and interests respectively in the land (fc). When any such
person does so redeem, he or she becomes substituted to the rights and
interests of the original mortgagee in ijhe land, exactly as in the civil
law. And in some cases (as we have already seen) a further right of
priority by tacking may sometimes be required beyond what the civil
law allowed (I). But no person, except a mortgagor, his heirs, or
privies in estate, has a right to redeem, or to call for an accoimt, unless,
indeed, it can be shown that there is collusion between them and the
mortgagee. Hence it is, that a mere annuitant of the mortgagor (who
has no interest in the land) has no title to redeem (m).
§ 1023&. By the Conveyancing Act, 1881, s. 25, it is enacted
that any person entitled to redeem mortgaged property may have a
judgment or order for sale instead of for redemption in an action
brought by him either for redemption alone, or for sale alone, or for
eaJe or for redemption in the alternative. And by sub-section 2 it is
enacted that in any action, whether for foreclosure or for redemption,
or for sale or for the raising and payment in any manner of the
mortgage-money, the court, on the request of the mortgagee, or of
any person interested either in the mortgage-money, or in the right
of redemption, and notwithstanding the dissent of any other person,
and notwithstanding that the mortgagee or any person so interested
does not appear in the action, and without allowing any time for
redemption or for payment of any mortgage-money, may, if it think
fit, direct a sale of the mortgaged property on such terms as it thinks
fit, including, if it thinks fit, the deposit in court of a reasonable sum
fixed by the court, to meet the expenses of sale and to secure
performance of the terms.
§ 1024. As to the corresponding right of foreclosure, and other
remedies for the mortgagee, to secure the due discharge of the

mortgage, they naturally flow from the principles already stated. "We
have already seen (n.), that, in the civil law, there were two remedies
allowed to the mortgagee, a reniedy m rem, and also a remedy in
personam, against the mortgagor for the debt. The general remedy
in rem was by a sale by the mortgagee of the mortgaged estate, either
under a judicial decree, or without such a decree, by his own voluntary
act of sale, after a certain fixed notice to the debtor. In either case,
the sale, if bond fide and regularly made, was valid to pass the absolute

(i) Downe v. Morris, 3 Hare, 394.

(k) Tarn v. Turner, 39 Ch. D. 456.
(I) Ante, § § 412 to 421; ante, § 1010, and note; Com. Dig. Chancery, 4 A. 10.
(m) White v. Parnther, 1 Knapp, P. C. 229; Troughton v. Binkes, 6 Ves. 672.
(n) Ante, § 1007.
424 EQUITY JURISPEUDENCE. [CH. XXVI.

title to the estate against the mortgagor and his heirs ; and the proceeds
were first to be applied to the discharge of the debt ; and the surplus,
if any, was to be paid over to the mortgagor or his representatives.
This seems to have been the ordinary course in the civil law, in order
to obtain satisfaction of the debt out of the mortgaged estate. But in
some cases, and especially where a sale could not be made effectual,
a decree might be obtained, in the nature of a foreclosure, by which,
after certain judicial proceedings, the absolute dominion of the property
would be passed to the mortgagee (o). This was probably the origin
of the present mode of extinguishing the rights of the mortgagor by
a decree of foreclosure in a court of equity.
§ 1025. The natural course, and certainly the most convenient and
beneficial course for the mortgagor, would seem to be, for the court
to follow out the civil law rules on this subject; that is to say,
primarily and ordinarily, to direct a sale of the mortgaged property,
giving the debtor any surplus after discharging the mortgaged debt;
and, secondly, to apply the remedy of foreclosure only to special cases,
where the former remedy would not apply, or might be inadequate
or injurious to the interests of the parties.
§ 1026. In England a practice widely different prevailed. In the
eyes of a court' of equity the property was regarded as of secondary
importance to the money of which repayment was secured by the
conveyance of the property. The mortgagee was entitled to sue the
mortgagor, and failing satisfaction could then have recourse to the
land (p), but if he proceeded against the property in the first instance,
he was precluded from suing the mortgagor for any balance which the
property had failed to satisfy, unless he could restore possession of
the property to the mortgagor (g). Speaking generally, a bill for
a foreclosure was deemed, in common cases, the exclusive and appro-
priate remedy; and the courts of equity refused, except in special
cases, to decree a compulsory sale against the will of the mortgagor.
These courts, however, departed from this general rule in certain cases :
(1) where the estate was deficient to pay the incumbrance (r) ;
(2) where the mortgagor was dead, and there was a deficiency of
personal assets (s) ; (3) where the mortgage was of a dry reversion (t) ;
(4) where the mortgagor died, and the estate descended to' an
infant (u) ; (5) where the mortgage was of an advowson (x) ; (6) where
the mortgagor became bankrupt, and the mortgagee prayed a sale ;

(0) Ante, § § 1008, 1009.

(p) Lockhardt v. Hardy, 9 Beav. 349.
(g) Perry v. Barker, 8 Ves. 527; 13 Ves. 198; Lockhardt v. Hardy, 9 Beav. 849;
Palmer v. Hendrie, 27 Beav. 349; 28 Beav. 341.
(r1 Dashioood v. Bithazey, Mos. 196.
(s) Daniel v. Skipwith, 2 Bro. C. C. 155.
(t) How V. Vigures, 1 Ch. Gas. 32.
(«) Booth V. Rich, 1 Vern. 295; Mondey v. Mondey, 1 Yes. & B. 228.
(x) Mackenzie v. Robinson, 3 Atk. 569.
§ 1025 1028.] MORTGAGES. 425

(7) or where the mortgagor died, and the mortgagee by his bill,
brought against the executor or administrator and the- heir, prayed
for the sale of the mortgaged estate, alleging it to be scanty security,
and for the payment of any deficiency out of the general estate of the
deceased mortgagor (j/) ; (8) where the mortgage is of land, and by the
local law is subject to a sale (a) ; such as, for example, in Ireland and
America.
§ 1027. It is difficult to perceive any solid or distinct ground,
upon which these exceptions stand, which would not justify the
courts of equity in decreeing a sale at all times, when it is prayed
for by the mortgagee, or when it would be beneficial to the mortgagor.
The inconveniences -of the existing practice of foreclosure are so great,
that it has become a common practice to insert in mortgages a power
of sale upon default of payment. And, although Lord Eldon, at
first, intimated an opinion unfavourable to such a power, as dangerous,
it is now firmly established, and now by statute a power of sale unless
excluded by the mortgage instrument is implied in every mortgage
made by deed (a).
§ 1027a. By the Chancery Improvement Act (15 & 16 Vict. e. 86)
power was given to the Court of Chancery to decree a sale instead of
foreclosure on such terms as the court might think fit, and if the
court thought fit without previously determining the prioritdes of
incumbrances, or giving the usual, or any time, to redeem; and this
provision has been repealed, but re-enacted and enlarged by the
Conveyancing Act, 1881, s. 25. A sale can under this Act be ordered
of the mortgaged property on an interlocutory application made before
the trial of the action by any party interested in the equity of
redemption (b).
§ 1028. In actions for the redemption of mortgages, where there
are various persons claiming adverse rights and limited interests in the
mortgaged estate, it often becomes necessary to direct how assets and
securities are to be marshalled, in order to do justice between the differ-
ent claimants, and to prevent irreparable mischiefs, as well as to ascer-
tain the amounts and proportions in which they should contribute
towards the discharge of the incumbrances common to them all. This
subject, in many of its most important bearings, has already been
examined in other places (c). Similar principles prevailed (as we have
seen), to a great extent, in the civil law, in which the right of substi-
tution was admitted as well as what was technically called the benefit

(y) King v. Smith, 2 Hare, 239.

(z) Stileman v. Ashdown, 2 Atk. 477, 608; s.c. Ambler 13, and Mr. Blunt 's note,
p. 16, note (b); post, § 1216a.
(a) Croft V. Powell, Comyns, 603; Anon., 6 Mad. 16; Gorder v. Morgan, 18 Ves.
344. See Conveyancing Act, 1881, ss. 19, 20, 21; and Conyeyancing Act, 1911, s. 5.
(b) WoolUy V. Golman, 21 Oh. D. 169.
(c) Ante, § § 499, 358 to 560, 564, 565, 567, 574, 633 to 636.
426 EQUITY JURISPRUDENCE. [CH. XXVI.

of discussion, answering, in some measure, to our doctrine of

marshalling assets and securities (d).
§ 1028a. In respect to the time within which a mortgage is redeem-
able, it may be remarked, that there is now a statutory limitation of
twelve years from the time when the mortgagee has entered into posses-
sion, after breach of condition, under his title, by analogy to the ordinary
limitation of rights of entry and actions of ejectment. If, therefore, the
mortgagee enters into possession in his character of mortgagee, and by
virtue of his mortgage alone, he is for twelve years liable to be redeemed ;
but if the mortgagor permits the mortgagee to hold the possession for
twelve years without accounting, or without admitting that he pos-
ses es a mortgage title only, the mortgagor loses his right of redemption,
and the title of a mortgagee becomes as absolute in equity, as it previ-
ously was in law. In such a case the time begins to run against the
mortgagor from the moment the mortgagee takes possession in his char-
acter as such ; and if it has once begun to run, and no subsequent admis-
sion is made by the mortgagee, it continues to run against all persons
claiming under the mortgagor, whatever may be the disabilities to which
they may be subjected (dd). But if the mortgagee enters, not in his
character of mortgagee only, but as purchaser of the equity of redemp-
tion, he must look to the title of his vendor and the validity of the con-
veyance which he takes. So that, if the conveyance be such as gives
him the estate of a tenant for life only in the equity of redemption,
there, as he unites in himself the characters of mortgagor and mort-
gagee, he is bound to keep down the interest of the mortgage like any
other tenant for life for the benefit of the persons entitled to the re-
mainder; and time will not run against the remainderman during the
continuance of the life estate (e).
§ 1028b. Similar considerations will, in many respects, apply to the
right of foreclosure of a mortgage. If the mortgagee has suffered the
mortgagor to remain in possession for twelve years after the breach of
the condition, without any payment of interest, or any admission of
the debt, or other duty, the right to bring an action for foreclosure will
be statute barred and extinguished (/).
§ 1029. These may suffice as illustrations of sorhe of the more
important doctrines of courts of equity in regard to mortgages of lands,
many of which are founded upon principles of justice so universal, as
equally to commend themselves to the approbation of a Eoman prsetor

(d) Ante, § § 494, 636, 636.

(dd) Eeal Property Limitation Act, 1887 (3 & 4 Will. 4, c. 27), s. 28 ; Beal Property
Limitation Act, 1874 (37 & 38 Vict. c. 57), s. 7. An acknowledgment by one of two
joint mortgagees and truateea is inoperative. Richardson v. Young, L. E. 6 Ch. 478.
Previously the court acted by analogy to the Statutes of Limitation (see Cholmondeley
V. Clinton, 2 Jac. & W. 1; 4 Bligh, N. S. 1 ; Raffety v. King, 1 Keen, 601).
(e) Raffety v. King, 1 Keen, 601.
(/) Eeal Property Limitation Act, 1837 (3 & 4 Will. 4, ^. 28) ; Eeal Property Limi-
tation Act, 1874 (37 & 38 Vict. c. 57), s. 9.
§ 1028a — 1032.] mortgages. 427

and of a modem judge; administering the law of Continental Europe

ex sequo et bono.
§ 1030. Let us now pass to a brief consideration of the doctrines
of equity, applicable to mortgages and pledges of personal property.
A mortgage of personal property differs from a pledge. The former
is a conditional transfer or conveyance of the property itself ; and, if the
condition is not duly performed, the whole title vests absolutely at law
in the mortgagee, exactly as it does in the case of a mortgage of lands.
The latter only passes the possession, or, at most, a special property to
the pledgee, with a right of retainer, until the debt is paid, or the other
engagement is fulfilled. The difference between them was well stated
by a learned judge, in Jones v. Smith (g). " A mortgage is a pledge and
more ; for it is an absolute pledge to become an absolute interest, if not
redeemed at a certain time. A pledge is a deposit of personal effects,
not to be taken back, but on payment of a certain sum, by express
stipulation, or the course of trade to be a lien upon them. "
§ 1031. In mortgages of personal property, although the prescribed
condition has not been fulfilled, there exists, as in mortgages of land,
an equity of redemption, which may be asserted by the mortgagor, if
he brings his action to redeem within a reasonable time {h). There is,
however, a difference between mortgages of land and mortgages of per-
sonal property, in regard to the rights of the mortgagee, after a breach
of the condition. In the latter case, although the mortgagor could
obtain foreclosure (i), he could, upon due notice, as a general rule sell
the personal property mortgaged, as he could under the civil law; and
the title, if the sale be bond fide made, will vest absolutely in the
vendee (fe). And it makes no difference, whether the personal property
mortgaged consists of goods or of stock or of personal annuities (I). But
where certificate of shares or policies of life insurance are deposited with-
out a memorandum the remedy is foreclosure and not sale (to). There
is no statute applicable to limit the right of the mortgagee in point of
time to enforce his remedy by foreclosure where the property mortgaged
is personalty (w).
§ 1032. In cases of pledges, if a time for the redemption be fixed
by the contract, still the peldgor may redeem afterwards, if he applies
within a reasonable time. But if no time is fixed for the payment, the
pledgor has his whole life to redeem, unless he is called upon to redeem

ig) 2 Vea. Jun. 378. See also Carter v. Wake, i Ch. D. 605.
{h) See Kemp v. Westbrook, 1 Ves. Sen. 278; Charter v. Watson, [1899] 1
Ch. 176.
(t) Sadler v. Worley, [1894] 2 Ch. 170.
(k) Tucker v. Wilson, 1 P. Will. 261; Lockwood v. Ewer, 9 Mod. 275; s.c. 2
Atk. 303.
(l) Slubbs v. Slater, [1910] 1 Ch. 682. That on a mortgage of stocks, the iden-
tical stocks must be returned, see Langton v. Waite, 6 Bq. 165, i Ch. 402.
(m) Harrold v. Plenty, [1901] 2 Ch. 314.
In) London and Midland Bank v. Mitchell, [1899] 2 Ch. 161.
428 EQUITY JURISPRUDENCE. [CH. XXVI;

by the pledgee ; and in case of the death of the pledgor without such a
demand, his personal representatives may redeem (o). Generally
speaking, an action to redeem will not lie on the behalf of the pledgor
or his representatives, as his remedy upon a tender is at law. But if
any special ground is shown, or there has been an assignment of the
pledge, an action will lie (p).
§ 1033. On the other hand, the pledgee might, according to Glan-
ville, at any time bring an action at the common law to compel the
pledgor to redeem by a given day ; and, if he did not then redeem, he
was for ever foreclosed of his right (g). But the equitable remedy is a
sale (?•). It has been also said, that the pledgee may, after the time for
redemption has passed, upon due notice given to the pledgor, sell the
pledge without a judicial decree of sale (s).
§ 1034. There is another consideration applicable to cases of mort-
gages and pledges of personal property, which does not apply, or at-
least is not so cogent, in cases of mortgages of land. The latter pass
by formal conveyances; the former may be transferred by the mere
change of possession. A subsequent advance made by a mortgagee or
a pledgee of chattels would attach by taxiking to the property in favour
of such mortgagee, when a like tacking might not be allowed in cases
of real estate. Thus, for instance, in the case of a mortgage of real
estate, the mortgagee cannot, as we have seen, compel the mortgagor,
upon an application to redeem, to pay any debts subsequently con-
tracted byhim with, or advances made up to him by, the mortgagee,
unless such new debts or advances are distinctly agreed to be made upon
the security of the mortgaged property (t). But in the case of a mort-
gage or pledge of chattels, the general rule, or at least the general pre-
sumption, seems the other way. For it has been held, that, in such a
case, without any distinct proof of any contract for that purpose, the
pledge may be held, until the subsequent debt or advance is paid, as
well as the original debt. The ground of this distinction is, that he wiio
•seeks equity must do equity; and the plaintiff, seeking the assistance
of the court, ought to pay all the moneys due tc the creditor, as it is
natural to presume that the pledgee would not have lent the new sum
but upon the credit of the pledge, which he had in his hands before (u).
The presumption may, indeed, be rebutted by circumstances; but, un-

(o) Story on Bailments, § § 308, 345, 346, 348; Glanville, Lib. 10, cap. 6, 8;
Vanderzee v. Willis, 3 Bro. C. C. 21.
(p) Kemp V. Westbraok, 1 Ves. Sen. 278; Jones v. Smith, 2 Ves. Jun. 872.
(g) Glanville, Lib. 10, cap. 8; 1 Cain. Gas. Err. 204, 205.
(r) Carter v. Wake, 4 Ch. D. 605.
(«) Pothonier v. Dawson, Holt N. P. 383; Nicholson v. Hooper, 4 Myl. & Cr. 179;
Frgot V. Cubley, 15 C. B. N. S. 701.
(t) Ante, § § 417, 418; Matthews v. Cartwright, 2 Atk. 347; Brace v. Duchess of
Marlborough, 2 P. Will. 491, 492, 494; Shepherd v. Titley, 2 Atk. 352, 354; Anon.,
2 Ves. 662; Lowthian v. Hasel, 3 Bro. C. C. 162; Jones v. Smith, 2 Ves. Jun. 376,
378; Ex parte Knott, 11 Ves. 617.
(u) Demaindray v. Metcalf, Prec. Ch. 419; Vanderzee v. Willis, 3 Bro. C. C. 21
§ 1033— 1035a.] mortgages. 42&

less it is rebutted, it will generally, in favour of the lien, stand for verity
against the pledgor himself, although not against his creditors, or against
subsequent purchasers (a;).
§ 1035. It is not improbable, that this doctrine, respecting mort-
gages and pledges of chattels being held as security for subsequent debts-
and advances, was borrowed from the civil law, although it is appUed
with some modifications in the equity jurisprudence of England. In
the civil law (as we have already seen), the mortgagor or pledgor could
not redeem, without discharging all the other debts which he then
owed to the pledgee ; with the saving, however, in favour of the rights
of other creditors and purchasers (y).
§ 1035a. Where property which can only reach the hands of the
beneficiary in the shape of money vested in a trustee, and the beneficial
interest is mortgaged by the beneficial owner, the mortgagee can acquire
a better title than his assignor conveyed to him by priority of notice («).
This doctrine is apphcable to absolute assignments as well as to assign-
ments by way of mortgage and the general consideration of the subject
will be discussed in the next chapter.

{x) Demaindray v. Metcalf, Prec. Ch. 419.

(,y) Ante, § 1010, and note; Cod. Lib. 8, tit. 27, 1. 1.
(z) Dearie v Hall, Loveridge v. Cooper, 3 Euss. 1.
430 EQUITY J0EISPRUDENCB. [CH. XXVII.

CHAPTER XXVII.
ASSIGNMENTS.

§ 1036. In the next place, let us pass to the consideration of Assign-

ments of real and personal property upon special trusts. The most
important and extensive of this class of trusts is that which embraces
general assignments by insolvents and other debtors for the discharge
of their debts, sometimes with priorities and preferences of particular
creditors, and sometimes with an equality of rights among all the credi-
tors. The question of the validity of such conveyances, and under what
circumstances they are deemed fraudulent, or bona fide, has been
already, in some measure, considered under the head of constructive
fraud (a). In general, it may be stated, that such priorities and prefer-
ences are not deemed fraudulent or inequitable ; and even a stipulation
on the part of the debtor, in such an assignment, that the creditors
taking under it shall release and discharge him from all their further
claims beyond the property assigned, will (it seems) be valid, and bind-
ing on such creditors.
§ 1036a. In order to entitle the creditors, named in a general
assignment for the benefit of creditors, to take under it, it is not neces-
sary that they should be formal parties thereto (b). It will be sufficient,
if they have notice of the trust in their favour and they assent to it; and,
if there be no stipulation for a release, or any other condition in it,
which may not be for their benefit, their assent will be presumed, until
the contrary appears (c). Creditors' trust deeds are now subject to the
provisions of the Deeds of Arrangement Act, 1914 (4 & 5 Geo. V. c. 47).
They must be registered with the Eegistrar of Bills of Sale within seven
clear days after the first execution thereof by the debtor or any creditor,
or if first executed abroad within seven clear days after the time at which
it would in the ordinary course of post, arrive in England, if posted
within one week after the execution thereof. And it must receive the
assent in writing of a majority in number and value of the creditors of
the debtor, the only penalty on the creditor being that his neglect to
express his dissent in writing after receiving notice in writing of the

(a) Ante, § § 349, 369, 370, 378, 379; Estwiek v. Caillaud, 6 T. B. 420; Holbird v.
Anderson, 5 T. E. 235; Meux v. Howell, 4 East 1; Rex v. Watson, 3, Price 6; Small
V. Marwood, 9 B. & C. 300; Pickstock v. Lyster, 3 M. & S. 371.
ib) Garrard v Lord Lauderdale, 3 Sim. 1; 2 Euss. & M. 451; Acton v. Wood-
gate, 2 Myl. & K. 492.
(c) In re Baber's Trust, L. E. 10 Eq. 554 ; post, § 1045.
§ 1036—1039.] ASSIGNMENTS. 431

execution of the instrument, is to preclude him from avaihng himself

of the assignment as an available act of bankruptcy.
§ 1037. The trusts, arising under general assignments for the benefit
of creditors, were, in a peculiar sense, the objects of equity jurisdiction.
But the Bankruptcy Court is now charged with the judicial administra-
tion of the property comprised in these assignments by the Deeds of
Arrangement Act, 1914 ( 4 & 5 Geo. v. c. 47), s. 23. And this subject
generally has since the Bankruptcy Act, 1914 (4 & 5 Geo. v. c. 59),
lost much of its importance considered as a point of equity jurisdiction,
for by s. 1 (d) of that Act, it is provided that the following {inter alia)
should be deemed an act of bankruptcy, viz., that the debtor has in
England or elsewhere made a conveyance or assignment of his property
to a trustee or trustees for the benefit of his creditors generally.
§ 1039. In regard to particular assignments upon special trusts,
there is little to be said which is not equally applicable to all cases of
jurisdiction exercised over general trusts. But courts of equity take
notice of assignments of property, and enforce the rights growing out of
the same, in many cases, where such assignments are not recognized
at law as valid or effectual to pass titles. It was a well-known rule of
the common law, that no possibility, right, title, or thing in action could
be granted to third persons. For it was thought that a different rule
would be the occasion of muliplying contentions and suits, as it would,
in effect, be transferring a lawsuit to a mere stranger. Hence a debt,
or other chose in action, could not be transferred by assignment, except
in case of the king, to whom and by whom, at the common law, an
assignment of a chose in action could always be made ; for the policy of
the rule was not supposed to apply to the king (e). So strictly was this
doctrine construed, that it was even doubted whether an annuity was
assignable, although assigns were mentioned in the deed creating it (/).
And at law, with the exception of negotiable instruments, and some few
other securities, this still continued to be the general rule, unless the
debtor assented to the transfer; but if he did assent, then the right of
the assignee was complete at law, so that he might maintain a direct
action against the debtor upon the implied promise to pay him the
same, which resulted from such assent (g). But by paragraph 5 of
section 25 of the Judicature Act, 1873, it is provided that any absolute
assignment in writing (not purporting to be by way of charge only) of
any debt or other legal chose in action of which express notice in writing
shall have been given to the debtor, trustee, or other person from whom
the assignor would have been entitled to receive such debt or chose in
action, shall be, and be deemed to have been effectual in law (subject

(d) See Hamilton v. Houghton, 2 Bligh 169.

(e) Lampet's Case, 10 Co. 48a; Prosser v. Edmonds, 1 Y. & C. Ex. 481; Co. Litt.
2326, Butler's note (1); Com. Dig. Chancery, 2 H; Assignment, D.
(/) Co. Jjitt. 144b, and Hargrave's note (1); Co. Litt. 232b, Butler's note (1).
(g) Crowfoot v. Gurney, 9 Bing. 372; Hutchinson v. Heyworth, 9 A. & E. 375.
432 EQUITY JURISPRUDENCE. [CH. XXVII.

to all equities which would have been entitled to priority over the right
of the assignee if this Act had not passed), to pass and transfer the legal
right to such debt or chose in action from the date of such notice, and
all legal and other remedies for the same without the concurrence of
the assignor (h).
§ 1040. But courts of equity give effect to assignments of interests
held in trust, and whether the interests are contingent or in expectancy,
including so remote an interest as a spes sucoessionis, whether they are
in real or in personal estate, as well as to assignments of choses in
action (i). Every such assignment is considered in equity, as in its
nature amounting to a declaration of trust and to an agreement to permit
the assignee to make use of the name of the assignor, in order to recover
the debt, or to reduce the property into possession (k). Contingent
rights and interests were not ordinarily assignable at law ; and yet they
might sometimes be assigned at law if coupled with some present
interest (l). So, at law, such rights and interests might pass by way of
estoppel, by fine or recovery but not otherwise (■m). And by the 8 & 9
Vict. c. 106, s. 6, a contingent, an executory, and a future interest, and
a possibility coupled with an interest, in any tenements or hereditaments
of any tenure may be disposed of by deed. But the reach of this doc-
trine at law falls far short of that now entertained in equity. To
make an assignment valid at law, the thing which is the subject of it
must have actual or potential existence at the time of the grant or
assignment (o). But courts of equity will support assignments not only
of choses in action, and of contingent interests and expectancies, but
also of things which have no present actual or potential existence, but
rest in mere possibility ; as for example " added or substituted machinery
implements and things " fixed or placed in or about a mill, or future
book debts (p). And the proprietary rights of the parties when the
property becomes tangible, are fixed by reference to the antecedent
contract, for equity looks upon that as done which has been agreed to
be done (g).

(h) As to the effect of this, see Brioe v. Bannister, 3 Q. B. D. 569; Buck v. Rob-
son, 3 Q. B. D. 686. It should be observed that whereas a verbal assignment is good
in equity, under this Act writing is necessary.
(») Fearne on Cont. Eem. by Butler, 548, 660 (7th edit.); Bum v. Carvalho, i
Myl. & Cr. 690; In re Lind, Industrials Finance Syndicate, Ltd. v. Lind, [1915] 3
Ch. 345.

765. {k) Co. Litt. 232 b, Butler's note; Durham Bros. v. Robertson, [1898] 1 Q. B.
(;) Shep. Touch. 238, 239, 322; Arthur v. Bokenham, 11 Mod. 162; Com. Dig.
Assignment, A., c. 3.
(to) Doe d. Christmas v. Oliver, 10 B. & Cress, 181; Pearne on Cont. Bern. ch. 6,
§ v., p. 365
(o) See Lunn v. Thornton, 1 C. B. 379; Fetch v. Tutin, 15 M. & W. 110.
(p) Holroyd v. Marshall, 10 H. L. C. 191; Tailby v. Official Receiver, 13 App.
Cas. 523.
(q) In re Lind, Industrials Finance Synd. v Lind, [1915] 1 Ch. 744; [1915]
2 Ch. 346.
§ 1040, 1040a.] ASSIGNMENTS. 433

§ 1040a. In the civil law, and in the jurisprudence of the modern

commercial nations of continental Europe, there does not seem to have
been any foundation for such an objection to the assignment of debts ;
for all debts were from an early period allowed to be assigned, if not
formally, at least in legal effect; and for the most part, if not in all
cases, they may now be sued for in the name of the assignee (r). The
Code of Justinian says, " Nominis autem venditio " (distinguishing be-
tween the sale of a debt and the delegation or substitution of one debt
for another or for the same debt) " et ignorante, vel invito eo, adversus
quem actiones mandantur, oontrahi solet " (s). And Heineccius, after
remarking that bills of exchange are for the most part drawn payable
to a person or his order, says, that although this form be omitted, yet
an indorsement thereof may have full effect, if the laws of the parti-
cular country respecting exchange do not specially prohibit it; because
an assignment thereof may be made without the knowledge and against
the will of the debtor ; and he refers to the passage in the Code in proof
of it (t). But he adds (which is certainly not our law), that if the bill
be drawn payable to the order of Titius, it is not to be paid to Titius,
but to his indorsee. " Tunc enim Titio solvi non potest, sed ejus indor-
satario " (w). The same general doctrine as to the assignability of bills
of exchange, payable to a party, but not to his order, is affirmed in the
ordinajice of France of 1673 (art. 12), as soon as the transfer is made
known to the drawee or debtor (cc). Indeed, the like doctrine prevails
now in France, not only in cases of bills of exchange, but of contracts
generally ; so that the assignee may now sue on them in his own name
after the assignment, subject, however, to all the equities subsisting
between the parties before and at the time when the debtor has notice
of the assignment (y).
(r) Pothier has stated the old French law upon this subject (which does not in
substance probably differ from that of the other modern States of continental Europe)
in very explicit terms, in his treatise on the Contract of Sale, of which an excellent
translation has been made by L. S. Gushing, Esq. See also Troplong des Privil, and
Hypoth. Tome 1, un 340 to 343; Troplong de la Vente un 879 to 882, un 906, 918;
Code Civ. Arts. 1689 to 1692, 2112.
(«) Cod. Lib. 8, tit. 42, 1. 1; 1 Domat, B. i, tit. 4, § § 3, 4.
(t) Heinecc. de Camb. cap. 3, § 8; id. cap. 4, § § 21 to 26. Heineccius, in a note,
says, that in Pranoonia and Leipsic, no assignment is of any validity, if the formulary
of its being payable to order is omitted. The present law of Prance is the same, so
far as the general negotiability of bilk is concerned, and to give them circulation, un-
affected byany equities between the payee and the debtor. Pardessus, Droit Comm.,
Tom. 2, art. 339, p. 360; Delvincourt, Instit. Droit Comm., Tom. 1, Liv. 1, tit. 7, Pt.
2, pp. 114, 115. Delvincourt says that the right of a simple bill (not payable to order)
is transferable only by an act of transfer made known to the debtor. See also Merlin,
Repert. Lettre et Billet de Change, § § 4, 8, pp. 196, 252 (edit. 1827).
(«) Heinecc. de Camb. cap. 2, § 8.
(x) Juosse, sur I'Ordon. 1673, art. 30, p. 123. See also Story on Bills of Exchange,
§ 19 ; Greenleaf on Evid. § § 172, 190.
iy) Pardessus, Droit Comm., Tom. 2, art. 313; Troplong de Priv. et Hypoth.,
Tom. 1 ; Troplong de la "Vente, nn. 879 to 913 ; Code Civil of France, art. 1689 to 1693 ;
id. art. 2112; id. art. 1295; Locre, Esprit du Code de Comm., Tom. 1, Liv. 1, tit. 8,
p. 342.
B.J. 28
434 EQUITY JUEISPEUDENCE. [CH. XXVI.

§ 1040b. There are, however, certain cases, in which assignments

will not be upheld either in equity or at law, as being against the prin-
ciples of public policy. Thus, for example, the full pay, or half-pay of
an officer in the army or navy, is not, upon principles of public policy,
assignable, either by the party, or by operation of law («). For officers,
as well upon half-pay as full pay, are liable at any time to be called into
service ; and it has been well remarked, that emoluments of this sort
are granted for the dignity of the state, and for the decent support of
those persons who are engaged in the service of it. It would, therefore,
be highly impolitic to permit them to be assigned; for persons, who are
liable to be called out in the service of their country ought not to be
taken from a state of poverty. And it has been added, that it might as
well be contended, that the salaries of the judges, which are granted to
support the dignity of the State and the administration of justice, may
be assigned (a). The fact, that half-pay is intended in part as a reward
for past services, does not, in any respect, change the application of the
principle; for it is also designed to enable the party to be always in
readiness to return to the public service, if he shall at any time oe
required so to do (b). The same doctrine has been applied to the civil
service, where the Government may command the future services of
the party (c). But a retiring allowance or gratuity, where the party
cannot be called upon to perform further duties, or receives the amount
as a reward for past services may be aliened (d). In spite of the doubt
expressed in previous editions, there seems no reason why an annuity
payable during the pleasure of the Crown should not be assignable so
long as it is continued. Obviously the terms of the grant preclude any
remedy against the Crown or its agents, but the grantee may be
restrained from receiving it (e). Alimony has been held to be non-
assignable, but upon a different principle, namely, that it is not in the
nature of property, but an allowance to provide for the daily main-
tenance of the wife (/).
§ 1040c. An assignment of a bare right to bring aa action for a fraud,
committed upon the assignor, wiU be held void, as contrary* to public
poUcy, and as savouring of the character of champerty, of which we
shall presently speak (gr). So, a mere right of action for a breach of
trust for the like reason, is not assignable (h). On the other hand a con-
veyance of property carries with it the full proprietary right of the

(«) Stone V. LidderdaXe, 2 Anstr. 533.

(a) Davis v. Duke of Marlborough, 1 Swanst. at p. 79.
(b) Stone v. Lidderdale, 2 Anst. 533.
(c) Hill V. Paul, 8 Ch. & P. 296; Wells v. Foster, 8 M. & W. 149.
(d) Spooner v. Payne, 1 De G. M. & G. 202; Knight v. Bulkeley, 27 L. J. Ch.
692; 15 Jur. N. S. 817; Willcock v. Terrell, 3 Ex. D. 323.
(e) Knight v. Bulkeley, 27 L. J. Ch. 692; 15 Jur. N. S. 817.
(/) In re Robinson, 27 Ch. D. 160.
(g) Prosser v. Edmonds, 1 Y. & C. Ex. 481; post, § 1048.
(h) Hill v. Boyle, L. E. i Eq. 260.
 § 1040b — 1045.] ASSIGNMENTS. 435

grantor to perfect his title even if it involves the bringing of an action (i).
But the purchase must be bond fide, and not a mere cloak to purchase
a right of action (fc). The trustee in bankruptcy has a statutory right to
sell a res litigiosa (l).
§ 1041. The distinction between the operation of assignments at
law, and the operation of them in equity, may be very familiarly shown
by a few illustrations, derived from oases of bailments and consign-
ments. In the common case, where money or other property is deliv-
ered by a bailor to B. for the use of C, or to be delivered to C, the
acceptance of the bailment amounts to an express promise from the
bailee to the bailor, to deliver or pay over the property accordingly. But
it was settled that the person, for whose use the money or property is
so delivered could not maintain an action at law therefore against the
bailee, without some further act or assent on the part of the bailee,
establishing a privity between them (m). But it is certain that a remedy
would lie in equity under the like circumstances (w). It may be added
that no writing is necessary to the validity of an equitable assign-
ment (o). Writing is indeed necessary if the assignment is to operate
under par. 6 of section 25 of the Judicature Act, 1873, entitling the
assignee to sue in his name, without making the assignor a party. An
assignment which fails to comply with the formalities of the statute may
yet be operative under the general rule ; but here the assignor must be a
party to the proceedings (p).
§ 1045. There is another class of cases, namely, those where the
question may arise of an absolute appropriation of the proceeds of an
assignment or remittance, directed to be paid to particular creditors,
in which courts of equity, like courts of law, will not deem the appro-
priation tothe creditors absolute, until the creditors have notice thereof,
and have assented thereto. For, until that time, the mandate or direc-
tion may be revoked or withdrawn, and some other appropriation made
by the consignor or remitter of the proceeds (q). But if, upon notice,
the creditors should assent thereto, and no intermediate revocation

(t) Dickinson v. Burrell, L. E. 1 Eq. 337 ; Fitzroy v. Cave, [1905] 2 E. B. 364.

(fc) De Hoghton v. Money, L. E. 2 Ch. 164.
(l) Secar v. Lawson, 15 Ch. D. 426; Gury v. Churchill, 40 Ch. D. 481, '
(to) Williams v. Everett, 14 East, 582.
(m) Ex parte South, 3 Swanst. 392; Burn v. Carvalho, 4 M. & Cr. 690, where the
plaintiff having failed at law (4 B. & Ad. 382 ; 1 A. & E. 888) succeeded in equity. It
is really " pedantry to refer to authorities " — per Lord Macnaghten, William Brandt's
Sons d Co. V. Dunlop Rubber Co., [1905] A. C. 454.
(o) Gurnell v. Gardner, 4 Giff. 626.
(p) Durham Brothers v. Robertson, [1898] 1 Q. B. 765 ; William Brandt's Sons i
Co. v. Dunlop Rubber Co., [1906] A. C. 454.
(g) Scott v. Porcher, 3 Meriv. 662 ; Ex parte Hall, 10 Ch. D. 615 ; Wallwyn v.
Coutts, 3 Meriv. 707, 708; s.o. 3 Sim. 14; Garrard v. Lord Lauderdale, 4 Euss. &
Myl. 451; Gaskell v. Gaskell, 2 Y. & Jerv. 502; Maber v. Hobbs, 2 Y. & Jerv. 327;
Clegg v. Reas, L. E. 7 Ch. 71; ante, § § 972, 1086a. Acquiescence, e.g., refraining
to sue, as stipulated in deed, may have the same effect as direct assent. In re Baber's
■Trusts. L. E. 10 Bq. 554.
436 EQUITY JURISPRUDENCE. [CH. XXVII.

should have been made by the assignor or remitter; there, in equity,

the assignee or mandatary will be held bound to the creditors, and they
may maintain a bill to enforce a due perfoirmance of the duty. For,
although the assignee or mandatary has a perfect right, in such a case,
to refuse the trust; yet he cannot act under the mandate, and receive
the money, goods or proceeds, and hold them discharged from the duty
thus created. The property is in his hands, clothed with the duty, by
the act of parties, competent to create and establish it; and his assent
is not, in strictness, necessary to give validity to it in equity (r).
§ 1047. The assignee takes the property assigned, subject to all
equities existing between the assignor and his debtor or trustee at the
date of the assignment (s) ; unless there is a contract varying the general
rule (i). But the assignee may obtain a better title than his assignor
possessed. The doctrine is only applicable where there is a debt or where
the fund " can only reach the hands of the beneficiary or assignor in
the shape of money" (u). It has no application where the property
conveyanced is land (w). The rule, it cannot properly be called a prin-
ciple, established by Dearie v. Hall, and Loveridge v. Cooper (x), is
that when there are successive conveyances to separate parties without
notice of the title of a prior assignee {y), the priority of the assignees
inter se is regulated by the date at which the debtor or trustee (2) re-
ceives notice of the assignee's title. It seems clear that the rule in
Dearie v. Hall and Loveridge v. Cooper cannot be questioned at the
present day, but the grounds upon which the decision was based have
since met with scant courtesy (a). It becomes necessary, therefore, to
examine the working of the rule. As between assignor and assignee the
title of the assignee is complete by the assignment, be it a trust fund (b)
or a debt (c), and whether voluntary or for value (d). The trustee or
debtor may deal with the assignor on the footing that he is entitled to
the fund or debt, until they receive notice of an actual assignment (e),

(r) Ex parte South, 3 Swanst. 392; Bum v. Carvalho, 4 M. & Cr. 690; William
Brandt's Sons <& Go. v. Dunlof Rubber Co., [1905] A. C. 454.
(s) GouHenay v. Williams, 3 Hare 539, affd. 15 L. J. Ch. 204.
(t) In re Goy & Co., Ltd., Farmer v. Goy S Go., Ltd., [1900] 2 Ch. 149.
(«) Per Lord Macnaghten, Ward v. Duncombe, [1893] A. C. 369, 390; Foster v.
Cockerell, 3 CI. & F. 456; In re Hughes' Trusts, 2 H. & M. 89 ; Lloyds' Bank v. Pear-
son, [1901] 1 Ch. 865.
(w) In re Richards, Humber v. Richards, 45 Ch. D. 589; Hopkins v. Hemsworth,.
[1898] 2 Ch. 347; Taylor \. London and County Bank, [1901] 2 Ch. 231.
(re) Dearie v. Hall, Loveridge v. Cooper, 3 Euss. 1.
iy) Newman v. Newman, 28 Ch. D. 674 ; In re Holmes, 29 Ch. D. 786.
(2) Lloyd V. Banks, L. E. 8 Ch. 988.
(a) Ward v. Buncombe, [1893] A. C. 369.
lb) Burn v. Carvalho, 4 M. & Cr, 690.
(c) Gorringe v. Irwell India Rubber and Gutta Percha Works, 34 Ch. D. 128.
(d) Hughes v. Walmesley, 12 Jur. 834)!.; In re Way's Trusts, 2 De G. J. & S.
365.
(e) Leslie v. Baillie, 2 Y. & C. Ch. 91; Stocks v. Dobson, i De G-. M. & G. 11;;
Phipps V. Lovegrove, L. E. 16 Bq. 80; Shaw v. Foster, L. E. 5 H. L. 321.
§ 1047—1049.] ASSIGNMENTS. 437

but the assignor cannot defeat his own grant and is accountable for any
sums of money he may receive (/). In Dearie v. Hall and Loveridge v.
Cooper, one of the grounds of the decision was that the priority was a
reward of superior diligence, but it has since been held that if a trustee
acquired his knowledge of the transaction from a perusal of a newspaper
it was sufficient {g), and it is difficult to distinguish the case of a debtor.
A clear verbal notice is sufficient, but the evidence in the ease of a con-
flict as to priorities is to be scanned jealously (h).
§ 1047a.. Before the notice can be effectually given, there must be
an actual debt, or the fund must be in the hands of trustees or effectually
transferred to them (i). Notice to one of several trustees (not being
himself an assignor) (k) is effective so long as that trustee remains a
trustee of the fund (I) ; but if he dies the priority thus gained will be dis-
placed in favour of a subsequent assignee if he gives prior notice of his
assignment to the then existing trustees (m). A priority once acquired
by notice to all the trustees remains notwithstanding their retirement
or death, and the appointment of new trustees (n-).
§ 1048. It is principally in cases of assignments that courts of
equity have occasion to examine into the doctrine of champerty and
maintenance ; and therefore it may be here proper to glance at this im-
portant topic. Champerty {cam-pi partitio) is properly a bargain be-
tween a plaintiff or a defendant in a cause, caynpum partire, to divide
the land or other matter sued for between them, if they prevail at law ;
whereupon the champertor is to carry on the party's suit at his own
expense (o). Maintenance (of which champerty is a species) is properly
an officious intermeddling in a suit, which no way belongs to one, by
maintaining or assisting either party with money or otherwise, to prose-
cute or defend it (p). Each of these is deemed an offence against public
justice, and punishable accordingly, both at the common law and by
statute, as tending to keep alive strife and contention, and to pervert
the remedial process of the law into an engine of oppression.
§ 1049. It was chiefly upon the ground of champerty and mainten-
ance, that the courts of common law refused to recognize the assign-
ment of debts, and other rights of action and securities; although (as

(/) In re Patrick, Bills v. Tatham, [1891] 1 Ch. 82.

(3) Lloyd V. Banks, L. E. 3 Ch. 488.
(h) In re Tichener, 35 B«av. 317. Choses in action other than trade debts " due
or growing due " are no longer within the order and disposition clause : Bankruptcy
Act, 1914 (4 & 5 Geo. V. 0. 59), 3. 38 (c).
(i) Buller v. Plunket, 1 J. & H. 441; Stephens v. Green, [1895] 2 Ch. 148; in re
Dallas, [1904] 2 Ch. 385.
(k) Browne V. Savage, 4 Drew. 635; In re Dallas, [1904] 2 Ch. 385.
(l) Meux V. Bell, 1 Hare 73; Ward v. Duncombe, [1893] A. C. 369.
(m) Timson v. Bamsbottom, 2 Keen, 35; In re Phillips' Trusts, [1903] 1 Ch. 183.
(n) In re Wasdale, Brittin v. Partridge, [1899] 1 Ch. 163.
(o) Sprye v. Porter, 7 E. & B. 58; Bees v. De Bernardy, [1896] 2 Ch. 437.
(p) Harris v.Brisco, 17 Q. B. D. 504; Neville v. London " Express " Newspaper,
Ltd., [1919] A. C. 368.
438 EQUITY JUHISPEUDBNCE. [CH. XXVII.

we have seen) the same doctrine does not prevail in equity. But still,
courts of equity are ever solicitous to enforce all the principles of law
respecting champerty and maintenance ; and they will not, in any case,
uphold an assignment, which involves any such offensive ingredients {qi.
Thus, for instance, courts of equity, equally with courts of law, will
repudiate any agreement or assignment made between a creditor and a
third person, to maintain a suit of the former, so that they may share
the profits resulting from the success of the suit; for it will be a clear
case of champerty (r). So, an assignment of a part of the subject of a
pending prize suit, to a navy agent, in consideration of his undertaking
to indemnify the assignor against the costs and charges of the suit, will
be held void ; for it amounts to champerty, in being the unlawful main-
tenance of a suit, in consideration of a bargain for part of a thing, or
some profit out of it (s). The exceptions to the general rule are of
certain peculiar relations recognized by the law ; such as that of father
and son; or of an heir-apparent; of the husband of an heiress; or of
master and servant ; or motives of charity (t) ; and the like.
§ 1050. But consistently with these principles, a party may pur-
chase, by assignment, the whole interest of another in a contract, or
security, or other property which is in litigation, provided there be
nothing in the contract which savours of maintenance ; that is, provided
he does not undertake to pay any costs, or make any advances beyond
the mere support of the exclusive interest, which he has so acquired (u).
Thus, for example, it is extremely clear, that an equitable interest, under
a contract of purchase of real estate, may be the subject of sale. A
person, claiming under such an original contract, in case he afterwards
sells his purchase to sub-purchasers, becomes, in equity, a trustee for
the persons to whom he so contrapts to sell. Without entering into any
covenant for that purpose, such sub-purchasers are obliged to indemnify
him from the consequence of all acts, which he must execute for their
benefit. And a court of equity not only allows, but actually compels,
him to permit them to use his name in all proceedings for obtaining the
benefit of their contract. Such indemnity and such proceedings, under
such circumstances, are not deemed maintenance. So if there be a
trust estate in lands, either actual or constructive, which, however, is
controverted by the trustee, the cestui que trust (or beneficiary) may,
nevertheless, lawfully assign it; and the assignee may, in equity, en-
force his rights to the same, if the assignment does not, in the sense
above stated, savour of maintenance.

iq) Reynell v. Sprye, 1 De G. M. & G. 660; Rees v. De Bernardy, [1896] 2 Ch.

437.
(r) Hartley v. Russell, 2 Sim. & St. 244.
(s) Stevens v. Bagwell, 16 Ves. 156.
(t) 4 Black. Comm. 135; Harm v. Briscoe, 17 Q. B. D. 504.
(a) Harrington v. Long, 2 M. & K. 590; Hunter v. Daniel, i Hare, 420; Fitzroy
V. Gave, [1905] 2 K. B. 364.
§ 1050—1053.] ASSIGNMENTS. 439

§ 1051. This doctrine has been fully recognized by Lord Eldon.

" If G. and W. (the original vendees), during the pendency of the suit
in the Exchequer, sold the estate to A. B., he would have a right in a
court of equity to insist, as purchaser of the estate, that they should
convey to him the fee-simple, or such title aiS they had. So insisting,
he claims no more than they would be entitled to claim, if they had not
sold their equitable interest. Haying sold, they become trustees of
that equitable interest ; their vendee acquires the same right which they
had, that is, a right to call on the original vendors indemnifying them
against all costs and charges for the use of their names, to enable
them to execute the sub-contrac5t, by which they have undertaken to
transfer their benefits under the primary contract. If I were to suffer
this doctrine to be shaken by any reference to the law of champerty
or maintenance, I should violate the established habits of this court,
which has always given to parties, entering into, a sub-contract, the
benefit which the vendors derived from the primary contract " (x).
§ 1052. Upon the like grounds, where a creditor, who had insti-
tuted proceedings at law and in equity against his debtor, entered
into an agreement with the debtor to abandon those proceedings, and
give up his securities, in consideration of the debtor's giving him a
lien on other securities in the hands of another creditor, with authority
to sue the latter, and agreeing to use his best endeavours to assist
in adjusting his accounts with the holder, and in recovering those
securities ; it was held, that the agreement was lawful, and not main-
tenance; for there was no bargain, or colour of bargain, that the
assignee should maintain the suit, instituted in the assignor's name,
against such creditor, having the other securities, in consideration of
sharing in the profits to be derived from that suit. The agreement
was, in effect, nothing more thaji an assignment of the equity of
redemption of the assignor in the securities held by such creditor in
exchange for the prior securities held by the assignee. The authority,
given to the assignee to sue such creditor, was the common legal
provision in the case of an assignment of a debt or security (y).
§ 1053. Where, by articles of agreement for the sale of an estate,
it was agreed between the vendor and purchaser, that the purchaser,
bearing all the expenses of certain suits, commenced by the vendor
against an occupier for by-gone rents, should have the rents so to be
recovered, and also any money recovered for dilapidations, and that
the purchaser, at his own expense, and indemnifying the vendor, might
use the name of the vendor, in any action he might tiiink fit to com-
mence therefor; it was held at the common law, that the agreement
was not void for maintenance or champerty («).

(x) Per Lord Eldon, in Wood v. Griffith, 1 Swanst. 56.

iy) Hartley v. Russell, 2 Sim. & Stu. 244.
(z) Williams v. Protheroe, 5 Bing. 309; s.c. 3 Y. & Jerv. 129.
440 EQUITY JCRISPRDDKNCE. [CH. XXVII.

§ 1054. Indeed, there is no principle in equity, which prevents a

creditor from assigning his interest in a debt after the institution of
a suit therefor as being within the statutes against champerty and
maintenance. Such an assignment gives the person, to whom it is
made, a right to institute a new proceeding, in order to obtain the
benefit of the assignment. And the proper mode of doing this was
by the assignee's filing a supplemental bill (if the suit is still pending),
making the assignor and the debtor defendants. But, if the assign-
ment contains an agreernent, that the assignee is to indemnify the
assignor, not only against all costs incurred, and to be incurred, with
reference to the subject-matter assigned, but also against all costs to
be incurred in that suit for collateral objects and claims, totally
distinct from the subject-matter assigned, it will be held void for
maintenance {a).
§ 1055. So strongly are courts of equity inclined to uphold assign-
ments, when bond fide made, that even the assignment of freight to
be earned in future, is good in equity, and will be enforced against
the party from whom it becomes due (b). So an assignment of a whale-
ship, by way of mortgage, and of all oil, head-matter, and other cargo
caught or brought home on a whaling voyage, will amount to a good
assignment of the future cargo of oil and head-matter obtained in the
voyage (c). And, whenever an assignment is made of a debt, or other
personal property, although it is charged on land, as, for example, a
pecuniary legacy charged on land, the assignment will be treated as
an assignment of money only, and, therefore, it will not be affected
by the policy of the registration laws, by which conveyances of the
interests in the land are required to be registered (d).
§ 1056. In courts of law, these principles of courts of equity were,
even before the Judicature Act, 1873, acted on to a limited extent.
But still, whenever a bond or other debt was assigned, and it was
necessary to sue at law for the recovery thereof, it had to be done in
the name of the original creditor, the person to whom it was trans-
ferred being treated rather as an attorney than as an assignee, although
his rights were recognized, and protected, in some measure, at law,
against the frauds of the assignor (e).
§ 1057. In equity, on the other hand, the assignee might always
sue on such an assignment in his own name, and enforce payment of
the debt directly against the debtor, making him, as well as the

(a) Harrington v. Long, 2 Myl. & K. 590. The report in this case is somewhat
obscure, and does not exactly present the true ground of the decision. But the argu-
ment of the counsel for the defendant, in pages 558, 599, shows it. Provision for
assignment of interest is now made by Rules of the Supreme Court, 1883, Order 17.
(b) Douglas v. Russell, 4 Sim. 524; 1 Myl. and K. 488.
(c) Langton v. Horton, 1 Hare 549, 556, 557 ; b.c. 5 Beav. 9.
(d) Malcolm v. Charlesioorth , 1 Keen 63.
(e) Ex parte South, 3 Swanst. 398 ; Durham Brothers v. Robertson, [1898] 1
Q. B. 765 ; Barker v. Richardson, 1 Y. & J. 362.
§ 1054 1057.] ASSIGNMENTS. 441

assignor (if necessary), a party to the action. The assignment of a

debt does not, in equity, require even the assent of the debtor, in any
manner, thereto; although, to make it effectual for all purposes, it
may be important to give notice of the assignment to him ; since,
until notice, he is not aflected with the trust created thereby, and the
rights of third persons may intervene to the prejudice of the assignee.
The ground of this doctrine is, that the creditor has, in equity, a
right to dispose of his own property as he may choose ; and to require
the debt to be paid to such person as he may direct, without any
consultation with the debtor, who holds the debt, subject to the rights
of the creditor (/).

(/) Hammond v. Messenger, 9 Sim. 327.

442 EQUITY JURISPJIUDENCE. [CH. XXVIII.

CHAPTER XXVIII.
WILLS AND TESTAMENTS.

§ 1058. In the next place, let us pass to the oonsideration of express

trusts of real and personal property, created by Last Wills and
Testaments. These are so various in their nature and objects, and so
extensive in their reach, that it would be impracticable to comprehend
them within the plan of these commentaries. They are most usually
created for the security of the rights and interests of infants, of femes
covert, of children, and of other relations; or for the payment of debts,
legacies, and portions, or for the sale or piirchase of real estate for the
benefit of heirs, or others having claims upon the testator; or for
objects of general or special charity. Many trusts, also, arise under
wills, by construction and implication of law. But in whatever way,
or for whatever purpose, or in whatever form, trusts arise under wills,
they are exclusively within the jurisdiction of courts of equity. Indeed,
so many arrangements, modifications, restraints, and intermediate
directions are indispensable to the due administration of these trusts,
that, without the interposition of courts of equity, there would, in many
cases, be a total failure of justice (a).
§ 1059. The truth of this remark will at once be seen by the
statement of a very few plain cases, to illustrate it. In the first place,
trusts are often created by will, without the designation of any trustee
who is to execute them ; or it may be matter of doubt, upon the terms
of the will, who is the proper party. Now it is a settled' principle in
courts of equity, as has been already stated, that a trust shall never
fail for the want of a proper trustee (b); and, if no other is designated,
courts of equity will take upon themselves the due execution of the
trust.
§ 1060. Thus, for example, if a testator should order his real estate,
or any part thereof, to be sold for the payment of his debts, without
saying who should sell, in such a case a clear trust would be created.
Modem legislation has rendered this example of no importance in
England, for the legal estate would now vest in the personal represen-
tatives of the testator, and they would be the parties to execute the

(a) As to charges on real estate, for the payment of debts, see post, § 1246.
(b) Ante, § 976; Co. Litt. 290, b, Butler's note (1), § 4.
 § 1058 1063.] WILLS AND TESTAMENTS. 443

trust and to sell and convey the land axid receive the purchase -
money (c).
§ 1061. In the next place, let us suppose the case of a will giving
power to trustees to sell an estate upon some specified trust, and they
should all refuse to execute the trust, or should all die before executing
it. Now, it was a well-known rule of the common law, that powers
are never imperative; but the acts to be done under them were left to
the free will of the parties to whom they are given. The same rule
was applied at law to such powers, even when coupled with a trust.
Hence, in the case supposed, the trust would at law be wholly gone.
The trustees, if living, could not at law be compelled to execute the
trust; and by their death the power could be entirely extinguished (d).
But a court of equity regarded a special power as in the nature of a
trust, and enforced its execution accordingly, either by the original
trustees or substituted trustees, or in administration proceedings (e).
§ 1062. In regard to powers, too, some nice distinctions were taken
at law, which often required the interposition of courts of equity.
Thus, for instance, it was a general rule of law that a mere naked
power, given to two, could not be executed by one; or, if given to
three, could not be executed by two, although the other were dead ;
for, in each case, it was held to be a personal trust in all the persons,
unless some other language was used to the contrary. Then, suppose
a testator, by his will, should give authority to A. and B. to sell his
estate, and should make them his executors, in such a case, it has
been said, that the survivor could not sell (/). But, if the testator
should give authority to his executors (eo nomine) to sell, and should
make A. and B. his executors, there, if one should die, the survivor
(it has 'been said) could sell {g). Now, by force of the Trustee Act,
1893 (56 & 57 Vict. c. 53), section 22, and of the Conveyancing Act,
1911 (1 & 2 Geo. v., c. 57), section 8, a power or trust vested in two
or more trustees survives and may be executed by the survivors or
survivor or the personal representative of a sole or last surviving
trustee, unless the instrument creating the power or trust contains
a provision to the contrary.
§ 1063. Upon the construction of wills also many difficult questions
arise, as to the nature and extent of powers, and the manner in which
they are to be executed. It would occupy too great a space to enter
into a general examination, even of the leading authorities upon this
subject. But one or two illustrations may not be without use, rather
(c) Law of Property Amendment Act, 1859 (22 & 23 Vict. c. 35), bs. 14, 15, 16;
Land Transfer Act, 1897 (60 & 61 Vict. c. 65), Part 1; In re Barrow-in-Furness and
RawUnson's Contract, [1903] 1 Ch. 663.
(d) Co. Litt. 113 a, Hargrave's note (2).
(e) Harding v. Glynn, 1 Atk. 469 ; Brown v. Higgs, i Ves. 708, 5 Ves. 495, 8 Ves.
561; In re Bradshaw, Bradshaw v. Bradshaw, [1902] 1 Ch. 436.
(/) Co. Litt. 1126, 113o, and Hargrave's note (2).
(3) Co. Litt. 1126.
444 EQUITY JURISPRUDENCE. [CH. XXVIII.

to open the mind to some of the doubts which may arise, than to
satisfy inquiries (h). Thus, for example, where a testator directed
that, if his personal estate and house and lands at W. should not pay
his debts, then his executors should raise the same out of his copy-
hold estate; it became a question whether the terms of the power
authorized a sale of the copyhold estate. It was held that they
did (0.
§ 1064. This is a comparatively simple question. But suppose a
will should contain a direction or power to raise money out of the
rents and profits of an estate, to pay debts or portions, &a., a question
might then arise, whether such a power would authorize a sale or
mortgage of the estate under any circumstances ; as, for instance, if
it were otherwise impracticable, without the most serious delays and
inconveniences, to satisfy the purposes of the trust. Now, this is a
point upon which great authorities have entertained opposite opinions.
At one time it was held that the power should be restricted to the
mere application of the annual rents and profits, but the modern cases
hold to a more reasonable construction, that a conveyance for value or
by way of gift of the entire income is in substance and effect a gift of
the capital, unless qualified by words restricting a gift of the income
to a particular time or otherwise limited, or unless the circumstances
render such a construction unreasonable (k). Prima facie, therefore,
the donee of the power might, if necessary for the purposes of the trust,
sell or mortgage the estate.
§ 1064c. A power to raise money by sale or mortgage of real
estate was held to authorize a mortgage with a power of sale (i). But
a devise of real estate to isrustees, in fee upon triist, ' ' out of the rents,
issues, and profits," " and such other means (except a sale) as they
may think proper, to levy and raise sufficient to pay off the charges
on the estate," does not give the trustees the power to raise the
charges, either by sale, by mortgage, or by leases on fines, but they
must be raised out of the rents, and the profits of timber and
mines (tw). And where the testator charged certain of his lands with
the payment of a mortgage upon other lands (which he also devised
specially), and with the payment of his debts generally, but gave no
express power of sale, it was held that the executor took a power of
sale by implication, and that the purchaser of the executor took the
land discharged of all equity in favour of the devisee (n). At the

Qi) Sugden, Powers, chap. 4, § 1, chap. 8, § 1.

(i) BatemanY. Bateman, 1 Atk. 421.
(k) Allan v. Backhouse, 3 Yes. & B. 64, Jac. 631; Bootle v. Blundell, 1 Mer. 193;
Metcalfe v. Hutchinson, 1 Ch. D. 481 ; In re Tubbs, Dykes v. Tubbs, [1915] 1 Ch. 540.
(I) Bridges v. Longman, 24 Beav. 27; In re Ghawner's Will, L. E. 8 Bq. 569.
See Earl Vane v. Rigden, L. E. 5 Ch. 663.
(m) Bennett v. Wyndham, 23 Beav. 521.
(n) Robinson v. Lowater, 3 De G. M. & G. 272 ; Greetham v. Colton, 34 Beav.
615. See also Gorser v. Gartwright, L. R. 7 H. L. 731.
§ 1064, 1065.] WILLS AND TESTAMENTS. 445

present day a mortgage by deed incorporates presumptively a power

of sale by force of the Conveyancing Act, 1881 (44 & 45 Vict. c. 41),
s. 19. It has been suggested that where the trustee is not authorized
to grant a power of sale he should exclude this provision. There is,
however, a power to order a judicial sale under section 25, and the
suggested difficulty seems unsubstantial.
§ 1065. In the next place, independently of the consideration of-
powers, many very embarrassing questions arise as to the nature and
extent of the limitations of trust, properly so called, under last wills;
as to the persons who are to take; and also as to the interest they
are to take in the trust property. Many of these trusts require the
positive interposition and direction of courts of equity, before they
can be properly or safely executed by the parties in interest, so as to
protect them against future litigation and controversy. And it not
unfrequently happens, that the final administration, settlement, and
distribution of the assets of the testator, real and personal, must
stand suspended, until the aid of some court of equity has been
invoked, and a judgment is obtained, containing a declaration of the
nature and extent of these trusts, of the parties who are entitled to
take, and of the limitations of their respective interest; and also pro-
viding means, by reference to a master, whereby the cross-equities and
conflicting claims of various persons, such as creditors, trustees,
legatees, devisees, heirs, and distributees, may be clearly ascertained
and definitely established (o). Thus, for example, upon a will creating
a trust for the payment of debts, and charging them, as well as
legacies, upon the real estate of the testator, it may often be a matter
of serious difficulty to ascertain, from the words of the will, whether
the personal estate is to be wholly exonerated from the payment of
the debts and legacies ; or whether it is to be the primary fund, and the
real estate only to be auxiliary thereto. And in each case, if the
charges on the real estate are not sufficient to exhaust the whole, in
what manner the charges are to be borne and apportioned among the
different devisees and heirs (p). Until these questions are settled by
a court of equity, it will be impossible for the executors or trustees;
(as the case may be) to proceed to a final settlement of the various,
claims, without manifest danger of having all their proceedings over-
hauled in some future proceeding (g).
(o) This subject has been already somewhat considered under the heads of Account,,
Administration, Legacies, and Marshalling of Securities. Ante, oh. 8, 9, 10, 13.
(p) See 2 Powell on Devises, by Jarman, ch. 35, pp. 664 to 714, and notes; 1
Mad. Pr. Ch. 466 to 488. See Forrest v. Prescott, L. E. 10 Eq. 545 ; Powell v. Riley ^
L. E. 12 Eq. 175.
(q) Some of these difficulties have been already touched, in considering the doc-
trines respecting the marshalling of assets and securities. Ante, § § 558 to 680, 633 to
645. See also the notes of Mr. Cox to Howell v. Price, 1 P. Will. 294, note (1), and
to Evelyn v. Evelyn, 2 P. Will. 664, note (1), as to the point whether the personal
estate is to be deemed the primary fund for the payment of debts and legacies, or not.
See also 1 Mad. Pr. Ch. 467 to 488 ; id. 498 to 506.
446 EQUITY JURISPRUDENCE. [CH. XXVIII.

§ 1065a. It is entirely beyond the province of this book to deal

with the interest® of beneficiaries under wills, a subject which belongs
to the law of property and has nothing to do with any jurisprudence
peculiar to courts of equity. It may be sufficient to indicate to the
student that words of known legal import may be qualified by the
general language of the will or by explanatory phrases, and that the
judicial interpretation of a will may now be obtained cheaply and
expeditiously under the Eules of the Supreme Court, 1883, O. LV.,
rule 3.
§ 1066. There are also some rules of construction of the words of
wills, adopted by courts of equity in relation to trusts, which are differ-
ent from those which are adopted by courts of law in construing the
same words in relation to mere legal estates and interests. We have
already had occasion to take notice of this distinction, in remarking upon
the difference between executed and executory trusts. In the former,
courts of equity follow the rules of law in the interpretation of the words ;
in the latter, they often proceed upon an interpretation widely
different (r).
§ 1067. In regard also to legacies and bequests of chattels and other
personal property, courts of equity (as we have seen) treat all such cases
as matters of trust, and the executor as a trustee for the benefit of the
legatees, and as to the undisposed residue of such property, as a trustee
for the next of kin (s). The rules, therefore, adopted by courts of equity,
in expounding the words of wills in regard to bequests of personal pro-
perty, are not precisely the same as those adopted by courts of law in
interpreting the same words as to real estate. For courts of equity,
having succeeded to the jurisdiction of the ecclesiastical courts over
these matters, and these courts, in the interpretation of legacies being
governed by the rules of the civil law, courts of equity have followed
them in such interpretation, rather than the rules of the common law
where they difier (i).
§ 1068. In the interpretation of the language of wills, also, courts
of equity have gone great lengths, by creating implied or constructive
trusts from mere recommendatory and precatory words of the testator.
The best exposition is that stated by Lord Alvandey, " Wherever -any
person gives property, and points out the object, the property, and the
way in which it shall go, that does create a trust, unless he shews clearly,
that his desire expressed is to be controlled by the party ; and that he
shall have an option to defeat it " (m). And where the object is charity,
ihe established rule is followed, and a trust will be raised if a general

(r) Ante, § 974. See aa to executory trusts, Thompson v. Fisher, 10 Bq. 207.
(s) Ante, § § 593, 595.
(f) Ante, § § 4, 602; Crooks v. De Vandes, 9 Ves. 197.
(u) Malim V. Keighley, 3 Ves. 333, 335, aifd. 3 Ves. 529. See also In re Hamilton,
Trench v. Hamilton, [1895] 2 Ch. 370; Comiskey v. Bowring-Hanbury , [1905] A. C.
 § 1065a — 1068.] wills and testaments. 447

charitable intention is expressed, although a definite charitable institu-

tion is not named (x). The cases are very numerous and difficult to
reconcile, and many will endorse the opinion of a very eminent judge,
that the officious kindness of the court of chancery in interposing trusts
where, jn many cases, the father of the family never meant to create
trusts, must have been a very cruel kindness indeed " (y). And as was
said at an earlier date, ' ' The first case that construed words of recom-
mendation into a command, made a will for the testator; for every one
knows the distinction between them. The current of decisions, has, of
late years, been against converting the legatee into a trustee " (a).
Those words were spoken in 1827 and have found an echo in subsequent
cases (a), but the definition of Lord Alvanley has twice been endorsed
in the House of Lords (b). It has been suggested that too little atten-
tion has sometimes been paid to the fact that where the precatory words
follow an absolute gift, the raising of a precatory trust after the death
of the beneficiary infringes the rule of construction that an absolute gift
shall not be cut down but by the clearest words. Still the common law
furnishes cases illustrative of a similar result. Thus, where lands were
devised to A. and his heirs, but if he should die without having settled
or otherwise disposed of the estates so devised, or without leaving issue
of his body then over, it was held that A. took an absolute estate with
an executory gift over which had been defeated by A. 's conveyance (c).
Without going through the cases in detail, it wiU be sufficient for the
purposes of the student to note that a precatory trust has been raised
upon the use of the words, " advise him to settle it " (d), " hoping " (e),
" desiring " (/), " It is my dying request " (g), " It is my request " {h,),
" 1 recommend" (i), " Save the prayer hereinafter contained ....
convinced of the high sense of honour and probity of my son-in-law A.,
I entreat him " (fc), '* In full confidence " (0, " Feeling assured and

(x) In re Burley, Alexander v. Burley, [1910] 1 Ch. 216.

(y) James, L. J., Lambe v. Eames, L. E. 6 Ch. 597, 599.
(z) Sale V. Moore, 1 Sim. 534.
(a) Lambe v. Eames, L. E. 6 Ch. 597; In re Adams and the Kensington Vestry,
27 Ch. D. 394.
(b) Knight v. Boughton, 11 CI. & P. 513 ; Comiskey v. Bowring -H anbury , [1905]
A. C. 84.
(c) Beechcroft v. Broome, 4 T. E. 441.
(d) Porter v. Bolton, 5 L. J. N. S. Ch. 98.
(e) Harland v. Trigg, 1 Bro. C. C. 142.
(/) Gruwys v. Caiman, 8 Ves. 319; In re Oldfield, Oldfield v. Oldfield, [1904] 1
Ch. 549.
(g) Pierson v. Garnett, 2 Bro. C. C. 38, 226.
(h) Bernard v. Minshule, Johns. 276.
(i) Lord Kingston v. Lord Lorton, 2 Hog. 166; Ford v. Fowler, 3 Beav. 146;
Cholmondeley v. Cholmdndeley , 14 Sim. 690.
(k) Prevost v. Clarke, 2 Mad. 458.
(I) Wace V. Mallard, 25 L. J. Ch. 355; Comiskey v. Bawring -H anbury , [1905]
A. C. 84.
448 EQUITY JURISPRUDENCE. [CH. XXVIII.

having every confidence" (m), "Well knovs^ing " (n), "Not doubt-
ing " (o), " Trusting " is a word of art, and plainly implies a trust (p).
§ 1071. In respect to certainty in the description of objects or per-
sons in such recommendatory trusts, it may be proper to state, that it
is not indispensable that the persons should be described by their names.
But mere general descriptions vifill often amount to a sufficient designa-
tion of the persons to take; such, for example, as " sons," " children,"
" family," and " relations "; if the context fixes the particular persons-
who are to take, clearly and definitely. Thus a provision by vcay of
precatory trust in favour of the family of A. would indicate the heir in
the case of freehold lands (g), but in the case of personalty would in-
clude all members related to the donee of the power, but if the power
were not exercised a gift over in favour of relations or family would
be restricted to children or next of kin (r).
§ 1073. In the next place, as to certainty in the description of pro-
perty, or rather, as to what property is bequeathed. If it appears that
the person upon whom a precatory trust is sought to be imposed had it in
his power to diminish the capital of the property, there the trust will
fail from want of a sufficiently definite subject-matter (s).
§ 1074. These may suffice as specimens of the curious refinements
in the interpretation of wills, which courts of equity have adopted in
creating constructive trusts ; in which, indeed, they have often been
followed by courts of law in regard to legal estates (t). It is highly
probable, that some of these refinements were borrowed from the civil
law, in which the distinction between pure legacies, and legacies clothed
with trusts, was well known. Thus, it is said, " Legatum, est, quod
legis modo, id est imperative, testamento reUquitur. Nam ea quae
precativo modo relinquuntur, fideicommissa vocantur." And again,
" Fideicommissum est, quod non civilibus verbis, sed precativfe relin-
quitur; neo ex rigore juris civilis proficiscitur, sed ex voluntate datur
relinquentis " (u). And then, by the way of illustration, it is declared,
" Fideicommittere his verbis possumus; rogo, peto, volo, mando, de-
precor, cupio, injungo. Desidero, quoque et impero verba, utile faciixat
fideicommissum : relinquo, vero, et commendo, nullam fideicommissi
pariunt actionem " (x). Some of these shades of distinction are ex-

(m) Gully V. Cregoe, 24 Beav. 185. (n) Bnggs v. Penny, 3 Mac. and G. 546
(0) Parsons v. Baker, 18 Ves. 476.
(p) Baker v. Mosley, 12 Jur. 740.
(g) Wright v. Atkyns, 17 Ves. 255; s.c. 19 Ves. 301; G. Coop. 116; Griffiths v.
Evan, 5 Beav. 241.
(r) Grant v. Lynam, 4 Euss. 292; Liley v. Hey, 1 Hare 580; In re Hutchinson
and Tennant, 8 Ch. D. 540.
(s) Curtis V. Rippon, 5 Mad. 434; Sale v. Moore, 1 Sim. 634; Lambe v Eames
L. E. 6 Ch. 597.
(1) Doe V. Smith, 5 M. & S. 126 ; Doe v. Joinville, 3 East 172.
(m) Pothier, Pand. Lib. 30, tit. 1 to 3, n. 3.
(x) Ibid. ; Inst. B. 2, tit. 24, § 3; Cod. Lib. 6, tit. 43, 1. 2; Dig. Lib. 31, tit. 2,
f. 77 passim.
§ 1071 — 1074.] WILLS AND TESTAMENTS. 449

tremely nice, and almost evanescent ; especially that between the words
" deprecor, peto," and " desidero," and the words " relinquo " and
commendo. ' ' Again, ' ' Etiam, hoc modo ; cupio des, opto des, credo
te daturum, fideicommissum est (y). Et eo modo relictum; exigo,
desidero uti des, fideicommissum valet («). Verba, quibus testator ita
caverat; non dubitare se, quodeumque uxor ejus cepisset liberis suis
redditurum, pro fideicommisso accipienda " (a). In these last citations
we may clearly trace the origin, or at least the application, of some of
our modem equity doctrines.

{y) Dig. Lib. 30, tit. 1, f. 115.

(z) Ibid. f. 118.
(a) Dig. Lib. 31, tit. 2, f. 67, § 10.

E.J. 29
450 EQUITY JURISPRUDENCE. [CH. XXIX.

CHAPTER XXIX.
ELECTION AND SATISFACTION.

§ 1075. It is in cases of wills also, that the doctrine respecting Elec-

tion AND Satisfaction must frequently, though not exclusively, arise in
practice, and is acted upon and enforced by courts of equity. Election,
in the sense here used, is the obligation imposed upon a party to choose
between two inconsistent or alternative rights or claims, in cases where
there is clear intention of the person, from whom he derives one, that
he should not enjoy both. Every case of election, therefore, presupposes
a plurality of gifts or rights, with an intention, express or implied, of
the party who has a right to control one or both, that one should be a
substitute for the other. The party who is to take, has a choice, but he
cannot enjoy the benefits of both (a).
§ 1076. Thus, for example, if a testator should, by his wUl, give to
a legatee an absolute legacy of ten thousand pounds, or an annuity of
one thousand pounds per annum during his life, at his election; it would
be clear that he ought not to have both ; and that he ought to be com-
pelled to make an election, whether he would take the one or the other.
This would be a case of express and positive election (b). But suppose,
instead of such a bequest, a testator should devise an estate belonging
to his son, or heir-at-law, to a third person ; and should, in the same
will, bequeath to his son, or heir-at-law, a legacy of one hundred
thousand pounds, or should make him the residuary devisee of all his
estate, real and personal. It would be manifest, that the testator in-
tended that the son or heir should not take both, to the exclusion of the
other devisee ; and therefore he ought to be put to his election which he
would take ; that is, either to relinquish his own estate, or to compen-
sate the party disappointed, or in the case of a testator his estate, out

(o) Mr. Swanston's note to Dillon v. Parker, 1 Swanst. 394, note (b) ; Thellusson
V. Woodford, 13 Ves. 220, 2 Mad. Pr. Ch. 40 to 49 ; Jeremy on Bq. Jurisd. B. 3 Pt. 2,
ch. 5, pp. 534 to 538. Mr. Swanston's note is drawn up with great ability and learn-
ing ; and I have freely used it in the discussion of this topic. The whole subject of
election is also most elaborately examined in Roper on Legacies by White, vol. 2, ch.
23, pp. 480 to 678, to which the attention of the learned reader is invited. It is wholly
inconsistent with the nature of these Commentaries to discuss all the minute distinc-
tionfi belonging to it, interesting and important as they certainly are. The subject of
election has formed the subject of an exhaustive treatise, by George Serrell, Esq.,
M.A., LL.D., to which the reader is further referred.
(b) See Parker v. Sowerby, 4 De G. M. & G. 321; Linley v. Taylor, 1 Giff. 67.
 § 1075 — 1078.] ELECTION AND SATISFACTION. 451

of the bequest under the will. This would be a case of implied or con-
structive election (c).
§ 1077. Now, the ground upon which courts of equity interfere in
all cases of this aort (for at law there is no direct remedy to compel an
election) is, that the purposes of substantial justice may be obtained
by carrying into full effect the whole intentions of the testator (d). And
in regard to the cases of implied election, it has been truly remarked,
that the foundation of the doctrine is still the intention of the author
of the instrument ; an intention, which, extending to the whole disposi-
tion, isfrustrated by the failure of any part, but such intention may be
repelled by the declaration in the instrument itself of a particular inten-
tion inconsistent with the presumed and general intention (e). Its
characteristic, in its application to these cases, is, that by equitable
arrangement, full effect is given to a donation of that which is not the
property of the donor. This principle is applicable to the case of invalid
provisions affecting appointment under powers. If a valid appointment
is made to an object of the power burdened with a provision not war-
ranted by the power, the appointment will be good and the invalid pro-
vision will be rejected, and as the only fund out of which compensation
is to be sought is the appointed property, no case arises to which the
equitable doctrine of election can apply (/). But if the donee of the
power makes a gift out of his own property to the object of the power,
then the appointee must make compensation out of the property so
given, if he elects to defeat the wishes of the donee so far as they are
invalid (g).
§ 1078. The doctrine of election, like many other doctrines of equity
jurisprudence, appears to have been derived from the civil law. By
that law, a bequest of property which the testator knew to belong to
another was not void ; but it entitled the legatee to recover from his
heir either the subject of his bequest, or, if the owner was unwilling to
part with that at a reasonable price, the pecuniary value. Thus, it is
said in the Institutes, that a testator may not only bequeath his own
property, or that of his heir, but also the property of other persons ; so
that the heir may be obliged to purchase and deliver it ; or, if he cannot
purchase it, to give the legatee its value (h). But ordinarily, to give
effect to a legacy in such a case, the testator must have known that the
property so bequeathed by him belonged to another ; and not have been
ignorant of the fact, and supposed the property was his own. " Haere-
(c) Streatfield v. Streatfield, Oas. t. Talb. 176; Bristow v. Warde, 2 Ves. Jur.
336 ; Howells v. Jenkins, 1 De G. J. & S. 617.
(d) Crosbie v. Murray, 1 Ves. Jun. 557, 559.
(e) In re Vardon's Trusts, 31 Ch. D. 375; Haynes v. Foster, [1901] 1 Ch. 361.
(/) Carver v. Bowles, 2 Russ. & M. 304; Woolridge v. Woolridge, Johns. 63;
Churchill v. Churchill, L. B. 5 Bq. 44.
(g) In re White, White v. White, 22 Ch. D. 555.
(h) Inst. B. 2, tit. 20, § 4, tit. 24, § 2; Dig. Lib. 30, tit. 1, f. 30, § 7; Dig. Lib.
31, tit. 2, f. 67, § 8; 1 Swanst. 396, note.
452 EQUITY JURISPBUDBNCE. [CH. XXIX.

dum etiam res proprias ' ' (says the Code) ' ' per fideicommissum relinqui
posse, non ambigitur " (i).
§ 1079. In the civil law, also, wherever the heir or devisee took an
estate under a will, containing burdensome legacies, or any disposition
of his own property in the manner above mentioned, he was at liberty
to accept or to renounce the inheritance. But (it has been said) he
had no other alternative. He could not accept the benefit, offered by
the will, and retain the property, of which it assumed to dispose, upon
the terms of compensation or indemnity to the disappointed claimant.
The effect, therefore, of an election to take in opposition to the will, was
a renunciation of all the benefits offered by it. The effect of an election
to take under the will was different according to the subject-matter.
If the property, of which the will assumed to deprive the devisee, was
pecuniary, he was compelled to perform the bequest to the extent of
the principal and interest which he had received ; if the property was
specific, then a peremptory obligation was imposed upon him to deliver
that very thing, although exceeding the amoimt of the benefit conferred
on him (k).
§ 1080. The earliest cases, in which the doctrine of election was
applied in English jurisprudence, seems to have been those arising out
of wills; although it has since been extended to eases arising under
other instruments (I). It has been suggested on more than one occasion
that Lord Redesdale stated that the doctrine of election constitutes a
rule of law, as well as of equity (m). But it does not require a critical
reading of the passage to appreciate that Lord Redesdale is adverting
to the equivocal nature of the expression election, which may mean a
right of choice which was the purely equitable doctrine, and the exer-
cise of that right which was known to the common law (n), and generally
referred to under the head of Estoppel, and also known in equity where
it worked as an estoppel but did not oust a right to a further benefit by
way of compensation.
§ 1081. Whatever may be the truth of the case as to the recognition
of the doctrine of election in courts of law, it is very certain that it is
principally enforced in courts of equity, where, indeed, the jurisdiction
to compel the party to make an election is admitted to be exclusive.
But, independent of this broad and general ground of jurisdiction, the
doctrine must be exclusively enforced in equity, in all cases of mere
trust estates ; or where there is the intervention of complicated cross

(t) Cod. Lib. 6, tit. 42, 1. 25.

(ft) Mr. Swanaton's note to Dillon v. Parker, 1 Swanst. 396.
(!) Mr. Swanston's note to Dillon v. Parker, 1 Swanst. 397, 400, 401; Bigland v.
Huddleston, 3 Bro. C. C. 28S, note, Belt's edition, and his note (3); Green v. Green,
9 Meriv. 86; s.c. 19 Ves. 665. It appears, from Mr. Swanaton's note to Dillon v.
Parker, 1 Swanst. 397; id. 443, 444, that traces of the interposition of courts of equity
can be found as early aa the reign of Queen Elizabeth.
(m) Birmingham v. Kirwan, 2 Sch. & L. 444, 450.
(n) Lythgoe v. Vernon, 5 H. & N. 180.
§ 1079 — 1084.] ELECTION AND SATISFACTION. 453

equities between different persons, claiming in different degrees, and

under different limitations and titles ; or where conveyances are neces-
sary to be decreed ; or where the recompense is not of a nature, capable
of being applied as a bar at law. Thus (to put a plain case), at the
common law not collateral recompense, made in satisfaction of dower,
or of a right of freehold, could be pleaded in bar of such right of
freehold or of dower (o). But, in equity, it would be clearly held
obligatory; and the party would be perpetually enjoined against
asserting the title at law, or put to an election, as the circumstances
of the case might require (p).
§ 1082. In the actual application of the doctrine of election, courts
of equity proceed upon principles, which are wholly inc-apable of
being enforced in the like manner by courts of law. Thus, for
example, suppose a case of election under a will, which disposes of
other property of a devisee ; and the devisee should elect to hold
his own property, and renounce the benefit of the devise under the
will, or (as the compendious phrase is) should elect against the will ;
in such a case, it is clear that the party disappointed of his bequest
or devise by such an election, would, at law, be wholly remediless.
The election would terminate all the interest of the parties respec-
tively in the subject-matter of the devise to them. The election to
hold his own estate would, of course, maintain the original title of the
devisee ; and his renunciation of the intended benefit in the estate
devised to him would leave the same to fall into the residuum of the
testator's estate, as property undisposed of.
§ 1083. But the subject is contemplated in a very different light
by courts of equity ; for, in the event of such an election to take
against the instrument, courts of equity will compel the devisee to
make up to the disappointed claimants the amount of their interest
therein ; for it is now definitely settled that the party claiming against
the will does not forfeit his interest thereunder, but is bound to provide
out of the property willed to him a pecuniary compensation for those
disappointed by his election (g).
§ 1084. The reasoning, by which this doctrine is sustained, has
been stated by Sir William Grant, in his usual clear and felicitous
manner. " If," said he, " the will is in other respects so framed as to
create a case of election, then hot only is the estate given to the heir
under an implied condition that he shall confirm the whole of the will ;
but, in contemplation of equity, the testator means, in case the
condition shall not be complied with, to give the disappointed devisees,

(o) Co. Litt. 36i); 1 Swanst. 426, 427, note.

(p) Lawrence v. Lawrence, 2 Vern. 366, and Mr. Baithby's note (1) ; 1 Swanst.
398, note.
(g) Bristow v. Warde, 2 Ves. Jun. 836; Howells v. Jenkins, 1 De Q. J. k S.
617. The curioua will find the conflicting decisions and dicta referred to in the notes
to Gretton v. Haward, 1 Swanst. 409; and to Dillon v. Parker, 1 Swanst. 359.
454 EQUITY JURISPRUDENCE. [CH. XXIX.

out of the estate over which he had a power, a benefit, correspondent

to that which they are deprived of by such non-compliance. So that
the devise is read, as if it were to the heir absolutely, if he confirm
the will; if not, then in trust for the disappointed devisees, as to
so much of the estate given to him as shall be equal in value to the
estate intended for them " (?■).
§ 1086. In regard to the point, when an election may be insisted
on, or not, everything must (it is obvious) depend upon the language
of the particular vnll ; and it is difficult, therefore, to lay down many
general rules on the subject. On the one hand it may be stated, that,
in order to raise a case of election there must be a clear intention,
expressed on the part of the testator, to give that which is not his
property (s). A mere recital in a will, that A. is entitled to certain pro-
perty, but not declaring the intention of the testator to give it to him,
would not be a sufficient demonstration of his intention to raise an
election (i). So, if a debtor, by his will, should recite the amount of
the debt, erroneously overstate the sum, and direct the payment of it,
and also should bequeath to the creditor a legacy; in such a case the
creditor would be put to his election, unless it appeared or was to be
inferred that the testator did not mean to pay the full amount of the
actual debt (u).
§ 1087. Upon the same ground, a case of election cannot ordinarily
arise where property is devised in general terms; as, a devise of "all
my real estate in A.," which estate is subject to the claims of a devisee
or legatee; for it is not apparent that he meant to dispose of any
property but what was strictly his own, subject to that charge (x).
§ 1087a. Upon similar grounds, where a testatrix gave a legacy
to B., in satisfaction of all claims upon the estate, he having, at the
time, a claim upon the testatrix, in respect to a legacy under the will
of C, it was held, that evidence of there being no other claim by B.
against the testatrix, was inadmissible; and that B. was not, therefore,
compellable to elect between the benefit under the wiU of the testatrix,
and that of C. (y). The obvious reason for the decision is, that the
language of the testatrix did not, by any means, clearly point to any
extinguishment of the claim under the will of C, and might well
be satisfied by supposing it used solely with reference to any claims
ex directo against her estate.
§ 1088. It was upon this principle that, prior to the Dower Act,
1833, a doweress could claim a testamentary provision in addition to

(r) Welby v. Welby, 2 Ves. & B. 190, 191.

(s) Att.-Gen. v. Earl of Lonsdale, 1 Sim. 105.
(t) Dashwood v. Peyton, 18 Ves. 41; Box v. Barrett, L. R. 3 Eq. 244; In ie
Bagot, Paton v. Ormerod, [1893] 3 Ch. 348.
(«) Whitfield V. Glemment, 1 Mer. 402; In re Wood, Ward v. Wood, 32 Gh. D.
517 ; In re Kelsey, Woolley v. KeUey, [1905] 2 Ch. 465.
(x) Stevens v. Stevens, 3 Drew, 697 ; 1 De G. & J. 62; Evans v. Evans, 2 N. E.
409. (y) Dixon v. Samson, 2 Y. & Coll. Ex. 566.
§ 1086 — 1093.] ELECTION AND SATISFACTION. 455

her dower, unless made manifestly with the intention of its being in
satisfaction (0).
§ 1089. It is upon a similar ground, that the doctrine of election
has been held not to be applicable to cases where the testator has
some present interest in the estate disposed of by him, although it is
not entirely his own. In such a case, unless there is an intention
clearly manifested in the will, or (as it is sometimes called) a demon-
stration plain, or necessary implication on his part, to dispose of the
whole estate, including the interest of third persons, he will be
presumed to intend to dispose of that which he might lawfully dispose
of, and no more (a).
§ 1090. It may be stated, as a general proposition, that apart from
express provision (b), there can be no case of election raised where
there are gifts contained in the same instrument (c). Thus, for
instance, if a man should, by his will, give a child, or other person, a
legacy or portion, in lieu or satisfaction of a particular thing expressed,
that would not exclude him from other benefits, although it might
happen to be contrary to the will ; for courts of equity will not construe
it, as meant in lieu of everything else, when the testator has said it is
in lieu of a particular thing (d).
§ 1091. Again, if a legatee should decline one benefit charged
with a portion, given him by a will, he would not be bound to decline
another benefit, unclogged with any burden, given him by the same
wiU (e). So, if a legatee cannot obtain a particular benefit, designed
for him by a will, except by contradicting some part of it, he will not
be precluded by such contradiction, from claiming other benefits under
it (/).
§ 1092. It may be added, that the doetrine of election is not
applied to the case of creditors. They may take the benefit of a devise
for payment of debts, and also enforce their legal claims upon other
funds disposed of by the will; for a creditor claims not as a mere
volunteer, but for a valuable consideration, and ex debito jvstitiae (g).
§ 1093. On the other hand, it is sufficient to raise a case of elec-
tion in equity, that the testator does dispose of property which is not
his own, without any inquiry whether he did so, knowing it not to be

(z) Bending v. Bending, 3 K. & J. 257.

(a) Stevens v. Stevens, 3 Drew. 697; 1 De G. & J. 62; Evans v. Evans, 2 N. E.
409.
(b) Talbot V. Earl of Radnor, 3 M. & K. 252.
(c) Woolaston v. King, L. E. 8 Eq. 165; Jn re Lord Chesham, Cavendish v.
Dacre, 31 Ch. D. 466. The subject is discussed at length in reference to the earlier
cases in the notes to Dillon v. Parker, 1 Swanst. 359 ; and to Gretton v. Haward,
1 Swanat. 409.
(d) East v. Cook, 2 Ves. Sen. 23; Dillon v. Parker, 1 Swanst. 404, 405, note. See
Wilkinson v. Dent, L. E. 6 Ch. 339.
(e) Andrews v. Trinity Hall, 9 Ves. 534; Warren v. Rudall, 1 Johns. & H. 1.
(J) See Dillon v. Parker, 405, note.
(3) Kidney v. Coussmaker, 12 Ves. 136; Cooper v. Cooper, L. E. 7 H. L. 63.
'3:56 EQDITY JURISPRUDENCE. [CH. XXIX.

his own, or whether he did so under the erroneous supposition that it

was his own. If the property was known not to be his own, it would
be a clear case of election. If it was supposed erroneously to be his
own, still, there is no certainty that his intention to devise it would
have been changed by the mere knowledge of the true state of the title ;
and the court will not speculate upon it (h). So, although a part of
the benefits proposed by a will should fail, the remainder may consti-
tute a case for an election (i).
§ 1094. Upon the ground of intention, also, where a testator has
an absolute power to dispose of the subject, and an intention is clearly
expressed in his wiU to exercise that power, it will be sufficient to
raise a case of election (k). The familiar illustration was that of a
devise by a testator, having an absolute power to dispose of an estate,
to his heir; in this case, before the Inheritance Act, 1833, the heir
would have taken by descent, and the devise would have been
inoperative, whether the heir admitted or disputed the wiU; yet,
if the testator in his will devised an estate belonging to the heir to a
third party the heir would have been put to his election between
the estate devised, which came to him by the bounty of the testator,
and his own claims so far as adverse to the will.
§ 1095. It was, at one time, supposed, that the doctrine of election
was not applicable to the case of persons claiming a remote interest
in property disposed of in a manner adverse to other rights; as, for
instance, to a remainderman, claiming after an estate tail in the
property disposed of (I). But this qualification is long since over-
ruled and it is now well established, that the doctrine of election is
equally applicable to all interests, whether they are immediate or
remote, vested or contingent, of value or of no value, and whether
these interests are in real or in personal estate (m).
§ 1097. Questions have also arisen in courts of equity, as to what
acts or circumstances should be deemed an election on the part of the
person bound to make it. Upon such a subject no general rule can be
laid down; but every case must be left to be decided upon its own
particular circumstances rather than upon any definite abstract
doctrine. Lapse of time alone is not sufficient to conclude a party, for
until he is called upon to elect he may enjoy all proprietary rights
over the respective properties (n) ; and before he can be called upon
to elect he is entitled to have the respective values of the properties

{h) Whistler v. Webster, 2 Ves. Jun. 370; Thellusson v. Woodford, 13 Ves. 220;
Welby V, Welby, 2 Ves. & B. 199 ; Mr. Swanston'a- note to Dillon v. Parker, 1 Swanst.
407; In re Brooksbank, Beauclerk v. James, 20 Ch. D. 160-
(i) Newman v. Newman, 1 Bro. C. C. 186 ; 1 Swanst.' 402, note.
(/c)Sugden on Po'wers, ch. 11, § 5, par. 6; Whistler y. Webster, 2 Ves. Jun.. 367.
{I) See Bor v. Bor, cited 3 Bro. Pari. C. 167, note; 1 Swanst. 407, note,
(m) Wilson v. Lord Townsend, 2 Ves. Jun. 697 ; Dillon v. Parker, 1 Swanst. 408,
note; Webb v. Earl of Shaftesbury, 7 Ves. 488.
(n) Spread v. Morgan, 11 H. L. C. 588 i-Seaton v. Seaton, 13 App. Cas. 61.
§ 1094 — 1097b.] ELECTION and satisfaction. 457

ascertained to enable him to form a correct opinion as to his rights (o).

To conclude a party by his extra-judicial acts it is necessary to show
that he knew all the facts, that the fact that he was called upon
to exercise his choice was present to his mind, and that these two
circumstances concurring he deliberately made his choice (p). It would
perhaps be sufficient if it could be shown affirmatively that the party
had made his election intentionally with an express waiver of his rights,
quolibet potest renunoiare jiiri pro se introducto (g). The acts of a
party entitled to a future interest are not to be regarded as so deliberate
as those of a person entitled to a present interest (r). When this
is ascertained affirmatively, it may be further necessary to consider,
whether the party was competent to make an election; whether he
can restore the other persons affected by his claim to the same
situation, as if the acts had not been performed, or the acquiescence
had not existed; and, whether there has been such a lapse of time as
ought to preclude the court from entering upon such inquiries, upon
its general doctrine of not entertaining suits upon stale demands, or
after long delays (s).
§ 1097a. The doctrine being based upon compensation, there can
be no election where there is no fund out of which the disappointed
party is to be compensated (t). Where the gift is tainted with illegality,
motives of policy prevent the operation of the doctrine of election, for
that might attain illegal ends by indirect means (w).
§ 1097f?. In the case of infants, the court will elect as a result
of enquiries in chambers or upon the evidence adduced in court (a;) ;
and the same practice used to be followed in the case of married
women prior to the passing of the Married Women's Property Act,
1882 (y). In the case of lunatics so found by inquisition, the com-
mittee of the estate acts under the sanction of the Lords Justices
sitting in Lunacy (z). In the case of other lunatics, the court itself
exercises the right to elect (a). In the case of a married woman
restrained from anticipation, the fetter may now be removed to enable
her to make an election (b).

(o) Whistler v. Webster, 2 Ves. Jun. 36T;, Douglas v. Douglas, L. E. 12 Eq. 617 ;
Wilson V. Thornbury, L. E. 10 Ch. 239. .
(p) Spread v. Morgan, 11 H. L. C. 588; Wilson v. Thornbury, L. E. 10 Ch. 239.
(9) See per Parke, B., Kelly v. Solari, 9 M. & W. 54, 58, 59.
(r) Padbury v. Clark, 2 Mac. & G. 298.
(s) Mr. Swanaton's note to Dillon v. Parker, 1 Swanat. 382, where the principal
authorities are collected. See Brice v. Brice, 2 Moll. 21.
(t) Woolridge v. Woolridge, Johns. 63; Churchill v. Churchill, L. E. 5 Eq. 44;
In re Vardon's Trusts, 31 Ch. D. 275; Haynes v. Foster, [1901] 1 Ch. 361.
(u) In re Oliver's Settlement, Evered v. Leigh, [1905] 1 Ch. 191.
(x) Lamb v. Lamb, 5 W. E. 772.
(y) Wilson v. Lord Townshend, 2 Vea. Jun. 693; Cooper v. Cooper, L. E. 7
H. L. 63.
- {z) In re Hewson, 23 L. 3. Ch.'256. (o) Wilder v. Piggott, 22 Ch. D. 263
(b) Conveyancing Act, 1881, a. 39. See as to the old law, Robinson v. Wheel-
right, 6 De G. M. & G. 635.
458 EQUITY JURISPRUDENCE. [CH. XXIX.

§ 1099. These remarks may suffice on the subject of election, a

doctrine of no inconsiderable nicety and difficulty in its natural
administration in equity; and we shall now proceed to the kindred
doctrine of Satisfaction. Satisfaction may be defined in equity to be
the donation of a thing, with the intention expressed or implied that
it is to be an extinguishment of some existing right or claim of the
donee. It usually arises in courts of equity as a matter of presumption,
where a man, being under an obligation to do an act (as to pay
money), does that by wiU, which is capable of being considered as a
performance or satisfaction of it, the thing performed being ejusdem
generis with that which he has engaged to perform. Under such
circumstances, and in the absence of all countervailing circumstances,
the ordinary presumption in courts of equity is, that the testator has
done the act in satisfaction of his obligation. Although the original
text has been allowed to stand unaltered, it is advisable to warn the
student that there is a branch of equity known as performance which
has nothing to do with satisfaction, and is discussed hereafter.
Another matter in respect of which the student may be led astray is
the language of the judgments which speak of the gift being adeemed.
In ademption properly so called the subject-matter is destroyed, in
satisfaction it exists, but one provision is held to be a substitute for
another.
§ 1100. It is certainly not a little difficult to vindicate the extent
to which this doctrine has been carried in courts of equity, as a
matter of presumption. What is given by a will ought, from the
cliaracter of the instrument, ordinarily to be deemed as given as a
mere bounty, unless a contrary intention is apparent on the face of
the instrument (c) ; or, as it has been well expressed, whatever is given
by a will is, prima facie, to be intended as a bounty and
benevolence (d). Under such circumstances, the natural course of
reasoning would be, that, in order to displace this presumption, a
clear expression of a contrary intention should be made out on the face
of the will (e). But the doctrine of courts of equity has proceeded
upon an opposite ground ; and the donation is held to be a satisfaction,
unless that conclusion is. repelled by the nature of the gift, the terms
of the will, or the attendant circumstances. For it has been said that
-a man shall be intended to be just, before he is kind ; and when two
duties happen to interfere at the same point of time, that which is
the most honest and best is to be preferred (/).
§ 1101. But although this may be fair reasoning, where there is a
deficiency of assets to satisfy both claims or duties, yet it is utterly •
(c) Clarke v. Sewell, 3 Atk. 96.
(d) Eastewoode v. Vincke, 2 P. "Will. 616.
(e) But see Weall v. Rice, 2 Eusa. & Myl. 267, where Sir John Leach intimates
that the rule is as it ought to be, but without stating any reason. See also Jones v.
Morgan, 2 Y. & Coll. 403, 412.
(/) Per Lord Cottenham, L.C., in Pym v. Lockyer, 5 Myl. & Cr. 29, 35
 § 1099 — 1103.] ELECTION AND SATISFACTION. 459

impossible to apply it to the great mass of eases in whieh the doctrine

of implied satisfaction has prevailed, and where there has been no
deficiency of assets to discharge all the claims. The truth is, that the
doctrine was introduced originally upon very unsatisfactory grounds;
and it now stands more upon authority than upon principle. And
a strong disposition has been manifested in modem times not to
enlarge the sphere of its operation; but to lay hold of any circum-
stances to establish exceptions to it (g). We shall presently see
that it is somewhat difierently applied in cases of creditors, properly
so called, from what it is in cases of portions and advancements to
children; for, in the latter cases, the presumption of satisfaction
is more readily entertained and acted upon more extensively than in
the former.
§ 1102. It is obvious, from this description of the doctrine of satis-
faction, that the presumption is not conclusive, but may be rebutted
by other circumstances attending the will. If the benefit given to
the donee, possessing the right or claim, is different in specie from that
to which he is entitled (h), the presumption of its being given in satis-
faction will not arise, unless there be an express declaration («'), or a
clear inference from other parts of the will, that such is the intention
of the testator. The presumption may be rebutted, not only by
intrinsic evidence, thus derived from the terms of the will itself, but it
may also be rebutted or confirmed by extrinsic evidence, as by declara-
tions of the testator touching the subject, or by written papers,
explaining or confirming the intention (fc).
§ 1103. Thus, for example, land given by a will is not deemed to
be given in satisfaction of money due to the devisee ; and money
given by a will is not deemed to be given ifi satisfaction of an interest
of the legatee in land ; unless there is something more in the will
explanatory of the intention of the testator. Accordingly, it was laid
down by Lord Hardwicke, in respect to the doctrine of satisfaction, that,
when a bequest is taken to be by way of satisfaction for money already
due to the donee, the thing given in satisfaction must be of the same
nature, and attended with the same certainty, as the thing in lieu of
which it is given; and that land is not to be taken in satisfaction for
money, or money for land (I) ; or land of one tenure for land of another
tenure (m).

(g) Clarke v. Sewell, 3 Atk. 97; Sowden v. Sowden, 1 Cox, 165; Lady Thynne
V. Earl of Glengall, 2 H. L. C. 131.
(h) Chaplin v. Chaplin, 3 P. Wms. 245 ; Lechmere v. Earl of Carlisle, 3 P. Wms.
211, s.c. nom. hechmere v. Lady Lechmere, Caa. t. Talb. 80; Alleyn v. Alleyn, 2 Ves.
Sen. 37.
(i) See Prime v. Stebbing, 2 Ves. Sen. 409.
(k) Kirk v. Eddowes, 3 Hare, 509; Powys v. Mansfield, 3 M. & C. 359; In re
Lacon, Lacon v. Lacon, [1891] 2 Ch. 482 ; In re Scott, Langton v. Scott, [1903]
1 Ch. 1. See In re Shields, Corbould-Ellis v. Dales, [1912] 1 Ch. 591.
(l) Bellasis v. Uthwatt, 1 Atk. 426, 427; Chaplin v. Chaplin, 3 P. Will. 247;
Alleyn v. Alleyn, 2 Ve8. Sen. 37. (to) Pinnell v. Hallett, Ambler, 106.
460 EQUITY JURISPKUDENCE. [CH. XXIX.

§ 1104. In regard also to cases, where tKe thing given is ejuadem

generis with that due to the donee, the presumption that it is given
in satisfaction, does not necessarily arise ; nor is it, as has been already
intimated, universally conclusive. To make the presumption of satis-
faction hold in any such cases, it is necessary that the thing substituted
should not be less beneficial, either in amount, or certainty, or value,
or time of enjoyment, or otherwise, than the thing due or contracted
for (n). The notion of satisfaction implies the doing or giving of some-
thing equivalent to the right extinguished. And it would be a very
unjustifiable course to arraign the justice of the testator, by presuming
that he meant to ask a favour, instead of performing a duty.
§ 1105. But where the thing substituted is ejusdem generis, is of
equal or of greater value, and much more beneficial to the donee, than
his own claim ; there the presumption of an intended satisfaction is
generally allowed to prevail. Whether the presumption of an intended
satisfaction, pro tanto, ought to be made in any case, where the things
are ejusdevi generis, but less than the claim of the donee, is a matter
upon which some diversity of opinion once existed ; but the current of
modem authority has established the presumption beyond dispute (o).
§ 1106. The learned author had in common with equally eminent
equity practitioners failed to observe strictly the distinction between
satisfaction properly so called and cases of the performance of agree-
ments and covenants, as the cases he cites show, nor is the confusion
always absent at the present day. The best exposition, subject to one
correction, of the distinction is contained in the judgment of Sir
Thomas Plumer (p). " An important distinction exists between satis-
faction and performance. Satisfaction supposed intention; it is some-
thing different from the subject of the contract, and substituted for it ;
and the question always arises, was the thing done intended as a sub-
stitute for the thing covenanted? a question entirely of intent: but
with reference to performance, the question is. Has that identical act
which the party contracted to do been done? " The. passage should be
qualified, as a substantial compliance with the terms of the contract is
sufficient (q). Some cases, which have actually passed into judgment,
may illustrate this distinction. Thus, where A. on his marriage, by
articles, covenant«d to leave his wife B., if she should survive him,
£620; and that his executor should pay it in three months after his
decease; and A. died intestate, and without issue, whereby his wife (who
survived him) became entitled to a moiety of his personal estate, which
was more than the £620; the question arose, whether the distributive

(n) Blandy v. Widmore, 1 P. Will. 324, Mr. Cox's note (1); Lechmere v. Earl of
Carlisle, 3 P. Will. 211; Lechmere v. Lady Lechmere, Gas. t. Talb. 80.
(o) Lady Thynne v. Earl of Glengall, 2 H. L. C. 131; Atkinson v. Littlewood,
L. R. 18 Eq. 593; In re Blundell, Blundell v. Blundell, [1906] 2 Ch. 222.
(p) Goldsmid v. Goldsmid, 1 Swanst. 211, 219.
(g) Ga-r-thshore v. Chalie, 10 Ves. 1; Bengough v. Walker, 15 Ves. 507.
§ 1104 1109.] ELECTION AND SATISFACTION. 461

share of B. should be deemed a satisfaction, or rather a due performance,

of the covenant; for the covenant was not broken, the wife being
administratrix. And it was held to be a due performance, although it
is called in the report a satisfaction (r). So, where A. covenanted, by
marriage articles, that his executors should, in three months after his
decease, pay his wife £3,000 ; and by his will he gave all his property
to his executors, in trust, to divide it in such ways, shares, and propor-
tions as to them should appear right. The trust failed, whereby his
estate became divisible according to the Statute of Distributions; and
his wife survived him. It was held, that her distributive share, being
greater than £3,000, was a satisfaction of the covenant (s).
§ 1107. The ground of each of these decisions seems to have been
that there was no breach of the covenant; and as the widow, by mere
operation of law, through the Statute of Distributions, received from
her husband a larger sum than he had covenanted to pay her, it ought
to be held a full performance of his covenant. These decisions do not
seem to stand on a very firm foundation, as illustrations of the doctrine
of satisfaction ; for (as has been well observed) considerable doubt
might have been entertained, whether of two claims so distinct, the
satisfaction of one ought to be considered as a satisfaction of the other.
But courts of equity would now hardly deem it fit to re-examine, and
upon principle to discuss the point thus settled by them, which has been
at rest for more than two centuries (t).
§ 1108. And here it may be remarked, that the doctrine of satisfac-
tion, and also of performance of covenants, arising from bequests in
wills, was well known in the civil law (u) ; and it was probably derived
from that source with some variations into our jurisprudence. Thus,
in the Digest, a case is put of a father, covenanting on his daughter's
marriage to give her a certain sum, as a dotal portion, and afterwards
leaving a legacy to her to the same amount ; and it was there held that
it amounted to a satisfaction of the portion (a;). And other cases are
there put of a like nature, where parol evidence was held admissible to
establish the intention of satisfaction (y).
§ 1109. Questions of satisfaction usually come before courts of
equity in three classes of cases : (1) in cases of portions secured by a
marriage settlement; (2) in cases of portions given by will and an
advancement to the donee afterwards in the life of the testator; (3) in
cases of legacies to creditors. It may be convenient as well as proper,
in our brief survey of this subject, to examine the doctrine separately
in respect to each of these classes; as the application of it is not, or

(r) Blandy v. Widmore, 1 P. Will. 324, and Mr. Cox'e note (1).
(s) Goldsmid v. Goldsmid, 1 Swanst. 211.
(t) See per Cozens-Hardy, M.B., In re Roby, Howlett v. Newington, [1908] 1 Ch.
71, 74.
(u) See post, § 1114.
(a:) Dig. Lib. 30, tit. 1, f. 84, § 6.
(i;) Dig. Lib. 30, tit. 1, f. 123.
 462 EQUITY JURISPRUDENCE. [CH. XXIX.

at least may not be, precisely the same throiighaut in all of them (n).
The first class may be illustrated by stating the case where a portion
or provision is secured to a child by marriage settlement, or otherwise ;
and the parent or person standing in loco parentis, afterwards by will
gives the same child a legacy, or share of residue, without expressly
directing it to be in satisfaction of such portion or provision. In such
a case, if the gift be of a sum as great as, or greater than, the portion or
provision; if it be ejusdem generis; if it be equally certain with the
latter, and subject to no contingency, not applicable to both ; and if it
be shown that it is not given for a different purpose ; then it will be
deemed a satisfaction in full or pro tanto (a).
§ 1110. We have already had occasion to intimate the doubts, which
may be justly entertained, as to the correctness of the reasoning, by
which courts of equity have been led to these results. As an original
question, at least where the assets are suf&cient to satisfy the portion,
as well as the legacy, the natural presumption would be, that the
testator intended the latter as a bounty, in addition to the duty already
contracted for; a bounty fit for a parent to bestow, and far more
reputable to his sense of moral and religious obligation, than a mere dry
performance of his positive contract, recognized by law, and resting on
a valuable consideration. But here as well as in many other cases, we
must be content to declare, Ita lex scripta est ;— It is established,
although it may not be entirely approved. Even a small variance in the
time of payment, or other trifling differences, where the value is sub-
stantially the same, will not vary the application of the rule, as the
present incUnation of courts of equity is against raising double por-
tions (b). Being based upon the equitable presumption against double
portions, it is displaced where one legatee is a stranger. (c).
§ 1111. The second class may be illustrated'by reference to the case,
where a parent or other person in loco parentis, bequeaths a legacy or
share of residue to a child or grandchild, and afterwards in his lifetime,
gives a portion, or makes a provision for the same child or grandchild,
without expressing it to be in lieu of the legacy. In such a case, the
portion so received, or the provision so made, on marriage or otherwise
(if it be certain, and not merely contingent, if no other distinct object
be pointed out, and if it be ejusdem generis), will be deemed a satisfac-
tion in whole or in part of the testamentary gift, or, as it is sometimes

(«) See HinchcUjfe v. Hinchdijfe, 3 Ves. 527, where Lord Alvanley intimated that
there might be a difference between cases of portions by settlement, and cases of lega-
cies by will, as to subsequent advancements.
(o) Lady Thynne v. Earl of Glengall, 2 H. L. C. 131; Atkinson v. Littlewood,
L. E. 18 Bq. 593; In re Tussaud, Tussaud v. Tussaud, 9 Ch. D. 363; Montague \.
Earl of Sandwich, 32 Ch. D. 525; In re Blundell, Blundell v. Blundell, [1906] 2 Ch
222.
(fc) Lady Thynne v. Earl of Glengall, 2 H. L. C. 131.
(c) In re Heather, Pumfrey v. Fryer, [1906] 2 Ch. 230.
§ 1110 — 1113.] ELECTION AND SATISFACTION. 463

expressed, it will be held an ademption of the legacy (d). The expres-

sion in loco parentis in this connection has been defined by Lord Cotten-
ham, L.C., in the following words : " No doubt the authorities leave, in
some obscurity, the question what is meant by the expression, univer-
sally adopted of one in loco parentis " (e). Lord Eldon, however, in
Ex parte Pye, has given to it a definition which 1 readily adopt, not only
because it proceeds from his high authority, but because it seems to
me to embrace aU that is necessary to work out and carry into effect
the object and meaning of the rule. Lord Eldon says (/) it is a person
" meaning to put himself in loco parentis, in the situation of the person
described as the lawful father of the child ' ' ; but this definition must,
1 conceive, be considered as applicable to those parental offices and
duties to which the subject in question has reference, namely, to the
office and duty of the parent to make provision for the child. The
offices and duties of a parent are infinitely various, some having no
connection whatever with making a provision for a child ; and it would
be most illogical, from the mere exercise of any of such offices and duties
by one not the father, to infer an intention in such person to assume also
the duty of providing for the child. ' ' A brother may place himself in
loco parentis to his brother (g). And the artificial relationship may
exist apart from ties of blood (h). The parental duty of providing for a
child exists apart from minority (i).
§ 1112. The ground of this doctrine seems to be, that every such
legacy is to be presumed as intended by the testator to be a portion
for the child or grandchild, whether called so or not; and that, after-
wards, if he advances the same sum upon the child's marriage, or on
any other occasion, he does it to accomplish his original object, as a
portion; and that, under such circumstances, it ought to be deemed
an intended satisfaction or ademption of the legacy, rather than an
intended double portion. And, where the sum advanced is less than
the legacy, still it may fairly be presumed, that the testator, having
acted merely in the discharge of a moral obligation, may, from a change
of his own views, or of his own circumstances, be satisfied that the
portion ought to be less (k).
§ 1113. Now, to say the least of it, this is extremely artificial
reasoning, and such as an ingenuous mind may find it difficult to
follow. Lord Eldon has so characterized it. After admitting it to be

(d) Pym v. Lockyer, 5 M. & Cr. 20; Agnew v. Pope, 1 De G. & J. 49; Monte-
fiore v. Guedalla, 1 De G. F. & J. 93; Leighton v. Leighton, L. E. 18 Eq. 459; In re
Pollock, Pollock V. Worrall, 28 Ch. D. 552.
(e) See Powys v. Mansfield, 3 M. & Cr. 359, 366, 367.
(/) 18 Ves. 140, 154.
(g) Monck v. Lord Monck, 1 Ball & B. 298.
(h) In re Pollock, Pollock v. Pollock, 28 Ch. D. 552.
(j) Booker v. Allen, 2 Euss. & M. 270; In re Lacon, Lacon v. Lacon, [1891]
2 Ch. 482.
(fc) Pym V. Lockyer, 5 M. & Cr. 29; Hopwood v. Hopwood, 7 H. L. C. 728.
464 EQUITY JURISPEUDBNCE. [CH. XXIX.

the unquestionable doctrine of the court, that, where a parent gives a

legacy to a child, not stating the purpose with reference to which he
gives it, the court understands him as giving it as a portion, he has
strongly remarked: " And, by a sort of artificial rule, in the appUca-
tion of which legitimate children have been very harshly treated, upon
an artificial notion that the father is paying a debt of nature, and a sort
of feeling, upon what is called a leaning against double portions, if the
father afterwards advances a portion on the marriage of that child,
though of less amount, it is a satisfaction of the whole or in part. And,
in some cases, it has gone a length consistent with the principle, but
showing the fallacy of much of the reasoning, that the portion, though
much less than the legacy, has been held a satisfaction in some instances,
upon this ground, that the father, owing what is called a debt of nature,
is the judge of that provision by which he means to satisfy it; and
although, at the time of making the will, he thought he could not dis-
charge that debt with less than £10,000, yet by a change of his circum-
stances and of his sentiments upon moral obligation, it may be satisfied
by the advance of a portion of £5,000 " (Z). In addition to this strong
language, it may be added, that courts of equity make out this sort of
doctrine, not upon any clear intention of the test-ator anywhere
expressed by him, but they first create the intention, and then make
the parent suggest all the morals and equities of the case, upon their
own artificial modes of reasoning, of wliich it is not too much to say,
that scarcely any testator could ever have dreamed {m).
§ 1114. It has been supposed, that the origin of this particular
doctrine is to be found in the civil law, and that it was transferred from
hence into the equity jurisprudence of England (n). But Lord Thurlow
has expressed a doubt, whether the doctrine of the civil law proceeds so
far, and whether it is there taken up on the idea of a debt, or is not
rather considered as a presumption, repellable by evidence (o). The
language attributed to his lordship on this occasion seems not exactly
to express his true meaning ; for, in the equity jurisprudence of England
also, the presumption may be rebutted by evidence, as the same judge
pointed out in a subsequent case (p). His meaning probably was, that
the matter was a mere matter of presumption, arising from the whole
circumstances of the will ; and that there was no such rule in the civil
law as that, in English jurisprudence, namely, that, prima facie, such
a portion, subsequently given, was an ademption of the legacy. No one
can doubt that, in many cases, such a presumption may arise from the
circumstances. As, for example, in a case put in the civil law. A

(I) Ex parte Pye and Ex parte Duhost, 18 Vea. 151.

(m) Grave v. Earl of Salisbury, 1 Bro. C. C. 425.
(n) See ante, § 1108.
(o) Grave v. Earl of Salisbury, 1 Bro. C. C. 425, 427.
(p) Debeze v. Mann, 1 Cox, 346, s.c. 2 Bro. C. C. 165, 519. See also In re
Scott, Langton v. Scott, [1908] 1 Ch. 1.
§ 1114 1116.] ELECTION AND SATISFACTION. 465

father by his will devised certain lands to his daughter, and afterwards
gave the same lands to her as a marriage portion. It was held to be an
ademption of the devise. " Filia legatorum non habet actionem, si ea,
quae ei in testamento reliquit, vivus pater postea in dotem dederit " (g).
So, it was held in the same law, to be a revocation of the legacy of a
debt, if it was afterwards collected of the debtor by the testator in his
lifetime. The like rule was applied, where, after the devise of specific
property, the testator alienated in his lifetime. " Testator supervivens,
si earn rem, quam reliquerat, vendiderit, extinguitur fideicommissum. "
These cases are so obvious, as necessary and intentional ademption of
the legacies, that they require no artificial rules of interpretation to
expound the intent. And yet the civil law was so far fro-m favouring
ademptions, that, even in these cases, it admitted proof that the tes-
tator did not intend to adeem the legacy ; the rule being, " Si rem suam
legaverit testator, posteaque earn alienaverit; si non adimendi animo
vendidit, nihilominus deberi " (r). And again: " Si rem suam testator
legaverit eamque necessitate urgente alienaverit, fideicommissum peti
posse, nisi probetur, adimere ei testatorem voluisse. Probationem autem
mutatffi voluntatis ab hseredibus exigendam " (g). These cases are
sufficient to show how widely variant the doctrine on this subject is in
the civil law from that which now prevails in equity.
§ 1115. There aj"e, however, in equity jurisprudence, certain estab-
lished exceptions to this doctrine of constructive satisfaction, or ademp-
tion of legacies, which deserve particular notice. In the first place, at
one time it was thought not to apply to the case of a devisee of a mere
residue ; for it was said, that a residue is always changing. It might
amount to something or be nothing ; and therefore no fair presumption
could arise of its being an intended satisfaction or ademption. This
opinion was shaken in Lady Thynne v. Earl of Glengall (i), in which it
was held, after a full review of all the authorities, that the bequest of
a residue will, according to its amount, be a satisfaction of a portion,
either in full, or pro tanto, and the earlier cases to the contrary were
not approved. But in Montefiore v. GuedaUa (u) the question was
again considered and the decisions reviewed, and the rule declared to
be one of intention, whether, and how far, a residue shall be taken as
adeemed by subsequent portions given, or settled, and that it should
not depend upon the mere uncertainty of the residue, or upon slight
differences between the trusts and the residue, and the trusts of the
settlement. The same rule is applied to all questions of ademption.
§ 1116. Another exception to this doctrine of constructive ademp-
tion of legacies may be gathered from the qualification already annexed

(g) Cod. Lib. 6, tit. 37, 1. U.

(r) Inst. Lib. 2, tit. 20, § 12; ibid. § § 10, 11.
• is) Dig. Lib. 32, tit. 3, f. 11, § 12; Pothier, Pand. Lib. 34, tit. i, n. 8.
(t) 2 H. L. C. 181.
(u) 1 De G. F. & J. 93.
E.J. 30
466 EQUITY JURISPKUDENCB. [CH. XXIX.

to the enunciation of it in the preceding pages. It is there Hmited to

the case of a parent, or of a person standing in loco parentis. In relation
to parents, it is applicable only to legitimate children; and in relation
to persons standing in loco parentis, it is also applicable generally to
legitimate children only, unless the party has voluntarily placed himself
in loco parentis to a legatee, not standing either naturally or judicially
in that predicament. All other persons are, in contemplation of la\\-,
treated as strangers to the testator (x).
§ 1117. But this doctrine of the constructive ademption of legacies
has never been applied to legacies to mere strangers, unless under very
peculiar circumstances, such as where the legacy is given for a par-
ticular purpose, and a gift is afterwards, in the lifetime of the partj',
made exactly for the same purpose, and for none other (y). Except
in cases standing upon such peculiar circumstances, and which, there-
fore, seem to present a very cogent presumption of an intentional
ademption, the rule prevails, that a legacy to a stranger, legitimate or
illegitimate, is not adeemed by a subsequent portion or advancement in
the lifetime of the testator, without some expression of such intent
manifested in the instrument, or by some writing accompanying the
portion or advancement and charging the conscience of the bene-
ficiary (2).
§ 1118. The reason commonly assigned for this doctrine is, that, as
there is no such obligation upon such a testator to provide for the legatee,
as subsists between a parent and child, no inference can arise, that the
testator intended, by the subsequent gift or advancement, to perform
any such duty in prensenti, instead of performing it at his death ; and
there is no reason why a person may not be entitled to as many gifts
as another may choose to bestow upon him. That this reasoning is
extremely unsatisfactory, as well as artificial, may be unhesitatingly
pronounced. It leads to this extraordinary conclusion, that a testator,
in intendment of law, means to be more bountiful to- strangers than to
his own children; that, by a legacy to his children, he means not to
gratify his feelings or affections, but merely to perform his duty ; but
that, by a legacy to strangers, he means to gratify his feelings, affections,
or caprices, without the slightest reference to his duty. What makes
the doctrine still more difficult to be supported upon any general reason-
ing is, that grandchildren, brothers, sisters, uncles, aunts, nephews, and
nieces, as well as natural children, are deemed strangers to the testator
in the sense of the rule (unless he has placed himself towards them in
loco parentis); and that they are in a better condition, not only than
legitimate children, but even than they would be if the testator formally

(x) Suisse V. Lord Lowther, 2 Hare, 424; affirmed 12 L. J. Ch. 315. See ante,
§ nil.
(j/) Suisse V. Lord Lowther, 2 Hare, 424, affirmed 12 L. J. Ch. 315; Pankhurst v.
Howell, L. E. 6 Ch. 136 ; In re Pollock, Pollock v. Worrall, 28 Ch. D. 552.
(z) In re Shields, Corbould Ellis v. Dales, [1912] 1 Ch. 591.
§ lllV 1121.] ELECTION AND SATISFACTION. 467

acted in loco parentis. Considerations and consequences like these may

well induce us to pause upon the original propriety of the doctrine.
It is, however, so generally established, that it cannot be shaken, but
by overthrowing a mass of authority, which no judge would feel
himself at liberty to disregard (a).
§ 1119. The third and last class of cases to which we have alluded
as connected with the doctrine of satisfaction, is, where a legacy is
given to a creditor. And here, the general rule is, that where the
legacy is equal to, or greater in amount than an existing debt, where
it is of the same nature ; where it is certain, and not contingent ; and
where no particular motive is assigned for the gift; in all such cases
the legacy is deemed a satisfaction of the debt (b). The ground of this
doctrine is, that a testator shall be presumed to be just before he is
kind or generous. And, therefore, although a legacy is generally to
be taken as a gift, yet, when it is to a creditor, it ought to be deemed
to be an act of justice, and not of bounty in the absence of all counter-
vailing circumstances, a-ocording to the maxim of the civil law,
" Debitor non praesumitur donare."
§ 1120. Some of the observations which have been already made,
apply, although with diminished force, to this class of cases. For,
where a man has assets, sufficient both for justice and generosity, and
where the language of the instrument imports a donation, and not a
payment, it seems difficult to say why the ordinary meaning of the
words should not prevail. Where the sum is precisely the same with
the debt, it may be admitted, that there arises some presumption,
and, under many circumstances, it may be a cogent presumption of
an intention to pay the debt. But, where the legacy is greater than
the debtj the same force of presumption certainly does not exist; and,
if it is less than the debt, then (as we shall presently see) the
presumption is admitted to be gone.
§ 1121. It is highly probable that this doctrine was derived from
the civil law, where it is clearly laid down, but with limitations and
qualifications in some respects different from those which are
recognized in equity jurisprudence (c). Where the debt was absolutely
due, and for the same precise sum, a legacy to the same amount was

(a) Lindley, L.J., In re Lacon, Lacon v. Lacon, [1891] 2 Ch. 482, 490; In re
Boby, Hewlett v. Newingion, [1908] 1 Ch. 71. Questions of another nature often
arise, as to what constitutes an advancement of a child, within the meaning of that
term in section 5 of Statute of Distributions (22 & 23 Chas. II. ch. 10). The principal
cases on the subject will be found collected in 1 Mad. Pr. Ch. 507, 616. See Taylor
V. Taylor, L. E. 20 Eq. 155, where the subject of advancement was elaborately dis-
cussed by Sir G. Jessel, M.E., who held that an " advancement by portion " within
the meaning of the, statute is a sum given by a parent to establish a child in life or
to make a provision for a child. See also Edwards v. Freeman, 2 P. Will 436; Boyd
v. Boyd, L. R. 4 Eq. 305; Leighton v. Leighton, L. E. 18 Bq. 458; and Hatfield v.
Minet, 8 Ch. D. 136; In re Blockley, Blockley v. Blockley, 29 Ch. D. 258.
(b) Talbott V. Duke of Shrewsbury, Prec. Ch. 394.
(c) Pothiei, Pand. Lib. 34, tit. 3, nn. 80 to 84.
468 EQUITY JURISPRUDENCE. [CH. XXIX.

deemed a satisiaction of it. But, if there was a difference even in

the time of payment, between the debt and the legacy, the latter was
not a satisfaction. " Sin autem, neque modo, neque tempore, neque
conditione, neque loco, debitum, differatur, inutile est legatum " (d).
And so, if the legacy was more than the debt, it seems that it was
not a satisfaction. " Quotdens debitor creditori sue legaret, ita inutile
esse legatum, si nihil interesset creditoris ex testamento potius agere,
quam ex pristina obligatdone " [e).
§ 1122. But, although the rule, as to a. legacy being an ademption
of a debt, is now well established in equity, yet it is deemed to have
so little of a solid foundation, either in general reasoning, or as a just
interpretation of the intention of the testator, that slight circum-
stances have been laid hold of to escape from it, and to create
exceptions to it (/). The rule, therefore, is not allowed to prevail,
where the legacy is of less amount than the debt, even as a satisfaction
pro tanto ; nor where there is a difference in the times of payment of
the debt and of the legacy ; nor where they are of a different nature as
to the subject-matter or as to the interest therein; nor where a
particular motive is assigned for the gift; nor where the debt is
contracted subsequently to the will ; nor where the legacy is contingent
or uncertain ; nor where there is an express direction in the will for
the payment of debts {g) ; nor where the bequest is of a residue (h) ;
nor where the debt is a negotiable security (i) ; nor where the legacy is
given to the creditor's wife (k) ; nor where the debt is upon an open
and running accoxmt (Z). And as to a debt, strictly so called, there is
no difference, whether it is a debt due to a stranger or to a child (m).
§ 1123. On the other hand, where a creditor leaves a legacy to
his debtor, and either takes no notice of the debt, or leaves his
intention doubtful, courts of equity will not deem the legacy as either
necessarily prima facie evidence of an intention to release or extinguish
the debt; but they will require some evidence, either on the face of the
will, or aliunde to establish such an intention (n).

(d) Dig. Lib. 30 (Lib. prim, de Leg.), tit. 1, f. 29; Inst. Lib. 2, tit. 20, § 14.
(e) Pothier, Pand. Lib. 34, tit. 3, n. 33.
(/) See In re Horlock, Calham v. Smith, [1895] 1 Ch. 516.
ig) Talbott v. Duke of Shrewsbury, Prec. Ch. 894 ; Ghauncey's Case, 1 P. Wms.
408; Rowe v. Rowe, 2 De G. & Sm. 294; In re Huish, Bradshaw v. Huish, 48 Ch. D.
260; In re Horlock, Calham v. Smith, [1895] 1 Ch. 516.
(h) Barrett v. Beckford, 1 Vea. Sen. 519; Devese v. Pontet, 1 Cox, 188; s.c.
Prec. Ch. by Finch, 240, note.
(t) Carr v. Eastabrooke, 8 Ves. 564.
(k) Hall V. Hill, 1 Dru. & War. 94.
(I) Rawlins v. Powell, 1 P. Will. 299.
(m) Tolson v. Collins, 4 Ves. 483. The principal cases on this subject will be
found collected in 2 Eoper on Legacies, by White, ch. 17, pp. 28 to 67; 2 Fonbl.
Bq. B. 4, Pt. 1, ch. 1, § 5, note (1!); Goodfellow v. Burchett, 2 Vern. 298, Mr.
Eaithby's note; Chancey's Case, 1 P. Will. 410, Mr. Cox's note; 2 Mad. Pr. Ch. 33
to 49.
(n) Courtenay v. Williams, 3 Hare, 589; affirmed 15 L. J. Ch. 204.
§ 1122 — 1123ft.] ELECTION AND SATISFACTION. 469

§ 1123a-. Closely allied to the subject of election and satisfaction

in cases of legacies, is the doctrine as to what is called the cumulation
of legacies, or when and under what circumstances legacies given by
different instruments or wills are to be deemed cumulative or not.
The general rule here is, that where legacies are given by different
instruments, whether will and codicil or successive codicils, the
presumptdon is, prima facie, that two legacies are intended, and that
the last is not a mere repetition of the former ; nor will the fact that
each legacy is for the same amount in money operate to repel the
presumption that they are cumulative, there must be other circum-
stances to repel it (o). As, for example, if the testator connects a
motive with both, and that motive is the same, the double coincidence
will induce the courts to believe that repetition and not accumu-
lation is intended. A fortiori, where each instrument gives precisely
the same thing, as a horse, or a coach, or a particular diamond ring :
or the language shows by express declaration or natural implication,
that the testator intends a mere repetition, the presumption of
accumulation is completely repelled (p).

(o) Hooley v. Hatton, 1 Bro. C. C. 390 n. ; Russell v. Dickson, i H. L. C. 293;

Wilson V. O'Leary, L. E. 7 Ch. 448; Hubbard v. Alexander, 3 Ch. D. 738.
(p) Hooley v. Hatton, 1 Bro. C. C. 390 n. ; Heming v. Clutterbuck, 1 Bligh.
N. S. 479; Suisse v. Lord Lowther, 2 Hare, 424, 432; affirmed 12 L. J. Ch. 315.
470 EQUITY JURISPRUDENCE. [CH. XXX.

CHAPTER XXX.
APPLICATION OF PURCHASE-MONEY.

§ 1124. In this chapter the learned author discussed a question

formerly of great importance, how far a receipt of the trustee exercising
a power of sale operated as a complete discharge or whether the
purchaser was bound to look to the due Application op Purchase-
money. This subject, therefore, although it may equally apply to
other cases of trusts, created inter vivos, may be conveniently treated
in this place. The doctrine was hotly assailed by many eminent
persons, and its inconveniences pointed out, the most glaring arising
in cases of infancy, where the parties in interest are incapable of giving
a valid assent to the receipt and application of the purchase-money
by the trustee (a). The principle was intelligible enough and also
soimd equity. The purchaser acquired the land with notice that it was
burdened with a charge, for there was no personal remedy against
him, and this land belonged to the beneficiary claiming under the
will or settlement burdened only with the charge (b). The question
that had to be determined was whether there existed an overriding
power of disposition displacing the title of the beneficiary.
§ 1125. Tlie doctrine was not universally true, that a purchaser,
having notice of a trust, was bound to see that the trust was in all
cases properly executed by the trustee. As applied to the cases of
sales, authorized to be made by trustees for particular purposes (which
is the subject of our present enquiries), the doctrine was not absolute,
that the purchaser was bound to see that the money raised by the sale
was applied to the very purposes indicated by the trust. On the
contrary, there were many qualificatdone and limitations of the doctrine
in its actual application to sales both of personal and of real estate.
§ 1126. The best method of ascertaining the true nature and
extent of these qualifioations and limitations will be by a separate
consideration of them, as applied to each kind of estate, since the
rules which govern them are, in some respects, dissimilar, owing to
the greater power which a testator has over his real, than he has

(a) Mr. Butler's note to Co. Litt. 290b, note (1), § 12 ; in Balfour v. Welland,
16 Ves. 156, Sir William Grant expressed his dissatisfaction with the doctrine. See
also Sugden, Vendors and Purchasers, 9th ed., vol. 2, ch. 11, pp. 30 to 56.
(fc) Davis (or Davies) v. Spurling, 1 Euss. & M. 64 ; s.c. Taml. 199.
§ 1124 — 1128.] APPLICATION OF PURCHASE-MONEY. 471

over his personal, estate. In regard to real estate, it is well known

that, at the common law, it was not bound, even for the specialty
debts of the testator, except in the hands of his heir if specially bound ;
although, by 3 W. & M. ch. 14, it was made liable for such debts in
the hands of his devisee. But, as to simple contract debts, until 1833,
the real estate of deceased persons was not liable generally for the
payment of any such debts. The statute of 3 & 4 William IV. o. 104,
had made all such real estate liable, as assets in equity, for the
payment of all debts, whether due on simple contract or by specialty.
But, as to personal estat«, it was at the commion law, and still
remains, directly liable to the payment of all debts; or as it is
commonly expressed, it goes to the executors, as assets for creditors,
to be applied in a due course of administration. It is, therefore, in a
strict sense, a trust fund for the payment of debts generally (c). We
shall presently see, how this consideration bears upon the topic now
under discussion.
§ 1127. The general principle of courts of equity in regard to the
duty of purchasers (not especially exempted by any provision of the
author of the trust), in cases of sales of property, or charges on
property under trusts (for there is no difference, in point of law,
between sales and charges), to see to the application of the purchase-
money, was this: that, wherever the trust or charge was of a defined
and limited nature, the purchaser must himself have seen that the
purchase-money was applied to the proper discharge of the trust; but,
wherever the trust was of a general and unlimited nature, he need
not have seen to it. Thus, for example, if a trust were created to
sell for the payment of a portion, or of a mortgage, there, the
purchaser must have seen to the application of the purchase-money
to that specified object. If, on the other hand, a trust were created,
a devise made, or a charge established, by a party for the payment
of debts generally, the purchaser was exempted from any such
obligation (d).
§ 1128. Let us, in the first place, consider the doctrine, in its
application to personal estate, including therein leasehold estates,
which are, equally with personal chattels, subject to the payment
of debts. As the personal estate was liable for the. payment of the
debts of the testator generally, the purchaser of the whole, or any
part of it, never was, upon the principle already stated, bound to see
that the purchase-money was applied by the executor to the discharge
of the debts (e); for the trust was general and unlimited, it being for
the payment of all debts. It is true, that there was an apparent
exception to the rule; and that is, that he must have been a bond
fide purchaser, without notice, that , there were no debts; and he
(c) Elliot V. Merriman, Barnard, ch. 78.
(d) Elliot v. Menyman, Barnard, ch. 78; Braithwaite v. Britain, 1 Keen, 206.
(e) Elliot V. Merryman, Barnard, ch. 78.
472 EQUITY JURISPRUDENCE. [CH. XXX.

must not have colluded with the executor in any wilful misapplication
of the assets (/). But this proceeded upon the ground of fraud, which
is of itself sufficient to vacate any transaction whatsoever.
§ 1129. It made no difference in the application of this general
doctrine as to the personal estate, that the testator had directed his
real estate to be sold for the payment of his debts, whether he specified
the debts or not ; or that he had made a specific bequest of a part of his
personal estate for a particular purpose, or to a particular person,
although such specific bequest were known to the purchaser, if he had
no reason to suspect any fraudulent purpose (g). The ground of this
doctrine was, that, otherwise, it would have been indispensable for a
person, before he could become the purchaser of any personal estate,
specifically bequeathed, to come into a court of equity to have an
account taken of the assets of the testator, and of the debts due from
him, and in order to ascertain whether it was necessary for the
executor to sell; which would be a most serious inconvenience, and
greatly retard the due settlement of estates (k).
§ 1130. In the next place, in regard to real estate. Where there
was a devise of real estate for the payment of debts generally, or
the testator charged his debts generally upon his real estate, and the
money was raised by the trustee by sale or mortgage, the same rule
applied as in cases of personalty, that the purchaser or mortgagee
was not bound to look to the application of the purchase-money;
and for the same reason, namely, the unlimited and general nature of
the trust, and the difficulty of seeing to the application of the purchase
or mortgage money, without an account of all the debts and assets
under the superintendence of courts of equity (i).
§ 1131. In the case of sales of real estate for the payment of debts
generally, the purchaser was not only not bound to look to the
application of the purchase-money ; but, if more of the estate were
sold than was sufficient for the purposes of the trust, it would not be
to his prejudice. Nor would it make any difierence, in cases of this
sort, whether the testator charged both his personal and real estate
with payment of his debts, or the real only; for, ordinarily the
personal estate, unless specially exempted, is the primary fund ; and,
if exempted, still the charge on the real estate was general and
unlimited. Nor would it make any difference, whether the devise
directed the sale of the real estate for the payment of debts, or only
charges the real estate therewith. Nor would it make any difference,
that the trust was only to sell, or was a charge for so much as the
personal estate is deficient to pay the debts. Nor would it make any

(/) Hill V. Simpson, 7 Ves. 152; Watkins v. Cheek, 2 Sim. & St. 199.
ig) Hill V. Simpson, 7 Ves. 152; Co. Litt. 290 b, Butler's note (1), § 12.
(h) Ewer v. Corbet, 2 P. Will. 148; Langley v. Earl of Oxford, Ambler, 17.
(») Elliot V. Merryman, Barnard, ch. 78; Robinson v. Lowater, 5 De G. M. & G.
272.
§ 1129 1135.] APPLICATION OF PUHCHASE-MONEY. 473

difference, that a specific part of the real estate was devised for a
particular p'urpose or trust, if the whole real estate were charged with
the payment of debts generally by the will (fc). If, however, the
trustees had only a power to sell and not an estate devised to them,
then, unless the personal estate were deficient, the power to sell did
not arise (I).
§ 1132. But where in cases of real estate, the trust was for the
payment of legacies, or of specified or scheduled debts, the rule was
different; for they were ascertained; and the purchaser must have
seen, and, in the view of the court of equity, he was bound to have
seen, that the money was actually applied in discharge of them (m).
On the other hand, cases occurred, where the devise was for the
payment of debts generally, and also for the payment of legacies, and
then the trust became a mixed one. In such a case, the purchaser
was not bound to see to the application of the purchase-money ;
because to have held him liable to see the legacies paid, would, in fact,
have involved him in the necessity of taking an account of all the
debts and assets (n).
§ 1133. Where the time directed by the devise for a sale of the real
estate had arrived, and the persons entitled to the money were infants,
or were unborn; there, the purchaser was not bound to see to the
application of the purchase-money, because he might otherwise have
been impKoated by a trust of long duration (o). But, if an estate were
charged with a sum of money, payable to an infant at his majority ;
there, the purchaser was bound to see the money duly paid on his
arrival at age ; for the estate would remain chargeable with it in his
hands (p).
§ 1134. Where the trusts were defined, and yet the money was
not merely to be paid over to third persons, but was to be applied by
the trustees to certain purposes, which required, on their part, time,
deliberation, and discretion, it seems that the purchaser was not bound
to see to the due application of the purchase-money; as, where it
was to pay all debts which should be ascertained within eighteen
months after the sale ; or where the trustees were to lay out the
money in the funds, or in the purchase of other lands upon certain
trusts (g).
§ 1135. These are some of the most important and nice distinctions
which had been adopted by courts of equity upon this intricate topic ;

(/c) Co. Litt. 290 b, Butler's note (1), § 12; Shaw v. Borrer, 1 Keen, 559; Ball
V. Harris, i M. & Cr. 164; Corser v. Cartwright, L. E. 7 H. L. 731.
(I) Shaw V. Borrer, 1 Keen, 559.
(m) Elliot V. Merryman, Barnard, eh. 78; Eland v. Eland, 4 M. & Cr. 420; John-
son V. Rennet, 3 Myl. & K. 624.
(n) Forbes v. Peacock, 1 Ph. 717; Corser v. Cartwright, L. E. 7 H. L. 731.
(o) Breedon v. Breedon, 1 Euss. & M. 413; Gillibrand v. Goold, 5 Sim. 149.
(p) Dickinson v. Dickinson, 3 Bro. C. C. 19.
(g) Balfour v. Wetland, 16 Ves. 151; Locke v. Lomas, 5 De G. & Sm. 326.
474 EQUITY JURISPRUDENCE. [CH. XXX.

and they lead strongly to the conclusion, to which not only eminent
jurists, but also eminent judges, have arrived, that it would have been
far better to have held in all cases, that the party, having the right
to sell, had also the right to receive the purchase-money without any
further responsibility on the part of the purchaser, as to its application.
§ 1135a. The view taken in the text that the purchaser from a
trustee ought not to be saddled with the responsibility of seeing that
the purchase-money was properly applied, was adopted by the
Legislature in 1860 by an enactment now embodied in section 20 of
the Trustee Act, 1893 (56 & 57 Vict. c. 53), which provides that " the
receipt in writing of any trustee for any money payable to him under
any trust or power shall effectually exonerate the person paying the
same from seeing to the application, or from being answerable for any
loss or misapplication thereof." And by section 40 of the Settled Land
Act, 1882, it is provided that the receipt in writing of the trustees of
a settlement, or where one trustee is empowered to act of one trustee
or of the personal representative or representatives of the last surviving
or continuing trustee for any money or securities paid or transferred to
the trustees, trustee, representatives, or representative as the case may
be, effectually discharges the payer or transferor therefrom and from
being bound to the application or being answerable for any loss or
misapplication thereof, and, in case of a mortgagee or other person
advancing money, from being concerned to see that any money
advanced by him is wanted for any purpose of the Act or that no
more than is wanted is raised.
§ 1135a— 1138.] CHARITIES. 475

CHAPTER XXXI.
CHARITIES.

§ 1136. It is in oases of wills also that we most usually find provisions

for public Charities ; and to the consideration of this subject,
constituting, as it does, a large and peculiar source of equity jurisdiction
under the head of trusts, we shall now proceed.
§ 1137. It is highly probable that the rudiments of the law of
charities were derived from the Roman or civil law (a). One of the
earliest fruits, of the Emperor Constantine's real or pretended zeal
for Christianity was a permission to his subjects to bequeath their
property to the Church (6). This permission was soon abused to so
great a degree as to induce the Emperor Valentinian to enact a
mortmain law, by which it was restrained (c). But this restraint was
gradua,lly relaxed; and in the time of Justinian it became a fixed
maxim of Eoman jurisprudence, that legacies to pious uses (which
included all legacies destined for works of piety or charity, whether
they related to spiritual or to temporal concerns) were entitled to
peculiar favour, and to be deemed privileged testaments (d).
§ 1188. Thus, for example, a legacy of ornaments for a church, a
legacy for the maintenance of a clergyman to instruct poor children,
and a legacy for their sustenance, were esteemed legacies to pious
and charitable uses (e). In all these cases the bequests had their

(a) In Lord Chief Justice Wilmot's notes of his opinions (pp. 53, 54), it_is said :
" Donations for public purposes were sustained in the civil law, and applied when
illegal cy-pres to other purposes, one hundred years before Christianity was the
religion of the Empire." And for this is cited Dig. Lib. 33, tit. 2, De Usu et Usufruc.
Legatorum, §§ 16, 17.
(b) Cod. Theodos. Lib. 16, tit. 2, ,1. 4.
(c) Ibid. 1. 20. To those who may not be familiar with the term " mortmain,"
it may be proper to state that the statutes in England, which prohibit corporations
from taking lands by devise, even for charities, except in certain special cases, are
generally called the Statutes of Mortmain, mortuA manu, for the reason of which
appellation Sir Edward Coke offers many conjectures. But (says Mr. Justice Black-
stone, 1 Black. Comm. 479), there is one which seems more probable than any that
he has given us, namely, that these purchases being usually made by ecclesiastical
bodies, the members of which (being professed) were reckoned dead persons in law ;
land,
mortudtherefore, holden
manu. The wordbyis them might, with
now commonly great' propriety;
employed to designatebe allsaid to be heldlaws
prohibitory in
which limit, restrain, or annul gifts, grants, or devises of lands and othfer corporeal
hereditaments to charitable uses. See, on this subject, 2 Black. Comm. 268 to 274.
(d) 2 Domat, Civil Law, B. 4, tit. 2, § 6.
(e) 2 Domat, B. 4, tit. 2, § 6.
476 EQUITY JURISPRUDENCE. [CH. XXXI.

charitable motives, independent of the consideration of the merit of

the particular legatees. But other legacies, although not of a pious
or charitable nature, but yet for objects of a pubhc nature, or for a
general benefit, were also deemed entitled to the like encouragement
and protection. Thus, for example, a legacy destined for some public
ornament, or for some public- use, such as to build a gate for a city
or for the embellishment and improvement of a public street or
square, or as a prize to persons excelling in an art or science, vi^as
deemed a privileged legacy, and of complete validity (/). " Si quid
relictum sit civitatibus, omne valet, sive in distributionem relin-
quatur, sive in opus, sive in alimenta, vel in eruditionem puerorum,
sive quid aliud " (g). Again: " Civitatibus legari potest etiam, quod
ad honorem omatumque civitatis pertinet. Ad omatum ; puta, quod
instruendum forum, theatrum, stadium, legatum fuerit. Ad honorem ;
puta, quod ad munus edendum, venationemve, ludos scenicos, ludos
Circenses, rehctum fuerit; aut, quod ad divisionem singulorum civium
vel epulam, relictum fuerit. Hoc amplius, quod in alimenta infirmse
aetatis (puta senioribus, vel pueris, puellisque), relictum fuerit; ad
honorem civitatis pertinere respondetur " (h).
§ 1139. The construction of testaments of this nature was most
liberal ; and the legacies were never permitted to be lost, either by
the uncertainty or failure of the persons or objects for which they
were destined. Hence, if a legacy was given to the church, or to the
poor generally, without any description of what church, or what poor,
the law sustained it, by giving it in the first case to the parish church
of the place where the testator hved; and in th'e latter case to the
hospital of tihe same place; and if there was none, then to the poor
of the same parish (i). The same rule was applied where, instead of a
bare legacy, the testator appointed as his heir, or devisee, or legatee,
the church of the poor. It was construed to belong to the church, or
the poor of the parish, where he resided (k). So, if a legacy were given
to God (as seems sometimes to have been the usage in the time of
Justinian), it was construed to be a legacy to the church of the parish
where the testator resided (I).
§ 1140. If the testator himself had designated the person by
whom the charity was to be carried into effect, he was compellable to
perform it. If no person was designated, the bishop or ordinary of
the place of the testator's nativity might compel its due execution (m).
And in all cases where the objects were indefinite, the legacy was
carried into effect under the direction of the judge who had cognizance

(/) Ibid.
(g) Dig. Lib. 30, tit. 1, f. 117.
(h) Ibid. f. 122.
(t) 2 Domat, B. 4, tit. 2, § 6, art. 1, p. 169; Perriere, Diet. h. t.
(fc) Ibid. art. 4, p. 169.
il) Ibid. ; Novelise, 141, cap. 9.
(m) 2 Domat, B. 4, tit. 2, § 6, art. 5, 169; Cod. Lib. 1, tit. 3, 1. 28, § 1.
§ 1139—1142.] CHARITIES. 477

of the subject {n). So, if a legacy was given for a definite object, which
either was previously accomplished, or which failed, it was, neverthe-
less, held valid, and applied under judicial discretion to some otlier
object (o). Thus, for example, if the testator had left a legacy for
building a parish church, or an apartment in a hospital, and before
his death the church or apartment had been built, or it was not
necessary or useful, the legacy did not become a nullity, but it was
applied by the proper functionary to some other purposes of piety or
charity (p). And we shall presently see, that the like doctrine has been
carried to a great extent in the jurisprudence of England on the same
subject.
§ 1141. The high authority of the Eoman law, coinciding with the
religious notions of the times, could hardly fail to introduce these
principles of pious legacies into the common law of England ; and
the zeal and learning of the ecclesiastical tribunals must have been
constantly exercised to enlarge their operation. Lord Thurlow (g) was
clearly of opinion, that the doctrine of charities grew up from the
ciyU law; and Lord Eldon (r), in assenting to that opinion, has
judiciously remarked, that at an early period the ordinary had the
power to apply a portion of every man's personal estate to charity,
and when, afterwards, the statute compelled a distribution, it is not
impossible that the same favour should have been extended to charity
in wills, which, by their own force, purported to authorize such a
distribution. Be the origin, however, what it may, it cannot be
denied that many of the privileges attached to pious legacies have
been for ages incorporated into the English law (s). Indeed, in former
t'mes, the construction of charitable bequests was pushed to the most
alarming extravagance. And although it has been in a great measure
checked in later and more enlightened times, there are still some
anomalies in the law on this subject which are hardly reconcilable
with any sound principles of judicial interpretation, or with any
proper exercise of judicial authority.
§ 1142. The history of the law of charities, prior to the statute of
the 43rd of Elizabeth, ch. 4, which is emphatically called the Statute
of Charitable Uses (<), is extremely obscure. It may, nevertheless,
be useful to endeavour to trace the general outline of that history, since
it may materially assist us in ascertaining how far the present

(n) Ibid. ; Swinburne, Pt. 1, § 16, p. 104.

(o) 2 Domat, B. 4, tit. 2, § 6, art. 6, p 170.
(p) Ibid.
(g) White v. White, 1 Bro. C. C. 12. •
(r) Moggridge v. Thackwell, 7 "Ves. 36, 69; Mills v. Farmer, 1 Meriv. 55, 94, 95.
is) Swinb. on Wills, Pt. 1, § 16, pp. 66 to 73.
(t) This statute has been repealed by the Mortmain and Charitable Uses Act,
1888, but it is expressly provided by section 13, sub-s. 2 of that statute that only
those objeets are to be deemed charitable which are so defined in the statute of
Elizabeth.
478 EQUITY JURISPEUDBNCB. [CH. XXXI.

authority and doctrines of the Court of Chancery, in regard- te

charitable uses, depend upon that statute; and how far they arise
from its general jurisdiction, as a court of equity, to enforce trusts,
and especially to enforce trusts to pious uses.
§ 1143. It is not easy to arrive at any satisfactory conclusion on
this head. Until a comparatively recent period, and, indeed, until
the report of the Commissioners on the Public Eecords, published
by Parliament in 1827 (to which our attention will be more directly
drawn hereafter), few traces could be found in the volumes of printed
reports, or otherwise, of the exercise of this jurisdiction, in any
shape, prior to the statute of Elizabeth. The principal, if not the
only cases then to be found, were decided in the courts of common
law, and generally turned upon the question, whether the uses were
void or not, within the statutes against superstitious uses. One of
the earliest cases is Porter's Case (m); which was a devise of lands,
devisable by custom, to the testator's wife, in fee, upon condition that
she should assure the lands, devised for the maintenance and con-
tinuance of a free school, and certain almsmen and almswomen; and
it appeared that the heir had entered for a condition broken, and
conveyed the same lands to the queen. It was held, that the
use, being for charity, was a good and lawful use, and not void by
the statutes against superstitious uses; and that the queen might
well hold the land for the charitable uses. Lord Loughborough, in
commenting on this case, observed: " It does not appear, that this
court (that is, chancery), at that period, had cognizance upon informa-
tions for the establishment of charities. Prior to the time of Lord
Ellesmere {x), as far as the tradition of the times immediately
following goes, there were no . such informations as that upon which
1 am now sitting (that is, an information to establish a charity);
but they made out their case, as well as they could, by law " (y).
§ 1144. So, that the result of Lord Loughborough's researches on
this point was that, until about the period of enacting the statute of
Elizabeth, bills were not filed in chancery to establish charities It
is remarkable, that Sir Thomas Egerton and Lord Coke, who argued
Porter's Case for the queen, although they cited many antecedent
cases, refer to none which were not decided at law. And the doctrine
established by Porter's Case is, that if a feoffment is made to a general
(tt) 1 Co. 22 b, in 34 & 35 Eliz. See also a like decision in Partridge v. Walker,
cited 4 Co. 116 b ; Martiiale v. Martin, Co. Bliz. 288 ; Thetford School, 8 Co. 130.
{x) Sir Thomas Egerton was made Lord Chancellor in 39 Eliz. 1696, and was
created Lord Ellesmere 1 James I. 1603.
{y) Att.-Gen. v. Bowyer, 3 Ves. 714, 726. In Eyre v. Countess of Shaftesbury,
2 P. Will. 119, Sir Joseph Jekyll, M.E., said : " In like manner, in case o£ charity,
the king has, pro bono ■publico, an original right to superintend the case thereof; so
that, abstracted from the statute of Elizabeth relating to charitable uses, and ante-
cedent to it as well as Since, it has been every day's practice to file informations in
chancery-, in the attorney-general's name; forthe establishment of charities." Post,
§ 1148; Att.-Gen. v. Brereton, Ves. 425, 427.
§ 1143—1147.] CHARITIES. 479

legal use, not superstitious, although indefinite, although no person is

in esse, who could be the cestui que use, yet the feofifment is good;
and if the use is bad, the heir of the feoffor will be entitled to enter,
the legal estate remaining in him.
§ 1145. The absence, therefore, of all authority derived from any
known antecedent equity decisions upon an occasion when they
would probably have been used, if any existed, did certainly seem
very much to favour the conclusion of Lord Xioughborough. And in
the absence of any such known antecedent decisions, it was not a
rash conjecture, for it would be but a conjecture, that Porter's Case,
having established that charitable uses, not superstitious, were good
at law, the Court of Chancery, in analogy to the other cases of trusts,
immediately afterwards held the feoffees to such uses accountable in
equity for the due execution of them ; and that the inconveniences
felt in resorting to this new and anomalous proceeding, from the
indefinite nature of some of the uses, gave rise, within a few years,
to the statute of 43 Elizabeth, ch. 4 {z).
§ 1146. This view might also have some tendency to reconcile the
language of Lord Loughborough with that of an opposite character,
used upon other occasions by other chancellors and judges, in
reference to the jurisdiction of chancery over charities (a), as it
would show, that in cases of feoffments to charitable uses, bills to
establish those uses might in fact have been introduced, or brought
into familiar praetice, by Lord Ellesmere, about five years before the
statute of Elizabeth. This would be quite consistent with the fact
that such bills were not sustained where the donation was to charity
generally, and no trust estate was interposed, and no legal estate
was devised, to support the uses. It is very certain, that, at law,
devises to charitable uses generally, without interposing a trustee,
and devises to a non-existing corporation, or to an unincorporated
society, would have been, and in fact were, held utterly void for want
of a person having a sufficient capacity to take as devisee (b). The
statute of Elizabeth, in favour of charitable uses, cured this defect (c),
and. provided (as we shall hereafter have occasion more fully to
consider) a new mode of enforcing such uses by a commission under
the direction of the Court of Chancery.
§ 1147. Shortly after this statute, it becaime a matter of doubt,
whether the Court of Chancery could grant relief by original bill in cases
within that statute, or whether the remedy was not confined to the

(z) There was, in fact, an Act passed, respecting charitable uses, in 39 Eliz.
ch. 9; but it was repealed by the Act of 43 Eliz. ch. 4. Com. Dig. Charitable Uses,
N.' 14.
(a) See ante, § 1143, note; post, § 1148.
(b) Anon., 1 Ch. Cas. 207; Att.-Gen. v. Tancred, 1 W. Bl. 90; s.o. Ambler, 351;
Gollison's Case, Hob. 136; s.c. Moore, 888; Widmore v. Woodruffe, Ambler, 636,
640; Com. Dig. Devise, K.
(c) Com. Dig. Charitable Uses, N. 11; Com. Dig. Chancery, 2 N. 10.
480 EQUITY JURISPRUDENCE. [CH. XXXI.

proceeding by commission under the statute. That doubt remained

until the reign of Charles II., when it was settled in favour of the juris-
diction ofthe court by original bill (d). On one occasion, when this very
question was argued before him, Lord Keeper Bridgman declared,
" That the king, as pater patriae, may inform for any public benefit for
charitable uses, before the statute of 30 [43] of Elizabeth for Charitable
Uses. But it was doubted the court could not by bill take notice of that
statute, so as to grant a relief according to that statute upon a bill " (e).
On another occasion soon afterwards, where the devise was to a college,
and was held void at law by the judges, for a misnomer, on a bill to
establish the devise as a charity, the same question was argued; Lord
Keeper Pinch (afterwards Lord Nottingham) held the devise good, as an
appointment under the statute of Elizabeth; and he "decreed the
charity, though before the statute no such decree could have been
made " (/). It would seem, therefore, to have been the opinion of Lord
Nottingham, that an original bill would not, before the statute of
Elizabeth, lie to establish a charity, where the estate did not pass at
law to which the charitable uses attached.
§ 1148. On the other hand, the language of other judges leads to
the conclusion that antecedent to the statute of Elizabeth, the Court
of Chancery did, in virtue of its inherent authority, exercise a large
jurisdiction in cases of charities. In Eyrev. Shaftesbury (3), Sir
Joseph Jekyll said, in the course of his reasoning on another point:
" In like manner, in the case of charity, the king, pro bono publico, has
an original right to superintend the care thereof, so that, abstracted
from the statute of Elizabeth relating to charitable uses, and antecedent
to it as well as since, it has been every day's practice, to file informa-
tions in chancery, in the attorney-general's name, for the estabUshment
of charities." In the Corporation of Burford v. Lenthall (h), Lord
Hardwicke is reported to have said : ' ' The courts have mixed the juris-
diction of bringing informations in the name of the attorney-general
with the jurisdiction given them under the statute of Elizabeth, and
proceed either way, according to their discretion."
§ 1149. In a subsequent case (i), which was an information filed by
the attorney-general against the master and governors of a school,
calling them t-o account in chancery, as having the general superinten-
dency of all charitable donations, the same learned chancellor, in dis-

(d) Att.-Gen. v. Newman, 1 Ch. Cas. 157; s.c. 1 Lev. 284; Eyre v. Countess of
Shaftesbury, 2 P. Will. 119; Att.-Gen. v. Brereton, 2 Ves. 425, 427; West v. Knight,
1 Ch. Cas. 134; Anon., 1 Ch. Cas. 267; 2 Fonhl. Eq. B. 3, pi. 2, ch. 1, § 1; Parish
of St. Dunstan v. Beauchamp, 1 Ch. Cas. 193.
(e) Att.-Gen. v. Newman, 1 Ch. Cas. 157.
(/) Anon., 1 Ch. Cas. 267.
((7) 2 P. Will. 103, 118. Cited also 7 Ves. Jun. 63, 87 ; and by Lord Justice
Wilmot, in Wilmot's Notes of Cases, 24.
(h) 2 Atk. 660 (1743).
(i) Att.-Gen. v. Middleton, [1751] 2 Ves. Sen. 327.
§ 1148—1151.] CHAEITIES. 481

cussing the general jurisdiction of the Court of Chancery on this head,

and distinguishing the case before him from others, because the trustees
or governors were invested with the visitatorial powers, said : " Consider
the nature of the foundation. It is at the petition of two private
persons, by charter of the Crown, which distinguishes this ease from
cases of the statute of Elizabeth on Charitable Uses, or cases before
that statute in which this court exercised jurisdiction of charities at
large. Since that statute, where there is a charity for the peculiar
purposes therein, and no charter given by the Crown to found and
regulate it, unless a particular exception out of the statute, it must be
regulated by commission. But there may be a bill by information
in this court, founded on its general jurisdiction; and that is from
necessity; because there is no charter to regulate it, and the king has
a general jurisdiction of this kind. There must be somewhere a power
to regulate. But where there is a charter, with proper powers,
there is no ground to come into this court to establish that charity;
and it must be left to be regulated in the manner the charter has put
it, or by the original rules of law. Therefore, though I have often
heard it said in this court, if an information is brought to establish
a charity, and praying a particular relief and mode of regulation, and
the party fails in that particular relief; yet that information is not
to be dismissed, but there must be a decree for the establishment (k).
That is always with this distinction, where it is a charity at large ; or
in its nature, before the statute of charitable uses ; but not in the case
of charities incorporated and established by the king's charter, under
the great seal, which are established by proper authority allowed."
And again : " It is true that an information in the name of the
attorney-general, as an officer of the Crown, was not a head of the
statute of Charitable Uses, because that original jurisdiction was
exercised in this court before. But that was always in cases now
provided for by that statute; that is, charities at large, not properly
and regularly provided for in charters of the Crown."
§ 1150. It was manifestly, therefore, the opinion of Lord
Hardwicke, that, independently of the statute of Elizabeth, the Court
of Chancery did exercise original jurisdiction in cases of charities at
large, which he explains to mean charities not regulated by charter.
But it does not appear that his attention was called to discriminate
between such as could take eSect at law, by reason of the inter-
position ofa feofiee or devisee, capable of taking, and those where the
purpose was general charity, without the interposition of any trust to
carry it into effect. The same remark applies to the dictum by Sir
Joseph Jekyll.
§ 1151. In a still later case (l), which was an information to
establish a charity, and aid a conveyance in remainder to certain
(k) S.p. Att.-Gen. v. Brereton, 2 Ves. Sen. 425, 427 ; post, § 1163.
(Z) Att.-Gen. v. Tancred, 1 W. Bl. 90; s.c. Ambler, 351; 1 Eden, 10.
E.J. 31
482 EQUITY JURISPRUDENCE. [CH. XXXI.

officers of Christ's College to certain charitable uses, Lord Keeper

Henley (afterwards Lord Northington) is reported to have said : ' ' The
conveyance is admitted to be defective, the use being limited to certain
officers of the corporation, and not to the corporate body ; eind, there-
fore, there is a want of proper persons to take in perpetual succession.
The only doubt is, whether the court shall supply this defect for the
benefit of the charity, under the statute of Elizabeth. And I take
the uniform rule of this court, before, at, and after the statute of
Elizabeth, to have been, that, where the uses are charitable, and the
person has in himself full power to convey, the court will aid a
defective conveyance to such uses. Thus, though devises to corpora-
tions were void under the statute of Henry VIII., yet they were
always considered as good in equity, if given to charitable uses."
And he then proceeded to declare, that he was obUged, by the
uniform course of precedents, to assist the conveyance; and, therefore,
he established the conveyance expressly under the statute of Elizabeth.
§ 1152. There is some reason to question, whether the language
here imputed to Lord Northington is minutely accurate. His lordship
manifestly aided the conveyance, as a charity, in virtue of the statute
of Elizabeth. And there is no doubt, that it has been the constant
practice of the court, since that statute, to aid defects in conveyances
to charitable uses. But it is by no means clear that such defects were
aided, before that statute. The old cases, although arising before
the statute, were deemed to be within the reach of that statute by
its retrospective language ; and were expressly decided on that
ground (m). The very case put of devises to corporations, which are
void under the statute of Henry VIII., and are held good solely by
the statute of Elizabeth, shows that his lordship was looking to that
statute; for it is plain, that a devise, void by statute, cannot be made
good upon any principles of general law. What, therefore, is supposed
to have been stated by him, as being the practice before the statute,
is probably, if not founded in the mistake of the reporter, an
inadvertent statement of the learned chancellor. The same case is
reported in another book, where the language reported to have been
used by him is: " The constant rule of the court has always been,
where a person has a power to give, and makes a defective conveyance
to charitable uses, to supply it as an appointment; as in Jesus College,
Collison's Case in Hobart, 136 " {n). Now, OoUison's Case was
expressly held to be sustainable, only as an appointment under the
statute of Elizabeth ; and this shows that the language of his lordship
was probably meaat to be limited to cases governed by that statute.
§ 1153. In a more recent charity case. Sir Arthur Piggott in

(to) Collison's Case, Hob. 136; s.c. Moore, 888; id. 822; Sir Thomas Middleton's
Case, Moore, 889; Rivett's Case, Moore, 890, and the cases cited in Eaithby's note
to Att.-Gen. v. Ryre, 2 Vem. 453; Duke on Charit. 74, 77, 83, 84; Bridg. on Charit.
366, 370, 379, 380; Duke on Charit. 105 to 113. (n) Ambler, 351.
§ 1152— 1154a.] CHARITIES. 483

argument said : ' ' The diSerence between the case of individuals and
that of charities is founded on a principle which has been estabUshed
ever since the statute of Charitable Uses, in the reign of Elizabeth,
and has been constantly acted upon from those days to the present."
Lord Eldon adopted the remark, and said: " I am fully satisfied as to
all the principles laid down in the course of this argument, and to
accede to them. all. ' ' His lordship then proceeded to discuss the most
material of the principles and cases from the time of Elizabeth, and
built his reasoning, as indeed he had built it before, upon the sup-
position, that the doctrine in chancery, as now established, rested
mainly on that statute (o).
§ 1154. Such were the principal cases, or at least the principal
cases which my own researches had brought to my notice at the time
when the present work was first published, wherein the jurisdiction of
chancery over charities, antecedent to the statute of Elizabeth, had
been directly or incidentally discussed. The circumstance that no
cases, prior to that time, could then be found in equity jurisprudence ;
the tradition that had passed down to our own times, that original
bills to establish charities were first entertained in the time of Lord
Ellesmere ; the fact, that the cases immediately succeeding that
statute, in which devises, void at law, were held good in equity as
charities, might have been argued and sustained upon the general
jurisdiction of the court, if it then existed ; and yet were exclusively
argued and decreed upon the footing of that statute ; these facts and
circumstances did certainly seem to afford a strong presumption that
the jurisdiction of the court to enforce charities, where no trust is
interposed, and where no devisee is in esse, and where the charity is
general and indefinite, both as to persons and objects, mainly rests
upon the constructions (whether ill or well founded, is now of no
consequence) of the statute of Elizabeth.
§ 1154a. This subject has undergone a more full and elaborate
consideration. Lord Eldon, in a case calling for an expression of his
opinion upon the point in 1826, took occasion to observe: " It may
not be quite clear that these instruments, originally void, were held
to be valid merely by the efiect of the 43rd of Elizabeth. It might
have been supposed that there was in the court a jurisdiction to render
effective an imperfect conveyance for charitable purposes; and the
statute has, perhaps, been construed with reference to such, the
supposed jurisdiction of this court; so that it was not by the effect of
the 43rd Elizabeth alone, but by the operation of that statute on a
supposed antecedent jurisdiction in the court, that void devises to
charitable purposes were sustained. Out of that supposed jurisdiction
this construction of the statute may have arisen " (p). In 1834, in
(o) Mills V. Farmer, 1 Meriv. 55, 86, 94, 100; Moggridge v. Thackwell, 7 Ves.
36; Att.-Gen. v. Bowyer, 3 Ves. 7U, 726.
(p) Att.-Gen. v. Skinners' Co., 2 Euss. 407,. 420.
484 EQUITY JURISPRUDENCE. [CH. XXXI.

the case of the Brentwood Grammar School, a charity founded in the

reign of Philip and Mary, came under the consideration of Sir John
Leach, the Master of the EoUs, and it then appeared that the charity
was mainly to found and endow a grammar school at Brentwood, and
was established by a decree of the Court of Chancery as early as the
12th of Elizabeth, although it included also a provision for the support
of " five poor folks in Southweald " ; and Sir John Leach, upon the
bill before him for the establishment of a proper scheme for the
charities, affirmed the original decree (q). Lord Eedesdale, in a very
important case before the House of Lords, in 1827, expressed himself
to the following effect: " We are referred to the statute of Elizabeth,
with respect to charitable uses, as creating a new law upon the subject
of charitable uses. That statute only created a new jurisdiction, it
created no new law; it created a new and ancillary jurisdiction, a
jurisdiction borrowed from the elements which I have mentioned ; a
jurisdiction created by a commission to be issued out of the Court of
Chancery to enquire whether the funds given for charitable purposes,
had or had not been misapplied, and to see to their proper application ;
but the proceedings of that commission were made subject to appeal
to the Lord Chancellor, and he might reverse or affirm what they
had done, or make such order as he might think fit for reversing
the controlling jurisdiction of the Court of Chancery, as it existed
before the passing of that st^atute; and there can be no doubt
that, by information by the attorney-general, the same thing might
be done. . . . While proceedings under that statute were in common
practice (as appears in that collection which is called Duke's Charitable
Uses) you will find it stated that in certain cases, although a com-
mission might issue under the statute, an information by the attorney-
general was the better remedy. In process of time, indeed, it was
found that the commission of charitable uses was not the best remedy,
and that it was better to resort again to the proceedings by way of
information in the name of the attorney-general. The right which
the attorney-general has to file an information is a right of prerogative ;
the king, as purens patrise, has a right, by his proper officer, to call
upon the several courts of justice, according to the nature of their
several jurisdictions, to see that right is done to his subjects who are
incompetent to act for themselves, as in the case of charities and other
cases; the case of lunatics, where he has also a special prerogative tO'
take care of the property of a lunatic, and where he niay grant the
custody to a person who, as a committee, may proceed on behalf of the
lunatic, or where there is no such grant the attorney-general may
proceed by his information " (r).

(q) Att.-Gen. v. Brentwood School, 1 Myl. & Z. 376.

(t) Att.-Gen. v. Corporation of Dublin, 1 Bligh. N. S. 312, 347, 348. See also
Corporation of Ludlow v. Greenhouse, 1 Bligh N. S. 61, 62, 68.
§ 1154b— 1156.] CHARITIES. 485

§ 1154b. On a still more recent occasion in Ireland, Lord

Chancellor Sugden examined the whole subject with great diligence and
learning, and reviewed historically the leading authorities. The con-
clusion at which he arrived was, that there is an inherent jurisdiction
in equity in cases of charity, and that charity is one of those objects
for which a court of equity has at all times interfered to make good
that which at law was an illegal or informal gift; and that cases of
charity in courts of equity in England were valid independently of and
previous to the statute of Elizabeth (s). But the most authentic and
at the same time the most satisfactory information upon the whole
subject is to be found in the report of the Commissioners upon the
Public Records published by Parliament in 1827. From this most
important document it appears, by a great number of cases previous to
the statute, that cases of charities where there were trustees appointed
for general and indefinite charities, as well as for specific charities, were
familiarly known to, and acted upon and enforced in, the Court of
Chancery. In some of these cases the charities were not only of aji
uncertain and indefinite nature, but, as far as can be gathered from
the records, they were also cases where there were either no trustees
appointed, or the trustees were not competent to take (t).
§ 1155. But however extensive the jurisdiction may originally have
been over the subject of charities, and however large its application,
it is very certain that, since the statute of Elizabeth, no bequests were
deemed within the authority of chancery, and capable of being estab-
lished and regulated thereby, except bequests for those purposes which
that statute enumerates as charitable or which, by analogy, were deemed
within its spirit and intendment (m), and this, as already noted, has been
confirmed by the Mortmain and Charitable Uses Act, 1888, s. 13, sub-s.
2. A bequest may, in an enlarged sense, be charitable, and yet not
within the purview of the statute. Charity, as Sir William Grant (the
Master of the Rolls) has justly observed, in its widest sense, denotes
all the good affections men ought to bear towards each other; in its
more restricted and common sense, relief to the poor. In neither of
these senses is it employed in the Court of Chancery (x). In that court
it means such charitable bequests only as are within the letter and the
spirit of the statute of Elizabeth.
§ 1156. Therefore, where a testatrix bequeathed the residue of her
personal estate to the Bishop of D., to dispose of the same " to such
objects of benevolence and liberality as the bishop in his own discretion
(s) The Incorporated Society v. Richards, 1 Conn. & Law. 58; «.c. 1 Dm. &
Warr. 258.
(t) 1 Cooper's Public Eecords, 324, Calendar of Proceedings in Chancery.
(a) See 2 Boper on Legacies, by White, ch. 19, § 1, pp. Ill, 112; Nash v. Morley,
5 Beav. 177, 182, 183.
(x) Morice v. Bishop of Durham, 9 Ves. 399 ; s.c. 10 Ves. 522 ; Brown v. Yeall,
7 Ves. 50, note (o) ; Moggridge v. Thackwell, 7 Ves. 36; Nightingale v. Goulbum,
5 Hare, 485 ; affirmed 2 Phil. 594.
486 EQUITY JUEISPEUDENCE. [CH. XXXI.

shall most approve of," and she appointed the bishop her executor;
on a bill brought to establish the will, and declare the residuary bequest
void, the bequest was held void, upon the ground, that objects of
" benevolence and liberality " were not necessarily charitable within
the statute of Elizabeth, and were, therefore, too indefinite to be
executed. On that occasion, it was said by the court, that no case had
yet been decided, in which the court had executed a charitable purpose,
unless the will had contained a description of that which the law
acknowledged to be a charitable purpose, or had devoted the property to
purposes of charity in general, in the sense in which that word is used
in the Court of Chancery. The devise here was of a trust of so indefinite
a nature, that it could not be under the control of the court ; so that the
administration of it could be reviewed by the court, or so that, if the
trustee died, the court itself could execute the trust. It fell, therefore,
within the rule of the court, that, where a trust is inefiectually declared,
or fails, or becomes incapable of taking effect, the party taking it shall
be deemed a trustee, if not for those who were to take by the will, for
those who are to take under the disposition of the law. And the residue
was accordingly decreed to the next of kin {y).
§ 1156a. Upon the like ground, a bequest of personalty to trustees
to be applied "for the relief of domestic distress, assisting indigent but
deserving individuals, or encouraging undertakings of general utility,"
has been held void for vagueness and uncertainty, and as not being
within the scope of the statute of Elizabeth (z).
§ 1157. Upon the like principles, a bequest in these words, "In
case there is any money remaining, I should wish it to be given in pri-
vate charity," has been held inoperative; for the objects are too general
and indefinite, not being within the statute of Elizabeth, and not being
so ascertained, that the trust could be controlled or executed by a court
of equity (a). So, a bequest to trustees, " to such charitable or public
purpose or purposes, person or persons, as the trustees should, in their
discretion, think fit, ' ' has been held void : for it is in effect a gift in trust,
to be absolutely disposed of in any manner that the trustees might think
fit, consistent with the laws of the land ; which is too general and un-
defined to be executed {b). So, a bequest " for such benevolent,
religious, and charitable purposes, as the trustees should, in their dis-
cretion, think most beneficial," has been held void, upon the ground of
its generality, as it did not limit the gift to cases of charity, but extended
it to those of benevolence also (c). So, a bequest to executors, of a
fund, " to apply it to and for such charitable and other purposes as
they shall think fit, without being accountable to any person for their

iy) Monce v. Bishop of Durham, 9 Ves. 399 ; s.c. 10 Ves. 522.

(2) Kendall v. Granger, 5 Beav. 300.
(0) Ommaney v. Butcher, 1 Turn. & Buss. 260, 270.
(b) Vezey v. Januon, 1 Sim. & Stu. 69.
(c) Williams v. Kershaw, cited 1 Keen, 232.
§ 1156a— 1161.] CHARITIES. 487

disposition thereof," has been held void on account of its indefinite-

ness (d).
§ 1158. So, that it appears from these eases, that, since the statute
of Elizabeth, the Court of Chancery will not estabUsh any trusts for
indefinite purposes of a benevolent nature, not charit^able within the
purview of that statute, although there is an existing trustee, in whom
it is vested ; but it will declare the trust void, and distribute the pro-
perty among the next of kin. And yet, if there were an original juris-
diction in chancery over all bequests, charitable in their own nature,
and not superstitious, to establish and regulate them independent of
the statute, it is not easy to perceive why an original bill might not be
sustained in that court to establish such a bequest, especially, where
a trustee is interposed to effectuate it; for the statute does not contain
any prohibition of such a bequest.
§ 1159. A discussion of the procedure by commission established
by the statute of Elizabeth, which was seldom resorted to, as noticed
before, has now become unnecessary by reason of subsequent legislation
although the learned author might not have been justified in ignoring
it, notwithstanding it was more cumbrous and inefficient even than the
chancery procedure of his day. The administration of trusts at the
present day is supervised by the Charity Commissioners established by
16 & 17 Vict. c. 137, s. 17 (e).
§ 1160. The uses enumerated in the preamble of the statute, as
charitable, are gifts for the relief of aged, impotent, and poor people ;
for maintenance of sick and maimed soldiers and mariners ; for schools
of learning, free schools, and scholars in universities; for repairs of
bridges, ports, havens, causeways, churches, sea-banks, and highways ;
for education and preferment of orphans ; for, or towards the relief,
stock, or maintenance for houses of correction; for marriages of poor
maids ; for supportation, aid, and help of young tradesmen, handicrafts-
men, and persons decayed ; for relief or redemption of prisoners or cap-
tives ;and for aid or ease of any poor inhabitants, concerning payments
of fifteenths, setting out of soldiers, and other taxes. These are all the
classes of uses which the statute in terms reaches.
§ 1161. From this summary statement of the contents of the
statute, it is apparent that the authority conferred on the Court of
Chaaicery, in relation to charitable uses, is very extensive; and it is not
at all wonderful, considering the religious notions of the times, that the
statute should have received the most liberal, not to say, in some
instances, the most extravagant, interpretation. It is very easy to per-
ceive how it came to pass, that, as power was give!n to the court in the
most unlimited terms, to annul, diminish, alter, or enlarge the orders

(d) Ellis V. Sielby, 1 Myl. & Cr. 286.

(e) See Rendall v. Blair, 45 Ch. D. 139; In re Clergy Orphan Corporation, [1894]
3 Ch. 145 ; In re Gilchrist Charity, [1895] 1 Ch. 367.
488 EQUITY JURISPRUDENCE. [CH. XXXI.

and decrees of the commissioners, and to sustain an original bill in

favour of any party aggrieved by such order or decree, the court arrived
at the conclusion that it might, by original bill, do that in the first
instance which it certainly could do circuitously upon the commis-
sion (/). And as in some cases, vchere the trust was for a definite
object, and the trustee living, the court might, upon its ordinary juris-
diction over trusts, compel an execution of it by an original bill, inde-
pendently ofthe statute (g), we are at once let into the origin of the
practice of mixing up the jurisdiction by original bill with the juris-
diction under the statute, which Lord Hardwicke alluded to in the
passage already quoted (h), and which at that time was inveterately
established. This mixture of the jurisdiction serves also to illustrate
the remark of Lord Nottingham, in the case already cited (i) ; where,
upon an original bill, he decreed a devise to charity, void at law, to
be good in equity, as aji appointment; although before the statute of
Elizabeth no such decree could have been made.
§ 1162. Upon the whole, it seems now to be the better opinion,
that the jurisdiction of the Court of Chancery over charities, where
no trust is interposed, or where there is no person, in esse, capable of
taking, or where the charity is of an indefinite nature, is to be referred
to the general jurisdiction of that court, anterior to the statute of
Elizabeth. This opinion is supported by the preponderating weight of
the authorities, speaking to the point, and particularly by those of a
very recent date, which appear to have been most thoroughly con-
sidered. The language, too, of the statute, lends a confirmation to
this opinion, and enables us to trace what would otherwise seem a
strange anomaly, to a legitimate origin.
§ 1163. Be this as it may, it is very certain that the Court of
Chancery will now relieve by original bill or information upon gifts
and bequests, within the statute of Elizabeth; and informations by
the attorney-general, to settle, establish, or direct such charitable
donations, are common in practice. Indeed, the mode of proceeding
by commission under the statute of Elizabeth, has been long abandoned,
and the mode of proceeding by information by the attorney-general,
is now become absolutely universal, so as to amount to a virtual
extinguishment of the former remedy (fe). But, where the gift is not
a charity within the statute, no information lies in the name of the
attorney-general to enforce it (t). And if an information is brought in

(/) See the Poor of St. Dunstan v. Beauchamp, 1 Ch. Gas. 193, 2 Co. Inst. 711;
Corporation of Burford v. Lenthull, 2 Atk. 551.
(g) Att.-Gen. v. Dixie, 13 Ves. 519; Ex parte Kirkby Ravensworth Hospital, 15
Ves, 305; Green v. Rutherforth, 1 Ves. 462; Att.-Gen. v. Earl of Clarendon, 17 Ves.
491, 499.
{h) Corporation of Burford v. Lenthall, 2 Atk. 520; ante, § 1148.
(j) Anon., 1 Ch. Cas. 267.
(k) Corporation of Ludlow v. Greenhouse, 1 Bligh N. S. 61, 62, 68.
(!) Att.-Gen. v. Hewer, 2 Vera. 387.
§ 1162—1164.] CHARITIES. 489

the name of the attorney-general, and it appears to be such a charity

as the court ought to support, although the information is mistaken
in the title or in the prayer of relief, yet the bill will not be dismissed ;
but the court will support it and establish the charity in such a manner
as by law it may (m). However, the jurisdiction of chancery over
charities does not exist where there are local visitors appointed : for it
then belongs to them and their heirs to visit and control the charity (n).
§ 1164. As to what charities are within the purview of the statute,
it may be proper 'to say a few words in this place in addition to what
has been already suggested (o), although it is impracticable to go into
a thorough review of the oases (p). It is clear, that no superstitious
uses are within the purview of it. When the learned author wrote, the
Court of Chancery regarded all gifts in furtherance of the Eoman
Catholic faith (g) and the Jewish faith (r) as falling within the purview
of the preamble to the statute 1 Ed. VI. c. 14. But the doctrines of
Protestant Dissenters do not seem to have fallen under a similar ban (s).
It has recently been held in the House of Lords (t), that the statute
has been repealed by subsequent legislation, and that a legacy may be
given for masses for the dead, which was one of the illustrations given
by the author. The topic suggests a contrast, namely, a gift that may
be applied in furthering discussions impugning the Christian faith. This
is not necessarily obnoxious as tending to promote blasphemy (u). But
there are certain uses which, though not within the strict letter, are yet
deemed charitable within the equity of the statute. Such is money
given to maintain a preaching minister ; to maintain a schoolmaster in a
parish ; for the setting-up of a hospital for the relief of poor people ; for
the building of a sessions house for a city or county ; for the making
of a new, or for the repairing of an old pulpit in a church ; for the buy-
ing of a pulpit-cushion or pulpit-cloth; or for the setting of new bells,
where there are none, or for mending of them, where they are out of
order (x).

(m) Att.-Gen. v. Smart, 1 Ves. Sen. 72; Att.-Gen. v. Jeames, 1 Atk. 365; Att.-
Gen. V. Breton, 2 Ves. Sen. 425; Att.-Gen. v. Middleton, 2 Ves. Sen. 327; Att.-Gen.
V. Parker, 1 Ves. Sen. 43; s.c. 2 Atk. 576; Att.-Gen. v. Whitley, 11 Ves. 241, 247;
ante, § 1149.
(n) Att.-Gen. v. Price, 3 Atk. 108; Att.-Gen. v. Governors of Harrow School,
2 Ves. Sen. 552. (o) Ante, § § 1155 to 1158.
(p) They are enumerated with great particularity in Duke on Charitable Uses, by
Bridgman ; in Com. Dig. Charitable Uses; 2 Eoper on Legacies, by White, ch. 19,
§§ 1 to 5, pp. 109 to 164.
(g) West V. Shuttleworth, 3 Myl. & K. 684.
(r) Da Costa v. De Pas, 2 Swanst. 487.
(«) Att.-Gen. v. Hickman, 1 Eq. Cas. Abr. 193; Att.-Gen. v. Pearson, 3 Mer.
409. See, however, Shore v. Wilson, 9 CI. & P. 355.
(t) Bourne v. Keane, [1919] A. C.
(u) Bowman v. Secular Society, Lim. [1917] A. C. 406.
ix) Duke on Charit. 105, 113; Bridgman on Duke on Charit. 354; Com. Dig.
Charitable Uses, N. 1. So a bequest to keep in repair a tombstone or an ornamental
window, though in memory of a particular person, is good. Hoare v. Osborne, L. E.
1 Bq. 585.
490 EQUITY JDRISPEUDENCB. [CH. XXXI.

§ 1165. Charities are also so highly favoured in the law, that they
have always received a more liberal construction than the law will allow
m gifts to individuals (y). In the first place, the same words in a will,
when applied to individuals, may require a very different construction,
when they are applied to the case of a charity. If a testator gives his
property to such person as he shall hereafter name to be his executor,
and afterwards he appoints no executor; or if, having appointed an
executor, the latter dies in the lifetime of the testator, and no other
person is appointed in his stead; in either of these cases, as these be-
quests are to individuals, the testator will be held intestate ; and his
next of kin will take the estate. But if a like bequest be given to the
executor in favour of a charity, the court will, in both instances, supply
the place of an executor, and carry into effect that very bequest, which,
in the case of individuals, must have failed altogether (a).
§ 1166. Again, in the case of an individual, if an estate is devised
to such person as the executor shall name, and no executor is appointed ;
or, if one being appointed, he dies in the testator's lifetime, and no other
is appointed in his place ; or the appointment becomes nugatory ; the
bequest becomes a mere nullity. Yet such a bequest, if expressed to be
for a charity, would-be good (a). So, if a legacy is given to trustees to
distribute in charity, and they all die in the testator's lifetime ; although
the legacy becomes thus lapsed at law (and if the trustees had taken
to their own use, it would have been gone for ever), yet it will be
enforced in equity (b).
§ 1167. Again ; although in carrying into execution a bequest to an
individual, the mode, in which the legacy is to take effect, is deemed to
be the substance of the legacy; yet, where the legacy is to a charity,
the court will consider charity as the substance ; and in such cases,
and in such cases only, if the mode pointed out fail, it will provide
another mode, by which the charity may take effect, but by which no
other charitable legatees can take (c). A still stronger case is, that,
if the testator had expressed (d) an absolute intention to give a legacy
to charitable purposes, but he has left uncertain, or to some future
act, the mode by which it is to be carried into effect ; there, the court
if no mode is pointed out, will of itself supply the defect, and enforce
the charity (e). Therefore, it has been held, that, if a man devises a
sum of money to charitable uses as he shall direct by a codicil annexed
to his will, or by a note in writing, and he afterwards leaves no direction

(y) 2 Eoper on Legacies, by White, ch. 19, § 5, pp. 16i to 222.

(2) Moggridge v. Thackwell, 7 Ves. 36 ; Mills v. Farmer, 1 Mer. 55.
(o) Moggridge v. Thackwell, 7 Ves. 36; In re Hampton, Public Trustee v. Hamp-
ton, 88 L/. J. Oh. 103.
(b) Moggridge v. Thackwell, 3 Bro. C. C. 517; 1 Ves. Jun. 464; 7 Ves. 36;
Mills V. Farmer, 1 Mer. 55.
(c) Ironmongers' Co. v. Att.-Gen., 10 CI. & F. 904.
(d) Corporation of Gloucester v. Osborn, 1 H. L. C. 272; af&rming 3 Hare, 131.
(e) Moggridge v. Thackwell, 7 Ves. 36.
§ 1165—1170.] CHARITIES. 491

by note or codicil, the court will dispose of it, to such charitable purposes
as it thinks fit. So, if a testator bequeaths a sum for such a school as
he shall appoint, and he appoints none, the court may apply it for what
school it pleases (/).
§ 1168. The doctrine was pressed yet farther ; and it was established,
that, if the bequest indicate a charitable intention, but the object to
which it is to be applied is against the. policy of the laV, the court will
lay hold of the charitable intention, and execute it for the purpose of
some other charity, agreeably to the law, in the room of that contrary
to it (g). Thus, before the removal of religious disabilities, a sum of
money bequeathed to found a Jews' synagogue has been enforced by the
court as a charity, and judicially transferred to the benefit of a found-
ling hospital (h). And a bequest for the education of poor children in
the Roman Catholic faith, has been decreed in chancery to be disposed
of by the king at his pleasure under his sign-manual (i).
§ 1169. Another principle, equally well established, is, that, if the
bequest be for charity, it matters not how uncertain the persons or
the objects may be ; or whether the persons, who are to take, are in
esse, or not; or whether the legatee be a corporation capable in law of
taking or not; or whether the bequest can be carried into exact execu-
tion or not; for, in all these and the like cases, the court will sustain
the legacy, and give it effect according to its own principles (fe). And
where a literal execution becomes inexpedient or impracticable, the court
will execute it, as nearly as it can, according to the original purpose,
or (as the technical expression is) oy-pres (I). This doctrine seems to
have been borrowed from the Roman law ; for by that law, donations
for public purposes were sustained and were applied, when illegal,
oy-pres, to other purposes, at least one hundred years before Christianity
became the religion of the empire (m).
§ 1170. Thus, a devise of lands to the churchwardens of a parish
(who are not a corporation capable of holding lands), for a charitable
purpose, although void at law, will be sustained in equity (n). So, if
a corporation, for whose use a charity is designed, is not in esse and
cannot come into existence but by some future act of the Crown, as,
for instance, a gift to found a new college, which requires an act of
incorporation, the gift will be held valid, and the court will execute
it (o). So, if a devise be to an existing corporation by a misnomer,

(/) Att.-Gen. v. Syderfin., 1 Vern. 224; s.c. 2 Freem. 261; Moggridge v. Thack-
well, 7 Ves. 36; In re Davis, Harmen v. Hillyer, [1902] 1 Ch. 876.
(g) Da Costa v. De Paz, 2 Swanst. 487 n. ; s.c. Cary v. Abbott, 7 Ves. 490.
(h) Da Costa v. De Paz, 2 Swanst. 487 n. ; s.c. 1 Vern. 251.
(i) Cary v. Abbott, 7 Ves. 490; De Themmines v. De Bonneval, 5 Euss. 292.
(k) Post, § 1181. (l) Ironmongers' Co. v. Att.-Gen., 10 01. & F. 908.
(m) Per Lord Justice Wilraot, Wilmot's Notes, pp. 53, 54, citing Dig. Lib. 33,
tit. 2, §§ 16, 17, De Usu et Usufruct. Legatorum.
(n) 1 Burn, Ecc. Law, 226; Duke, 33, 115; Com. Dig. Chancery, 2 N. 2.
(o) Att.-Gen. v. Bowyer, 3 Ves. 714.
492 EQUITY JURISPRUDENCE. [CH. XXXI.

which might make it void at law, it will be held good in equity (p). So,
where a devise was to the poor generally, the court decreed it to be
executed in favour of three public charities in London (g). So, a legacy
towards establishing a bishop in America, was held good although none
was yet appointed (r). So, where a bequest of £1,000 was " to the Jews'
Poor, Mile End," and there were two charitable institutions for Jews
at Mile End, it not appearing which of the charities was meant, the
court held, that the fund ought to be applied, cy-prea, and divided the
bequest between the two institutions («).
§ 1170a. And where a oharity is so given that there can be no
objects, the court will order a new scheme to execute it. But in all
cases regard must be had to the intention of the founder as originally
expressed, and due provisions made for the performance of his
wishes (t). And if objects may, though they do not at present, exist,
the court will keep the fund for the contemplated scheme (m). And
when the specified objects cease to exist, the court wiU remodel the
charity (x). Thus, where there was a bequest of the residue of the
testator's estate to a company, to apply the interest of a moiety
" unto the redemption of British slaves in Turkey or Barbary," one-
fourth to charity schools in London and its suburbs, and one- fourth
towards necessitated freemen of the company ; there being no British
slaves in Turkey or Barbary to redeem, the court directed a master
to approve of a new scheme cy-pres ; and in that case, it further
approved a scheme under which, after reserving a fund to redeem
British slaves in Turkey or Barbary, other charities named by the
testator were augmented (y). But on the matter finally coming
before the court, the scheme was so far modified that one only of the
charities, and that in a modified form, shared in the surplus (z).
Where the charitable gift is of a legacy, and there is a residuary gift,
upon failure of the charitable object in the lifetime of the testator there
is a lapse, and consequently no place for the application of the fund
cy-pres (a).

(p) Anon., 1 Ch. Cas. 267; Att.-Gen. v. Piatt, Eep. temp. Finch, 221; In re
Maquire, L. E. 9 Bq. 632; In re Faraker, Faraker v. Durell, [1912] 2 Ch. 488.
(q) Att.-Gen. v. Peacock, Eep. temp. Finch, 245; Owens v. Bean, ibid. 395;
Att.-Gen. v. Syderfin, 1 Vern. 224; B.C. 7 Ves. 48 n. ; Clifford v. Francis, 1 Freem,
330.
ir) Att.-Gen. v. Bishop of Chester, 1 Bro. C. G. 444.
(s) Bennett v. Hayter, 2 Beav. 81.
(t) Ironmongers' Co. v. Att.-Gen., 10 CI. & F. 908; In re Lambeth Charities,
22 L. J. Ch. 959; In re Church Estate Charity, Wandsworth, L. E. 6 Ch. 296.
(u) Att.-Gen. v. Oglander, 3 Bro. C. C. 166. For a case where the court after a
new scheme had been reformed refused to change it for one identical with the original
purpose of the charity, see Att.-Gen. v. Stewart, L. E. 14 Eq. 17.
(x) Att.-Gen. v. City of London, 3 Bro. C. C. 171 ; s.c. 1 Ves. Jun. 243.
(y) Att.-Gen. v. Ironmongers' Co., 2 M. & K. 676.
(2) Ironmongers' Co. v. Att.-Gen., 10 CI. & F. 908.
(a) In re Rymer, Rymer v. Stanfield, [1895] 1 Ch. 19.
§ 1170a— 1172.] CHARITIES. 493

§ 1171. In further aid of charities, the court will supply all

defects of conveyances, where the donor hath a capacity, and a
disposable estate, and his mode of donation does not contravene
the provisions of any statute (6). The doctrine is laid down with great
accuracy by Duke, who says that a disposition of lands, &c., to
charitable uses is good, " albeit there be defect in the deed, or in
the will, by which they were first created and raised; either in the
party trusted with the use, where he is misnamed, or the like; or
in the party or parties for whose use, or that are to have the benefit
of the use ; or where they are not well named, or the like ; or in the
execution of the estate, as where livery of seisin or attornment is
wanting, or the like. And, therefore, if a copyholder doth dispose
of copyhold land to a charitable use without a surrender; or a tenant
in tail convey land to a charitable use without a fine ; or a reversion
without attornment or insolvency; and in divers such like cases, &c.,
this statute shall supply all the defects of assurance ; for these are
good appointments within the statute " (o). But a parol devise to
charity out of lands being defective as a will, which is a manner of
conveyance, which the testator intended to pass it by, can have no
effect, as an appointment which he did not intend {d). Yet it has,
nevertheless, been held, where a married woman, administratrix of
her husband, and entitled to certain personal estates belonging to
him (namely, a chose in. action), afterwards intermarried, and then,
during coverture, made a will, disposing of that estate, partly to his
heirs, and partly to charity, that the bequest, although void at law,
was good as an appointment under the statute of Elizabeth, for this
reason ; ' ' that the goods in the hands of administrators are all for
charitable uses ; and the ofiice of the ordinary, and of the administrator,
is, to employ them to pious uses; and the kindred and children have
no property nor pre-eminence but under the title of charity " (e).
§ 1172. With the same view, the Court of Chancery was, in
former times, most astute to find out grounds to sustain charitable
bequests. Thus, an appointment to charitable uses under a will,
that was precedent to the statute of Elizabeth, and so was utterly
void, was held to be made good by the statute (/). So, a devise,
which was not within the statute, was nevertheless decreed as a

(b) Case of Christ's College, 1 W. Bl. 90; Att.-aen. v. Rye, 2 Vem. 453, and
Baithby's notes; Mills v. Fanner, 1 Meriv. 55; Att.-Gen. v. Bowyer, 3 "Ves. Jun.
714; Incorporated Society v. Richards, 1 Dru. & War. 268.
(c) Duke on Charit. Uses, 84, 85 ; Bridgman on Duke on Charit. Uses, 355 ;
Christ's Hospital v Hawes, Bridgman on Duke on Charit. Uses, 371 ; 1 Burn's Eccl.
Liaw, 226; Tujfnel v. Page, 2 Atk. 37; Att.-Gen. v. Rye, 2 Vem. 453; and Eaithby's
notes; Incorporated Society v. Richards, 1 Dru. & War. 258.
(d) Jenner v. Harper, Free. Ch. 389; 1 Burn's Bccl. Law, 226.
(e) Damus's Case, Moore, 822. And see Att.-Gen. v. Syderfin, cited and explained
7 Ves., at p. 43 n.
(/) Smith v. Stowell, 1 Ch. Gas. 195; ColUson's Case, Hob. 136.
494 EQUITY JDEISPEUDENCE. [CH. XXXI

charity, and governed in a manner wholly different from that con-

templated bythe testator, although there was nothing unlawful in
his intent; the Lord Chancellor giving as his reason, Summa est
ratio qucB pro religione fwcit. So, where the charity was for a weekly
sermon to be preached by a person to be chosen by the greatest part
of the best inhabitants of the parish, it was treated as a wild direction ;
and a decree was made, that the bequests should be to maintain a
catechist in the parish, to be approved by the Bishop {g).
§ 1173. So, although the statute of wills of Henry VIII. did not
allow devises of lands to corporations to be good, yet such devises to
corporations for charitable uses were held good, as appointments
under the statute of Elizabeth (/i). Lord Chancellor Cowper, in a case
where he was called upon to declare a charitable bequest valid, not-
withstanding the will was not executed according to the statute of
Frauds, and in which these cases were cited, observed : "I shall be
very loth to break in upon the statute of frauds and perjuries in this
case, as there are no instances where men are so easily imiposed upon,
as thet time of their dying, under the pretence of charity." — " It is
true, the charity of judges has carried several cases on the statute
of Elizabeth to great lengths ; and this occasioned the distinction
between operating by will and by appointment, which, surely, the
makers of that statute never contemplated " {i).
§ 1174. It has been already intimated, that the disposition of
modern judges has been to curb this excessive latitude of construction,
assumed by the Court of Chancery in early times. But, however
strange some of the doctrines already stated may seem to us, as they
have seemed to Lord Bldon ; yet they cannot now be shaken without
doing that (as he has said), in efEect, which no judge will avowedly
take upon himself to do, to reverse decisions that have been acted
upon for centuries (k).
§ 1175. A charity must be accepted upon the same terms upon
which it is given, or it must be relinquished to the right heir; for
it cajinot be altered by any new agreement between the heir of the
donor and the donees (J). And where several distinct charities are
given to a parish for several purposes, no agreement of the parishioners
can alter or divert them to any other uses (t7?).
§ 1176. The doctrine of cy-pres, as applied to charities, was
formerly pushed to a most extravagant length. But this sensible
distinction now prevails, that the court will not decree the execution

ig) Att.-Gen. v. Com.be, 2 Ch. Cas. 18.

(h) Griffith Flood's Case, Hob. 136.
(i) Att.-Gen. V. Bains, Free. Ch. 271. And see Addington v. Cann, 3 Atk. 141.
(k) Moggridge v. Thackwell, 7 Ves. 36, 87.
,(l) Att.-Gen. v. Piatt, Eep. temp. Finch 221; Att.-Gen. v. Margaret d Regius
Professors, Cambridge, 1 Vem. 55.
(m) Man v. Ballet, 1 Vern. 43, 1 Eq. Abr. 99, pi. 4; and see Att.-Gen. v.
1 Atk. 356 ; Ambler 373.
§ 1173—1179.] CHARITIES. 495

of the trust of a charity in a manner different from that intended,

except so far as it is seen that the intention cannot be literally
executed. In that case another mode will be adopted, consistent with
the general intention; so as to execute it, although not in mode, yet
in substance. If the mode should become by subsequent circumstances
impossible, the general object is not to be defeated, if it can in any
other way be attained. "Where there are no objects remaining to
take the benefit of a charitable corporation, the court will dispose
of its revenues by a new scheme, upon the principle of the original
charities, cy-pres (n). A new scheme will not, however, be ordered,
if the institution is a permanent one, and the object of the testator
was to benefit that institution generally, although the particular trustee
named may have died in the lifetime of the testator; but the legacy
will be ordered to be paid over to the proper officer of the
institution (o).
§ 1177. The general rule is, that, if lands are given in trust for
any charitable uses, which the donor contemplates to last for ever,
the heir never oan have the land back again (p). But if it should
become impracticable to execute the charity as expressed, another
similar charity will be substituted (g).
§ 1178. When the increased revenues of a charity are not
exhausted by the original objects, the general rule as to the applica-
tion of such increased revenues is, that they are not a resulting trust
for the heirs-at-law ; but they are to be applied to similar charitable
purp'oses and to the augmentation of the benefits of the charity (r).
But there must be distinguished those cases in which the donor has
manifested a desire to benefit a particular individual, but has burdened
his gift with charges in favour of a charity; in this case the charity
is not entitled to share in the increased revenue (s).
§ 1179. In former times, the disposition of chancery to assist
charities was so strong, that in equity the assets of the testator were
held bound to satisfy charitable uses before debts or legacies ; although
at law the assets were held bound to satisfy debts before charities.
But, even at law, charities were then preferred to other legacies (<).
And this, indeed, was in conform.ity to the civil law, by which
charitable legacies are preferred to all others. This doctrine, however,
is now altered; and charitable legacies, in case of a deficiency of
assets, abate in proportion, as well as other pecuniary legacies (u).

(n) Ironmonger's Co. v. Att.-Gen., 10 CI. & F. 908.

(o) Walsh V. Gladstone, 1 Phill. 290.
(p) Att.-Gen. v. Bowyer, 3 Ves. 714.
{q) In re Latymer's Charity, L. E. 7 Bq. 353.
(r) Att.-Gen. v. Wax Chandlers' Co., L. E. 6 H. L. 1.
is) Att.-Gen. v. Dean and Chapter of Windsor, 8 H. L. C. 369.
(t) High on Mortm. 67; Swinb. on Wilk, Pt. 1, § 16, p. 72.
(m) Fielding v. Bound, 1 Vem. 240, and Eaithby's note (2).
496 EQUITY JUEISPEUDBNCE. [CH. XXXI.

§ 1180. Courts of equity declined to marshal the testator's assets,

in favour of any charitable bequests given out of a mixed fund of real
and personal estate, without any distinction whether the real estate
were freehold or leasehold estate, or pure personal estate, or mixed
personal estate, and whether these bequests have been particular,
or residuary, by refusing to direct the debts and other legacies to
be paid out of the real estate, and reserving the personal to fulfil
the charity, although the charity would be void as to the real estate (x).
But this has been overridden by the Mortmain and Charitable Uses
Act, 1891 (64 & 56 Vict. c. 73), which empowers charities to take
land by devise, or money directed to be laid out in land, subject only
to the obligation to convert or retain in money the subject-matter of
the gift.
§ 1181. It has been already stated that charitable bequests are not
void on account of any uncertainty as to the persons or as to the
objects to which they are to be applied. Almost all the cases on
this subject have been collected, compared, and commented on by
Lord Eldon, with his usual diligence and ability, in two decisions.
The result of these decisions is, that, if the testator has manifested
a general intention to give to charity, the failure of the particular
mode, by which the charity is to be effected, will not destroy the
charity. For. the substantial intention being charity, equity will
substitute another mode of devoting the property to charitable pur-
poses, although the formal intention, as to the mode, cannot be
accomplished (y). The same principle is applied when the persons or
objects of the charity are uncertain, or indefinite, if the predominant
intention of the testator is still to devote the property to charity (z).
Thus where there was a bequest to " The Home for the Homeless,"
27, Red Lion Square, London, and no such institution could be found,
it was held that the gift was charitable, and did not fail (a). Upon
a similar principle depends the disposition of increased revenue of
funds devoted to specified objects of charity (b).
§ 1182. All these doctrines proceed upon the same ground, that is,
the duty of the court to effectuate the general intention of the
testator. And, accordingly, the application of them ceases whenever
such general intention is not to be found. If, therefore, it is clearly
seen that the testator had but one particular object in his mind, as,
for example, to build a church if another will find the land, or to
purchase a presentation to a particular school, and that purpose

(x) In re Somers Cocks, Wegg Prosser v. Wegg Prosser, [1895] 2 Ch. 449.
(y) Moggridge v. Thackwell, 7 Yes. 36; Mills v. Farmer, 1 Mer. 55, a.c. 19 Ves.
483.
iz) In re Pyne, Lilley v. Att.-Gen., [1903] 1 Ch. 83; In re Mann, Hardy v.
Att.-Gen., [1903] 1 Ch. 232.
(a) In re Davis, Banner v. HUlyer, [1901] 1 Ch. 876.
(b) Ante, § § 1167, 1178.
§ 1180—1184.] CHARITIES. 497

cannot be answered, the next of kin will taJie, there being, in such a
case, no general charitable intention (c). Even in the case of gifts
or bequests to superstitious uses which (as we have seen) are not
held to be void, but the funds are applied in chancery to other lawful
objects of charity (d), the professed ground of the doctrine is (though
certainly it is a most extraordinary sort of interpretation of intention)
that the party has indicated a general purpose to devote the property
to charity; and, therefore, although his specified object cannot be
accomplished, yet his general intention of charity is supposed to be
effectuated by a.pplying the funds to other charitable objects. How
courts of equity could arrive at any such conclusion, it is not easy to
perceive, unless, indeed, where the nature of the gift necessarily led
to tihe conclusion, that the object specified was a favourite, though
not an exclusive, object of the donor. To such cases, it has, in
modern times, been practically and justly limited.
§ 1183. Hence it has become a general principle in the law of
charities, that, if the charity be of a general, indefinite, and mere
private nature, or not within the scope of the statute of Elizabeth,
it will be treated as utterly void, and the property will go to the
next of kin. For, in such a case, as the trust is not ascertained, it
must either go as an absolute gift to the individual selected to
distribute it, or that individual must be a trustee for the next of
kin (e). If the testator means to create a trust, and the trust is not
effectually created, or fails, the next of kin must take. On the other
hand, if the party selected to make the distribution is to take it, it
must be upon the ground that the testator did not intend to create
a trust, but to leave it entirely to the discretion of the party to apply
the fund or not. The latter position is repugnant to the very purpose
of the bequest; and, therefore, the interpretation is, that it is the
case of a frustrated and void trust (/). A charitable bequest to an
institution which comes to an end after the death of the testator, but
before the legacy is paid, does not lapse {g).
§ 1184. It has been made a question, whether a court of equity,
sitting in one jurisdiction, can execute any charitable bequests for
foreign objects in another jurisdiction. The established doctrine
seems to be that the English court will protect the property, but will

(c) Cherry v. Mott, 1 Myl. & Cr. 123; In re White's Trusts, 33 Ch. D. 449.
(d) Ante, § 1168.
(e) Morice v. Bishop of Durham, 9 "Vee. 399; 10 Ves. 521 ; Ommanney v. Butcher,
1 Turn. & E. 260; Hunter v. Att.-Qen., [1899] A. C. 809; In re Davidson, Mintz v.
Bourne, [1909] 1 Ch. 567.
if) Morice v. Bishop of Durham, 9 Ves. 399; 10 Ves. 621; Fowler v. Garlike, 1
Euss. & M. 282; Corp. of Beverley v. Att.-Gen., 6 H. L. C. 810; Att.-Gen. v. Dean
and Chapter of Windsor, 8 H. L. C. 369.
(3) In re Slevin, Slevin v. Hepburn, [1891] 2 Ch. 236; In re Davis Hannen v.
Hillyer, [1901] 1 Ch. 876.
E.J. 32
498 EQUITY JURISPRUDENCE. [CH. XXXI.

aot interf&re with the administration of the trust (h). Of course, this
must be understood as subject to the implied exception, that the
objects of the charities are not against the public policy or laws of
the State where they are sought to be enforced, or put into execu-
tion; for no State is under any obligation: to give effect to any acts
of parties which contravene its own policy or laws. Upon this ground,
where a bequest was given by the will of a testator in England, in
trust for certain nunneries in foreign countries, it was held void, and
the Court of Chancery refused to enforce it (z).
§ 1185. But every bequest, which, if it were to be executed- in
England, would be void under its mortmain laws, is not, as a matter
of course, held to be void solely on that accoimt when it is to be
executed in a foreign coimtry. There must be some other ingredient,
making it reprehensible hi point of public policy generally, or bring-
ing it within the reach of the Mortmain Acts. Thus, for example,
money bequeathed by a will to be laid out in lands abroad (as in
Scotland), may be a valid bequest, and executed by an English court
of equity, when money to be laid out in lands in England would
be held a void bequest, as contrary to the Mortmain Acts of
England (k).
§ 1186. Where money is bequeathed to charitable purposes abroad,
which are to be executed by persons within the same territorial
jurisdiction where the court of equity sits, the latter will secure the
fund, and cause the charity to be administered under its own direction.
But, where the charity is to be established abroad, and is to be
executed by persons there, the court not having any jurisdiction to
administer, it will simply order the money to be paid over to the
proper persons in the foreign country, who are selected by the testator
as the instruments of his benevolence ; and will leave it to the foreign
local tribunals to see to its due administration (I).
§ 1187. It is clear, upon principle, that the Court of Chancery,
merely in virtue of its general jurisdiction over trusts, independently
of the special jurisdiction conferred by the statute of 43rd Elizabeth,
oh. 4, must, in many cases, have a right to enforce the due per-
formance of charitable bequests; for (as has been well observed) the
jurisdictiqn of courts of equity, with respect to charitable bequests,
is derived from their general authority to carry into execution the
trusts of a will or other instrument, according to the intention ex-

(h) Att.-Gen. v. Lepine, 2 Swanst. 181; Forbes v. Forbes, 18 Beav. 552; Att..
Gen. V. Sturge, 19 Beav. 597 ; In re Davis' Trust, 61 L. T. 430.
(t) De Garcin v. Lawson, 4 Ves. 433, note. See as to the actual decision Bourne
v. Keane, [1919] A. C.
(fc) OUphant v. Hendrie, 1 Bro. C. C. 571, and Mr. Belt's note; Mackintosh v.
Townsend, 16 Ves. 330.
(!) Emery v. Hill, 1 Eusa. 112; Collyer v. Burnett, Taml. 79; Mitford v. Rey-
nolds, 1Phil. 185 ; Att.-Gen. v. Sturge, 19 Beav. 597 ; In re Fraser, Yates v. Fraser,
22 Ch. D. 827; In re Davis' Trusts, 61 L. T. 430.
§ 1185—1189.] CHARITIES. 499

pressed in that will or instrument (m). We shall presently see that

this is strictly true in all cases where the charity is definite in its
objects, is lawful, and is to be executed and regulated by trustees
who are specially appointed for the purpose (n-). But there are many
cases (as we shall also see) in which the jurisdiction exercised over
charities in England can scarcely be said to belong to the Court of
Chancery, as a court of equity ; and where it is to be treated as a
personal delegation of authority to the Chancellor, or as an act of
the Crown, through the instrumentality of that dignitary (o).
§ 1188. The jurisdiction exercised by tihe Chancellor, under the
statute of 43rd Elizabeth, ch. 4, over charitable uses, was held to be
personal in him, and not exercised in virtue of his ordinary or
extraordinary jurisdiction in chancery; and in this respect it resembled
the jurisdiction exercised by him in cases of idiots and lunatics, which
was exercised purely as the personal delegate of the Crown (p).
Where a commission was issued under that statute, any person,
excepting to the decree of the commissioners, was treated as a plaintiff
in an original cause in chancery, and the respondents as defendants ;
and in the examination of witnesses in the cause, thus brought by
way of appeal before the Chancellor, neither side was bound by what
appeared before the commissioners ; but they might set forth new
matter, if they thought proper. If it were not considered on such
an appeal, as an original cause, the court could know nothing of the
merits; for the evidence before a jury, or before the commissioners
under the commission, was not taken in writing, but was vivd voce;
and therefore it could not be known to the appellate court (g).
§ 1189. But, as the Court of Chancery might also proceed in
many, although not in all, cases of charities by original bill, as well
as by commission under the statute of Elizabeth, the jurisdiction
became mixed in practice; that is to say, the jurisdiction of bringing
informations in the name of the attorney-general was mixed with
the jurisdiction given to the Chancellor by the statute (r). So that
it was not always easy to ascertain in what cases he acted as a
judge administering the common duties of a court of equity, and in
■what cases he acted as a mere delegate of the Crovni, administering its
pecuUar duties and prerogatives. And again, there was a distinction
between cases of charity, where the Chancellor was to act in the Court
of Chancery, and cases where the charity was to be administered by
the king, by his sign-manual. But in practice the cases have often
been confounded from similar causes (s).

(m) Att.-Gen. v. Ironmongers' Co., 2 Myl. & K. 581. (n) Post, § 1191.
(o) Post, § § 1188, 1190.
(p) 3 Black. Comm. 427, 428
(g) Corporation of Burford v. Lenthall, 2 Atk. 552; 3 Black. Comm. 427.
(t) Ibid.
(s) Moggridge v. .Thackwell, 7 "Vee. 83 to 86.
500 EQUITy JUEISPEUDENCE. [CH. XXXI.

§■ 1190. The general doctrine in England is, that the king, as

parens patrise, has a right to guard and enforce all charities of a
public nature, by virtue of his general superintending power over
the public interests, where no other person is intrusted with that
right (t). But there does seem to be some difficulty in accepting the
position advanced by the learned author that vsnherever money is given
to charity generally, and indefinitely, without any trustees pointed
out, who are to administer it, it might be considered as a personal
trust, devolved upon the king, as a constitutional trustee, to be ad-
ministered byhim, for the Crown cannot be a trustee. The delegation
to the Lord Chancellor by sign-msjiual may have been in the nature
of tne endorsement ' ' let right be done ' ' in other cases, where a
petition of right is presented for leave to implead the king in his
own court. That the earlier ground stated by the author is the
correct one, is supported by the cases which establish that the
attorney-general must be made a party to all judicial proceedings for
administering a charity whether by information (m) or by summary
process (a;). In such a case, it is not, ordinarily, very important
whether the Chancellor acts as the special delegate of the Crown, or
the king acts under the sign-manual through his Chancellor guiding
his discretion. In practice, however, it was found very difficult to
distinguish in what cases the one or the other course ought, upon the
strict principles of prerogative, to be adopted. For, vsihere money has
been given to trustees for charity generally, without any objects
selected, the charity has sometimes been administered by the king,
under his sign-manual, and sometimes by the Court of Chancery.
Lord Eldon, after a full review of all the cases, came to the conclusion
(which is now the settled rule) that, where there is a general indefinite
purpose of charity, not fixing itself upon any particular object, the
disposition and administration of it are in the king by his sign-manual.
But where the gift is to trustees, with general objects, or with some
particular objects pointed out, there the Court of Chancery would
take upon itself the administration of the charity, and execute it
under a scheme to be reported by a master (y).
§ 1191. But where a charity is definite in its objects, and lawful
in its creation, and it is to be executed and regulated by trustees,
whether they are private individuals or a corporation ; there, the
administration properly belongs to such trustees; and the king, as
parens patrix, has no general authority to regulate or control the
administration of the funds (a). In all such cases, however, if there be
any abuse or misuse of the funds by the trustees, the court will

(t) 3 Black. Coram. 437; Moggridge v. Thackwell, 7 Ves. 35.

(u) Wellbeloved v. Jones, 1 Sim. & St. 40.
(x) Att.-Qen. v. Earl of Stamford, 1 Phil. 737.
iy) Moggridge v. Thackwell, 7 Vea. 36.
(z) Walsh V. Gladstone, 1 Ph. 29; In re Lea, Lea v. Cooke, 84 Oh. D. 528.
§ 1190— 1192b.] CHARITIES. 601

interpose, at the instance of the attorney-general, or the parties in

interest, to correct such abuse or misuse of the funds. But, in such
cases, the interposition of the court is properly referable to its general
jurisdiction, as a court of equity, to prevent abuse of a trust, and not
to any original right to direct the management of a charity, or the
conduct of the trustees (a.). Indeed, if the trustees of the charity
should grossly abuse their trust, a court of equity may go the length of
taking it away from them, and commit the administration of the
charity to other hands (b). But this is no more than the court will do,
in proper cases, for any gross abuse of other trusts.
§ 1191a. Some doctrines on the subject of what constitutes such
an abuse or misuse of charitable trusts, and especially of trusts of a
religious nature, by trustees, are of such deep interest and
general application that they seem to require a brief notice in this
place. Where property is devoted to religious purposes, it is not
competent for the trustees to depart from the actual or presumed
intention of the donors that the religious doctrines which they them-
selves professed should be taught (c), and where the trust instrument
is silent upon the subject, it is provided by section 2 of 7 & 8 Vict.
c. 5, that in the case of protestant Dissenters, twenty-five years'
continuous usage immediately preceding the suit is tO' be deemed
conclusive evidence on the question. It is no cause for the removal
of a trustee that he does not profess the religious belief or doctrine
taught (d).
§ 1192. It seems, that, with a view to encourage the discovery of
charitable donations, given for indefinite purposes, it is the practice for
the Crown to reward the persons who make the communication if they
can bring themselves within the scope of the charity, by giving them
a part of the fund ; and the like practice, whether well or ill founded,
takes place, also, in relation to escheats (e).
§ 1192a. A contingent gift over from one charity to another is not
affected by the rule against perpetuities (/). But a contingent gift over
to an individual is so affected (g). The interest of a charity in an original
gift of land must arise within the limits of the rule (h).
§ 1192b. It seems, that the Statute of Limitations, and the bar
from lapse of time, will not be allowed to prevail in cases of charitable

(a) Att..Gen. v. Heelis, 2 Sim. & St. 67 ; Att.-Gen. v. Mayor of Exeter, 2 Euss.
363; Att.-Gen. v. St. John's Hospital, 2 De G. J. & S. 621.
(b) Drummond v. Att.-Gen. (Ireland), 2 H. L. C. 837.
(c) Att.-Gen. v. Pearson, 3 Mer. 353; Shore v. Wilson, 9 CI. & P. 353; General
Assembly of Free Church of Scotland v. Lord Overtown, [1904] A. C. 515. See In re
Perry's Almshouses, [1899] 1 Ch. 21.
(d) Att.-Gen. v. Clifton, 32 Beav. 596; Att.-Gen. v. St. John's Hospital, Bath,
32 Beav. 696.
(e) Per Tjord BIdon, in Mongridge v. Thackwell, 7 Ves. 36, 71.
(/) Christ's Hospital v. Grainger, 1 Mac. & G. 460.
ig) In re Bower, Lloyd Phillips v. Davis, [1893] 2 Ch. 491.
(h) Worthing Corporation v. Heather, [1906] 2 Ch. 632.
502 EQUITY JURISPRUDENCE. [CH. XXXI.

trusts, in the same manner as it would in cases of mere private trusts.

Thus, in the case of a charitable trust, where a corporation had pur-
chased with notice of the trust, and had held the property under an
adverse title for one hundred and fifty years, it was decided that the
corporation should reconvey the property upon the original trusts (i).
§ 1193. These are the principal doctrines and decisions, under the
statute of Elizabeth, respecting charitable uses, which it seems most
important to bring in review before the learned reader. It may not
be useless to add, that the Statute of Mortmain and Charities, of the
9 Geo. 2, c. 36, very materially narrowed the extent and operation of
the statute of Elizabeth ; and formed a permanent barrier against what
the statute declared to be a "public mischief," which " had of late
greatly increased, by many large and improvident alienations or dis-
positions, made by languishing and dying persons, or others, to uses
called charitable uses, to take place after their deaths, to the disherison
of their lawful heirs.-" This was compassed by a prohibition of all
alienations of land except by deed executed by the donor twelve months
before his death and enrolled. Many statutes were subsequently passed
limiting the operation of the statute in favour of certain objects, but the
principal Act was repealed by the Mortmain and Charitable Uses Act,
1887 (51 & 52 Vict. c. 42). The whole question is now regulated by the
Act of 1888 and the Mortmain and Charitable Uses Act, 1891 (54 & 55
Vict. c. 73), which applies to the wills of testators dying after the pass-
ing of the Act. Stated shortly an alienation of land inter vivos, unless
upon a sale, must be by deed executed in the presence of two witnesses
twelve months before the death of the assuror, including in those twelve
months the days of the making of the assurance and of the death and
enrolled in the Central Office of the Supreme Court of Judicature within
six months after the execution thereof. If the uses are declared by a
separate instrument, the separate instrument must be so enrolled within
six months after the making of the assurance of the land. Personal
estate being stock in the public funds, if directed to be laid out in the
purchase of land for charity, must be transferred in the public books at
least six months before the death of the assuror, including in those six
months the days of the transfer and of the death. Other personal estate,
if directed to be laid out in the purchase of land for charity, must be
assured with same formalities as if the subject-matter were land. As
regards gifts by will, land may now be assured by will subject to a
liability to convert into money within twelve months or such extended
time as the Charity Commissioners or the Court may allow, and money
directed to be laid out in the purchase of land for charity is discharged
from this liability. The Court or the Charity Commissioners may sanc-
tion the retention of land " for actual occupation for the purposes of the
charity and not as an investment." Gifts to the universities of Oxford,

(t) Att.-Gen. v. Christ's Hospital, 3 Myl. & K. 344.

§ 1193.] CHARITIES. 603

Cambridge, London, Durham, and the Victoria and the colleges thereof,
or any of the colleges of Eton, Winchester, Westminster, and Keble
College, are exempted entirely from the operation of the Act. Gifts of
land for a public park (limited to twenty acres if by will), a school-house
for an elementary school, or for a public museum require enrolment in
the books of the Charity Commissioners, within six months after the
execution of the deed, or within six months aiter the death of the
testator in the case of a will.
504 EQUITY JURISPRUDENCE. [CH. XXXII.

CHAPTER XXXII.
IMPLIED TRUSTS.

§ 1195. We have now, in pursuance of the plan already laid down,

gone over some of the most important branches of Express Trusts (a),
and shall next proceed to the consideration of some of the more usual
cases of Implied Trusts, including therein cases of constructive and
resulting trusts. Implied Trusts may be divided into two general
classes : first, those which stand upon the presumed intention of the
parties ; secondly, those which are independent of any such intention,
and are forced upon the conscience of the party by operation of law ;
as, for example, in cases of meditated fraud, imposition, notice of an
adverse equity, and other cases of a similar nature. It has been said
to be a general rule that the law never implies, and a court of equity
never presumes, a trust, except in case of absolute necessity (b). Per-
haps this is stating the doctrine a little too strongly. The more correct
exposition of the general rule would seem to be, that a trust is never
presumed or implied, as intended by the parties, unless, taking all the
circumstances together, that is the fair and reasonable interpretation
of their acts and transactions (c).
§ 1196. And, first, let us consider such implied trusts as are founded
in the supposed intention of the parties. The most simple form, perhaps,
in which such an implied trust can be presented, is that of money, or
other property, delivered by one person to another, to be by the latter
paid or delivered over to and for the benefit of a third person. In such
a case (as we have seen) (d) the party so receiving the money, or other
property, holds it upon a trust; a trust necessarily implied from the
nature of the transaction, in favour of such beneficiary, although no
express agreement has been entered into, to that effect (e). But even
here, the trust is not, under all circumstances, absolute ; for if the trust
is purely voluntary, and without any consideration, and the beneficiary
has not become a party to it, by his express assent after notice of it,
it is revocable ; and if revoked, then the original trust is gone, and an
implied trust results in favour of the party who originally created it (/).

(a) Ante, § § 980 to 982.

(b) Lord Nottingham, Cook v. Fountain, 3 Swanst. 591, 592.
(c) Fordyce v. Willis, 3 Bro. C. C. 577 ; Cocks v. Smith, 2 L. J. N. S. Ch. 205.
(d) Ante, § 1041.
(e) Com. Dig. Chancery, 4 W. 5.
(/) Priddy v. Rose, 3 Meriv. 102; Page v. Broom, 4 Euas. 6; Wallwyn v. Coutts,
§ 1195 — 1198.] IMPLIED TRUSTS. 505

§ 1196a. Another form in which a resulting trust may appear, is

where there are certain trusts created either by will or deed, which fail
in whole or in part ; or which are of such an indefinite nature that courts
of equity will not carry them into effect; or which are illegal in their
nature and character ; or which are fully executed, and yet leave an un-
exhausted residuum. In all such cases, there will arise a resulting trust
to the party creating the trusts, or to his heirs and legal representatives,
as the case may require (g).
§ 1196b. But it was early held, in a case where the subject is very
extensively discussed by eminent judges, Lord Mansfield dissenting
from the decision (h), that where the trusts had all failed, by the decease
of the cestui que trust, and the grantor was also deceased, without heirs,
making a case for an escheat to the Crown, or lord of the manor, if the
legal title had remained in the grantor, a court of equity had^no power
to compel the trustee to convey the estat-e to the Crown, in order to
perfect the right of escheat. This virtually, or rather practically (for
the point was expressly left undecided), established the right of the
trustee to hold the land. In consequence, probably, of the great weight
of Lord Mansfield's authority in the opposite direction, the question was
regarded, by the profession in Westminster Hall, for a long time, as
hanging in chibio. But subsequent decisions of very eminent judges,
finally confirmed the doctrine of the principal case in favour of the claim
of the Crown (i). Lord Mansfield's view has since been established by
statute by the Intestate Estates Act, 1884 (47 & 48 Vict. c. 71), s. 4 (k).
§ 1197. Another common transaction, which gives rise to the pre-
sumption ofan implied resulting use or trust, is, where a conveyance
is made of land or other property without any consideration, express
or implied, of any distinct use or trust stated. In such a case, the
intent is presumed to be, that it shall be held by the grantee for the
benefit of the grantor, as a resulting trust (I). But if there be an
express declaration, that it is to be in trust, or for the use of another
person, nothing will be presumed against such a declaration. And if
there be either a good or a valuable consideration, there equity will
immediately raise a use or trust correspondent to such consideration (m),
in the absence of any controlling consideration or other circumstances.
§ .1198. This is in strict conformity to the rule of the common law,
applied to resulting uses, which indeed were originally nothing but

3 Meriv. 707; s.c. 3 Sim. 14; GarraTd v. Lord Lauderdale, 8 Sim. 1; s.c. 2 Eusb. &
Myl. 451 ; Leman v. Whitely, 4 Euse. 427.
(g) Stubbs V. Sargon, 2 Keen 255 ; s.c. 3 Myl. & Cr. 507 ; Corporation of Glouces-
ter V. Osborn, 1 H. L. C. 272 ; In re Abbott Fund, Smith v. Abbott, [1900] 2 Ch. 326.
(h) Burgess v. Wheate, 1 W. Bl. 133; s.c. 1 Eden Ch. 177.
(i)
(fc) Cox'v.
See In Parker,
re Wood,22 Att.-Gen.
Beav. 168.v. Anderson, [1896] 2 Ch. 596.
(/) Dyer v. Dyer, 2 Cox, 92; Grey v. Grey, 2 Swanst. 694; Christy v. Courtenay,
13 Beav. 96 ; In re Orme, 50 L. T. 51 ; The Venture, [1908] P. 218.
(m) See post, § 1199.
506 EQUITY JURISPRUDENCE. [CH. XXXII.

resulting trusts. Thus a feoSment, made without consideration, was,

at a very early period of the common law, held to be made for the use
of the feoffor (n). Lord Bacon, after repudiating a distinction set up in
Dyer, 146 fc, assigning the origin of this doctrine to the time of the statute
quia emptores, said: " The intendment of an use to the feoffor, where
the feoffment was made without consideration, grew long after when
uses waxed general ; and for this reason : because, when feoffments were
made, it grew doubtful whether the estates were in use or in purchase,
because purchases were things notorious, and uses were things secret.
The Chancellor thought it more convenient to put the purchaser to prove
his consideration, than the feoffor and his heirs to prove the trust; and
so made the intendments towards the use, and put the proof upon the
purchaser " (o). Be the origin of the doctrine, however, as it may, it
is firmly established in equity jurisprudence in matters of trust. And
it is not in any manner affected by the provisions of the Statute of
Frauds of 29 Car. 2, c. 3; for that statute contains an express exception
of trusts ' ' which shall or may arise or result by the implication or con-
struction, of law, or be transferred or extinguished by an act or
operation of law" (p).
§ 1199. The same principle applies to cases where a man makes
a feoffment, or other conveyance, and parts with or limits a particular
estate only, and leaves the residue undisposed of. In such a case the
residue will result to the use of the feoffor or grantor, even though the
feoffment or conveyance be made for a consideration. For it is the
intent which guides the use ; and, here, the party having expressly
declared a particular estate of the use, the presumption is, that if he
had intended to part with the residue, he would have declared that in-
tention also (g). Where a consideration, although purely nominal, is
stated in the deed, the cases fall under two categories. If no uses are
declared, the grantee will take the whole use ; and there will be no
resulting use for the grantor ; because the payment, even of a nominal
consideration, shows an intent, that the grantee should have some use ;
and no other being specified, he must take the whole use (r). But,
where a particular use is declared, there the undisposed of interest in
the use results to the grantor; for the presumption, that the grantor
meant to part with the whole use, is thereby repelled (s).

(n) 2 Black. Comm. 330; Dyer v. Dyer, 2 Cox 92, 93; post, § 1201.
(o) Bacon on Uses, 317.
(p) Co. Litt. 290 b, Butler's note, § 8; Bac. Abr. Trusts (C) ; Lamplugh v. Lamp-
lugh, 1 P. Will. 112, 113.
(9) Co. Litt. 23; Shortridge v. Lamplugh,_2 Ld. Eaym. 798; Fybus v. Mitford,
1 Vent. 372; Benbow v. Townsend, 1 Myl. & K. 506.
(r) Barker v. Keete, Freeni. K. B. 24, adopting argument in Porter's Case, 1 Co.
fo. 24.
(s) As the doctrine of resulting uses and trusts is founded upon a mere implica-
tion of law, it may be proper here to observe, that parol evidence i« generally admis-
sible for the purpose of rebutting such resulting use or trust. Benbow v. Townsend,
1 Myl. & K. S96 ; post, § 1202.
§ 1199—1202.] IMPLIED TRUSTS. 507

§ 1200. The same principle applies to cases where the whole of the
interest in land or personalty is conveyed or given by will, but for parti-
cular objects and purposes, or on particular trusts. In all such cases,
if those objects or purposes or trusts, by accident or otherwise, fail, and
do not take effect; or, if they are all accomplished, and do not exhaust
the whole property; there, a resulting trust will arise, for the benefit of
the grantor or testator or for his heir or next of kin (t).
§ 1201. Upon similar grounds, where a man buys land in the name
of another, and pays the consideration money, the land will generally
be held by the grantee in trust for the person who so pays the considera-
tion money (w). This, as an established doctrine, is now not open to
controversy. But there are exceptions to it, which stand upon peculiar
reasons (to be presently noticed), and which are quite consistent with
the general doctrine. " The clear result of all the cases, without a single
exception, is " (as has been well said by an eminent judge), " that the
trust of a legal estate, whether freehold, copyhold, or leasehold ; whether
taken in the names of the purchaser and others jointly, or in the name
of others, without the purchaser; whether in one name or several;
whether jointly or successively (successive), results to the man who
advances the purchase-money. This is a general proposition, supported
by all the cases, and there is nothing to contradict it. And it goes on a
strict analogy to the rule of the common law, that, where a feoffment
is made without consideration, the use results to the feoffor" (x). In
truth, it has its origin in the natural presumption, in the absence of all
rebutting circumstances, that he who supplies the money means the
purchase to be for his own benefit, rather than for that of another; and
that the conveyance in the name of the latter, is a matter of conveni-
ence and arrangement between the parties, for other collateral purposes'.
The same doctrine is applied to cases where securities are taken in the
name of another person. As if A. takes a bond in the name of B., for
a debt due to himself, B. will be a trustee for A. for the money {y).
§ 1201a.. There is an exception to the doctrine of a resulting trust
in favour of a purchaser, who pays the money, and takes the conveyance
in the name of a third person, which stands upon a principle of public
policy, and that is, that courts of equity will never raise a resulting
trust, where it would contravene the provisions of a statute or would
agsist the parties in evading the provisions («).
§ 1202. But there are other exceptions to the doctrine of a resulting
or implied trust, even where the principal has paid the purchase-money,

(t) Tregonwell v. Sydenham, 3 Dow 194 ; Northen v. Carnegie, i Drew 587 ;

Childers v. Ghilders, 1 De G. & J. 482 ; Ramsay v. Shelmerdine, 11 Jur. N. S. 903 ;
In re Abbott Fund, Smith v. Abbott, [1900] 2 Ch. 326.
(u) Rider v. Kidder, 10 Ves. 360.
(x) Lord Chief Baron Byre, in Dyer v. Dyer, 2 Cox 92, 93.
(y) Ebrand v. Dancer, 2 Ch. C. 26 ; s.c. 1 Bq. Abr. 382, pi. 11 ; 2 Mad. Pr. Ch.
101 ; Lloyd v. Read, 1 P. Will. 607 ; Rider v. Kidder, 10 Ves. 366.
\z) Curtis V. Perry, 6 Ves. 739. See The Venture, [1908j P. 218.
508 EQUITY JURISPRUDENCE. [CH. XXXII.

as has been already intimated, or, perhaps, more properly speaking, as

the resulting or implied trust is, in such cases, a mere matter of pre-
sumption, itmay be rebutted by the other circumstances established in
evidence, and even by parol proofs, which satisfactorily contradict it (a).
And resulting or implied trusts in such cases may, in like manner, be
rebutted, as well to part of the land, as to part of the interest in the
land purchased in the name of another (6). Thus, where A. took a mort-
gage in the name of B., declaring that he intended the mortgage to be
for B.'s benefit, and that the principal, after his own death, should be
B.'s; and A. received the interest therefor during his lifetime; it was
held that the mortgage belonged to B. after the death of A. (c). But
a more common case of rebutting the presumption of a trust is, where
the purchase may be fairly deemed to be made for another from motives
of natural love and affection. Thus, for example, if a parent should pur-
chase in the name of a son, the purchase would be deemed, prima facie,
as intended as an advancement; so as to rebut the presumption of a
resulting trust for the parent (d). But this presumption, that it is an
advancement, may be rebutted by evidence manifesting a clear inten-
tion, that the son shall take as a trustee (e).
§ 1203. The moral obligation of a parent to provide for his children
is the foundation of this exception, or rather of this rebutter of a pre-
sumption ;since it is not only natural, but reasonable in the highest
degree, to presume, that a parent, by purchasing in the name of a child,
means a benefit for the latter, in discharge of this moral obligation, and
also as a token of parental affection. This presumption in favour of the
child, being thus founded in natural affection, and moral obligation,
ought not to be frittered away by nice refinements. It is, perhaps,
rather to be lamented, that it has been suffered to be broken in upon
by any sort of evidence of a merely circumstantial nature.
§ 1204. The same doctrine applies to the case of securities taken in
the name of a child. The presumption is, that it is intended as an
advancement, unless the contrary is established in evidence (/). And
the like presumption exists in the case of a purchase by a husband in
the name of his wife, and of securities taken in her name (g). Indeed,
the presumption was stronger in the case of a wife than of a child ; for
she could not formerly be the trustee for her husband.
1205. Hence, also, it is, that where a purchase is made by a father
in the joint names of himself and of a child, if the father dies, the child

(o) Dyer v. Dyer, 2 Cox 92 ; Deacon v. Colquhoun, 2 Drew. 21.

(6) Benbow v. Townsend, 1 Myl. & K. 506.
(c) Ibid.
(d) Dyer v. Dyer, 2 Cox 92; Comminsioner of Stamp Duties v. Byrnes, [1911]
A. C. 386.
(el Childers v. Ghilders, 1 De G. & J. 482; Curtis v. Worthington, 1 Ch. D. 419.
(/) Scaioin v. Scawin, 1 Y. & C. Ch. 65 ; Christy v. Courtenay, 13 Beav. 92 ; Stock
V. McAvoy, L. B. 15 Bq. 56.
ig) Dunbar v. Dunbar, [1909] 2 Ch. 369.
§ 1203—1206.] IMPLIED TRUSTS. 609

will hold the estate, and have the benefit thereof by survivorship against
the heir-at-law of the father, and against all volunteers, claiming under
the father, and also against purchasers from him with notice (h). So,
where a father transferred stock from his own name into the joint names
of his son, and of a person whom the father and son employed as their
banker to receive dividends, and the father told the banker to carry the
dividends, as they were received, to the son's account, and they were
accordingly received and enjoyed by the son during his father's lifetime ;
it was held, that the transfer created an executive trust for the son, and
that he was absolutely entitled to the stock (i).
§ 1206. In the case of joint purchases made by two persons, who
advance and pay the purchase-money in equal proportions and take
a conveyance to them and their heirs, it constitutes a joint tenancy,
that is, a purchase by them jointly of the chance of survivorship ; and
of course the survivor will take the whole estate. This is the rule at
law ; and it prevails also in equity under the same circumstances ; for
unless there are controlling t3ircumstances, equity follows the law (k).
But, wherever such circumstances occur, courts of equity will lay hold
of them to prevent a survivorship and create a trust; for joint tenancy
is not favoured in equity (I). Thus if a joint purchase is made in the
name of one of the purchasers, and the other pays or secures his share
of the purchase-money, he will be entitled to his share as a resulting
trust (m). So, if two persons advance a sum of money by way of mort-
gage, and take a mortgage to them jointly, and one of them dies, the
survivor shall not have the whole money due on the mortgage, but the
representative of the deceased party shall have his proportion as a trust;
for the nature of the transaction, as a loan of money, repels the pre-
sumption of an intention to hold the mortgage as a joint tenancy (n).
So, if two persons jointly purchase an estate, and pay unequal propor-
tions of the purchase-money, and take the conveyance in their joint
names, in case of the death of either of them there will be no survivor-
ship for
; the very circumstance that they have paid the money in un-
equal proportions excludes any presumption that they intended to bar-
gain for the chance of survivorship. They are, therefore, deemed to
purchase, as in the nature of partners, and to intend to hold the estate
in proportion to the sums which each has advanced (o).

(h) Dyer w. Dyer, 2 Cox, 92; Hepworth v. Hepworth, L. E. 11 Eq. 10. Mr.
Atherley, in his Treatise on Marriage Settlements, ch. 33, pp. 473 to 484, and Mr.
Sugden, in his Treatise on Vendors and Purchasers, ch. 15, § 1, 2, pp. 607 to 628 (7th
edit.), have examined this whole subject with great care and ability; and the learned
reader is referred to these works for a full statement of the doctrines and the cases.
(i) Crabb v. Grabb, 1 Myl. & K. 511.
(k) Lake v. Gibson, 1 Eq. Cas. Ab. 890, pi. 3, s.c. nam. Lake v. Craddock, S
P. Wms. 158 ; Robinson v. Preston, 4 Kay, & J. 505.
(/) Harrison v. Barton, IJ. & H. 287; Mercier v. Mercier, [1903] 2 Ch. 98.
(m) Wray v. Steele, 2 Ves. & B. 388.
(n) Rigden v. Vallier, 2 Ves. Sen. 258; s.c. 3 Atk. 731.
(o) Lake v. Gibson, 1 Eq. Cas. Ab. 390, pi. 3; Lake v. Craddock, 3 P. Wms. 158.
510 EQUITY JURISPRUDENCE. [CH. XXXII.

§ 1207. The same rule is uniformly applied to joint purchasers in

the way of trade, and for the purposes of partnership, and for other
commercial transactions, by analogy to, and in expansion and further-
ance of, the great maxim of the common law : ' ' Jus accrescendi inter
mercatores pro beneficio commercii locum non habet" (p). In cases,
therefore, where real estate is purchased for partnership purposes, and
on partnership account, it is wholly immaterial in the view of a court
of equity, in whose name or names the purchase is made, and the con-
veyance is taken; whether in the name of one partner, or of all the
partners, whether in the name of a stranger alone, or of a stranger
jointly with one, partner. In all these cases, let the legal title be vested
in whom it may (g), it is in equity deemed partnership property, not
subject to survivorship; and the partners are deemed the cestuis que
trust thereof (r). A court of law may, nay must, in general, view it only
according to the state of the legal title. And if the legal title is vested
in one partner, or in a stranger, a bond fide purchaser of real estate from
him, having no notice, either express or constructive, of its being part-
nership property, will be entitled to hold it free from any claim of the
partnership. But if he has such notice, then in equity he is clearly
bound by the trust; and he takes it cum onere, exactly like every other
purchaser of a trust estate (s).
§ 12r07a. But although, generally speaking, whatever is purchased
with partnership property, to be used for partnership purposes, is thus
.treated as a trust for the partnership, in whosesoever name the purchase
may be made ; yet there may be cases in which, from the nature of the
thing purchased, the partner in whose name it is purchased may, upon
a dissolution of the partnership, be entitled to hold it as his own, so that
it wiU be trust property sub modo only. Thus, for example, an office
may be purchased, or a licence be obtained in the name of a partner
out of the partnership funds (as, for example, a stockbroker's licence,
or the office of a clerk in court), to be used during the continuance of
the partnership for partnership purposes, by the person obtaining the
same. But it will not follow, that, upon the dissolution of the partner-
,ship, such partner is tohold the same, and act as a stockbroker, or clerk
in court, performing all the duties alone for the benefit of the other
partners (t).
§ 1208. Another illustration of the doctrine of implied and resulting
trusts arises from the appointment of an executor of a last will and testa-
ment. In cases of such an appointment the executor was entitled, both
at law and in equity (for in this respect equity followed the law), to the
whole surplus of the personal estate, after payment of all debts and

(p) Co. Litt. 182a.

(g) See Maugham v. Sharpe, 17 C. B. N. S. 443.
(r) Wray v. Wray, [1905] 2 Ch. 359.
(s) Ante, § 675; post, § § 1243, 1253.
(t) Clarke v. Richards, 1 Y. & C. Ex. 351, 384, 385.
§ 1207—1211.] IMPLIED TRUSTS. 511

charges, for his own benefit, unless it was otherwise disposed of by the
testator (u). Courts of equity did indeed lay hold of any circumstances
which might rebut the presumption of such a gift to the executor; and
some very nice and curious distinctions were taken, in order to escape
from the operation of the general rule. In general, it may be stated,
that, at law, the appointment of an executor vested in him all the per-
sonal estate of the testator; and the surplus, after the payment of all
debts and legacies, and residue so far as disposed of, belonged to him.
But, in equity, if it could be collected from any circumstance or expres-
sion in the will, that the testator intended his executor to have only the
office and not the beneficial interest, such intention received effect, and
the executor was deemed a trustee for those on whom the law would
have east the surplus, in cases of a complete intestacy. But by the 11
Geo. IV. & 1 Will. IV., c. 40, it is provided that when any person shall
die, having by will or codicil appointed any executor, such executor shall
be deemed by courts of equity to be a trustee for the person or persons
(if any) who would be entitled to the estate under the Statute of Dis-
tributions, inrespect of any residue not expressly disposed of, unless
it shall appear by the will or any codicil thereto, that such executor was
intended to take such residue beneficially.
§ 1209. In like manner, at law, a testator, by the appointment of
his debtor to be his executor, extinguishes his debt, and it cannot be
revived ; although a debt due by an administrator would only be sus-
pended. The reason of the difference is, that the one is the act of the
law, and the other is the act of the party (x). But in equity a debt due
by an executor is not extinguished so far as creditors are concerned;
but as between beneficiajies and the executor debtor, a different con-
sideration applies, for beneficiaries are volunteers, and accordingly slight
circumstances are seized hold of to infer that the testator intended to
release the executor from liability to account for the debt (y). Since
the Judicature Act, 1873, the rule of equity will prevail.
§ 1211. Upon grounds of an analogous nature, the general doctrine
proceeds, that, whatever acts are done by trustees in regard to the trust
property, shall be deemed to be done for the benefit of the cestui que
trust, and not for the benefit of the trustee. If, therefore, the trustee
makes any contract, or does any act in regard to the trust estate for
his own benefit, he will, nevertheless, be held responsible therefor to
the cestui que trust, as upon an implied trust. Thus, for example, if
a trustee should purchase a lien or mortgage on the trust estate at a
discount, he would not be allowed to avail himself of the difference ;
but the purchase would be held a trust for the benefit of the cestui que

(«) 2 Mad. Pr. Ch. 83 to 85.

(x) Hudson V. Hudson, 1 Atk. 461.
(]/) Brown v. Selwin, Caa. t. Talb. 240; Bym v. Godfrey, 4 Ves. 6; In re Pink,
Pink v. Pink, [1912] 2 Ch. 528.
512 EQDITY JURISPRUDENCE. [CH. XXXII.

trust (z). So, if a trustee should renew a lease of the trust estate, he
would be held bound to account to the cestui que trust for all advantages
made thereby (a). And, if a trustee should misapply the funds oi the
cestui que trust, the latter if adult would have an election either to take
the security, or other property in which the funds were wrongfully
invested, or to demand repayment from the trustee of the original funds ;
but if one of the beneficiaries is under disability the trustee is only
accountable for the money (b).
§ 1211a. The same principle will apply to persons standing in other
fiduciary relations to each other. Thus, for example, if an agent who is
employed to purchase for another, purchases in his own name, or for
his own account, he will be held to be a trustee of the principal at the
option of another (c). And as a fiduciary relationship is established by
a contract for the sale and purchase of real estate, a purchaser cannot
acquire an alternative title to the property so as to defeat the rights of
the vendor under the contract, while it subsists (d). Sureties who pur-
chase up the securities of the principal in respect of debts for which
they are sureties can only charge the principal with the price given for
them (e).
§ 1212. In this and following sections the author glanced cursorily
at the topics of conversion, and of reconversion. It is difficult to see how
by the widest stretch of imagination these could be regarded as matters
of implied trust, depending as they do on the character of land or money
being ' ' imperatively and definitively ' ' affixed to the property irrespec-
tive of its actual condition (/). The main question has already been
discussed in its proper place {g).
§ 1215. In the next place, we may enter upon the consideration of
that class of implied trusts arising from what are properly called equit-
able liens ; by which we are to understand such liens as exist in equity,
and of which courts of equity alone take cognizance. A lien (as has
been already said) (h) is not, strictly speaking, either a jus in re or a
jus ad rem ; that is, it is not a property in the thing itself, nor does it
constitute a right of action for the thing. It more properly constitutes
a charge upon the thing.

(z) Ex parte Lacey, 6 Ves. 626 ; Ex parte James, 8 Ves. 337 ; Lawless v. Mans-
field, 1Dru. & War. 557.
(o) Keech v. Sandford, Sel. Gas. Ch. 61 ; James v. Dean, H Ves. 392 ; Giddings
v. Giddings, 3 Euss. 241.
(b) In re Salmon, Priest v. Uppleby, 42 Ch. D. 351; Power v. Banks, [1901] 2
Ch. 487 ; In re Jenkins and H. E. Randall's Contract, [1908] 2 Ch. 862.
(c) Rochefoucauld v. Boustead, [1897] 1 Ch. 196.
Id) Murrell v. Ooodyer, 1 De G. P. & J. 432.
(e) Reed v. Norris, 2 Myl. & Cr. 361.
(/) Wheldale v. Partridge, 5 Ves. 388, 8 Ves. 227.
(g) Ante, § § 789 to 793.
(h) Ante, § 506; Brace v. Ducliess of Marlborough, 2 P. Will. 491; Ex parte
Knott, 11 Ves. 617.
§ 1211a — 1216a.] implied trusts. 613

§ 1216. At law, a lien is usually deemed to be a right to possess

and retain a thing, until some charge upon it is paid or removed (i).
There are few liens which at law exist in relation to real estate. The
most striking of this sort undoubtedly was, the lien of a judgment
creditor upon the lands of his debtor, given by the statute of West-
minster II. But this was not a specific lien on any particular land, but
it was a general lien over all the real estate of the debtor, to be en-
forced byan elegit or other legal process upon such part of the real estate
of the debtor as the creditor might elect (k). The lien itself was treated
as a consequence of the right to take out an elegit ; and it was applied
not only to present real estate in possession, but also to reversionary
interests in real estate (Z). This lien or charge upon the debtor's lands
has since been abolished. In respect to personal property, a general lien
is in all cases (with the exception only of certain maritime liens, such
as seamen's wages, and bottomry bonds) recognized at law to exist only
when it is connected with the possession of the thing itself {m). Where
the possession is once voluntarily parted with, or is to be temporary,
the lien is, at law, gone (n.). Thus, for example, the lien on goods for
freight, the lien for the repairs of domestic ships, and the lien, on goods
for a balance of accounts, are all extinguished by a voluntary surrender
of the thing to which they are attached (o). Liens at law generally
arise, either by the express agreement of the parties, or by the usage
of trade, which amounts to an implied agreement, or by mere operation
at law (p). •
§ 1216a. In enforcing liens at law, courts of equity are, in general,
governed by the same rules of decision as courts of law, with reference
to the nature, operation, and extent of such liens (g). But in some
special cases, courts of equity will give aid to the enforcement and satis-
faction ofliens in a manner utterly unknown at law. Thus, where there
is a specialty debt, binding the heirs, and the debtor dies, whereby a
lien attaches upon all the lands descended in the hands of his heir, courts
of equity will interfere in aid of the creditor, and, in proper cases,
accelerate the payment of the debt by decreeing a sale and applying the
proceeds in paying creditors the amount of their demand (r). At law
the creditor could only take out execution against the whole lands, and
hold them, as he would under an elegit, until the debt was fully paid (s).

(t) Ante, § 506; Ex parte Heywood, 2 Eose, Cas. 355, 357.

\k) Averall v. Wade, LI. & G., t. Sugd. 252.
[1) Gilbert on Executions, 38, 39; 2 Tidd on Practice (9th edit.), 1034.
(m) Jackson v. Cummins, 5 M. & W. 737; Dodsley v. Varley, 12 Ad. & BU. 632;
Shaw V. Neale, 6 H. L. C. 581.
(m) Hartley v. Hitchcock, 1 Stark. 408; Hatton v. Car Maintenance Co., Ltd.,
[1915] 1 Ch. 621.
(o) Ex parte Bland, 2 Eose, 91.
(p) Post, § 1240.
(g) Gladstone v. Birley, 2 Meriv. 403; Oxenham v. Esdaile, 2 Y. & Jerv. 493.
(r) Ante, § 628.
(s) Bac. Abr. Heir and Ancestor, H. 1, 2 Tidd's Prac. (9th edit.), pp. 936 to 938.
E.J. 33
514 EQUITY JURISPRUDENCE. [CH. XXXII.

But courts of equity will go farther, and decree a sale of the inheritance
in order to accelerate the payment of the debt, if it cannot otherwise
be satisfied within a reasonable period. The same doctrine is applied to
reversions after an estate for life, and even after an estate tail; fdr they
will be decreed to be sold to satisfy a bond debt of the ancestor, which
binds the heir, in order to accelerate the payment of the debt (<). And,
indeed, courts of equity have, in the case of advowsons, gone farther;
and have decreed an advowson in gross to be sold to satisfy a bond
creditor; holding such an advowson to be assets at law, even if not
extendible on an elegit (u).
§ 1217. But there are liens recognized in equity, whose existence
is not known or obligation enforced at law, and in respect to which courts
of equity exercise a very large and salutary jurisdiction (a;). In regard
to these liens, it may be generally stated, that they arise from construc-
tive trusts. They, are, therefore, wholly independent of the possession
of the thing to which they are attached, as a charge or incumbrance ;
and they can be enforced only in courts of equity {y). The usual course
of enforcing a lien in equity, if not discharged, is by a sale of the pro-
perty to which it is attached («). Of this we have a strong illustration
in the well-known doctrine of courts of equity, that the vendor of land
has a lien on the land for the amount of the purchase-money, not only
against the vendee himself, and his heirs, and other privies in estate,
but also against all subsequent purchasers having notice that the pur-
chase-money remains unpaid (a.). Conversely, the purchaser acquires
a lien upon the land in respect of all payments made by him under the
contract, and this lien is available against all persons claiming under
the vendor otherwise than as purchaser for value without notice of the
lien (b). And this is rested upon a fiduciary relationship established by
the contract for sale of which many examples can be given (c).
§ 1218. This lien of the vendor of real estate for the purchase-money
is wholly independent of any possession on his part; and it attaches to
the estate, as a trust, equally, whether it be actually conveyed, or only
be contracted to be conveyed. It has often been objected, that the
creation of such a trust by courts of equity is in contravention of the
policy of the Statute of Frauds. But, whatever may be the original
force of such an objection, the doctrine is now too firmly established to
(t) Tyndale v. Wane, Jao. 212.
(«) Robinson v. Tonge, 3 P. Will. 308; 1 Bro. P. C. 114. See Tyndale v. Warre,
Jac. 212, where Sir Thomas Plumer held, that an advowson in gross was not assets at
law, but still, if not, it was assets in equity.
(a;) Gladstone v. Birley, 2 Meriv. 403.
(y) See ante, § 1047.
(z) Neate v. Duke of Marlborough, 3 Myl. & Or. 407, 415.
(a) Machreth v. Symmons, 16 Ves. 329.
(b) Rose v. Watson, 10 H. L. C. 672; Whitehead & Co., Ltd v Watt, [1902] 1
Ch. 835.
(c) Eq. Murrell v. Goodyer, 1 De G. F. & J. 432; Phillips v. Silvester, L. E. 8
Ch. 173; Clarke v. Ramuz, [1891] 2 Q. B. 456.
§ 1217—1220.] IMPLIED TRUSTS. 515

be shaken by any mere theoretical doubts (d). Courts of equity have

proceeded upon the ground, that the trust, being raised by implication,
is not within the purview of that statute; but is excepted from it. It
is not, perhaps, so strong a case as that of a mortgage implied by a
deposit of the title-deeds of real estate, which seems directly against
the policy of the statute, but which, nevertheless, has been unhesitat-
ingly sustained (e).
§ 1219. The principle upon which courts of equity have proceeded
in establishing this lien, in the nature of a trust, is, that a person who
has gotten the estate of another, ought not, in conscience, as between
them, to be allowed to keep it, and not to pay the full consideration
money. A third person, having full knowledge that the estate had been
so obtained, ought not to be permitted to keep it without making such
payment; for it attaches to him, also, as a matter of conscience and
duty. It would otherwise happen that the vendee might put another
person into a position better than his own, with full notice of all the
facts (/).
§ 1220. It has been sometimes suggested, that the origin of this
lien of the vendor might be attributed to the tacit consent or implied
agreement of the parties. But, although in some cases it may be per-
fectly reasonable to presume such a consent or agreement, the lien is
not, strictly speaking, attributable to it, but stands independently of
any such supposed agreement (g). On other occasions the lien has been
treated as a natural equity, having its foundation in the earliest prin-
ciples of courts of equity (h). Thus, it has been broadly contended,
that, according to the law of all nations, the absolute dominion over
property sold is not acquired by the purchaser until he has paid the price,
or has otherwise satisfied it, unless the vendor has agreed to trust to the
personal credit of the buyer (i). For a thing may well be deemed to be
unconscientiously obtained, when the consideration is not paid (fc).
Upon this ground the Roman law declared the lien to be founded in
natural justice. " Tamen rectfe dieitur, et jure gentium, id est, jure
naturali, id effici " (l). And, therefore, when courts of equity estab-
(d) Mackfisth v. Symmons, 15 Ves. 339. (e) Ante, § 1020.
(/) See Mackreth v. Symmons, 15 Ves. 340, 347, 349.
(g) Nairn v. Prowse, 6 Ves. 752.
(h) Chapman v. Tanner, 1 Vern. 267, 268; Blackbume v. Gregson, 1 Bro. C. C.
424.
(i) By Mr. Scott and Mr. Mitford, in argument, in Blackbume v. Gregson, 1
Cox 94.
(fc) Hughes v. Kearney, X Sch. & Lefr. 135. It was formerly doubted, in conse-
quence of an expression which tell from Lord Hardwicke, in Pollexfen v. Moore, 3
Atk. 278, whether this lien of the vendor could exist in favour of a third person; as,
for example, if the vendor, having such a lien, should exhaust the personal estate of
the deceased purchaser, whether legatees should have a right to stand in his place
against the real estate in the hands of the heir, as upon the marshalling of the assets.
That doubt is now removed, and the affirmative established in Selby v. Selby, 4 Russ.
336. See Locke King's Act, 1877 (40 & 41 Vict. c. 84).
(I) Inst. Lib. 2, tit. 1, § 41.
516 EQUITY JURISPEUDEKCE. [CH. XXXII.

lished-the lien as a matter of doctrine, it had the effect of a contract, and

the lien was held to prevail, although, perhaps, no actual contract had
taken place (m).
§ 1221. The true origin of the doctrine may, with high probability,
be ascribed to the Eoman law, from which it was imported into the
equity jurisprudence of England (n). By the Roman law, the vendor of
property sold had a privilege, or right of priority of payment, in the
nature of a lien on the property, for the price for which it was sold, not
only against the vendee and his representatives, but against his creditors,
and also against subsequent purchasers from him. For it was a rule of
that law, that, although the sale passed the title and dominion in the
thing sold ; yet it also implied a condition, that the vendee should not
be of the thing so sold, unless he had paid the price, or had otherwise
satisfied the vendor in respect thereof, or a personal credit had been given
to him without satisfaction. " Quod vendidi " (said the Digest), " non
aliter fit acoipientis quam si aut pretium nobis solutum sit aut satis eo
nomine factum ; vel etiam fidem habuerimus emptori sine ulla satisfac-
tione (o). Ut res emptoris fiat, nihil interest, utrum solutum sit pre-
tium, an eo nomine fidejussor datus sit " (p). The doctrine was still
more explicitly laid down in the Institutes : ' ' Venditse vero res, et
traditsB, non aliter emptori acquiruntiu:, quam si is venditori pretium
solvent, vel alio modo ei satisf ecerit ; veluti expromissore aut pignore
dato. Sed, si is, qui vendidit, fidem emptoris sequutus fuerit, dicendum
est, statim rem emptoris fieri " (q). The rule was equally applied to the
sale of movable and of immovable property; and equally applied,
whether there had been a delivery of possession to the vendee or not.
If there was no such delivery of possession, then the vendor might retain
the property as a pledge, until the price was paid. If there was such a
delivery of possession, then the vendor might follow the property into
the hands of any person, to whom it had been subsequently passed, and
reclaim it or the price (r). " Venditor enim, quasi pignus, retinere
potest eam rem, quam vendidit " (s). And a part payment of the pric&
did not exonerate the property from the privilege or hen for the residue.
" Hsereditatis venditse pretium pro parte accepit " (said the Digest,
quoting Sesevola), " reliquum emptore non solvente; qusesitum est, an
corpora haereditaria pignoris nomine teneantur? Respondi; nihil
proponi, cur non teneantur " (f).

(m) Mackreth v. Symmons, 15 Ves. 329, 337.

(n) Mackreth v. Symmons, 15 Ves. 329, 344. (o) Dig. Lib. 18, tit. 1, f. 19.
(p) Ibid. f. 53. (q) Inst. Lib. 2, tit. 1, § 41.
(r) Ibid. The same rule exists in the French law in regard to immovables. But
in regard to movables, when delivered to the vendee, there is no sequel (as it is phrased
in the French law) by way of privilege or lien against the property, except while it
remains in the hands of the purchaser. If he has sold it, the right of privilege or lien,
for the price is gone. 1 Domat, B. 3, tit. 1, § 5, art. 4, and note.
(s) Id. Dig. Lib. 19, tit. 1, f. 13, § 8.
(t) Dig. Lib. 18, tit. 4, f. 22 ; Pothier, Pand. Lib. 19, tit. 1, n. 5.
§ 1221—1223.] IMPLIED TRUSTS. 517

§ 1222. This close analogy, if not this absolute identity, of the

English doctrine of the lien of the vendor with that of the Eomam law of
privilege on the same subject, seems to demonstrate a common origin ;
although in England the lien is confined to cases of the sale of immov-
ables, and it does not extend to movables, apart from the right to stop
while the goods are in transitu, where there has been a transfer of pos-
session (m). As regards equitable interests in settled stocks and funds, a
vendor's lien may exist (a;). But in this case the matter is of slight
importance in practice owing to the determination of rights by priority
by notice (y). There are, however, some exceptions from the doctrine
in each law, founded upon the same general principle, but admitting of
some diversity in respect to its practical application.
§ 1223. We have seen that the lien by the Eoman law ceased
(1) where the price was actually paid ; (2) where anything was taken in
Satisfaction of the price, although payment had not been positively
made ; (3) where a personal credit was given to the vendee, excluding
any notion of a lien ; " Aut pretium nobis solutum sit ' ' (said the Digest) ;
aut satis eo nomine factum ; vel etiam fidem habuerimus emptori sine
uUa satisfactione " (z). Pothier has deduced the conclusion, that, in
the civU law, the question, whether a personal credit was given to the
vendee or not, was to be judged of by all the circumstances of the case.
Whenever it was doubtful whether such credit was given or not, there
it was not to be presumed, unless made certain by the vendee {a). In
every other case, either a payment or a satisfaction of the price was
necessary to discharge the property. The giving of a pledge or security
for the price was deemed equivalent to payment. ' ' Qualibet ratione, si

(«) Sale of Goods Act, 1893 (56 & 57 Vict. c. 71), sect. 39, sub-s. 1 (a), sect. 43.
See McGruther v. Pitcher, [1904] 2 Ch. 306.
(a) In re Stueley, SUtcley v. Kekewich, [1906] 1 Ch. 67.
iy) Davies v. Thomas, [1900] 2 Ch. 462.
(z) Dig. Lib. 18, tit. 1, f. 19; Inst. Lib. 2, tit. 1, § 41. Vinnius distinguishes
between "^ payment and a satisfaction. " Satisfaciendi verbum generalius est, quam
solvendi. Qui solvit, utique et satisfacit; at non omnis satisfactio solutio est. Satis-
facit, et qui non liberatur; veluti, si quis fidejussorem vel pignora det; solutione vero
obligatio toilitur." Vinnius also says, that a personal credit, given to the vendor, with-
out satisfaction, is a waiver of the lien. For, commenting on the words of the Insti-
tute, Sed si is, qui vendidit, fidem emptoris sequutus fuerit, he says : " Id est, fidem
emptori de pretio habuerit sine uUa satisfactione." What will amount to such per-
sonal credit, he adds, depends on circumstances, but an agreement for postponement
of payment to a future day would be such a personal credit and would discharge the
lien. " Quod ex circumstantiis aestimandum; veluti, si, dies, solutioni dicta sit." And
for this he cites the Code. (Cod. Lib. 4, tit. 54, 1. 3.) He then proceeds : " Aut ei,
<ium emptor, pecuniam ad manum non haberit, venditor dixerit; I, licet; nunc non
require; postea dabis." Vinn. ad. Inst. Lib. 2, tit. 1, § 41, Comm. (2).
(o) Pothier, Pand. Lib. 41, tit. 1, note 60. In this position Vinnius agrees with
Pothier, contrary to what is held by some other jurists. " In dubio, qui rem emptori
tradit non videtur sequi fidem emptoris, nisi emptor contrarium doceat." Vinn. ad
Inst. Lib. 2, tit 1, § 41; Comm. (3). .
518 EQUITY JURISPRUDENCE. [CH. XXXII.

venditori de pretio satisf actum est, veluti, expromissore aut pignore

dato, proinde sit, ac si pretium solutum esset " (b).
§ 1224. Now, the same principle is applied in English jurisprudence.
Generally speaking, the lien of the vendor exists; and the burden of
proof is on the purchaser to establish, that, in the particular case, it has
been intentionally displaced, or waived by the consent of the parties (c).
If, under all the circumstances, it remains in doubt, then the lien
attaches. The difficulty lies in determining what circumstances are to
be deemed sufficient to repel or displace the lien, or to amount to a
waiver of it. And, upon the authorities, this is left in such a state of
embarrassment, that a learned judge has not hesitated to say, that it
would have been better at once to have held, that the lien should exist
in no case, and that the vendor should suffer the consequences of his
want of caution ; or to have laid down the rule the other way so dis-
tinctly, that a purchaser might be able to know, without the judgment
of a court, in what cases it would, and in what it would not exist (rf).
At present, that certainty cannot be generally affirmed.
§ 1225. In the first place, it seems, that, if, upon the face of the
conveyance, the consideration is expressed to be paid, and even if a
receipt therefore is indorsed upon the back of it, and yet, in point of fact,
the purchase-money has not been paid, the lien is not gone ; but it
attaches against the vendee and all persons claiming as volunteers, or
with notice under him (e).
§ 1226. The taking of a security for the payment of the purchase-
money is not, in itself, as it was in the Eoman law, a positive waiver
or extinguishment, of the lien (/). It is, perhaps, to be regretted, that
it has not been so held ; as when a rule so plain is once communicated,
if the vendor should not take an adequate security, he would lose his
lien by his own fault. But the taJiing a security has been deemed,
at most, as no more than a presumption, under some circumstances,
of an intentional waiver of the lien ; and not as conclusive of the
waiver. And if a security is taken for the money, the burden of the
proof has been adjudged to lie on the vendee to show, that the vendor
agreed to rest on that security, and to discharge the land (g). Nay,
even the taking of a distinct and independent security, as, for instance,
of a mortgage on another estate, or of a pledge of other property, has
(b) Dig. Lib. 18, tit. 1, f. 53; Pothier, Pand. Lib. 41, tit. 1, n. 60; Inat. Lib. 2,
tit. 1, § 41.
(c) Nairn v. Prowse, 6 Ves. 752; Hughes v. Kearney, 1 Sch. & L. 132; Mackreth
V. Symmons, 15 Ves. 329.
(d) Lord Eldon in Mackreth v. Symmons, 15 Ves. 329, 340.
(e) Mackreth v. Symmons, 15 Ves. 329; Worthington v. Morgan, 16 Sim. 547;
Frail v Ellis, 16 Beav. 350.
(/) Mackreth v. Symmons, 15 Ves. 329.
ig) Hughes v. Kearney, 1 Sch. & L. 132; Saunders v. Leslie, 1 Ball & B. 514;
Frail v. Ellis, 16 Beav. 350. As examples of cases in which it has been held that the
lien was waived, see Good v. Pollard, 9 Price 544, 10 Price 109; Capper v. Spottis-
woode, Taml. 4.
§ 1224—1228.] IMPLIED TRUSTS. 619

been deemed not to be conclusive evidence that the lien is waived Qi).
The taking of bills of exchange drawn on and accepted by a third
person, or by the purchaser and a third person, has also been deemed
not to be a waiver of the lien, but to be merely a mode of payment (i).
And it has been lain down as clear doctrine, that, in general, where a
bill, note, or bond is given for the whole or a part of the purchase-
money, the vendor does not lose his lien for so much of the purchase-
money as remains unpaid, even though it is secured to be paid at a
future day, or not until after the death of the purchaser (fe). And if
the purchase-money is by agreement to be paid in instalments, the
vendor will be at liberty to apply to tihe court for a declaration that his
lien extends to future instalments when they become due (l). But
the right to hen may be lost by the contract between vendor and
purchaser being of such a nature as to exclude it (w).
§ 1227. The lien of the vendor is not confined to himself alone ;
but, in case of his death, it extends to his personal representatives (w.).
It may also be enforced in favour of a third person, notwithstanding
a decision of Lord King and the doubts formerly expressed by Lord
Hardwioke, even in favour of legatees (who are volunteers) under the
practice of marshalling (o). And Locke King's Act, 1877, now
provides that any lien for unpaid purchase-money shall be satisfied
by the person to whom the estate descended or was devised, unless
the vendor shall in the manner prescribed by the Act have signified
a contrary intention.
§ 1228. We have already had occasion to state, that the lien of
the vendor exists against the vendee and against volunteers, and
purchasers under him with notice, having an equitable title only (p).
But it does not exist against purchasers under a conveyance of the
legal estate made bond fide, for a valuable consideration without notice,
if they have paid the purchase-money (g). The lien will also prevail
against parties having no better title than the purchaser, as trustees
in bankruptcy (r), or judgment creditors (s). So, it will prevail against
a judgment creditor of the vendee before an actual conveyance of the
(;i) Frail v. Ellis, 16 Beav. 350.
(i) Grant v. Mills, 2 Ves. & B. 306; Ex parte Peake, 1 Mad. 346.
(k) Winter v. Lord Anson, 3 Euss. 488; Collins v. Collins, 31 Beav. 346.
(l) Matthew v. Bowler, 6 Hare 110; Nives v. Nives, 15 Ch. D. 649.
(to) Good v. Pollard, 9 Price, 544, 10 Price, 109; Capper v. Spottiswoode , Taml.
21 ; In re Brentwood Brick and Coal Company, 4 Ch. T). 562.
(n) Ante, § 788 to 791, 1216, 1217.
(o) Selby v. Selby, 4 Euss. 336; Sproule v. Prior, 8 Sim. 189; Lord Lilford v.
Powys Keek, L. E. 1 Eq. 347.
(p) Worthington v. Morgan, 16 Sim. 547; Frail v. Ellis, 16 Beav. 350.
(g) Ante, § 788, 789; 2 Mad. Ch. Pr. 105, 106; Cator v. Bolingbroke, 1 Bro. Ch.
C. 302; Mackreth v. Symmons, 15 Ves. 329; Rice v. Rice, 2 Drew. 73.
(r) Blackburne v. Gregson, 1 Bro. C. C. 420, by Belt; Sugden, Vendors and Pur-
chasers, ch. 12, § 3, p. 557 (7th edit.); Grant v. Mills, 2 Ves. & B. 306; Ex parte
Peake, 1 Mad. 356.
(s) Fawell v. Heelis, Ambler 726.
520 EQUITY JURISPRUDENCE. [CH. XXXII.

estate has been made to him (t); and as it should seem, also against
such a judgment creditor after tihe conveyance; for each party, as a
creditor, would have a lien on the estate sold, with an equal equity,
and, in that case, the maxim applies, " Qui prior est in tempore,
potior est in jure."
§ 1229. But there is a clear distinction between the case of such
a general assignment to assignees for the benefit of creditors generally
aJid a particular assignment to specified creditors for their particular
security or satisfaction. The former are deemed to take as mere
volunteers, and not as purchasers for a valuable consideration, strictly
so called (m). The latter, if a conveyance of the property has been
actually made, and they have no notice of the purchase-money being
unpaid to the vendor, are deemed entitled to the same equities as any
other bond fide particular purchasers (x).
§ 1230. Liens of an analogous nature may be created by a deposit
of title-deeds, as a security for advance of money, thus constituting an
equitable mortgage on the estate included in the title-deeds. But this
subject has been already considered in a previous part of these Commen-
taries (y).
§ 1231. So, liens may be created on the purchase-money due on
the sale of an estate, in favour of a vendee, if it is agreed that, the
money shall be deposited in the hands of a third person, to be applied
in discharge of prior incumbrances, to the extent of such in-
cumbrances (z). .Indeed, there is generally no difficulty in equity in
establishing a lien, not only on real estate but on personal property,
or on money in the hands of a third person, wherever that is a matter
of agreement, at least against the party himself, and third persons,
when are volunteers, or have notice. For it is a general principle in
equity, that, as against the party himself, and any claiming under
him, voluntarily, or with notice, such an agreement raises a trust (a).
Thus, for example, if a tenant for life of real estate, should, by a
covenant, agree to set apart, and pay the whole, or a portion of the
annual profits of that estate to trustees for certain objects, it would
create a lien, in the nature of a trust, on those profits against him,
and all persons, claiming as volunteers, or with notice under him (b).
"When the author wrote there was authority for the proposition that
a general lien could be created over realty by a covenant to settle

(t) Finch V. Earl of WincheU&a, 1 P. Will. 278.

(u) Brown v. Heathcote, 1 Atk. 159 ; Worrall v. Marlar, cited in Mr. Cox's notes
to 1 P. Will. 459; Com. Dig. Bankrupt, D. 19; Scott v. Surman, Willes 402, and the
Register's note; ante, § 1038, 1411.
(x) Mitford v. Mitford, 9 Ves. 100.
(y) Ante, li 1020.
(z) Farr v. Middleton, Prec. Co. 174.
(a) Collyer v. Fallon,, 1 Turn. & Russ. 459; Legard v. Hodges. 1 Ves. Jun. 478;
ante, § 1039 to 1058 ; Dodsley v. Varley, 12 Adolph. & Ell. 632.
(b) Legard v. Hodges, 1 Ves. Jun. 478.
§ 1229 — 1234.] IMPLIED TRUSTS. 521

lands of a certain value or to secure an annuity by a charge upon

lands or by investment in the funds or by the best means in the
covenantor's power, but it is now settled that no charge or lien can
b© established unless the property vi^hich is to form the security is
identified, or the option of choice of security taken from the
covenantor (c).
§ 12316. The owner of land taken by a railway for the purpose of
its construction still retains a lien upon the land for the unpaid price,
e\en after the railway has gone into operation, to be enforced by a
sale aJid the appointment of a receiver, the right of the purchaser
being paramount to that of the public (d).
§ 1232. Upon similar principles, where a vendee has sold the
estate to a bona fide purchaser without notice, if the purchase-money
has not been paid, the original vendor may proceed against the estate
for his lien, or against the purchase-money in the hands of such pur-
chaser for satisfaction ; for in such a case the latter, not having paid
his money, takes the estate aum onere, at least to the extent of the
unpaid purchase-money. And this proceeds upon a general ground,
that, where trust-money can be traced, it shall be applied to the
purposes of the trust (e).
§ 1233. But, although a lien will be created in favour of a vendor
for the purchase-money on the sale of an estate ; yet, if the considera-
tion of the conveyance is a covenant to pay an annuity to the vendor,
and another covenant to pay a part of the money to third persons, it
seems that the latter, not being parties to the conveyance, will not,
generally, have any lien thereon, for the payment of such money ; for
they stand in no privity to establish a lien, at least unless the original
agreement import an intention to create such a lien (/).
§ 1234. Another species of lien is that which results to one joint
owner of any real estate, or other joint property, from repairs and
improvements made upon such property for the joint benefit, and for
disbursements touching the same. This lien, as we shall presently
see, sometimes arises from a contract, express or implied, between
the parties, and sometimes it is -created by courts of equity, upon
mere principles of general justice, especially where any relief is sought
by the party, who ought to pay his proportion of the money expended
in such repairs and improvements ; for in such cases, the maxim well
applies, " Nemo debet locupletari ex alterius incommodo " {g).

(c) Countess of Mornington v. Keane, 2 De. G. & J. 292.

(d) Walker v. Ware, Hadham, and Buntingford Ry., L. E. 1 Eq. 195; Munns v.
Isle of Wight iJt/., L. B. 5 Ch. 414.
(e) See bench v. Lench, 10 Ves. 511; Ex parte Morgan, 12 Ves. 6; Poole v.
Adams, 33 L. J. Ch. 639; post, § § 1265 to 1262.
(/) Clark v. Royle, 3 Sim. 499; Foster v. Blackstone, 1 Myl. & K. 297; Colyear
v Countess of Mulgrave, 2 Keen 81, 98 ; ante, § 1227.
(g) Jenkins's Cent. 4; post, § 1237; Dig. Lib. 50, tit. 17, f. 206.
522 EQUITY JURISPRUDENCE. [CH. XXXII.

§ 1235. At the common law, if there are two tenants in common,

or joint tenants of a house or mill, and it should fall into decay, and
the one is willing to repair and the other is not; he that is willing to
repair shall have a writ de reparatione faciendd; for owners are bound,
pro bono publico, to maintain houses and mills, which are for the
habitation and use of man (h). It is not, perhaps, quite certain, from
the manner in which this doctrine is laid down, whether the writ
applied merely to repairs on other things, constituting real estate, or
appurtenant thereto. But it seems clear, that the word " repairs " is
used in a sense different to what it bears at the present day, and that
it extends to an expenditure necessary to prevent the house from going
to ruin (i), or permanent improvements (k).
§ 1236. But the doctrine of contribution in equity is larger than it
is at law. Thus, for example, it has been held, that if two or more
persons make a joint purchase, and afterwards one of them lays out
a considerable sum of money in repairs or improvements, and dies,
this will be a lien on the land, and a trust for the representatives of
him who advanced it {I). This depends upon the analogy of a partner-
ship (m).
§ 1287. The whole subject was considered and the authorities
reviewed in recent times, and the principle established by the eases
negatives a general right of lien from the mere fact of a right of
contribution (n). There is no principle analogous to a claim for mari-
time salvage at the common law or in equity (o). A trustee or person
in a fiduciary position is entitled to an indemnity for an expenditure
in preserving the trust property, and may transfer this right to a
person who advances the money at his request, but short of this there
is no lien (p). The only apparent exception is the right of a defendant
in a partition action to be recouped out of the property the value
(estimated at the time of action, and not exceeding the sum actually
expended) of permanent improvements. He who seeks equity must do
equity (g). "When a fiduciary relation is established, a pari;y in the
position of a trustee may claim a lien for his expenditure or at least a
part of it. Thus, where a tenant for hfe under a will, has gone on to
finish improvements, permanently beneficial to an estate, which were
begun by the testator, courts of equity have deemed the expenditure
()i) Co. Litt. 200 b ; Pitzherbert, N. B. p. 127.
ft) Kay V. Johnston, 21 Beav. 536; Leigii v. Dickeson, 15 Q. B. D. 60.
(k) In re Jones, Farrington v. Forrester, [1893] 2 Ch. 461.
(l) Lake v. Cradock, 1 Bq. Abr. 291 ; s.c. 3 P. Will. 158.
(m,i Sec Kay v. Johnston, 21 Beav. 536; In re Leslie, Leslie v. French, 23 Cb.
D. 552.
(n) In re Leslie, Leslie v. French, 23 Ch. D. 552.
(o) Nicholson v. Chapman, 2 H. Bl. 254 ; In re Leslie, Leslie v. French, 23 Ch. D.
552; Falcke v. Scottish Imperial Insurance Society^ 34 Ch. D. 234.
(p) In re Leslie, Leslie v. French, 23 Ch. D. 552.
(g) Swan v. Swan, 8 Price, 618; In re Jones, Farrington v. Forrester, [1893] 2
Ch. 461.
 § 1235—1242.] IMPLIED TRUSTS. 523

(so far as they were not attributable to ordinary repairs) a charge, for
which the tenant is entitled to a hen (r).
§ 1239. The civil law seems to have proceeded upon a far brosider
principle of natural justice. For, by that law, any bond fide possessor,
as, for instance, a creditor, who had laid out money in preserving,
repairing, or substantially improving an estate, was allowed a privilege
or lien for such meliorations. " Creditor qui ob restitutionem
sedificiorum crediderit, in pecuniam, quam crediderit, privilegium
exigendi habebit (s). Pignus insulse, creditor! datum, qui pecuniam
ob restitutionem aedificii exstruendi mutuam dedit, ad eum quoque
pertinebit, qui redemptori, domino mandante, nummos minis-
travit " (t). Indeed, Domat lays it down, as a general doctrine, that
those whose money has been laid out on improvements of an estate,
such as making a plantation, or erecting buildings upon it, or aug-
menting the apartments of a house, or for other like causes, have,
by the civil law, a privilege upon those improvements, as upon a
purchase with their own money (m).
§ 1240. In the first place, in respect to repairs, improvements, and
disbursements upon personal property. Here the civil law gave a
privilege or lien upon the thing in favour of all artificers and other
persons, who had laid out their money in such meliorations. Thus, it
is said : ' ' Quod quis navis fabrieandse, vel emendae, vel armandas, vel
instruendae, causa, vel quoquo modo crediderit, vel ob navem venditam
petat, habet privilegium post fiscum " {x). But there is no such
privilege or lien recognized in English law.
§ 1242. Upon another point, some diversity of judgment has been
expressed; and that is, how far, as between part-owners, a Hen exists
on the ship itself for any expenses incurred by one or more of them
beyond their shares in building, repairing, or fitting out the ship upon
a joint voyage (y). In respect to the proceeds of the joint' adventure
on the voyage, no doubt seems to be entertained that they are liable
to the disbursements and charges of the outfit, in the nature of a lien,
and therefore, that no part-owner can take any portion of the profits,
until after such expenditures are paid and deducted. In this respect
the part-owners are treated as partners in the joint adventure. But
the point, whether the ship itself is liable for such expenditures, as
constituting a lien on it, turns upon somewhat difierent considerations.
Lord Hardwicke held, that the ship was so liable; and that the part-
owners of a ship, although tenants in common, and not joint-tenants,
(r) Hibbert v. Cooke, 1 Sim. & St. 552.
(s) Dig. Lib. 12, tit. 1, f. 25; 1 Domat, B. 3, tit. 1, § 5, arts. 5, 7; Bright v.
Boyd, 1 Storv, 478, 494 to 497.
(t) Dig. Lib. 20, tit. 2, f. 1 ; 1 Domat, B. 3, tit. 1, § 5, arts. 6 to 7 ; ante, § 1237,
note. (u) 1 Domat, B. 3, tit. 1, § 5, art. 7 ; ante, § 1237, note.
(x) Dig. Lib. 42, tit. 5, £E. 34, 36; 1 Domat, B. 3, tit. 1, § 5, arts. 7, 9; Story,
Comm. on Agency, § § 355 to 367 ; ante, § 506.
(y) Ex parte Bland, 3 Rose, 91 ; Stewart v. Hall, 2 Dow, 29.
624 EQUITY JUEISPRUDENCE. [OH. XXXU.

have a right, notwithstanding, to consider the chattel as used in

partnership, and liable, as partnership efiects, to pay all debts what-
ever, to which any of them are liable on account of the ship («). Lord
Eldon has expressed a directly contrary opinion ; and has held the ship
not to be liable for such expenditures (a).
§ 1243. Another species of tacit or implied trust, or, perhaps,
strictly speaking, of tacit or implied pledge or lien, is that of each
partner in and upon the partnership property, whether it consists of
lands, or stock, or chattels, or debts, as his indemnity against his
joint debts, as well as his security for the ultimate balance due to him
for his own share of the partnership effects. We have already had
occasion to allude to this sort of lien (b), in considering joint purchases
in the name of one partner; and it is only necessary here to refer to
it in this more "general form.
§ 1244. Another class of implied liens or trusts arises, where pro-
perty is conveyed inter vivos, or is bequeathed or devised by last will
Eind testament, subject to a charge for the payment of debts, or to
other charges in favour of third persons. In such cases, although the
charge is treated, as between the immediate parties to the original
instrument, as an express trust in the property, which may be enforced
by such parties or their proper representatives; yet, as between the
trustee and cestuis que trust, who are to take the benefits of the
instrument, it constitutes an implied or constructive trust only; a
trust, raised by courts of equity in their favour, as an interest in rem,
capable of being enforced by them directly by a suit brought in their
own nam.es and right. Thus, for example, if a devise is made of real
estate, charged with the payment of debts generally, it may be enforced
by any one or more creditors against the devisee, although there is no
privity of contract between him and them {bb).
§ 1245. There is, also, a distinction between a devise of an estate
in trust to pay debts and other charges, and a devise of an estate
charged with, or subject to, debts or other charges. In the former
case, the devise is construed to be a mere trust to pay the debts or
other charges, giving no beneficial interest to the devisee, but holding
him, after the debts and charges are paid, a mere trustee for the heir,
as to the residue. In the latter case, the devise is construed to convey
the whole beneficial interest to the devisee, subject only to the pay-
ment of the debts, or other charges. The distinctions may seem nice ;
but it is clearly established as a matter of intention (c).
(z) Doddington v. Halkett, 1 Ves. Sen. 497, and Belt's supp. 205, 206.
(a) Ex parte lounge, 2 Ves. & B. 242.
(b) Ante, § 1207 ; post, § 1253. See also ante, § § 674, 675.
(bb) King v. Dennison, 1 Ves. & B. 260, 272. See also the case of creditors' trust
deeds, ante, § 1046, as an illustration of the principle as applied to transactions inter
vivos.
(c) King v. Denison. 1 Ves. & B. 260; In re West, George v. Grose, [1900] 1 Ch.
§ 1243—1248.] IMPLIED TRUSTS. 525

§ 1246. In this paragraph the learned author referred to the con-

struction ofwords operative to create a charge of debts. In England
the matter was changed from one of substance to one of form, when
real estate became liable to the payment of all debts. In more recent
times, as already noticed, questions of form were modified until the
only point of practical importance to be considered is whether the
primary liability of the personal estate to discharge debts (d) is dis-
placed. Debts which are charges upon realty must now be paid by
the devisee as between him and the other beneficiaries, by force of the
Locke King's Acts, 1854, 1867, 1877.
§ 1247. The principal exception to this doctrine of the primary
liabiHty of the personal estate seems to be where the testator, after
generally directing his debts to be paid (without charging any funds
expressly), has provided or pointed out a specific realty or a specific
iund for that purpose (e) ; upon the ground of presumed intention in
the testator. If the testator assigns a specific fund for the payment
of his debts, that (naturally enough) is construed to exclude any
intention to appropriate a more general fund for the same purpose ;
" Expressio unius est exclusio alterius."
§ 1248. Another class of implied liens or trusts arises', or rather
is continued by implication, where a party, who takes an estate
which is already subject to a debt, or other charge, makes himself
personally liable by his own express contract or covenant for the
same debt or charge. In such a case the original lien or charge
is not only displaced thereby, but the real estate is treated through-
out as the primary fund. So that, in case of the death- of the
debtor, as between his heirs, devisees, and distributees, the debt,
if paid out of his personal assets, will still be deemed a primary
charge upon the real estate; and, as such, followed in favour of
creditors, legatees, and others entitled to the personal assets (/). Thus,
for example, where a settlor, upon a marriage settlement, created a
trust term in his real estate for the raising of portions, and also
covenanted to pay the amount of the portions; it was held to be
a charge primarily on the real estate; and the personal estate to
be auxiliary only. On that occasion it was said, by the Master of
the EoUs (Sir William Grant), "It is difficult to conceive, how a
man can make himself a debtor (although by the same instrument
he charges the real estate), without subjecting his personal assets
in the first instance to the payment of the debt. Here the settlor
certainly makes himself a debtor by his covenant. Where a person
becomes entitled to an estate subject to a charge, and then covenants

(d) Tower v. Lord Rous, 18 Ves. 152; Bootle v. Blundell, 1 Mer. 193; Wells v..
Row, 48 L. J. Ch. 476.
(e) Webb v. Jones, 1 Cox 245; a.c. 2 Bro. C. C. 60; Glutterbuck v. Glutterbuck ,.
1 Myl. & K. 15 ; Forrest v. Prescott, L. E. 10 Eq. 545.
(/) Loosemore v. Knafman, Kay, 123.
526 EQUITY JURISPRUDENCE. [CH. XXXII.

to pay it, the charge still remains primarily on the real estate; and
the covenant is only a collateral security; because the debt is not
the original debt of the covenantor " {g).
§ 1249. It may now be considered as the settled rule that a
covenant by a settlor, to convey and settle lands (not specifying any
in particular), ^ill not constitute a specific lien on his lands; and
the covenantee vi^ill be deemed a creditor by specialty only (h). But
in some cases of this sort in favour of a dowress, courts of equity have
established a lien upon real property, by what has been called a very
subtle equity, where, perhaps, it would be difficult to maintain it in
ordinary cases. Thus, where a man before marriage gave a bond to
convey sufficient freehold or copyhold estates to raise £600 per
annum for his intended wife, in bar of dower; and the intended wife,
by a memorandum subscribed to the bond, declared her free acceptance
of the jointure in bar and satisfaction of dower; and the marriage
took effect, and the husband died without having conveyed any such
estates ; it was decreed, that she should be deemed a specialty creditor,
and entitled to be paid the arrears of her annuity out of his personal
estate in the course of administration; and if that was not sufficient,
then out of the real estates in the settlement of which he was tenant
in tail, provided such deficiencies did not exceed the amount of the
dower which she would have been entitled to thereout, in case she
had not accepted the annuity for her life (i).
§ 1250. Another case of implied trusts, in the author's view, was
an assignment of choses in. action, not negotiable at all, or not
negotiable by the local law, and trusts created for the benefit of a party,
who is to be the ultimate receiver of the money, or other thing, which
constitutes the subject-matter of the trust.
§ 1251. Another illustration of implied trusts may be found in the
common case of a suit in equity by a creditor of an estate, to recover
his debt from legatees or distributees, who have received payment of
their claims from the executor (acting by mistake, but bona fide and
without fault) before a due discharge of all the debts. In such a case
the executor, wh.o has so distributed the assets, may be sued at law by
the creditor. But the legatees and distributees, although there was an
original deficiency of assets, are not at law suable by the creditor. Yet
he has a clear right in equity, in such a case, to follow the assets of the
testator into their hands, as a trust fund for the payment of his debt.
The legatee and distributee are in equity treated as trustees for this
purpose ; for they are not entitled to anything, except the surplus of the
assets after all the debts are paid. Besides, they, in the case put, being
(g) Lechmere v. Charlton, 15 Ves. 197, 198.
(h) Countess of Mornington v. Keane, 2 De G. & J. 292.
(t) Forster v. Forster, 1 Bro. C. C. 489, 493. The plaintiff was the widow's son,
which may explain the liability of the estates of which the covenantor was tenant in
tail. It is extremely doubtful if the case would be followed at the present day.
§ 1249—1255.] IMPLIED TRUSTS. 527

ultimately responsible to pay the debt to the executor out of such assets,
if the executor should be compelled to pay it to the creditor by a suit at
law, may be made immediately hable to the creditor in equity. But the
other is the more broad and general ground, as the creditor may some-
times have a remedy, when the executor, if he has paid over the assets,
might not have any against the legatees or distributees (fe).
§ 1253. A case of an analogous nature is that of partnership property,
on which the joint creditors, in case of bankruptcy, are deemed in
equity to have a right of priority of payment before the private creditors
of any separate partner. The joint property is deemed a trust fund,
primaj-ily to be applied to the discharge of the partnership debts against
all persons not having a higher equity (I). A long series of authorities
(as has been truly said) has established this equity of the joint creditors,
to be worked out through the medium of the partners (m) ; that is to
say, the partners have a right, inter se, to have the partnership property
first applied to the discharge of the partnership debts, and no partner
has any right except to his own share of the residue; and the joint
creditors are, in case of bankruptcy, substituted in equity to the rights
of the partners, as being the ultimate cestuis que trustent of the fund
to the extent of the joint debts. The creditors, indeed, have no lien;
but they have something approaching to a lien, that is, they have a
right to sue at law, and by judgment and execution, to obtain possession
of the property (») ; and in equity, they have a right to follow it, as a
trust, into the possession of all persons who have not a superior title.
But, in the meantime, the creditors cannot prevent the partners from
transferring it by a bona fide alienation.
§ 1254. Having considered some of the more important classes of
implied trusts, arising from the presumed intention of the parties, we
may next pass to the consideration of those implied trusts (or perhaps,
more properly speaking, those constructive trusts), which are indepen-
dent of any such intention, and are forced upon the conscience of the
party, by the mere operation of law. Some cases of this sort have been
already incidentally mentioned under former heads, but a concise review
of the general doctrine seems indispensable in this place to a thorough
understanding of Equitable Jurisdiction (o).
§ 1255. One of the most common cases in which a court of equity
has acted upon the ground of implied trusts in invitum is, where a party
has received money which he cannot conscientiously withhold from
another party. But in later times, a jurisdiction to enforce a bare
(&) Anon., 1 Vern. 162; Newman v. Barton, 2 Vern. 205; Noel v. Robinson, 1
Vern. 94, and Baithby's note (1).
(1) Ante, § § 675, 1207; post, § 1253.
(m) Campbell v. Mullett, 2 Swanst. 574; Ex parte Ruffin, 6 Ves. 126 to 128;
Taylor v. Fields, 4 Ves. 396 ; Young v. Keighley, 15 Ves. 557 ; ante, § § 675, 1207, 1243.
(w) See cases cited in last note; Ex parte Williams, 11 Ves. 3, 5, 6; Ex parte
Kendall, 17 Ves. 521, 626.
(o) Ante, § 675.
528 EQUITY JURISPEUDENCE. [CH. XXXII.

money claim where the courts of common law gave an adequate remedy,
was disclaimed, unless some special equity could be shown (p).
§ 1257. The author then instanced cases where a party purchases
from a trustee trust property, knowing it to be such, and in violation
of the objects of the trust, as aji illustration of a constructive trust. A
very eminent judge in more recent times based the remedy upon fraud,
although he admitted that the accountability of the party was co-exten-
sive with that of an express trustee (g). Most decisions treat the
recipient of trust property with notice of the trust as a constructive
trustee (r) (indorsing the author's view) who has the privilege of pleading
the statute of limitations, which would be displaced by any circum-
stance offraud (s). If a party intermeddles actively in the administra-
tion of an express trust he becomes an express trustee (t).
§ 1258. Accordingly, wherever the property of a party has been
wrongfully misapplied, or a trust fund has been wrongfully converted
into another species of property, if its identity can be traced (u), it
will be held, in its new form, liable to the rights of the original owner,
or cestui que trust (x). The general ground upon which it is founded
finds its analogical law, that no change of stat-e or form can justify a
breach of duty in an agent in respect of an application of property (y).
§ 1259. Thus, for instance, if A. is trusted by B. with money to pur-
chase ahorse for him, axid A. purchases a carriage with that money, in
violation of the trust, B. is entitled to the carriage, and may, if he
chooses so to do, sue for it at law. So, if A. entrusts money with a
broker, to buy Bank of England stock for him, and he invests the money
in American stocks, A. is entitled to, and may maintain an action at law
for, those stocks, in whosesoever hands he finds them, not being a pur-
chaser for a valuable consideration without notice. It matters not in
the slightest degree, into whatever other form, diSerent from the
original, the change may have been made, whether it be that of promis-
sory notes, or of goods, or of stock; for the product of a substitute for
the original thing still follows the nature of the thing itself, so long as
it can be ascertained to be such. The right ceases only when the means
of ascertainment fail, which, of course, is the case when the subject-
matter is turned into money, and mixed and confounded in a general
mass of property of the same description (a).
(p) See Rogers v. Ingham, 3 Ch. D. 351.
(g) Rolfe V. Gregory, iBe G. J. & S. 576.
(r) Hill V. Simpson, 7 Ves. 152; Sheridan v. Joyce, 1 Jo. & Lat. 401; Ernest v.
Croysdill, 2 De G. F. & J. 175 ; In re Champion, Dudley v Champion, [18931 1 Ch
101.
(s) Petre v. Petre, 1 Drew. 393.
(t) Soar V. Ashwell, [1893] 2 Q. B. 390, where the principal cases are referred to.
(u) Scott V. Beecher, 4 Price, 346.
(x) In re Champion, Dudley v. Champion, [1893] 1 Ch. 101.
{y) Taylor v. Plumer, 3 M. & S. 562.
(z) Taylor v. Plumer, 3 M. & S. 562; Harris v. Trueman, 7 Q. B. D. 340; affirmed
9 Q. B. D. 264.
§ 1257 — 1263.] IMPLIED TRUSTS. 529

§ 1260. Cases may readily be put, where this doctrine would be

enforced in equity, under circumstances in which it could not be applied
at law. Thus, for instance, if a trustee, in violation of his duty, should
lay out the trust-money in land, and take a conveyance in his own name,
the cestui que trust would be without any relief at law. But a court
of equity would hold the cestui que trust to be the equitable owner of
the land, and would decree it to him accordingly ; not upon any notion
of his having ratified the act, but upon the mere ground of a wrongful
conversion, creating, in foro conscientix, a trust in his favour (a).
§ 1261. Upon similar grounds, where a trustee, or other person,
standing in a fiduciary relation, makes a secret profit out of any transac-
tions within the scope of his agency or authority, that profit will belong
to his cestui que trust ; for it is a constructive fraud upon the latter to
employ that property contrary to the trust, and to retain the profit of
such misapplication ; and by operation of equity, the profit is imme-
diately converted into a constructive trust in favour of the party entitled
to the benefit (b). For the like reason a trustee, becoming a purchaser
of the estate of his cestui que trust, is deemed incapable of holding it
to his own use, unless he has made the fullest disclosure to the cestui
que ti-ust (c). Nor is the doctrine confined to trustees, strictly so
called. It extends to all other persons standing in a fiduciary relation
to the party, whatever that relation may be {d).
§ 1262. In cases of this sort, the cestui que trust (the beneficiary)
is not at all bound by the act of the other party. He has therefore an
option to insist upon taking the property, or he may disclaim any title
thereto, and proceed upon any other remedies, to which he is entitled,
either in rem or in personam (e). The substituted fund is only liable at
his option (/). But he cannot insist upon opposite and repugnant rights.
Thus, for example, if a trustee of land has sold the land in violation of
his trust, the beneficiary cannot insist upon having the land, and also
the notes given for the purchase-money ; for, by taking the latter, at
least so far as it respects the purchaser, he must be deemed to affirm
the sale. On the other hand, by following his title in the land, he
repudiates the sale [g).
§ 1263. So, where an executor or trustee, instead of executing any
trust, as he ought, as by laying out the property, either in well-secured

(a) Thornton v. Stokill, 1 Jur. N. S. 751; In re Salmon, Priest v. Uppleby, 42

Ch. D. 351.
(b) Parker v. McKenna, L. E. 10 Ch. 96; In re Haslam v. Hier Evans, [1902] 1
Ch. 765; Att.-Gen. (Canada) v. Standard Trust Go. of N. Y., [1911] A. C. 498.
(c) Ante, § § 321, 322.
(d) Brookman v. Rothschild, 5 Bligh N. S. 165. See ante, § § 315 to 328.
(e) Docker v. Somes, 2 MyL & K. 665; Wedderburn v. Wedderburn, 2 Keen 722,
4 M. & Cr. 41, 22 Beav. 84.
(/) Watts v. Girdlestone, 6 Beav. 188, 190, 191.
ig) Pocock V. Reddington, 5 Ves. 794; Forrest v. Elwes, 4 Ves. 492; PhilUpson
v. Oatty,1 Hare, 516; s.c. 2 Hall and T. 459.
E.J. 34
-S30 EQUITY JUEISPRUDENCE. [CH. XXXII.

real estates, or in authorized securities, takes upon himself to dispose

of it in another manner; or where, being entrusted with stock, he sells
it in violation of his trust; in every such case, the parties beneficially
entitled have an option to make him replace the stock or other property ;
or if it is for their benefit, to affirm his conduct, and take what he has
sold it for, with interest, or what he has invested it in; and if he has
made more, they may charge him with that also. But they cannot insist
upon repugnant claims; such as, for instance, in the case of a sale of
stock ; to have the stock replaced, and to have interest (instead of the
dividends), or to take the money, and have the dividends, as if it had
remained stock (h).
§ 1264. Wherever a trustee is guilty of a breach of trust by the sale
of the trust property to a bona fide purchaser, for a valuable considera-
tion without notice, the trust in the property is extinguished. But if
afterwards he should re-purchase, or otherwise become entitled to the
same property, the trust would revive, and re-attach to it in his hands ;
for it will not be tolerated in equity, that a party shall, by his own
wrongful act, acquire an absolute title to that which he is in conscience
bound to preserve for another. In equity, even more strongly than at
law, the maxim prevails, that no man shall take advantage of his own
wrong (?'). " The only exception to the rule which protects a purchaser
with notice taking from a purchaser without notice is that which pre-
vents a trustee buying back trust property which he has sold, or a
fraudulent man who has acquired property by fraud saying he sold it to
a bona fide purchaser without notice, and has got it back again " (k).
§ 1265. The truth is, that courts of equity in regard to fraud,
whether it be constructive or actual, have adopted principles exceed-
ingly broad and comprehensive, in the application of their remedial
justice; and, especially, where there is any fraud touching property,
they will interfere, and administer a wholesome justice, and sometimes
even a stem justice, in favour of innocent persons, who are sufferers by
it, without any fault on their own side. This is often done, by eon-
verting the offending party into a tnistee, and making the property itself
subservient to the proper purposes of recompense, by way of equitable
trust or lien. Thus a fraudulent purchaser will be held a mere trustee
for the honest but deluded and cheated vendor. A person who has
fraudulently procured a conveyance to be made in his favour by an
idiot or lunatic, will be held a trustee for the benefit of the persons who
are prejudiced by the fraud. A person who lies by, and without notice
suffers his own estate to be sold and incumbered in favour of an innocent
purchaser or lender, will be held a trustee of the estate for the latter.

(h) Aspland v. Watt, 20 Beav. 474.

(i) Bovey v. Smith, 2 Ch. C. 124; s.c. 1 Vern. 84; Gordon v. Holland, 82 L. J.
P. C. 81.
(k) In re Stapleford Colliery Company, Barrow's Case, 14 Oh. D. 432, 445; per Sir
George Jessel, M.E.
§ 1264 — 1269.] IMPLIED TRUSTS. 531

An heir, preventing a charge or devise of an estate to another, by a

promise to perform the same, personally, will be held a trustee for the
latter, to the amount of the charge, or beneficial interest intended.
An agent, authorized to purchase an estate for another, who purchases
the same for himself, will be held a trustee of his principal. But it is
unnecessary to pursue this subject further, as many illustrations of a
like nature have been already given under the heads of actual fraud,
and constructive fraud.
§ 1266. Having thus gone over most of the important heads of equity
jurisprudence, falling under the denomination of express or implied
trusts, we shall conclude this subject by a short review of some of the
doctrines, as to the nature and extent of the responsibility of trustees,
and as to the remedies, which may be resorted to, to enforce a due
performance of trusts.
§ 1267. It is not easy, in a great variety of cases, to say what the
precise duty of a trustee is ; and, therefore, it often becomes advisable
for him, before he acts, to seek the aid and direction of a court of
equity; and this he now may do upon a summary application imder
Rules of the Supreme Court, Order LV., rule 3. We have already
seen that his acts done to the prejudice of the cestui que trust (or
beneficiary) are sometimes such as are binding, and cannot be recalled ;
and sometimes are such as a court of equity will not punish by
treating them as breaches of trust (Z). But the cases in which such
acts will be deemed violations of trust, for which a trustee will be
held responsible in equity, are difficult to be defined. It has been
often said, that, what he may be compelled to do by a, suit he may
voluntarily do without a suit. But this (as we have also seen) is a
doctrine requiring many qualifications, and by no means to be
generally relied on for safety (m).
§ 1268. In a general sense a trustee is bound by his implied
obligation, to perform all those acts which are necessary and proper
for the due execution of the trust which he has xmdertaken. But
as he is supposed raerely to take upon himself the trust as a matter
of honour, conscience, friendship, or humanity, and as he is not
entitled to any compensation for his services, at least not without
some express or implied stipulation for that purpose, the learned
author suggested that he should, upon the. analogous principles
applicable to bailments, be bound only to good faith and reasonable
diligence; and, as in the case of a' gratuitous bailee, be liable only
for gross negligence. He was, however, constrained to admit that
courts of equity do not, in fact, always limit the responsibility of
trustees, or measure their acts, by such a rule.
§ 1269. In respect to the preservation and care of trust property,
it has been said that a trustee is to keep it as he keeps his own,

(I) Ante, § § 977 to 979, 995. (m) Ante, § 979.

532 EQUITY JURISPRUDENCE. [CH. XXXII.

And, therefore, if he is robbed of money, belonging to his cestui que

trust, without his own default or negligence (or perhaps, strictly
speaking, without his own gross default or negUgence), he will not
be chargeable. He is even allowed in equity to establish, by his own
oath, the amount so lost; for he cannot possibly, in ordinary cases,
have any other proof (n.). So, if he should deposit the money with
a banker in good credit, or remit it to the proper place by a bill
drawn by a person in due credit, and the banker or drawer of the
bill should become bankrupt, he would not be responsible (o). The
rule, in all cases of this sort, is, that, where a trustee acts by other
hands, either from necessity, or conformably to the common usage
of mankind, he is not to be made answerable for losses. This subject
was considered by the House of Lords, and it was' there laid down,
affirming the doctrine here previously advanced, that a trustee is
bound to conduct the business of the trust in the same way in which
an ordinarily prudent man of business conducts his own, and has no
further obligation. He m.ay employ brokers and agents in cases in
which they are employed in the ordinary course of business; and if
any loss happen to the trust fund, through the defalcation of the
agent so justifiably employed by him, he will not be liable. So a
trustee is bound to exercise discretion in the choice of his agents, but
so long as he selects persons properly qualified he cannot be made
responsible for their intelligence or honesty. He does not in any
sense guarantee the performance of their duties (p). But in employing
professional agents the trustees are not entitled to delegate to them
matters of management and discretion, nor to commit to them matters
outside their professional calling (q). By section 17 of the Trustee
Act, 1893 (56 & 57 Vict. c. 53), a trustee — the power is not applicable
to the agent of the trustee (r)— may authorize a solicitor to receive
and give a discharge for any money or valuable consideration or
property receivable by the trustee under the trust, by permitting the
trustee to have the custody of and to produce a deed with a receipt
for the consideration money, and is not to be deemed guilty of a
breach of trust by reason of his so doing ; and he may appoint a banker
or solicitor to be his agent to receive the moneys due under a policy
of assurance, by permitting the banker or solicitor to have the custody
of the policy of assurance with a receipt signed by the trustee.
The section, however, requires the trustee to get the money into his
hands or under his control within a reasonable time, which is decided

(n) Morley v. Morley, 2 Ch. Cas. 2; Jobson v. Palmer, [1895] 1 Ch. 71.
(o) Knight v. Lord Plymouth, 3 Atk. 480; France v. Wood, Taml. 172; Bacon v.
Clark, 3 M. & Cr. 294 ; Wilkes v. Oroom, 3 Drew. 584.
(p) Speight v. Gaunt, 9 App. Caa. 1.
(g) Fry v. Tapson, 28 Ch. D. 568 ; In re Weall, Andrews v. Weall, 42 Ch. D. 674.
(r) In re Hetley £ Morton's Contract, [1893] 3 Ch. 280.
§ 1269—1272.] IMPLIED TRUSTS. 533

upon the fact when the trustee knew or ought to have known that
the banker or solicitor has received the money or property (s).
§ 1270. In all cases, however, in which a trustee places money in
the hands of a banker, he should take care to keep it separate and
not mix it with his own in a common account; for, if he should so
mix it, he would be deemed to have treated the whole as his own;
and he would be held liable to the cestui que trust for any loss
sustained by the banker's bankruptcy (f).
§ 1271. In respect to the manner of managing funds and laying
out money on securities, and even in respect to allowing trust-money
to remain in the hand of debtors, considerable strictness is required
by the rules of courts of equity. It has been remarked by Lord
Hardwicke on one occasion, that these rules should not be laid down
with a strictness to strike terror into mankind, acting for the benefit
of others, and not for their own (m). And upon another occasion, as
a trust is an office necessary in the concerns between man and man,
and which, if faithfully discharged, is attended with no small degree
of trouble and anxiety, it is an' act of great kindness in any one to
accept it. To add hazard or risk to that trouble, and to subject a
trustee to loss, which he could not foresee, and consequently not
prevent, would be a manifest hardship, and would be deterring every
one from accepting so necessary an office (x).
§ 1272. There is manifest good sense in these remarks. But they
came to be systematically disregarded in courts of equity. The
unnecessary rigour of the court in its later history in dealing with
honest trustees at last became a crying evil calling for the intervention
of the legislature. Summarized, the provisions of the statutes may
be said to have created four classes of trustees — (a) the trustee with
trust property still in his hands or under his control ; (b) the fraudulent
trustee ; (c) the rash and improvident trustee and (d) the honest
trustee. The trustee who retains or who can still dispose of the trust
property of course requires no protection, and the fraudulent trustee
deserves none. But the two remaining classes may now plead the
Statute of Limitations as against beneficiaries or creditors, with this
qualification, that the statute does not run against a beneficiary unless
and until his interest shall be an interest in possession : Trustee Act,
1888, sec. 8 (y). But the court has an extended power to grant relief
to a trustee who has acted honestly and reasonably, and who ought
fairly to be excused for the breach of trust, by section 3 of the

(s) In re Sheppard, De Brimont v. Harvey, [1911] 1 Ch. 50.

(t) Macdonnell v. Harding, 7 Sim. 178; Rehden v. Wesley, 29 Beav. 213
(tt) Ex parte Belcliier, Ex parte Parsons, Ambler 219.
(x) Knight v. Earl of Plymouth, 1 Dick. 126, 127; s.c. 3 Atk. 480.
(y) Thome V. Heard, [1895] A. C. 495; How v. Earl Winterton, [1896] 2 Ch.
626; Reid — Newfoundland Go, v. Anglo-American Telegraph Co., [1912] A.C. 555;
In re Blow, St. Bartholomew's Hospital v. Campden, [1914] 1 Ch. 233; In re Allsop,
Whitaker v. Bamford, [1914] 1 Ch. 1.
 534 EQUITY JURISPRUDENCE. [CH. XXXII.

Judicial Trustees Act, 1896 (z). A remunerated trustee is not entitled

to the same favourable consideration as a trustee who acts
gratuitously (a). This section does not entitle a trustee to deal in
an improvident manner with the property committed to his control,
he may be honest but he must also act reasonably (b). Among the
acts which have been judicially excused under the section are trusting
to the honesty of an agent (c), misguided confidence in the skill of an
agent (d), refusal to embark on litigation where the result was un-
certain (e), or the sum at stake small (/). But a trustee on
appropriating securities to some of the shares, should take reasonable
precautions to satisfy himself that securities retained to be appropriated
to other shares are sufficient (g). With these exceptions, a trustee
must observe certain rules laid down by courts of equity for the
exercise of the discretion of trustees, which import (to say the least)
extraordinary diligence and vigilance in the management of the trust
property (h).
§ 1273. Thus, if a trustee should lay out trust funds in any stock
not authorized by Act of Parliament or by the instrument creating
the trust, although there should be no mala fides; yet, if the stock
should fall in value, he would be held responsible for the loss (t). In
other words, a court of equity will, in such cases, require that a
trustee should lact with all the scrupulous circumspection, caution, and
wisdom, with which the court itself, from its long experience and
superior means of information, is accusto^med to act: a doctrine,
certainly, somewhat perilous to trustees, and startling to uninstructed
minds. It is, to adopt the language of Lord Bacon, substituting for
the private conscience of the trustee, " the general conscience of the
realm, which is chancery " (fc).
§ 1274. So, if a trustee should invest trust-money in mere personal
securities, however unexceptionable they might seem to be, in case
of any loss by the bankruptcy of the borrower, he would be held
responsible (Z). Nay, it will be at the peril of the trustee to suffer

iz) Perrins v. Bellamy, [1899] 1 Ch. 797; In re AUop, Whitaker v. Bamford,

[1914] 1 Ch. 1..
(a) National Trustee Co. of Australasia v. General Finance Co., [1905] A. C. 373.
(b) In re Stuart, Smith v. Stuart, [1897] 2 Ch. 583; In re Dive, Dive v Roebuck,
[1909] 1 Ch. 328.
(c) In re Lord De Clifford, Lord De Clifford v. Quilter, [1900] 2 Ch. 707 ; In re
Mackay, Griessermann v. Carr, [1911] 1 Ch. 300.
(d) Perrins v. Bellamy, [1899] 1 Ch. 797 ; In re Allsop, Whitaker v. Bamford,
[1914] 1 Ch. 1.
(e) In re Roberts, Knight v. Roberts, 76 L. T. 479.
(/) In re Grindey, Clews v. Grindey, [1898] 2 Ch. 593.
(g) In re Brookes, Brookes v. Taylor, [1914] 1 Ch. 558.
(h) See Learoyd v. Whiteley, 12 App. Cas. 727.
(i) Hancom v. Allen, 2 Dick. 498; Trafford v. Boehm, 3 Atk. 444. See Fyler v.
Fyler, 3 Beav. 550.
(fc) Bacon on Uses, by Eowe, p. 10.
{I) Adye v. Feuilleteau, 1 Cox, 24; Wilkes v. Steward, Q. Coop. 6.
 § 1273 1277.] IMPLIED TRUSTS. 535

a debt to remain upon the mere personal credit of the debtor, although
the testator, who created the trust, had left it in that very state (m).
The principle is even carried further ; and in cases of personal security
taken by a trustee, he is made responsible for .all deficiencies, and is
also chargeable for all profits, if any are made. So that he acquires
a double responsibihty, although, in such cases, he may have acted
with entire good faith, in the exercise of what he supposed to be a
sound discretion (w).
§ 1275. In relation to trust property, it is the duty of the trustee,
whether it be real estate or be personal estate, to defend the title at
law, in case of any action being brought respecting it; to give notice,
if it may be useful and practicable, of such suit to. his cestui que
trust; to prevent any waste, or delay, or injury to the trust property;
to keep regular accounts (o) ; to afford accurate information to the
cestui que trust of the disposition of the trust property; and if he
has not all the proper information to put his beneficiaries in the way
to obtain it (p). Finally; he is to act in relation to the trust property
witih reasonable diligence; and in oases of a joint trust, he must
exercise due caution and vigilance in respect to the approval of, and
acquiescence in, the acts of his co-trustees; for, if he should deliver
over the whole management to. the others, and betray supine indiffer-
ence, or gross negligence, in regard to the interests of the cestui que
trv,st, he will be held responsible (q).
§ 1276. These remarks apply to the ordinary ease of a trustee,
having a general discretion and exercising his powers without any
special directions. But where special directions are given by the
instrument creating the trust, or special duties are imposed upon
the trustee, he must follow out the objects and intentions of the
parties faithfully, and be vigilant in the discharge of his duties.
There are, necessarily, many incidental duties and authorities,
belonging to almost every trust, which are not expressed. But
these are to be as steadily acted upon and executed, as if they were
expressed. It would be impossible, in a work like the present, to
make even a general enumeration of these incidental duties and
authorities of a trustee ; as they must always depend upon the peculiar
objects and structure of the trust.
§ 1277. In regard to interest upon trust funds, the general rule
is, that, if a trustee has made interest upon those funds, or ought

(to) Lowson v. Copeland, 2 Bro. Ch. C. 156, and Mr. Belt's note; Walker v.
Symonds, 3 Swanat. 1; Styles v. Gury, 1 Mac. & G. 422; In re Brogden, Billing v
Brogden, 38 Ch. D. 546.
(n) Adye v. Feuilleteau, 3 Swanst. 84, note; s.c 1 Cox 24.
(o) Freeman v. Fairlie, 3 Meriv. 29, 41 ; Pearse v. Green, 1 Jac. & Walk. 135,
140; Adams v. Clifton, 1 Buss 297.
(p) Walker v. Symonds, 3 Swanst. 68, 73; In re Tillott, Lee v. Wilson, [1892] 1
Ch. 86; In re Dartnall, Sawyer v. Goddard, [1895] 1 Ch. 474.
(q) Bone v. Cook, McCl. 168; Burrowes v. Wales, 5 De G. M. & G. 233.
536 EQUITY JURISPRUDENCE. [CH. XXXII.

to have invested them so as to yield interest, he shall, in each case,

be chargeable with the payment of interest (r). In some oases, courts
of equity will even direct annual or other rests to be made; the
effect of which will be, to give to the cestui que trust the benefit of
compound interest. But such an interposition requires extraordinary
circumstances to justify it (s). Thus, for example, if a trustee,
in manifest violation of his trust, has applied the trust funds to his
own benefit land profit in trade; or has sold out the trust stock, and
applied the proceeds to his own use; or has conducted (himself
fraudulently in the management of the trust funds; or has wilfully
refused to follow the positive directions of the instrument creating
the trust, as to investments; in these, and the like cases, courts of
equity will fix the defaulter with a penal rate of interest (t). The
true rule in equity in such cases is, to take care that all the gain shall
go to the cestui que trust.
§ 1278. The object of this whole doctrine is, to compensate the
cestui que trust, and to place him in the same situation as if the
trustee had faithfully performed his own proper duty. It has even a
larger and more comprehensive aim, founded in public policy, which
is to secure fidelity by removing temptation, and by keeping alive a
sense of personal interest and personal responsibility. It seems, how-
ever, to have been of a comparatively late introduction into equity
jurisprudence ; and probably was little known in England at an earlier
period than the reign of Charles the Second.
§ 1279. The Roman law acted with the same protective wisdom
and foresight. In that law, if a guardian, or other trustee, was guilty
of negligence in suffering the money of his ward to remain idle, he
was chargeable, at least, with the ordinary interest. " Quod si
pecunia mansisset in rationibus pupilli, prsestandum quod bona fide
percepisset, aut percepere potuisset, sed fcenori dare, cum potuisset,
neglexisset; cum id, quod ab alio debitore nomine usurarum cum
sorts datur, ei, qui accipit, totum sortis vice fungitur, vel fungi
debet " (u). But where the guardian, or other trustee, went beyond
the point of mere negligence, and was guilty of a gross abuse of his
trust, the Eoman law sometimes inflicted upon him a grievous interest,
in the nature of a compound interest, but often greatly exceeding
it (x). " Quoniam, ubi quis ejus pecuniam, cujus tutelam negotiave
administrat, aut Magistratus municipii publicam in usus suos convertit,

(r) Byrchall v. Bradford, 6 Mad. 235 ; Robinson v. Robinson, 1 De G. M. & G.

247 ; Aspland v. Watt, 20 Beav. 474.
(s) Raphael v. Boehm, 11 Ves. 91; 13 Ves. 407, 591; In re Barclay, Barclay v.
Andrew, [1899] 1 Ch. 674.
(t) Hall v. Hallet, 1 Cox, 134; Walmesley v. Walmesley, 3 Jo. & Lat. 556; Gray
v. Haig, 20 Beav. 219; In re Stevens, Cooke v. Stevens, [1898] 1 Ch. 162; In re Davis,
Davis V. Davis, [1902] 2 Ch. 314.
(u) Dig Lib. 26, tit. 7, f. 58, § 1; ibid. f. 7, § 3, 4.
(x) See Pothier, Band. Lib. 27, tit. 3, n. 47 ; 1 Domat, B. 5, tit. 5, § 1, art. 14.
§ 1278—1281.] IMPLIED TEUSTS. 537

maximas usuras prsestat. Sed istius diversa causa est, qui non sibi
sumsit ex administratione nummos, sed ab amico accepit, at ante
negotiorum administrationem. Nam illi, de quibus constitutum est
(cum gratuitam certe integram et abstinentem omni lucro prsestare
fidem deberent) licentia, qua videntur abuti, maximis usuris, vice
cujusdam pcEnsB, subjieiuntur " (y).
§ 1280. In cases where there are several trustees, the point has
often arisen, how far they are to be deemed responsible for the acts of
each other. The general rule is, that they are responsible only for
their own acts, and not for the acts of each other, unless they have
made some agreement, by which they have expressly agreed to be
bound for each other ; or they have, by their own voluntary co-
operation or connivance, enabled one or more to accomplish some
known object in violation of the trust (a). And the merejiact that
trusteses, who are authorized to seU lands for money, or to receive
money, jointly execute a receipt -for the money to the party who is
debtor or purchaser, will not ordinarily make either liable, except for
so much of the money as has been received by him; although in the
case of executors, it would be different. The reasons assigned for the
doctrine and the difference are as follows. Trutees have all equal
power, interest, and authority, and cannot act separately, as executors
may ; but must join, both in conveyances and receipts. For one
trustee cannot sell without the other; or make a claim to receive
more of the consideration-money, or to be more a trustee than the
other. It would, therefore, be against natural justice to charge
them (seeing they are thus compellable, either not to act at all or
to act together) with each other's receipts, unless there be some
default or negligence on their own part, independent of joining in
such receipt (a).
§ 1281. The propriety of the doctrine, which, in favour of trustees,
makes them liable only for their own acts and receipts, has never
been questioned; and, indeed, stands upon principles of general justice.
It has been well said, that it seems to be substantial injustice to
decree a man to answer for money which he did not receive, at the
same time, that the charge upon him, by his joining in the receipt,
is but riotional (b). There is a good deal more question as to the
distinction, which is made unfavourably in regard to executors, who
have a several authority by law, and whose signature as an admission
of liability, is now finally established in the equity jurisprudence of
England (c).

(y) Dig. Lib. 3, tit. 5, f. 38. See also Dig. Lib. 26, tit. 7, f. 7, § 4 to 10; ibid.
Lib. 6, tit. 56.
(z) Ante, § 1275.
(o) Townley v. Sherbume, J. Bridgm. 35; Brice v. Stokes, 11 Ves. 319.
(b) Lord Cpwper, in Fellows v. Mitchell, 1 P. Will. 83.
(c) Brice v. Stakes, 11 Ves. 319; Moses v. Levi, 3 Y. & C. Ex. 359.
538 EQUITY JUEISPRtJDENCE. [CH. XXXII.

§ 1282. But, although the general rule, in regard to trustees, is

that they shall be liable only for their own acts and receipts, yet some
nice distinctions have been indulged by coiurts of equity, which require
notice in this place. Thus, for example, it has been said, that, where
they join in a receipt for money, and it is not distinguisihable on the
face of the receipt, or by other proper proofs, how much has been
received by one and how much by the other trustee, it is reasonable
to charge each with the whole (d). The case has been likened to that
of a man throwing his own corn or money into another man's heap,
where there is no reason that he who made this difficulty should have
the whole; on the contrary, because it cannot be distinguished he
shall have no part, where he who has made the difficulty shall not be
permitted to avail himself of it ; but, if there is any loss, he shall bear
it himself (e).
§ 1283. Perhaps the following may be found to be the truest exposi-
tion of the principle, which ought, in justice, to regulate every case of
this sort, whether it be the case of executors, or of guardians, or of
trustees. It is, that if two executors, guardians, or trustees, join in a
receipt for trust money, it is prima facie, although not absolutely, con-
clusive evidence that the money came to the hands of both. And either
of them may show, by satisfactory proof, that his joining in the receipt
was necessary, or merely formal, and that the money was, in fact, all
received by his companion. But without such satisfactory proof, he
ought to be held jointly liable to account to the cestui que trust for the
money, upon the fair implication, resulting from his acts, that he did
not intend to exclude a joint responsibility (/). But, wherever either a
trustee, or an executor, by his own negligence or laches, suffers his co-
trustee or co-executor to receive or waste the trust fund or assets of the
testator, when he has the means of preventing such receipt and waste,
by the exercise of reasonable care and diligence, then, and in such a
ease, such trustee or executor should be held personally responsible for
the loss occasioned by such receipt and waste of his co-trustee or co-
executor (g).
§ 1283a.. The mere appointment by the trustees of one of them to
be the factor of the others for the property, is not of itself such a breach
of trust as subjects the other trustees to all the consequences of it, nor
does it make them liable as such for permitting the factor trustee to
retain balances in his hands, unless they are thereby guilty of gross
negligence. Still, however, by the appointment of such trustee as
factor, they become liable for his default as agent, although not as

(d) Fellows V. Mitchell, 1 P. Will. 83.

(e) Fellows v. Mitchell, 1 P. Will. 83. Per Lord Cowper.
(/) Scurjield v. Howes, 3 Bro. C. C. 90, and Mr. Belt's notes; Joy v. Campbell, 1
Sch. & Lefr. 341 ; Williams v. Nixon, 2 Beav. 472.
(g) Walker v. Symonds, 3 Swanst. 1; Williams v. Nixon, 2 Beav. 472; Dar6t-
shire v. Home, 3 De G. M. & G. 80.
§ 1282— 1284c.] IMPLIED TRUSTS. 539

trustee, in the same way that they would be Uable for the default of
any other person whom they might appoint to the office Qi). And a
trustee, by becoming the factor or cashier of the trust property, does not
thereby incur any additional liability in respect to its management
beyond what he was subject to as trustee (i).
§ 1284. Again ; if, by any positive act, direction, or agreement of
one joint executor, guardian, or trustee, the trust money is paid over,
and comes into the hands of the other, when it might and should have
been otherwise controlled or secured by both, there each of them will
be held chargeable for the whole, or so much thereof as has been mis-
applied (&). So, if one trustee should wrongfully suffer the other to
detain -the trust money a long time in his own hands, without security ;
or should lend it to the other on his simple note; or should join with
the other in lending it to a tradesman upon insufficient security ; in all
such cases he will be deemed liable for any loss (I). A fortiori, one
trustee will be liable, who has connived at, or been privy to, an embezzle-
ment of the trust money by another ; or if it is mutually agreed between
them that one shall have the exclusive management of one part of the
trust property, and the other of the other part (w).
§ 1284a-. But here it may be important to take notice of another
illustration of the doctrine, that courts of equity administer their aid
only in favour of persons who exercise due diligence to enforce their
rights, and are guilty of no improper acquiescence or delay ; upon the
maxim so often referred to, " Vigilantibus, non dormientibus, ssquitas
subvenit. " Hence, if there be a clear breach of trust by a trustee;
yet, if the cestui que trust, or beneficiary, has for a long time acquiesced
in the misconduct of the trustee, with full knowledge of it, a court of
equity will not relieve him • but leave him to bear the fruits of his own
negligence or infirmity of purpose (w).
§ 1284b. The course of inquiry in the courts of equity in regard to
the default of trustees, is as follows : — A trustee cannot be put on trial
there, for an account on the footing wilful default or neglect, unless the
plaintiff prove, and in former times also had alleged in his pleadings,
at least one act of wilful neglect, or default before the master (o).
§ 1284c. And where there are numerous trustees, the personal
responsibility of each, for the acts of the others, must depend much

(h) Home v. Pringle, 8 CI. & F. 264; Toplis v. HuttbU, 19 Beav. 198; Shepherd
V. Harris, [1905] 2 Ch. 310.
(t) Home V. Pringle, 8 CI. & F. 264. See Davis v. Spurling, 1 Eusa. & M. 64.
(fc) Broadhurst v. Balguy, 1 Y. & C. Ch. 17; Hewitt v. Foster, 6 Beav. 259;
Frutch V. Lamprell, 20 Beav. 116.
(!) Sadler v. Hobbs, 2 Bro. C. G. 114; Keble v. Thompson, 3 Bro. C. C. 112;
Langston v. Ollivant, G. Coop. 33; Burrows v. Walls, 5 De G. M. & G. 283.
(m) Boardman v. Mosman, 1 Bro. C. C. 68.
(n) Broadhurst v. Balguy, 1 Y. & Coll. Ch. 16; Paddon v. Bichardson, 7 Be Gr.
M. & G. 563.
(o) Sleight v. Lawson, 3 K. & J. 292; In re Youngs, Doggett v. Revett, 30 Ch.
D. 421.
540 EQUITY JURISPRUDENCE. [CH. XXXII.

upon his ability to interpose and hinder the others from pursuing the
course which resulted in the loss. This will depend upon the nature of
the trust, and how far the duty and right to act is joint, and incapable
of execution, except by the concurrence of all the trustees. In general,
this concurrence is required in regard to trusts which are of a private
and personal nature (p). But in regard to such trusts as are of a public
nature, the trustees may act by the majority (g). But executors in
the settlement of estates, may act severally, as in the collection of
debts (r).
§ 1285. In cases of a breach of trust, the question has arisen, in
what light the debt, created by such breach of trust, is to be viewed ;
whether it is to be deemed a debt by simple contract, and so Ijiading
upon the personal assets, only, of the trustee, or a debt by specialty.
At law, so far as any remedy exists there, the debt is treated as a simple
contract debt, even though the trust arises under a deed executed by the
trustees, and contains a clause, that no trustee shall be chargeable or
accountable for any money arising in execution of the trust, except what
he shall actually receive, unless there be some corresponding covenant
also on the part of the trustees. For this is a common clause of indem-
nity in trust deeds ; and the true sense of it is, that the trustees shall not
be accountable for more than they receive. They are, in fact, account-
able for what they actually receive, but not accountable as under a
covenant (s).
§ 1286. The rule in courts of equity is the same. The debt created
by a breach of trust is there considered but as a simple contract debt,
even although circumstances of fraud appear ; unless, indeed, the trustee
in the trust deed use any words which can be construed as a covenant
by himself (i). But, cases of this sort have long since ceased to be of
practical importance in England.
§ 1287. Courts of equity will not only hold trustees responsibl© for
any misapplication of trust property, and any gross negligence or wilful
departure from their duty in the management of it; but they will go
farther, and in cases requiring such a remedy, they will remove the old
trustees and substitute new ones. Indeed, the appointment of new
trustees is an ordinary remedy, enforced by courts of equity under their
inherent jurisdiction not only where there is a failure of suitable trustees
to perform the trust, either from accident, or from the refusal of the old
trustees to act, or from their original or supervenient incapacity to act,
but in all cases where that course is deemed advisable (m). Where the
scheme of a charity provided, that if " any or either of the trustees
(p) Ante, § 1062.
(q) Perry v. Shipway, 2 De G. & J. 853.
(r) Hudson v. Hudson, 1 Atk. 460 ; Smith v. Everett, 27 Beav. 446,
(s) Bartlett v. Hodgson, 1 T. E. 42, 44.
(t) Vernon v. Vawdry, 2 Atk. 119; Isaacson v. Harwood, L. E. 3 Ch. 225 ; Holland
v. Holland, L. E. 4 Ch. 449.
(u) Lettershedt v. Broers, 9 App. Cas. 371.
 § 1285 — 1291.] IMPLIED TRUSTS. 541

should depart from the United Kingdom, from whatever cause or

motive, or under whatsoever circumstances, he should be considered
as discharged, and disqualified," it was held that a temporary absence
abroad was not within the provision (x). The High Court is now
empowered by section 25 of the Trustee Act, 1893 (56 & 57 Vict. c. 24),
to appoint a new trustee or new trustees either in substitution for or in
addition to any existing trustee or trustees, or although there is no exist-
ing trustee, whenever it is expedient to do so, £ind it is found inexpedient,
difficult, or impracticable to do so without the assistance of the court.
And without prejudice to the generality of this power, a conviction for
felony, or bankruptcy (y), are particularized as grounds for removal.
§ 1288. The doctrine seems to have been carried so far by the courts,
as to remove a joint trustee from a trust, who wished to continue in it
without any direct or positive proof of his personal default, upon the
• mere ground that the other co-trustees would not act with him; for,
in a case where a trust is to be executed, if the parties have become so
hostile to each other that they will not act together, the very danger to
the due execution of the trust, and the due disposition of the trust fund,
requires such an interpositioti to prevent irreparable mischief («).
§ 1289. But, in cases of positive misconduct, courts of equity have
no difficulty in interposing to remove trustees who have abused their
trust (a). It is not, indeed, every mistake, or neglect of duty, or
inaccuracy of conduct of trustees, which will induce courts of equity
to adopt such a course (b). But the acts or omissions must be such as
to endanger the trust property, or to show a want of honesty, or a
want of a proper capacity to execute the duties, or a want of reason-
able fidelity.
§ 1290. Before concluding the subject of trusts, it may be proper
to say a few words in regard to such trusts as either attach to trust
property situate in a foreign country, or are properly to be executed in
a foreign country. The considerations belonging to this branch of equity
jurisprudence are not, indeed, limited to cases of trust; and, therefore,
we shall here bring them together in one view, as, for the most part,
they are equally applicable to every subject within the reach of equitable
relief.
§ 1291. The jurisdiction of courts of equity, in regard to trusts, as
well as to other things, is not confined to cases where the subject-matter
is within the absolute reach of the process of the court, called upon to
act upon it; so that it can be directly and finally disposed of, or affected
by the decree. If the proper parties are within the reach of the process
(x) In re The Moravian Society, 26 Beav. 101.
(y) In re Bridgman's Trust, 1 Dr. & Sm. 164; In re Adam's Trust, 12 Ch. D. 634.
(z) Uvedale v. Ettrick, 2 Ch. Cas. 130; decided by Lord Nottingham, Com. Dig.
Chancery, 4 W. 7.
(a) Earl of Portsmouth v. Fellows, 5 Mad. 450; Mayor of Coventry v. Att.-Gen.,
7 Bro. P. C. by Tomlina, 235.
(6) Att.-Gen. v. Caius College, 2 Keen 150.
542 EQUITY JURISPRUDENCE. [OH. XXXII.

of the court, it will be sufficient to justify the assertion of full jurisdic-

tion over the subject-matter in controversy (c). The decrees of courts
of equity do, primarily and properly, act in personam, and, at most,
collaterally only in rem. Hence, the specific performance of a contract
for the sale of lands, lying in a foreign country, will be decreed in equity,
whenever the party is resident within the jurisdiction of the court (d).
So, an injunction will, under the like circumstances, be granted to stay
proceedings in a suit in a foreign country (e).
§ 1292. These are not, however, peculiar or privileged cases for the
exercise of jurisdiction; for courts of equity will, in all other cases, where
the proper parties are within the territorial sovereignty, or within the
reach of the territorial process, administer full relief, although the pro-
perty in controversy is actually situate in a foreign country, unless,
indeed, the relief which is asked is of a nature which the court is incap-
able of administering. Many instances of this sort may readily be '
adduced, to illustrate this general doctrine and its exceptions. Thus,
a party resident in England, who was a joint-tenant of land, situate in
Ireland, was decreed to account for waste of such land in a Court of
Chancery in England, but the bill so far as it sought a partition of the
same land was dismissed ; because (as has been said) it is in the realty,
and the court cannot award a commission into Ireland ; and a biU for
a partition is in the nature of a writ of partition at the common law,
which lieth not in England for lands in Ireland (/).
§ 1293. The same doctrine is applied to cases of trusts attached to
land in a foreign country. They may be enforced by a court of equity in
the country where the trustee is a resident, and to whose process he
may rightfully be subjected (g). It is also applied to cases of mort-
gages of lands in foreign countries. And a bill to foreclose or redeem
such a mortgage may be brought in any court of equity, in any other
country, where the proper parties are resident. It was aptly said, by
Sir Eichard Pepper Arden, Master of the Eolls, in a case then before
him : "It was not much litigated that the courts of equity here have
an equal right to interfere with regard to judgments and mortgages upon
the lands in a foreign country, as upon lands here. Bills are often filed
upon mortgages in the West Indies. The only distinction is, that this
court cannot act upon the land directly, but acts upon the conscience
of the person here." And after citing some cases to this efEect, he
added: " These cases clearly show, that, with regard to any contract
made in equity between persons in this country respecting lands in a

(c) Penn v. Lord Baltimore, 1 VeB. 444.

(d) Penn v. Lord Baltimore, 1 Ves. 444; ante, § 743.
(e) Ante, § 899.
(/) GaHeret v. Petty, 2 Swanst. 323.
(g) Harrison v. Ourney, 2 Jac. & W. 563; Hope v. Carnegie, L. E. 1 Ch. 320;
Swing v. Orr Ewing, 9 App. Gas. 34; 10 App. Gas. 453.
§ 1292—1295.] IMPLIED TRUSTS. 543

foreign country, particularly British dominions, this court will hold the
same jurisdiction as if they were situate in England " (h).
§ 1294. The same doctrine is applied to cases of frauds, touching
contracts or conveyances of real property situate in a foreign country.
Thus, if a rent-charge is fraudulently obtained on lands lying in Ireland,
a bni to set it aside will be sustained in the Court of Chancery in
England, if the defendant is a resident there (i). Courts of equity have
gone even further, and have, in effect, as between the parties, over-
hauled the judgments of foreign courts, and even the sales made under
those judgments, where fraud has intervened in those judgments, or a
grossly inequitable advantage has been taken (k). In such cases they
do not, indeed, disregard such judgments, or directly annul or control
them. But they arrive at the equities between the parties in the same
manner as they would if the proceedings had been mere matters in pais,
subject to their general jurisdiction (l).
§ 1295. In some instances, language has been used which may be
supposed to limit the jurisdiction to cases where the lands, though
situate abroad, are yet within the general sovereignty of the nation
exerting the equitable jurisdiction ; as, for instance, suits in the
Chancery of England, in regard to contracts, trusts, frauds, and other
matters, touching lands in Ireland, or in the colonies of Great Britain.
Lord Hardwicke, on one occasion, said, on this subject: " The different
courts of equity are held under the same Crown, though in different
dominions ; and, therefore, considering this as a court abroad, the point
of jurisdiction is the same as if in Ireland. And it is certain, where the
provision is in England, let the cause of suit arise in Ireland, or the
plantations, if the bill be brought in England, as the defendant is here,
the courts do agere in persona<m, and may, by compulsion of the person
and process of the court, compel him to do justice " (m). As was
pointed out by the author, the Court of Chancery in England exercised
a wider jurisdiction, but whether that extended jurisdiction does or does
not exist, the court will not entertain proceedings relating to trusts of
land in a foreign country, except so far as relates to administration (n).

(h) Lord Granstown v. Johnston, 3 Ves. Jun. 182.

(i) Earl of Arglasse v. Muschamp, 1 Vern. 75.
(k) See Smith v. Mojfatt, L. E. 1 Eq. 397.
(I) Lord Granstown v. Johnston, 3 Ves. Jun. 170; Jackson v. Petrie, 10 Ves. 165;
White v. Hall, 12 Ves. 321 ; Story on Conflict of Laws, § 644, 545 ; Com. Dig. Chancery,
3 X. 4 W. 27.
(to) Foster v. Vassall, 3 Atk. 589.
(n) In re Hawthorne, Graham v. Massey, 23 Ch. D. 743; Deschamps v. Miller,
[1908] 1 Ch. 856.
544 EQUITY JURISPRUDENCE. [CM. XXXIII.

CHAPTER XXXIII.

PENALTIES AND FORFEITURES.

§ 1301. Having thus gone over some of the principal heads of trusts,
which are cognizable in equity, we shall now proceed to another im-
portant branch of equity jurisprudence, to wit, that which is exercised
in cases of Penalties and Forfeitures, for breaches of conditions and
covenants. Originally, in all cases of this sort, there was no remedy
at law; but the only relief which could be obtained was exclusively
sought in courts of equity. Courts of common law were empowered by
statute to grant relief in certain cases, but it was held that the original
jurisdiction, however, in equity, still remained, notwithstanding the
concurrent remedy at law (a) ; and, a fortiori, cases not within the pur-
view of the statutes remained in the exclusive jurisdiction of the Court
of Chancery.
§ 1302. Before entering upon the examination of this subject, it
may be well to say a few words in regard to the nature and effect of
conditions at the common law, as it may help us more distinctly to
understand the nature and extent of equity jurisdiction in regard to
conditions. At law (and in general the same is equally true in equity),
if a man undertake to do a thing, either by way of contract or by way of
condition, and it is practicable to do the thing, he is bound to perform
it, or he must suffer the ordinary consequences : that is to say, if it be
a matter of contract he will be liable at law for damages for the non-
performancif
e ; it be a condition, then his rights, dependent upon the
performance of the condition, will be gone by the non-performance.
The difficulty which arises is, to ascertain what shall be the eSect in
cases where the contract or condition is impossible to be performed,
or where it is against law, or where it is repugnant in itself or to the
policy of the law (b).
§ 1303. In regard to contracts, if they stipulate to do anything
against law, or against the policy of the law, or if they contain repugnant
and incompatible provisions, they are treated at the commori law as
void ; for, in the first case, the law will not tolerate any contracts which
defeat its own purposes ; and, in the last case, the repugnancy renders
it impossible to ascertain the intention of the parties ; and, until ascer-

(a) See ante, § 89 ; Seton v. Slade, 7 Ves. 274.

(6) See Butler's note (1) to Co. Litt. 206.
§ 1301 — 1306.] PENALTIES AND FORFEITURES. 645

tained, it would be absurd to undertake to enforce it. On the other

hand, if the parties stipulate for a thing impossible to be done, and
known on both sides to be so, it is treated as a void act, and as not
intended by the parties to be of any .validity. But if only one party
knows it to be impossible, and the other does not, and is imposed upon,
the latter may compel the former to pay him damages for the imposi-
tion (c). So, if the thing is physically possible, but not physically
possible for the party, still it will be binding upon him, if fairly made ;
for he should have weighed his own ability and strength to do it (d).
§ 1304. In regard to conditions, they may be divided into four
classes : (1) Those which are possible at the time of their creation, but
afterwards become impossible either by the act of God, or by the act
of the party ; (2) Those which are impossible at the time of their crea-
tion; (3) Those which are against law, or public policy, or are mala in se
or mala ■prohibita; (4) Those which are repugnant to the grant or gift,
by which they are created, or to which they are annexed (e). The
general rule of the common law in regard to conditions is, that, if they
are impossible at the time of their creation, or afterwards become im-
possible bythe act of God, or of the law, or of the party who is entitled
to the benefit of them (as, for example, the feoffor of an estate, or the
obligee of a bond), or if they are contrary to law, or if they are repugnant
to the nature of the estate or grant, they are void. But, if they are
possible at the time, and become subsequently impossible by the act
of the party who is to perform them, then he is treated as in delicto,
and the condition is valid and obligatory upon him. But the operation
of this rule will, or may, as we shall presently see, under different
circumstances of its application, produce directly opposite results (/).
§ 1305. In the view of the common law, a condition is considered
as impossible, only when it cannot, by any human means, take effect;
as, for example, that the obligee shall go from the church of St. Peter,
at Westminster, to the church of St. Peter, at Eome, within three hours.
But if it be only in a high degree improbable, and such as it is beyond
the power of the obligee to effect, it is then not deemed impossible (g).
§ 1306. Conditions of all these various kinds will have a very
different operation, where they are conditions precedent, from what
they will have where they are conditions subsequent. Thus, for

(c) PuUeHon v. Agnew, 1 Salk. 172; Hall v. Cazenove, 4 East, 477; Com. Dig.
Condition, D. 1.
(d) Thornborrow v. Whiteacre, 2 Ld. Eaym. 1164. A court of equity would relieve
against a contract, like that in 2 Ld. Baym. 1164; and James v. Morgan, 1 Lev. Ill,
upon the ground of fraud or imposition, or unoonaoionable advantage taken of the party.
Ante, § 188, 331.
(e) This is the classification by Mr. Butler, in his learned note (1) to Co. Litt. 206
o. See also Com. Dig. Condition, D. 1 to 8.
(/) Co. Litt. 206 a, and Butler's note; and post, § 1307; In re Greenwood, Good-
hart V. Woodhead, [1903] 1 Ch. 749.
(g) Co. Litt. 206 a, and Mr. Butler's note (1) ; Com. Dig. Condition, D. 2.
E.J. 35
-546 EQUITY JURISPRUDENCE. [CH. XXXIII.

example, if an estate is granted upon a condition subsequent, that is

to say, to be performed after the estate is vested, and the condition is
void for any of the causes above stated, there, the estate becomes
absolute (h). But if the condition is precedent, or to be performed
before the estate vests, there, the condition being void, the estate,
which depends thereon, is void also, and the grantee shall take nothing
by the grant; for he hath no estate, until the condition is performed (i).
Thus, if a feoffment is made to a man in fee-simple, on condition, that,
unless he goes from England to Rome in twenty-four hours, or unless
he marries A. before such a day, and she dies before that day, or marries
the feoffor, or unless he kills another, or in case he aliens in fee, then,
and in every such case, the estate shall be void, and determine; in
all these cases, the condition is void, or impossible, and being a condi-
tion subsequent, the estate is absolute in the feoffee. But if, on the
other hand, a grant be made to a man, that, if he kills another, or if
he goes from England to Rome within twenty-four hours, or if he
marries A. before such a day, and before that day she dies, or if he does
not aliene an estate before such a day, and he has already aliened it, then,
and in that event, he shall have an estate in fee ; in all these cases, the
condition being void, or impossible, and being a condition precedent,
no estate ever vests in the grantee (k).
§ 1307. On the other hand, if a bond or other obligation be upon
a condition, which is impossible, illegal, or repugnant at the time when
it is made, the bond is single, and the obligor is bound to pay it. But,
if the condition be possible at the time when it is made, and afterwards
becomes impossible by the act of God, or of the law, or of the obligee,
there, the bond is avoided, and the obligor is not bound to pay it (I).
But, if the condition is in the disjunctive and gives liberty to do one
thing or another, at the election of the obligor; and both are possible
at the time, but one part is or afterwards becomes impossible by the
act of God, or of the obligee, that which is possible, ought to be per-
formed (Tn).
§ 1307a. And where a devise was made to the vicar of a certain
parish upon condition to read prayers, in the church, at the hour of
eleven in the forenoon, upon every Wednesday, for ever; and that
every vicar who did not observe the condition should take no advantage
from the will ; it was held that the neglect upon which the devise would

(fc) Ridgway v. Woodhouse, 7 Beav. 437 ; Gorbett v. Corbett, 14 P. D. 7 ; Part-

ridge V. Partridge, [1894] 1 Ch. 351.
(t) Roundel v. Currer, 2 Bro. C. C. 67; Robinson v. Wheelwriqht, 6 De G.
M. & G. 535.
(k) Co. Litt. 206 a.
(l) Com. Dig. Condition, 1; Co. Litt. 206 a; Butler v. Wigge, 1 Wins. Saund. 84;
Thornborrow v. Whiteacre, 2 Ld. Raym. 1164; Roberts v. Bury Improvement Commis-
sioners, L. E. 5 C. P. 310.
(m) Com. Dig. Condition
Wins. Saund. 84; Da Costa v. D. 1, Laughter's
Davis, 1 Boa. & P. Case,
242 5 Co. 21 b ; Butler v. Wigge, 1
§ 1307 1310.] PENALTIES AND FORFEITURES. 547

go over must be a wilful neglect, and that a vicar who did all in his
power to get a congregation together at the church to hear prayers, and
could not, was not bound to tender himself every Wednesday morning,
at the church, to perform the duty, in order to save the benefits of the
devise (n).
§ 1308. The Eoman law, if it does not entirely coincide with the
common law on the subject of conditions, is, in many respects, founded
on similar considerations. If an impossible condition was annexed to
a stipulation, the stipulation was, by that law, void. " Si impossibilis
conditio obligationibus adjiciatur, nihil valet stipulatio (o). Item; quod
leges fieri prohibent, si perpetuam causam (prohibitionis) servaturum
est, cessat obligatio " (p). That rule, of course, applied to the case
where the condition constituted a part of the stipulation. " Impossi-
bilium nulla obligatio est " (q). Pothier states the doctrine of the civil
law in the following manner. The condition of a thing impossible, un-
lawful, or contrary to good morals, under which one promises anything,
renders the act absolutely void, when it lies in feasance (in faciendo),
and no obligation springs from it (r). As, if I have promised you a sum
of money upon condition that you make a triangle without angles, or
that you shall go naked through the streets (s).
§ 1309. In another place, a distinction is taken in the Roman law
approaching nearer to that in the common law. " Impossibilis con-
ditio, cum in faciendum concipitur, stipulationibus obstat; alitor atque,
si talis conditio inseratur stipulationi, si in coelum non ascenderit; nam
utilis et proesens est, et peouniam ereditam continet " (f).
§ 1310. A condition was accounted impossible in the Eoman law
when it consisted of a thing of which nature forbids the existence.
" Impossibilis autem conditio habetur, oui natura impedimento est,
quominus existat " (u). But a stipulation, which was not possible to
be complied with by the party stipulating, but was possible to another
person, was held obligatory. " Si ab eo stipulatus sim, qui eificere non
possit, quum alii possibile sit; jure factam obligationem, Sabinus
scribit " (x). The same principles were still more emphatically
expounded in other places in the Digest. ' ' Non solum stipulationes
impossibili conditione adplicatse nullius momenti sunt; sed etiam casteri

(n) Conington's Will, in re, 6 Jur. N. S. 992. One might be allowed to question
here, how far the testator's purpose depended upon the presence of a congregation. He
might have supposed prayers not altogether idle, in the absence of hearers; and shall
his purpose be frustrated ?
(o) Inst. B. 3, tit. 20, § 11; Pothier, Pand. Lib. 45, tit. 1, nn. 40, 98.
(p) Pothier, Pand. Lib. 45, tit. 1, n. 39; Dig. Lib. 45, tit. 1, f. 35, § 1.
(g) Dig. Lib. 50, tit. 17, f. 185.
(r) Pothier, Oblig. n. 204.
(s) Ibid.
(t) Dig. Lib. 45, tit. 1, f. 7; Inst. Lib. 3, tit. 20, § 11; Pothier, Oblig. n. 204;
Pothier, Pand. Lib. 46, tit. 1, n. 98.
(u) Ibid. : Inst. Lib. 3, tit. 20, § 11.
(x) Dig. Lib. 34, tit. 1, f. 137, § 5 ; Pothier, Pand. Lib. 46, tit. 1, n. 39.
548 EQUITY JURISPRUDENCE. [CH. XXXIII.

quoque contractus (veluti emtiones locationes) impossibili eonditione

interposita, seque nuUius momenti sunt. Quia in ea re, quae ex duorum
pluriumve consensu agitur, omnium voluntas spectetur; quorum procul
dubio, in hujusmodi actu talis cogitatio est, ut nihil agi existiment,
apposita ea eonditione, quam soiant esse impossibilem " (y).
§ 1311. From what has been already said, it is obvious that if a
condition or covenant was possible to be performed, there was an obliga-
tion on the party, at the common law, to perform it punctiliously. If
he failed so to do, it was wholly immaterial, whether the failure was
by accident, or mistake, or fraud, or negligence. In either case, his
responsibility dependent upon it became absolute, and his rights depen-
dent upon it became forfeited or extinguished. Thus, for example, if
a bond was made with a penalty of £1,000, upon condition, that, if
£100 were paid to the obligee on or before a certain day it should be
void, if it was not paid at that day, from any cause whatsoever, except
the fault of the obligee, the obligation became single, and the obligor
was compellable, at law, to pay the whole penalty. So, if an estate was
conveyed upon condition, that, if a certain sum of money was paid to
the grantee on or before a certain day, it should be void (which con-
stituted what we will now call a mortgage), if the. money was not paid
at the day, the estate became (as we have seen), at law, absolute (s).
So (as has already been stated), if a sale was made of an estate, to be
paid for at a particular day, if the money was not paid at the day, the
right of the vendee, to enforce a performance of the contract at law,
was extinguished. On the other hand, if the vendor was unable or
neglected, at the day appointed, to make a conveyance of the estate,
the sale, as to him, became utterly incapable of being enforced at law (a).
§ 1312. Courts of equity did not hold themselves bound by such
rigid rules ; but they were accustomed to administer, as well as to refuse
relief, in many cases of this sort, upon principles peculiar to themselves;
sometimes refusing relief, and following out the strict doctrines of the
common law as to the efEect of conditions and conditional contracts ;
and sometimes granting relief upon doctrines wholly at variance with
those held at the common law. It may be necessary, therefore, to con-
sider each distinct class of cases separately; so that the principles
which governed in each may be more clearly developed.
§ 1313. In the first place, as to relief in cases of penalties annexed
to bonds and other instruments, the design of which is to secure the due
fulfilment of the principal obligation (fo). The origin of equity jurisdic-
tion in cases of this sort, is certainly obscure, and not easily traced to
any very exact source. It is highly probable, that relief was first granted

(y) Dig. Lib. 44, .tit! 7, f. 31 ; Pothier, Pand. Lib. 45, tit. 1, n. 98.
(z) Ante, § § 1004, 1012. (o) Ante, § § 771, 772, 776, 777.
(b) Mr. Evans, in a learned note to Pothier on Obligations (vol, 2, No. 12, pp. 81
to 111) has given a very elaborate review of the doctrine of penal obligations, to which
I invite the particular attention of the reader.
§ 1311 — 1315.] PENALTIES AND FORFEITURES. 549

upon ,the ground of accident, or mistake, or fraud, and was limited

to cases where the breach of the condition was by the non-payment
of money at the specified day. In such cases, courts of equity seem to
have acted upon the ground, that by compelling th© obligor to pay
interest during the time of his default, the obligee would be plticed in
the same situation, as if the principal had been paid at the proper day.
They wholly overlooked (as has been said) the consideration, that the
failure of payment at that day might be attended with mischievous
consequences to the obligee, which (in a rational sense) never could be
cured by any subsequent payment thereof, with the addition of interest.
Upon this account, the practice of affording relief in such cases has
been attacked, but the authority of the decisions regretfully admitted (c).
§ 1314. But whatever may be the origin of the doctrine, it has been
for a great length of time established, and is now expanded, §o as to
embrace a variety of cases not only where money is to be paid, but
where other things are to be done, and other objects are contracted
for. In short, the general principle now., adopted is, that, wherever a
penalty is inserted merely to secure the performance or enjoyment of
a collateral object, the latter is considered as the principal intent of
the instrument, and the penalty is deemed only as accessory, and,
therefore, as intended only to secure the due performance thereof or
the damage really incurred by the non-performance (d). In every
such case, the true test by which to ascertain whether relief can or
cannot be had in equity is, to consider whether the parties have agreed
to treat the sum mentioned as a complete satisfaction for the breach ;
if they have, courts of equity will refuse their peculiar remedies (e).
If it is t-o secure the performance of some collateral act or under-
taking, then courts of equity will grant relief, on the defendant paying
the damages which, to the court, seem tO' meet the necessity of the
case (/).
§ 1315. The same doctrine has been applied by courts of equity
to cases of leases, where a forfeiture of the estate, and an entry for the
forfeiture, is stipulated for in the lease, in case of the non-payment
of the rent at the regular days of payment; for the right of entry is
deemed to be intended to be a mere security for the payment of the
rent (g).. It has also been applied to cases where a specific per-
formance of contracts is sought to be enforced, and yet the party has
not punctually performed the contract on his own part, but has been

(c) Lord Bldon, C, Reynolds v. Pitt, 19 Ves. 134, 140; Jessel, M.E., Wallis v.
Smith, 21 Ch. D. 243, 257.
(d) Logan v. Wienholt, 1 CI. & F. 617 ; National Provincial Bank v. Marshall,
40 Ch. D. 112 ; Sloman v. Walter, 1 Bro. C. C. 418.
(e) French v. Macale, 2 Dra. & War. 269.
(/) Sloman v. Walter, 1 Bro. C. C. 418; Astley v. Weldon, 2 Bos. & P. 346;
In re Dagenham (Thames) Dock Co., L. E. 8 Ch. 1022; Kilmer v. British Columhia
Orchard Lands, Lim., [1913] A. C. 319.
(g) Hill V. Barclay, 18 Ves. 58; Nohes v. Gibbon, 8 Drew. 681.
550 EQUITY JURISPEUDENCE. [CH. XXXIII.

in default (h). And, in cases of this sort, admitting of compensation,

there is rarely any distinction allowed in courts of equity between
conditions precedent and conditions subsequent; for it has been truly
said, that, although the distinction between conditions precedent and
conditions subsequent is known and often mentioned in courts of
equity, yet the prevaiUng, though not the universal, distinction as to
conditions there, is between cases where compensation can be made
and cases w^here it cannot be made, without any regard to the fact
whether they are conditions precedent or conditions subsequent (i).
§ 1316. The true foundation of the relief in equity in all these
cases is, that, as the penalty is designed as a mere security, if the
party obtains his money, or his damages, he gets all that he expected,
and all that, in justice, he is entitled to (k). And, notwithstanding the
objections, which have been sometimes urged against it, this seems a
sufficient foundation for the jurisdiction. In reason, in conscience,
in natural equity, there is no ground to say, because a man has
stipulated for a penalty in case of his omission to do a particular act
(the real object of the parties being the performance of the act), that,
if he omits to do the act, he shall suffer an enormous loss, wholly
disproportionate to the injury to the other party. If it be said, that
it is his own folly to have made such a stipulation, it may equally
well be said, that the folly of one man cannot authorize gross
oppression on the other side. And law, as a science, would be un-
worthy of the name, if it did not to some extent provide the means
of preventing the mischiefs of improvidence, rashness, blind confi-
dence, and credulity on one side; and of skill, avarice, cunning, and
a gross violation of the principles of morals and conscience, on the
other. There are many oases in which courts of equity interfere upon
mixed grounds of this sort. There is no more intrinsic sanctity in
stipulations by contract, than in other solemn acts of parties, which
are constantly interfered with by courts of equity upon the broad
ground of public policy, or the pure principles of natural justice.
Where a penalty or forfeiture is designed merely as a security to
enforce the principal obligation, it is as much against conscience to
allow any party to pervert it to a different and oppressive purpose, as
it would be to allow him to substitute another for the principal
obligation. The whole system of equity jurisprudence proceeds upon
the ground, that a party having a legal right, shall not be permitted
to avail himself of it for the purposes of injustice, or fraud, or
oppression, or harsh and vindictive injury (I).
(h) Ante, §§ 771 to 778; Hill v. Barclay, 18 Ves. 58, 59; s.o. 16 Ves. 403, 405.
See Gregory v. Wilson, 9 Hare, 683.
(i) Taylor v. Popham, 1 Bro. C. C. 168; Hollinrake v. Lister, 1 Euss. 508. See
In re Lewis, Lewis v. Lewis, [1904] 2 Ch. 656, and ante, § 1306.
(k) Peachy v. The Duke of Somerset, 1 Str. 447, 453.
(/) It seema unnecessary to reproduce the contrary view of a mere question of
policy, entertained by Lord Eldon, and adverted to by the learned author in a note
§ 1316 — 1317.] PENALTIES AND FORFEITURES. 551

§ 1316a. The same principle of general justice is applied in favour

of the party entitled to the security of tJhe penalty, wherever the other
party has unreasonably deprived him of his right to enforce it, until
it is no longer adequate to secure his rights. In a court of equity
as well as in a court of law, the penalty measured the liability of the
obligor (m); but courts of equity will decree the obligee of a bond,
interest beyond the penalty of the bond, where, by unfounded and
protracted litigation, the obligor has prevented the obligee from
prosecuting his claim at law for a length of time, or by some other
misconduct on his part, has deprived the latter of his legal rights,
when they might otherwise have been made available at law. In
sUeh eases courts of equity do no more than supply and administer,
within their own jurisdiction, a substitute for the original legal rights
of the obligee, of which he has been unjustifiably deprived by the
misconduct of the obligor (n). So, if a mortgagor has given a bond
with a penalty, as well as a mortgage for the security of a debt,
although the creditor suing on the bond can recover no more than the
penalty, even when the interest due thereon exceeds it ; yet, if he sues
on the mortgage, courts of equity will decree him all the interest due
upon the debt, although it exceeds the penalty; for the bond is but a
collateral security, and in such a case, it will not make any difference,
that the mortgage is given by a surety (o).
§ 1317. It is not improbable that courts of equity adopted this
doctrine of relief, in cases of penalties and forfeitures, from the
Eoman law, where it is found regularly unfolded, and sustained upon
the clear principles of natural justice. The Eoman law took notice,
not only of conditions, strictly so called, but also of clauses of nullity
and penal clauses. The former were those, in which it was agreed
that a covenant should be null or void in a certain event ; the latt-er
were those where a penalty was added to a contract for non-perform-
ance of that which was stipulated (p). The general doctrine of that
law was, that clauses of nullity and penal clauses were not to be
executed according to the rigour of their terms. And, therefore,
covenants were not of course dissolved, nor forfeitures or penalties
positively incurred, if there was not a punctillious performance at the
very time fixed by the contract. But the matter might be required
to be submitted to the discretion of the proper judicial tribunal, to
decide upon it according to all the circumstances of the case, and the
nature and objects of the clauses (q). Indeed, penalties were in that

at thk place. See Hill v. Barclay, 16 Ves. 402; 18 Ves. 56; Reynolds v. Pitt, 19
Ves. 134; also the opinion of Jessel, M.R., in Wallis v. Smith, 21 Ch. D. 243, 257.
(m) Hatton v. Harris, [1892] A. C. 547.
(n) Pulteney v. Warren, 6 Ves. 92 ; Grant v. Grant, 3 Enss. 598.
(o) Clark v. Lord Abingdon, 17 Ves. 106.
(p) 1 Domat, B. 1, tit. 1, § 4, art. 18, pp. 50, 51.
(g) Domat, B. 1, tit. 1, § 4, art. 19, p. 51; Dig. Lib. 45, tit. 1, f. 135, § 2;
id. 1. 122; Pothier, Oblig. u. 345, 349, 350.
552 EQUITY JURISPRUDENCE. [CH. XXXIII.

law treated altogether, as in reason and justice they ought to be, as

a mere security for the performance of the principal obligation (r).
§ 1318. But we are carefully to distinguish between cases of
penalties strictly so called, and cases of liquidated damages. The
latter properly occur, when the parties have agreed that, in case one
party shall do a stipulated act, or omit to do it, the other party shall
receive a certain sum, as the just, appropriate, and conventional
amount of the damages sustained by such act or omission. In cases
of this sort, especially if the damage is uncertain in amount or difficult
in assessment, courts of equity will not interfere to grant relief; but
will deem the parties entitled to fix their own measure of damages;
provided always, that the damages do not assume the character of
gross extravagance, or of wanton and unreasonable disproportion to
the nature or extent of the injury. But, on the other hand, courts
of equity will not suffer their jurisdiction to be evaded by the
fact, that the parties have called a sum damages, which is, in fact
and in intent, a penalty; or because they have designedly used
language and inserted provisions, which are in their nature penal, and
yet have endeavoured to cover up their objects under other disguises.
The principal difficulty in cases of this sort is to ascertain when the
sum stated is in fact designed to be nomine pcence, and when it is
properly designed as liquidated damages (s).
§ 1319. In the next place, in regard to cases of forfeitures.
Eelying upon two cases in Vernon, a book long since acknowledged
to be unreliable, the learned author mad© the unqualified statement
that it was a universal rule in equity, never to enforce either a
penalty or a forfeiture. Even in his day the latter position was
unsustainable (<).
§ 1320. But there seems to be a distinction taken, in equity,
between penalties and forfeitures. In the former, relief is always
given, if compensation can be made ; for it is deemed a mere
security (-m). In the latter, although compensation can be made, relief
is not always given. It is true, that the rule has been often laid down,
and was formerly so held, that, in all cases of penalties and forfeitures
(at least upon a condition subsequent), courts of equity will relieve
against the breach of the condition and the forfeiture, if compensation
could be made, even although the act of omission was voluntary.
The same doctrine was formerly applied in many cases of conditions
precedent, where the parties could be put in the same situation as if
they had been strictly performed (a;).

(r) Pothier, Oblig. n. 341, 342, 845.

(s) Clydebank Engineering and Shipbuilding Co. v. Yzquierdo y Castenada,
[1906] A. C. 6; Webster v. Bosanquet, [1912] A. C. 394; Dunlop Pneumatic Tyre
Go. V. New Garage and Motor Co., [1915] A. C. 79.
(t) Ex parte Hodgson, 19 Ves. 206; Mackintosh v. Pogose, [1896] 1 Ch. 505.
M Ante, § 1314. (x) A7ite, § 1315.
§ 1318—1323.] PENALTIES AND FORFEITURES. 553

§ 1321. But the doctrine at present maintained seems far more

narrow. It is admitted, indeed, that, where the condition of for-
feiture ismerely a security for the non-payment of money (such as
a right of re-entry upon non-payment of rent), there it is to be
treated as a mere security, and in the nature of a penalty, and is
accordingly relievable (y). But, if the forfeiture arises from the breach
of conditions or covenants of a collateral nature; as, for' example,
of a condition against voluntary waste or of a covenant to repair;
there, although compensation might be ascertained, yet it has been
held that courts of equity ought not to relieve, but should leave the
parties to their remedy at law (z).
§ 1322. It is not, perhaps, very easy to see the grounds of this
distinction between these two classes of cases. It is rather stating
the distinction than the reason of it, to assert, that, in the one case,
the amount of damages by the non-payment of the rent is certain
and fixed; in the other case, the damages are uncertain and
unliquidated. But, in the case of a penalty, such a distinction is
wholly repudiated; because the penalty is treated as a security. The
forfeiture is also treated as a security, in cases of non-payment of rent.
And in other cases of covenant, if the damages are capable of being
ascertained, aaid will, in a legal and equitable sense, be an adequate
conapensation, the reason is not very clear why, under -such circum-
stances, the forfeiture may not be equally treated as a security for
such damages. The most probable ground for the distinction is, what
has been judiciously hinted at, that it is a dangerous jurisdiction ;
that very little information upon it can be collected from the ancient
cases, and scarcely any from those in modern times ; that it was
originally adopted in cases of penalties and forfeiture, for the breach
of pecuniary covenants and conditions, upon unsound principles; and
therefore, that it ought not to be extended, as it rarely works real
compensation, or places the parties upon an equality and mutuality
of rights and remedies (a). It has been further insisted, that the
authorities do not bear out the proposition, that courts of equity wilL
in cases of forfeiture, for the breach of any covenant, give relief upon
the principle of compensation (&,).
§ 1323. Indeed, the doctrine seems now to be asserted that, in all
cases of forfeiture for the breach of any covenant, other than a cove-
nant to pay rent, no relief ought to be granted in equity, unless
upon the ground of accident, mistake, fraud, or surprise, although the

(y) Ante, § 1315.

(z) Peachy v. Duke of Somerset, 1 Stra. 447 ; Nokes v. Gibbon, 3 Drew. 681.
(a) See the opinions expressed by Lord Bldon, in Wadman v. Galcraft, 10 Ves
67; Hill V. Barclay, 16 Ves. 403, 405; s.c. 18 Ves. 58 to 64; Reynolds v. Pitt, 19
Ves. 140, 141; Ex parte Vaughan, 1 Turn. & Russ. 434. Mr. Baron Wood's opinion
in Bracebridge v. Buckley, 2 Price, 200, contains the reasons for the opposite doctrine,
which are well worthy of consideration.
(6) White V. Warner, 2 Meriv. 459.
554 EQUITY JURISPRUDENCE. [CH. XXXIII.

breach is capable of a just compensation (c). And the same rule is

applied to cases where there is not only a clause for re-entry, in case
of non-payment of rent, but also a proviso that, if the rent is not duly
paid, the lease shall be void; for the construction put in equity upon
this latter clause is that it is a mere security for the payment of the
rent (d). Indeed, a strong inclination has been exhibited, even in the
courts of law, to construe such a proviso, to make the .lease voidable,
and not absolutely void, so as to make any subsequent receipt of
rent, or other act affirming the lease, to be a confirmation thereof (e).
§ 1324. Be this as it may, it is clearly established, that courts of
equity will not interfere, in cases of forfeiture for the breach of
covenants and conditions, where there cannot be any just compensa-
tion decreed for the breach. Thus, for example, in the case of a
forfeiture for the breach of a covenant, not to assign a lease without
licence, or to keep leasehold premises insured, or to renew a lease
within a given time, no relief could until lately have been had; for
they admit of no just compensation or clear estimate of damages (/).
§ 1324a.. The power of courts of equity to relieve lessees from
forfeiture for breaches of covenants in leases was enlarged by the
22 & 23 Vict. c. 35, s. 4, which gives the courts power to relieve
against forfeiture for breach of a covenant to insure, where no loss or
damage has happened, and the breach has been committed through
accident or mistake, and an insurance has been duly effected a.t the
time of application. But this relief can only be given once, nor can
it be given at all where a forfeiture shall have been alreadj' waived
out of court in favour of the person seeking the relief.
§ 1324b. Further, by the Conveyancing Act, 1881, s. 14, the rights
of re-entry or forfeiture for breaches of covenant are limited. For it
is provided by that Act that, previously to enforcing these rights by
action or otherwise, the lessor must serve on the lessee a notice
specifying the particular breach complained of, and if the breach is
capable of remedy, requiring the lessee to remedy the breach, and, in
any case, requiring the lessee to make compensation in money. If
the lessee either remedies the breach, or makes compensation in
money, no right of re-entry or forfeiture will arise. Further, if the
lessor proceeds to enforce his right of re-entry or forfeiture by action
or otherwise, the lessee may apply to the court for relief, which the
court may, having regard to all the circumstances, grant or refuse
at its discretion. But the Act excludes from its operation : (1)
Covenants or conditions against the assigning, underletting, parting
with the possession or disposing of the land leased. (2) In case of

(c) Barrow v. Isaacs .f Son. [1891] 1 Q. B. 417.

(d) Bowser v. Colby, 1 Hare, 109.
(e) Rede v. Farr, 6 M. & S. 121; Doe d. Bryant v. Bancks, 4 B. & AH. 401;
Arnsby v. Woodward, 6 B. & C. 519.
(/) See Barrow v. Isaacs .f Son, [1891] 1 Q. B. 417.
§ 1324 — 1325a.] penalties and foefeitures. 555

a mining lease, covenants or conditions for allowing the lessor to

have access to the books, or to inspect the mine. (3) And as modified
by section 1 of the Conveyancing Act, 1892, postpones the right of
the landlord for one year the operation of a condition for forfeiture
on the bankruptcy of the lessee (including the liquidation of a trading
company {g) ), or the taking of his interest in execution. And by
section 4 of the la.ter statute the Court may relieve an underlessee
from a forfeiture incurred by the act of his landlord. Each case is to
be considered in regard to its own particular facts, and apart from
what has been decided in other cases (h). The object of the statute
is not to destroy the effect of a contract, and relief will be refused
where there has been a wilful or persistent neglect to observe the
terms of the covenant (i).
§ 1325. It is upon grounds somewhat similar, aided also by con-
siderations ofpublic policy, and the necessity of a prompt performance,
in order to accomplish public or corporate objects, that courts of
equity, in cases of the non-compliance by shareholders with the terms
of payment of their instalments of shares at the times prescribed, by
which a forfeiture of their shares is incurred under the by-laws of the
institution, have refused to interfere by granting relief against such
forfeiture (fc). The same rule is, for the same reasons, applied to
cases of subscription to Government loans, where the shares of the
stock are agreed to be forfeited by the want of a punctual compliance
with the terms of the loan, as to the time, and mode, and place of
payment (I). "Where a power to forfeit exists the terms of the power
must be strictly observed (m), but irregularities may be waived (n).
§ 1325a.. And the same rule applies to contracts generally. But
where the party (or his agent), who is entitled to the benefit of the
forfeiture, has waived such benefit, and treated the contract as still
subsisting for some purposes, he will not be allowed to insist upon
the forfeiture for any purpose. As, where a life-policy was subject to
a condition making it void if the assured went beyond the limits of
Europe, without licence; and an assignee of the policy, on paying the
premium to a local agent of the company, at the place where the
insurance had been effected, informed him that the assured was
resident in Canada, but the agent stated that this would not avoid the

(g) Horsey Estate Co. v. Steiger, [1899] 2 Q. B. 79.

(h) Rose v. Spicer, [1911] 2 K. B. 234 ; s.c. nom. Rose v. Hyman, [1912] A. 0.
623.
(i) Eastern Telegraph Co. v. Dent, [1899] 1 Q. B. 835; Matthews v. Smallwood,
[1910] 1 Ch. 777; Greville v. Parker, [1910] A. C. 335.
m Sparks v. Liverpool Water Works, 13 Ves. 428. See Sudlow v. Dutch Rhenish
Railway, 21 Beav. 43.
(l) Sparks v. Liverpool Water Works, 13 Ves. 428.
(to) Clarke v. Hart, 6 H. L. C. 633; Garden Gully United Quartz Mining Co. v.
McLister, 1 App. Cas. 89.
(n) Rule V. Jewell, 18 Ch. T>. 660; Palmer v. Moore, [1900] A. C. 293; Jones v
North Vancouver Land and Improvement Co., [1910] A. 0. 317.
556 EQUITY JURISPRUDENCE. [CH. XXXIII.

policy, and received the premiums until the assured died; it was held
that the compajiy was precluded from insisting on the forfeiture (o).
§ 1326. Where any penalty or forfeiture is imposed by statute
upon the doing or omission of a certain act, there courts of equity will
not interfere to mitigate the penalty or forfeiture, if incurred, for it
would be in contravention of the direct expression of the legislative-
will (pi). The same principle is generally (perhaps not universally)
applied to cases of forfeiture founded upon the customs of manors, and
the general customs of certain kinds of estates, such as copyholds ; for,
in all these cases, the forfeiture is treated as properly founded upon
some positive law, or some customary regulations, which had their
origin in sound public policy, and ought to be enforced for the general
benefit (g).

(o) Wing v. Harvey, 5 Be G. M. & G. 265.

(p) Curtis V. Perry, 6 Ves. 739; Thompson v. Leake, 1 Mad. 39.
(g) Peachy v. Duke of Somerset, 1 Str. 447, 452; s.c. Prec. Ch. 568, 570, 674.
But see Nash v. Earl of Derby, 2 Vern. 537, and Mr. Eaithby's note (1); Thomas v.
Porter, 1 Ch. C. 95 ; Hill v. Barclay, 18 Ves. 64.
 § 1326—1329.] INFANTS. 557

CHAPTER XXXIV.
INFANTS.

§ 1327. We shall next proceed to the consideration of another portion

of the former exclusive jurisdiction of courts of equity, partly arising
from the peculiar relation and personal character of the parties, who
are the proper objects of it, ajid partly arising from a mixture of public
and private trusts, of a large and interesting nature. The jurisdiction
here alluded to, is that which is exercised over the persons and property
of infants, idiots, lunatics, and married women.
§ 1328. And, in the first place, as to the jurisdiction over the
persons and property of Infants. The origin of this, jurisdiction in
chancery (a) is very obscure, and has been a matter of much judicial
discussion (b). The common manner of accounting for it has been
thought by a learned writer to be quite unsatisfactory (c). It is that
the king is bound by the law of common right to defend his subjects,
their goods, chattels, lands, and tenements ; and therefore, in the law,
every royal subject is taken into the king's protection. For which
reason an idiot or lunatic, who cannot defend or govern himself, or
order his lands, tenements, goods, or chattels, the king, of right, as
parens patriee, ought to have in his custody, and rule him and them (d).
And for the same reason, the king, as parens patrix, ought to have the
care of the persons and property of infants, where they have no other
guardian of either (e).
§ 1329. The objection urged against this reasoning is, that it does
not sufficiently account for the state of the former jurisdiction; for
there was a marked distinction between the jurisdiction in cases of
infancy, and that in cases of lunacy and idiocy. The former was exer-
cised by the chancellor, in the Court of Chancery, as a part of the
general delegation of the authority of the crovm, virtute officii, without
any special warrant; whereas the latter was exercised by him by a
separate commission under the sign-manual of the king, and not other-
wise (/). It is not safe or correct, therefore, to reason from one to the
(a) 3 Black. Comm. 427.
(6) Wellesley v. Wellesley, 2 Bligh N. S. 136.
(c) Hargrave's note (70) to Co. Litt. 89 a, § 16.
(d) Ktz. N. B. 232; Eyre v. Countess of Shaftesbury, 2 P. Will. 118; Beverley's
Case, 4 Co. 123, 124.
(e) Eyre v. Countess of Shaftesbury, 2 P. Will. 118, 119; 3 Black. Comm. 427.
(/) Co. Litt. 89 a, Hargrave's note (70), § 15; Sheldon v. Fortescue Aland, 3 P.
Will. 104, 107, and Mr. Cox's note (A) ; Sherwood v. Sanderson, 19 Vea. 285.
558 EQUITY JURISPRUDENCE. [CH. XXXIV.

other, either as to the nature of the jurisdiction or as to the practice

under it (gr).
§ 1330. An attempt has also been made to assign a different origin
to the jurisdiction, and to sustain it, by considering guardianship as in
the nature of a trust; and that, therefore, the jurisdiction has a broad
and general foundation, since trusts are the peculiar objects of equity
jurisdiction (h). But this has been thought to be an overstrained
refinement; for, although guardianship may properly be denominated
a trust, in the common acceptation of the terra, yet it is not so in the
technical sense in which the term is used by lawyers, or in the Court
of Chancery. In the latter, trusts are invariably applied to property
(and especially to real property) and not to persons (i). It may be
added, that guardianship, considered as a trust, would equally be
within the jurisdiction of all the courts of equity ; whereas it is limited
to the chancellor, sitting in chancery (fc).
§ 1331. An attempt has also been made to derive the jurisdiction
from the writ of Bavishment of Ward, and the writ De Recto de
Custodia at the common law, but with as little success. For, indepen-
dently of the consideration, that these writs were returnable into a
court of common law, it is not easy to see how a jurisdiction, to decide
between contending competitors for the right of guardianship, can
establish a general authority, in the Court of Chancery, to appoint a
guardian in all cases where one happens to be wanting (l).
§ 1332. It has been further suggested, that the appointment of
guardians in cases where the infants had none, belonged to the chan-
cellor, in the Court of Chancery, before the erection of the Court of
Wards; and that, upon the abolition of that court, it reverted to the
king, in his Court of Chancery, as the general protector of all the
infants in the kingdom. But this (it has been objected) is rather an
assertion, than a proof, of the jurisdiction ; for it is difficult to trace it
back to any such ancient period. The earliest instance which has been
found, of the actual exercise of the jurisdiction by the chancellor, to
appoint a guardian, upon petition without bill, is said to be that of
Hampden, in the year 1696. Since that period, indeed, it has been
constantly exercised without its once being called in question. Mr.
Hargrave has not hesitated to say, that, although the jurisdiction is
now unquestionable, yet it seems to have been a usurpation, for which
the best excuse was, that the case was not otherwise sufficiently pro-
vided for. He has added, that, although the care of infants, as well as
of idiots and lunatics, should be admitted to belong to the crown; yet.

(g) Ex parte Whitfield, 2 Atk. 315; Ex parte Phillips, 19 Ves. 122.

(h) See Duke of Beaufort v. Berty, 1 P. Will. 705 ; post, § 1343 to 1345.
(t) Co. Litt. 89 a, Hargrave's note (70), § 17.
(k) Ante, § 1328; post, § § 1343, 1351.
(!) Co. Litt. 89 a, Hargrave's note (70), § 16.
§ 1330—1333.] INFANTS. 559

that something further is necessary to prove that the chancellor is the

person constitutionally delegated to act for the king (m).
§ 1383. Notwithstanding the objections thus urged against the
legitimacy of the origin of the jurisdiction, it is highly probable that It
has a just and rightful foundation in the prerogative of the crovs'n, flovs^-
ing from its general power and duty as parens patrise, to protect those
who have no other lawful protector (n). It has been well said, that it
will scarcely be controverted, that in every civilized state, such a super-
intendence and protected power does somewhere exist. If it is not
found to exist elsewhere, it seems to' be a just inference from the knoviTi
prerogatives of the crown, as parens patrise, in analogous cases, to pre-
sume that it vests in the crown (o). It is no slight confirmation of this
inference, that it has been constantly referred to such an origin in all
the judicial investigations of the matter (p), as well as in the discussions
of very learned elementary writers (g).

(m) Hargrave's note (70), § 16, Co. Litt. 89 a,. There is very great reason to
question this conclusion of the learned author; nor is it very likely that, at so late a
period as 1696, a clear usurpation of an authority of this nature should have been
either claimed by the chancellor or tolerated by Parliament. In Pitzherbert 's Natura
Brevium (p. 27, b), a very ancient work of great authority, it is said, that "the
king, by his letters-patent, may make a general guardian for an infant, to answer
for him in all actions or suits brought, or to be brought, in all manner of courts."
It is added, " And the infant shall have a writ in the chancery to remove his guar-
dian, directed unto the justices, and for to receive another, &o. ; and the court, at
their discretion, may remove the guardian, and appoint another guardian."
(n) The learned reader is referred to the elaborate note of Mr. Hargrave to Co.
Litt. 89 a, note (70), § 16, for the objections to the jurisdiction, which are there fully
considered; and also to the equally elaborate note of Mr. Fonblanqne (2 Fonbl. Bq.
B. 2, Pt. 2, ch. 2, § 1, note a), for the answers to those objections. The view of the
matter taken in the text is almost exclusively derived from the note of Mr. Fou-
blanque. Lord Eldon, in De Manneville v. De Manneville, 10 Ves. 63, 64, after
referring to the notes of Mr. Hargrave and Mr. Ponblanque, stated that "the latter
had stated the principle very correctly."
(o) See Beverley's Case, i Co. 123, 124; Brae. Lib. 3, cap. 9; Eyre v. Countess
of Shaftesbury, 2 P. Will. 118, 123; Stuart v. Marquis of Bute, 9 H. L. C. 440; In
re Bourgeoise, 41 Ch. D. 310; also 1 Mad. Pr. Ch. 262, 263.
(p) Eyre v. Countess of Shaftesbury, 2 P. Will. 118, 123; Butler v. Freeman,
Ambler, 302; Hughes v. Science, 2 Eq. Abr. 766; De Manneville v. De Manneville,
10 Ves. 63, 64.
(g) 3 Black. Comm. 427; Pitz. Nat. Brev. 27; 2 Fonbl. Eq. B. 2, Pt. 2, ch. 2,
§ 1, note (a); 1 Mad. Pr. Ch. 262, 263. In Butler v. Freeman, Ambler, 302, Lord
Hardwicke is reported to have said , with reference to this subject : ' ' This court does
not act on the footing of guardianship or wardship. The latter is totally taken away
by the statute of Charles II. And without claiming the former, and disclaiming the
latter, it has a general right delegated by the crown as pater -patrice to interfere in
particular cases for the benefit of such who are incapable to protect themselves." in
the case of Hughes v. Science, cited in Ambler, 302, Mr. Blunt's note (2), the same
learned judge said : " The law of the country has taken great care of infants, both
their persons and estates, and particularly to prevent marriages to their disparage-
ment. For that purpose it had assigned them guardians ; and if a stranger married
without the guardian's consent, it was considered a ravishment of ward, and the party
was deemed punishable by fine and imprisonment; and so it was, if the guardian
himself married the infant to another to its disparagement. And the court has
originally exercised a superintendent jurisdiction over guardians in behalf of infants,
to prevent abuses, either in their persons or estates, as well as in behalf of the crown,
560 EQUITY JURISPRUDENCE. [CH. XXXIV.

§ 1334. Assuming, then, that the general care and superintendence

of infants did originally vest in the crown, when they had no other
guardian, the question by whom, and in what manner, the prerogative
should be exercised, would not seem open to much controversy. Par-
taking, as it does, more of the nature of a judicial administration of
rights and duties in foro conscientise, than of a strict executive authority,
it would naturally follow ea ratione, that it should be exercised in the
Court of Chancery, as a branch of the general jurisdiction originally
confided to it. Accordingly, the doctrine now commonly maintained is,
that the general superintendence and protective jurisdiction of the
Court of Chancery over the persons and property of infants is a delega-
tion of the rights and duty of the crown ; that it belonged to that court,
and was exercised by it from its first establishment; and that this
general jurisdiction was not even suspended by the statute of Henry
VIII., erecting the Court of Wards and Liveries (r).
§ 1335. The jurisdiction over idiots and lunatics was distinguishable
from that over infants, in several respects. The former was a personal
trust in the Lord Chancellor, and especially delegated to him under
the sign-manual of the king ; and from his decree no appeal lay, except
to the king in council (s). On the other hand, the latter belonged to
the Court of Chancery, and it might be exercised as well by the Master
of the Eolls as by the Lord Chancellor, and therefore an appeal lay
from the decision of the Court of Chancery, in cases of infants, to the
House of Lords (t).
§ 1336. It may be asked, why, if no particular warrant was neces-
sary to enable the Court of Chancery to exercise its protective power
and care over infants, a separate commission under the sign-manual
should be necessary to confer on the chancellor the jurisdiction over

and inferior lords, who had formerly a great interest in the wardship of infants.
Afterwards, indeed, the Court of Wards being created, took the jurisdiction out of
chancery for a tiine. But, as soon as that court came to be dissolved, the jurisdic-
tion devolved again upon the court, and infants have ever since been considered as
under the immediate care of chancery. Whenever a. suit is commenced here on their
behalf, and even without suit, the court every day appoints guardians on petition; and
the marriage of an infant to her guardian or any other without the consent of the
court, where a suit is depending here in behalf of the infant, has been always treated
and punished as a contempt. See Serj. Hill's MSS. vol. 6, p. 8." s.c. cited at large
in Macpherson on Infants, Appendix I. See also Lord Bldon'a remarks in De Manne-
ville V. De Mannemlle, 10 Ves. 63, 64.
(r) 2 Ponbl. Bq. B. 2, Pt. 2, ch. 2, § 1, note (a); Morgan v. Dillon, 9 Mod. 139,
140; De Manneville v. De Manneville, 10 Ves. 52; Wellesley v. Duke of Beaufort,
2 Russ. ; Wellesley v. Wellesley, 2 Bligh N. S. 124. In the case last cited Lord
Eedesdale adverted to the custom of London, admitted in the courts of common law
to be valid, under which they made orders relative to infants of freemen, and enforced
them by committing parties disobeying to Newgate, as a jurisdiction delegated by the
crown anterior to the statute of Henry VIII.
(s) Sheldon v. Fortescue Aland, 3 P. Will. 104, 107, Mr. Cox's note (A); Boch-
fort V. Earl of Ely, 6 Bro. Pari. C. 329; Sherwood v. Sanderson, 19 Ves. 285; Ex
parte Phillips, 19 Ves. 122, 123.
(t) Oxenden v. Compton, 2 Ves. Jun. 71, 72.
§ 1334—1337.] INFANTS. 561

idiots and lunatics, since that also has been referred to the protecting
prerogative of the crown as parens patriae. The answer which has
been given (and perhaps it is a true one) is, that in point of fact, the
custody of the persons and property of idiots and lunatics, or at least
of those who held lands, was not anciently in the crown, but in the
lord of the fee. The statut-e (De Prerogativd Regis) of 17 Edw. 2, c. 9
(or, as Lord Coke and others suppose, some earlier statute) (v), gave to
the king the custody of idiots, and also vested in him the profits of the
idiot's lands during his life (x). By this means the crown acquired a
beneficial interest in the lands ; and as a special warrant from the crown
is, in all cases, necessary to any grant of its interest, t*he separate com-
mission, which gives the Lord Chancellor jurisdiction over the persons
and property of idiots, may be referred to this consideration (y). With
respect to lunatics, the statute of 17 Edw. 2, c. 10, enacted, that the
king should provide that their lands and tenements should be kept
without waste. It conferred merely a power which is not to be con-
sidered asincluded within the general jurisdiction, antecedently conferred
on the Court of Chancery ; and therefore, a separate and special com-
mission became necessary for the delegation of this new power (z). There
is, under the statute, a difference between the case of an idiot, and that
of a lunatic, in this respect. In the case of a lunatic, the king is a
mere trustee; in the case of an idiot, he has a beneficial interest (a).
§ 1337. But, whatever may be the true origin of the jurisdiction
of the Court of Chancery over the persons and property of infants, it
is now conceded, on all sides, to be firmly established, and beyond the
reach of controversy. Indeed, it is a settled maxim, that the king is
the universal guardian to infants, and ought, in the Court of Chancery,

(a) See 2 Co. Inst. 14; 2 Beeve's Hist. ch. 12, pp. 307, 308; 1 Black. Comm.
302, 303; Fitz. N. Brev. 232.
(x) Lord Coke, in 2 Inst. 14, speaking of the provision in Magna Cliarta, ch. 4,
says : " At the making of this statute the king had not any prerogative in the custody
of the lands of idiots during the life of the idiots ; for if he had, this act would have
provided against waste, &c., committed by the committeg or assignee of the king, to
be done in his possessions, as well as in the possessions of wards. But at this time
the guardianship of idiots, &c. , was to the lords and others, according to the course
of the common law." In Beverley's Case, 4 Co. Eep. 126, it is expressly declared,
that the statute of 17 Edw. 2. c. 9, is but an affirmance or declaration of the common
law. So Mr. Justice Blackstone, in his Commentaries, 1 Black. Comm. 303, treats
it. Lord Coke thinks that this prerogative was given to the crown by some statute
not now extant, in the reign of Edward I., after Bracton wrote his work, and before
that of Britton. '2 Inst. 14. See also Lord Northington 's opinion in Ex parte Grim-
stone, Ambler, 707.
(y) De Manneville v. De Mannemlle, 10 Ves. 63, 64; 1 Black. Comm. 303, 304.
(z) Lord Loughborough, in Oxenden v. Lord Compton, 2 Ves. Jun. 71, 72; s.c.
4 Bro. C. C. 23, considered the statute of 17 Edw. 2. c. 10, as merely in affirmance
of the antecedent rights of the crown. This view was also entertained by Lord
Hardwioke, Corporation of Burford v. Lenthall, 2 Atk. 553; In re Heli, 3 Atk. 635;
by Lord Apsley, Ex parte Grimstone, Ambler, 707; and Lord Eldon, De Manneville
V. De Manneville, 10 Ves. 63.
(a) In re Fitzgerald, 2 Sch. & Lefr. 436, in which case the difference was fully
expounded by Lord Eedesdale.
E.J. 36
562 EQUITY JURISPRUDENCE. [CH. XXXIV.

to take care of their fortunes (b). We shall now proceed to the con-
sideration of some of the more important functions, connected with
this authority; in the appointment and removal of guardians; in the
maintenance of infants ; in the management and disposition of the pro-
perty of infants ; and lastly, in the marriage of infants.
§ 1338. In the first place, in regard to the appointment and
removal of guardians. The court (c) will appoint a suitable guardian
to an infant, where there is none other, or none other who will, or can
act, at least where the infant has property; for if the infant has no
property, the court will perhaps not interfere. It is not, however, from
any want of jurisdiction {d) that it will not interfere in such a case, but
from the want of means to exercise its jurisdiction with effect; because
the court cannot take upon itself the maintenance of all the children
in the kingdom. It can exercise this part of its jurisdiction usefully
and practically only where it has the means of doing so ; that is to say,
by its having the means of applying property for the use and mainten-
ance of the infant (e). Guardians appointed by the court are treated
as officers of the court, and are held responsible accordingly to it (/).
§ 1338a. The question of who are to be appointed guardians, is
generally one of discretion, merely; and the court ordinarily refers it
to a master, especially if the guardianship be contested between two
or more parties, to appoint guardians, leaving the person in whose cus-
tody the infant actually is, to retain that custody until the coming in
of the master's certificate. And if there are testamentary guardians,
the court has no jurisdiction to interfere except in cases of miscon-
duct (g). If the testamentary appointment, however, be one that con-
templates the residence of the child in the country of its birth, and tho
child be removed to a residence in England, it seems that the Court of
Chancery in England may appoint guardians; and the testamentary
appointment will be looked at only as an expression of the parent's
preferences, to which the court will give great influence (h).
§ 1339. In the next place, as to the removal of guardians. The
court will not only remove guardians appointed by its own authority,
but it will also remove guardians at the common law, and even testa-
mentary or statute guardians, whenever sufficient cause can be shown
for such a purpose (i). In all such cases, the guardianship is treated
(b) Wellesley v. Duke of Beaufort, 2 Euss. 19.
(c) That ig, under the present practice, one of the judges of the Chancery Division
of the High Court of Justice.
(d) In re Fynn, 2 De G. & Sm. 457 ; Stuart v. Marquis of Bute, 9 H. L. C. 440.
See In re Spence, 2 Phil. 247.
(e) Lord Bldon, in Wellesley v. Duke of Beaufort, 2 Euss. 1, 21.
(/) Wellesley v. Duke of Beaufort, 2 Euss. 1, 20, 21; post, § 1351.
(g) In re Neale, 15 Beav. 250; Coham v. Coham, 13 Sim. 639; Miller v. Harris,
14 Sim. 540.
(h) Johnstone v. Beattie, 10 CI. & P. 42; In re Bourgeoise, 41 Ch. D. 310.
(»') Johnstone v. Beattie, 10 CI. & P. 42 ; Wellesley v. Wellesley, 2 Bligh N. S.
124; Smart v. SmaH, [1892] A. C. 425.
§ 1338—1341.] INFANTS. 663

as a delegated trust, for the benefit of the infant, and, if it is abused,

'or in danger of abuse, the court will interpose, not only by way of
remedial justice, but of preventive justice. Where the conduct of the
guardian is less reprehensible, and does not require so strong a measure
as a removal, the court will, upon special application, interfere, and
regulate, and direct the conduct of the guardian in regard to the custody,
and education, and maintenance of the infant (k) ; and, if necessary,
it will inhibit him from carrying the infant out of the country, and it
will even appoint the school where he shall be educated (I). In like
manner, it will, in proper cases, require security to be given by the
guardian, if there is any danger of abuse or injury to his person or to his
property (m).
§ 1340. The court will not only interfere to remove guardians for
improper conduct, but it will also assist guardians in compelling their
wards to go to the schools selected by the guardian, as well as in obtain-
ing the custody of the persons of their wards, when they are detained
from them. This may not only be done by any judge of the Supreme
Court of Judicature by a writ of habeas corpus, but it may also be done
on a petition, without any action being brought in the court (n).
§ 1341. The jurisdiction of the court extends to the care of the
person of the infant, so far as necessary for his protection and educa-
tion; and to the care of the property of the infant, for its due manage-
ment and preservation, and proper application for his maintenance (o).
It is upon the former ground, principally, that is to say, for the due
protection and education of the infant, that the court interferes with
the ordinary rights of parents as guardians by nature, or by nurture, in
regard to the custody and. care of their children (p). For, although
parents are entrusted with the custody of the persons, and the education
of their children, yet this is done upon the natural presumption that
the children will be properly taken care of, and will be brought up with
a due education in literature, and morals, and religion; and that they
will be treated with kindness and affection. But, whenever the pre-
sumption isremoved ; whenever (for example) it is found, that a father
is guilty of gross ill-treatment or cruelty towards his infant children;
or that he is in constant habits of drunkenness and blasphemy, or low

(k) Roach v. Garvan, 1 Ves. Sen. 160; In re McCulloch, 1 Dm. 276.

(I) Campbell v. Mackay, 2 M. & Cr. 31 ; Talhot v. Duke of Shrewshury, 4 M.
A Or. 672.
(m) Foster v. Denny, 2 Ch. C. 237; Hanbury v. Walker, 3 Ch. C. 58; 1 Mad. Pr.
Ch. 263, 264, 268, 269.
(n) Eyre v. Countess of Shaftesbury, 2 P. Will. 103 ; Ex parte Hopkins, 3 P.
Will. 152, and Mr. Cox's note; Da Costa v. Mellish, West, 300; s.c. 2 Swanst. 533,
537, note.
(o) In re Spence, 2 Phil. 247.
(p) Mr. Hargrave, in his learned notes, 66, 67, § 123, to Co. Litt. 88 b, has
brought together the general principles and doctrine, applicable to guardianship by
nature, guardianship by socage, and guardianship by nurture, the first and last of
■which are often confounded, and used in a loose and indeterminate sense.
564 EQUITY JURISPRUDENCE. [CH. XXXIV.

and gross debauchery ; or that he professes atheistical or irreligious

principles; or that his domestic associations are such as tend to the'
corruption and contamination of his children; or that he otherwise acts
in a manner injurious to the morals or interests of his children; in eveiy
such case, the court will interfere, and deprive him of the custody of
his children, and appoint a suitable person to act as guardian, and to
take care of them, and to superintend their education (g). But it is
only in cases of gross misconduct that paternal rights are interfered
with. As between husband and wife, the custody of the children
generally belongs to the husband, and the latter could not formerly
alienate his right to the custody and care of the children (r).
§ 1341a. This subject was much considered in the case of hi re
Agar-Ellis, Agar-Ellis v. Lascclles (s), where it was laid down by the
Court of Appeal, that a father has a legal right to control, and direct,
the education and bringing up of his children, until they attain the age
of twenty-one years, even although they are wards of court, and the
court will not interfere with him in the exercise of his paternal authority,
except (1) where by his gross moral turpitude, he forfeits his rights;
or (2) where he has, by his conduct, abdicated his paternal authority;
or (3) where he seeks to remove his children, being wards of court, out
of the jurisdiction, without the consent of the court.
§ 1342. The jurisdiction, thus asserted, to remove infant children
from the custody of their parents, aJid to superintend their education
and maintenance, is admitted to be of extreme delicacy, and of no
inconsiderable embarrassment and responsibility. But it is neverthe-
less a jurisdiction which seems indispensable to the sound morals, the
good order, and the just protection of a civilized society. In a celebrated
case, after it had been acted upon in chancery for one hundred and
fifty years, it was attempted to be brought into question ; and . was
resisted, as unfounded in the true principles of English jurisprudence.
It was, however, confirmed by the House of Lords, with entire
unanimity ; and on that occasion was sustained by a weight of authority
and reasoning rarely equalled (i).
§ 1342a. In the foregoing paragraphs the author had discussed the
leading principles guiding the Court of Chancery in the exercise of its
inherent jurisdiction respecting the guardianship and custody of infants,
subjects often confused, but quite distinct. This jurisdiction has been
transferred to the Supreme Court' by sections 16 and 25, sub-section 10

iq) The cases on this subject are numerous. Shelley v. Westbrooke, Jac. 266;
WellesUy v. Wellealey, 2 Bligh N. S. 134; Anonymous, 2 Sim.- N. S. 54; In re
Besant, 11 Ch. D. 508; Smart v. Smart, [1892] A. C. 425; may be cited as illustra-
tions of the principles stated in the text.
(r) Varisittart v. Vansittart, 2 De G. & J. 249; Swift v. Swift, 4 De G. J. & S.
710.
(s) In re Agar-Ellis, Agar-Ellis v. Lascelles, 24 Ch. D. 317.
(t) Wellesley v. Wellesley, 2 BUgh N. S. 124.
§ 1341a— 1350.] inpakts. 565

of the Judicature Act, 1873 (w). These principles are still in force and
are recognized and confirmed by a number of statutes which have intro-
duced fresh considerations for the determination of the question, and
to this extent have modified the judgment of the court on a given state
of facts {xj. The first statute is 2 & 3 Vict. c. 56 (commonly called
Talfourd's Act), which gave the wife for the first time a right of access
to the child, and enabled the court to commit the custody of the child,
if under seven years, to her care (y). This statute was repealed, but in
terms re-enacted, by the Custody of Infants Act, 1873, 36 & 37 Vict.
c. 12, the main alteration being that the custody of a child under sixteen
years of age may be committed to the mother, and provision is made for
a right of access to the infant by either parent by order of the court (a).
By section 2 of the same statute a provision in a separation deed that
a mother shall have the custody or control of an infant is legalized,
subject to the important proviso, that ' ' no court shall enforce any such
agreement if the court shall be of opinion that it will not be for the
benefit of the infant or infants to give effect thereto " (a). By the
Guardianship of Infants Act, 1886, 49 & 50 Vict. c. 27, on the death of
the father of an infant, the mother if surviving becomes the guardian
of the child, either alone when the father has not appointed a guardian
or jointly with any guardian appointed by the father. And the court
is empowered to appoint a guardian or guardians to act jointly with
the mother "if it shall think fit. ' ' The mother is also empowered to
appoint a guardian to act after the death of herself and the father of an
unmarried infant, and make a provisional appointment, which requires
the sanction of the court, of a guardian to act jointly with the father.
And the court may commit the custody of an infant to either parent
with a right of access to either parent on the application of the mother,
" having regard to the welfare of the infant, the conduct of the parents,
and to the wishes as well of the mother as of the father. ' ' The court
may now by force of the Custody of Children Act, 1891, refuse to assist
a parent who has ' ' abandoned or deserted ' ' an infant or has otherwise
been " unmindful of his parental duties," to put it shortly, to recover
the custody of the infant. By section 8 of the Children Act, 1908, the
powers of the court are further enlarged where the parent has been
guilty of cruelty.
§ 1350. It would be a subject of curious inquiry, to ascertain the
nature and extent of the parental power in the Roman law, and also
the nature and extent of the powers and duties of guardians in the
same law, and the manner of their appointment ; but it would lead us

(«). In rs Goldsworthy, 2 Q. B. D. 75.

(x) See Smart v. Smart, [1892] A. C. 425.
(y) Ex parte Woodward, 17 Jur. 56.
(z) In re Elderton (Infants), 26 Ch. D. 220.
(o) In re Besant, 11 Ch. D. .508; Besant v. Wood, 12 Ch. D. 605; Hart v. Hart,
18 Ch. D. 670.
566 EQUITY JURISPRUDENCE. [CH. XXXIV.

too far from the immediate object of these Commentaries. It is highly

probable that the common law, as well as the equity jurisprudence of
England, has borrowed many of its doctrines on this subject from this
source. Guardians (who were appointed on the death of the father)
were, in the Boman law, of two sorts : (1) tutors, who were guardians
of males until their age of fourteen years, and of females until their
age of twelve years ; and (2) curators, who were then appointed their
guardians, and continued such until the minors respectively arrived at
the age of twenty-five years, which was the full majority of the Eoman
law. Guardians were usually selected from the nearest relations, and
might be nominated by the father or mother during their lifetime.
But they were required to be appointed and confirmed by the proper
judge or magistrate of the place where the minor resided; and they
were removable for personal misconduct, or for ill-treatment of the
minor, or for bad management of his estate. But, while any one
remained guardian, he was bound to take care of the person of the
minor; to provide suitable maintenance out of his estate; to super-
intend his morals and education; and to exercise a prudent manage-
ment over his estate (b). In many respects, indeed, the court, in the
exercise of its authority over infants, implicitly follows the very
dictates of the Eoman code.
§ 1351. It might seem, upon principle, that the jurisdiction of the
court over infants ought not to have been confined to cases where a
suit is depending for property in that court. It would seem to belong
to the Court of Chancery, as the general delegate of the crown, acting
as parens patriae., for the protection of the persons and property of those
who are unable to take care of themselves, and yet possess the means
of maintenance, and are without any other suitable guardian; and upon
that ground, that it ought to reach all cases where the person or the
property of the infant required the protection of the court, without any
inquiry whether there was a ground for actual litigation or not. But,
in practice, it seems to have been limited to cases where an action is
actually pending, even when the whole gravafnen of the action is a
mere fiction (c).
§ 1352. We are next led to the consideration of what constitutes
an infant a ward of court, in respect to whom the court interferes in a
great variety of cases, when it would not, if the infant did not stand
(b) Inst. Lib. 1, tit. 20 to 26.
(c) It often occurs, that a bill is filed for the eole purpose of making an infant i.
ward of chancery ; but in such a case the bill always states, however untruly, that
the infant has property within the jurisdiction, and the bill is brought against the
person in whose supposed custody or power the property is. Johnstone v. Beattie,
10 CI. & P. 42. Why such a mere fiction should be resorted to, has never, as it
seems to me, been satisfactorily explained ; and why the Lord Chancellor, exercising
the prerogative of the crown as parens patr-ire, might not, in his discretion, appoint a
guardian to an infant, having no other guardian, without any bill being filed, seems
difficult to understand upon principle. But the practice seems founded upon narrower
ground.
§ 1351—1354.] INFANTS. 567

in that predicament in relation to the court. Properly speaking, a

ward of court is a person who is under a guardian appointed by the
court (d). But, wherever an action is brought relative to the person
or property of an infant, although he is not under any general guardian
appointed by the court, he is treated as a ward of the court, and as
being under its special cognizance and protection. But unless there is
some actual litigation to which the infant is a party, a proceeding
relative to an infant's property will not constitute him a ward of
court (e).
§ 1353. In all cases where an infant is a ward of court, no act can
be done affecting the person, or property, or state of the minor, unless
under the express or implied direction of the court itself. Every act
done without such direction is treated as a violation of the authority of
the court, and the offending party will be arrested upon the proper
process for the contempt, and compelled to submit to such orders and
such punishment by imprisonment, as are applied to other cases of
contempt. Thus, for example, it is a contempt of court to conceal or
withdraw the person of the infant from the proper custody (/); to
disobey the orders of the court in relation to the maintenance or educa-
tion of the infant; or to marry the infant without the proper consent
or approbation of the court. Of the latter more will be presently
stated (gf). Indeed, when once the court has thus directly or indirectly
assumed authority over the person or property of an infant, as its
ward, it acts throughout with all the anxious care and vigilance of a
parent; and it allows neither the guardian, nor any other person, to
do any act injurious to the rights or interests of the infant.
§ 1354. In the next place, in regard to the maintenance of infants.
Whenever the infant is a ward of court and an action is pending in the
court, the court will, of course, direct a suitable maintenance for the
infant, having a due regard to the rank, the future expectations, the
intended profession or employment, and the property of the latter.
But, where there is already a guardian in existence, not deriving his
authority from the court, and where there is no action in the court
touching the infant or his property, there formerly existed a doubt
whether the court could interfere summarily to direct a suitable
maintenance of the latter. The effect of this doubt was to allow
the guardian to exercise his discretion at his own peril; and thus to
leave much to his sense of duty, and much more to his habits of bold
or of timid action in assuming responsibility. At present, the practice

(d) Johnstone v. Beattie, 10 CI. &¥. 42; Stuart v. Marquis of Bute, 9 H. L. C.

440; Gynn v. Qilbard, 1 Dr. & Sm. 356; In re Hodges, 3 K. & J. 213; In re Graham,
L. B. 10 Bq. 530.
(e) In re Dalton, 6 De G. M. & G. 201 ; In re Hillary, 2 Dr. & Sm. 461 ; Ex parte
Brewer, 2 Dr. & Sm. 562; Brown v. Collins, 25 Ch. D. 56.
(/) Wellesley's Case, 2 Euss. & M. 159; Ramsbothatn v. Senior, L. B. 8 Bq.
575
(g) Post, § 1358.
568 EQUITY JURISPRUDENCE. [CH. XXXIV.

which grew up of entertaining such an application without a formal

suit is adopted, the procedure being by summonses in chambers (h).
§ 1354a.. But, in regard to the maintenance of infants out of
their own property, it is important to difierentiate between two classes
of cases, one where there is a trust for maintenance, and the other
a power for maintenance. In the first case the father is entitled to
have the income paid to him irrespective of his ability to maintain
the infant children, and in the second his right is measured by his
ability to maintain them, unless the trustees are empowered to apply
the income in the maintenance of the infant children, and exercise
that power in fact (j). In an exceptional case, the court has allowed
maintenance to a father of large independent means (k). Another
category must also be borne in mind. Where a maintenance clause
fixes a sum to be allowed and directs the surplus income to be
accumulated, the court may exceed the sum so fixed if a special
case be made justifying the increase, unless there are additional
words restricting the right to exceed that allowance (l). A mother
is not regarded as bound to support her infant children, and mainten-
ance is allowed irrespective of her ability (m).
§ 13546. The court, also, is not limited in its authority, in regard
to maintenance, to cases where the infant is resident within the
territorial jurisdiction of the court, or the maintenance is to be applied
there. But in suitable cases, and under suitable circumstances, it
will order maintenance for an infant out of the jurisdiction, taking
caore to impose such conditions and restrictions on the party apply-
ing for it as will secure a proper application of the money (n).
§ 1355. In allowing maintenance, the court will have a liberal
regard to the circumstances and state of the family to which the
infant belongs; as, for example, if the infant be an elder son, and
the younger children have no provision made for them, an ample
allowance will be allowed to the infant, so that the younger children
may be maintained (o) ; or for the support of an illegitimate
brother (p). Similar considerations will apply if a father of an infant
is in distress or narrow circumstances (q). On the other hand, in
allowing maintenance, the court usually confines itself within the
limits of the income of the property. But where the property is
small, and more means are necessary for the due maintenance of
the infant, the court will sometimes allow the capital to be broken
()i) Rules of the Supreme Court, 1883 Order LV. r. 2 (125.
(i) Brophy v. Bellamy, L. E. 8 Ch. 798; Wilson v. Turner, 22 Ch. D. 521.
(k) Jervoise v. Silk, G. Coop. 52.
(l) In re Walker, Walker v. Duncombe, [1901] 1 Ch. 879.
(m) Haley v. Bannister, 4 Mad. 27S ; Douglas v. Andrews, 12 Beav. 310.
(?i) Stephens v. James, 1 Myl. & K. 627.
(o) Lanoy v. Duke of Athol, 2 Atk. 447; Burnet v. Burnet, 1 Bro. C. C. 179,
and Mr. Belt's note.
(p) Bradshaw v. Bradshaw, 1 Jac. & W. 647. (g) Allen v. Coster, 1 Beav. 201.
§ 1354a— 1357.] infants. 569

in upon (?•). But, without the express sanction of the court, a

trustee or guardian will not be permitted, of his own accord, to break
in upon the capital (s).
§ 1355a. By Lord Cranworth's Act (28 & 24 Vict. c. 145), s. 28,
it was provided that, in all cases where any property is held by
trustees, in trust for an infant, either absolutely or contingently on his
attaining the age of twenty-one years, or on the occurrence of any
event previously to his attaining that age, it shall be lawful for such
trustees, at their sole discretion, to pay to the guardians (if any) of
such infant, or otherwise to apply for or towards the maintenance or
.education (t) of such infant, the whole or any part of the income
to which such infant may be entitled in respect of such property,
whether there be any other fund applicable to the same purpose, or
any other person bound by law to provide for such maintenance or
education or not ; and such trustees shall accumulate all the residue
of such income by way of compound interest by investing the same
and the resulting income therefrom in proper securities, for the benefit
of the person who shall ultimately become entitled to the property from
which such accumulations shall have arisen; provided always that it
shall be lawful for such trustees at any time, if it shall appear to
them expedient, to apply the whole or any part of such accumula-
tions as if the same were part of the income arising in the then
current year. These provisions are in substance re-enacted by the
Conveyancing Act, 1881, s. 48, sub-ss. 1, 2, and 3. But they may
be excluded by a contrary intention expressed in the instrument.
The intermediate income of a contingent gift cannot be applied under
the section, unless the infant will become absolutely entitled to the
income as an accretion to the capital (m). But where the capital
is given to members of a class who shall attain twenty-one, as each
has an equal chance of sharing in the fund when it becomes
devisable, maintenance may be given (x).'
§ 1356. In the next place, in regard to the management and
disposal of the property of infants. And here, the court will
exercise a vigilant care over guardians in the management of the
property of the infant.
§ 1357. Guardians should not change the personal property of the
infant into real property, or the real property into personalty; since
it may not only affect the rights of the infant himself, but also his
representatives, if he should die under age, unless it is manifestly
(r) Bridge v. Brown, 1 Y. & C. Ch. 181; Ex paHe Hays, 3 De G. & Sm. 485;
In re Welch, 23 L. J. Ch. 344.
(s) Walker v. Wetherell, 6 Ves. 474.
it) In the Conveyancing Act, 1881, s. 43, sub-s. 2, the word benefit is added.
(«) In re Dickson, Hill v. Grant, 29 Ch. D. 331 ; In re Bowlby, B'owlby v. Bowlby,
[1904] 2 Ch. 685.
(x) In re Holford, Holford v. Holford, [1894] 3 Ch. 30; In re Jeffery, Arnold v.
Burt, [1895] 2 Ch. 537.
570 EQUITY JURISPRUDENCE. [CH. XXXIV.

for the benefit of the infant, change the nature of the estate; and
the court will support their conduct, if the act be such as the court
itself would have done, under the like circumstances, by its own order.
The act of the guardian, in such a case, must not be wantonly done;
but it must be for the manifest interest and convenience of the
infant (y). And when the court directs any such change of property,
it directs the new investment to be in trust for the benefit of those
who would be entitled to it, if it had remained in its original state («).
§ 1358. In the next place, in regard to the marriage of infants.
This is a most important and delicate duty of the court, which it
exercises with grea.t caution in relation to all persons who are wards
of ccfurt. No person is permitted to marry a ward of court without
the express sanction of the court, even with the consent of the
guardian. If a man should marry a female ward without the consent
and approbation of the court, he (»), and all others concerned in
aiding and abetting the act (6), will be treated as guilty of a contempt
of the court; and the husband himself, even though he were ignorant
that she was a ward of court, will still be deemed guilty of a
contempti (c).
§ 1359. In all cases where the court appoints a guardian, or
committee in the nature of a guardian, to have the care of an infant,
it is accustomed to require the party to give a recognizance that the
infant shall not marry without the leave of the court; which form
is rarely altered, and only upon special circumstances. So that, if an
infant should marry, though without the privity, or knowledge, or
neglect of the guardian, or committee; yet the recognizance would in
strictness be forfeited, w^hatever favour the court might, upon an
application, think fit to extend to the party, when he should appear
to have been in no fault (d).
§ 1360. With a view, also, to prevent the improper marriages of
its wards, the court will, where there is reason to suspect an intended
and improper marriage without its sanction, by an injunction, not
only interdict the marriage, but also interdict communications between
the ward and the admirer; and if the guardian is suspected of any

(y) Inwood v. Twyne, Ambler 417, and Mr. Blunt's note; s.o. 2 Eden 148, and
Mr. Eden's note. The rule seems now to be, that it is the duty of the court to pre-
serve the estates of all infanta in the condition in which the ancestor has left them,
unless some overwhelming necessity is shown for conversion. Marquis Camden v.
Murray, 16 Ch. D. 161, at p. 171.
(z) Ware v. Polhill, 11 Ves. 257; Ex parte Phillips, 19 Ves. 118; Webb v. Lord
Shaftesbury, 6 Mad. 100.
(a) Bathurst v. Murray, 8 Ves. 74; Field v. Brown, 17 Beav. 146; Cox v. Ben-
nett, 31 L. T. 83.
(b) Eyre v. Countess of Shaftesbury, 2 P. Wms. 103, 112; More v. More, 2 Atk.
157; Priestley v. Lamb, 6 Ves. 421.
(c) Eyre v. Countess of Shaftesbury, 2 P. Will. 103.
698. (d) Eyre v. Countess of Shaftesbury, 2 P. Will. 112; Dr. Davis's Case, 1 P. Will.
§ 1358— 1361b.] INFANTS. 571

connivance, it will remove the infant from his care and custody, and
place the infant under the care and custody of a committee (e).
Lord Hardwicke has justly remarked, that this jurisdiction is highly
important in its exercise under both of these aspects; in the first
place, when it is exercised by way of punishment of such as have done
any act to the prejudice of the ward; in the next place, by the still
more salutary and useful exercise, by way of prevention, when it
restrains persons from doing any act to disparage the ward, before the
act has been completed (/). But the court has no jurisdiction to
compel an infant ward of court to make a settlement of his own
property because he has been guilty of contempt in marrying without
leave {g).
§ 1361. In case of an offer of marriage of a ward, the court will
refer it to a master, to ascertain and report, whether the match
is a suitable! one, and also what settlement ought to be made. And
where a marriage has been actually celebrated without the sanction
of the court, the court will not discharge the husband, who has been
committed for the contempt, until he has actually made such a settle-
ment upon the female ward, as, upon a reference to a master, shall,
under all the circumstances, be deemed equitable and proper. One
important consideration is whether there has been any circumstance
of aggravation (h). If there has been, the husband will be excluded
from all direct benefit under the settlement, but a general power
to the wife to appoint by will in case of default of issue is a proper
provision, although the husband might ultimately derive an interest
in the wife's property (i). It will not make any difference in the case,
that the ward has since arrived of age, or is ready to waive her
right to a settlement; for the court will protect her against her own
indiscretion, and the undue influence of her husband {k).
§ 1361b. The court refuses to interfere with the custody of
foreign guardians and their control of their wards, upon mere grounds
of expediency and advantage to the wards. If there is English
property belonging to the wards, English guardians will be appointed
to supplement the office and duty of the foreign guardians, in case of
neglect or abuse, and to bring the matter before the court for proper
directions. But no interference with the control of the person of
the wards by the foreign guardians will be allowed until some case
of abuse is shown. The court will not in such case entertain any
question of the preference of the wards and the greater advantage to
them of English control or education (I).
(e) Smith v. Smith, 3 Atk. 304; Pearce v. Crutchfield, 14 Ves. 206,
(/) Smith V. Smith, 3 Atk. 305. (iji) In re Leigh v. Leigh, 49 Ch. D. 290.
(h) Bathurst v. Murray, 8 Ves. 74; Anon., 4 Buss. 473.
(i) Att.-Gen. v. Lucas, 2 Ph. 753; In re Sampson v. Wall, 25 Ch. D. 482.
(&) Stevens v. Savage, 1 Ves. Jun. 154.
(!) Daniel v. Newton, 8 Beav. 485; In re Dawson, Dawson v. Jay, 2 Sm. & G.
199; Nugent v. Vetsera, L. E. 2 Eq. 704; In re Bourgoise, 41 Ch. D. 610.
572 EQUITY JURISPRUDENCE. [CH. XXXV.

CHAPTER XXXV.
IDIOTS AND LUNATICS.

§ 1362. With this brief exposition of the jurisdiction and doctrines

of the Court of Chancery, in regard to infants, we may dismiss the
subject and proceed to the consideration of the jurisdiction in
relation to Idiots and Lunatics. The remarks, which have been
already made, to distinguish the jurisdiction of the court in this class
of cases from that exercised in cases of infants, have, in a great
measure, anticipated, and brought under discussion, the explanations
proper for this place (a). If the preceding views of this subject are
correct, the Court of Chancery might properly have been deemed to
have had, originally, as the general delegate of the authority of the
crown, as parens ■patrise, the right, not only to have the custody and
protection of infants, but also of idiots and lunatics, when they have
no other guardian. But this claim to an original jurisdiction had
been discountenanced judicially by Lord Loughborough (b) and Lord
Eldon (c), who have pointed out that the delegation to the Lord
Chancellor was only for the purposes of administration; and the
choice of that officer accidental and not compulsory. Since 1851,
the Lords Justices have been appointed under the royal sign-manual,
and by the Lunacy Act, 1890, 53 Vict. c. 5, sec. 108, the delegates
of the crown are to be chosen among the holders of the Great Seal
or the Judges of the Supreme Court (d).
§ 1363. But the statute of 17 Ed. 2, cc. 9, 10, introduced some
new rights, powers, and duties of the crown; and since that period,
the jurisdiction is not the same as in the case of infants, nor are the
doctrines of the judge the same in all respects. Still, for the most
part, they agree in substance; and, in a work like the present, there
would be little utility in a more minute and comprehensive enumera-
tion of the distinctions and differences between them.
§ 1364. But whatever may be the true origin of the authority of
the crown, as to idiots and lunatics, the judges of the Court of
Lunacy do not at the present day act, in all cases, under the special
warrant by the sign-manual, but the jurisdiction and procedure are
regulated by statute — the Lunacy Act, 1890, 53 Vict. c. 5 and

(a) Ante, § 1334 to 1336.

(b) Oxenden v. Lord Compton, 2 Vea. Jun. 72.
(c) Ex parts Phillips, 19 Ves. 118; Sherwood v. Sanderson, 19 Ves. 28Q.-
(d) In re Catheart, [1893] 1 Ch. 466.
§ 1362—1365.] IDIOTS and lunatics. 573

amending statute. The statute empowers the court to provide for

the maintenance of idiots and lunatics, and for the care of their

persons and estates; and no more (e). "When a person is ascertained

to be an idiot or lunatic (/), the court proceeds to commit the custody
of the person and estate of the idiot or lunatic, sometimes to the same
person, and sometimes to different persons, aecordi-ng to circum-
stances, and to direct for him a suitable maintenance (g). It is usual
to take bond from the committees to account and submit to the
orders of the court; but it is not absolutely necessary so to do (h).
§ 1364a. By the present construction of 3 & 4 Will. 4, c. 74,
the Lord Chancellor has authority to give consent, on the part of a
lunatic, tenant in tail in possession, that the first tenant in tail in
remainder may bar the subsequent limitations, on a proper case being
made out for the exercise of that authority (i). In the case of a devise
of real and personal estate, to trustees, to apply the whole, or any
part of the rents, to the maintenance of an imbecile person, it was
held that the trustees could not interpose that discretionary power to
oust the jurisdiction of the court; and that the trust was in exonera-
tion of the private property of the cestui que trust, so that his personal
representative might claim to have recouped out of the income of the
trust property any sum which he may have applied out of the private
property of the imbecile towards his maintenance (fc).
§ 1365. In regard to the manner of ascertaining whether a person
is an idiot or lunatic, or not, a few words will suffice. Upon a proper
petition, a commission issues out of lunacy, on which the inquiry is
to be made, as to the asserted idiocy or lunacy of the party {I).
The inquisition is always had and the question tried by a jury, or
before a master in lunacy, whose unimpeached verdict becomes
conclusive upon the fact. The commission is not confined to idiots
or lunatics, strictly so called; but in modern times it is extended to all
persons who, from disease or age, are incapable of managing their

(e) Lysaght v. Royse, 2 Sch. & Lefr. 153. In order that the chancellor should
deal with the property of a lunatic at all, it is necessary that a commission should be
taken Out, or that the lunatic should be a party in a cause; otherwise the court has
no jurisdiction. Gilbee v. GUbee, 1 Phil. 121.
(/) As to the jurisdiction of chancery to interfere for the protection of a lunatic
not found so by inquisition, see Nelson v. Buncombe, 9 Beav. 211.
ig) Dormer's Case, 2 P. Will. 263; Sheldon v. Fortescue Aland, 3 P. Will. 110;
Lysaght v. Boyse, 2 Sch. & Lefr. 153; Ex parte Chumley, 1 Ves. Jun. 296; Ex parte
Baker, 6 Ves. 8; Ex parte Pickard, 3 Ves. & B. 127; In r,e Webb, 2 Phil. 10.
(h) In re Frank, 2 Buss. 450; In re Burroughs, 2 Dru. & War. 207; Ex parte
Mount, 21 L. J. Ch. 221.
(i) In re Blewitt, 6 De G. M. & G. 187 ; In re Wynne, L. E. 7 Ch. 229. And
property falling to a lunatic will be applied to past maintenance, though no inquisition
had been had. In re Gibson, L. E. 7 Ch. 52. So, income of the separate estate of a
married woman may be applied to her support when lunatic. In re Baker's Trusts,
L. K. 13 Eq. 168.
{k) In re Sanderson's Trusts, 8 Kay & J. 497.
(I) Lunacy Act, 1890, Part III.
574 EQUITY JURISPRUDENCE. [CH. XXXV.

own affairs, and therefore are properly deemed of unsound mind, or

non compotes mentis (m).
§ 1365a. The jurisdiction of the court over lunatics is not confined
to lunatics domiciled within the country; but a commission of lunacy
may issue where the lunatic has lands or other property within the
State, although he is domiciled abroad (n.).

(m) Lunacy Act, 1890, sect. 116, sub-s. 1 (d).

(n) Lunacy Act, 1890, sects. 90, 96. Southcote's Case, 2 Ves. Sen. 402.
§ 1365a — 1367.] married, women. 575

CHAPTER XXXVI.
MARRIED WOMEN.

§ 1366. We may next proceed to the consideration of the pecuhar

jurisdiction exercised by courts of equity, in regard to the persons
and property of Married Women ; and, principally, in regard to
their property. It is not our design, in these Commentaries, to enter
upon any consideration of the general doctrines relative to the rights,
duties, powers, and interests of husband and wife, which are recog-
nised at the common law. That would properly belong to a treatise
of a very different nature. It will be sufficient, for our present
purpose, to examine those particulars only which are pecuhar to courts
of equity, or in which a remedial justice is applied by them beyond,
or unknown to, the common law. Although these doctrines are for
the most part rendered obsolete by the operation of the Married
Women's Property Act, 1882, from their historical importance it is
considered advisable to retain them in the text.
§ 1367. It is well known that, at the common law, husband and
wife were treated, for most purposes, as one person ; that is to say, the
very being or legal existence of the woman, as a distinct person, was
suspended during the marriage, or, at least, was incorporated and
consolidated with that of her husband. Upon this principle, of the
union of person in husband and wife, depended almost all the legal
rig'hts, duties, and disabilities which either of them acquired by or
during the marriage (a). For this reason, a man could not grant
anything to his wife, or enter into a covenant with her; for the grant
would have supposed her to possess a distinct and separate existence.
And, therefore, it was also generally true, that contracts made between
husband and wife, when single, were avoided by the intermarriage (b).
Upon the same ground it is, that, if the wife were injured in her
person or property during the marriage, she could bring no action for
redress without the concurrence of her husband, neither could she be
sued, without making her husband also, a party in the cause (c). All
this is very different in the civil law, where the husband and wife
are considered as two distinct persons; and may have separate

(a) 1 Black. Coram 442. I have qualified Blackstone'a text by adding the words,
" for most purposes; " for, in some respects, even at law, she is treated as a distinct
person; as, for example, she may commit crimes separately from her husband; she
may act as an attorney for him, or for others; she may levy a fine; she may swear
articles of peace against him.
(b) 1 Black. Comm. 442.
(c) 1 Black. Comm. 443.
576 EQUITY JURISPRUDENCE. [CH. XXXVI.

estates, contracts, debts, and injuries (d); and may also, by agreement
with each other, have a community of interest, in the nature of a
partnership.
§ 1368. Now, in courts of equity, although the principles of law,
in regard to husband and wife, were recognised and not interfered
with actively, yet they were not exclusively considered. On the
contrary, courts of equity, for many purposes, treated the husband
and wife as the civil law treats them, as distinct persons, capable (in
a limited sense) of contracting with each other, of suing each other,
and of having separate estates, debts, and interests (e). A wife
might, in a court of equity, sue her husband, and be sued by him (/).
And in cases respecting her separate estate, she might also be sued
without, him (g) ; although he was ordinarily required to be joined for
the sake of conformity to the rule of law, as a nominal party, when-
ever he was within the jurisdiction of the court, and could be made
a party (h).
§ 1369. In the further illustration of this subject, we shall consider,
first, the cases in which contracts between husband and wife would
be recognized and enforced in equity ; secondly, the manner in which
a wite might acquire a separate estate, and her powers and interest,
therein; thirdly, the equity of the wife to a settlement out of her own
property, not reduced into the possession of her husband; and,
fourthly, her claim in equity for maintenance and alimony.
§ 1370. And first, in regard to contracts between husband and
wife. By the general rules of law, as has been already stated, the
contracts made between husband and wife before marrriage became,
by their matrimonial union, utterly extinguished (/). Thus, for
example, if a man should give a bond to his wife, or a wife to her
husband, before marriage, the contract created thereby would, at law,
be discharged by the intermarriage (fc). Courts of equity, although
they generally followed the same doctrine, would, in special cases, in
furtherance of the manifest intentions and objects of the parties,
carry into effect such a contract made before marriage between
husband and wife, although it would be avoided at law (I). An agree-
ment, therefore, entered into by husband and wife, before marriage,
for the mutual settlement of their estates, or of the estate of either
upon the other, upon the marriage, even without the intervention of
trustees, would be enforced in equity, although void at law; for

(d) 1 Black. Comm. 444.

(e) Woodward v. Woodward, 3 De G. J. & S. 672; Butler v. Butler, 16 Q B. D.
831.
(/) Cannel v. Buckle, 2 P. Will. 243, 244.
(g) Dubois v. Hole, 2 Vern. 613, and Mr. Balthby's note (1).
(h) See Lillia v. Airey, 1 Vea. Jun. 278.
(i) Co. Litt. 112a, 187b.
(k) Com. Dig. Baron d Feme, D. 1 ; Cro. Car. 551 ; Co. Litt. 264b.
(I) Rippon V. Dawding, Ambler 566, and Mr. Blunt's note.
§ 1368 1372.] MARRIED WOMEN. 577

equity would not suffer the intention of the parties to be defeated by

the very act which is designed to give effect to such a contract (rn).
On this ground, where a wife, before marriage, gave a bond to her
intended husband, that, in case the marriage took effect, she would
convey her estate to him in fee, the bond was, after the marriage,
carried into effect in equity, although it was discharged at law.
Upon that occasion Lord Macclesfield, L.C., said : " It is unreasonable
that the intermarriage, upon which alone the bond was to take effect,
should itself be a destruction of the bond. And the foundation of that
notion is, that at law the husband and wife, being one person, the
husband cannot sue the wife on this agreement ; whereas, in equity,
it is constant experience that the husband may sue the wife, or the
wife the husband; and the husband might sue the wife upon this very
agreement " (w).
§ 1371. If a debt were by specialty, then owing to a technicality
based upon a formal procedure (o), a widow might pursue her remedies
at law against the personal representatives of a covenantor with whom
she had subsequently intermarried, as in the case of a bond to leave
her a sum of money by will (p), or a covenant to pay an annuity (g).
The reason being that there no longer existed any objection to parties
at the time of action brought (r). A fortiori, such an agreement
would be specifically decreed in a court of equity (s). Therefore,
where a husband covenanted before marriage with his intended wife,
that she should have power to dispose of £300 of her estate, he was
afterwards held bound specifically to perform it (t). The wife might
even execute a power to dispose of property so reserved to her, in
favour of her husband. Since the Married Women's Property Act,
1882, these ante-nuptial contracts between man and woman would
have full force to them whether in equity or at law.
§ 1372. In regard to contracts made between husband and wife
after marriage, a fortiori the principles of the common law applied
to pronounce them a mere nullity ; for there was deemed to be a
positive incapacity in each to contract with the other. But here
again, although courts of equity followed the law, they could, under
particular circumstances, give full effect and validity to post-nuptial
contracts. Thus,, for example, if a wife, having a separate estate,

(to) Moore v. Ellis, Bunb. 205; Fursor v. Penton, 1 Vern. 408; Cotton v. Cotton,
Prec. Ch. 41; s.c. 2 Vern. 290, and Mr. Eaithby'e note.
(«.) Cannel v. Buckle, 2 P. Will. 243, 244; B.C. 8 Eden, 252 to 254.
(o) Schlencker v. Moxsy, 3 B. & C. 789; Baber v. Harris, 9 A. & E. 532.
(p) Gage v. Acton, 1 Salk. 325; s.c. 1 Ld. Eaym. 516; Milbourn v. Ewart, 5
T. E. 381.
(g) Fitzgerald v. Fitzgerald, L. E. 2 P. C. 83.
(r) See Rose v. Poulton, 2 B. & Ad. 822.
(s) Rippon V. Dawding, Ambler 566, and Mr. Blunt 's note; Prebble v. Boghurst,
1 Swanst. 309.
(t) Fursor v. Penton, 1 Vern. 408, and Mr. Eaithby'B note; Wright v. Cadogan,
2 Eden, 252.
E.J. 37
578 EQUITY JURISPRUDENCE. [CH. XXXVI.

should, bona fide, enter into a contract with her husband, to make
him a certain allowance out of the income of such separate estate for
a reasonable consideration, the contract, althougfh void at law, was
obligatory, and has been enforced in equity (u). So, if the husband
should, after marriage, for good reasons have contracted with his
wife, that she should separately possess and enjoy property be-
queathed to her, the contract would have been upheld in equity (x).
So, if a husband and wife for a bona fide and valuable consideration,
should have agreed that he should purchase land and build a house
thereon for her, and she should pay him therefor out of the proceeds
of her own real estate; if he should perform the contract on his side,
she also would have been compelled to perform it on her side (y).
Nay, if an estate were devised to a husband for the separate use of his
wife, it was considered as a trust for the wife, and he would be
compelled to perform it {z).
§ 1373. It was upon similar grounds, that a wife might become
a creditor of her husband, by acts and contracts during marriage ;
and her rights, as such, would be enforced against him and his
representatives. Thus, for example, if a wife should have united with
her husband to pledge her estate, or otherwise to raise a sum of money
out of it to pay his debts, or to answer his necessities, Whatever
might be the mode adopted to carry that purpose into efiect, the
transaction would, in equity, have been treated according to the true
intent of the parties. She was deemed a creditor or a surety for
him (if so originally understood between them) for the' sum so paid;
and she was entitled to reimbursement out of his estate, and to the
like privileges as belong to other creditors (a).
§ 1374. In respect also to gifts or grants of property by a husband
to his wife after marriage, they were, ordinarily (but not universally),
void at law. But courts of equity would uphold them in many cases
where they were held void at law; although, in other cases, the
rule of law was recognised and enforced. Thus, for example, if a
husband should, by deed, have granted all his estate or property to
his wife, the deed was held inoperative in equity, as it would be in
law; for it could in no just sense be deemed a reasonable provision
for her (w'hich was all that courts of equity held the wife entitled
to); and, in giving her the whole, he would surrender all his own
interest (6).

(u) More v. Freeman, Bunb. 205.

{x) Harvey v. Harvey, 1 P. Will. 125, 126; s.o. 2 Vern. 659, 760, and Mr.
Eaithby's note.
(y) Townshend v. Windham, 2 Ves. Sen. 7.
(z) Barley v. Darley, 3 Atk. 399; Rich v. Cockell, 9 Ves. 375; post, § 1380.
(o) Jackson v. Innes, 1 Bligh, 104. See now the Married Women's Property
Act, B. 8.
(b) Beard v. Beard, 3 Atk. 71.
§ 1373 — 1375a.] married womek. 579

§ 1375. But, on the other hand, if the nature and circumstances

of the gift or grant, whether it be express or implied, were such that
there was no ground to suspect fraud, and it amounted only to a
reasonable provision for the wife, it would, even though made after
coverture, be sustained in equity (c). Thus, for example, gifts, made
by the husband to the wife during the coverture, to purchase clothes,
or personal ornaments, or for her separate expenditure (commonly
called pin-money), and personal savings and profits made by her in her
domestic management, which the husband allowed her to apply to her
own separate use {d), were held to vest in her, as against her husband
(but not as against his creditors), an imimpeachable right of property
therein, as her exclusive and separate estate (e). It is true that
courts of equity required evidence to establish such gifts as a matter
of intention and fact; but, when that was established, full effect will
be given to them (ee).
§ 1375a. Pin-money is a very peculiar sort of gift for a particular
purpose and object, and, whether it is secured by a settlement or
otherwise, it is still required to be applied to those purposes and
objects (/). It is not deemed to be an absolute gift, or, as it is some-
times said, out and out, by the husband to the wife. It is not
considered like money set apart for the sole and separate use of the
wife during coverture, excluding the jus mariti. But it is a sum set
apart for a specific piurpose, due, or given to, the wife, in virtue of a
particular arrangement, payable and paid by the husband in virtue
of that arrangement, and for that specific purpose. Pin-money is a
sum paid in respect to the personal expense of his wife, for her dress
and pocket-money; and hence, as the very name seems to import, it
has a connection with her person, and is to deck and attire it. The
husband, therefore, as well as the wife, may be said to have an
interest in it; for the wife is to dress (it has been said) according to
his rank, and not her own. It is upon this ground that courts of
equity refuse to go back to call upon the husband to pay beyond the
arrears of a year, although stipulated for by a, marriage settlement;
for the money is meant to dress the wife during the year, so as to
keep up the dignity of the husband, and not for the accumulation of
the fund. This provides a check and control to the husband. It
prevents the wife from misspending the money. It secures the
appropriation of the money to its natural and original purpose. It
is vidth this view, quite as much as on account of the presumed
satisfaction by acquiescence, that courts of equity have established

(c) Walter v. Hodge, 2 Swanst. 106, 107; Lucas v. Lucas, 1 Atk. 270, 271.

(d) Slanning v. Style, 3 P.' Will. 337.

(e) Sir Paul Neal's case, cited in Prec. Ch. 44; Lucas v. Lucas, 1 Atk. 270;
Graham v. Londonderry, 3 Atk. 393 to 395.
(ee) Lloyd v. Pughe, L. E. 8 Oh. 88.
(/) Jodrell V. Jodrell, 9 Beav. 45
580 EQUITY JURISPRUDENCE. [CH. XXXVI.

the principle above stated, not to allow the wife to claim pin-money
beyond the yeM'. On the same ground it is, that the personal repre-
sentatives of the wife are not allowed to make any claim for the
arrears of pin-money, not even for arrears of a year; for the allow-
ance has a sole regard to the personal dress and expenses of the wife
herself during that period. And hence, also, it is, that if the wife
becomes insane, and remains so until her death, if the husband has
maintained her, and taken suitable care of her, according to her rank
and condition, courts of equity will not allow her personal repre-
sentatives to'make any claim for any arrearages of pin-money, even
secured by a marriage settlement (g).
§ 1376. Under the like consideration, in a great measure, falls the
right of the wife to her paraphernalia; a term originally of Greek
derivation (where it means something reserved over and above dower,
or a dotal portion), and aiterwards imported into the civil law, and
from thence adopted into the language or the common law (h), in
which it includes all the personal apparel and ornaments of the wife,
which she possesses, and which are suitable to her rank and condition
in life (i). The husband in his lifetime may dispose of her
paraphernalia, excepting, indeed, her necessary apparel ; and they are
liable to the claims of creditors, with the like exception (k). But the
wife is entitled to her paraphernalia against his representatives; for
the husband cannot by will dispose of them, or leave them to his
representatives (l). The court fully recognise this right of the husband
and his creditors ; although in case of the latter, if there are any other
assets of the husband, they will, after his death, be marshalled against
his representatives in favour of the widow (m).
§ 1377. There is, however, a distinction upon this subject of
paraphernalia, which is entitled to consideration. Where the husband,
either before or after marriage, gives to his wife articles of paraphernal
nature, they are not treated as absolute gifts to her, as her own
separate property ; for, if they were, she might dispose of them at any
time, and he could not appropriate them to his own use. But they
are deemed as, technically, paraphernalia to be worn by the wife as
ornaments of her person; and so to be deemed gifts suh modo only (n).

(g) Howard v. Earl of Digby, 2 CI. & P. 634; s.c. 8 Bligh N. S. 324; post,
§ § 1396, 1425.
(h) Si res dentur in ea, quae Graeci irapiiptpva dicvint, quae Galli peculium
appellant. Dig. Lib. 23, tit. 3, f. 9, § 3. Aa to these the Code declared : " Ut vir in
his rebus, quas extra dotem mulier habet, quas Grseci irapcfi^cpva dicvint, nuUam
uxore prohibente habeat communionem, nee aliqnam ei necessitatem imponat, &c.
Nnllo modo (ut dictum est) muliere prohibente, virum in paraphernis se volumus
immiscere." Cod. Lib. 5, tit. 14, 1. 8. (t) 2 Black. Comm. 435.
(k) 2 Black. Comm. 435, 436. Lord Townshend v. Windham, 2 Ves. 1.
(0 Tipping v. Tipping, 1 P. Will. 729; Seymore v. Tresilian, 3 Atk. 358.
(m) Ante, § 568; Tipping v. Tipping, 1 P. Will. 729; Tynt v. Tynt, 2 P. Will.
542, 544, and Mr. Cox's note (1) ; Probert v. Clifford, Ambler 6, and Mr. Blunt's note.
(n) Ridout v. Earl of Plymouth, 2 Atk. 104.
§ 1376 1381.] MARRIED WOMEN. 581

But, if the like articles were bestowed upon her by a father, or by a

relative, or even by a stranger, before or after marriage, they would
be deemed absolute gifts to her separate use; and then, if received
wiiii the consent of her husband, he could not, nor could his creditors,
dispose of them any more than they could of any other property
received and held to her separate use (o).
§ 1378. In the next place, as to the manner in which a married
woman might acquire a separate estate, and as to her powers and
interests therein. It is well known that the strict rules of the old
common law would not permit the wife to take or enjoy any real or
personal estate separate from or independent of her husband. On
the other hand, courts of equity, for a great length of time, admitted
the doctrine, that a married woman is capable of taking real and
personal estate to her own separate and exclusive use ; and that she
has also an incidental power to dispose of it.
§ 1379. The power to hold real and personal property to her own
separate and personal use, might be, and often was, reserved to her
by marriage articles, or by an actual settlement made before marriage ;
and, in that case, the agreement became completely obligatory between
the parties after marriage, and regulated their future rights, interests,
and duties. In like manner, real and personal property might be
secured for the separate and exclusive use of a married woman after
marriage ; and thus the arrangement might acquire a complete
obligation between the parties.
§ 1380. It was formerly supposed that it was necessary, that
the property, of which the wife was to have the separate and exclusive
use, should be vested in trustees for her benefit ; or that the agreement
of the, husband should be made with persons capable of contracting
with him as trustees for her benefit. But, although this course was
and is always pursued in formal settlements, yet it has been
established for more than two centuries, in courts of equity, that the
intervention of trustees is not indispensable; and that, whenever real
or personal property was given or devised, or settled upon a married
woman, either before or after marriage, for her separate and exclusive
use, without the intervention of trustees, the intention of the parties
should be effectuated in equity, and the wife's interest protected
against the marital rights and claims of her husband, and of his
creditors also. In all such cases, the husband was held a mere trustee
for her (p); or restrained by injunction from interfering with the
property (g).
§ 1381. The reports contain a number of cases dealing with the
construction of instruments in which conveyancers, instead of simply

<o) Graham v. Londonderry, 3 Atk. 393.

<p) Rich v. Cockell, 9 Vea. 369.
(g) Green v. Green, 5 Hare, 400 n; Wood v. Wood, 19 W. E. 1049.
582 EQUITY JURISPRUDENCE. [CH. XXXVI.

employing the words " separate use " had misdirected their energies
in framing what they deemed to be equivalents, often to the dis-
ap ointment ofthose who had employed them. There seems little us©
in retaining cases of construction in an elementary treatise, the more
so as the difficulty is disposed of by the Married Women's Property
Act, 1882.
§ 1384. In fact as well as in law a separate use is only compatible
with an existing marriage. It was formerly doubted if a gift to the
use of an unmarried woman could effectively be made, but it was
finally settled that although in abeyance it sprung into existence on
each marriage (r), unless limited to a particular coverture (s).
§ 1385. Cases also occurred in certain ancient cities of a separate
estate, and even of a separate liability of a wife, of a more enlarged
nature. But as it was a law of local (t), and not of general, apphcation
it is unnecessary to consider its incidents. Since the Married
Women's Property Act, 1882, a wife may carry on a separate trade
from her husband, with the ordinary risks attaching to such trading,
one of which is liability to be made a bankrupt (s. 1, sub-ss. 1, 2,
and 5).

§ 1386. Where th'6 agreement for a separate trade by the wife

occurred after marriage, and it was founded upon a valuable con-
sideration, the like protection was given a.t law, if the property were
vested in trustees ; and the property, and the income and profits
thereof, was held secure for the wife against the husband and his
creditors. A fortiori, the doctrine was enforced in equity. But if it
were a voluntary agreement, it would be good against the husband
only, and not against his creditors. Care, however, had to be taken
in all these cases, that the negotiations were not carried on in the
name of the wife, as by taking notes or other securities in her name ;
for then they would, at law, have been held to belong to the husband,
although in equity it was otherwise.
§ 1387. We here perceive that the law would give effect to such
agreements, only when those forms had been observed which would
vest the property in parties capable of enforcing the proper rights of
the wife in legal tribunals; as was the case where the property was
vested in trustees for her sole use and benefit, in order to enable her
to carry on trade. But courts of equity went further; and if there
were any such agreement before marriage, resting in articles and'
without trustees, by which she was permitted to carry on business on
her sole and separate account; or if, without any such ante-nuptial?
agreement, the husband should have permitted her, after marriage, to
carry on business on her sole and separate account; all that she earned

(r) Tullett v. Armstrong, 4 Myl. & Cr. 377.

(s) Stogdon v. Lee, [1891] 1 Q. B. 661.
(t) See Tyson v. Smith, 9 A. & E. 406.
§ 1384 1390.] MARRIED WOMEN. 583

in trade was deemed to be her separate property, and disposable by her

as such, subject, however, to the claims of third persons properly
affecting it. In the former case, the earnings would be, in equity,
protected for her separate use against her husband and his creditors;
in the latter, against him only, unless the permission after marriage
arose from a valuable consideration. So, if a husband should have
deserted his wife, and she should have been enabled, by the aid of
her friends, to carry on a separate trade (as that of a milliner), her
earnings in such trade were enforced in equity against the claims of
her husband.

§ 1388. It remains to say a few words on the subject of the wife's

power to dispose of her separate property, and of its liability for her
contracts and d^bts. Wherever a trust was created, or a power was
reserved by a settlement, to enable the wife after marriage to dispose
of her separate property, either real or personal, it might be executed
by her in the very manner provided for, whether it were by deed or
other writing, or by a will or appointment. And courts of equity
would, in all cases, enforce .against heirs, devisees, and trustees, as
well as against the husband and his representatives, the rights of the
donee or appointee of the wife. But, where no such settlement,
trust, or power was created before marriage, but it rested in a mere
agreement between the husband and wife, it was formerly a matter
of doubt, whether the wife could dispose of her separate real estate,
so as effectually to bind it; although it was admitted that she had a
full power to dispose of her personal estate.
§ 1389. The distinction, and the reasons for it, are very clearly
stated by Lord Hardwicke (u).
§ 1390. But this doubt, however powerfully urged upon technical
principles, was overcome; and the doctrine was firmly established by
the highest authority, that, in such a case, courts of equity would
compel the heir of the wife to make a conveyance to the party in
whose favour she had made a disposition of the real estate ; in other
words, he was treated as a trustee of the donee, or appointee of the
wife. So, that it may now be laid down as a general rule, that all
ante-nuptial agreements for securing to a wife separate property,
would, unless the contrary is stipulated or implied, give her in equity
the full power of disposing of the same, whether real or personal, by
any suitable act or instrument in her lifetime, or by her last will, in
the same manner, and to the same extent, as if she were a feme
sole (x). And in all cases where a power for this purpose was reserved
to her by means of a trust, which is created for the purpose, she

(«) Peacock v. Monk, 2 Ves. Sen. 191.

{x) Wright V. Gadogan, 6 Bro. Pari. C. 156; s.c. Ambler, 468; Hulme v. Tenant,
1 Bro. C. 0. 20; Taylor v. Meads, i De G. J. & S. 597.
584 EQUITY JURISPRUDENCE. [CH. XXXVI.

might execute the power without joining her trustees, unless it was
made necessary by the instrument of trust (y).
§ 1391. In regard to the power of the wife to dispose of her
separate property, where no trust was interposed, but it rested
merely upon a post-nuptial agreement of the husband, there was a
material distinction, whether it were personal estate, or whether it
were real estate. In the former case, her power to dispose of it
could affect her husband's right only; and therefore his assent was
conclusive upon him. But it was very different in respect to her
real estate ; for, here her own heirs were or might have been
deeply affected in their interests by descent. Now, by the general
principles of the common law, a married woman was, during her
coverture, disabled from entering into any contract respecting her
real property, either to bind herself or to bind her heirs. And this
disability could be overcome only by adopting the precise means
allowed by law to dispose of her real estate. It is true that the
husband, by his own post-nuptial agreement with his wife, might have
bound his own interest to her real estate, and have converted himself
into a trustee for her {z). But he could not trench upon the rights of
her heir, who was no party to such an agreement. And, under such
circumstances, the latter would take her real estate by descent,
unaffected by any of the trusts springing from the agreement.
§ 1392. The remarks which have been made, applied to the case
of the real estate of the wife, already vested in her, as affected by
her own ante-nuptial or post-nuptial agreement with her husband.
But the question might have arisen, as to her rights and power over
real estate, which was given by a third person to her, during her
coverture, for her separate use, with a power to dispose of the same,
where no trustees were interposed to protect the exercise of the
power. As to this, the received doctrine seems to have been, that
if an estate were, during coverture, given to a married woman and
her heirs for her separate use, without more, she had the same
power of disposition over it, whether by deed or will, as if she were
a feme sole (a).
§ 1393. As to personal property, and the income of real property,
we have already seen, that, if they were given for the separate use of
a married woman, she had, in equity, a full power to dispose of them
at her pleasure (b). But, qualifications might have been attached to
the gift, which could control this absolute power; and, on the other
hand, this absolute power might have existed, notwithstanding words
might have accompanied the gift which might have seemed, prima
facie, intended to confer the power sub modo, only. Thus, for ex-
(y) Grigby v. Cox, 1 Ves. Sen. 517; Essex v. Atkins, 14 Ves. 547.
(z) Major v. Lansley, 2 Euss. & M. 355.
(a) Taylor v. Meads, 4 De G. J. & S. 597.
(b) Hulme v. Tenant, 1 Bro. C. C. 20; Major v. Lansley, 2 Russ. 355.
§ 1391 1396.] MARRIED WOMEN. 585

ample, if there were an express limitation to a married woman for

life, with a power to dispose of the samie property by will; there, her
interest would be deemed a partial interest, and equivalent to a life-
estate only; and she could not dispose of the property absolutely,
except in the manner prescribed by the power (c).
§ 1394. On the other hand, where personal property was expressly
given to a married woman, " to her for her sole and separate use,"
without saying, for life; and she was further authorized to dispose of
the same by will ; the gift was construed to confer on her the absolute
property, and, consequently, as conferring a power to dispose of it
otherwise than by will; for, the absolute property being given, the
power became nugatory, and was construed to be nothing more than
an anxious expression of the donor, that she might have an un-
controlled power of disposing of the property (d).
§ 1395. A married woman having this general power of disposing
of her separate property, the question naturally arose, whether she
might bestow it by appointment, or otherwise, upon her husband ; or
whether the legal disability attached to such a transaction. Upon
this subject the doctrine was firmly established in equity, that she
might bestow her separate property) by appointment or otherwise,
upon her husband, as well as upon a stranger. But, at the same
time, courts of equity examined every such transaction between
husband and wife with an anxious watchfulness, and caution, and
dread of undue influence ; and if they were required to give sanction
or effect to it, they would examine the wife in court, and adopt other
precautions to ascertain her unbiassed will and wishes (e).
§ 1396. Courts of equity would not only sanction such a disposi-
tion of the wife's separate property in favour of her husband, when
already made, but they would also in proper cases, upon her applica-
tion and consent, given in court, decree such property to be passed to
her husband, whether it were in possession or reversion, in such a
manner as she should prescribe. In the same way, her separate
estate might be charged with and made liable for his debts. But
courts of equity had no authority, even with the consent of the wife,
to transfer to the husband any property, secured to her sole and
separate use for life, where no power of disposition was reserved to
her over the property, or beyond the power reserved to her (/). And,
therefore, if the husband should receive such property, he would
ordinarily be compelled to account therefor. The same rule was
applied where the husband had by a settlement contracted to allow a

(c) Sugden, Powers, chap, v., sect. 1.

(d) Elton V. Shephard, 1 Bro. C. C. 532, and Mr. Belt's note. And see Richards
V. Chambers, 10 Ves. 584.
(e) v.
Osborn Dynock v. Atkinson,
Morgan, 3 Bro. C. C. 195 ; Murray v. Lord Elibank, 10 "Ves. 89 ;
9 Hare, 432.
(/) Richards v. Chambers, 10 Ves. 580.
586 EQUITY JURISPRUDENCE. [CH. XXXVI.

specific annual sum (not pin-money) for her sole and separate use, as,
for example, £100 or £1,000 a year; for, in such cases, if he did not
pay it, he would be held liable for the arrears (g). Where, indeed, the
husband, with the consent of his wife, is in the habit of receiving the
income, profits, and dividends of her separate estate, courts of equity
regard the transaction as showing her voluntary choice, thus to dispose
of it for the use and benefit of the family, and an absolute gift (h).
§ 1397. In the next place, let us examine how far the separate
property of the married woman was liable for any contracts, debts, or
other charges created by her during her coverture. At law, she was,
during her coverture, generally incapable of entering into any valid
contract to bind either her person or her estate (t). In equity, also,
it was clearly established that she could not by contract bind her
person or her property generally. The only remedy allowed was
against her separate property (fc). The reason of this distinction
between her separate property and her other property is that, as to the
former, she was treated as a feme sole, having the general power of
disposing of it; but, as to the latter, all the legal disabilities of a feme
covert attached upon her (l).
§ 1398. The doctrines maintained by courts of equity, as to the
nature and extent of the liability of the separate estate of a married
woman for her debts and other charges created during her coverture
were, after great discussion and variation of judicial opinion, finally
settled as follows, that a married woman, having separate estate,
would be liable so far as that separate estate extended, not only in
so far as related to all the debts, charges, incumbrances, and other
engagements which she expressly, or by implication, charged on that
separate estate, but also to all her general engagements, in whatever
way these engagements were created, and whether in making them
her separate estate was referred to or not (rw).
§ 1402. In the next place, let us proceed to the consideration of
what was commonly called the equity of a wife to a settlement out of
her own property. It is well known, that, at the common law, mar-
riage amounted to an absolute gift to the husband of all the goods,
personal chattels, and other personal estate of which the wife was
actually or beneficially possessed at that time, in her own right, and
of such other goods, personal chattels, and personal estate as came to
her during the marriage. But to her chases in action, such as debts

(3) Howard v. Digby, 8 Bligh N. S. i224, 257, 258.

(h) Squire v. Dean, i Bro. C. C. 326; Caton v. Ridout, 1 Mac. & G. 599; In re
Flammank, Wood v. Cock, 40 Ch, D. 461.
(i) Marshall v. Button, 8 T. E. 645.
(fc) Hulme V. Tenant, 1 Bro. C. C. 16, and Mr. Belt's note (3).
{I) See Stuart v. Lord Kirkwall, 3 Mad. 387; Owens v. Dickenson, 1 Cr. & Phil.
48.
(m) Hulme v. Tenant, 1 Bro. C. C. 16; Johnson v. Gallagher, 3 De G-. P. & J.
404 ; The London Chartered Bank of Australia v. Lempriire, L. E. 6 P. C. 572.
§ 1397 — 1404.] MARRIED WOMEN. 587

due by obligation, or by contract, or otherwise, the husband was not

absolutely entitled, unless they were reduced into possession during
her life. In regard to chattels real, of which the wife was or might
be possessed during the coverture, the husband had a qualified title.
He had an interest therein in her right; and he might, by his aliena-
tion during the coverture, absolutely deprive her of her right therein.
But if he did not aliene them she was entitled to them, if she survived
him ; and, if he survived her, he was entitled to them in virtue of his
marital rights.
§ 1403. These general explanations of the state of the common
law, as to the respective rights of husband and wife in regard to her
personal property, are sufficient to enable us to understand the origin,
nature, and character of the wife's equity to a settlement. We have
already seen the protective power which courts of equity exerted to
preserve the control and disposition of married women over property
secured or given to their separate use, and also to preserve the rights
and interests' of wards of the court. Whenever the husband reduced
the personal estate of his wife, of whatever original nature it might
be, whether legal or equitable, into possession, he became thereby the
absolute owner of it, and might dispose of it at his pleasure. And
this being the just exercise of his legal marital rights, courts of equity
would not interfere to restrain or limit it. Wherever, also, he was
pursuing the common remedies at law, for the purpose of reducing
such personal property into possession, courts of equity for the same
reason were, or at least (it is said) ought to have been, ordinarily
passive.
§ 1404. The principal if not the sole cases in which courts of equity
interposed to secure to the wife her equity to a settlement were, first,
where the husband sought aid or relief in a court of equity in regard
to her property; secondly, where he made an assignment of her equit-
able interests; thirdly, where she sought the like relief, as plaintiff,
against her husband, or his assignees, in regard to her equitable
interests. In the first case, the court laid hold of the occasion, upon
the ground of the maxim that he who seeks equity must do equity,
to require the husband to make a suitable settlement upon the wife
(if not already made) out of that property or some other property, for
her due maintenance and support, in case of her survivorship, according
to the rank, and condition, and circumstances of the parties (n). In
the second case, the same principle was applied to other persons,
claiming under the husband, as to himself. In the third case, the
doctrine might seem more artificial. But it was, in truth, enforcing
against the husband her adinitted equity to prevent an irreparable
injustice (o).

(n) Osborn v. Morgan, 9 Hare, 432.

(o) Lady Elibank v. Montolieu, 5 Ves. 737.
588 EQUITY JURISPEUDENCE. [CH. XXXVI.

§ 1405. The general theory of this branch of equity jurisprudence

may be thus succinctly stated. By marriage at common law the
husband clearly acquired an absolute property in all the personal
estate of his wife, capable of immediate and tangible possession. But
if it were such as could not be reduced into possession, except by an
action at law, or by a suit in equity, he had only a qualified interest
therein, such as would enable him to make it an absolute interest by
reducing it into possession. If it were a chose in action, properly so
called, that is, a right, which might be asserted by an action at law,
he would be entitled to it, if he had actually reduced it into possession
(for a judgment waiS not sufficient) in his lifetime. But if it were a
right, which must have been asserted by a suit in equity, as where it
was vested in trustees who had the legal property, he had still less
interest. He could not reach it without application to a court of
equity, in which he could not sue without joining her with him;
although perhaps a court of law might have permitted him to do so,
or at least to use her name without her consent. If the aid of a court
of equity were asked by him in such a case, it would make him provide
for her, unless she consented to give such equitable property to him (p).
§ 1406. It was called the wife's equity, because she could waive
it; but where the wife insisted upon it, and a settlement had been
decreed, it was the invariable practice to include a provision for the
issue of the marriage, through the instrumentality of the equity of the
wife (g). This equity would not only be administered at the instance
of the wife and her trustees, but also where the husband sued in equity
for her property, at the instance of her debtor (r). We shall presently
see in what manner the wife might waive the right to such a settle-
ment, and what would be the effects of her waiver (s), and what other
circumstances would deprive her and her issue of the right (f).
§ 1407. It is not easy to ascertain the precise origin of this right
of the wife, or the precise grounds upon which it was first established.
It has been said that it was an equity, grounded upon natural justice ;
that it was that kind of parental care which a- court of equity exercises
for the benefit of orphans, and that as a father would not have married
his daughter without insisting upon some provision, so a court of
equity, which stands in loco parentis, would insist on it (m). This is
not so much a statement of the origin as it is of the effect and value of
the jurisdiction. The truth seems to be, that its origin cannot be
traced to any distinct source. It was a creature of a court of equity,

(p) Dymock v. Atkinxon, 3 Bro. C. C. 195; Murray v. Lord Elibank, 10 Ves. 84;
Osborn v. Morgan, 9 Hare, 432.
(q) Murray v. Lord Elibank, 13 Ves. 1; Lloyd v. Mason, 5 Hare, 149; Wallace
V. Auldjo, 3 De G. J. & S. 643.
(r) Davy v. Pollard, Finch Ch. 377 ; s.c. 1 Eq. Abr. 64, pi. 2.
(s) Dymock v. Atkinson, 3 Bro. C. C. 195; In re Walker, LI. & G. t. Sugd. 299.
(t) See post, § 1416.
(u) Jewson v. Moulson, 2 Atk. 419.
§ 1405 — 1410.] MARRIED WOMEN. 589

and stcxxi upon its own peculiar doctrine and practice. It is in vain
to attempt, by general reasoning, to ascertain the nature or extent oE
doctrine, and therefore we must look entirely to the former practice
of the court for its proper foundation and extent (x).
§ 1408. And, in the first place, a settlement would be decreed at
the instance of the wife whenever the husband sought the aid or relief
of a court of equity to procure the possession of any portion of his
wife's fortune (y). In such a case, it was of no consequence whether
the fortune accrued before or during the marriage; whether the pro-
perty consisted of funds in the possession of trustees, or of third
persons ; or whether it were in the possession of the court or under its
administration, or not; for, under all these circumstances, the equity
of the wife would equally attach to it. This equity of the wife was for
a long time supposed to be confined to the absolute personal property
of the wife. It was afterwards extended to the rents and profits of
the real estate, in which she had a life-interest, although it was not
then generally extended, as against the husband personally, to equitable
interests, in which she had a life-estate only. Afterwards it acquired
a wider range, and was applied to all cases of the real estate of the
wife, whether legal or equitable, where the husband or his assignee
was obliged to come into a court of equity to enforce his rights against
the property (z).
§ 1409. There were some exceptions to the general doctrine, how-
ever, which deserve notice. In the first place, if both the husband
and wife were subjects of, and residents in, a foreign country, where
he would be entitled to his wife's fortune without making any settle-
ment upon her, in such a case, courts of equity, sitting in another
jurisdiction, would, as to personal property of the wife within their
jurisdiction, follow the local law, and do what the local tribunals would
ordain under similar circumstances; for the rights of the husband and
wife are properly subject to the local law of their own sovereign (a).
§ 1410. Another exception was, where the wife's property was a
leasehold estate, or a term for years, held in trust for her. In such
a case, it has been said, that the husband might assign the term for
a valuable consideration, and thereby dispose of it, without the wife
having any claim against his assignee; and if he did not dispose of it,
there was some doubt whether the wife had any equity against him (b).
It is extremely difficult to perceive the exact grounds upon which this
exception rested. It constituted a seeming anomaly, resting more
upon authority than principle ; and, as such, it has been several times

(x) Murray v. Lord Elibank, 10 Ves. 90; s.c. 13 Vea. 6.

(y) Osborn v. Morgan, 9 Hare, 432.
(z) Sturgis v. Champneys, 5 Myl. & Or. 97, 105 to 107; Hanson v. Keating, i
Hare, 1; Taunton v. Morris, 11 Ch. D. 779.
(a) Campbell v. French, 3 Ves. 321.
(b) Turner's Case, 1 Vem. 7.
590 EQUITY JURISPRUDENCE. [CH. XXXVI.

doubted, and perhaps ought now to be deemed overruled (c). But,

however questionable it may be in its origin, and however it may seem
to be at variance with the received doctrine, in other analogous cases
of assignment by the husband, it has had no inconsiderable weight of
judicial authority in its favour. It has even been carried to this
extent, that the husband might by his assignment of the reversionary
interest in a term of years, held in trust for the wife, bind that interest,
so as to deprive her of her equity therein; although he could not, in
the same way, dispose of her reversionary interest in any choses in
action or persoHsl chattels (d). The sole ground of the doctrine seems
to have been, that the husband might dispose of his wife's contingent
reversionary legal interest in a term of years, and that there is no
difference in equity, between the legal interests in, and the trusts of a
term for years. But when the interest of the wife could not vest in
possession until after the death of the husband, as the husband could
not claim by survivorship, his assignee's title was postponed to that of
the wife (e).
§ 1411. Secondly. In regard to the wife's equity to a settlement,
in cases where the husband made an assignment of her choses in
action, or other equitable interests. It was long settled, that the
assignees in bankruptcy or insolvency of the husband, and also his
assignees for the payment of debts, due to his creditors generally, were
bound to make a settlement upon the wife out of her chases in action
and equitable interests assigned to them, whether they were absolute
interests or life-interests only in her, in the same way, and to the same
extent, and under the same circumstances, as he would be bound to
make one; for it is a general principle, that such assignees take the
property, subject to aU the equities which affect the bankrupt, or
insolvent, or general assignor. Such assignees also took the property,
subject to the wife's right of survivorship, in case the husband dies
before the assignees reduced her choses in action and equitable interests
into possession (/).
§ 1412. The principal controversy which formerly arose was,
whether a special assignee or purchaser from the husband, for a
valuable consideration, of her choses in action, or equitable interests,
took the property subject to the same liability as the husband to make
a settlement upon the wife and children, and it was held that he was
so bound if the wife was entitled to the corpus of the chose in action
or property, but not if she was entitled to the income (g).

(c) See Mr. Eaithby's note to Turner's Case, 1 Vern. 7; Sturgis v. Champneys,
5 Myl. & Cr. 97; Hanson v. Keating, i Hare, 1; In re Carr's Trusts, 12 Bq. 609.
(d) Donne v. Hart, 2 Euss. & Myl. 360; Honner v. Morton, 3 Euss. 65; Purdew
V. Jackson, 1 Euss. 1.
(e) Duberly v. Day, 16 Beav. 33.
(/) Pierce v. Thornley, 2 Sim. 167.
(51) Tidd V. Lister, 3 De G. M. & G. 857 ; Duncombe v. Greenacre, 2 De G. F. & J.
509 ; 8.0. at the hearing 29 Beav. 578 ; In re Duffy's Trust, 28 Beav. 386.
§ 1411 — =1417.] MARRIED WOMEN. 591

§ 1413. In respect to reversionary choses in action, and other

reversionary equitable interests of the wife, in personal chattels
(although not, as we have seen, to her immediate and present equitable
interests (h), in chattels real), the doctrine was formerly well settled,
and in a manner most favourable to her rights; for no assignment by
the husband, with her consent, even when she joined in the assign-
ment, would exclude her right of survivorship in such cases (?'). This
was altered by 20 & 21 Vict. c. 57, which entitled her with the concur-
rence of the husband to alienate her reversionary interests in personalty
by a deed acknowledged before Commissioners as in the Act provided.
§ 1414. Thirdly. The equity of a wife to a settlement was not
only enforced, in regard to her choses in action and equitable interests
under the circumstances above mentioned, against the husband and
his assignees, where he or they were plaintiffs, seeking aid and relief
in equity; but it was also enforced where she or her trustee brought a
suit in equity for the purpose of asserting it (fc).
§ 1415. We have seen, that, when the husband came into a court
of equity for relief, as to any property, which he claimed in her right
jure mariti, he would be obliged to submit to the terms of the court,
and make a settlement or provision for her, otherwise the court would
not render him any assistance. If he did not choose to make any
such settlement or provision, the court would not, ordinarily, take
from him the income and interest of his wife's fortune, so long as he
was willing to live with her, and maintain her, and there was no reason
for their living apart (l).
§ 1416. Let us pass, in the next place, to the consideration of the
circumstances under which this equity to a settlement might be waived
or lost. And here, it need scarcely be said, that, if the wife were
already amply provided for, under a prior settlement, the very motive
and ground for the interference of a court of equity in her favour was
removed. But she would not, ordinarily, be barred by an inadequate
settlement, unless it were by an express contract made before
marriage (m).
§ 1417. The wife's equity for a settlement was generally under-
stood to be strictly personal to her, and it did not extend to her issue,
unless it had been asserted in judicial proceedings by her in her life-
time. If, therefore, she had died, entitled to any equitable interest,
and left her husband, and her children were unprovided for by any
settlement, still, her husband would be enabled to file a bill to recover
the same, without making any provision for the children (n). In

(h) Ante, § 1410. (t) Purdew v. Jackson, 1 Euss. 1.

(ft) Sturgis v. Champneys, 5 Myl. & Or. 97.
(I) Eedes v. Eedes, 11 Sim. 669.
(to) Giacommetti v. Prodgers, li. E. 8 Ch. App. 338.
(n) Murray v. Lord EUbank, 13 Ves. 1 ; Lloyd v. Mason, 6 Hare, 149 ; Wallace v.
Auldjo, 3 De G. J. & S. 643.
692 EQUITY JURISPRUDENCE. [CH. XXXVI.

truth, the equity of the children was not an equity to which in their
own right they were entitled. It could not, therefore, be asserted
against the wishes of the wife, or in opposition to her rights. The
court, in making a settlement of the wife's property, always attended
to the interests of the children, because it was supposed that, in so
doing it was carrying into effect her own desires to provide for her
offspring. But, if she dissented, the court withheld all rights from
the children (o).
§ 1418. It was competent, however, for the wife at any time
pending the proceedings, and before a settlement under the decree
was completed, or at least before proposals were made under that
decree, by her consent, given in open court or under a commission, to
waive a settlement, and to agree that the equitable fund should be
wholly and absolutely paid over to her husband (p). In such an event,
both she and her children would be deprived of all right whatsoever in
and over the fund. But a female ward of the Court of Chancery, who
had been married without its authority, and in contempt of it, would
not be allowed by the court to dispense with a settlement out of her
property. On the contrary, the court could insist upon such a settle-
ment being made by the husband notwithstanding her consent to the
contrary. And the court would often, by way of punishment, in gross
cases, do what it was not accustomed to do on common occasions,
require a settlement of the whole of the wife's property to be made on
her and her children (g).
§ 1419. The equity of the wife to a settlement might not only be
waived by her, but it might also be lost or suspended by her own
misconduct (r). Thus, if the wife were living in adultery, apart from
her husband, a court of equity would not interfere, upon her own
application, to direct a settlement out of her choses in action, or other
equitable interests; for, by such misconduct, she had rendered herself
unworthy of the protection and favour of the court (s). On the other
hand, a court of equity would not, in such a case, upon the application
of the husband, decree such equitable property of the wife to be paid
over to him ; for he was at no charge for her maintenance ; and it was
only in respect to his duty to maintain her, that the law gave him
her fortune (t).
§ 1419a. Where, indeed, the wife had entitled herself to a settle-
ment, and it had been decreed by a court of equity, there, the court
would not withhold or vary her right in consequence of any misconduct
(o) In re Walker, LI. & G. t. Sugd. 324.
(p) Murray v. Lord Elibank, 10 Ves. 84.
iq) Like v. Beresford, 3 Ves. 606 ; Stackpole v. Beaumont, 3 Ves. 89, 98.
(r) Where the wife had been guilty of fraud in inducing a person to lend money
on the security of the property, she could not claim a settlement out of it as against
such creditor. In re Lush's Trusts, L. E. 4 Ch. 591.
(«) Carr v. Eastabrooke, 4 Ves. 146.
(t) Sidney v. Sidney, 3 P. Will. 269.
 § 1418 — 1424.] MARRIED WOMEN. 593

on her part, even although the decree had not been carried into
execution. Nor would the court in such a case, at the instance of
the husband who had misconducted himself, entertain a suit for a
settlement against the wife or her children, and thereby relieve him
from his ordinary duty of maintaining them (u).
§ 1420. But we rriust be careful to distinguish between an applica-
tion made for a settlement on the wife, which was addressed to the
equity of the court, and which was administered by it, sua sponte,
upon the merits of the parties, and was not founded in any antecedent
vested rights, and other applications, where the parties stood upon
their own positive vested rights under a settlement, or under a valid
contract for a settlement, made before marriage. In the latter cases,
courts of equity could not refuse to protect or support those vested
rights on account of a,ny misconduct in the wife ; and it would be no
answer to a suit, brought by her for a settlement in such cases, that
she had been guilty of adultery (x).
§ 1421. In this and succeeding sections the learned author discussed
a jurisdiction, alleged to exist, exercised by the Court of Chancery to
decree a separate maintenance in the nature of alimony to the wife by
the husband out of his own property. The only reported case in which
this was done occurred during the Commonwealth (y), when the juris-
diction of the ecclesiastical courts had been transferred by statute to
the Court of Chancery. In all the other reported cases (z) the husband
had received property from the wife's side, and where the provision
may be regarded as in the nature of an equity to a settlement, and the
only doubt that can be raised is whether the value of the property
received measured the extent of the husband's liability (a), although it
probably did (fc). In a case before Lord Hardwicke (c) there was the
additional circumstance that the wife had sued out a supplicavit in
Chancery, and as the husband had forfeited his recognizance (d), it
may have been a remedy in the nature of a quantum damniflcaia. The
only cases in which it was ordered were where the husband deserted
his wife or turned her out of doors without sufficient means of support,
or compelled her by ill-treatment or cruelty to take refuge with rela-
tions or friends. It was put an end to by an offer to resume cohabi-
tation and to treat her bene et honeste.
§ 1424. But, although courts of equity did not assert any general
jurisdiction to decree a suitable maintenance for the wife out of her

(u) Hodgens v. Hodgens, 11 Bligh N. S. 62, pp. 104 to 110.

(x) Seagrave v. Seagrave, 13 Ves. 439; Buchanan v. Buchanan, 1 Ball & B. 203.
(y) Whorewood v. Whorewood, 1 Ch. Gas. 250.
(z) Wright V. Morley, 11 Ves. 12, where the earlier cases are referred to; Duncan
V. Duncan, 19 Ves. 394.
(a) Lambert v. Lambert, 2 Bro. P. C. 18.
(b) Gilchrist v. Cator, 1 De G-. & Sm. 188.
(c) Head v. Head, 3 Atk. 295, 547.
(d) Calmer v. Golmer, Moseley, 113, 118.
E.J. 38
594 EQUITY JURISPRUDENCE. [CH. XXXVI.

husband's property, because he had deserted her or ill-treated her,

yet, on the other hand, they did not abstain altogether from inter-
ference in her favour. Whenever the wife had any equitable property,
within the reach of the jurisdiction of courts of equity, they would
lay hold of it; and, in the case of the desertion or ill-treatment of the
wife by the husband, as well as in the case of his inability or refusal
to maintain her, they would decree her a suitable maintenance out of
such equitable funds (e). The general ground on which this jurisdiction
was asserted was, that the law, when it gave the property of the wife
to the husband, imposed upon him the corresponding obligation of
maintaining her; and that obligation would fasten itself upon such
equitable property, in the nature of a lien or trust, which courts of
equity, when necessary, would, in pursuance of their duty, enforce.
If the equitable property had been fraudulently transferred into the
possession of the husband, or of a third person for his use, the same
equity would be enforced against it in their hands ; and if it had
passed into the possession of a bond fide purchaser without notice, the
other property of the husband would be held liable as a substitute (/).
§ 1425. Courts of equity would also, for the like reasons, inter-
fere, and decree maintenance to the wife, under the like circumstances,
whenever there was a positive agreement between the parties for the
purpose, by way of specific performance (g). But no action could
be maintained in equity to enforce any decree for ahmony in a
matrimonial cause because it may be recalled or the amount payable
varied (h).
§ 1426. This equity of a wife to a maintenance, out of her own
equitable estate, was generally confined to cases of the nature above
mentioned, that is to say, where the husband abandoned or deserted
her; or where he refused to maintain her; or where, by reason of
his insolvency, he was incapable of affording a suitable maintenance
for her. Unless some one of these ingredients existed, courts of equity
would decline to interfere. If, therefore, the separation of the wife
from her husband were voluntary on her part, and was caused by no
cruelty or iU-treatment ; or if he were bond fide ready and willing
and able to maintain her, and she, without good cause, chose to
remain separate from him ; or if she already had a competent
maintenance; in all such cases, courts of equity would afford her no
aid whatever in accomplishing a purpose, which was deemed subver-
sive of the true policy of the matrimonial law, and destructive of the
best interests of society (t). A fortiori, where the wife had eloped,

(e) Wright v. Morley, 11 Ves. 12; Taunton v. Morris, 11 Ch. D. 779; Boxall v
Boxall, 27 Ch. D. 220.
(/) Colmer v. Calmer, Mos. 113; Watkyns v. Watkyns, 2 Atk. 96.
(g) Angier v. Angier, Prec. Ch. 496; Head v. Head, 3 Atk. 295, 647.
(h) Stones v. Cooke, 8 Sim. 321. See In re Robinson, 27 Ch. D. 160.
(t) Watkyns v. Watkyns, 2 Atk. 96; Ball v. Montgomery, 2 Yea. Jun. 191, 198,
§ 1425 — 1429.] MARRIED WOMEN. 595

and was living in a state of adultery, they would withhold all counte-
nance to such grossly immoral conduct; and they would leave the
wife to bear, as she might, the ordinary results of her own infamous
abandonment of duty (fc).
§ 1427. It was formerly considered that courts of equity would,
under no circumstances whatever, enforce specific performance of
deeds of separation between husband and wife, on the ground that
such separation between married persons is against public policy.
" But a change came over judicial opinion as to public policy, other
considerations arose, and people began to think that after all it
might be better and more beneficial for married people to avoid in
many cases the expense and the scandal of suits of divorce, by
settling their differences quietly by the aid of friends out of court,
although the consequence might be that they would live separately,
and that was the view carried out by the courts when it became
once decided that separation deeds iper se were not against public
policy " (I). A specific performance of such a deed can be enforced by
the husband against the wife, and at the instance of the wife against
the husband; and if either party threatens to sue for restitution
of conjugal rights, the courts of equity have power to issue an
injunction against the party so threatening to sue (m).
§ 1428. A deed of separation does not alter the legal condition
of the wife. A court of equity has power to enforce specific
performance of an agreement for such a deed, and for the compromise
of a suit in the Divorce Court without infringing the provisions
of the Judicature Act which prohibit interference with proceedings
pending in another branch of the court (n).
§ 1429. Such are some of the more important instances of the
exercise of jurisdiction by courts of equity in regard to married
women, for their protection, support, and relief, in some of which
they were merely auxiliary to the common law ; and in others, again,
they proceeded upon principles wholly independent, if not in contra-
vention, of that system. Upon a just survey of the doctrines of
courts of equity upon this subject, it is difficult to resist the impres-
sion that their interposition was founded in wisdom, in sound morals,
and in a delicate adaptation to the exigencies of a polished and
advancing state of society. And here, as well as in the exercise of

199; Garr v. Eastabrooke, 4 Ves. 196; Giacommetti v. Prodgers, L. E. 8 Ch. 3^;

Duncan v. Duncan, 19 Ves. 394.
(k) Wilkes v. Wilkes, 2 Dick. 791; Worrall v. Jacob, 3 Meriv. 267; Westmeath
V. Westmeath, Jac. 126; s.c. 1 Dow N. S. 619; St. John v. St. John, 11 Ves. 529;
Frampton v. Frampton, 4 Beav. 287, 293; Duncan v. Campbell, 12 Sim. 616.
(I) Per Sir G. Jessel, M.E., in Besant v. Wood, 12 Ch. D. 605, see p. 620.
(m) Besant v. Wood, 12 Ch. D. 605. The change in judicial opinion noted in the
text dates from Wilson v. Wilson, 1 H. L. C. 538. This section, owing to the change
in the law, is altogether different from that in the former editions of the learned author.
(n) Hart v. HaH, 18 Ch. D. 670.
-596 EQUITY JURISPRUDENCE. [CH. XXXVI.

the jurisdiction in regard to infants and lunatics, we cannot fail

to observe the parental solicitude with which courts of equity ad-
ministered tothe wants, and guarded the interests, and succoured the
weakness, of those who were left without any other protectors, in a
manner which the common law was too rigid to consider, too indifierent
to provide for.
§ 1429a.. The learning as to the property of married women, which
formerly constituted an important part of the doctrines of courts
of equity, has lost all its importance by the passing of the Married
Women's Property Act, 1882 (45 & 46 Vict. c. 75), which consolidated
and amended earlier enactments of 1870 and 1874, and which has
itself been amended by the Married Women's Property Act, 1893
(56 & 57 Vict. c. 63), and the Married Women's Property Act, 1907
(7 Edw. 7, c. 18). By the efiect of section 1, sub-s. (1) of the Act
of 1882, all property of a married woman, however acquired, becomes
her separate property (o), without the intervention of any trustee.
And by sub-section (2) she has become capable of entering into and
rendering herself liable in respect of and to the extent of her separate
property on any contract and of suing or being sued in contract or in
tort in all respects as if she were a feme sole, and her husband need
not be joined with her either as plaintiff or defendant, or be made a
party to any action or other legal proceeding brought by or taken
against her; and any damages or costs recovered by her in any such
action or proceeding shall be her separate property; and any damages
or costs recovered against her in any such action or proceeding shall
be payable out of her separate property, and not otherwise. By
section 2 of the Act of 1893, she may, if a plaintifi (p), be ordered
to pay the costs of any action or other proceeding out of property
which is subject to a restraint upon anticipation, and the order
enforced by the appointment of a receiver or the sale of the property.
And by section 1 of the Act of 1893, every contract entered into after
December 5, 1893, by a married woman, otherwise than as agent,
(a) shall be deemed to be a contract entered into by her with respect
to and to bind her separate property whether she is or is not in fact
possessed of or entitled to any separate property at the time when she
enters into such contract; (b) shall bind all separate property which
she may at that time or thereafter be possessed of or entitled to;
and (c) shall also be enforceable by process of law against all property
which she may thereafter while discovert be possessed of or entitled;
with an exception from liability of any property which at that time
or thereafter she is restrained from anticipating. Every married
woman carrying on a trade separately from her husband shall, in

(o) Ex ■parte Hood Bans, [1896] 2 Ch. 690.

(p) Hood Barrs v. Gathcart, [1895] 1 Q. B. 873; Moran v. Rttce, [1896] P. 214;
Hood Barrs v. Heriot, [1897] A. C. 177.
§ 1429a.] MARRIED WOMEN. 597

respect of her separate property, be subject to the bankruptcy laws

in the same way as if she were a feme sole. By section 2 of the
Act of 1882, every woman who maxries after 1882, is entitled to have
and to hold as her separate property and to dispose of in manner
aforesaid all real and personal property which shall belong to her at
the time of marriage, or shall be acquired by or devolve upon her
after marriage, including any wages, earnings, money, and property
gained or acquired by her in any employment, trade, or" occupation,
in which she is engaged or which she carries on separately from her
husband, or by the exercise of any literary, artistic, or scientific
skill. By section 3 of the same statute, a wife who lends money to
her husband for the purpose of any trade on business carried on by
him or otherwise, is postponed to the general trade creditors in the
event of bankruptcy (g). By section 4 of the same statute, the
execution of a general power by wiU by a married woman shall
have the efiect of making the property appointed liable for her debts
and other liabilities in the same manner as her separate estate is made
liable under this Act. And by section 5 of the same statute, every-
woman married before the commencement of this Act shall be entitled
to have and to hold and to dispose of in manner aforesaid as her
separate property all real and personal property, her title to which,
whether vested or contingent, and whether in possession, reversion,
or remainder, shall accrue after the commencement of this Act,
including any wages, earnings, money, and property so gained or
acquired by her as aforesaid (r). Sections 6, 7, 8 govern investments
made by married women in the public stocks or funds, or in the shares
of private companies. By section 10 of the Act of 1882, if such invest-
ments shall have been made by a married woman by means of moneys
of her husband without his consent, the dividends may be ordered to be
paid to the husband. The same section sets aside any investment
made by the husband or wife for fraudulent purposes. By section 11
of the same statute, a married woman may effect a policy on her own
life, or on the life of her husband, for her separate use ; and a woman
may take out a policy of life assurance expressed to be for the benefit
of her husband, or her children, or both, and in like manner her
husband may take out a policy of assurance expressed to be for the
benefit of his wife, or of his children, or both, and thereby, whether
trustees be appointed or not, a trust shall be created in favour of the
objects therein named, and the moneys payable under such policies
shall not form part of the estate of the insured; but if it be shown
that the policy was taken out to defraud the creditors, the latter shall

(q) But this does not apply to the case of a married woman lending money to a
firm of which her husband is one of several partners. In re Tuff, Ex parte NottitKj-
ham, 19 Q. B. D. 88.
(r) Reid
Parsons, v. Reid,
45 Ch. D. 51. 31 Ch. D'. 402; Smart v. Tranter, 43 Ch. D. 587; Stockley v.
598 EQUITY JURISPRUDEKCE. [CH. XXXVI.

be entitled to recover a sum equal to the premiums paid. By section

12 of the Act of 1882, every woman, whether married before or after
this Act, shall have in her own name against all persons whomsoever,
including her husband, the same civil remedies, for the protection
and security of her own separate property, as if such property belonged
to her as a feme sole, but, except as aforesaid («), no husband or wife
shall be entitled to sue the other for a tort. And by section 13, a
woman after her marriage shall continue to be liable in respect and to
the extenti of her separate property for all debts contracted, and all
contracts entered into or wrongs committed by her before her marriage,
including any sums for which she may be liable as a contributory,
either before or after she has been placed on the hst of contributories,
under and by virtue of the Acts relating to joint-stock companies;
and she may be sued for any such debt and for any liability in
damages or otherwise under any such contract, or in respect of any
such wrong ; and all sums recovered against her in respect thereof,
or for any costs relating thereto, shall be payable out of her separate
property; and, as between her and her husband, unless there be any
contract between them to the contrary, her separate property shall
be deemed to be primarily liable for all such debts, contracts, or
wrongs, and for all damages or costs recovered in respect thereof:
provided always, that nothing in this Act shall operate to increase
or diminish the liability of any woman married before the commence-
ment of this Act for any such debt, contract, or wrong, as aforesaid,
except as to any separate property to which she may become entitled
by virtue of this Act, and to which she would not have been entitled
for her separate use under the Acts hereby repealed or otherwise if
this Act had not passed. Section 14 of the same statute limits the
liability of the husband for the debts of his wife contracted, and for all
contracts entered into and wrongs committed by her, before marriage,
including any liabilities to which she may be so subject under the
Acts relating to joint-stoclf companies as aforesaid, to the extent of
all property whatsoever belonging to his wife which he shall have
acquired or become entitled to from or through his wife, after
deducting therefrom any payments made by him, and any sums for
which judgment may have been bond, fide recovered against him in
any proceeding at law, in respect of any such debts, contracts, or
wrongs for or in respect of which his wife was liable before her
marriage as aforesaid. By section 17, questions between husband and

(s) Notwithstanding this section, a husband is not entitled to maintain an action

against his wife for money lent to her, or money paid for her at her request, where the
money is lent or paid before the marriage, although he is entitled to maintain an
action against his wife and to charge her separate property, for money lent by him to
her after their marriage, and for money paid by him for her after their marriage at her
request made before or after their marriage, by force of sect. 1, sub-s. 2. Butler v.
Butler, U Q. B. D. 881,
§ 1429a.] MARRIED WOMEN. 599

wife as to property, may be decided in a summary way. By section

18, a married woman who is an executrix or administratrix alone or
jointly with any other person or persons of the estate of any deceased
person, or a trustee alone or jointly as aforesaid of property subject
to any trust, may sue or be sued, and may transfer or join in trans-
ferring any such annuity or deposit as aforesaid, or any sum forming
part of the public stocks or funds, or of any other stocks or funds
transferable as aforesaid, or any share, stock, debenture, debenture
stock, or other benefit, right, claim, or other interest of or in any
such corporation, company, public body, or society in that character,
without her husband, as if she were a feme sole. By section 19,
nothing in this Act contained shall interfere with or affect any settle-
ment or agreement for a settlement made or to be made, whether
before or aiter marriage, respecting the property of any married
woman, or shall interfere with or render inoperative any restriction
against anticipation at present attached or to be hereafter attached
to the enjoyment of any property or income by a woman under any
settlement (t), agreement for a settlement, will, or other instrument;
but no restriction against anticipation contained in any settlement
or agreement for a settlement of a woman's own property to be made
or entered into by herself shall have any validity against debts
contracted by her before marriage, and no settlement or agreement
for a settlement shall have any greater force or validity against creditors
of such woman than a like settlement or agreement for a settlement
made or entered into by a man would have against his creditors.
This section renders necessary the consideration of a point not adverted
to by the author. The Court of Chancery having invented the separate
use, permitted a condition to be attached, that it should be inalienable
during the existence of the separate use, but apart from that equitable
interest a restriction against alienation is as inoperative in a court of
equity as it is in a court of law (■u). But it| is now unnecessary to
limit the estate formally to the separate use of a married woman,
in order to attach an effective restraint upon aUenation (x). The
older term was a restraint upon anticipation because its inventor
(Lord Thurlow) first attached it to a life interest, and it is still usually
so described, but it may be attached as well to an absolute interest
as to a life interest, and to real or personal estate {y). It was held that
this fetter was irremovable during a coverture, even where the
interests of a married woman would be advanced by so doing {z).

(t) Pelton Brothers v. Harrison, [1891] 2 Q. B. 422; Hood Burrs v. Heriot,

[1896] A. C. 174.
(u) Tullett V. Armstrong, 1 Beav. 1; s.c. 4 Myl. & Cr. 377; Stogdon v. Lee,
[1891] 1 Q. B. 661.
(a;) Ex parte Hood Barrs, [1896] 2 Ch. 690.
{y) Baggett v. Meux, 1 Coll. 138 ; s.c. 1 Ph. 627.
(2) Robinson v. Wheelwright, 6 De G. M. & G. 635.
•600 EQUITY JUEISPRDDENCE. [CH. XXXVI.

To remedy this state of affairs, the court was empowered by the.

Conveyancing Act, 1881, section 39, to remove the restraint. The
section has been repealed by section 7 of the Conveyancing Act, 1911,
and the following enlarged provisions substituted : ' ' Where a married
woman is restrained from anticipation or from alienation in respect
■of any property or any interest in property belonging to her, or is by
law unable to dispose of or to bind such property, or her interest
therein, including a reversionary interest arising under her marriage
settlement, the court may, if it thinks fit, where it appears to the
court to be for her benefit, by judgment or order, with her consent,
bind her interest in such property." It is to be feared that too little
attention, has been paid in some instances to the qualification that it
should be ' ' for her benefit, ' ' words which also occurred in the repealed
section of the Act of 1881. The fact that the trustees, if any, are
not necessary parties to the application (a) may account for this.
As already stated, property of a married woman which is subject to
a restraint upon anticipation rnay be made available for the costs of
proceedings instituted by her. Here her benefit is obviously out of
consideration. The construction, which seems to have been inevitable,
placed upon section 19 of the Married Women's Property Act, 1882,
enabled the husband to render nugatory the provisions of the
statutes (b), but by section 2 of the Act of 1907, her concurrence
is required to an alienation of her property by the husband. If she
dies an infant, her property is bound in the hands of the husband,
who would by reason of her death become entitled to her personalty (c),
by his covenant or disposition. The property of a married woman may
be made available to satisfy her liabilities in the hands of her
personal representative by section 23 of the Act of 1882. A married
woman could always be appointed a trustee or executor by act of
the parties, although the Court of Chancery would not appoint her a
trustee as a matter of policy (d), and section 24 of the Act of 1882
makes her separate property available for her breach of trust or
devastavit and frees her husband from liability, which he would have
been under before the statute, " unless he has acted or intermeddled
in the trust or administration."

(a) In re Little, 36 Ch. D. 701.

(b) Hancock v. Hancock, 38 Ch. D. 78; Stevens v. Trevor-Garrick, [1893] 2 Ch.
307.
(c) SmaH v. Tranter, 43 Ch. D. 687. See Att.-Gen. v. Partington, L E 4 H. L
100.
(d) Lake v. De Lambert, 4 Ves. 595.
§ 1430—1432.] SET-OFF, 601

CHAPTER XXXVII.
SET-OFF.

§ 1430. It remains for us to take notice of a few other matters,

over which courts of equity exercised a jurisdiction, either in its
own nature exclusive, or, at least, exclusive for particular objects, and
under particular circumstances. Upon these, however, our com-
mentaries will necessarily be brief, as they either are not of very
frequent occurrence, or they are, in a great measure, embraced under
the heads which have been already discussed.'
§ 1431. And, in the first place, let us consider the subject of
Set-off, as an original source of equity jurisdiction (a). It is not
easy to ascertain the true nature and extent of this jurisdiction,
since it was materially afEected in its practical application by the
statutes of 2 Geo. 2, c. 22, and 8 Geo. 2, c. 24, in regard to set-oS
at law, in cases of mutual unconnected debts (b) ; and by the more
enlarged operation of the banlcrupt laws, in regard to set-off, both at
law and in equity, in cases of mutual debts and mutual credits (c).
§ 1432. It was said, by a learned chancellor, that before the
statute or set-off at law, and the statutes of mutual debts and credits
in bankruptcy, " this court (that is, the Court of Chancery as a court
of equity) was in possession of it {i.e., the doctrine of set-off), as
grounded upon principles of equity, long before the law interfered.
It is true, where the court does not find a natural equity, going
beyond the statute (of set-off), the construction is the same in equity
as at law. But that does not affect the general doctrine upon natural
lequity. So, as to mutual debts and credits, courts of equity must
make the same construction as the law. But, both in law and. in
equity, that statute, enabling a party to prove the balance of the
account, upon mutual credit, has gone much farther than the party
could have gone before, either in law or in equity, as to set-off " (d).
This is not a very instructive account of the doctrine ; for it leaves in

(o) Set-off was formerly called Stoppage. See Downham v. Matthews, Prec.
Ch. 582 ; Jeffs v. Wood, 2 P. Will. 128, 129.
(b) See Bac. Abr. title Set-off, A. B, C. These statutes have been repealed and
an enlarged jurisdiction conferred upon the court as hereafter noticed. § 1444a, post.
(c) See stat. 4 & 5 Anne, c. 17 ; 5 Geo. 1, c. 2 ; 5 Geo. 2, o. 30; 46 Geo. 3, c. 135 ;
6 Geo. 4, c. 16.
(d) Lord Bldon in Ex parte Stephens, 11 Ves. 27; Ex parte Blagden, 19 Ves. 467.
602 EQUITY JURISPRUDENCE. [CH. XXXVII.

utter obscurity what were the particular cases in which courts of

equity did interpose upon principles of natural equity (e). In later
times a very eminent judge, Sir G. Turner, when vice-chancellor,
asserted that courts of equity had borrowed the rule from the Eoman
law (/). Sir G. Jessel, M.R., accepted this opinion without
comment {g). Lord Cranworth, L.C., apparently entertained the
same view (h).

§ 1433. Lord Mansfield has expressed his views of the subject of

set-off in equity in the following language: "Natural equity says,
that cross-demands should compensate each other, by deducting the
less sum from the greater; and that the difference is the only sum
which can be justly due. But positive law, for the sake of the forms
of proceeding and convenience of trial, has said, that each must sue
and recover separately, in separate actions. It may give light to this
case, and the authorities cited, if 1 trace the law relative to the
doing complete justice in the same suit, or turning the defendant
round to another suit, which, under various circumstances, may be
of no avail. Where the nature of the employment, transaction, or
dealings, necessarily constitutes an account, consisting of receipts
and payments, debts and credits, it is certain, that only the balance
can be the debt; and by the proper forms of proceeding in courts
of law or equity, the balance only can be recovered. After a judgment,
or decree 'to account,' both parties are equally actors. Where there
were mutual debts unconnected, the law said, they should not be set
off; but each must sue. And courts of equity followed the same rule,
because it was the law; for, had they done otherwise, they would
have stopped the course of law in all cases where there was a mutual
demand. The natural sense of mankind M^as first shocked at this in
the case of bankrupts; and it was provided for by 4 Anne, c. 17, s. 1,
and 5 Geo. 2, c. 80, s. 28. This clause must have, everywhere, the
same construction and effect; whether the question arises upon a
summary petition, or a formal bill, or an action at law. There can
be but one right construction; and, therefore, if courts differ, one
must be wrong. Where there was no bankruptcy, the injustice of not
setting off (especially after the death of either party) was so glaring,
that Parliament interposed by 2 Geo. 2, c. 22, and 8 Geo. 2, c. 24, s. 5.
But the provision does not go to goods, or other specific things wrong-
fully detained. And, therefore, neither courts of law nor equity can
make the plaintiff, who sues for such goods, pay first what is due to

(e) The general principles of the English law, as to set-off, are well summed np
in Mr. Evans's edition o{ Pothier on Obligations, vol. 2, p. 112, No. 13.
(/) Freeman v. Lomas, 9 Hare, 109, 113.
(g) Middleton v. Pollock, Ex parte Nugee, L. R. 20 Eq. 29, 34. See also per
eundem In re Whitehouse d Co., 9 Oh. D. 595, 697.
(h) Wallis v. Bastard, i De G. M. & G. 251, 266.
§ 1433—1435.] SET-OFF. 603

the defendant; except so far as the goods can be construed a pledge;

and then the right of the plaintiff is only to redeem " (i).
§ 1434. If this be a true account of the matter, then it would
seem that courts of equity did not, antecedently to the statutes of
set-off, exercise any jurisdiction as to set-off, unless some peculiar
equity intervened, independently of the mere fact of mutual, uncon-
nected accounts. As to connected accounts of debt and credit, it
is certain, that both at law and in equity, and without any reference
to the statutes, or the tribunal in which the cause was depending,
the same general principle prevailed, that the balance of the accounts
only was recoverable; which was, therefore, a virtual adjustment and
set-off between the parties (k). But there is some reason to doubt,
whether Lord Mansfield's statement of the jurisdiction of equity in
cases of set-off is to be understood in its general latitude, and without
some qualifications. It is true that equity generally followed the law,
as to set-off; but it was with limitations and restrictions. If there
were no connection between the demands, then the rule was, as it was
at law. But, if there were a connection between the demands, equity
acted upon it, and allowed a set-off under particular circumstances (I).
§ 1485. In the first place, it would seem, that, independently of
the statutes of set-off, courts of equity, in virtue of their general
jurisdiction, were accustomed to grant relief in all cases, where, '
although there were mutual and independent debts, yet there was a
mutual credit between the parties, founded, at the time, upon the
existence of some debts due by the crediting party to the other.
By mutual credit, in the sense in which the terms are here used,
we are to understand, a knowledge on both sides of an existing
debt due to one party, and a credit by the other party, founded on,
or trusting to such debt, as a m«ans of discharging it (m). Thus,
for example, if A. should be indebted to B. in the sum of £2,000 by
specialty, and B. indebted to A. in the sura of £2,430, the debts being
payable at different times, but both presently payable at the time
of action brought (ii), and of the adjudication (o), a court of law
could not set off these independent debts against each other; but a
court of equity would not hesitate to do so, upon the ground either
of the presumed intention of the parties, or of what is called a natural
equity (p). If, in such a case, there should have been an agreement
(express or implied) to set off the debts sigainst each other, pro tanto,

(8) Green v. Farmer, i Burr. 2220, 2221.

(fc) Dale V. Sollet, i Burr. 2133.
(Z) Whitaker v. Rush, Ambler, 407, 408, and Mr. Blunt's note (4) ; Rawson v.
Samuel, Cr. & Phil. 161; Clark v. Cort, Cr. & Phil. 154; Middleton v. Pollock, Ex
parte Knight and Raymond, L. E. 20 Bq. 515.
(m) Ex parte Stevens, 11 Ves. 24; Vulliamy v. Noble, 3 Mer. 593.
(n) Young v. Bank of Bengal, 1 Moo. P. C. ISO; Richards v. Jones, 2 Ex. 471.
(o) Eyton v. Littledale, 4 Ex. 159.
(p) Wallis V. Bastard, 4 De G. M. & G. 251; Freeman v. Lomas, 9 Hare, 109.
604 EQUITY JUEISPEUDENCB. [CH. XXXVII.

there could be no doubt that a court of equity would have enforced a

specific performance of the agreement, although at the common law,
the party might have been remediless. Conversely a right of set-
off may be displaced by the agreement of the parties (g).
§ 1436. In the next place, as to equitable debts, or a legal debt on
one side, and an equitable debt on the other, there is great reason to
believe, that, whenever there was a mutual credit between the parties,
touching such debts, a set-off was, upon that ground alone, maintain-
able in equity ; although the mere existence of mutual debts, without
such a mutual credit, might not, even in a case of insolvency, have
sustained it (r). But a set-oQ was ordinarily allowed in equity, only
when the party, seeking the benefit of it, could show some equitable
ground for being protected against his adversary's demand — the mere
existence of cross-demands was not sufficient (s). A fortiori a court
of equity would not interfere, on the ground of an equitable set-off,
to prevent the party from recovering a sum awarded to him for
damages for a breach of contract, merely because there was an un-
settled account between him and the other party, even in respect to
dealings arising out of the same contract (t).
§ 1436a. However, where there were cross-demands between the
parties, of such a nature, that if both were recoverable at law they
would have been the subject of a set-off; then, and in such a case,
if either of the demands were a matter of equitable jurisdiction, the
set-off would have been enforced in equity. As, for example, if a
legal debt were due to the plaintiff by the defendant, and the de-
fendant was the assignee of a legal debt due to a third person from
the plaintiff, which had been duly assigned to himself, a court of equity
would set off the one against the other, if both debts could properly
be the subject of a set-off at law (u). But except under special circum-
stances, courts of equity never allowed cross-demands existing in
different rights to be set the one against the other, although agreement,
express or implied, might confer that right (x). Nor would the mere
fact of the cross-demand existing, of itself give equitable jurisdiction,
nor the mere fact that one of the demands was held by a trustee,
that is to say, that one of the demands, though still a legal demand,
was, as regards beneficial ownership, the property of the person who
was liable to the other demand (y). And where an equitable chose in

iq) Ex parte Flint, 1 Swanat. 33; In re Goy d Co., Farmer v. Goy, [1900] 2 Ch.
149.
(r) Freeman v. Lomas, 9 Hare, 109.
(s) Rawson v. Samuel, Cr. & Ph. 161.
(t) Rawson v. Samuel, Cr. & Ph. 161; Middleton v. Pollock, Ex parte Nugee.
L. R. 20 Bq. 29.
(u) Clarke v. CoH, Cr. & Phil. 154.
(x) Freeman v. Lomas, 9 Hare, 109; Middleton v. Pollock, Ex parte Nugee, L. E.
20 Bq. 29.
(y) Middleton v. Pollock, Ex parte Nugee, L. E. 20 Bq. 29.
§ 1436— 1437a.] set-off. 605

action had been assigned, the debtor could not set off against the
assignee a debt which had accrued to him from the assignor since the
notice of assignment, though resulting from a contract entered into
previously, unless from the nature of the transaction it appeared to
have been intended by the original parties that the one should be set
off against the other (a).
§ 1487. Thus, courts of equity, following the law, would not allow
a set-off of a joint debt against a separate debt, or conversely, of a
separate debt against a joint debt; or, to state the proposition raore
generally, they would not allow a set-off of debts accruing in different
rights (a). But special circumstances might occur creating an equity,
which would justify even such an interposition. Thus, for example,
if a joint creditor fraudulently conducted himself in relation to the
separate property of one of the debtors, and misapplied it, so that the
latter was drawn in to act differently from what he would have done
if he had known the facts, that would constitute, in a case of bank-
ruptcy, a sufficient equity for a set-off of the separate debt, created by
such misapplication against the joint debt (b). So, if one of the joint
debtors were only a surety for the other, he might, in equity, set off
the separate debt due to his principal from the creditor; for in such
a case, the joint debt is nothing more than a security for the separate
debt of the principal; and, upon equitable considerations a creditor,
who has a joint security for a separate debt, cannot resort to that
security without allowing what he has received on the separate account
for which the other was a security (c). Indeed, it may be generally
stated, that a joint debt might, in equity, have been set off against a
separate debt, where there was a clear series of transactions, establish-
ing that there was a joint credit given on account of the separate
debt (d).
§ 1437a. There is no doubt that courts of equity did eventually
extend the doctrine of set-off, and claims in the nature of set-off,
beyond the law, but they only did so where peculiar equities intervened
between the parties (e). The cases in which a set-off was allowed on
special grounds are so very various as to admit of no comprehensive
enumeration. Some cases, however, illustrative of the doctrine, may
readily be put. Thus, if an agent, having a title to an estate, should
have allowed his principal to expend money upon the estate without
any notice of that title, he would not have been permitted, after a
recovery at law in ejectment, to maintain an action at law against
(z) WaUon v. Mid-Wales Railway, L. R. 2 C. P. 593.
(a) Middleton v. Pollock, Ex parte Nugee, L. E. 20 Bq. 29; Middleton v. Pollock,
Ex parte Knight v. Raymond, L. E. 20 Bq. 613.
(6) Ex parte Stephens, 11 Ves. 24; Bechervaise v. Lewis, L. E. 7 C. P. 372.
(c) Ex parte Hanson, 12 Ves. 346 ; s.c. 18 Ves. 252.
(d) VulUamy v. Noble, 3 Meriv. 593.
(e) Rawson v. Samuel, Cr. & Ph. 161; Jones v. Mossop, 3 Hare, 568; Freeman v.
Lomas, 9 Hare, 109; Middleton v. Pollock, Ex parte Nugee, L. E. 20 Bq. 29.
606 EQUITY JURISPRUDENCE. [CH. XXXVII.

the principal for mesne profits; but courts of equity would require,
that, to the extent of the improvements, there should be a set-o£E or
compensation allowed to the principal, against the mesne profits (/).
§ 14376. A person who purchased goods from a factor who sold
them in his own name could set off a debt due to him from the factor
personally in the same way as if the factor were the principal, unless
the purchaser had notice that the factor was not the principal, nor was
this right affected by the fact that the factor- on selling in his own
name without disclosing the agency was acting in contravention of
the express directions of his principal (g). But the executors of a
testatrix were not entitled to set off against a man who was but a
debtor and a residuary legatee of the testatrix to the amount of the
debt against the share of the debtor (h). Nor even now can a director
of a company set ofi against a claim for a breach of trust any money
due to him from the company (i).
§ 1438. We may conclude this very brief review of the doctrine of
set-off, as recognised in courts of equity, a doctrine, which was prac-
tically of rare occurrence in cases not within the statutes of set-ofi,
either at law generally, or in bankruptcy, by a few remarks upon the
same subject, as it is found recognised in the civil law. In the latter,
the doctrine was well known under the title of compensation, which
may be defined to be the reciprocal acquittal of debts between two
persons, who are indebted, the one to the other (fc) ; or, as it is perhaps
better stated by Pothier, compensation is the extinction of debts, of
which two persons are reciprocally debtors to one another, by the
credits of which they are reciprocally creditors to one another (I). The
civil law itself expressed it in a stiU more concise form. " Compen-
satio est debiti et crediti inter se contributio " (m).
§ 1439. The civil law\ treated compensation as founded upon a
natural equity, and upon the mutual interest of each party to have
the benefit of the set-off, rather than to pay what he owed, and then
to have an action for what was due to himself. " Ideo, compensatio
neeessaria est, quia interest nostra potius non solvere, quam solutum
repetere " (n). Baldus adds another and very just reason, that it
avoids circuity of action. " Quod potest brevius per unum actum,
(/) Lord Cawdor v. Lewis, 1 Y. & Coll. Ex. 427.
(g) Ex parte Dixon, In re Henley, i Ch. D. 133. See Semenza v. Brinsley, 18
C. B. N. S. 467.
(h) In re Hodgson, Hodgson v. Fox, 9 Ch. D. 673.
(t) In re Carriage Co-operative Supply Association, 27 Ch. D. 322.
(k) Domat, Civil Law, B. 4, tit. 2, § 1, art. 1.
(I) Pothier on Oblig. by Evans, u. 587 [n. 622 of French editions]. Pothier has
examined the whole subject with great ability, and given a Ml exposition of the
doctrines of the civil law, in his treatise on Obligations, Pt. 3, ch. 4, nn. 587 to 605
[nn. 622 to 640 of French editions].
(m) Dig. Lib. 16, tit. 2, f. 1.
(n) Dig. Lib. 16, tit. 2, f. 3. See also Inst. Lib. 4, tit. 6, § 30.
§ 14376—1441.] SET-OFF. 607

expediri compensando, incassum protrahereter per plures solutiones et

repetitiones " (o).
§ 1440. It has been truly said, that the doctrine of set-ofi has been
borrowed from the EomaJi jurisprudence. But there are several im-
portant difEerences between compensation in the civil law, and set-off
in our law (p). In the first place, in our law, if the party has a right
of set-off, he is not bound to exercise it; and if he does not exercise
it, he is at liberty to commence an action afterwards for his own
debt (g). But in the civil law it was otherwise; for the cross-debt to
the same amount was by mere operation of law, and independent of
the acts of the parties, extinguished (r). In support of this doctrine
there are many texts of the civil law. " Posteaquam placuit inter
omnes, id quod invicem debetur, ipso jure -compensari (s). Unus-
quisque creditorem suum, eundemque debitorem, petentem summovet,
si paratus est compensare (t). Si totum petas, plus petendo causa
cadis (m). Si quis igitur compensare potens, solvent, condicere poterit,
quasi indebito soluto " (x).
§ 1441. In the next place, in our law, till the Judicature Act,
1873, the right of compensation or set-off was confined to debts,
properly so called, or to claims strictly terminating in such debts.
In the civil law, the right was more extensive; for not only might
debts of a pecuniary nature be set off against each other, but debts or
claims for specific articles of the same nature (as for corn, wine, or
cotton) might also be set off against each other. All that was neces-
sary was that the debt or claim to be compensated, should be certain
and determinate and actually due, and in the same right, and of the
same kind, as that on the other side (y). The general rule was :
" Aliud pro alio, invito creditori, solvi non potest («). Ejus, quod non

(o) Cited by Pothier on Oblig. n. 587 [n. 623 of French editions].

(p) Mr. Chancellor Kent, in Duncan v. Lyon, 3 Johns. Ch. 359, used the following
language : " The doctrine of set-off was borrowed from the doctrine of compensation
in the civil law. Sir Thomas Clarke shows the analogy ip many respects, on this point,
between the two systems; and the general rules in the allowance of compensation or
set-off by the civil law, as well as by the law of those countries in which that system
is followed, are the same as the English law. To authorise a set-off, the debts must
be between the parties, in their own right, and must be of the same kind or quality,
and be clearly ascertained or liquidated. They must be certain and determinate debts.
[Dig. 16, tit. 2, de Compensationibus, Code, Lib. 4, tit. 31, 1. 14, and Code, Lib. 5,
tit. 21, 1. 1; Ersk. Inst. vol. 2, 525, 527; Pothier, Trait, des Oblig. Nos. 587 te 605;
Eerrifere eur Inst. torn. 6, 110, 113.]" Whitaker v. Rush, Ambler 407.
(g) Pothier, by Evans, App. 112, No. 13; Baskerville v. Browne, 2 Burr. 1229.
(r) Pothier on Oblig. n. 599 [635] ; 1 Domat, B. 4, tit. 2, § 8, art. 4.
(s) Dig. Lib. 16, tit. 2, f. 21 ; Pothier, Pand. Lib. 16, tit. 2, n. 3.
(t) Dig. Lib. 16, tit. 2, f. 2; Pothier, Pand. Lib. 16, tit. 2, n. 1.
(u) Pothier, Pand. Lib. 16, tit. 2, n. 3.
(x) Ibid. n. 5; Dig. Lib. 16, tit. 2, f. 10, § 1.
(y) Pothier on Oblig. nn. 588, 590 [nn. 623, 626 of the French editions] ; Pothier,
Pand. Lib. 16, tit. 2, nn. 11 to 24; Cod. Lib. 4, tit. 31, 1. 141.
(2) Pothier on Oblig. n. 588 [n. 623 of the French editions] ; Dig. Lib. 12, tit. 1,
1. 2, § 1.
608 EQUITY JURISPEUDENCE. [CH.' XXXVII.

ei debetur, qui convenitur, sed alii, compensatio fieri non potest (a).
Quod in diem debetur, non compensabitur, antequam dies venit,
quanquam dari oporteat (b). Compensatio debiti ex pari speci,- et
causa dispari, admittitur; velut, si pecuniam tibi debeam, et tu mihi
pecuniam debeas, aut frumentum, aut oBetera, hujusmodi, licet ex
diverse contractu, compensare vel deducere debes " (c). The only
exception to the rule was, in cases of deposits ; for it was said :
' ' In causa depositi compensatione locus non est ; sed res ipsa
reddenda est " (d).
§ 1442. In another provision of the civil law, we may distinctly
trace an acknowledged principle of equity jurisprudence upon the
same subject (e). The rule that compensation should be; allowed of
such debts only as wece due to the party himself, and in the same
right, had an exception in the case of sureties. A person who was
surety for a debt might not only oppose, as a compensation, what
was due from the creditor to himself, but also what was due to the
principal debtor. " Si quid a fidejussore petatur, sequissimum est
ehgere fidejussorem, quod ipsi, an quod reo debetur, compensare malit ;
sed etsi, utrumque velit compensare, audiendus est" (/).
§ 1443. There was another exception in the civil law, which has
not received the same favour in ours. It was generally true, that a
debt, due from the creditor to a third person, could not be insisted on
by the debtor, as a compensation, even with the assent of such third
person : ' ' Creditor compensate non cogitur quod alii, quam debitori
suo, debet; quamvis creditor ejus pro eo, qui convenitur ob debitum
proprium velit compensare " (g). Yet, where the debtor had procured
a cession or assignment of the debt of such third person, he might,
after notice to the creditor, insist upon it by way of compensation.
" In rem suam procurator datus, post litis contestationem, si vice
mutua conveniatur, aequitate compensationis utetur " (h).
§ 1444. These may suffice, as illustrations of the civil law on the
subject of compensation or set-off. The general equity and reason-
ableness of the principles upon which the Eoman superstructure is
founded, make it a matter of regret, that they have not been trans-
ferred to their full extent into our system of equity jurisprudence.
Why, indeed, in all cases of mutual debts, independently of any

(a) Cod. Lib. 4, tit. 31, 1. 9; Pothier, Pand. Lib. 16, tit. 2, n. 15.
lb) Dig. Lib. 16, tit. 2, f. 7; Potbier, Pand. Lib. 16, tit. 2, n. 12.
(c) Pothier, Pand. Lib. 16, tit. 2, n. 22.
(d) Pothier, Pand. Lib. 16, tit. 2, n. 8; Cod. Lib. 4, tit. 31, 1. 11; 1 Domat, Civ.
Law, B. 4, tit. 2, § 2, art. 6.
(e) Ante, § 1850.
If) Dig. Lib. 16, tit. 2, f. 5; Pothier, Pand. Lib. 16, tit. 2, n. 16; Pothier en
Oblig. D. 595 [631].
ig) Dig. Lib. 16, tit. 2, f. 18; Pothier, Pand. Lib. 16, tit. 2, n. 16; Pothier .;d
Oblig. n. 594 [629].
(h) Dig. Lib. 16, tit. 2, f. 18; Pothier, Pand. Lib. 16, tit. 2, n. 15; Pothier on
Oblig. n. 594 [n. 629 of the French editions].
§ 1442— 1444a.] set-off. 609

notion of mutual credit, courts of equity should not have at once

supported and enforced the doctrine of the universal right of set-off,
as a matter of conscience and natural equity, it is noti easy to say.
Having affirmed the natural equity, it seems difficult to account for
the ground upon which they have refused the proper relief founded
upon it. The very defect of the remedy at law furnishes an almost
irresistible rea,son for such equitable relief. The doctrine of compen-
sation has, indeed, been felicitously said to be among those things
quse jure aperto nituntur (i). The universality of its adoption in all
the systems of jurisprudence, which have derived their origin from
Roman fountains, demonstrates its persuasive justice and sound
policy (&). The common law, in rejecting it from its bosom, seems to
have reposed upon its own sturdy independence, or its own stern
indifference. But the marvel is, that courts of equity should have
hesitated to foster it, when their own principles of decision seem to
demand the most comprehensive and liberal action on the subject.
§ 1444a. There were four essentials to a set-off under the statutes
2 Geo. 2, c. 22, and 8 Geo. 2, c. 24 — (a) it must have been for a
liquidated sum (Z); (b) it must have existed at the time of action
brought (w) ; (c) it raust have existed at the time of plea pleaded (n) ;
and (d) it must have existed at the trial (o). The statutes of Geo 2
have been repealed, but the jurisdiction saved by the Statute Law
Eevision Act, 1884. Now, by the Judicature Act, 1873 (36 & 37 Vict,
c. 66), s. 24, sub-s. 3, the defendant may assert any equitable estate
or right or other matter of equity. Further, by the Rules of the
Supreme Court, 1883, Order XIX., rule 3, the defendant may set off,
or set up by way of counterclaim against the claim of the plaintiff,
any right or claim, whether such set-off or counterclaim sound in
damages or not, and such set-off or counterclaim shall have the effect
of a cross-action, so as to enable the court to pronounce a final judg-
ment in the same action both on the original and on the cross-claim.
The claim contemplated by the rule is one available against the
plaintiff personally (p), but a plaintiff cannot protect himself by
sheltering behind a stalking horse in the shape of a trustee (g). But

(i) See Mr. Blunt's note to Whitaker v. Rush, Ambler, 408, note (6).
(k) See Pothier on Oblig. Ft. 3, ch. 4, nn. 587 to 605 [nn. 622 to 640 of the French
editions] ; 1 Stair's' Inst. B. 1, ch. 18, § 6 ; Ersk. Inst. B. 3, tit. 4, § 11 to 20 ; Heineco.
Elem. Juris. Germ. Lib. 2, tit. 17, § 475. As to set-off in the administration of estates,
see Taylor v. Taylor, L. B. 20 Bq. 156; Middleton v. Pollock, Ex parte Nugee, L. R.
20 Bq. 29 ; White v. Gordwell, I/. B. 20 Bq. 644.
(!) Grampton v. Walker, 3 BU. & E. 321.
(m) Braithwaite v. Coleman, 4 Nev. & M. 654; Richards v. Jones, 2 Ex. 471.
(n) Dendy v. Powell, 3 M. & W. 442.
(o) Eyton v. Littledale, 4 Bx. 159.
(p) Baker v. Adam, 102 L. T. 248; Reeves v. Pope, [1913] 1 K. B. 637.
(g) Bankes v. Jarvis, [1903] 1 K. B. 549.
E.J. 39
610 EQUITY JURISPRUDENCE. [CH. XXXVII.

it may be in respect of a cause of action arising after the original action

commenced, and before trial (r). If it came into existence puis darrein
continuance, it may be raised by amendment (s).

(t) Ellis V. Munson, 35 L. T. 585 ; Beddall v. Maitland, 17 Ch. D. 174.

(s) Ellis V. Munsm, 35 L. T. 585.
§ 1445 — 1446.] ESTABLISHING WILLS. 611

CHAPTER XXXVIII.
ESTABLISHING WILLS.

§ 1445. It has been already stated, in another part of these Com-

mentaries, that the proper jurisdiction, as to the validity of last wills
and testaments, belonged to other tribunals (a). Where a will
respected personal estate, it belonged to the Court of Probate ; and
where it respected real estate, it belonged to the courts of common
law. But, although this is regularly true, and courts of equity would
not in contested litigation entertain jurisdiction to determine the
validity of a will; yet whenever a will came before them, as an incident
in a cause, they necessarily entertained jurisdiction to some extent
ever the subject; and if the validity of the will was admitted by the
parties, or if it was otherwise established by the proper modes of
proof, they acted upon it to the fullest extent. If either of the parties
should afterwards bring a new suit, to contest the determination of
the validity of the vidll so proved, the court of equity, which had so
determined it, would certainly on the old practice have granted a
perpetual injunction (b).
§ 1446. The usual manner in which courts of equity proceeded in
such cases was this. If the parties admitted the due execution and
validity of the will, it was deemed ipso facto sufficiently proved. If
the will were of personal estate, and a probate thereof was produced
from the proper court, that was ordinarily deemed sufficient. But if
the parties were dissatisfied with the probate, and contested the validity
of the will, the court of equity, in which the controversy was depend-
ing, would suspend the determination of the cause, in order to enable
the parties to try its vaUdity before the proper tribunal, and would
then govern itself by the result. If the will were of real estate, ajid
its validity were contested in the cause, the court would, in like
manner, direct its validity to be ascertained, either by directing an
issue to be tried, or an action of ejectment to be brought at law; and
would govern its own judgment by the final result (c). If the will

(a) Ante, § 184, 238; Allen v. McPherson, 1 H. L. C. 191; Priestman v. Thomas,

9 P. D. 210.
(6) Sheffield v. Duchess of Buckinghamshire, 1 Atk. 628.
(c) Sheffield v. Duchess of Buckinghamshire, 1 Atk. 628; Allen v. McPherson,
1 H. L. C. 191; Priestman v. Thomas, 9 P. D. 210.
612 EQUITY JURISPRUDENCE. [CH. XXXVIII.

were established in either case, a perpetual injunction might be

decreed (d).
§ 1447. But it was often the primary, although not the sole, object
of a suit in equity, brought by devisees and others in. interest, to
establish the validity of a will of real estate; and thereupon to obtain
a perpetual injunction against the heir-at-law, and others, to restrain
them from contesting its validity in future. In such cases the juris-
diction, exercised by courts of equity, was somewhat analogous to that
exercised in cases of bills of peace; and it was founded upon the like
considerations in order to suppress interminable litigation, and to give
security and repose to titles (e). In every case of this sort, courts of
equity would, unless the heir waived it, direct an issue of devisavit
vel non, to ascertain the validity of the wiU (/). According to the
course of modem decisions, the heir had an option either to bring an
action of ejectment, or to have an issue of devisavit vel non. But it
would not feel itself bound by a single verdict either way, if it were
not entirely satisfactory; but it would direct new trials, until there
was no longer any reasonable ground for doubt. But a new trial would
not be directed unless there were substantial ground for believing that,
on a second trial, other evidence of a weighty nature bearing against
the existing conclusion could and would be produced, which was not
heard before (g). The general rule established in courts of equity
was, that, upon every such issue and trial at law, all the witnesses to
the will should be examined, if practicable, unless the heir should
have waived the proof. But the rule was not absolutely inflexible,
but it would yield to peculiar circumstances (h). When by these
means, upon a verdict, the validity of the will was fully established,
the court would by its decree declare it to be well proved, and that it
ought t-o be established, and would grant a perpetual injunction (i).
§ 1448. If, however, the devisees had no further immediate object,
than merely to establish the will by perpetuating the testimony of the
witnesses thereto, this was and may be done (as we shall hereafter
see) by a proper bill for the purpose; and the latter is, indeed, what is
usually meant by proving a will in chancery (fc).
§ 1449. It may be proper, also, to take notice, in this place
(although it more frequently arose in the exercise of the auxiliary or
id) Leighton v. Leighton, 1 P. Wms. 671.
(e) Leighton v. Leighton, 1 P. Wms. 671. See ante, § 853, 859. The heir-at-law
cannot come into equity, for the purpose of having an issue to try the validity of the
will at law, unless it is by consent ; for he may bring an ejectment. But if there are
any impediments to the proper trial of the merits on such an ejectment, he may come
into equity to have them removed. Jones v. Jones, 3 Meriv. 161, 170; Bates v.
Graves, 2 Ves. Jun. 288. See also Bootle \. Blundell, 19 Ves. 502.
(/) Pemberton v. Pemberton, 11 Ves. 53; s.c. 13 Ves. 290; Cooke v. Cholmonde-
ley, 2 Mac. & G. 18. (g) Waters v. Waters, 2 De G. & Sm. 591.
(h) Tatham v. Wright, 2 Euss. & M. 1.
(i) Jeremy on Bq. Jurisd. B. 3, ch. 1, § 2, pp. 297, 298, and oases before cited.
(7c) 3 Black. Comm. 450.
§ 1447 — 14496.] establishing wills. 613

assistant jurisdiction), that courts of equity, in cases of this sort,

where the original will was lodged in the custody of the registrar of
the Probate Court, and it might be necessary to be produced before
witnesses, resident abroad, whose testimony was to be taken under a
commission to prove its due execution, would direct the original will
to be delivered out by such officer to a fit person, to be named by the
party in interest; such party first giving security, to be approved by
the judge of the Ecclesiastical Court., to return the same within a
specified time. If there were any dispute about the security for the
safe custody and return of the will, it was referred to a master to
settle and adjust the same (I). If the commission was to be executed
within the realm, and the witnesses wers therein, the court would
direct the original will to be brought into its own registry, to lie there,
until the court had done with it (m) ; or to be delivered out on giving
security (w). It is doubtful if this pi^ocedure would be followed in
England at the present time.
§ 1449a. In a case where the title was derived under a will which
was suspicious, it appearing that the heir had failed in an action of
.ejectment, and afterwards in a motion for a new trial, and where the
master reported in favour of the title; the Lord Chancellor held, on
appeal, reversing the decree of the Vice-Chancellor, that it was more
consonant with the principles of the court, that the validity of the
will should be conclusively determined, if possible, between the vendor
and the heir, than that it should be left to be litigated between the
heir and purchaser, after the purchase-money had been paid (o). In
a case before Vice-Chancellor Wood, at the suit of the devisee against
the heir, this subject was very elaborately discussed, and the history
of this branch of equity jurisprudence traced with great minuteness.
As the practice has ceased to possess any importance for at least half
a century, it is sufficient to refer to the case by name (p).
§ 1449fc. But it is now settled that a purchaser of real estate, the
title to which is derived under a will, is not entitled to have the will
established, or to have the conveyance of the heir to him, unless some
reasonable ground exists for doubting the validity of the will (g).

1.1) Frederick v. Aynscombe, 1 Atk. 627.

(m) Frederick v. Aynscombe, 1 Atk. 627.
(n) Morse v. Roach, 2 Str. 961.
(o) Grove v. Bastard, 2 Phil. 619.
(p) Boyse v. Rossborough, Kay 71, 1 Kay & J. 124, 3 De G. M. & G. 817, 6 H. L.
C. 1.
(q) M'Culloeh v. Gregory, 3 Kay & J. 12.
614 EQUITY JURISPEUDENCB. [CH. XXXIX.

CHAPTER XXXIX.
AWARDS.

§ 1450. Courts of equity also formerly exercised a large jurisdiction

in matters of Awards. But, by means of statutes finally embodied in
the Arbitration Act, 1889 (52 & 53 Vict. c. 49), the jurisdiction came
to be rarely exercised. It may not, however, be without use to refer
to some of the more ordinary cases in which that jurisdiction was
originally exerted, and still may be exerted, in cases where no statute
interferes with the due exercise thereof. And it is constantly to be
borne in mind that the subsequent remarks, even when not so
expressly qualified, are to be understood with this limitation, that
there are no statutable provisions which vary or control the general
jurisdiction of equity in matters of award (a).
§ 1451. In cases of fraud, mistake, or accident, courts of equity
could, in virtue of their general jurisdiction, interfere to set aside
awards upon the same principles, and for the same reasons, which
justified their interference in regard to other matters, where there
was no adequate remedy at law (b). And if there were no statute to the
contrary, an agreement by the party on entering into an arbitration,
not to bring any action or suit in equity to impeach the award made
under it, was held not to be obligatory, if there were in fact, from
fraud, or mistake, or accident, or otherwise, a good ground to impeach
it, or to require it to be set aside (c). But if the parties had agreed
to leave the determination of matters of law to the arbitrator, the
award could not be impeached in equity for error in law any more
than it could in a court of common law (d).
§ 1452. At the common law there was no jurisdiction to set aside
an award except upon a reference under an order of the court; and
every objection must have been based upon matter apparent upon the
face of the award, or of some paper incorporated therewith under the

(a) Com. Dig. Chancery, 2 K. 1 to 6; Bac. Abr. ATbitration and Award, B. The
standard textbook usually consulted is Eussell, Arbitration and Award.
(b) Emery v. Wase, 5 Ves. 846; Mills v. Bowyers' Co., 3 K. & J. 66.
(c) See Nichols v. Ghalie, 14 Vee. 264, 269; Nichols v. Roe, 3 Myl. & K. 431;
Street v. Rigby, 6 Ves. 815; Gheslyn v. Dalby, 2 Y. & C. Ex. 170.
(d) Young v. Walter, 9 Ves. 364. See Doe v. Emmerson, 9 L. T. 0. S. 199.
§ 1450—1454.] AWARDS. 615

hand, or hand and seal, of the arbitrator or umpire (e). It has been
decided that the objection might be based upon matter appearing in
an affidavit of an arbitrator (/). This decision has been canvassed,
but met with the approval of no less an authority, than Lord
Blackburn {g). Thus, for example, fraud, partiality, misconduct, or
mistake of the arbitrators, was not admissible to defeat it. But
courts of equity would, in all such cases, grant relief, and, upon due
proofs, would set aside the award, and now the rule of equity will
prevail. The grounds on which an award will be set aside are, first,
that the arbitrators have awarded what was out of their power.
Secondly, corruption, or that they have proceeded contrary to the
principles of natural justice, though there is no corruption, as if with-
out reason they will not hear a witness. Thirdly, that they have
proceeded upon mere mistake, which they themselves admit (h).
Corruption cannot be proved by the admission of the arbitrator (i).
§ 1453. In regard to a mistake of the arbitrators, it may be in
a matter of fact, or in a, matter of law. If upon the face of the
award, there is a plain mistake of law, or of fact, material to the
decision, which misled the judgment of the arbitrators, there can be
little or no reason to doubt that courts of equity will grant relief. But
the difficulty is, whether the mistake of fact or of law is to be made
out by extrinsic evidence; and, whether a mistake of law upon a
general submission, involving the decision both of law and of fact,
constitutes a valid objection. Upon these points, the decisions of
courts of law and courts of equity are not reconcilable with each
other; and it is not easy to lay down any doctrine, which may not be
contradicted by some authority.
§ 1454. Perhaps the following will be found to be the doctrines
most reconcilable with the leading authorities. Arbitrators, being the
chosen judges of the parties, are, in general, to be deemed judges of
the law, as well as of the facts, applicable to the case before them.
If no reservation is made in the submission, the parties are presumed
to agree, that every question, both as to law and fact, necessary for
the decision, is to be included in the arbitration. Under a general
submission, therefore, the arbitrators have rightfully a power to decide
on the law and on the fact. And, under such a submission, they are
not bound to award on mere dry principles of law ; but they make their
award according to the principles of equity and good conscience (fc).

(e) Kent v. Elstob, 3 East, 18; Shannan v. Bell^ 5 M. & S. 504; Hodgkinson v.
Fernie, 3 C. B. N. S. 189.
.(/) Jones V. Carry, 5 Bing. N. C. 187.
(g) Duke of Bucdeuch v. Metropolitan Board of Works, L. E. 5 Ex. 221, 232.
(h) Per Lord Commissioner Wilson, Morgan v. Mather, 2 Ves. 15, 18; Mills v.
Bowyers' Co., 3 Kay & J. 66.
(t) In re WhiteUy S Roberts, [1891] 1 Ch. 558.
(fe) Morgan v. Mather, 2 Ves. Jun. 15; Produce Brokers' Co. v. Olympia Oil and
Cake Co., [1916] A. C. 314.
'616 EQUITY JURISPRUDENCE. • [CH. XXXIX.

Subject, therefore, to the qualifications, hereafter mentioned, a,

general award cannot be impeached collaterally, or by evidence
aliunde, for any mistake of law or of fact, unless there be some fraud
or misbehaviour in the arbitrators. These qualifications will now be
stated.
§ 1455. First; in regard to matters of law. If arbitrators refer
any point of law to judicial inquiry, by spreading it on the face of
their award, and they mistake the law in a palpable and material
point, their award will be set aside (I). If they admit the law, but
decide contrary thereto upon principles of equity and good conscience,
although such intent appear upon the face of the award, it will con-
stitute no objection to it. If they mean to decide strictly according
to law, and they mistake it, although the mistake is made out by
extrinsic evidence, that will be sufficient to set it aside (m). But
their decision upon a doubtful point of law, or in a case where the
question of law itself is designedly left to their judgment and decision,
will generally be held conclusive (n).
§ 1456. Secondly; in regard to matters of fact, the judgment of
the arbitrators is ordinarily deemed conclusive (o). If, however, there
is a mistake of a material fact apparent upon the face of the award;
or, if the arbitrators' admit the mistake, and state it (although it is
not apparent on the face of the award); and if, in their own view, it
is material to the award, then, although made out by extrinsic
evidence, courts of equity will grant relief (p).
§ 1457. Courts of equity would not enforce the specific perform-
ance of an agreement to refer any matter in controversy between
adverse parties, deeming it against public policy to exclude from the
appropriate judicial tribunals of the State any persons who, in the
ordinary course of things, have a right to sue there (q). Neither will
they, for the same reason, compel arbitrators to make an award (?■) ;
nor, when they have made an award, will they compel them to disclose

(I) Knox V. Symmonds, 1 Ves. Jtin. 369; Kent v. Elstob, 3 East, 18.
(m) Young v. Walter, 9 Ves. 364, 366 ; Blennerhassett v. Day, 2 Ball & Beat. 120 ;
Delver v. Barnes, 1 Taunt. 48; Richardson v. Nourse, 3 Barn. & Aid. 237.
(n) Young v. Walter, 9 Ves. 364 ; Chace v. Weetmore, 13 East, 367 ; Campbell v.
Twemlow, 1 Price, 81; Steff v. Andrews, 2 Mad. 6, 9; Wood v. Griffith, 1 Swanst. 43;
Sharman v. Bell, 5 M. & S. 504.
(o) See Price v. Williams, 1 Ves. June. 365; s.c. 3 Bro. C. C. 163; Morgan v.
Mather, 2 Ves. Jun. 15 to 18, 20, 22; Dick v. Milligan, 2 Ves. Jun. 23; Goodman v.
Sayers, 2 Jac. & "Walk. 249, 259.
(p) Knox V. Symmonds, 1 Ves. Jun. 369; Rogers v. Dallimore, 6 Taunt. Ill; In
re Dare Valley Ry., L. E. 6 Bq. 429; Duke of Buccleuch v. Metropolitan Board of
Works, L. E. 5 H. L. 418.
(g) Agar v. Macklew, 2 Sim. & St. 418. See In re Smith and Nelson, 25 Q. B D
545.
(r) Kyd on Awards, ch. 4, p. 100 (2nd edit.). In this respect our law differs from
the Eoman law ; for by the latter, arbitrators would, unless under special circumstances,
be compelled to make an award, when they had taken the office upon themselves. Dig.
Lib. 4, tit. 8, f. 3, § 1, 3; Kyd on Awards, ch. 4, pp. 98, 99, and note (2nd edit.).
§ 1455—1460.] AWARDS. 617

the grounds of their judgment (s). The latter doctrine stands upon the
same ground of pubhc policy as the others; that is to say, in the
first instance, not to compel a resort to these domestic tribunals,
and, on the other hand, not to disturb their decisions, when made,
except upon very cogent reasons.
§ 1458. When an award has actually been made, and it is unim-
peached and unimpeachable, it constitutes a bar to any suit for the
same subject-matter, both at law and in equity. And courts of
equity will, in proper cases, enforce a specific performance of an
award, which is unexceptionable, and which has been acquiesced in
by the parties, if it is for the performance of any acts by the parties
in specie, such as a conveyance of lands; and such a specific per-
formance will be decreed, aknost as if it were a matter of contract,
instead of an award (t).
§ 1458a.. A court of equity has power by injunction to prevent
an arbitrator against whom corruption is alleged, from proceeding
with an arbitration (u). But a court of equity has not, even since the
Judicature Act, power by injunction to prevent an arbitrator from
proceeding with an arbitration, on the sole ground that the proposed
arbitration is on a matter outside the agreement to refer, and that
the proceedings will therefore be futile and vexatious. For the
provisions of sub-s. 8, s. 25, of the Judicature Act, 1873, that " a
mandamus or an injunction may be granted or a receiver appointed
by an interlocutory order of the court in all cases in which it shall
appear to the court to be just or convenient that such order should be
made," does not confer on a court of equity any power it did not
formerly possess (x).
§ 1459. But, as the specific performance of awards, as well as of
contracts, rests in the sound discretion of the courts, if, upon the
face of the award or otherwise, it appears that there are just objections
to enforcing it, courts of equity will not interfere (y). On the other
hand, where an award has been long acquiesced in or acted upon
by both parties, even although objections might have been originally
urged against it, an application to set it aside will not be
entertained («).
§ 1460. It is curious to remark the coincidences between the civil
law and our law, in regard to arbitrations and awards. Whether we
are to attribute this to the origin of the latter in the established
jurisprudence of the former; or to the same good sense, prevailing
(s) Anon., 3 Atk. 644. See Willesford v. Watson, L. E. 14 Eq. 572; Law v.
Garret, 8 Ch. D. 26.
(t) Wood V. Griffith, 1 Swanst. 43; Nickels v. Hancock, 7 De G. M. & G. 300.
(tt) Pickering v. Cape Town By., L. E. 1 Bq. 84; Beddow v. Beddow, 9 Ch. D. 89.
(x) North London Ry. v. Great Northern Ry., 11 Q. B. D. 30.
(j/) Auriol V, Smith, 1 Turn. & Euss. 187; Wood v. Griffith, 1 Swanst. 43; Nickels
V. Hancock, 7 De G. M. & G. 300.
(z) Jones V. Bennett, 1 Bro. P. C. 328; Cf. Rogers v. Dallimore, 1 Taunt. 111.
618 KtJUITY JURISPRUDENCE. ' [CH. XXXIX.

in different nations, and establishing the like equitable principles

on the same subject, founded on public policy and private con-
venience, itis not necessary to discuss. But it is certain that the
Roman law has much to commend it in the rea:sonableness of its
doctrines.
§ 1461. -Arbitration, called compromise (compromissum), was a
mode of terminating controversies much favoured in the civil law,
and was usually entered into by reciprocal covenants or obligations,
with a penalty, or with some other certain or implied loss (a) ; and
the award was deemed to partake of the character of a judicial pro-
ceeding (&). "Compromissum ad similitudinem judiciorum redigitur,
et ad finiendas lites pertinet (c). Ex compromisso placet exceptionem
non nasci, sed poense. petitionem " (d). The general conclusiveness of
awards, when made within the legitimate powers of the arbitrators,
was firmly established upon the same principles, which ought
universally to prevail, to suppress litigation. " Stari autem debet
sententiae arbitri, quam de re dixerit, sive sequa, sive iniqua sit; et
sibi imputet, qui compromisit " (e).
§ 1462. The leading, though not the only, exception to the con-
clusivenes ofawards, when regularly made, was the fraud or corrup-
tion of the parties, or of the arbitrators. " Posse eum uti doli mali
exeeptione." Again: " Etiamsi appellari non potest, doli mali excep-
tionem in pcensB petitione obstaturam " (/). Another exception was,
that the arbitrators had, in their award, exceeded their authority;
for if they had, it was void. " De officio arbitri tractantibus sciendum
est, omnem tractatum ex ipso compromisso sumendum. Nee enim
aliud illi lieebit, quam quod ibi, ut efficere posset, cautum est. Non
ergo quodlibet statuere arbiter poterit, nee in re qualibet ; nisi de
qua re compromissum est, et quatenus compromissum est " (g).
§ 1463. Subject to exceptions of this nature, it has been justly
remarked by an eminent judge, that the praetor at Rome would not

(o) Pothier, Pand. Lib. i, tit. 8, n. 13, U ; Dig. Lib. 4, tit. 8, f. 11, § 2, 3; ibid,
f, 13, § 1, ibid. f. 27, § 6.
(b) If there was a simple agreement to stand by the award, without any penalty
or equivalent, it seems that in the civil law there was originally no remedy to enforce
it. Justinian, in some cases, but not adequately (as it should seem), provided for this
defect. See Kyd on Awards, ch. 1, pp. 8, 9 (2nd edit.), which cites Dig. Lib. 4, tit. 8,
f. 27, § 6, 7, where it is said : " Bt, si quis presens arbitrum sententiam dicere pro-
hibuit, poena committetur. [§ 6.] Sed, si poena non fuisset adjecta compromisso, sed
fiimpliciter, sententias stari quis promiserit, incerti adversus eum foret actio. [§ 7.] "
See also Cod. Lib. 2, tit. 56, 1. 4, 5.

4, tit.(c)8,1 n.
Domat,
1. B. 1, tit. 14, § 1, art. 2; Dig Lib. 4, tit. 8, f. 1;' Pothier, Pand. Lib.
(d) 1 Domat, B. 1, tit. 14, § 1, art. 3; Dig. Lib. 4, tit. 8, f. 2.
(e) Dig. Lib. 4, tit. 8, f. 27, § 2 ; Pothier, Pand. Lib. 4, tit. 8, nn. 39, 40.
(/) Dig. Lib. 4, tit. 8, f. 32, § 14; ibid. 1. 31; Pothier, Pand. Lib. 4, tit 8 nn. 40
47, 48.
(g) Dig. Lib. 4, tit. 8, f. 32, § 15 ; 1 Domat, B. 1, tit. 4, § 2, art. 6; Pothier, Pand
Lib. 4, tit. 8, nn. 41, 42.
§ 1461—1463.] AWARDS. 619

interfere with the decisions of these domestic tribunals for the very
reasons which have been adopted in modem times; because they
put an end to suits, and the arbitrators were judges of the parties'
own choice (h). " Tametsi neminem praetor cogit arbitrium recipere
(quoniam hsec res hbera et soluta est, et extra necessitatem juris-
dictionis posita) ; attamen, ubi semel quis in se receperit arbitrium,
ad curam et sollicitudinem suam hanc rem pertinere prsetor putat ;
non tantum, quod studeret lites finiri, verum quoniaan non deberent
deeipi, qui eum, quasi virum bonum, disceptatorem inter se elige-
runt" (z). Indeed, when once arbitrators had taken upon themselves
that office they were compellable by the praetor to make an award.
" Quisquamne potest negare, aequissimum fore, prsetorem interponere
se debuisse, ut officium, quod in se recepit, impleret. Et quidem
arbitrum cujuscunque dignitatis coget officio, quod suseeperit per-
fungi " (fe). In this respect, there is a marked distinction between our
law and the civil law (I).

(h) Mr. Chancellor Kent, in Underhill v. Van Gortlandt, 2 Johns. Ch. 368.
(t) Dig. Lib. 4, tit. 8, f. 3, § 1; Pothier, Pand. Lib. 4, tit. 8, n. 22.
(fe) Dig. Lib. 4, tit. 8, f. 3, § 1, 3; Kyd on Awards, 98, 99, and note (2nd London
edit.). (!) Ante, § 1457.
620 EQUITY JURISPRUDENCE. [CH. XL.

CHAPTER XL.
WRITS OF NE EXEAT REGNO AND SUPPLICAVIT.

§ 1464. Having thus reviewed most of the branches of the exclusive

jurisdiction of courts of equity, which arise from or are dependent
upon, the subject-matter of the controversy, we are next led to the
consideration of those branches of exclusive jurisdiction, which arise
from, or are dependent upon, the nature of the remedy to be ad-
ministered. The peculiar remedies in equity in cases of concurrent
jurisdiction, have already been fully discussed; and much, therefore,
which would otherwise be appropriate for remark in this place, has
been already anticipated. The peculiar remedies connected with the
exclusive jurisdiction in equity seem to have been principally the
process of bill of discovery, properly so called; the process of bill for
perpetuating evidence ; and the processes, called the writ of Ne Exeat
Eegno, and the writ of Supplicavit. The two former are properly
embraced in what is called the auxiliary or assistant jurisdiction of
courts of equity; and will, therefore, be reserved for examination
hereafter. The two latter will be discussed in the present chapter.
§ 1465. The writ of Ne exeat regno, or, as it is sometimes termed,
Ne exeat regnum, is a prerogative writ, which is issued, as its name
imports, to prevent a person from leaving the realm (a). It is said
that it is a process unknown to the ancient common law, which, in
the freedom of its spirit, allowed every man to depart the realm at his
pleasure (b). Its origin is certainly obscure. But it may be traced up
to a very early period, although some have thought that its date is
later than the reign of King John, since, by the great charter granted
by him, the unlimited freedom to go from and return to the kingdom
at their pleasure, was granted to all subjects. " Liceat unicuique de
caetero exire de regno nostro, et redire salvo et secure per terram et
per aquam, salva fide nostra, nisi tempore guerrse, per aliquod breve
tempus, propter communem utilitatem regni " (c). The period
(a) Beames on Ne Exeat, p. 1 ; 1 Black. Comm. 137, 266. Most of the materials,
which are contained in this chapter, have been drawn from the concise but perspicuous
treatise of Mr. Beames, entitled "A Brief View of the Writ of Ne Exeat Regno"
(London, 1812). I have not omitted, however, to compare the observations of the
author with the original authorities.
(b) Beames on Ne Exeat, p. 1.
(c) Ibid. p. 3.
§ 1464 — 1467.] NE EXEAT REGNO. 621

between the reign of King John and that of Edward I. has been
accordingly assigned by some writers as the probable time of its
introduction. A proceeding somewhat similar in its nature and
objects, though not in the precise form of the modern writ, is
distinctly mentioned by Britton (d); and the statute of 5 Eic. 2, c. 2,
ss. 6, 7, prohibited all persons whatsoever from going abroad,
excepting lords and great men, and merchants and soldiers (e).
§ 1466. In Fitzherbert 's Natura Brevium, two forms of writs are
given against subjects leaving the realm without licence, the one
applicable to clergymen, and the other to laymen (/). And it is there
remarked by Pitzherbert, that, by the common law, every man may
go out of the realm at his pleasure, without the king's leave; yet,
because every man is bound to defend the king and his realm, there-
fore the king, at his pleasure, by his- writ, may command a man, that
he go not beyond the seas, or out of the realm, without licence ; and,
if he do the contrary, he shall be punished for disobeying the king's
command. From this language, it may be inferred, as his opinion,
that the right of the king was a part of the common law, not at all
incompatible with the ordinary right of the subject to leave the realm ;
but a restriction upon that right, which might be imposed by the
crovm for great political purposes. This is manifestly the view of the
matter taken by Lord Coke, who deems it a part of the prerogative
of fee crown, at the common law, and not dependent upon any statute
fro bono publico regis et regni (g).
§ 1467. Be the origin of this writ, however, as it may, it was
originally applied only to great political objects and purposes of state,
for the safety or benefit of the realm. The time when it was first
applied to mere civil purposes, in aid of the administration of justice,
is not exactly known, and seems involved in the like obscurity as its
primitive existence. It seems, however, to have been so applied as
early as the reign of Queen Elizabeth (h). In the reign of King
James I. it seems to have been so firmly established, as a remedial
civil process, grantable in chancery, that it was made the subject of
one of Lord Bacon's Ordinances. It is there declared, that " Writs of
Ne exeat regno are properly to be granted according to the suggestion
of the writ in respect of attempts prejudicial to the king and state;
in which case the Lord Chancellor will grant them, upon prayer of any

(d) Britton, ch. 112, cited in Beames on Ne Exeat, pp. 4, 5.

(e) Beames on Ne Exeat, p. 6.
if) Fitz. Nat. Brev. 85
(3) 2 Co. Inst. 54; 3 Co. Inst. ch. 84, pp. 178, 179; Com. Dig. Chancery, 4 B.
{h) Tothill, in his Transactions (p. 136), mentions three cases, one in the 32nd of
Elizabeth, and two in the 19th of James I. Ex parte Brunker, 8 P. Wma. 312 ; Plack
V. Holm, 1 J. & W. 405. See also Beames, Ord. of Chanc. p. 40, note (148); Beames
on Ne Exeat, p. 16. A copy of the modern writ will be found in Beames on Ne Exeat,
pp. 19, 20, and Hinde's Practice, p. 613. A similar process issued out of the Exchequer
in crown cases : Att.-Gen. v. Mucklow, 1 Price, 289.
622 EQUITY JURISPRUDENCE. [CH. XL.

of the principal secretaries, without cause showing, or Upon such

information as his lordship shall think of weight. But otherwise also
they may be according to the practice of long time used, in case of
interlopers in trade, great bankrupts, in whose estates many subjects
are interested, or other cases that concern multitudes of the king's
subjects; also in case of duels and divers others" (i).
§ 1468. The ground, then, upon which it is applied to civil cases
being, as is here stated, custom or usage; it has been in practice
uniformly confined to cases within the usage, and therefore it is
perhaps impossible to expound its true use or limitation upon
principle (k). It has been strongly said, that it is applied to cases of
private right with great caution and jealousy (I).
§ 1470. In general, it may be stated, that formerly the writ of
Ne exeat- regno was not granted unless in cases of equitable debts and
claims; or if a legal debt, one which was ascertained by evidence
of belief, but subject to the result of taking an account; for, in regard
to civil rights, it was treated as in the nature of equitable bail (m).
If bail was not required at law, that furnished no ground for the
interference of a court of equity, to do what in eSect, as to legal
demands, the law inhibited (n).
§ 1471. It has been said in the preceding reinarks, that, in general,
the writ of Ne exteat regno, l&j only upon equitable debts and claims.
There were to this general statement two recognised exceptions, and
two only. The one was where alimony had been decreed in the
Ecclesiastical Court to a wife, whose right would be prejudiced if the
writ did not issue against her husband about to quit the realrn,
the Ecclesiastical Courts having no jurisdiction to exact security,
a jurisdiction first conferred on the Divorce Court by section 32 of the
20 & 21 Vict. c. 85, from the husband (o). The other was the case
of an account, on which a balance was admitted by the defendant,
but a larger claim was insisted on by the creditor (p).
§ 1472. The learned author also instanced the case of alimony
decreed to the wife in chancery. This subject has already been
discussed (q), and the only occasions on which the court' interfered
were during the Commonwealth, when' the court exercised jurisdiction

(t) Beames, Ord. in Chanc. pp. 39, 40, Ord. 89; Beames on Ne Exeat, pp. 16, '17.
(k) Ex parte Brunker, 3 P. "Will. 313; Etches v. Lance, 7 Ves. 417; De Carrihe
v. De Galonne, 4 Ves. 590.
(Z) Tomlinson v. Harrison, 8 Ves. 32; Whitehouse v. Partridge, 3 Swanst. 365.
(m) Beames on Ne Exeat, p. 30; Ex parte Brunker, 3 P. 'Will. 312; Atkinson v.
Leonard, 3 Bro. Ch. C. 218; Flack v. Holm, 1 J. &W. 405. See Goherson v. Bloom-
field, 29 Ch. D. 341.
(n) Grosly v. Marriot, 2 Dick. 609 ; Gardner v. , 15 Ves. 444.
(o) Vandergucht v. De Blaguiere, 8 Sim. 315 ; 5 M. & Cr. 229. An appeal pending
was an answer to the application for a writ ne exeat regno ; Street v. Street, Turn. & E.
322.
(p) Flack V. Holm, 1 Jac. & W. 405 ; Thompson v. Smith, 34 L. J. Ch. 412.
(g) Ante, § 1421.
§ 1468r— 1475a. ] ne exeat regno. 623

in matrimonial cases, and where the husband had forfeited his

recognizances by breach of condition to keep the peace towards his
wife, or where the claim was in the nature of an equity to a settle-
ment. These were obviously all claims of an equitable nature, and
not true exceptions. It may well be doubted if the jurisdiction
would have been maintained in later times.
§ 1473. In regard to a bill for an account, where there was a
definite sum proved or admitted to be due by the defendant to the
plaintiff, but a larger sum was claimed by the latter, there was not
any real deviation from the appropriate jurisdiction of courts of
equity (r) ; for matters of account are properly cognizable therein.
The writ of Ne exeat regno may, therefore, well be supported as a
process in aid of the concurrent jurisdiction of courts of equity, and,
accordingly, it is now put upon this intelligible and satisfactory
ground.
§ 1474. As to the nature of the equitable demand, for which a Ne
exeat regno would be issued; it must have been certain in its nature,
and actually payable, and not contingent. It should also have been
for some debt or pecuniary demand. It would not lie, therefore, in a
case where the demand was of a general unliquidated nature, or was
in the nature of damages (s). The equitable debt need not, however,
have been directly created between the parties. It would have been,
sufficient if it were fixed and certain. Thus the cestui que trust, or
assignee of a bond, might have a writ of iVe exeat regno against the
obligor {t).
§ 1475. We may conclude what is thus briefly said upon this
subject, by stating that the writ would not have been granted on a
bill for an account in favour of a plaintiff, who was a foreigner out of
the realm, because he could not be compelled to appear and account.
And, on the other hand, it might have been granted against a
foreigner transiently within the country, although the subject-matter
originated abroad, at least to the extent of requiring security from
him to perform the decree made on the bill filed (w).
§ 1475a. The power to arrest a defendant on mesne process in
common law actions was taken away by the statute 1 & 2 Vict.
c. 110 in the case of inferior courts, and modified in the case of the
superior courts so far as to require a judge's order. The statute does
not apply to actions at the' suit of the crown. The power was still
further restricted by section 6 of the Debtors Act, 1869. Where
the debt amounted to £50 or upwards, and could only have been

(r) Flack v. Holm, 1 Jao. & "W. 406 ; Thompson v. Smith, 34 L. J. Ch. 412.
(s) Sherman v. Sherman, 3 Bro. C. C. 370, and notes; Flack v. Holm, 1 J. & W.
405; Thompson v. Smith, 84 L. J. Ch. 412.
(t) Grant v. Grant, 3 Euss. 598; Leake v. Leake, 1 Jac. & "Walk. 605; Howkins
V Howkins, 1 Dr. & Sm. 75.
(«) Flack V. Holm, 1 J. & W. 405 ; Smith v. Nethersole, 2 Euss. & M, 450.
624 EQUITY JUEISPEUDENCE, [CH. XL.

sued for in a superior court of common law prior to this statute, the
plaintiff is bound by the terms of the sections (x). It is essential
for the plaintiff to show (a) that the debt which must be a legal
and not an equitable claim, amounts to £50 or upwards; (b) that
there is reasonable ground for the belief that the defendant is about to
quit the realm; and (c) that the prosecution of the action will be
materially prejudiced. Failure to prove any one of these matters
is fatal to the application (y). Under the section the defendant may
be ordered to be imprisoned for six months unless he gives security
not exceeding the amount of the debt that he will not go out of
England without leave of the court. With this exception, the statute
has abolished arrest on mesne process. The practice is regulated by
Eules of the Supreme Court, 1883, Order LXIX.
§ 1476. The other process, to which we have alluded, as belonging
to the exclusive jurisdiction of chancery, is the writ of Supplicavit.
It was in the nature of the process at the common law to find sureties
of the peace upon articles filed by a party for that purpose (»). It
was, however, rarely used, as the remedy at the common law was in
general adequate, although (as we have seen (a.) ), it was sometimes
resorted to by a wife against her husband; because in that case
it was said, that the Court of Chancery, as an incident, might grant
maintenance or alimony to the wife, if she was compelled to live
apart from her husband.
§ 1477. Lord Chief Baron Gilbert has given a full description of
the nature and objects of this writ; and it will be sufficient for all
the purposes of our present inquiry to state them in his words : "It
is granted upon complaint and oath made of the party, where any
suitor of the court is abused, and stands in danger of his life, or is
threatened with death by another suitor. The contemner is taJ^en
into custody, and must give bail to the sheriff; and, if he moves to
discharge the writ of supplicavit, the court hears both parties on
affidavit, and continues or discharges it, as the case appears before
them. If they order the contemner to give security for his good

(a;) Drover v. Beyer, 13 Ch. D. 242.

iy) Drover \. Beyer, 13 Ch. D. 242.
(z) See Baynum v. Baynum, Ambler, 63, 64. In Lord Bacon's Ordinances there is
one regulating the issuing of this writ. Ord. 87, in Beames's Ord. Ch. p. 89. On this
Mr. Beames has remarked in his note (144), " This writ, as now issuing, is founded
on the statute 21 Jac. 1, c. 8, which must have passed about five years after the making
of the present Ordinances, if they really were published on the 29th Jan. 1618, as
asserted in the judicial authority of the Master of the KoUs, p. 100. In addition to the
authorities cited in the notes subjoined to Heyn's case, the reader may be referred to
Stoell v. Botelar, 2 Ch. 68 ; Ex parte Gumbleton, 9 Mod. 222 ; s.o. 2 Atk. 70 ; Hilton v.
Biron, 3 Salk. 248; Ex parte Lewis, Mos. 191; Ex parte Gibson, Mos. 198; Gilb. For.
Eom. 202; Com. Dig. Chancery, 4 E., and Forcible Entry, D. 16, 17. The Collec.
Juirid. 193, carries supplicavits so high as the reigns of Henry VII. and Henry VIII. ,
when both parties, plaintiff and defendant, were bound over to their good behaviour."
(a) Ante, § 1421.
§ 147&— 1477.] NE EXEAT KEGNO, 625

behaviour (for this writ is in the nature of a Lord Chief Justice's

warrant to apprehend a man for a breach of the peace), he must do
it by recognizance, to be taken before one of the masters of the court,
who must be in the commission of the peace. He is to find sureties
to be of his good behaviour. If he beats or assaults the party a
second time, the court will order the recognizance to be put in suit,
and permit the party to recover the penalty ; for the recognizance is
never to be sued, but by leave of the court. But this proceeding
very rarely or never happens. So, if any ^uitor of the court is
arrested, either in the face of the court or out of the court, as he is
going and coming to attend and follow his cause (for so far the court
does and will protect every man), upon complaint made thereof, sitting
the court, they will send out the tipstaff, and bring in the bailiffs and
prisoner into court instantly, sitting the court, and they will order
them forthwith to discharge him, or lay them by the heels; and the
plaintiff in the action, upon complaint and oath made thereof, will
certainly stand committed. He shall lie in prison till he petitions,
submits, and begs pardon, and pays the costs to the other party " (b).

(b) Gilbert's Forum Eom. pp. 202, 203; Clavering's Case, 2 P. Will. 202, and
Stoell V. Botelar, 2 Ch. 68, are instances of the actual granting of the writ, under cir-
cumstances like those stated by Gilbert in his Forum Eoman. pp. 202, 203. It was
usual to discharge persons committed for want of surety on articles of peace, and on
a suppUcavit, after a year, if nothing new happened, and the threat or danger did not
continue. Baynum v. Baynum, Ambler, 63; Ex parte Grosvenor, 3 P. Will. 103.
Similarly the court of King's Bench restricted the period during which the peace was
to be observed according to the necessities of the case. Bex v. Bowes, 1 T. E. 696;
Dunn V. Reg., 12 Q. B. 1026.

E.J. 40
626 EQUITY JURISPRUDENCE. [CH. XLI.

CHAPTER XLI.

DISCOVERY, AND THE PRACTICE EMPLOYED TO PRESERVE AND

PERPETUATE EVIDENCE.

§ 1480. We shall now proceed to the third and last head of Equity
Jurisdiction proposed to be examined in these Commentaries, that is
to say, the former auxiliary or assistant jurisdiction, which, indeed,
was exclusive in its own nature, but, being applied in aid of the
remedial justice of other courts, may well admit of a distinct
consideration.
§ 1482. In former times remedial processes of bills of dis-
covery and bills to take testimony de bene esse, pending a suit,
were the subject-matter of independent proceedings, except in the
case of equitable suits, but now form part of the remedial justice
of all civil courts. The procedure is regulated by Eules of the
Supreme Court, 1883, Order XXXI., which are founded on the
Judicature Act, 1873, section 24 (7). The principles regulating the
practice on bills of discovery still govern the court in the exercise
of this jurisdiction (a), and it becomes necessary, therefore, to consider
the former. An action for discovery only is still maintainable in a
few cases of an exceptional nature (fe). The Court of Chancery also
entertained bills to perpetuate testimony, and an action may now
be brought to perpetuate testimony at the suit of a person who will
become entitled " upon the happening of axiy future event, to any
honour, title, dignity, or office, or to any estate or interest in any
property, real or personal, the right or claim to which cannot by him
be brought to trial before the happening of such event." The
procedure is regulated by Rules of the Supreme Court, 1883, Order
XXXV., rules 35—38.
§ 1488. In the first place, as to bills of discovery. It has been
already remarked that every bill in equity might properly have been
deemed a bill of discovery, since it sought a disclosure from the
defendant, on his oath, of the truth of the circumstances constituting

(a) See Att.-Gen. v. Gaskill, 20 Ch. D. 519; Lijell v. Kennedy, 8 App. Cas. 217;
Roberts v. Oppenheim, 26 Ch. T). 724.
(b) On v. Diaper, 4 Ch. D. 92; Norey v. Keep, [1909] 1 Ch. 561; Davies v. Gas
Light S Coke Co., [1909] 1 Ch. 708. See Burstall v. Beyjus, 26 Ch. D. 35; Kerr v,
Rew, 5 M. & Cr. 154.
§ 1480—1486.] DISCOVERY. 627

the plaintiff's case as propounded in his bill. But that which was
emphatically called in equity proceedings a bill of discovery, was a
bill which asked no relief, but which simply sought the discovery of
facts, resting in the knowledge of the defendant, or the discovery of
deeds, or writings, or other things, in the possession or power of the
defendant, in order to maintain the right or title of the party asking
it, in some suit or proceeding in another court. The sole object
of such a bill, then, being a particular discovery, when that discovery
was obtained by the answer, there could be no further proceedings
thereon (d). To maintain a bill of discovery it was not necessary that
the party should otherwise have been without any proof of his case ;
for he might maintain such a bill, either because he had no proof, or
because he wanted it in aid of other proof (e). But, in general, it was
necessary, in order to maintain a bill of discovery, that an action
should be already commenced in another court, to which it should be
auxiliary. Both under the old and the new practice, discovery in aid
of proceedings out of the jurisdiction will be refused (/).
§ 1484. One of the defects in the administration of justice in the
courts of common law arose from their want of power to compel a
complete discovery of the material facts in controversy by the oaths
of the parties in the suit (g). And hence (as we have seen), one of the
most important and extensive sources of the jurisdiction of courts of
equity was their power to compel the parties, upon proper proceed-
ings, to make every such discovery.
§ 1485. Another defect of a similar nature was the want of a
power in the courts of common law to compel the production of deeds,
books, writings, and other things, which were in the custody or power
of one of the parties, and were material to the right, title, or defence
of the other (h). This defect also was remediable in courts of equity,
which would compel the production of such books, deeds, writings,
and other things.
§ 1486. The Eoman law provided similar means, by the oath of
the parties and by a bill of discovery, to obtain due proofs of the
material facts in controversy between the parties. There seem
originally to have been three modes adopted for this purpose. One
was upon a due act of summons to require the party, without oath,
to make a statement, or confession generally, relative to a matter in
controversy. Another was to require him to answer before the proper
judge to certain interrogatories, propounded in the form of distinct
(d) Lady Shaftesbury v. Arrowsmith, 4, Ves. 71.
(e) Pinch v. Finch, 2 Ves. Sen. 492; Montague v. Dudman, 2 Ves. Sen. 398.
(/) Finch V. Angell, 9 Sim. 180; Reiner v. Marquis of Salisbury, 2 Ch. D. 378;
Dreyfus v. Peruvian Guano Co., 41 Ch. D. 151.
(g) 3 Black. Comm. 381, 382.
(h) 2 Black. Comm. 382; Com. Dig. Chancery, 3 B. See Att.-Gen. ^. Gaskill, 20
Ch. D. 519.
628 EQUITY JURISPRUDENCE. [CH. XLI.

articles, which the judge might, in his disoretipn,. order him to answer
upon oath. The third was, to require the adverse party to answer
upon oath, as to the fact in controversy; the party applying for the
answer consenting to take the answer so given upon oath as truth.
On this account it was called the decisive or decisory oath ; and it
admitted of no countervailing and contradictory evidence. In the
two former cases other proofs were admissible (i). " Ubicunque
judicem aequitas moverit, eeque oportere fieri interrogationem, dubium
non est (k). Voluit Praetor adstringere eum, qui convenitur, ex sua in
judicio responsione, ut vel confitendo, vel mentiendo, sese oneret" (l).
§ 1487, In the Eoman law bills of discovery were called Actiones
ad exhibendum, when they related to the production of things, or
deeds, or documents, in which another person had aji interest (m).
When they required the answer of the party on oath to interrogatories,
they were called Actiones interrogatorise (n). It seems that, originally,
interrogatory actions might be propounded at any time before suit
brought by any party having any interest. But we are informed in
the Digest, that, in the time of Justinian, they had become obsolete,
and interrogatories were propounded only in cases in htigation.
" Interrogatoriis autem actionibus hodi© non utimur, quia nemo
cogitur ante judicium de suo jure aliquod respondere. Ideoque minus
frequentantur, et in desuetudinem abierunt. Sed tantummodo, ad
probationes litigatoribus sufificiunt ea, quae ab adversa parte expressa
fuerint apud judices, vel in hereditatibus, vel in aliis rebus, quae in
causis vertuntur " (o). The Eoman law also required that the party
seeking a discovery of facts should have a legal capacity to sustain
himself in court; and that the discovery should respect some right
of action (p). It does not seem important further to trace out the
analogies of the Eoman law on this subject; and, with these brief
hints, showing the probable origin of the like proceedings in our
courts of equity, we may return to the subject of bills of discovery.
§ 1488. As the object of this jurisdiction, in cases of bills of dis-
covery, was to assist and promote the administration of public justice
in other courts, they were greatly favoured in equity, and would be
sustained in all cases where some well-founded objection did not exist
against the exercise of the jurisdiction. We shall, therefore, proceed
to the consideration of some of the circumstances which may consti-
tute an objection to such bills, leaving the reader silently to draw the
conclusion, that, if none of these, nor any of the Uke nature, inter-
vene, the jurisdiction to compel the discovery sought would have
(i) 2 Domat, B. 1, tit. 6, § 5, pp. 458, 459; id. § 5, art. 4, 5.
{k) Dig. Lib. 11, tit. 1, f. 21.
(0 Ibid. f. 4.
(to) Pothier, Pand. Lib. 10, tit. 4, n. 1 to 7 ; id. n. 8 to 30.
(n) Ibid. Lib. 11, tit. 1, n. 1 to 24, and note (2).
(0) Ibid. Lib. 11, n. 24; Dig. Lib. 11, tit. 1, f. 1, § 1.
(p) Pothier, Pand. Lib. 11, tit. 1, n. 13, 15.
§ 1487—14890..] DISCOVERY. 629

been strictly enforced by the Court of Chamcery, and will now be

strictly enforced in all the Divisions of the High Court of Justice.
§ 1489. The principal grounds upon which a bill of discovery
might have been resisted, have been enumerated by a learned writer,
as follows : (1) That the subject was not cognizable in any municipal
court of justice. (2) That the court would not lend its aid to obtain
a discovery for the particular court for which it was wanted. (3) That
the plaintiff was not entitled to the discovery by reason of some
personal disability. (4) That the plaintiff had no title to the character
in which he sued. (5) That the value of the suit was beneath the
dignity of the court. (6) That the plaintiff had no interest in the
subject-matter, or title to the discovery required, or that an action
would not lie for which it was wanted. (7) That the defendant was
not answerable to the plaintiff, but that some other person had a
right to call for the discovery. (8) That the policy of the law
exempted the defendant from the discovery. (9) That the defendant
was not bound to discover his own title. (10) That the discovery
was not material in the suit. (11) That the defendant was a mere
witness. (12) That the discovery called for would criminate the
defendant. Some of these grounds of objection to discovery have
ceased to be of force since the Judicature Acts, but some still
operate, and it will be therefore proper to unfold the principles, with
more particularity, by which a few of them are governed. Under the
present practice it would seem that there are only four grounds on
which discovery is refused when the discovery is sought in the pro-
ceedings in aid of which the discovery is required, viz., (a) that it is
criminatory or penal, (b) that it is under the doctrine of legal
professional privilege, (c) that it discloses the party's evidence, (d) that
it is injurious to. public interests (q).
§ 1489a. There is a point of practice which has an important
bearing upon the question of discovery. If the discovery were sought
in aid of proceedings in another court, or being a matter over which
the Court of Chancery had jurisdiction, proceedings were in fact
being maintained in another court, the right to discovery had to be
judged on its own merits (r). In matters of equity jurisdiction, where
the right to discovery was incidental to other relief, the right to
discovery was entirely dependent upon the right to maintain the
action for the principal relief (s). Actions limited to discovery can
now only arise in exceptional cases, and the same principle would

(g) Objections (a) (d) are not applicable under the present practice except where
an action (or bill, according to the old chancery practice) is brought for discovery in
aid of some other proceeding which " now can be of rare occurrence " : per His Honour
Judge Bray, in a private communication to the late Mr. Grigsby. See Bray on
Discovery, pp. 609 to 619.
(r) Mills V. Campbell,.2Y. & C. Ex. 391.
(s) Mellish v. Richardson, 12 Price, S30.
630 EQUITY JURISPRUDENCE. [CH. XLI.

apply (<). In the vast majority of instances the right to discovery

will be incidental to other relief, and unless the party can show that
the action is not maintainable, he will be precluded from raising
many objections to discovery that were formerly available to him (m).
§ 1490. In the first place, it must clearly appear that the plaintiff
has a title to the discovery which he seeks; or, in other words, that
he has an interest in the subject-matter, to which the discovery is
attached, capable and proper to be vindicated in some judicial
tribunal. A mere stranger cannot seek for the discovery of the title
of another person. Hence, an heir-at-law caimot, during the life of
his ancestor, have a discovery of facts or deeds, material to the
ancestor's estate ; for he has no present title whatsoever, but only the
possibility of a future title (x).
§ 1491. Even an heir-at-law has not a right to the inspection of
deeds in the possession of a devisee; but an heir-in-tail is entitled
to see the deeds creating the estate tail, but no further (y). On the
other hand, a devisee is entitled against the heir-at-law to a discovery
of deeds relating to the estate devised (a).
§ 1492. The reason of this distinction is fairly obvious. The title
of an heir-at-law is a plain legal title, and a paramount title ; for
he succeeds to all fee simple lands of his ancestor that are not
effectively devised to another (a). After the death of the ancestor
different considerations prevail. Every freehold tenant in possession,
even a tenant for life (b), where the interest is legal, is entitled to the
title-deeds in right of his estat-e (c), and where the deeds relate to
other lands in which he is not interested under a common title, to

(t) Burstall v. Bey fus, 26 Ch. D. 35.

(«) See Ind Coope S Co. v. Emmerson, 12 App. Cas. 300.
(x) Buden v. Dore, 2 Ves. Sen. 445. V.C. Wigram, in his treatise on the Ltaw of
Discovery, lays down the following as fundamental propositions on this subject, ^i)
It is the right, as a general rule, of the plaintiff in equity, to examine the defendant
upon oath, as to all matters of fact, which, being well pleaded in the bill, are material
to the proof of the plaintiff's case, and which the defendant does not, by his form of
pleading, admit. (2) Courts of equity, as a general rule, oblige a defendant to pledge
his oath to the tnith of his defence; with this (if a) qualification, the right of a plaintiff
in equity, to the benefit of the defendant's oath, is limited to a discovery of such
material facts as relate to the plaintiff's case; and it does not extend to the discovery
of the manner in which, or of the evidence by means of M'hich, the defendant's case is
to be established, or to any discovery of the defendant's evidence. Wigram, Points m
Law of Discovery, pp. 21, 22; Story on Bq. Plead. § 872 to 574.
iy) Lady Shaftesbury v. Arrowsmith, i Ves. 71. In this case Lord Eosslyn ex-
plained the ground of the doctrine in favour of the heir-in-tail ; that it was removing
an impediment which prevented the trial of a legal right. He afterwards added : " Per-
mit ing a general sweeping survey into all the deeds of the family would be attended
with very great danger and mischief; and where the person claims as heir of the body,
it has been very properly stated, that it may show a title in another person, if the
entail is not well barred."
(z) Lady Shaftesbury v. Arrowsmith , 4 Ves. 71.
(a) Shuldham v. Smith, 6 Dow, 22; Asten v. Asten, [1894] 3 Ch. 260.
(b) Leathes v. Leathes, 5 Ch. D. 221.
(c) Smith v. Chichester, 2 Du. & War. 393.
§ 1490—1496.] DISCOVERY. 631

have those deeds produced to evidence his title (d). These principles
are further illustrated by the cases which decide that a tenant in
remainder of a freehold interest may obtain production against the
tenant for Ufe (e), unless the estate in remainder is still contingent (/).
Two matters must be distinguished. A party claiming an interest
in an estate is entitled to a discovery of what documents are in the
hands or under the control of another, and of all facts relevant to
his own case, but he is not entitled to pry into the title of his
adversary (g).
§ 1493. On the other hand, a devisee, claiming an estate under a
will, cannot, without a discovery of the title-deeds, maintain any suit
at law. The. heir-at-law might not only defeat his suit, by withhold-
ing the means to trace out his legal title, but might also defend
himself at law by setting up prior outstanding incumbrances. And
thus he might prevent the devisee from having the power of trying
the vahdity of the will at law (h).
§ 1494. In the next place, the courts of equity will not allow
discovery to aid the promotion or defence of any suit which is not
purely of a civil nature. Thus, for example, they will not compel a
discovery pending to incriminate a party against whom it is sought (?),
or in aid of a penal action (fe) ; or of an action to enforce a forfeiture (I),
for it is against the genius of the common law to compel a party to
accuse himself; and it is against the general principles of equity to
aid in the enforcement of penalties or forfeitures. It has been
held generally that Ord. 31, r. 1, of the Eules of the Supreme Court,
1883, was not intended to give the right to discovery in cases where,
prior to the Judicature Acts, discovery was not obtainable (m).
§ 1496. In the next place, no discovery will be compelled, where
it is against the policy of the law from the particular relation of
the parties. Thus, for instance, a person standing in the relation
of professional confidence to another, as his counsel or attorney, will
not be compelled to disclose the secrets of his client, unless the
privilege is waived by the client (w). It is strictly confined to legal
advisers, whatever their nationality may be (o). But as was pointed

(d) Ruscoe V. Richards, 1 Jur. 304.

(e) Davis v. Earl of Dysart, 20 Beav. 405.
(/) Noel V. Ward, 1 Mad. 322.
(g) Lyell v. Kennedy, 8 App. Cas. 217. This case will give a clue to the earlier
cases.
(h) Duchess of Newcastle v. Lord Pelham, 3 Bro. P. C. 460.
(t) Cartwright v. Green, 8 Ves. 405 ; Redfem v. Redfern, [1891] P. 189.
(k) Runnings v. Williamson, 10 Q. B. D. 459.
(0 Earl of Mexborough v. Whitwood Urban Council, [1897] 2 Q. B. Ill
(m) Runnings v. Williamson, 10 Q. B. D. 459; Lyell v. Kennedy, 8 App. Cas. 217.
(m) Parkhurst v. Lowten, 2 Swanst. 194, and the cases in notes; Wentworth v.
Lloyd, 10 H. L. C. 589.
(o) Bunbury v. Bunbury, 2 Beav. 173; Lawrence v. Campbell, i Drew. 485;
Wheeler v. Le Marchant, 17 Oh. D. 675.
632 EQUITY .TURISPRUDENCE. [CH. XLI.

out by Sir George Jessel, M.E. (p) ; "The protection is of a very

limited character, and is restricted, in this country, to obtaining the
assistance of lawyers as regards the conduct of litigation or the rights
to property. It has never gone beyond the obtaining legal advice
and assistance, and all things reasonably necessary in the case of
communication to the legal advisers are protected from production
or discovery in order that the legal advice may be obtained safely
and effectually." Accordingly a solicitor must depose to a fact not
confidentially communicated to him as the execution of a deed, or
matters which come to his knowledge independently of his character
as solicitor to a party in a particular matter (g). Fraud or criminal
conduct displaces the privilege, " for the rule does not apply to all
that passes between a client and his solicitor, but only to what passes
between them in professional confidence; and no court can permit it
to be said that the contriving of a fraud, can form part of the
professional occupation of an attorney or solicitor " (r). The privilege
extends to persons necessarily employed by the solicitor to form a
just conclusion (s), as an interpreter to render communication
between the client and his solicitor possible (t). But it does not
extend to any other category of agent immediately consulted as a
pursuivant of the Heralds' College (u), or a patent agent (a;), or any
other persons in a confidential relationship, as for instance, a medical
man or clergyman {y).
§ 1497. In the next place, no discovery will be compelled, except
of facts material to the case stated by the plaintifi (z); for otherwise,
he might insist upon a knowledge of facts wholly impertinent to his
case, and thus compel disclosures in which he had no interest, to
gratify his malice, or his curiosity, or his spirit of oppression. But
cases of immateriality may be put faj short of such unworthy objects.
Thus, if a mortgagor should seek to ascertain whether the mortgagee
was a trustee or not, that would, ordinarily, be deemed an improper
inquiry, since, unless special circumstances were shown, it could not
be material to the plaintiff, whether any trust were reposed in the
mortgagee or not (a). And document* are material to the case if it is

(p) Wheeler v. Le Marchant, 17 Ch. D. 675.

(g) Sanford v. Remington, 2 Vea. Jun. 189; Colmon v. Orton, 9 L. J. Ch. 268;
Dwyer v. Collins, 7 Ex. 639; In re Arnott, 37 W. B. 223.
(r) Lord Cranworth, V.C, Follet v. Jejferys, 1 Sim. N. S. 1, 17; Reg. v. Cox, 14
Q. B. D. 153; Williams v. Quebrada Railway, Land and Copper Co., [1896] 2 Ch. 751.
(s) Wheeler v. Le Marchant, 17 Ch. D. 6'i0; Learoyd v. Halifax Banking Co.
[1893] 1 Ch. 686.
(t) Du Barre v. Livette, 1 Peake, 108. The actual ruling is inconsistent with Reg
V. Cox, 14 Q. B. D. 153.
(u) Slade v. Tucker, 14 Ch. D. 827.
(x) Moseley v. Victoria Co., 55 L. T. 482.
iy) Russell v. Jackson, 9 Hare, 392.
(z) See Finch v. Finch, 2 Ves. Sen. 492.
(o) Montague v. Dudman, 2 Ves. Sen. 399.
§ 1497—1504.] DISCOVERY. 633

not unreasonable to suppose that they may contain information

directly or indirectly enabling the party seeking discovery either to
advance his own case, or to damage the case of his adversary (b).
§ 1498. Formerly arbitrators were not compellable to disclose the
grounds on which they made their award; nor could they be
impleaded unless they were charged with corruption, fraud, or
partiality (c). There is now power to compel an arbitrator to state
a case for the opinion of the court upon a question of law (d). On a
question of fact the decision of the arbitrator is conclusive.
§ 1499. In the next place, it is ordinarily a good objection to a
discovery, that it seeks the discovery from a defendant who is a
mere witness, and has no interest in the suit; for, as he may be
examined in the' suit as a witness, there is no ground to msike him
a party to discovery, since his answer would not be evidence against
any other person in the suit (e).
§ 1501. Formerly officers of a, corporation, or other members of
the corporation, could be made parties to assist discovery against the
corporation. Under the present practice an order to answer interro-
gatories ismade upon any member or officer of the corporation (/),
in the case of ordinary disclosure and production of documents.
The order is made upon an officer of the corporation, and it is
improper to make the officer a party for that purpose (g).
§ 1502. In the next place, a defendant might have objected to a
discovery, that he was a bond fide purchaser of the property for a
valuable consideration, without notice of the plaintiff's claim. To
entitle himself to this protection, however, the purchase must not
only be bond fide, and without notice, and for a valuable consideration,
but the purchaser must have paid the purchase-money {h). This
exception has now become unimportant, as discovery is an incident
to all actions in the High Court (?').
§ 1504. Upon the same principle, a jointress is entitled to protect
herself against the discovery of her jointure deed, if the party seeking
the discovery is not capable of confirming the jointure, or if, being
capable, he does not offer by his bill to confirm it, when the discovery
will be granted, as soon as the confirmation is made, but not before.

(b) Compagnie FinancUre et Commerciale du Pacifique v Peruvian Guano Co., 11

Q. B. D. 55.
(c) Ives V. Metcalfe, 1 Atk. 63; Tittenson v. Peat, 3 Atk. 529; Anon., 3 Atk. 644.
(d) Arbitration Act, 1889 (52 & 53 Vict. c. 49), «. 19.
(e) Fenton v. Hughes, 7 Ves. 287 ; Burstall v. Beyfus, 26 Ch. D. 35.
(/) Eules of the Supreme Court, 1883, Order XXXI., rule 5; Southwark Water Co.
v. Quick, 3 Q. B. D. 315; Welsbach Incandescent Gaslight Co. v. New Sunlight In-
candesoent Co., [1900] 2 Ch. 1.
(^) • Wilson v. Church, 9 Ch. D. 662
(h) Butler's note to Co. Litt. 290 b, note (1), § 13; Willoughby v. Willoughby,
1 T.E. 763 ; Jackson v. Rome, 4 Buss. 514; 9 L. J. 0. S. Ch. 32.
(i) Ind Coope S Co. v. Emmerson ,'12 App. Gas. 300.
634 EQUITY JURISPRUDENCE. [CH. XLI.

For otherwise, it might happen, that, after the discovery, his offer
might become ineffectual by the intervention of other interests {k).
§ 1504a-. It was for a long time considered to be the rule that a
plaintiff in ejectment at law was not entitled to bring a bill in equity
for discovery, on the maxim that a plaintiff in ejectment must
succeed by the strength of his own title and not by the wealcness
of his adversary. But in the late case of Lyell v. Kennedy (l), it was
decided by the House of Lords, overruling the unanimous judgment
of the Court of Appeal, that the ordinary rule as to discovery applies
as much to an action for the recovery of land as to all other
actions — i.e., that a plaintiff is entitled to discover^' as to all matters
relevant to his own, and not to the defendant's case. It should be
remarked that the decision did not proceed on the principle that the
right of discovery under the present rules of the Supreme Court,
is more extensive than it was in the Court of Chancery, but on the
authority of decided cases, which were not quoted in the Court of
Appeal, and also that of the leading writers on the Law of Dis-
covery (m). At the same time the House recognized the validity
of the rule that a defendant in possession of land cannot be required
to disclose his title, but only the nature of his title (n) ; e.g., whether
he claims as heir, or devisee, or a disseisor in whose favour the statute
of limitations has run.
§ 1505. Let us now pass to the consideration of the methods to
preserve and perpetuate testimony when it is in danger of being lost
before the matter to which it relates can be made the subject of
judicial investigation (o). Before the Judicature Act this was done by
means of a bill brought in the Court of Chancei-y, and the following
sections give the old practice. Bills of this sort are obviously indis-
pensable for the purposes of public justice, as it may be utterly im-
possible for a party to bring his rights presently to a judicial decision;
and unless, in the intei-mediate time, he may perpetuate the proofs
of those rights, they may be lost without any default on his side.
The civil law adopted similar means of preserving testimony which
was in danger of being lost (p).
§ 1506. This sort of bill (as has been remarked by j\Ir. Justice
Blackstone) " is most frequent, when lands are devised by will, away
from the heir-at-law; and the devisee, in order to perpetuate the
testimony of the witnesses to such will, exhibits a bill in chancery

(k) Leech v. Trollop, 2 Ves. Sen. 662.

(0 8 App. Cas. 217.
(m) Hare on Discovery, p. 198; Sir James Wigram on Discovery, 2nd edit.,
pp. 14 and 122.
()i) Bellwood V. Wetherell, 1 Y. & C. Ex. 211 ; Hortoti v. Bott, 2 H. & N. 249.
(o) Ellice V. Roupell, 32 Beav. 308, and note. Such procedure is now styled an
action in the nature of a bill to perpetuate testimony.
(p) Domat, B. 3, tit. 6, § 3; Dig. Lib. 9, tit. 2, f. 40; Gilb. For. Eoman. ch. 7,
pp. 118, 119; Mason v. Goudburne, Rep. t. Pinch, 391.
§ 15040^1508.] DISCOVERY. 635

against the heir, and sets forth the will verbatim therein, suggesting,
that the heir is inclined to dispute its validity; and then, the de-
fendant having answered, they proceed to issue, as in other cases, and
examine the witnesses to the will; after which the cause is at an end
without proceeding to any decree, no relief being prayed by the bill;
but the heir is entitled to his costs, even though he contests the will.
This is what is usually meant by proving a will in chancery " (g).
This practice is substantially embodied in the rules of the Supreme
Court, 1883, Order XXXVII., rules 85 to 38.
§ 1507. The jurisdiction, which courts of equity exercise to per-
petuate testimony, has been thought to be open to great objections,
although it seems indispensable for the purposes of public justice.
First : it leads to a trial on written depositions, which is deemed to be
much less favourable to the cause of truth than the viva voce
examination of witnesses. But, what is. still more important, inas-
much as those depositions can never be used until after the death of
the witnesses, and are not, indeed, published until after their death,
it follows, that, whatever may have been the perjury committed in
those depositions, it must necessarily go unpunished. The testimony,
therefore, has this infirmity, that it is not given under the sanction
of those penalties which the general policy of the law imposes upon
the crime of perjury. It is for these reasons that courts of equity do
not generally entertain bills to perpetuate testimony, for the purpose
of being used upon a future occasion, unless where it is absolutely
necessary to prevent a failure of justice.
§ 1508. If, therefore, it be possible, that the matter in controversy
can be made the subject of immediate judicial investigation by the
party who seeks to perpetuate testimony, courts of equity will not
entertain any bill for the purpose. For the party, under such circum-
stances, has it fully in his power to terminate the controversy by
commencing the proper action; and, therefore, there is no reasonable
ground to give the advantage of deferring his proceedings to a future
time, and to substitute thereby written depositions for viva voce
evidence. But, on the other hand, if the party who files the bill can
by no means bring the matter in controversy into immediate judicial
investigation, which may happen when his title is in remainder, or
when he himself is in actual possession of the property, or when
he is in the present possession of the rights which he seeks
to perpetuate by proofs; in every such case, courts of equity will
entertain a suit to secure such proofs. For, otherwise, the only
evidence which could support his title, possession, or rights might be
lost by the death of his witnesses; and the adverse party might
purposely delay any suit to vindicate his claims with a view to that

(g) 2 Black. Comm. 450.

636 EQUITY JURISPRUDENCE. [CH. XLI.

very event (r). And the enlarged jurisdiction of the court to deter-
mine questions which may arise in the future has restricted the
exercise of this jurisdiction (s). If proceedings are actually pending
the remedy of a party is for a commission to take evidence de bene
esse in the action, and not independent proceedings to perpetuate
testimony (t).
§ 1509. As to the right to maintain a bill to perpetuate testimony,
there is no distinction whether it respects a title or claim to real
estate, or to personal estate, or to mere personal demands ; or whether
it is to be used as matter of proof in support of the plaintiif 's action,
or as matter of defence to repel it (u). But there is this difference
between a bill of discovery and a bill to perpetuate testimony, that
the latter may be brought in many cases where the former cannot be.
Thus, in cases which involve a penalty or forfeiture of a public nature,
a bill of discovery will not lie at all. And, in cases which involve only
a penalty or forfeiture of a 'private nature, it will not lie, unless the
party entitled to the benefit of the penalty or forfeiture waives it (x).
But no such objection exists in regard to a bill to perpetuate testi-
mony for
; the latter will lie, not only in cases of a. private penalty or
forfeiture, without waiving it where it may be waived, as in cases of
waste, or of the forfeiture of a lease, but also in cases of public
penalties, such as for the forgery of a deed, or for a fraudulent loss at
sea (y). There was formerly no jurisdiction to entertain a bill to
perpetuate testimony where a title of honour was in question. This
was remedied by statute 5 & 6 Vict. c. 69, and the statutory provisions
are now embodied in rule 35 of Order XXXVII.
§ 1510. There is also, perhaps, another difference between the case
of a bill of discovery, and that of a bill to perpetuate testimony, in
regard to a bond fide purchaser for a valuable consideration without
notice. We have seen that the former bill is not maintainable against
him (z). But as the latter asks for no discovery, and only seeks to
perpetuate testimony, which might be used at the time, if the circum-
stances called for it, and an action were brought, it does not seem
open to the same objection. And there is this rea-son for the distinc-
tion, that otherwise the plaintiff might lose his legal rights by the
mere defect of t«stiraony, which, if he could maintain a suit, he would
clearly be entitled to (a).

(r) Angell v. Angell, 1 Sim. & Stu. 83, and cases noted.
(s) West V. Lord Sackville, [1903] 2 Ch. 378.
(t) Earl Spencer v. Peek, L. E. 3 Bq. 415.
(u) Order XXXVII., rule 35 ; Earl of Suffolk v. Green, 1 Atk. 450.
(x) Ante, § § 1319, 1320, 1494.
[y) Earl of Suffolk v. Green, 1 Atk. 450; Brooking v. Maudslay, Sons S Field, 38
Ch. D. 636.
(z) Ante, § 1502.
(a) Dursley v. Fitzhardinge, 6 Ves. 263, 264; ante, § 1508, and note; Ross v.
Close, 5 Bro. Pari. Cas. 562.
§ 1509—1513.] DISCOVERY. 637

§ 1511. It follows, from the very nature and objects of such bills,
that the plaintiff, who is desirous of perpetuating evidence, must, by
his bill, show that he has some interest in the subject-matter, and
that it may be endangered if the testimony in support of it be lost (fc).
Courts of equity will not, however, perpetuate testimony in support
of the right of a plaintiff, which may be immediately barred by the
defendant (c). But if the interest be a present vested one, not liable
to such an objection, it is perfectly immaterial how minute that
interest may be ; or how distant the possibility of its coming into actual
possession and enjoyment may be. A present interest, the enjoyment
of which may depend upon the most remote and improbable contin-
gency, is, nevertheless, a present estate, although with reference to
chances, it may be worth little or nothing (d). On the other hand,
although the contingency may be ever so proximate and valuable, yet
if the party has not, by virtue of that, an estate (as in the case of
the due execution of a will of a lunatic), courts of equity will not
interfere to perpetuate evidence touching it (e).
§ 1512. If the bill is sustained, and the testimony is taken, the
suit terminates with the examination ; and, of course, is not brought
to a hearing (/). But' tiie decretal order of the court granting the
commission directs that the depositions, when taken, shall remain
to perpetuate the memory thereof, and to be used, in case of the
death of the witnesses, or their inability to travel, as there shall be
occasion (g).
§ 1513. There was, until the Judicature Act, 1873, another species
of bills having a close analogy to that to perpetuate testimony, and
often confounded with it; but which, in reality, stood upon distinct
considerations. We allude to bills to take testimony de bene esse,
and bills to take the testimony of persons resident abroad, to be
used in suits actually pending in the country where the bills were
filed (h). There was this broad distinction between bills of this sort-
and bills to perpetuate testimony, that the latter were, and could be,
brought only by persons who were in possession, under their title, and
who could sue at law, and thereby had an opportunity to examine
their witnesses in such suit. But bills to take testimony de bene esse
might be brought, not only by persons in possession, but by persons
who were out of possession, in aid of the trial at law (i). There was
(b) Mason v. Goodburne, Eep. t. Pinch, 391; Dursley v. Fitzhardinge, 6 Ves.
261, 262 ; Earl of Belfast v. Chichester, 2 Jac. & Walk. 449, 451.
(c) Dursley v. Fitzhardinge, 6 Ves. 260 to 262; Earl of Belfast v. Chichester, 2
Jac. &'Walk. 451, 452.
452. (d) Allan v. Allan, 15 Ves. 136; Earl of Belfast v. Chichester, 2 Jac. & Walk.' 451,
(e) Sackvill v. Ayleworth, 1 Vem. 105.
{/) Ellice V. Roupell, 32 Beav. 308 ; Order XXXVII. r. 38.
(g) Mason v. Goodiume, Eep. t. Pinch, 391, 392.
(h) 3 Black. Comm. 438; Gilb. For. Eoman. 140.
(i) 1 Mad. Prac. Ch. 153.
638 EQUITY JURISPRUDENCE. [CH. XLI.

also another distinction between them, which was, that bills de bene
esse could be brought only when an action was then depending and
not before (k).
§ 1514. Courts of common law might adjourn a case upon the
ground that a material witness was absent, or his evidence not
immediately available. The order was granted more reluctantly in
the case of a plaintiff than of a defendant, for the plaintiff might
withdraw the record or submit to a nonsuit (I), a privilege not now
available to him in the Supreme Court (m). But they had no authority
to issue commissions to take the testimony of witnesses de bene esse
in any case (n). But courts of equity were constantly in the habit of
exercising such jurisdiction in aid of trials at law, where the subject-
matter admitted of present judicial investigation, and a suit was
actually pending in some court (o). They would, for example, upon
a proper bill, grant a commission to examine witnesses, who were
abroad, and who were material witnesses to the merits of the cause,
whether the adverse party consented thereto or not (p). They would
also entertain a bill to preserve the testimony of aged and infirm
witnesses, resident at home, and of witnesses about to depart from the
country, to be used in a trial at law, in a suit then pending, if they
were likely to die before the time of trial might have arrived (g).
They would even entertain such a bill to preserve the testimony of a
witness, who was neither aged nor infirm, if be were a single witness
to a material fact in the cause (r). This latter case stood upon the
same general ground as the other; that is to say, the extreme danger
to the party of an irreparable loss of aU the evidence, on which he
might have relied in support of his right in the trial at law; for that,
which depends upon a single life, must be practically treated as being
very uncertain in its duration (s). In one case a commission issued
to examine two material witnesses (t). But it does not appear from
•the meagre report whether they deposed to distinct facts (w).
§ 1514a. The present practice as to taking evidence de bene esse
is regulated by Orders of the Supreme Court, 1883. Order 37, r. 5,
provides that, " The court or a judge may in any cause or matter
where it shall appear necessary for the purposes of justice, make any
order for the examination upon oath before the court or a judge or
(k) Angell v. Angell, 1 Sim. & S. 83; Ellice v. Roupell, 32 Beav. 808.
(l) Turquand v. Dawson, 1 Cr. M. & E. 709 ; Turner v. Merryweather, 7 C. B.
251. (m) Fox V. Star Newspaper Co., [1900] A. C. 19.
(n) 3 Black. Comm. 383; Macaulay v. Shackell, 1 Bligh N. S. 96.
(o) Macaulay v. Shackell, 1 Bligh N. S. 96.
(p) Moodalay v. Morton, 1 Bro. C. C. 469; Macaulay v. Shackell, 1 Bligh N. S.
96 ; Bellamy v. Jones, 8 Ves. 81.
(q) If a witness is seventy years old, he is deemed aged within the rule. Fitzhugh
V. Lee, Ambler, 65; Rowe v. , 13 Ves. 261, 262; Prichard v. Gee, 5 Mad. 364.
(r) Hankin v. Middleditch, 2 Bro. C. C. 641, and Mr. Belt's note.
(s) Shirley v. Earl Ferrers, 3 P. Will. 77.
(t) Gholmondeley v. Oxford, i Bro. C. C. 167. (u) Bidder v. Bridges, 26 Ch. D. 1.
§ 1514—1516.] DISCOVERY. 639

any officer of the court, or any other person, and at any place of any
witness or person, and may empower any party to such cause or
matter to give such deposition in evidence therein on such terms, if
any, as the court or a judge may direct." Under this rate, if the
court is satisfied either when the application is made, or upon an
application to discharge an order granted ex parte for the examination
of witnesses de bene esse, that it is not necessary for the purposes of
justice either altogether or to the extent to which it goes, then the
court ought not to grant it in the one case, and ought not to maintain
it any further than is necessary in the other. And although the fact
that a witness is seventy years of age is prima facie a good ground for
an order to exajnine him de bene esse, yet if there are a great number
of witnesses to the same fact, especially if they are witnesses as to
custom, reputation, or the like, this is not a sufficient reason, why
they should be examined under an order de bene esse (x).
§ 1515. In regard to commissions to take the testimony of wit-
nesses abroad, although they are grantable in civil actions only ; yet
they are not confined to cases purely ex contractu, or touching rights
of property; but they are grantable in cases of actions for civil torts,
although such torts may also be indictable. Thus, for example, a
commission will be granted to take the testimony of witnesses abroad,
in order to establish a justification in a civil action for a libel, although
the justification involves a criminal charge against the plaintiff, and
the libel may be the subject of an indictment (y).
§ 1516. Some confusion exists in the authorities as to the publica-
tion of the testimony in the three distinct classes of cases before men-
tioned :first, on examination of witnesses de bene esse, pending a
cause ; secondly, on examinations of witnesses in a bill, merely to prove
a will, per testes, as it is called, that is, by the subscribing witnesses;
and thirdly, on examinations of witnesses on common bills to per-
petuate testimony; as, for example, to perpetuate the testimony
respecting a will, or a deed. Owing to a change in the practice only
the third has become of importance (z). Publication is not ordinarily
allowed, during the lifetime of the witnesses, because of the dangers
incident thereto, there being no limits as to the points to which the
witnesses are examined ; but the publication is a matter resting in the
sound discretion of the court, upon the special circumstances of the
case; and it will be allowed or refused accordingly (a). In this last
class of cases (of bills to perpetuate testimony), when the examina-
tions are taken, the case is considered to be at an end ; or at least as
suspended, until the anticipated action is brought; and then, at a

(x) See the judgment of the Earl of Selborne, L.C., in Bidder v. Bridges, 26 Ch,
D. 1.
iy) Macaulay v. Shackell, 1 Bligh N. S. 96.
(z) See Evans v. Merthyr Tydfil Urban Council, [1899] 1 Ch. 241.
(a) Harris v. Cotterell, 3 Mer. 678; Barnsdale v. Lowe, 2 Euss. & M. 142.
640 EQUITY JURISPRUDENCE. [CH. XLI.

suitable period, an order for the publication thereof may be obtained

from the court upon a proper case made, such as the death or absenct!
of the witnesses, or their inability to attend the trial (b).
§ 15160-. In a late case (c) it was held that evidence taken de bene
esse in a former suit was admissible on behalf of the plaintiffs in a,
latter suit, since the issue in the two suits was the same, and there
was privity of estate between the parties in the two suits respec-
tively.
§ 1532. Here (d) these Commentaries are regularly brought to their
close according to their original design. Let not, however, the
ingenuous youth imagine that he also may here close his own pre-
paratory studies of Equity Jurisprudence, or content himself for the
ordinary purposes of practice with the general survey which has thus
been presented to his view. What has been here offered to his
attention is designed only to open the paths for his future inquiries;
to stimulate his diligence to wider and. deeper and more comprehensive
examinations ; to awaten his ambition to the pursuit of the loftiest
objects of his profession ; and to impress him with a profound sense of
the ample instruction and glorious rewsirds which await his future
enterprise and patient devotion. in the study of the first of human
sciences — the Law. He has as yet been conducted only to the
vestibule of the magnificent temple reared by the genius and labours
of many successive ages to Equity Jurisprudence. He has seen the
outlines and the proportions, the substructions and the elevations, of
this wonderful edifice. He has glanced at some of its most prominent
parts, and observed the solid materials of which it is composed, as
well as the exquisite skill with which it is fashioned and finished. He
has been admitted to a hasty examination of its interior compartments
and secret recesses. But the minute details, the subtle contrivances,
and the various arrangements which are adapted to the general
exigencies and conveniences of a polished society, remain to invite his
curiosity and gratify his love of refined justice. The grandeur of the
entire plan cannot be fully comprehended but by the persevering
researches of many years. The masterpieces of ancient and modem
art still continue to be the study and admiration of all those who aspire
to a kindred excellence ; and new and beautiful lights are perpetually
reflected from them which have been unseen or unfelt before. Let
the youthful jurist who seeks to enlighten his own age or to instruct
posterity, be admonished that it is by the same means alone that he
can hop© to reach the same end. Let it be his encouragement and

(b) Morrison v. Arnold, 19 Vea. 671; Earl of Abergavenny v. Powell, 1 Mer. 433;
Teale v. Teale, 1 Sim. & S. 385.
(c) Llanover v. Homfray ; Phillips v. Llanover, 19 Ch. D. 224. See Evans v.
Merthyr Tydfil Urban Council, [1899] 1 Ch. 241.
(d) § § 1617 to 1531 dealt with the Bubject of Peculiar References in Equity ; these
have now no existence, and the sections are therefore omitted.
§ 1516a— 1532.] discovery. 641

consolation that by the same means the same end can be reached. It
is but for him to give his days and nights with a sincere and constant
vigour to the labours of the great masters of his own profession, and
although he may now be but a humble worshipper at the entrance of
the porch, he may hereafter entitle himself to a high place in the
ministrations at the altars of the sanctuary of justice.

"
 INDEX.
Note. — The references are to the sections.

ABATEMENT
in the case of debts, 554
in the case of legacies, 555

ACCIDENT
defined, 78, 93, 101, 102
not exclusively cognizable in equity, 60, 76
when entertained at law, 79, 80, 81
concurrent equitable jurisdiction, 76, 79, 80, 81, 109
conditions of relief in equity, 82, 85
relief in cases of lost or destroyed bonds, notes, and other instrunaents, 81-f
of penalties, 89-93
of defective execution of a power, 94-97, 169-173
of express contract, 100-102
where parties stand equally innocent, 103, 104
where the equities are equal, 106
relief against a purchaser for value, 108

ACCOUNT,
common law action for, 442-449, 451, 504
upon balance of account, 523
concurrent jurisdiction in equity, 441-453
foundation of, nature of remedy, 450-453
to prevent multiplicity of suits, 450, 464, 512, 514
to obtain discovery, 451, 458, 462-464, 512, 514
in cases of accident, fraud, and mistake, 452, 511, 513
in cases of mutual accounts, 458, 459
where the items are all on one aide, 458, 459
in cases of agency, 462-468
between co-owners of property, 466
between trustees and beneficiaries, 466, 512
between partners, 453, 466, 671
in cases of apportionment, 469-489
in cases of average, 490-491
in cases of contribution, 492-505
in cases of liens and pledges, 506, 507
in cases of torts, 467, 511, 512, 513
in cases of wast«, 515-619
between landlord and tenant, 508
in cases of adverse claims, 510-514
in cases of dower, 512
in cases of elegit, 510, 511
all parties deemed actors, 522
reference to master to take, 450
special directions as to taking, 625a
penal order, 468, 526o
644 INDEX.

ACCOUNT— contmued.
impeaching accounts, on the ground of accident, fraud, or mistake, 623
re-opening, 523, 524
liberty to surcharge and falsify, 525
settled accounts, 523, 526, 627
effect of provision " errors excepted," 525a, 526
effect of the Statute of Limitations and laches, 529

ACQUIESCENCE,
effect of, 322a, 926a

ADEMPTION
of legacy by other provision, 1099-1122

ADMINISTEATION,
former jurisdiction of common law and ecclesiastical courts, 635-538, 539-541
concurrent equitable jurisdiction, 530-533, 642, 543, 560
at the instance of personal representative, 544, 545, 548a
at the instance of a single creditor for his own debt, 546
creditors' bills, 546-549
statutory jurisdiction in bankruptcy, 543
in the county court, 543
bill by personal representative for discovery of assets, 546a
effect of decree upon the remedies of creditors, 548, 549
assets, defined, 631
legal assets, 551
administration of, 553, 557
equitable assets, 552
administration of, 64/, 550, 554, 567
liens and charges, 553
abatement in the cases of creditors, 564
of legatees, 555, 656
apportionment rule in Howe v. Lord Dartmouth, 475o
marshalling, 557, 574a
does not interfere with creditor's right to elect between alternative
remedies, 660, 662
where a creditor has two funds, 558, 662, 563
where one mortgage covers two estates, 559, 562, 664
where mortgagee exhausts the personal estate, 564, 564a
does not prejudice creditor's right to be paid, 561
in favour of legatees, 665-569
in favour of widow, 568
in favour of heir or devisee , 570
practice borrowed from civil law, 567
primary liability of personal estate for payment of debts, 571
exemption of, by testator, 572-574
effect of Eeal Estate Charges Acts, 574a
order of application of assets, 577
where assets are collected under an ancillary or foreign administration, 583
following assets, 580-682

ADMINISTEATOE
frauds by, 422-424, 679, 680
waste by. 579, 580
collusion by, 422-424

ADVANCEMENT,
purchase in the name of a son, 1202-1205
in the name of a wife, 1204
in the name of a stranger, 1201, 1201a, 1202
 INDEX. 645

AGENT,
fiduciary position of agent, 313, 316, 4G3
duty to keep accounts and preserve vouchers, 462, 468
principal's property distinct from his own, 468
survival of actions for wrongs in equity, 467
action for money had and received, 463, 464
for account, 462-468

AGEEBMENT,
effect of fraud or undue influence, 260, 265-267
effect of mistake, 153a

AGKEEMENT IN WRITING,
effect of mistake, 152-168
admissibility of parol evidence, 157-164
effect of the Statute of Frauds, 158, 330
ALIENATION,
restraint on, 1429o

ALIMONY,
jurisdiction to decree, 1421, 1472

ANCIENT LIGHTS,
injunction against obstruction, 926
ANNUITIES
during widowhood, 285

ANTICIPATION,
restraint on, 14290

APPOINTMENT. See Power.

relief, where defective, 94-98, 169-173
affected by fraud, 252, 255-255b

APPOETIONME-NT
of contracts, at law, 470-472, 475, 477, 478
in equity, 104, 469-488
of charges and incumbrances, 477, 483-488
of premiums, in cases of apprenticeship, 89, 472
in partnership cases, 89, 472
of rent, 475, 476
of maintenance, 479
rule in Howe v. Lord Dartmouth, 475o

APPRENTICE,
apportionment of premium, 89, 472

APPROPRIATION
of payments, 459c-459!
ARBITRATION,
civil law as to, 1460-1463
agreement to refer, when enforced in equity, 670, 1457
the arbitrator, not compelled to make award, 1457
when bound to disclose grounds of award, 1457, 1498
misconduct of, 1458o
the award, when specifically enforced in equity, 1451-1459
effect of fraud, mistake, or accident, 1452
mistake of law, 1451, 1455
mistake of fact, 1456
646 INDEX.

AERANGEMENTS, FAMILY, 121-133, 232

ASSETS,
legal, 531, 651
equitable, 551, 552
marshalling of, 557-576
ASSIGNMENT
of dower, equitable jurisdiction, 624-630a
in fraud of creditors, 369-381
for benefit of creditors, 972, 1036, 1036a, 1037
of choses in action, validity at law, 1039, 1040, 1055
equitable assignments, informal, 1041
what property or interests may be assigned, 294, 1040, 1040b, 1041, 1055
how affected by champerty and maintenance, 1040c, 1048-1055
priority by notice, 1047, 1047a
voluntary, not enforced, 972, 1196
when revocable, 972, 1045, 1196
assignment under the Judicature Act, 1039, 1041
AUCTION,
damping sales, 293
employment of puffer, 293
purchase by trustee of trust property at, 322
sale of post obit bonds at, 347
as evidence of value, 335a

AUDITORS,
duty of in action of account, 447, 448

AULA REGIS, 36

AVERAGE
defined, 490
derived from Ehodian law, through civil law, 490
equitable jurisdiction in cases of, 490, 491
present concurrent jurisdiction of Admiralty Division, 491
AWARD. See Abbiteation.

BAILIFFS AND RECEIVERS,

who were, at common law, 446, 447
remedies of, at common law, 446, 447

BAILMENT,
remedy at common law, 464, 533, 1041
equitable jurisdiction in cases of, 1041

BANKRUPTCY, TRUSTEE IN,

when subject to equities, 1411

BARGAINS,
catching, 188, 334, 335, 335c
unconscionable, 244-250, 381
with expectant heirs and reversioners, 334-348
BENEFICIARY. See Tehst.
who is, 321

BILL OF THE PEACE, 852-860

 INDEX. 647

BILL QUIA TIMET, 826-851

BILL OP DISCOVEEY, 31, 1480-1804a

BILL TO PEEPETUATE TESTIMONY, 1505-1512

BILL OP GONPOEMITY,
what it was, 544

BONA PIDB PURCHA6EES,

protection of, 64c, 108, 381, 406, 411, 416, 425, 426, 486
T30ND,
lost, relief in cases of, 81-89
of suretyship, relief in case of, 498, 498a, 499-499o
reforming on ground of mistake, 162-166
with penalty, relief in caeesV, 89, 1312, 1316o
for assisting in an elopement, 264
fraudulent, upon intended marriage, 266-271
for giving consent to marriage, 266, 267
post obit, 342, 343, 347
obtained by solicitor from client, 312
lacking bond debt, 418

BOUNDARIES,
confusion of, concurrent jurisdiction in cases of, 99a, 609-622
rule of civil law as to, 614
common law remedy in cases of, 616-618
grounds for exercise of jurisdiction, to prevent multiplicity of suits, 616-619,
621
in cases of fraud, 619
from relation of parties, where a special equity is set up, 616, 616, 620,
622
procedure, 619

CANCELLATION
of deeds, when decreed, 692-707
illegal on their face, 700
who may require, 707
upon what terms, 693-698, 707
by parties by mistake, 167
of will, by accident, 99

CATCHING BARGAINS,
relief against, 188, 334, 335
statutory extension, 335, 385b

CAVEAT EMPTOR,
principle stated, 212

CESSION,
doctrine of civil law as to, 494, 635-637

CESTUI QUE TRUST. See Trust.

CHAMPERTY
defined, 1048
effect on contracts and conveyances, 294, 1049-1054
648 INDEX.

CHANCELLOR,
authority and dignity of, 35-41
character o£ Cardinal Wolsey as, 43
Sir Thomas More, 43
Lord Bacon, 43
Lord
Lord Nottingham, '44
Hardwicke, 44

CHANCERY,
court of, 35-48

CHARITIES,
history of equity jurisdiction, 1137-1154!)
modern statutory jurisdiction of charity commissioners, 1159
what are now deemed, 1155-1164, 1182, 1183
statutory definition of, 1160
how favoured, 1068, 1165-1174, 1179
gifts to, how construed, 1164, 1183, 1191ffi
uncertainty of objects, 1166, 1169, 1176, 1181
doctrine of cy-pres, 1169, 1170, 1170o, 1176, 1177
defects in conveyances, 1171
surplus, how applied, 1178, 1181
of land, 1186, 1193
marshalling of assets in favour of, 1180
administration of trusts by court, 1187-1191a
by crown, 1190, 1191
by trustees, 1191, 1192
rule against perpetuities as applied to, 1192a
jurisdiction in cases of foreign charities, 1184, 1186

CHATTELS,
specific delivery of. when decreed, 708-710, 717-720
injunction to prevent transfer of, 906, 907

CHILDREN. See Parent and Child.

CHOSES IN ACTION,
King may assign or take an assignment of, 1039
equitable assignment of, 1040
assignment under Judicature Act, 1039, 1041

COMPENSATION IN CIVIL LAW

defined, 1438-1444

COMPENSATION OR DAMAGES IN EQUITY

in cases of partition, for owelty, 654
for improvements, 655
in cases of specific performance of land, 794-7966
of chattels, 723

COMPOSITIONS
in fraud of creditors, 378-381
creditors' trust deeds, 1036o, 10366

COMPROMISES.
when valid, 121-132, 135
mistake of law, 121-131, 135
peculiar eoQSiderations in the case of family arrangements, 132
 INDEX. '649

CONCEALMENT,
equitable relief in cases of, 204, 220
in cases of sales, 212
in cases of suretyship, 215, 324, 383
in cases of insurance, 216
in fraud of marriage, 268-273
by party in fiduciary position, 135, 218, 308-323a
in compositions with creditors, 378-380
of title, 385-3930
of crimes, agreements for, 294

CONDITIONS
in restraint of marriage, 274-291
as to consent to marriage, 257, 284, 291
how viewed at common law, 1302-1307a
defined, as possible or impossible, 1304, 1307o, 1311
as precedent or subsequent, 1306, 1307
as illegal, 1304, 1306, 1307
as repugnant, 1304, 1306, 1307, 1312
penal, when relieved against in equity, 1312-1316a
of re-entry, when relieved against in equity, 1321-1324
of forfeiture, 1325
waiver of, 1325o

CONFIRMATION
of void or voidable contracts, 263, 345

CpNFORMITY, BILL OF,

What it was, 544

CONFUSION
of boundaries, 99a, 609-622
of property, 468, 623

CONSENT
in cases of contract, 222, 223
to marriage, conditions as to, 257

CONSIDEEATION,
good or valuable, defined, 354
valuable to support contract, 787, 793(i, 973, 987
meritorious to support contract, 787
inadequacy of, in cases of contract, 150, 244, 245, 246
in cases of conveyance, 246, 354, 355, 1196-1198
where parties cannot be placed in statu quo, 250
opinions of other jurists, 247-249

CONTINGENT INTERESTS AND RIGHTS

assignable in equity, 1040, 1055

CONTRACTS,
consent necessary in, 222, 223
consent of lunatic or person mentally deficient, 223, 237, 233
consent of drunkard, 230, 231
effect of duress, 239
apportionment of, 89, 468-472
unreasonable, when binding, 237, 238, 331-335
650 INDEX.

CONTEACTS— continued.
effect of illegality, 257, 274-303
contracts affecting public justice, 294, 1048, 1049
contracts for sale of offices, 294, 295
contracts of wager, 294, 303
contracts in restraint of trade, 292, 293
usurious contracts, 301, 302
arising from turpitude, 296-300
marriage brokage contracts, 260-263
when joint and several, 162-164, 676
right to specific performance, 708-711, 712-788
voluntary contracts, when enforced or not, 705a, 787, 793o, 973, 987
operative to change character of property, 790-793
where capable of confirma,tion or not, 263, 345

CONTEIBUTION,
jurisdiction in cases of, 490-605
among co-owners to recoup expenditure or discharge incumbrances, 477, 478,
483-485, 505
between sureties, 492-505
between legatees in case cf'deficiency of assets between partner, 504
under doctrine of marshalling, 562-571
CONVERSION
of realty into personalty and e contra, 790-793, 1212
election against, 792, 793

CONVEYANCES, FRAUDULENT, 350-378, 425-436

COPIES OF DEEDS,
right to where claimed in privity of title, 704, 704a

COPYHOLD,
duty of copyholder to preserve boundaries, 620

COPYRIGHT,
injunction to restrain infringement, 930-942
COURT ECCLESIASTICAL,
jurisdiction over matters of administration, 534-541
over legacies, 590
over trusts, 595
adoption of their rules by courts of equity, 278

COURTS OF CHANCERY,
origin of Court of Chancery, 33 (note), 38-55, 76
its antiquity, 39-47
bound by precedents, 18-23
procedure, as to parties, 27-30, 478, 485
as to process and remedies, 27-30, 439, 492
as to mode of trial, 31
as to evidence, 31, 536
imposition of terms, 27, 64e, 85, 1504
its general jurisdiction, 12-17, 24-29, 32, 33, 59-62
jurisdiction of, merged in High Court, 34, 48
acts in personam, 743, 744
to stay proceedings in other courts, 55a
to stay proceedings in foreign courts, 899
in respect of lands out of jurisdiction, 743, 744
in respect of bare money claims, 1255
in charity cases, 1136-1193
 INDEX. 651

COURTS OF CHANCB'RY— continued.

jurisdiction of, over lunatics, 1362-1365a
in the case of infants, 1327-13616
division of, into concurrent, exclusive, and auxiliary, 33, 49, 75-77
concurrent jurisdiction, in matters of account, 441-529
in matters of administration, 530-588
in cases of legacies, 536, 539, 590-608
in matters of fraud, 59, 184-243
in matters of accident, 78-109
in cases of mistake, 110-177
in cases of waste, 864, 872, 909-913, 916-919, 928
in cases of nuisances, 920-927
in cases of trespass or other invasion of proprietary rights, 930-957
in cases of confusion of boundaries, 609-622
in cases of partition, 646-658a
in cases of dower, 624-630
exclusive jurisdiction, in matters of trust, 59, 960-982, 988-996a, 998-999o,
1058-1073, 1195-1295
in cases of fraud, 59, 244-257
in cases of mortgages, 1004-1035o
in cases of specific performance, 30, 712-796b
in cases of equitable waste, 515, 518a, 914-915a
in cases of partnership, 659-683
equitable assignments of choses in action and expectancies, 1036-1057
in cases of liens, 506, 1215-1246
auxiliary jurisdiction of, to supplement legal remedies,
discovery and inspection, 1483-1604o
to perpetuate testimony, 1505-1512
to take evidence de hene esse, 1518, 1514
to take evidence abroad, 1515

COURTS OP COMMON LAW,

equitable jurisdiction of court of exchequer, 34, 519
jurisdiction of, in cases of account, 441-445
in cases of legacies, 591
to enforce specfic performance, 30, 708
to enforce trusts, 29, 61, 76
in cases of fraud, accident and confidence, 61, 76
in cases of lost instruments, 81, 82
in cases of suretyship, 492
distinction between, and courts of equity, 19
in relation to parties, 26-28, 82, 492
in relation to remedies, 439

COVENANTS,
specific performance, 716-738
how far operative as a lien, 1231, 1249

CREDITORS,
defective execution of powers aided in favour of, 169, 170
not put to his election as to remedies, 1092
administrator at the instance of, 646-549
marshalling of assets in favour of, 558-659
marshalling securities in favour of, 633-645
rights of under trust or power for payments of debts, 1244-1249
by judgment, enforcing rights of to execution, 829, 1216-1218
enforcing lien by sale, 1216, 1216a
execution against one of several partners, 677
of firm, preference over separate cerditor, 675, 676
652 INDEX.

CEEDITORS— continaed.
creditors trust deed, 972, 1036o, 1037, 1045, 1196
constructive fraud in cases of, 378-380
conveyances in fraud of, 352-373
CEOWN,
its jurisdiction over infants, 1328, 1332
over lunatics, 1362-1364
assignment of choses in action by or to, 1039

CUMULATIVE LEGACIES, 1123a

CY-PEES,
construction in cases of gifts to charity, 1169-1170a, 1176
compliance with conditions, 257, 291

DAMAGES AND COMPENSATION,

where decreed in equity, 794-7966
liquidated damages, defined, 1318
no equitable relief against, 1318

DE BENE ESSE,
examination to preserve testimony, 1513-1516a
DEBTS,
trust or charge on land for payment, 1060-1064a, 1244-1249
exoneration of land, 1246-1249
who may execute, 1060-1062
acceleration of payment, 1216, 1216a
DEEDS,
execution obtained from intoxicated person, 230, 231
equitable mortgage by deposit of, 1020, 1231, 1232
delivery and cancellation, in cases of fraud, 694-698
of deeds against public policy, 695
of deeds against conscience, 698, 700
of title deeds, 703-705o, 842
of deed functum officio, 705-706*
whether deed void or voidable, 698-701
at whose instance, 706, 706b
on what terms, 707
discovery of, 704, 1485, 1490-1493, 1497, 1504, 15040
DELAY. See Statute of Limitations.
generally discountenanced in equity, 64a
in cases of account, 529
in cases of specific performance, 771, 776
in cases of suretyship, 326

DEVASTAVIT,
liability of purchaser from executor for, 580, 581

DISCOVERY,
bill for, 31
in cases of account, 451
in cases of administration, 538
in cases of agency, 462-464
in cases of arbitration, 1498
in cases of partition, 649
in cases of partnership, 660
in cases of actions to recover land, 1504o
 INDEX. 653

DISCOVEBY— contmued.
discovery in aid and discovery incidental to an action, 1482, 1483
difference between stated, 1489
exclusvely an equitable remedy, 1484, 1485
not applicable to proceedings out of the jurisdiction, 1483
party seeking presumptively entitled to, 1488
grounds of objection stated, 1489
applicant must have interest in the subject-matter, 1490-1493
only applicable to civil suits, 1494
not in cases of forfeiture, 1494
must be relevant to the issue, 1497
only against party to suit, 1499
against purchaser for value without notice, 1502
privilege, 1496
against officer of corporation, 1501
granted on equitable terms, 1504
civil law as to, 1486, 1487

DOCUMENTS, LOST AND DESTROYED,

equitable relief in cases of, 81-88, 252, 264

DOMICIL,
law of, affecting administration of estates, 583

DONATIONS MOETIS CAUSA,

defioed, 606
subject to a trust, 607a
derived from civil law, 607

DOUBLE POETIONS, 1109-1115

DOWER,
a legal right, 624, 626, 628, 630
concurrent jurisdiction in equity, 620-630o
account of rents and profits, 512, 626
doweresB favoured in equity, 629, 680
discovery and relief against purchaser for value without notice, 628, 630
election between, and other provision, 1088

DRAMATIC PERFORMANCES,
injunction to prevent piracy by, 950

DRUNKENESS,
effect of on contracts and conveyances, 230-232
DURESS,
relief in cases of, 239
unconscionable and improvident bargains, 237, 244-251, 331, 334-338

ECCLESIASTICAL COURTS,
jurisdiction of, 278, 536, 590
ELECTION,
alternative meanings of .the word, 1076, 1076, 1080
equitable doctrine of, 1075-1097O
by persons under disability, 1097b
in case of creditors, 1086, 1092
to what instruments applied, 1080-1087a
equitable doctrine of, raises case of compensation, 1083, 1084
654 INDEX.

ELECTION— continued.
when operatve as a forfeiture, 1075-1077, 1086
what acta amount to an election, 1097
time for making, 1097
effect of laches, 1097
in cases of conversion, 793
civil law as to, 1078

ELEGIT,
account in cases of, 510, 511
acceleration of payment, 1216a
right to sale, 1216a

ELOPEMENT,
bonds for assisting in, 264

EQUITABLE ASSETS,
defined, 552

EQUITY,
nature and character, 1-34
its meaning in jurisprudence, 1-4
author's definition of, 25
earlier definitions quoted, 1, 2, 3, 7-19
its meaning in English jurisprudence, 25-33
its meaning in Eoman law, 2, 4, 5
jurisdiction, originally unfettered by precedent, 21-22
early founded on civil law, 23
now bound by precedent, 18, 19
does not mitigate rigour of common law, 11, 12
does not control legislation, 6-8, 14, 15
general consolidation of divided jurisdictions in England, 24, 48

EQUITY TO A SETTLEMENT, 1402-1420

" EEEOBS EXCEPTED," 525o, 526

EVIDENCE,
distinction in methods of proof, 31
parol, to prove mistake, 151a, 157-161, 179
to prove fraud, 190
to rebut presumptions, 1102, 1202, 1205
discovery, 1482-1504o
examination de bene esse, 1513-1516a
perpetuating testimony, 1505-1612

EXECUTOR AND ADMINISTRATOE,

fraudulent dealings with estate or debtors, 422-424, 579-581
when a trustee, 693-595, 1067, 1208, 1209
power given to, when a trust, 1060-1065
when it survives, 1062
to carry on testator's trade, 579a
payment into court, when ordered, 839
title deeds, deposit in court, when ordered, 704, 842
delivery to parties, entitled when ordered, 703
liability for acts or defaults of co-executor, 1281, 1283, 1284

EXPECTANTS. See Heirs.

relief of against, bargains and sales of property, 341-348
 INDEX. 655

FAMILY COMPROMISES
supported on principles of policy, 129, 132
invalidated by concealment of material facts, 217
for division of property, 265

FIDUCIARY RELATIONS,
constructive fraud in cases of, 218, 308-323a
FINE
defective, not relieved against formerly, 178
FIRE
not an accident entitling to relief, 101, 102

FOREIGN ADMINISTRATION,
proceedings- in aid, 583
FORFEITURE. See Penalty.
when enforced in equity, 1319, 1320
an answer to discovery, 1494
when relieved against, in cases of bonds, 89
in cases of mortgages, 89
for non-payment of rent, 1315
in other cases, 1315, 1319-1325
statutory power, 1324a
waiver of, 1323, 1325, 1325o

FRAUD, ACTUAL OR POSITIVE,

cognizable at law as well as in equity, 60
where no relief at law or in equity, 61
relief in equity where none at law, 193
concurrent jurisdiction in cases of, 257-257a
origin of equitable jurisdiction, 185
matter of proof and necessary influence, 190
definition of by Pothier and civilians, 186
never expressly defined by courts of equity, 186
five classes enumerated by Lord Hardwicke, 188
fraud by assertion of that which is false, 191-203
may be by acts as well as by words, 192, 293
liability of principal for fraud of agent, 193
reckless statements, 193
extravagant statements, 199, 202
must be material, 191, 194-196
must be relied on by party, 197-202
means of knowledge of party defrauded, 191, 199
fraud by concealment of that which is true, 204-217
duty to disclose, 210, 214-217, 220, 324
duty of disclosure by purchaser, 205, 207
rule of caveat emptor, 208, 209, 212, 213
definitions of concealment, 204-207
fraudulent appointments, 262, 265-2556
fraudulent dealings by executors or administrators, 422-424
in cases oj wills, 184, 238, 439, 440
doctrine of civil law, 211-213

FRAUD, CONSTRUCTIVE,
defined, 258, 259
matters of public policy, 260
marriage brokage contracts, 260-263
bond for assistance in an elopement, 264
bond for exercising influence over third party, 265
656 INDEX;

PEAUD, CONSTEUCTIVE— continued,

matters of public policy — continued.
bonds and transactions in fraud of marriage, 266-273
contracts in fraud of public rights and duties ,.294
contracts for sale of offices, 295
contracts to suppress criminal prosecutions, 294
contracts of wager, 294, 303
confirmation, 306
relief where parties are participes criminis, 297-300
fraud on third parties, 237, 343, 382-391
fraud on creditors, 352-371, 369, 378-381
fraud on subsequent purchasers, 352, 425, 426
unconscionable and improvident bargains, 237, 244-251, 331, 334-348
protection of purchaser for value without notice, 369b, 381, 410, 436
from fiduciary relationship, parent and child, 309
legal adviser and client, 219, 310-313
medical adviser and patient, 314
spiritual adviser and penitent, 323
master and servant, 323
principal and agent, 315, 316
guardian and ward, 313, 317-320
trustee and beneficiary, 310, 321, 322, 1261
in case of directors, 323a
in case of promoters, 323a
PEEIGHT
to be earned, assignment of, 1055

GAMING-
contracts, arising from, 294
securities to secure losses by, 303
GENBEAL AVEEAGB, 490, 491
GIFTS
by client to solicitor, 310-313
in prejudice of creditors, 353, 375
GUAEANTY,
avoided by concealment of material facts, 215, 383
GUAEDIAN,
appointment and removal of, 1338-1342
statutory jurisdiction, 1342a
powers in respect of ward, 1340
dealings with property of ward, 488 note, 1366, 1357
dealings between, and ward, in regard to property, 317-320
foreign guardians, jurisdiction over, 1361b

HEIELOOMS,
specific delivery of, 709
injunction to secure preservation of, 956
HEIES AND EXPECTANTS,
agreements of, to share estate between themselves, 265
bargains with, 334-348
statutory modification, 338o
remedy irrespective of age, 335
sale by auction as evidence of value, 347
confirmation of, 345, 346
marshalling of assets, with respect to, 570
 INDEX-. 657

IDIOTS, 222-230, 1362-1365o

ILLEGALITY
effect on contracts, 257a, 274-303
relief in cases of, 61, 294-304, 696-701
ILLICIT INTERCOUESB,
agreement for, 296
relief in cases of, 297, 299

IMPLIED TEUSTS, 1195-1295

arising ex maleficio, 439, 1198
IMPROVEMENTS
on lands of another, relief for, 385, 655, 1234-1238
lien for, 1234-1238
civil law rule, 1239
INCUMBRANCES,
merger on payment off, 486
apportionment of, 487
keeping down interest, 488, 838
appointment of a receiver, 837, 838
concealment of, 212
INFANT,
contracts of, 240-242a
fraud of, 385
partition by, 652, 658a
keeping down interest on incumbrances, 488 note
jurisdiction in equity over, 1327-1365
parental rights and duties, 1341-1342a
civil law as to, 1350
appointment and removal of guardian, 1338-1342
statutory jurisdiction, 1342a
jurisdiction over person of, 1340, 1841
over property of, 1341, 1356, 1357
over foreign infants, 1361a
maintenance of, 1354-1355o
apportionment of, 479
ward of court, 1352-1355, 1359-1361
INJUNCTION,
civil law as to, 866-870
nature of, 861-865, 869, 871, 872
discretion to grant or refuse, 862, 863, 925, 926
in cases of foreign suits, 899
to restrain alienation of property, generallyj 843, 844, 905-908, 953-957
pendente lite, 907, 908, 953
to prevent waste, 909-919
in cases of nuisances, 920-927
to prevent infringements of copyright, patents and trade marks, 930-942,
950, 951
to prevent improper use of another's name, 951
to prevent publication of private MSS., letters, &c., 943-949
to prevent disclosure of trade secrets, 952
to protect title of purchaser, 951b, 958
to restrain the publication of a Jibel, 961d
to restrain the commission of torts out of the jurisdiction, 951c
to restrain a breach of contract, 667, 668, 958, 958o
by way of execution, 959
necessity for "clean hands," 951a
civil law as to, 865-868
E.J. 42
658 INDEX.

INSANITY
defined, 230
of partner, cause for dissolution, 673, 673a
INSPECTION
of deeds and instruments, 704, 704a

INSUBANCE,
mistake in policy, 158
duty of disclosure, 216
INTEEEST
on mortgages, apportionment of, 479
keeping down, 487, 488
INTERPLEADER
at law, 801-805
jurisdiction in equity, 806-824
affidavit of no collusion, 809
present practice, 824o

INTOXICATION,
definition of, 230
equitable relief in cases of, 230-232
INVENTIONS,
patented, infringement of, 930-934
INVENTORY
in ecclesiastical courts, 537
in favour of legatee, 604

JOINT TENANTS,
accounts between, in equity, 466
contribution between, 505
lien for expenditure, 1234-1237
JOINTRESS,
equity of, 1504
discovery of title, 707, 1504
when entitled to lien on land, 1249

JUDGMENT,
at law, form of, 26, 27, 76
when a lien, 1216
marshalling securities, 6336
fraud in obtaining, effect of, 252

LACHES. See Limitations, Statutes op.

discountenanced in equity, 64a, 629
effect of, in cases of specific performance, 771, 776
in cases of suretyship, 324-326
LAND,
equitable doctrine of conversion, 790-793
verbal contract respecting, 752-768
charge of debts and legacies on, 552-555
LAPSE OF TIME,
how it affects equitable rights, 64o, 326, 529, 771, 776
 INDEX. 659

LEGACY,
conditional on claim, 93
fraud in prevention of gift, 256
gift or revocation of under mistake, 179
assent of executor to, when required, 539, 540, 591
jurisdiction of ecclesiastical courts, 536-639, 590
of common lavr courts, 539, 591
of court of chancery, 592-608
securing assets for payment of, 541, 603
securing settled legacy, 604
marshalling of assets, 565-570, 573, 574
in case of charitable legacies, 569, 1180
construction of, 1067-1073
election in cases of, 1076, 1077, 1080
satisfaction or constructive ademption of, 1109-1123
refunding, 503, 1251

LETTEES,
injunction to prevent publication of, 944-949

LIEN,
definitions of, 506, 1215, 1216
when lost at law, 1216
equitable jurisdiction in cases of, 506, 1217
of vendor, for purchase money, 506, 1217-1233
applies to equitable interests in settled personality, 1222
in favour of his personal representatives, 1227
against persons claiming under vendee, 1228, 1229, 1231-1233
waiver of, 1224-1226
of purchaser, 506, 1234, 1236, 1237
by deposit of title deeds, 1020
by deposit of money for special circumstances, 1231
on land, by covenant, 1231, 1249
in favour of jointress, 1249
of partners, 1243
of part-owners of ship, 1242
contribution between purchasers, 484
of joint creditor on partnership assets, 1253
of creditor of one partner on partnership assets, 677
of creditors under charge of debts, 1244-1247
for repairs and improvements, 1234-1239
for work on personal property, 506, 1240
enforced by sale in equity, 1216a

LIMITATIONS, STATUTES OP,

in equity, in the case of legal demands, 529
in the case of equitable demands, 64o, 629
in the case of mortgages, 1228a, 1228!)

MS PENDENS
as constructive notice, 406-407
registration of, 406
alienations pendente lite, injunction restraining, 906-908

LOST INSTEUMENTS,
equitable relief, in the case of lost deeds and bonds, 81-84, 87
in the case of negotiable securities, 85, 86
proof of loB8 esaential, 88
660 INDEX.

LUNACY,
jurisdiction of Court of Chancery, 1364, 1364a
of chancellor, 1335, 1386, 1362-1365
of lords justices, 1362, 1364
over foreign lunatics, 1365a
procedure on inquisition, 1864, 1365
definition of, 230
contracts of lunatics, 222-230
of mentally deficient, 222, 284, 237, 238
doctrine of civil and Scottish law, 239 note
maintenance of lunatics, 1364, 1364a

MAINTENANCE AND CHAMPERTY,

defined, 1048-1066
effecfon contracts and assignments, 294, 1048, 1049
MAINTENANCE
of infant, 1854-1865o
apportionment in cases of, 479
of lunatic, 1364, 1364a
of wife, 1421-1426
MAERIAGE,
consent to, provisions requiring, validity and effect, 257, 258
contracts and conditions in restraint of, 274-290
in restraint of second marriage, 285
marriage brokage contracts, 260-263
assisting, in elopement , 264
promoting, rewards for, 266
separation, conditions for promoting, 291
separation deeds, 1427

MARRIAGE SETTLEMENT AND ARTICLES,

fraudulent agreements to defeat marriage settlements, 267-273
executed and executory provisions, construction of, 983-985
marriage articles, who may enforce, 986, 987
what may be settled, terms of years and personalty, 968, 990
estates pur autre vie, 989, 990
trustees to preserve contingent remainders, 991-996o
marriage settlement, reforming by articles, 159, 160

MARRIED WOMEN,
rights and liabilities at law and in equity, 1366-1370
her separate property in equity, 1872, 1378-1380, 1391-1398
restraint on anticipation, 243, 1429o
dispositions of. 1391-1897
in favour of husband, 1395, 1396
contracts of in equity, 1872, 1378-1880, 1391, 1392
separate trading, 1385-1387
frauds of, 243, 385
defective execution of power by, 97
gifts from husband to wife, 1374-1377
maintenance or alimony in equity, 1421-1426
separation deeds, their validity, 1427, 1428
equity to a settlement, 1402-1420
in the case of foreigners, 1409
who may assert, 1417
against whom, 1410-1414
when waived or lost, 1416-1419a
Married Women's Property, Acts, 1429o
 INDEX. 661

MAESHALLING OF ASSETS
in administration, 550-568
in favour of charities, 569, 1180

MAESHALLING OP SECUEITIBS,
concurrent jurisdiction in cases of, 633-645
cannot be invoked by the debtor, 640
there must be a common debtor, 642
depends upon the equities of the parties, 642-645
doctrine of the civil law of substitution and cession, 635-637, 641

MASTEE OP THE EOLLS,

jurisdiction of, 43 note

MAXIMS,
equity follows the law, 64-64!) , 243, 553
equity acts by analogy to the law, 64o, 812, 813
where there is equal equity, the law prevails, 64c
the first in point of time prevails, 64d
equality is equity, 64/, 555, 558
equity looks upon that as done which ought to be done, 64^, 790-793
who seeks equity must do equity , 64e
who seeks equity must come with clean hands, 267o, 951ffl
in pari delicto, potior est conditio defendentis , 61, 257o, 297, 298, 422
MISTAKE,
concurrent jurisdiction in cases of, 110-179
defined, 110
of law, when relieved against, lll-138a
in cases of compromise, 117-122, 129-133, 135
of fact, 140-153O
must be material, 141
presumption of, 162-164
evidence, 157-161
effect of the Statute of Frauds, 158
of title, 124, 124a, 142, 143
in expression, 168
unilateral, duty of disclosure, 145-151
errors in accounts, 525a, 526
in written instruments, 152-161
presumption of mistake, 162-164 ,
relief in equity, against parties and privies, 165
against purchaser for value, 139, 165
specific performance of rectified instrument, 156, 161
expenditure on property of another by, 385
defective fines and recoveries, 178
in wills, 179

MODUS
in lieu of tithes, 479, 519

MONEY,
no equitable relief for bare money claim, 794, 1255
deemed land, and land money, 790
payment into court, 809, 824, 827, 828, 839-841
MOETGAGB,
what property may be mortgaged, 1021
of land, a pledge in equity, 1013-10166
equity of redemption, nature of, 1013-1017, 1019, 1020, 1023
estate rights and liabilities of mortgagee, 1016-1016!)
662 INDEX.

MORTGAGE— comtjnued.
of land, a pledge in equity — continued.
form of, 1018, 1019
equitable by deposit of deeds, 1020
power to make, 1022-1027
to secure further advances, 1020
of personalty, 1021, 1030-1035a
priority by notice, 1035a, 1047, 1047a
marshalling assets and securities, 559-568, 633-645, 1028
tacking, 412-421, 1004, 1012-10165, 1034
in Roman law, 1005-1011
redemption, 1023
within what time, 1028a
foreclosure, 1024-1029
within what time, 1028!), 1031
sale, when decreed, 1023b, 1025, 1026, 1027o
power of, 1027
merger on payment off, 486
contribution to discharge, 483, 484, 487
apportionment of interest, 479, 487, 488
concealment of, 208, 393

MORTMAIN, STATUTES OF, 1193

NE EXEAT REGNO,
origin and nature of, 1464-1467
in what cases granted, 1468-1475
in the case of foreigners, 1475
modern statutory practice, 1475o

NOTES, LOST,
equitable relief in cases of, 85, 86

NOTICE
statutory definition of, to bind purchaser, 4006
actual, constructive or imputed, 399-400a, 408
effect of Registry Acts as, 397, 398, 401, 402
effect of Us pendens, 405, 406, 407
time at which notice must be received, 400c
protection of purchaser with notice, from a purchaser without notice, 409-411
conveyance, from a trustee, 395
with actual notice of adverse rights, 396, 400a, 400b
with constructive notice, 399, 400, 400a, 400b
with imputed notice, 400a, 400b, 408
in cases of tacking, 412-421
in dealings with trustees, 395, 422, 423
as affecting priority of equitable assignments, 1035a, 1047, 1047a

NUISANCE,
remedy at law, 924, 925
remedy in equity, 921-927
public, 921-924, 926a
private, 925-927
OBLIGATIONS
in Roman law, 2

OFFICES,
sale of, illegal, 295
 INDEX. 663

PAEBNT AND CHILD,

guardianship of infant child, 1341-1342(1
purchase by parent in name of child, 1202
gift from child to parent, 309
contracts between, 309

PABOL EVIDENCE,
admissibility to vary written instruments, 152, 153, 161
in eases of specific performance, 161, 169, 770
in cases of mistake, 153
in cases of fraud, 153
to rebut presumptions, 1102, 1202
rule independent of Statute of Frauds, 158, 161
to show absolute conveyance was a mortgage, 1018
to interpret wills, 179

PARTICEPS CRIMINIS,
relief where plaintiff is, 298-306, 422

PAETITION,
concurrent jurisdiction in cases of, 646-658
common law jurisdiction, 646, 647, 650, 652, 654, 655
abolished by statute, 650
compensation for owelty or improvements, 654-656
amended statutory procedure, 657, 658o
civil law as to, 648

PARTNEESHIP
common law remedies between partners, 661-665
account, 662-664
contribution, 664, 681
to furnish capital, 665
concurrent jurisdiction in equity, 659-683
where there is an arbitration clause, 670
in cases of fraud, 220, 681
specific performance of contract to enter into, 670, 722
of other contracts between partners, 667, 677
judicial dissolution, 673, 673o
for insanity or incapacity, 673, 673o
for misconduct, 673
where the business can only be carried on at a loss, 673
where object impracticable, 674
where just or convenient, 673
receiver, 672
injunction to restrain wrongful acts of partner, 666-669
accounts between, 671
penal orders, 468
premium, apportionment of, 89, 472
lien of partners, 674, 675, 1253
contract of partners, whether joint or several, 676
rights of joint creditors, 676, 676
of separate creditors, 677
firms with common members, 678, 680
illustrations from Eoman law and other systems, 682

PAET OWNEES
account , 466
contribution, 505
lien, 1242

PAET PEEFOEMANCE, 759-766

664 INDEX.

PATENTS FOE INVENTIONS,

infringement, injunction to restrain, 930-936
PEACE, BILL OF,
nature of and remedy, 8S2-860
PENALTIES AND FOEFEITUEES,
distinction between penalty and forfeiture, 1319, 1320
penalties, jurisdiction to relieve against, 89, 1301-1318
forfeitures, jurisdiction to relieve against, 1321-1324
statutory relief against, 1324o, 1324b
waiver of, 1325, 1325(i
statutory penalties and forfeitures, 1326
discovery in cases of, 1494, 1509

PBEPBTUATING TESTIMONY,
bill for, 1505-1512
for whom, 1509, 1510
against purchaser, 1510
form of decree, 1512
publication of testimony, 1516
PEESONAL ESTATE
primary fund for payment of debts, 571-577
PLEDGE,
of assets by personal representative, 580, 581
of personal property, account in cases of, 506
redemption, 1030-1035
tacking, 1035o
POLICY, PUBLIC,
in cases of constructive fraud, 260, -807
in cases of family arrangements, 121, 129, 131, 132
POETION,
power to raise, construction of, 1061-1065
double portions, doctrine of, 1099, 1100, 1109-1114
satisfaction of, 1109-1114
election in cases of, 1074-1096
POSSESSION,
delivery of, injunction for, 959

POST-NUPTIAL SETTLEMENT,
validity of, 372-374

POST-OBIT BONDS,
definition of, 342, 343
relief against, 343, 344
their validity when sold by auction, 347
POWEE,
when fiduciary, 1061
when personal, 1060-1062
survivorship of, 1061, 1062
to sell, by implication, 1060, 1063-1064o
execution of, how affected by mistake, 95, 112, 160-376
defective, 95, 169-179
when aided, 94-98, 169, 170-176, 177
to raise portions, 1064-1065a
fraudulent and illusory appointments, 252, 255-255!*
non-execution, 94, 169, 170
 INDEX. (i()5

PRAETOR,
his equitable jurisdiction in Roman law, 5
value of precedents in his court, 18

PRECATORY TRUSTS
defined, 1068-1074

PREFERENCES,
in the administration of estates, 553-558, 571-574a
in partnership cases, 675, 676
in the cases of bargains with creditors, 378, 379
priority by notice, 1047, 1047 o

PRINCIPAL AND AGENT,

fiduciary relation between, 315, 316, 316a
duty of agent to keep accounts, 468
to keep his principal's property separate, 468, 623
bill for account, 462-469
discovery in cases of account, 450

PRINCIPAL AND SURETY,

♦he contract, 492, 498, 502a
fiduciary relation between, 215, 324-327
duty of disclosure, 215, 324
right of surety, to compel principal to pay debt, 327
to an assignment of securities, 327, 499-499c, 502, 638
to be subrogated to the creditor, 327, 502
to contribution from co-surety, 492, 493
by bill quia timet, 730, 849
in Roman law, 494, 500, 501
discharge of surety, by act of creditor, 324-326, 498o

PRIORITY. See MORTGAGE

in cases of administration, 553-557
by notice, 1047, 1047o
adjustment of, in cases of incumbrances, 838

PRIVILEGED COMMUNICATIONS. See DISCOVERY

what are, 1496

PRODUCTION OP BOOKS AND PAPERS,

in cases of account, 450
in cases of discovery, 1485

PROMOTER
defined, 323a

PUBLIC POLICY,
in cases of constructive fraud, 260, 307
in cases of family arrangements 121, 129, 131, 132

PUBLICATION OP MANUSCRIPTS, LETTERS, &c.,

injunction to prevent, 943-951

PUFFING,
at auctions, 293
on sale of commodities, 201
666 INDKX.

PURCHASE. See SALE OP LAND,

by trustee, 321, 322, 1211
by person in a fiduciary relation, 307-320, 322, 323, 1211o
in the name of a child, 1202-1205
of a wife, 1204
of a third person, 1196-1202
joint purchases, 1206, 1207, 1234, 1236
by partners, 1207, 1207a
from executor, 422, 579-581

PUECHASEE,
liability for application of purchase money, in cases of personal property,
1128, 1129
in cases of real estate, 1124-1127, 1130-1134
without notice, protection of, generally, 64c, 169, 176, 381, 409-411, 630
in cases of accident, 108
in cases of discovery, 1502-1504, 1570
in cases of mistake, 139, 165
in cases of execution of powers, 169
in cases of legal title, 630
exception of lis pendens, 406
exception of dower, 630

PUEPRESTUEES,
remedy in equity, 921-924

QUIA TIMET, BILL,

general principles governing relief, 701, 710, 730, 825-851
general nature of, 826-828
in cases of suretyship, 849
as to present interests, 827, 828, 844
as to future interests, 827, 828, 843-848
to prevent waste, &c., pending suit, 851
by requiring payment or transfer into court, 827, 828, 839, 842
by requiring security, 845, 846
by appointment of receiver, 827-832, 834
against terre-tenant, 835
against executors or trustees, 827, 828, 836
in partnership cases, 672
where there are incumbrances, 830, 837
effect of appointment, 829, 831, 833, 833a

RECBIVEE,
when and how appointed, 827-838
aaginst terre-tenant, 835
against executors and trustees, 827, 828, 836
in partnership cases, 672
where there are incumbrances, 830, 837
effect of appointment, 829, 831, 833, 833a

EECOMMENDATION, WORDS OF,

when they create a trust, 1068-1074
EEFORMING DOCUMENTS. See MISTAKE,
contracts, 134, 153, 153o
deeds, 169, 160, 7066

REGISTEATION,
notice by, 401, 402
object and policy of Eegistry Acts, 397, 398, 401, 402
 INDEX. 667

BELEASB,
effect of mistake, 112, 145
effect of concealment of facts, 217
by partner in fraud of co-partners, 681

EEMAINDEBMAN. See EEVEESIONEES,

when relieved against dealings, 334, 340
apportionment of incumbrances between, and tenants for life; 487

EENTS AND PEOPITS,

apportionment of, 475-479
account of, jurisdiction to grant, 508-514
from a tenant by elegit, 510
from intruder, 511
from "■ trustee, 512
in cases of dower, 512, 625
in case of heir or devisee, 512
in cases of partition, 655
in cases of tort, 513
power to raise sum in gross out of 1064, 1064a

EEPAIBS
on estates, when allowed for, 1235-1239
lien for, 1235-1239

EBSCISSION OP DEEDS AND INSTEUMENTS,

when decreed, 692-705
distinction between void and voidable instruments, 694-700
in cases of fraud, 695
effect of public policy, 695
against conscience, 695
where object satisfied, 701
terms upon which decreed, 696, 707, 997

EESTEAINT OF MAEEIAGE,
contracts and conditions when void or not, 274-290

EESTEAINT OP TEADE,
contracts for, 292

EESULTING TEUST,
from conveyance without consideration, 1197, 1198
from the acts and transactions of the parties, 1195, 1196
from failure of object of trust, 1196a, 1200
from payment of consideration, 1201-1206
when fraud on a statute, 1201a

EEVEESIONEES,
where relieved against fraud and catching bargains, 334-340
age immaterial, 335
doctrine of Eoman law as to, 341

EEVOCATION
of voluntary trust, when effective, 972, 1036a, 1045, 1196
668 IKDEXL

SALE OP LAND. See SPECIFIC PEBFOEMANCE,

contract for, constitutes fiduciary relation, 789, 790
vendor's lien, 1217-1233
in whose favour it exists, 1227
when waived or lost, 1224-1226
against whom it exists, 1227, 1228, 1233
specific performance of contract for, 712-793(1
to satisfy liens, 1217, 1218
trusts or powers for, 1060-1062
to raise sum in gross out of rents and profits, 1064, 1064a
when implied in power to mortgage, 1064a

SATISFACTION,
what it is, 1099
distinction between, and performance, 1106, 1107
matter of rebuttable presumption, 1100-1102
satisfaction of money by land, 1102, 1103
of land by money, 1102, 1103
of land by land of another tenure, 1103
where gifts are ejusdem generis, 1104, 1105
of portions secured by settlement, 1109
of portions secured by will, 1109-1115
of legacies, when, 1110-1122
of debts by legacies to creditors, when, 1109, 1119 1123
the civil and other laws respecting, 1108

SECUEXTIES,
marshalling and priorities of, 633-645
SBPAEATE ESTATE
of wife, 1378-1381, 1384-1398, 14290
SEPAEATION
deeds in favour of, validity, 291
of courts of common law and equity, 34
abolished, 84

SBQUESTEATION,
effect of, in equity, 833
SET-OFF
at law, 1483-1435, 1487
in equity, 1430-14376
where there are cross demands, 1436a
of mutual debts and credits, 1431
of joint and separate debts, 1437
of equitable debts, 1436, 1437
how affected by statute, 1444a
need not be specially claimed, 1440
in the civil law, 1438-1444
SETTLED ACCOUNT,
when it will be opened, 523-529
SETTLEMENT,
injunction against assertion of a title to its prejudice, 64
underhand agreement to defent, avoided in equity, 267, 268
mistake in, when rectified, 159, 160
in fraud of marital rights, 273
post-nuptial, when valid or not, 372-374
voluntary, 7066
equity of wife to a, 1402-1419o, 1424
 INDEX. (i69

SOLICITOR AND CLIENT,

their peculiar fiduciary relation, 310-313
relief in cases of concealment by solicitor from his client, 218, 219
plea of ignorance by solicitor, 218, 219
benefits secured by solicitor from client, 136, 310-313
distinction between case of solicitor and trustee, 311, 313
■when relation is dissolved, 313
account between, 135, 523

SPECIALTY CREDITOE,
marshalling of assets with respect to, 562-565a,- 571

SPECIFIC DELIVERY OP CHATTELS,

when decreed, 707-711, 717

SPECIFIC PEEFOEMANCE
compelled in equity, 30, 161
antiquity of jurisdiction, 37
general grounds of jurisdiction, 717-720, 788-742
how far discretionary, 742, 747, 751
effect of fraud, accident or mistake, 769, 770, 781, 786
of illegality, 787
of contracts, relating to property, 712-716, 729, 737, 737o, 743-
relating to land in foreign countries, 743, 744
to build, 716, 725, 778o
to repair, 722
of sale of land, 717, 743-751a
between landlord and tenant, 710, 720-722, 729
of sale of chattels, 708, 719
of sale of stocks and shares, 717, 724
of sale of goodwill and trade secret, 722
of sale of annuity, 722
of sale of debts, 722
to purchase and settle lands, 729
to enter into partnership, 666-670, 710, 722
to refer to arbitration, 1457
performance secured by penalty, 715, 751
when voluntary, 787, 793o
when doubtful, 762, 767
of awards, 1458
of compromise, 785
of covenants of indemnity, 730, 785
in whose favour, 723, 736, 788
sureties, 730, 749
against privies and representatives, 783, 788
against assignees, and purchasers with notice, 784, 789
mutuality of remedy, 723, 787, 789, 790, 958(i
distinction between vendor and purchaser seeking, 769, 770
where the plaintiff is in default, 736, 737, 772-775, 777, 780
specific performance with compensation, 794-796b
effect of laches, 707, 749, 750, 771, 776
where purchaser may have specific performance pro tanto, 779
effect of Statute of Frauds, 752-782
doctrine of part performance, 759-766

SPOLIATION OF DEEDS,
fraud by, 252, 254

STATED ACCOUNT,
what is, 523, 524, 526
670 INDEX.

STATUTE OF PBAUDS
referred to, 158, 330, 374, 752-782, 972, 1198

STATUTES OF LIMITATIONS
referred to, 64a, 529, 1228a, 12286

SUBPCENA,
invention of this writ, 38

SUBROGATION
in Boman law, 567, 635

SUBSTITUTION
in Soman law, 567, 635
of sureties to creditors, 327, 502
adopted froto civil law, 567, 635-637
to a lien, of legatees and assignees, 1227-1229

SUPPLICAVIT,
when grantable, 1476, 1477

SUPPRESSION OF DEEDS,
frauds by, 252

SURCHARGE AND FALSIFY,

meaning of these terms, 525

SURETY. See PRINCIPAL AND SURETY

SURPRISE,
its meaning as used in courts of equity, 119, 120, 251
when consent obtained by, 222
when mixed up with mistake, 117, 251

TACKING,
Lord Hardwicke's account of its origin, 415
unknown in Roman law, 420
definition of, 412
its hardship, 413
grounds on which it is supported, 414-416, 42(1
confined to purchasers for value without notice, 416, 421
money must be lent on the credit of the land, 416-418
both securities must be held in same right, 418, 419
tacking against heir, 418, 419
in mortgages of personal property, 1034, 1035

TEEMS OF YEARS,
on special trusts, 998-999a
nature of, 998, 999
how they follow the inheritance, 998, 999
merger of in inheritance, 999o

TESTIMONY, BILL TO PERPETUATE,

when it lies, 1505-1513
against a purchaser, 1610
title of plaintiff to maintain, 1506, 1511
where immediate proceedings may be instituted, 1508
practice on, 1512, 1516
objections to such testimony, 1507
 INDEX. 671

TESTIMONY DE BENE ESSE,

when it lies, 1513-1516
when witnesses abroad, 1514, 1515
aged and infirm witnesses, 1514
a single witness, 1514, 1514o
present practice, 1514a
publication of depositions, 1516
general admissibility of evidence, 1516a
TIMBEE,
tortious cutting down, equitable remedy, 1517-1618o
TIME,
when essential, in contracts, 771, 776-780
laches, effect of in equity, 64a, 529, 707, 749, 750, 771, 776

TITHES AND MODUSES,

ancient jurisdiction of court of exchequer over, 519
jurisdiction of chancery over, 453, 519, 618
now abolished, 519
apportionment of, 479
TITLE,
ignorance of, effect on contract, 120-130
TOETS,
of agents, chargeable in equity, 462, 467, 468
accounts growing out of, 460, 511, 515-617
TEADB, EBSTEAINT OP,
contracts in, 292

TBADB MAEK,
fraudulent user, 951

TEADE SBCEET,
restraining publication of, 952

TEESPASS,
foundation of equity jurisdiction, 48
injunction against, 511
TEUST,
history and nature of, 960-982
entertained in equity, 29
not sole foundation of equity jurisdiction, 37, 60, 76, 634
no jurisdiction in ecclesiastical courts to enforce, 536-541
equitable jurisdiction when exclusive, 29, 60, 534, 535
foreign, when enforced here, 1290-1295, 1184-1186
incidents of equitable estates, 64o, 64b, 974, 975
classification of trusts, as express, 980, 981
as implied or constructive, 1195-1295
as executory and executed, 64b, 974, 983-985
voluntary and for value, 973, 986, 987
resulting trust, 1183, 1196-1209
how created, by express declaration, 980, 981, 983-985
by parol, 972, 1041, 1045
by precatory words, 1068-1074
by conveyance without consideration, 1197, 1200
by purchase in name of third party, 1201-1207o
by joint purchase or investment, 1206
in partnership cases, 1207, 1207o
672 INDEX,

TB,V ST— continued.

how created, in the case of powers, 98, 1061
in the case of charities, 1165-1170
by vague and indefinite expressions, 1073, 1156-1157, 1183
by purchase from trustee, 533, 1257, 1264
by voluntary assignment from trustee, 533
by purchase by agent or person in a fiduciary position, 308-320, 323,
323o, 1211a
failure to appoint a trustee, 1059, 1060
the trustee, powers, rights and duties of, 977-979, 1267-1269
duty of provident management, 1275, 1276
preservation of trust funds, 1269, 1270
deposit of money with bankers, 1269, 1270
duty of trustees to preserve contingent remainders, 991-996a
liability for improper investment, 1271-1274
when chargeable with interest, 1277, 1278
liability for wilful default, 1284b
beneficial dealings affecting trust estate, 322, 1211, 1263, 1264, 1277
liability for acts and defaults of co-trustee, 1280-1284o, 1284c
dealings between, and beneficiary, 310, 321, 322, 1261
compensation for time and trouble, 322, 1268
statutory protection of, 975, 1272
duty to account, 465
removal of, 1287-1289
appointment of new trustees, 1062, 1287
failure of trustee, 1059-1062
failure of trust, 1183,. 1196b, 1208
liability of purchaser from, 533, 1124-1135a, 1257, 1264
the beneficiary, objection to expression cestui que trust, 321 note
right to conveyance on becoming absolutely entitled, 979
option on improper investment to take interest or income, 1262
for creditors, when revocable, 972, 1045, 1196

TURPITUDE,
contracts growing out of, 296-301

UNDUE INFLUENCE,
contracts voidable for, 234-239
USES,
administration of, as foundation of jurisdiction of Court of Chancery, 40,
48, 49
charitable, jurisdiction over, 1142-1155
USUEY,
equitable remedy upon usurious contracts, 64e, 301, 302

VENDOE. See SALE OP LAND; SPBCrFIC PERFOEMANCE

VOLUNTEERS,
not generally assisted in courts of equity, 176, 706a, 706b, 787, 793«, 973
987
under voluntary settlements, 352-371, 374
purchasers from, 425, 426
in cases of defective execution of powers, 95, 176
in the case of creditor's trust deeds, 972, 1045, 1196

WAGEE,
contracts of, when void, 294, 303
 INDEX. 673

WARD,
dealings of, with guardian, 317-320
tenant in tail, keeping down interest, 488 note
jurisdiction to appoint and remove a guardian, 1331, 1337-1341o
ward of court, 1352, 1353
maintenance of, 1354-1855
marriage of, 1358-1361
maintenance of, 1354-13556
property of, management of, 1856, 1357
WASTE,
remedy at law, 516, 517, 909-911
remedy in equity, 515-518a, 909-918
early exercise of jurisdiction, 20
against real or personal representative, 515, 516
by executors or administrators, 579-681
by husband tort feasor of wife executrix, 582

WEAKNESS, MENTAL,
relief in cases of, 234-239
WIDOW,
conditions restraining re-marriage, 285
marshalling of assets in favour of, 568

WIDOWEE,
conditions restraining re-marriage, 285
WILL,
how construed, 64b, 602, 974, 1065, 1065a, X067
mistake in construing, 124, 126, 127
mistakes in, 179
cancelled by mistake, 99
fraudulently obtained, 184, 238, 440
fraudulently suppressed, 254
power to sell, 1060-1063
power to raise money, 1064, 1064a
aiding defective execution of power by, 97, 178, 174
election between claims under, 1075-1098
satisfaction as applied to, 1099-1123o
description of persons to take under, 179, 974, 1066
bill to establish, 1445-14496
WITNESSES,
not proper parties to discovery, 1499
perpetuating testimony of, 1505-1512
examination de bene esse, 1513-1515
WOEDS,
different construction of, as to real and personal estate, 602, 1667
description of property, 1073
precatory, where establishing a trust, 1068-1074
conferring power, 1060-1065
WRITTEN INSTRUMENTS,
mistake in, when relieved, 152-166
in whose favour corrected, 161, 166, 178, 433
cancellation of, when decreed, 692-707
lost, relief in equity, 51-89, 906

rEAES, TEEMS FOR, 998-1003

THE EASTERN ERESS, LTD., LONDON AND BEADING.

Author
KF 399 S88 1920 Vol.

A.E. Randall
TiiJc Copy
Story on Equity ^ 3rd Ed

Date Bonowec's Name