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Cornell University Library 
 KO 660.B84 1891 
 
 iresent laws of Engl 
 
 Commentaries on the 
 
 3 1924 021 661 412 
 
Cornell University 
 Library 
 
 The original of tiiis book is in 
 tine Cornell University Library. 
 
 There are no known copyright restrictions in 
 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31924021661412 
 
COMMENTAEIES 
 
 ON THE 
 
 PRESENT LAWS OP ENGLAND 
 
 BY 
 
 THOMAS BEETT, 
 
 OF THE MIDDLE TEMPLE, BARRISTBR-AT-LAW ; 
 LL.B. LONDON UNIVERSITY; 
 
 B.A., LATE SCHOLAR AND STUDENT OP TRINITY COLLEGE, DUBLIN; EXHIBITIONER IN 
 
 REAL PROPERTY AND EQUITY ; HOLDER OP THE FIRST CERTIFICATE OF 
 
 HONOUR, MICHAELMAS, 1869 ; 
 
 JOINT AUTHOR OF OLERKE AND BBETT'S CONVEYANOINQ ACTS; AUTHOR OF 
 
 BRETT'S BANKRUPTCY ACT, 1883, 
 
 AND OF LEADING CASES IN MODERN EQUITY; AND LATE LECTURER IN EQUITY TO 
 
 THE INCORPORATED LAW SOCIETY. 
 
 geronS) ffiiition. 
 
 IN TWO VOLUMES.— VOL. I. 
 
 LONDON: 
 
 WILLIAM CLOWES AND SONS, Limited, 
 
 27, FLEET STEEET, E.G. 
 
 1891. 
 
LONDON : 
 
 HUNTED BY WILLIAM CLOWES AND SONS, LIMITED, 
 
 aiAMFOBD SiapS ABD OHABIHO 0E0S3. 
 
TO 
 THE EiaHT HONOURABLE 
 
 LORD HERSCHELL. 
 
 ■^ Maxk 
 
 IS 
 
 (by his lobdship's kind pebmission) 
 MOST RESPECTFULLY DEDICATED 
 
 TEE AUTHOB. 
 
PEEFACE TO THE SECOND EDITION. 
 
 A SECOND edition of this work having been called for, no 
 pains have been spared in endeavouring not only to correct 
 and supply the errors and deficiencies of the first, but also 
 to make such alterations and additions as have been ren- 
 dered necessary by the progress of legislation and the 
 decisions of the Courts in the interval. 
 
 I have endeavoured to profit by the many reviews and 
 notices which appeared of the first edition of my book. One 
 of the greatest writers has told us that it is good " to have a 
 vigilant eye how books demean themselves as well as men," 
 and I have certainly no reason to complain in the great 
 majority of cases of any undue acerbity of criticism. On 
 the contrary, I have to return my sincere thanks to very 
 many of my critics for the friendly reception which was 
 given to the result of my labours. While making due allow- 
 ance for the difSculty of the task, they shewed me many 
 points where errors and deficiencies had escaped my notice, 
 and I can only say that I have done my best to make the 
 present edition as complete and as accurate as possible. 
 
 The general plan of this book, and the order in which the 
 various subjects discussed are treated, are stated in the 
 Introductory Chapter, to which the reader is referred, A 
 few words may, however, here be said as to the chief points 
 in which the present edition differs from its predecessor. 
 
 The changes which have been made in the statute law 
 during the period of somewhat less than twelve months 
 which have elapsed since the appearance of the first edition, 
 have been very considerable, and have been carefully 
 noticed in the appropriate parts of the work. Thus the 
 
VI PREFACE. 
 
 alterations made by the Settled Land Act, 1890, will be 
 found incorporated in the Chapter on Settlements (p. 145, 
 et seq.) The chapter on Partnership has been almost re- 
 written ; that on Companies has been very materially altered 
 by three Acts — the Directors' Liability Act, 1890, the Com- 
 panies (Memorandum of Association) Act, 1890, the Com- 
 panies (Winding-up) Act, 1890. The Bankruptcy Act, 1890, 
 has necessitated great alterations in Book X. A new chapter 
 (Chapter XVII.) has been added to Book VI., dealing with 
 miscellaneous business in the High Court and the principal 
 remedies by the exercise of extraordinary judicial powers, 
 habeas corpus, mandamus, prohibition, quo warranto, certio- 
 rari, and petition of right. 
 
 The Custody of Children Act, 1891 (54 Vict. c. 3), and 
 the Tithe Act, 1891 (54 Vict. c. 8) were passed too late to 
 be noticed in the text. The former Act should be added 
 to Chapter IX. of Book V. ; the latter to Chapter VII. of 
 Book XII. 
 
 The Index to the work has been very much increased, 
 and in the Table of Cases references have been added, in 
 respect of the more important cases, to the Law Jowrnal, 
 Law Times, and Weekly Reporter. 
 
 I have now only to acknowledge most gratefully the 
 able assistance which I have received in the preparation 
 of this second edition from my friends Mr. G. M. W. Hill 
 of the Inner Temple, and Dr. Sydenham-Jones, of Lincoln's 
 Inn, and of the South Wales Circuit, barristers-at-law, and 
 again to submit my work to the favourable consideration 
 of the public and the legal profession. 
 
 Thomas Brett. 
 
 Lincoln's Inn, 
 
 May, 1891. 
 
EXTRACT FROM PREFACE TO THE FIRST 
 EDITION. 
 
 The object of this work is to give, in as comprehensive a 
 manner as is possible within moderate limits, an account 
 of the present laws of England. The fact that great — 
 indeed, almost revolutionary — changes have been intro- 
 duced into the theory and practice of the law in recent 
 times, so that, as a high authority Q) has told us, the judicial 
 spirit itself is altered, " technicality after technicality is 
 being brushed away with a rapidity only known to those 
 who closely observe the process, and subtilties are laughed 
 at that would have been listened to five and twenty years 
 ago," would seem fully to justify the appearance of a work 
 the object of which is to lay before the reader a statement 
 of English law as it now is. 
 
 A main idea of this book is to bring into special pro- 
 minence the present and living law, and only to deal with 
 past law, or that which is practically obsolete, so far as it 
 is necessary to enable the reader to understand the present. 
 Prefixed to the first volume will be found a Table of the 
 Contents of that volume and Tables of the Cases and 
 Statutes referred to in the work. The second volume 
 contains a Table of the Contents of that volume, and a 
 very full Index to the entire work. 
 
 I desire to warmly acknowledge the very great assistance 
 which I have received from my friends in the preparation 
 of this work. Among these I must particularly mention 
 Mr. Q. M. W. Hill, of the Inner Temple; Mr. James 
 
 (■) Lord Justice Lindley, in a Lecture deliyered at Owena College, 
 Manchester, Oct., 1889. 
 
Vlll PREFACE. 
 
 Wilson, of the Middle Temple ; Mr. E. W Hansell, of the 
 Inner Temple ; Mr. John Marsh Dixon, of the Inner 
 Temple ; Mr. J. A. Strahan, of the Middle Temple ; 
 Mr. W. Neill, of the Inner Temple ; Mr. P. H. Fothergill, 
 of Lincoln's Inn ; Mr. Henly St. John Dawson, of Lincoln's 
 Inn, Barristers-at-law : — Mr. G. Glover Alexander, of the 
 Inner Temple; and Mr. Archibald Eivington, Solicitor. 
 To all these gentlemen I return my grateful thanks, and I 
 now submit the result of my labours to the favourable 
 consideration of the public and of the profession to which 
 I have the honour to belong. 
 
 Thomas Beett. 
 
 Lincoln's Inn 
 
 May, 1890. 
 
CONTENTS OF VOL. I. 
 
 Peeface to the Second Edition .. 
 
 bxtbact fbom preface to the fibst edition . 
 
 Contents of Vol. I. .. 
 
 Table of Cases Cited 
 
 Table of Statutes .. 
 
 Intboddctoey Chaptbb 
 
 BOOK I. 
 REAL PROPERTY. 
 
 pase 
 
 V 
 
 vii 
 
 ix 
 
 xxiii 
 
 ovii 
 
 cxi 
 
 CHAPTER I. 
 
 DiFFEEENT CLASSES OF PeOPEBTY. 
 
 Division of property into real and personal — Definitions of Lands, tene- 
 ments, and hereditaments— Different classes of personal property — 
 Chattels real — Different classes of chattels personal — Fixtures — 
 Essential diflferences between real and personal property enume- 
 rated .. .. .. .. .. .. .. .. 1 — 9 
 
 CHAPTER II. 
 Tenubes and Estates. 
 
 Varieties of tenure — Grand serjeanty — Petit serjeanty — Gavelkind — 
 Borough English^ — Ancient demesne — Estates in land considered in 
 four aspects — (1) With regard to the nature of the estate — (2) With 
 regard to the number and connection of the tenants — (3) With re- 
 gard to the quantity or legal magnitude of the estate — (4) With 
 reference to the time of the enjoyment of the estate .. 10 — 15 
 
 CHAPTER III. 
 Legal and Equitable Estates. 
 
 Origin of uses — The Statute of Uses does not apply to copyholds, chattels 
 real, or peerages — Creation and transfer of equitable estates — Dis- 
 tinction between legal and equitable estates not destroyed by the 
 Judicature Act — Conveyances by one person to himself and another, 
 and between husband and wife under the Conveyancing Act 16 — 21 
 
X CONTENTS. 
 
 CHAPTEB IV. 
 Estates fob Life. 
 Nature of— How created— Widow's dower estate— Estate by curtesy— 
 Tenant in tail with possibility of issue extinct— Duty of tenant for 
 life in respect of mortgages and charges— Law as to emblements— 
 Apportionment Act— Custody of title deeds— Powers of tenant for 
 life under Settled Land Acl^Waste— Trees —Estate pur autre 
 
 22 — o^ 
 vie 
 
 CHAPTER V. 
 Estates Tail. 
 
 Estate tail— Definition of— Descriptions of estate tail— Eule in SheUey's 
 case— How created in will— How created in deed— Provisions of Con- • 
 veyancing Act— Statute de (ioms— Taltarum's case— Provisions of 
 Pines and Becoveries Act— Protector of Settlement— Leading cases on 
 estates tail— Eule in Wild's case— Estates tail which cannot be barred 
 — Position of tenant in tail .. .. ■• •• 33 — 42 
 
 CHAPTER VL 
 
 Estates in Ebb Simple. 
 
 Definition of fee simple estate — Different modes in which it may be 
 acquired — How usually limited to individuals and to corporations — 
 Provisions of section 51 of the Conveyancing Act, 1881, as to the 
 words which are sufficient in a deed- — The rule in Shelley's case — 
 Provisions of the Wills Act as to devise of fee simple — The statute of 
 Quia Emptores — Powers of tenant in fee simple — Liability in respect 
 of debts — Payment of charge by tenant in fee simple — Law as to 
 restraint on alienation — Law as to married women, infants, lunatics, 
 and idiots — Charities ■ — Companies — Corporations — ^Voluntary and 
 fraudulent settlements — The rules of descent stated and illustrated 
 by cases — The Naturalization Act, 1870 — ^Escheat — ^Abohtion of 
 forfeiture for treason or felony .. .. .. .. 43 — 56 
 
 CHAPTER VII. 
 Joint Estates. 
 
 Definition of joint tenancy, &c. — Pour unities of joint tenancy stated and 
 illustrated — Maxims applicable to joint tenancies and incidents of 
 such estates — How tenancies in common and estate in coparcenary 
 arise, &c. — Problems illustrating law as to joint tenancies, &c. — 
 Tenancy by entireties — Effect of Married Women's Property Act, 
 1882, considered 57—63 
 
CONTENTS. XI 
 
 CHAPTEB VIII. 
 
 FuTDEE Estates. 
 
 Estates in possession and expectancy defined and contrasted — Definition 
 of particular estate, reversion, remainder — ^Distinctions between re- 
 version and remainder — Eemainders vested and contingent — -Different 
 sorts of contingent remainders — Test wtietlier an estate is vested or 
 contingent — Legislative changes with, regard to contingent remainders 
 — Rule governing creation of contingent remainders — -Rule of cy-pres 
 — Rule against perpetuities — Explanation of the policy of the law as 
 to perpetuities by Sir George Jessel — Executory limitations — Rules 
 which govern their construction — Section 19 of the Conveyancing 
 Act, 1882 — Executory devises, springing and shifting uses — Law as 
 settled by Gadell v. Palmer — Rule against perpetuities applied to 
 conditions and covenants relating to the sale of land — Provisions of 
 the Thelluson Act, 39 & 40 Geo. 3 64—74 
 
 CHAPTER IX. 
 
 Conveyance on Sales. 
 
 Definition of conveyancing — Matters preliminary to conveyance — Condi- 
 tions of sale — statutory conditions implied by the Vendor and Pur- 
 chaser's Act, 1874, and the Conveyancing Act, 1881- — Usual conditions 
 of sale — Provisions of Trustee Act, 1888, as to depreciatory conditions 
 — Deli veryof abstract — Requisitions on title — Usual searches — Various 
 forms of conveyance considered — Different parts of a deed — Short form 
 of conveyance in fee simple — Analysis of different partS' — Recitals — 
 Changes made by the Conveyancing Act, 1881 — Restrictive covenants 
 — Provisions of the Conveyancing Act, 1881, as to covenants — Prac- 
 tical rules for conveyancing — Notice — Actual or constructive — 
 Change in the law introduced by section 3 of the Conveyancing Act, 
 1882— Stamp duties 75—96 
 
 CHAPTER X. 
 
 Mortgages. 
 
 Deiinitions of — Judicial statement of the principles of the law relating to 
 mortgages^" Once a mortgage always a mortgage " — Form of mort- 
 gages and freeholds — Copyholds — Leaseholds — Short forms — Equit- 
 able mortgages — Welsh mortgages — Mortgage in form of trust — 
 Mortgagee's remedies — Provisions of the Conveyancing Acts — Con- 
 solidation of mortgages — ^Marshalling — Law as to pledges 97 — 111 
 
 CHAPTER XI. 
 
 Leases. 
 Definition of— of what property leases may be made— Essentials of a lease 
 — Summary of law as to leases and agreements for leases — Provisions 
 
xii CONTENTS. 
 
 of the Vendor and Purchaser Act, 1874— What are usual covenants 
 in a lease of a London dwelling-house and in an agricultural lease- 
 Landlord's remedies for rent— Definition of distress— Things privileged 
 from distress— Provisions of Lodgers' Goods Protection Act- Agri- 
 cultural Holdings Act— Ground Game Act— Law of Distress Amend- 
 ment Act— Different modes in which leases are determined— Pro- 
 visions of Conveyancing Act as to forfeiture of leases — Leading cases 
 and principal statutes with reference to the law concerning leases 
 
 112—132 
 
 CHAPTER XIL 
 
 Settlements. 
 Various meanings of the term — Necessity for, unaffected by Married 
 Women's Property Act, 1882— Division of settlements — For value — 
 Voluntary— Of personalty— Form of— Of realty— Form of— Distinc- 
 tions between real and personal settlements — Consideration of marriage 
 — When effectual and when not — Illustration — Settlements of after- 
 acquired property — Husband's interest determinable on bankruptcy — 
 Summary of law on the subject — Covenant implied by Conveyancing 
 Act — Settlement of copyholds and leaseholds — Annulment of settle- 
 ment — Voluntary and fraudulent settlement — Leading provisions of 
 the Settled Land Acts and cases relating thereto considered 
 
 133—156 
 
 CHAPTER XIII. 
 Wills. 
 
 Definition of — Forms in which it may be made — Early history of wills — 
 Formalities reqmred by Wills Act — Provisions of — ^Lord Kingadown's 
 Act (24 & 25 Vict. c. 114) as to wills of personal estate — Law as to 
 lapse — Various modes in which wills may be revoked — Will speaks 
 from death — Case illustrating this rule — ^Effect of words " die without 
 issue" — Various classes of legacies — General — Specific — Demonstra- 
 tive — Cumulative — Substitutional — Executor's year — Charge of debts 
 — Doctrine of incorporation — Rules of construction — Rules of law — 
 Statement of some of the most important rules — Rules as to making 
 and altering wills and as to taking instructions for wills— Summary 
 of the law as to " death duties " .. .. .. ., 157 — 174 
 
 CHAPTER XIV. 
 
 POWBBS. 
 
 Definition of powers — Different classes of powers — Common law powers — 
 Equitable powers— Powers operating under the Statute of Uses — 
 Powers simply collateral — Powers in gross — Powers appendant or 
 appurtenant — General powers — Special powers — ^Requisites to the 
 valid creation of a power — Excess of exercise of powers — Fraud on 
 powers — Illusory appointments — Provisions of various statutes re- 
 specting powers 175—183 
 
CONTENTS. Xlll 
 
 CHAPTER XV. 
 Copyholds. 
 
 Definition of copyholds — History of copyholds — Principal characteristics 
 of copyholds — Provisions of the Copyhold Acts, 1841 to 1887 — Law 
 as to timber and minerals — Estate tail in copyholds — Enfranchise- 
 ment of copyholds .. .. .. .. .. 184 — 193 
 
 CHAPTER XVI. 
 Incorporeal Hereditaments. 
 
 Definition of — ^Various kinds of incorporeal hereditaments — Law as to 
 easements — ^Their different classes and mode of their creation — 
 Leading cases with respect to — Rights of riparian proprietors — Rents 
 —Rights of common 194—202 
 
 CHAPTER XVIL 
 Statutes of Limitation and Prescription. 
 
 Principle of the law — Tendency of modern decisions — Summary of pro- 
 visions of — Important decisions thereon — Provisions of sect. 25, sub- 
 sect. 2 of Judicature Act, 1873, and Trustee Act, 1888, with regard 
 to actions against trustees — Provisions of Prescription Act with 
 regard to commons, ways, watercourses, easements, light 203 — 209 
 
 CHAPTER XVIII. 
 Married Women's Property. 
 
 Summary of law independent of the Married Women's Property Acts — 
 Doctrines of separate use and restraint on anticipation — Provisions of 
 Married Women's Property Act, 1882 — Cases decided under — Law as 
 to liability of husband for wife's contracts — Decision of the House of 
 Lords in Debenham v. Mellon — Pin money^ — ^Bquity to settlement — 
 Paraphernalia — Fraud on marital rights — Acknowledgment of deeds 
 by married women — -Sect. 39 of Conveyancing Act, 1881 — Sect. 61 
 of Settled Land Act, 1882 — List of statutes specially referring to 
 property of married women . . . . . . . . 210 — 229 
 
 CHAPTER XIX. 
 Charities and Mortmain. 
 
 Provisions of the Mortmain and Charitable Uses Act, 1888 — Assurances 
 in mortmain — Legal meaning of the term charity— Provisions of 
 43 Eliz. c. 4 — Decisions as to what objects are, and what are not, 
 charitable — Leading cases on the subject of charities .. 230 — 238 
 
xiv CONTENTS. 
 
 BOOK II. 
 PBRSONAIi PROPERTY. 
 
 CHAPTER I. 
 Introductory. 
 
 The division of personal property into choses in possession and choses in 
 action stated and considered—" Incorporeal personal property " — Re- 
 quisites for valid sale of personal property — Effect of sale — Greneral 
 rule of the law Nemo dat quod non habet — Law as to sale in market 
 overt — Provisions of the Factors Act, 1889 — Provisions of the Revenue 
 Act, 1889, as to contracts and agreements — Conversion and redemption 
 of consols — Points of similarity and difference between real and per- 
 sonal estate — Order in which personal property is here considered 
 
 239—247 
 
 CHAPTER II.' 
 
 Ships. 
 
 Merchant Shipping Acts, 1854 to 1889 — ^Registration of ships — ^British 
 and foreign ships — Division of property in a ship — Modes of acquisi- 
 tion of property in ships — Sales and mortgages of ships, and trans- 
 mission of interest therein — Equitahle rights in ships — Provisions of 
 Merchant Shipping Act, 1862, with regard to equitable rights in ships 
 — Nationality of ships .. .. .. .. .. 248—252 
 
 CHAPTER III. 
 
 HOBSEB. 
 
 Reason of special legislation as to horses — Provisions of statutes — 2 & 3 
 Philip and Mary, c. 7, and 31 Elizabeth, c. 12 — Cases on the subject 
 — Law as to warranty — Of soundness of horses — Sale of Horseflesh 
 Regulation Act .. .. .. .. .. ., 253 — 255 
 
 CHAPTER IV. 
 Negotiable Instruments. 
 
 Law to a large extent practically codified by Bills of Exchange Act, 
 1882 — ^Nature of negotiable instruments — Summary of provision of 
 Bills of Exchange Act, 1882 — Definition of bill of exchange — Inland 
 Bill— Foreign Bill— Parties to Bill of Exchange — Leading case on 
 
 question who is a fictitious person — Acceptance of bill — General 
 
 Qualified — Indorsement of bill— In blank — Special— Restrictive 
 
 Presumption of law as to consideration — ^Days of grace — Acceptance 
 
CONTENTS. 
 
 XV 
 
 per JJTOC— Overdue bill— Dishonour of bill— Notice of dishonour- 
 Statutory definition of cheque — What is reasonable time for pre- 
 sentation—Authority to pay— How revoked— Law as to special and 
 general crossing of bill— Law as to relations between banker and 
 customer— Statutory definition of Promissory Note— "When inchoate 
 — Indorsement of, etc.- Provisions of the Judicature Act, 1873, as to 
 assignment of cAoses «ji ocWom .. .. .. .. 256 267 
 
 CHAPTER V. 
 Policies of Insubance. 
 
 Strict meaning of the terms "assurance" and "insurance" — General 
 definition of the contract of insurance — Distinction between marine 
 and fire insurances and life insurance — Consequences of principle of 
 indemnity — The doctrine of " subrogation "—The contract of marine 
 insurance defined and considered — " Open " and " valued " policies — 
 Provision of Statute 28 Geo. 3, c. 56, prohibiting marine pohcies in 
 blank — ^Assignment of marine policy — Particular and general average 
 — ^Usual conditions in policies of fire insurance — -Provisions of the 
 Trustee Act, 1888, with regard to fire insurance — Judicial definition 
 of the contract of life insurance — Insurable interest rendered necessary 
 by 14 Geo. 3, c. 48 — Oodsall v. Boldefo overruled by Dally v. The 
 India and Jjondon Life Assurance Co. — The law as to the assign- 
 ment of life policies under the Policies of Assurance Act, 1867, stated 
 and considered — The Life Assurance Companies Acts, 1870, 1872 — 
 Clause as to death by suicide, &c. — Stamp Duty on assignment of 
 policies of life insurance — Provisions of the Trustee Act, 1888, with 
 regard to policies of life insurance — Lien on policies created in four 
 cases — Law as to concealment of material facts — Accident insurance 
 defined and law considered — Guarantee policies — Eules for construc- 
 tion of policies of insurance .. .. .. .. 268 — 282 
 
 CHAPTER VI. 
 
 Dkbbntukbs. 
 
 The question as to " what are debentiires " discussed — When debentures 
 require to be registered — Principal kinds of debentures — Form of 
 mortgage debenture— Nature of " floating charge " — Effect of deben- 
 ture given by a railway company — The question whether debentmes 
 payable to bearer are negotiable considered .. .. 283 — 286 
 
 CHAPTER VIL 
 
 Patents. 
 
 Definition of— Origin of term — How sealed — Eight founded on Statute 
 of Monopolies-^Term of patent— Enactments and rules concerning 
 patents— What objects patentable— What may be subject of patent— 
 
xvi CONTENTS. 
 
 Consideration for patent— Who may apply for— Reference by comp- 
 troller to Examiner — Appeal from comptroller's decision — Provisional 
 specification — Complete specification — Construction and interpretation 
 of specification — Rights of Crown— Certificate of validity — Extension 
 of term — Petition for revocation — Register of patents .. 287 — 303 
 
 CHAPTER VIII. 
 
 Designs. 
 
 Statutes and rules by which the law with regard to designs is now 
 governed — Statutory definitions of " design " and " proprietor " — Law 
 as to originality of design — Registration of designs, &c. — Penalties 
 and damages .. .. .. .. .. .. 304 — 308 
 
 CHAPTER IX. 
 Trade Makes and Trade Names. 
 
 The Patent, Designs, and Trade Marks Acts, 1883 to 1888 — Principle on 
 which the law as to trade-marks is based — Leading cases with regard 
 to trade-marks — Statutory definition of trade-mark- — Registration of 
 " invented word " — The three marks rule — Restrictions on the regis- 
 tration of trade-marks — Is there property in a trade-mark? — Is it 
 necessary to prove fraud in an action for infringement? — ^Assignment 
 of trade-mark — Registration of trade-mark — Sheffield marks — Dura^ 
 tion of trade-marks — Trade names — Leading cases with regard to — 
 Grounds for interference of Court .. .. .. 309 — 318 
 
 CHAPTER X. 
 Copyright. 
 
 The subject of copyright considered under the five heads of (1) Copyright 
 •in literary works— (2) Copyright in engravings, prints, and litho- 
 graphs— (8) Copyright in sculpture, models, casts, and busts — 
 (4) Copyright in musical and dramatic representations or perfoi-m- 
 ances— (5) Copyright in pictures, drawings, and photographs 
 
 319-328 
 
 CHAPTER XI. 
 
 Bills of Sale. 
 
 The leading principle upon which the law as to bills of sale is based, stated 
 
 —Acts of Parliament by which bills of sale are now governed 
 
 The question " What is a bill of sale " considered — Bills of sale 
 absolute and conditional— What is necessary to establish a gift of 
 chattels ?— Statutory definition of bill of sale— What are and what 
 are not "personal chattels "—Trade machinery — ^Requisites of bill 
 
CONTENTS. XVll 
 
 of sale — Sotedule — ^Attestation — Registration — Consideration — Law 
 as to acquired property — Form of bill of sale — Test of accordance 
 with, the Act considered by thtf Court of Appeal and the House of 
 Lords — Oases in which bills of sale have been held to be void — Pro- 
 visions " for the maintenance or defeasance of the security " which 
 may be inserted in a bill of sale — Provisions of the Bills of Sale Act, 
 1882, with regard to seizure, consideration, registration, defeasance — 
 Decision of the House of Lords with regard to the assignment of 
 future book debts — Hiring agreements — The object of the earlier 
 BUls of Sale Acts and that of the Act of 1882 contrasted by Lord 
 HerscheU 329—340 
 
 CHAPTER XII. 
 
 Intestacy. 
 
 Statement of the rules which govern the descent of personal property in 
 intestacy — When intestate leaves widow and children — When 
 widow and no children — When children and no widow — Sir John 
 Wickens' statement of the law — ^Law as to " hotchpot " Ulustrated— 
 Married Women's Property Act — Rights of husband surviving wife — 
 Decision as to .. .. .. .. .. .. 341 — 345 
 
 BTTSINESS OP THE COURTS. 
 
 Inteoduotobt Chaptbk as to the changes in law and practice which 
 have been introduced by the Judicature Acts and Rules 346 — 359 
 
 BOOK III. 
 CONTRACTS. 
 
 CHAPTER L 
 
 DlFFEBEKT CLASSES OF CoNTBACTS. 
 
 Definition of contracts— Different classes of contracts— Characteristics of— 
 (1) Contracts of Record— (2) Contracts under seal— (3) Simple con- 
 
 tracts 
 
 360—371 
 
 CHAPTER IL 
 
 Simple Contbacts bequibed to be in Weiting. 
 Enumeration of cases in which writing is required by law— 4th and 17th 
 sections of the Statute of Frauds and leading cases thereon— Law as 
 
 VOL. I. * 
 
Xviii CONTENTS. 
 
 to guarantees— Provisions of the Mercantile Law Amendment Act, 
 1856— Law as to transfer of property on sale— Definition of warranty 
 and review of cases thereon .. .< .. •• 372 — 383 
 
 CHAPTER III. 
 
 Capaoitt of Parties. 
 
 Capacity to contract considered under the heads of political, professional, 
 and social status and personal conditions— Contracts by aliens — 
 Foreign states — Ambassadors — Law as to fees of counsel and phy- 
 sicians — Contracts of infants — Married women — ^Lunatics — ^Drunken 
 persons — Corporations .. .. .. .. .. 384 — 395 
 
 CHAPTER IV. 
 
 Illegal Contbacts. 
 
 Oeneral principle of the law as to illegal contracts — No distinction between 
 deeds and parol contracts — Leading case of Collins v. Blantern — 
 Division of illegal contracts — ^Illustrations of illegal contracts — ^Law 
 as to wagers and gaming considered .. .. .. 396 — 405 
 
 CHAPTER V. 
 
 Bailments. 
 
 befinition of bailments — Division of bailments by Lord Holt in the cele- 
 brated case of Coggs v. Bernard — ^The law as to the different classes 
 of bailments stated — Two classes of bailees, viz. innkeepers and 
 common carriers, regarded by the law in an exceptional light — The 
 law as to innkeepers and carriers stated and illustrated 406 — 413 
 
 CHAPTER VI. 
 
 Peincipal and Agent. 
 
 Definition of agent — The different kinds of agency — Universal, general 
 
 special, mercantile, non-mercantile, del credere, considered Duties 
 
 of agent — ^Exceptions to the general rule delegata potestas non potest 
 delegwri stated — Essentials of ratification — Is a company boimd by 
 a contract-made by its promoters ?— Statement of the leading case of 
 Cornfoot v. ii'owSe— Observations of Lord St. Leonards thereon cited 
 with approval in the House of Lords— Important case on the law of 
 principal and agent decided by the House of Lords in 1887— Service 
 of writ on agent — Circumstances under which agent primarily liable- 
 Law as to liability of undisclosed principal— Effect of lunacy of prin- 
 cipal upon contracts made by an agent .. .. 4^4 421 
 
CONTENTS. xix 
 
 CHAPTER Vn. 
 
 Measuee of Damages. 
 
 General rule of tlie law as to measure of damages — Limitation of the rule 
 established by the leading case of Hadley v. Baxendale, and subse- 
 quent cases — The principle illustrated by the decision of the Court o^ 
 Appeal in Hammond & Co. v. Bussey — Greneral principles of the law 
 as to interest on debts stated — Provisions of 3 & 4 Wm. 4, c. 42 
 
 422-^25 
 
 CHAPTER VIII. 
 
 DiscHAEaB OF Contracts. 
 
 The different modes in which contracts may be discharged stated and 
 illustrated — (1) By mutual consent — (2) By performance — (3) By 
 breach — (4) By impossibility of performance — (5) By operation of 
 law— (6) By novation 426 — 434 
 
 CHAPTER IX. 
 
 Stoppage ts Teansitu and Lien. 
 
 The doctrine of stoppage in transitu stated — Principles decided by the 
 leading case of Liekharrow v. Mason — Reason of the law of stoppage 
 in transitu — ^Alteration in the law by the Factors Act, 1889 — Decision 
 of the Court of Appeal in 1888 stated — Lien defined — ^Law as to 
 particular Hen — ^Law as to general lien — ^Instances where liens have 
 been allowed 435—438 
 
 BOOK IV. 
 TORTS. 
 
 CHAPTER I. 
 
 Inteoductoet. 
 
 Definition of torts — ^Distinctions between contracts and torts considered 
 
 The law as to injuria sine damno illustrated by the leading case 
 
 of AsKby V, White, and other cases — The law as to damnum sine 
 iniv/ria stated and illustrated — Law as to torts committed abroad 
 
 439—441 
 h 2 
 
XX CONTENTS. 
 
 CHAPTER II. 
 
 TOBT Fbasobs. 
 
 Principles of the law as to tort feasors considered under the three heads 
 of (1) The llahility attaching to certain persons for their own acts — 
 
 (2) The liability attaching to certain persons for the acts of others — 
 
 (3) The liability attaching to the ownership of mischief-causing 
 property. The law as to torts with reference to convicts, alien 
 enemies, married women, infants, corporations, mischief-causing 
 property, joint tort feasors, stated and illustrated — Exceptional cases 
 where acts which would otherwise be regarded as torts are justified 
 or excused, enumerated and considered.. ., .. 4.42—455 
 
 CHAPTER III. 
 
 Division op Tobts. 
 
 Torts considered vmder the heads of torts to the person and reputation — 
 Torts to property, whether real or personal — ^Torts not directly 
 aifecting persons or property — The law as to personal wrongs con- 
 sidered under the heads of assault and battery, false imprisonment, 
 malicious prosecution — Peculiar character of the action for seduction 
 — Statement of the law by Mr. Justice Blackburn .. 456 — 462 
 
 CHAPTER IV. 
 
 Defamation. 
 
 Principle on which the law as to defamation is based — Libel and slander 
 defined — Distinctions between libel and slander — Words actionable 
 per se— Summary of the law by Lord Blackburn— The question what 
 is fair criticism considered — ^Law as to publication — Defences of justi- 
 fication and privilege — Absolute and qualified privilege 463 476 
 
 CHAPTER V. 
 
 TOKTS TO PeOPEETT. 
 
 Torts to property considered under the heads of (1) Trespass— (2) Nuis- 
 ance— (3) Conversion— (4) Slander of title— Trespass may be either 
 to person, personal property, or realty— Instances of trespass— The 
 Six Carpenters' Case— The law as to trespass ah initio altered as to 
 landlords by 11 Geo. 2, c. 19— Defences to action of trespass- 
 Nuisance defined— Public and private nuisances defined and illus- 
 trated—Where action for conversion lies (formerly action of trover) 
 —Law as to stated— SbZZins v. Fowhr—Armory v. Delamirie— 
 Slander of title-Where an action for lies-The law does not presume 
 damage— lUustratioE and summary of the law . . . . 477 igs 
 
CONTENTS. XXI 
 
 CHAPTER VI. 
 
 Nbgugence. 
 
 The old definition of negligence stated and considered in the light of the 
 decision of the Court of Appeal in Heaven v. Pender — Mr. Justice 
 WUles' definition — The question what is "gross negligence" con- 
 sidered — The law as to " contributory negligence '' stated generally, 
 summed up in a series of propositions, and illustrated by cases 
 
 484^-492 
 
 CHAPTER VII. 
 
 Deceit. 
 
 The law with regard to actions for deceit to a great extent settled by the 
 decisions of the House of Lords in Bmifh v. Chadwick, decided in 1888, 
 and Berry v. Peek, decided in 1889 — Statement of the facts in 
 Smith V. Chadwick, and of the law as laid down in the House or Lords 
 with regard to what the Plaintiff must prove in order to succeed in 
 an action for deceit — Statement of the facts in Berry v. Peek — State- 
 ment as to how an action for deceit differs essentially fi:om an action 
 brought to obtain rescission of a contract on the groimd of misrepre- 
 sentation of a material fact — Summary of the law with regard to 
 actions for deceit 493 — 496 
 
 CHAPTER VIIL 
 
 Discharge op Toets. 
 
 The various modes in which torts may be discharged considered — The 
 rule Actio personalis moritwr cum persona — The exceptions to this 
 rule stated and considered — Does the maxim apply to an action 
 brought in respect of breach of promise of marriage ? — The Statute of 
 Limitations as to periods within which actions must be brought for 
 slander, assault, battery, wounding, imprisonment, trespass to lands 
 or to goods, detinue, trover, replevin, libel, &c. — Accord and satisfac- 
 tion — ^Waiver — The position of bankrupt tort feasors and that of 
 persons injured by torts who become bankrupt considered — Discharge 
 of tort by the recovery of damages — Important distinction between 
 contracts and torts in reference to damages — The various kinds of 
 damages awarded to parties injured by torts considered and illustrated 
 (1) Nominal damages — (2) Ordinary damages — (3) Vindictive or 
 exemplary damages — (4) Special damages — The question of measure 
 of damages in cases of tort considered . . . . . . 497 — 507 
 
TABLE OF CASES. 
 
 PASK 
 
 A. B., in the Matter of (11 P. D. 56) 1147. 
 
 A. u. B (1 P. & D. 559) 1022 
 
 A.'sDivorceBiU(12App. Gas. 365,366) 1047 
 
 Abbott, Ex parte. Ee Goirrlay (15 Oh. D. 456 ; 50 L. J. Oh. 80 ; 
 
 43 L. T. 417 ; 29 W. E. 143) 774 
 
 1). Middleton (7 H. L. Caa. 68) 168 
 
 Aberdeen Eail way ■«. Blaikie (1 Macq. 461) .... 645 
 
 Aberdeen Town Council v. Aberdeen Univeraity (2 App. Cas. 544, 
 
 557) 
 
 521 
 
 Abergavenny (Earl of) v. Brace (L. E. 7 Bxcb. 145) ... 40 
 Abemethy v. Hutchinson (3 L. J. Ob. 209) . . . .321 
 
 Abratb v. Nortb-Eastem Eailway Co. (11 Q. B. D. 440; 11 
 
 App. Cas. 247 ; 52 L. J. Q. B. 620; 55 L. J. Q. B. 457 ; 49 L. T. 
 
 958 ; 54 L. T. 641 ; 32 W. E. 50 ; 34 W. E. 63) . . 446, 459 
 
 Ackroyd v. Smithson (1 Bro. C. C. 503) 541 
 
 Adam v. Newbiggin (13 App. Cas. 308) 633 
 
 Adams, Ee and The Kensington Vestry (27 Oh. D. 394) . . 515 
 V. Angell (5 Oh. D. 634, 645; 46 L, J. Ch. 31; 43 L. T. 
 
 464; 29 W. E. 117) 24,38,47 
 
 Adam's Pohcy, Ee (23 Ch. D. 525) 224 
 
 Trust, Ee (12 Ch. D. 634) 512 
 
 Addison v. Gandasequi (2 Smith's L. 0.) 420 
 
 i>. Bound (4 A. & E. 799) 1117 
 
 Addlestone Linoleum Co., Ee (37 Ch. D. 192) . . . .648 
 Ager V. Peninsular and Oriental Steamship Co. (26 Ch. D. 637) ". 323 
 Agg-Gardener, In re (25 Oh. D. 600 ; 53 L. J. Ch. 347 ; 49 L. T, 
 
 804; 32 W. E. 356) . 
 Agnew V. Murray (9 App. Cas. 519) . 
 ■w. Usher (14 Q.B. D. 78) 
 
 Agriculturist Cattle Insurance Co. Baird's Case (L. E. 5 Oh. 725) . 
 
 Ahier v. Ahier (10 P. D. 110) 
 
 AJnslie, Ee. Swinburne v. Ainslie (30 Ch. D. 485 ; 33 W. E. 910) 
 
 (33W.E. 148) 
 
 Akerblom v. Price (7 Q. B. D. 129) .... 
 Aldridge, Ex parte (1 S. & T. 88) 
 Alexander v. Alexander (2 Ves. Sen. 640) . 
 v. Birchfield (7 M. & G. 1061) . 
 
 191 
 
 660 
 
 718 
 
 6]9 
 
 1046 
 
 5 
 
 . 38 
 
 . 1072 
 
 . 1012 
 
 177, 178 
 
 . 263 
 
XXIV 
 
 TABLE OF CASES. 
 
 Alexander v. Mackenzie (9 Scotch Sess. Cas., 2nd series, 758) 
 
 ■!;. Simpson (43 Oh. D. 139) . . . 
 
 , The (1 Dods. 278) 
 
 Alexandre v. Alexandre (2 P. D. 164) 
 
 Alison, In re. Johnson v. Mounsey (11 Ch. D. 284 ; 40 L. T, 
 
 27W. E. 389) 
 
 Allbutt V. General Council of Medical Education (23 Q. B. D. 400). 
 Allcard v. Skinner (36 Ch. D. 145 ; 56 L. J. Ch. 1052 ; 56 L. T. 104 ; 
 
 58 L. T. 61 ; 35 "W. E. 424) . 
 Allen «. Aldridge (5 Beav. 401) 
 
 V. Allen (2 Dru. & Warren, 307) 
 
 V. Bone (4 Beav. 493) . 
 
 V. Garbutt (6 Q. B. D. 165) . 
 
 Alleston v. Moore (Hetl. 167) . 
 
 Allhusen v. Brooking (26 Ch. D. 659) 
 
 Allsop V. Wheatcroft (L. E. 15 Eq. 59; 42 L. J. Ch. 12 ; 27 
 
 372; 21W. E. 162) .... 
 Almada and Tirito Co., Be (38 Ch. D. 415) 
 Alston, Ex parte (L. E. 4 Oh. 168) . 
 Amalia, The (1 Moo. P. C. C. (N.S.) 471 ; Br. & Lush, 151) 
 American Braided Wke Co. v. Thomson & Co. (44 Ch. D. 274) 
 Amon V. Bobbett (22 Q. B. D. 543) . 
 Amos V. Chadwick (9 Oh. D. 459, 463; 47 L. J. Ch. 607; 38 
 
 (N.S.) 415; 26W.E. 556) .... 
 Andalusian, The (3 P. D. 182) .... 
 Anderson v. Bank of Columbia (2 Ch. D. 654, 658) 
 Anderston Foundry Co. (1 App. Cas. 583) . 
 Andrew v. Barnes (39 Ch. D. 133) . 
 ■ V. Boughey (Dyer, 75, b.) . 
 
 ■ V. Swansea Cambrian Building Society (50 L. J. 428) 
 
 Ch, 
 
 Andrews, Ee(7 Oh. D. 635) 
 
 Anglo-African Steamship Co., Be (32 Ch. D. 348 ; 55 L. J. 
 
 54 L. T. 807; 34 W. E. 554) .... 
 Anglo-Italian Bank v. Davies (9 Ch. D. 275; 47 L. J, Ch, 
 
 L. T. (N.S.) 244; 57 W. R. 3) . 
 Angus V. M'Lachlan (23 Ch. D. 330) 
 Anlaby v. Prsetorius (20 Q. B. D. 764) 
 Annandale, The (2 P. D. 179, 218) .... 
 
 Annie, The (12 P. D. 50) 
 
 Appleby v. Franklin (17 Q. B. D. 93). 
 
 Arbenz' Application, In re (35 Oh. D. 248) . 
 
 Arbuthnot v. BulsiloU (62 L. T. 234) 
 
 Argus Life Insurance Co., Ee (39 Ch. D. 571) . 
 
 Arkwright v. Newbold (17 Oh. D. 312) 
 
 Armitage, Ex parte. Ee Learoyd & Co. (17 Ch. D. 13) 
 
 Armory v. Delamirie (1 Strange, 604 ; 1 Smith's L. 0. 385) 
 
 Armstrong, Ee (17 Q. B. D. 167, 621; 21 Q. B. D. 264, 273; 36 
 
 ^•^•'^'^2) 219,220,222 
 
 PAGE 
 
 . 322 
 
 . 656 
 
 1059,1089 
 
 . 1017 
 
 .234; 
 
 103 
 470 
 
 . 603 
 
 . 842 
 
 . 41 
 
 . 831 
 1078, 1079 
 
 . 465 
 
 . 119 
 
 L. T. 
 
 595 
 648 
 110 
 1058 
 303 
 802 
 
 L. T. 
 
 . 755 
 . 1067 
 . 742 
 . 292 
 
 800, 801 
 
 . 427 
 
 . 660 
 
 . 923 
 
 579; 
 
 . 718 
 833; 39 
 
 590, 775 
 . 410 
 
 733, 735 
 . 260 
 . 1074 
 . 461 
 . 312 
 . 361 
 . 282 
 , 496 
 . 949 
 . 482 
 
TABLE OF CASES. XXV 
 
 PAOE 
 
 Arnal, Ex parte. Ke Wilton (24 Ch. D. 26) . . . .927 
 
 Amison, Ex parte (L. E. 3 Ex. 56) 1141 
 
 V. Smith (41 Ch. D. 369) 494, 496 
 
 Arnold v. Dixon (L. E. 19 Eq. 113) 545 
 
 Amott K. Hayes (36 Oil. P. 731) 866 
 
 Arratoon Apcar, The (15 App. Oas. 37) 1059 
 
 Arrowsmith, Ex parte (8 Ch. D. 96) 402 
 
 Ashbury v. Eiche (L. E. 7 H. L. 653) , . . . . 283, 641 
 Ashby V. White (2 Ld. Eaymond, 938 ; 1 Smith L. C. 429) . . 505 
 
 Ashcroft, Ee (19 Q. B. D. 186) 923 
 
 Asher 1-. Calcraft (18 Q. B. D. 607) 1118 
 
 Ashley, In the Goods of Anne (15 P. D. 120) . . , 959, 989 
 
 Ashton V. Corrigan (L. E. 13 Eq. 76) 576 
 
 V. Sharrook (29 W. E. 117) 778 
 
 Ashwin, Ee (25 Q. B. D. 271) 950 
 
 Ashworth, Ex parte. Ee Hoare (L. E. 18 Eq. 705) . . .946 
 V. Outram (5 Ch. D. 941; 46 L. J. Ch. 687; 36 L. T. 
 
 200; 25 W. E. 862) 212 
 
 Aste V. Stumore (13 Q. B. D. 329, 380) . ... . .742 
 
 Aslatt V. Corporation of Southampton (16 Ch. D. 143; 50 L. J. Ch. 
 
 31; 43L. T. 464; 29 W. E. 117) 590 
 
 Astley V. Earl of Essex (L. E. 18 Eq. 290) .... 71 
 
 Atkins V. Shepherd (43 Oh. D. 131) 713, 775 
 
 Atkinson, In re. Atkinson v. Bruce (31 Ch. D. 577) . . . 154 
 V. The Bradford Third Equitable Benefit Building Society 
 
 (25 Q. B. D. 377) 434, 987 
 
 Atlantic Mutual Assurance Co. v. North (16 Ch. D. 474, 481) , 243 
 
 Attorney-General v. Abdy (1 H. & C. 266) 173 
 
 '■ «. Acton Local Board (22 Ch. D. 221) . . 597 
 
 V. Emerson (24 Q. B. D. 56) . . . . 797 
 
 V. Gaskill (20 Ch. D. (C.A.) 525, 526, 530) . 742 
 
 ■ V. Hitchcock (11 Jurist, 478) . . . .852 
 
 ■■ of Hong Kong v. Kwok-a-Sing (5 P. C. 179, 199) 1176 
 
 ■;;, Hubback (10 Q. B. D. 488 ; 13 Q. B. D. 275) 
 
 541, 545 
 
 V. Ironmongers' Co. (2 Beav. 313) . . . 539 
 
 w. Jones (1 Mac. & G. 574) .... 3 
 
 V. Marquis of Ailesbury (12 App. Cas. 672 ; 36 
 
 W.E. 737 ; 57 L. J. Q. B. 83: 58 L. T. 192) . . . .543 
 
 of Ontario v. Mercer (8 App. Oas. 767) . . 12 
 
 V. Sands (Tudor's Eeal Property Oas. 3rd ed. 760. 
 
 et seq.) .......... 55 
 
 V. Shrewsbury (Kingsland) Bridge Co. 21 (Oh. D. 
 
 752) 596 
 
 «;. Theobald (24. Q. B. D. 557) . . . .136 
 
 v. Vyner (38 W. E. 194) . . . .752 
 
 V. Wax Chandlers Company (L. E. 6 H. L. 1) . 512 
 
 u. Webster (20 Eq. 483) 237 
 
XXVI 
 
 TABLE OF CASES. 
 
 PAGE 
 
 38 L. T. 
 
 234, 285. 
 
 723, 735 
 . 63a 
 . 425 
 
 Attree v. Hawe (0 Ch. D. 337, 345 ; 47 L. J. Ch. 863 
 
 733? 26 W. E. 871) • 
 
 Atwood V. Chichester (3 Q. B. D. 722) 
 
 1). Maude(L.R. 3Ch. 369) . 
 
 w. Taylor (1 M. & G. 279, 332) . 
 
 Auld V. Glasgow Working Men's Building Society (12 App. Cas. 
 
 197) . . 
 
 Austerberry -v. Corporation of Oldham (29 Oh. D. 750 ; 53 
 
 543 ; 55 L. J. Ch. 633 ; 33 W. B. 807) . 
 Austin i;. Bowling (L. R. 5 0. P. 540) 
 Australian Wine Importers Co. (41 Ch. D. 278) . 
 Automatic Weighing Machine Co. v. Knight (6 R. P. C. 297, 
 
 Avemr,The(9P.D. 84) 
 
 Axford V. Reed (22 Q. B. D. 548 ; 58 L. J. Q. B. 230 ; 60 L. T, 
 
 37W.R. 291) 
 
 Aylesv. Cox(16Beav. 23) 
 
 Aylesford, Earl of v. Morris (L. R. 8 Ch. 484) . 
 
 Aylmer, In re. Ex parte Bisohoffsheim (20 Q. B. D. 258 ; 
 
 153) . 
 
 Ayres, In the Goods of Harriet (8 P. D. 168) 
 
 ,.Ee(8P. D. 168) 
 
 Ayshford, Re. Ex parte Lovering (4 Mor. 164) 
 
 Azemar v. Casella (L. R. 2 0. P. 679) 
 
 660 
 L. T. 
 
 . 595 
 
 . 461 
 
 313, 316 
 
 309) . 292 
 
 . 1092 
 
 726; 
 
 . 217 
 . 579 
 671, 674 
 4 Mor. 
 
 909, 915 
 
 224, 988 
 
 . 224 
 
 . 950 
 
 . 380 
 
 B, 
 
 Backhouse v. Bonomi (9 H. L. 503) 501 
 
 Badoock Re. Kingdon v. Tagert (17 Oh. D. 361) . . ,. 600 
 
 Badeley v. ConsoUdated Bank (34 Ch. D. 536; 38 Oh. D. 238, 248, 
 
 258^ 57 L. J. Ch. 468 ; 36 W. R. 745) . . 616, 634, 684, 776 
 
 Badische Amlin Und Soda Pabrik v. Levinstein (12 App. Cas. 710 ; 
 
 52 L. J. Ch. 704 ; 48 L. T. 822 ; 31 W. R. 913) . . 290, 298 
 
 Bagley i;. Searle (56 L. T. 306) .587 
 
 Bagnall v. Carlton (6 Ch. D. 130) 777 
 
 Bagot.s;. Bagot and Selton (W. N. (1890) 38) . . . . 1040 
 Bahia, Re, and San Francisco Railway Co. (L. R. 3 Q. B. 584, 595) 
 
 649, 864 
 Bahin v. Hughes (31 Ch. D. 390) 
 BaUe V. Baile (L. R. 13 Eq. 497) 
 Bailey v. Badham (30 Ch. D. 84) 
 
 V. Bailey (12 Q. B. D. 855) . 
 
 V. Bodenham (16 C. B. (N.S.) 288) . 
 
 V. Robertson (3 App. Cas. 1055 ; 38 L. 
 
 BaiUie v. Goodwin (33 Ch. D. 604) . 
 Bain v. FothergiU (L. R. 7 H. L. 158) 
 Bainbridge, Re. Ex parte Fletcher (8 Ch. D. 218) 
 Baird v. Wells (44 Ch. D, 661) , 
 
 • 
 
 . 215 
 
 • • • 
 
 . 847 
 
 • ■ . 
 
 . 1141 
 
 • • • 
 
 . 725 
 
 • • ■ 
 
 . 263 
 
 854 ; 27 W. R. 
 
 17) 297 
 
 • ■- •■ 
 
 . 707 
 
 • • a 
 
 . 581 
 
 8) . . 
 
 . 920 
 
 
 . 599 
 
TABLE OF- CASES. XXVU 
 
 PAGE 
 
 Baird's Case (L. R. 5 Ch. 725) 649 
 
 Baker, Ee (44 Ch,,D. 262) 549 
 
 .V. Baker (5 P. D. 143) 1042, 1043 
 
 ,w. Dening (8 A. & E. 94) 374 
 
 ,«. Oakes (2 Q. B. D. 171) 703 
 
 Baldry v. Bates (52 L. T. 620) 414 
 
 Ball V. Kemp-Welch (14 Ch. ,D. 512 ; 49 L. J. Ch. 528 ; 43 L. T. 
 
 116) 558 
 
 «. Ray (L. E. 8 Ch. 467) 594 
 
 BaUard v. Tomlinson (29 Ch, D. 115 ; 54 L. J. Ch. 454 ; 52 L. T. 
 
 942^ 83 W. E. 533) . , 594 
 
 Banister, Ee (12 Ch. D. 131 ; 48 L. J. Ch. 887; 40 L. T. 828; 27 
 
 W.E. 826) 78 
 
 Bank nf New South Wales v. O'Connor (14 App. Cas. 273 ; 60 
 
 L.T. 467) 570 
 
 Bankes v. Small (36 Ch. Div. 716; affirming 34 Ch. D. 415; 56 
 
 L. J. Ch. 832; 35 W.E. 765) 87,577 
 
 Banks, Ex parte. Ee Bowling (4 Ch. D. 689) . . . .919 
 
 V. Goodfelbw (L. E. 5 Q. B. 549) 391 
 
 Banner «. Berridge (18 Ch. D. 254) 207,583 
 
 Barber, In the Goods of H. T. (11 P. D. 78) . . . . 989 
 
 , Ee (31 Ch. D. 665) 159,784 
 
 Barber's Settled Estates, In re (18 Ch. D. 624, 627) ... 82 
 
 Barker's Trust, Re (1 Ch. D. 43) 512,915 
 
 Barkshire v. Grubb (18 Ch. D. 616 ; 50 L. J. Ch. 731 ; 45 L. T. 
 
 383 ; 29 W. E. 929) 201 
 
 Barlow «. Teal (IS Q. B. D. 501) 120 
 
 Bame, Ex parte. In re Barne (16 Q. B. D. 522) . . 902,903 
 
 Barnes v. Addy (L. E. 9 Ch. 244 ; 43 L. J. Ch. 513 ; 80 L. T. 4 ; 22 
 
 W.E. 505). . , . .583 
 
 ■». Barnes (1 P. & D. 463) .... 1038,1034 
 
 V. Bowling (44 L. T. 809, and Cases there cited) . . 28 
 
 «. Shore (8 Q. B. B. 640) 1110 
 
 r & Co. «. Toye (13 Q. B. B. 410, 412) . . . 386,387 
 
 Bamett, Ex parte, EeDeveze (L.E. 9 Ch. 293) . . .982 
 
 Barrett, Ex .parte (L.E. 10 Ch. 512) 689 
 
 V. Hartley (L. E. 2 Eq. 789) 674 
 
 Barrow v. Barrow. (18 Beav. 522) 602 
 
 Barry ,■!;. Bublin United Tramways Co. (26 L. E. Ir. 150) . . 444 
 Bartholomew v. Ereemao (8 C. P. B. 816) .... 255, 792 
 Bartlett v. Wells (1 B. & S. 836 ; 1 Sid. 258 ; and 8 Ex. 146) . 444 
 
 ir. Wood.(9 W, E. 817) 785 
 
 Barton v. London.and North Western Eailway Co. (24 Q. B. B. 87 ; 
 59 L. J. Q. B. 33 ; 62 L. T. 164 ; 38 W. E. 197)' 635, 649, 659, 862 
 
 V. London and North-Western Ey. Co. (88 Ch. B. 147; 57 
 
 L. J. Ch. 676 ; .58 L. T. 549 ; 86 W. E. 452) . . . .712 
 
 Bartonshill Coal Co. t». Eeid (3 Macq. 266) 487 
 
 Bass «. Gregory (25 Q. B. B. 481) ..... 199,440 
 
XXVlll 
 
 TABLE OF OASES. 
 
 767) 
 
 Bastard v. Proby (2 Cox, 6) . 
 
 Bastin v. Carew (Eyan & Mac. 177) . 
 
 Batavier, The (15 P. D. 37) . 
 
 Bate, Ee (43 Ch. D. 600) . 
 
 Bates, Ee. Ex parte Lindsey (4 Mor. 192) 
 
 i>. Bates (14 P. D. 17). . 
 
 V. Moore (38 Ch. D. 382) 
 
 Batstone v. Salter (L. E. 10 Ch. 431 ; 33 L, 
 Batten, Ee (22 Q.B.D. -685) . 
 
 , V. Gedge (41 Ch. P. 507) . 
 
 Batterbee, In the Goods of (14 P. D. 39) 
 
 Baxter v. London County Council (63 L. T, 
 
 Bayley v. Great Western Eailway Co. (26 Ch. D. 484) 
 
 Baynton v. Morgan (22 Q. B. D. 74) . 
 
 BeaU V. Smith (L. E. 9 Ch. 85) . 
 
 Beauchamp v. Winn (L. E. 6 H. L. 223) 
 
 Beaumont v. Greathead (2 0. B. 494) 
 
 V. Eeeve (8 Q. B. 483) 
 
 Beavan's Trust, In re (34 Ch. D. 716) 
 Beck, Ee (24 Ch. D. 608 ; 49 L. T. 95 ; 31 
 V. Pierce (23 Q. B. D. 316 ; 58 L. 
 
 448; 31W. E. 29) . 
 Beckett v. Attwood (18 Ch. D. 54 ; 50 L. J 
 
 29W. E. 796) .... 
 V. Eamsdale (31 Ch. D. 177 ; 55 
 
 222 ; 34 W. E. 127 . 
 
 V. Tasker (19 Q. B. D. 7 ; 56 L. T. 
 
 Beokford v. Beokford (Loffl. 490) 
 Beckham v. Drake (8 M. & W. 846 ; 11 M, 
 
 579) 
 
 BeddaU v. Maitland (17 Ch. D. 174) . 
 Beddington v. Atlee (35 Ch. D. 317, 324 ; 56 
 
 154 ; 35 W. E. 799) . 
 Beddow v. Beddow (9 Ch. D. 89) . 
 Beeby v. Beeby (1 Hagg. E. E. 795) . 
 Belhaven and Stenton Peerage (1 App. Cas, 
 Behn v. Bumess (3 B. & S. 751) 
 Belaney v. Pfrenoh (L. E. 8 Ch. 918 ; 28 L, 
 BeUamy, Ee (25 Ch. D. 620 ; 48 L. T. 801 
 
 V. Debenham (W. N. (1890) 150) 
 
 and MetropoUtan Board of Works, 
 
 Bell V. Barchard (21 L. J. Ch. 411) . 
 
 ■;;. Denvir (54 L. T. 729) . 
 
 V. Holtby (15 Eq. 189) . 
 
 V. Kennedy (1 So. App. 307, 320) 
 
 BeU's Trusts (5 Ch. D. 504 ; 30 L. T. 644) 
 Benand, Ee (16 W. E. 538) 
 Benares, The (9 P. D. 16) 
 
 FAOE 
 . 514 
 
 . 875 
 . 1097 
 . 551 
 . 900 
 . 953 
 . 693 
 T. 4; 23W. E. 816) . 517 
 . 911 
 , 1134 
 . 987 
 , 807 
 . 201 
 . 128 
 . 710 
 . 603 
 424, 505 
 . 367 
 . 70 
 . 155 
 
 W. E. 900) 
 
 J. Q. B. 516; 61 L. T. 
 
 . 217,361 
 Ch. 687;44L. T.660; 
 
 . 797 
 L. J. Ch. 241 ; 54 L. T. 
 
 . 862 
 686) . . 218,219 
 . 517 
 &W. 315; 2H. L. C. 
 
 . 501 
 . 131,805 
 L.J. Ch. 655;56L.T. 
 
 . 520 
 
 . 590 
 
 . 1015 
 
 858 
 
 380 
 
 848 
 
 211 
 
 582 
 
 848 
 
 115 
 
 . 770 
 
 . 38 
 
 1003,^005 
 
 . 535 
 
 . 612 
 
 . 1067 
 
 279) 
 
 T. 618) . 
 
 31 W. E. 900) . 
 
 Ee (24 Ch. D. 387) 
 
TABLE OF OASES. XXIX 
 
 PAGE 
 
 Benbow v. Townsend (1 M. & K. 506) 511 
 
 Bennet v. Bennet (10 Oh. D. 474 ; 40 L. T. 378 ; 27 W. E. 573) . 517 
 Bentley v. Vilmont (12 App. Cas. 471 ; 57 L. J. Q. B. 18 ; 57 L. T. 
 
 854; 36 W. E. 481) . 243 
 
 Benwell, Ex parte. (Ee Hutton 14 Q. B. D. 301) . . .919 
 Benyon v. Benyon and O'Callagan (15 P. D. 29 ; affirmed 15 P. D. 
 
 54) ' 1036, 1037 
 
 Berkeley v. Standard Discount Co. (13 Oh. D. 95) . . . 744 
 
 Berkley, Ee (L. E. 9 Ch. 720 ; 31 L. T. 365 ; 43 L. J. Ch. 703) . 512 
 Bernina, The (13 App. Cas. 1) . . . . . . . 1062 
 
 Berridge v. Berridge (44 Ch. D. 168) 681 
 
 Berry v. Ada,mson (6 B. & C. 528) 457 
 
 Beryl, The (9 P. D. 134) . . , . . . . 1061, 1065 
 Besant, In re (11 Ch. D. 508; 48 L. J. Ch. 497 ; 40 L. T. 469; 27 
 
 W. E. 741) 609 
 
 : V. Wood (12 Ch. D. 605, 620 ; 40 L. T.,445) 354, 588, 609, 1039 
 
 Beswick, Ee, Ex parte Hazlehurst (5 Mor. 105) . . . 950 
 
 Bethell, In re. BetheU v. Hildyard (38 Ch. D. 220; 57 L. J. Ch. 
 
 487 ; 58 L. T. 674 ; 36 W. E. 503) 998 
 
 V. Abraham (17 Eq. 24; 43 L. J. Ch. 180; 29 L. T. 715 ; 
 
 22W. E. 179) 172 
 
 • V. Clark (20 Q. B. D. 617, 620) .... 435, 436 
 
 Bethlehem and BrideweE Hospitals, Ee (30 Ch. D. 541) . . 698 
 
 Betts V. Gibbons (2 A. & E. 57) 452 
 
 Bewley v. Atkinson (49 L. J. Ch. 160) 891 
 
 Beynon v. Cook (L. E. 10 Oh. 389, 391 n. ; 32 L. T. 53; 23 W. E. 
 
 531) 336, 672, 674, 675 
 
 Bianchi v. Oflford (17 Q. B. D. 484) 336 
 
 Bickers V. Speight (22 Q. B. D. 7) 725,726 
 
 Bickley V. Bickley (L. E. 4 Eq. 216), 13 
 
 Bidder/!). Bridges (37 Oh. D. 406 ; 57 L. J. Oh. 300 ; 58 L. T. 656) 371 
 
 Bill i;. Bament (9 M. & W. 36) 374 
 
 Billage v. Southee (9 Hare, 534) 840 
 
 Billingay v. Billingay (et al.) (35 L. J. (Mat.) 84) . . . 1036 
 
 Billmghurst v. Viokers (1 PhilUm. 189) 166 
 
 Birchi). Earl of Liverpool (9 B.& 0.392)- 367 
 
 Birchall, Ee (16 Oh. D. 41) 605 
 
 Bird i;. Jones (7 Q, B. 742) 457 
 
 Birkmyr v. Darnell (1 Smith's L. C.) 375, 376 
 
 Birmingham and District Land Co. v. London and North Western 
 
 Eailway Co. (34 Ch. D. 261) 712 
 
 Birmingham, Dudley and District Banking Co. v. Eoss (38 Oh. D. 
 
 295,312) 197,202 
 
 Birmingham and Staffordshire Gas Light Co. Ee Eanshawe (L. E. 
 
 11 Eq. 615) 931 
 
 Bisohoffsheim, Ex parte. Be Ayhner (19Q. B. D. 33). . . 909 
 Biscoe V. Jackson (35 Ch. D. 460; 56 L. J. Oh. 540; 56 L. T. 753 ; 
 
 35W. E.554) 238 
 
XXX 
 
 TABLE OF CASES. 
 
 Bishop, Ex parte. Re Tonnies (L. R. 8 Ch. 718) 
 
 ; Re (13 CL D. 110; 49 L. J. (Bkcy.) 1; 41 L, 
 
 W. E. 174) 
 
 • V. Latimer (4 L. T. 775) . 
 
 T. 388 ; 28 
 
 Bissett V. Jones (32 Ch. D. 637) 
 
 Bithray, Re (38 W. R. 60) 
 
 Blackburn, Re (43.0h. D. 75 ; 59 L. J. Ch. 208 ; 38 W. E. 140) . 
 
 „. Blackburn (36 L. J. (Mat.) 88; 16 L. J. (N.S.) 435) . 
 
 ■ , Low, & Co. V. Vigors (12 App. Cas. 531 ; 57 L. J. Q. B. 
 
 114; 57 L. T. 726; 36 W. R. 449) 
 
 -, Low, & Co. V. Haslam (21 Q. B. 
 
 479; 36 W. R. 855) 
 Blackford, Re (27 Ch. D. 676) . 
 Blackman, Ex parte (1 B. & Ad. 122) 
 Blaiberg v. Beckett (18 Q. B. D. 96 ; 
 
 876 ; 35 W. E. 34) . 
 
 i V. Parsons (17 Q. B. D. 366) . 
 
 Blair v. Bromley (5 Hare, 542 ; 2 Phil. 
 
 V. Cordner (19 Q. B. D. 516) 
 
 Blake, Ex parte. Ee MoBwan (11 Oh. D. 572) 
 
 , Ee (29 Ch. D. 913; 53 L. T. 302 
 
 W. R. 886) 
 
 56 L. J. Q.B. 35; 55 L. T. 
 
 354) 
 
 V. Herts and Essex Waterworks Co. (41 Ch. D. 399) 
 
 Blake's Case (6 Co. 43 6, 44 a) . 
 Blakey v. Latham (43 Ch. D. 23) 
 Blaksley, Ee (23 Ch. D. 549) . 
 Blanchard v. Hill (2 Ath. 484) . 
 Blanchett, Ex parte. Re Keeling (17 Q. B. 
 Blaady v. Widmore (1 Peere Williams, 324) 
 Blank v. Footman, Pretty, & Co. (39 Ch. D. 
 Blankenstein v. Robertson (24 Q. B. D. 543) 
 Blewitt, In the Goods of (5 P. D. 116) 
 Bligh V. Brent (2 Y. & C. 208) 
 
 Blower v. Great Western Railway Co. (L. E. 7 0. P. 662) 
 Bloxam v. Elsee (1 Web. P. C. 132 ; 6 B. & C. 169) . 
 r V. Pavre (8 P. D. 101 ; 9 P. D. 130) 
 
 D. 144; 57 L. J. Q. B. 
 
 FAOH 
 
 923 
 
 598 
 465 
 560 
 776 
 157 
 1030 
 
 419 
 
 419 
 
 206 
 
 1134 
 
 336 
 336 
 621 
 845 
 928 
 
 54 L. J. Ch. 880; 33 
 
 785, 787 
 . 285 
 . 427 
 . 794 
 . 777 
 . 314 
 . 900 
 . 665 
 306, 307 
 . 339 
 . 974 
 . 376 
 . 411 
 295, 298 
 . 160 
 
 D. 303) 
 678) 
 
 Bluck,.Ex parte (57 L. T. 419) ... . . .. .932 
 
 Blue Ribbon, &c.. Insurance Co. (W. N. (1889) 176) , . . 529 
 Blyth V. Birmingham Waterworks Co. (11 Exch. 781) . . . 484 
 
 ■ and Young, In re (13 Ch. D. 416; 41 L. T. 476; 28 W. E. 
 
 ' 266) 586 
 
 Board of Trade, The v. Block (13 App. Cas. 570, 581 ; 56 L. J. Q B 
 
 : 370 ; 56 L. T. 804 ; 35 W. E. 530) . . . 281, 943, 945 
 
 Boardman v. Boardman (1 P. & D. 233) 1011 
 
 Boddington v. Schlentur (4 B. & Ad. 759)- 263 
 
 Bodkin v. Case (Milw. Ir. E. C. 356) ...... 1026 
 
 Bolckow V. Fisher (10 Q. B. D. 168) ...!!! 742 
 Bold Buccleugh, The (7 Moo. P. C. 267) . . . . . 1051 1052 1053 
 
TABLE OF CASES. 
 
 XXXI 
 
 L. T, 
 
 Bold V. Hutehinson (5 De G. M. & G. 558) 
 Boltott, Ee (30 W, E. 596) 
 
 ' — ■ V. Corporation bf Liverpool (1 Mylne & K. 94, 95) 
 
 ■ V. Lambert (41 Ch. D. 295 ; 58 L. J. Oh. 425 j 60 
 
 687 ; 37 W. E. 434) .... 
 
 V. London School Board (7 Ch. D. 766) 
 
 Bond, In re (21 Q. B. D. 17) . 
 
 V. Hopkins (1 S. & L. 433) 
 
 w Bosling (1 B. & S. 371) 
 
 V. Walford (32 Ch. D. 238 ; 55 L. J. Ch. 667 ; 43 L. T, 
 
 Bone V. "Whittle (1 P. & D. 249) 
 Bonnewell v. Jenkins (8 Ch. D. 70) . 
 Booth ■;;. Maofarlane (1 B. & Ad. 904) 
 
 ' V. Eattd (15 App. Gas. 188) . 
 
 Borough V. Collins (15 P. D. 81) 
 
 Borthwick v. The Evening Post (37 Ch. D. 499) 
 
 Boss V. Helsham (L. E. 2 Ex. 72) 
 
 Boston Co. V. Ansell (39 Oh. D. 359 ; 59 L. T. 345) 
 
 Bosville V. Attorney-General (12 P. D. 178) 
 
 Boswell V. Coaks (36 Ch. D. 444; 57 L. J. Ch. 101 ; 57 
 
 35W. E.€5) . 
 Bothamleyw. Sherson (20 Eq. 204) 
 Boughton, re. Boughton v. Boughton (23 Ch. D. 169) 
 Boulting V. Boulting (3 Sw. & Tr. 335) 
 Boultcm V. Bull (1 Carp. 149) . 
 Boulston's Case (5 Co. 104 a) . 
 Bourke v. Davis (44 Ch. D. 110) 
 Boussmater, Ex parte (13 Ves. 71) 
 Bowen v. Hall (6 Q. B. D. 337). 
 
 Bower v. Peate (1 Q. B. D. 321, 326 ; 45 L. J. Q. B. 446) 
 Bowes V. Hope Society (11 H. L. 0. 389) . 
 ' Bowie V. Marquis of Ailsa (13 App. Cas. 371) 
 Bown, Ee (27 Ch. D. 411 ; 50 L. T. 796) . 
 Bowser v. Maclean (2 De G. P. & J. 427) . 
 Boxall V. Boxall (27 Ch; D. 220) 
 Boycott, Ee (29 Oh. D. 573; 52 L. T. 482). 
 BoydeU v. Drmnmond (11 East. 142) 
 Boyes,-Re. Boyes v. Carritt (26 Ch. D. 531) 
 Boyes v. Cook (14 Ch. D. 53) . . 
 Bbyse i;. Eossborough (6 H. L, C. 34). 
 Bozon<u. Parlow(l Mer. 459) . 
 Bracken, Ee<43 Oh. D.l) 
 Brackenbury, In the Goods of (2 P. D. 272) 
 Bradrook, Ee (23 Q. B. D. 226 ; 37 W. E. 700) 
 Bradford Banking Company «. Briggs (12 App. Cas. 29 
 
 364 ; 56 L. T. 62 ; 35 W. E. 521) 
 Bradford v. Yomig.(26 Oh. D. 26; 50 L. T. 707; 32 W, 
 Bradlaugh v.. Gossett (12 Q. B. D. 271) 
 
 56 L, 
 
 672). 
 
 PAGE 
 . 600 
 
 . 696 
 
 . 878 
 
 L. T. 
 
 416, 582 
 
 . 86 
 
 . 903 
 
 . 574 
 
 . 113 
 
 141 
 
 994 
 
 . 581 
 
 . 132 
 
 . 199 
 
 . 1147 
 
 . 317 
 
 . 759 
 
 . 645 
 
 1027, 1028 
 
 742; 
 
 . 834 
 . 163 
 . 848 
 . 1015 
 . 289 
 . 450 
 . 199 
 . 384 
 . 505 
 . 445 
 . 655 
 . 711 
 . 228 
 . 187 
 . 226 
 . 843 
 373,378 
 519, 520 
 . 169 
 . 963 
 . 577 
 
 J. Oh. 
 
 E. 901) 
 
 988 
 915 
 
 102 
 356 
 454 
 
XXXll 
 
 TABLE OF CASES. 
 
 Bradlaugli v. Newdegate (11 Q. B. D. 1) . 
 Bradley v. Clayton (26 L. E. (Ir.) 405) 
 
 V. Holdsworth (3 M. & W. 422) . 
 
 i). Peixoto(3 Ves.324). 
 
 Brady v. Todd (9 C. B. (N.S.) 592) . 
 
 Brandon, Ex parte (34 W. E. 352) . 
 
 Brandao v. Barnett (3 C. B. 519 ; 12 C. & P. 787) 
 
 Brandram, Ee (25 Ch. D. 366 ; 53 L. J. Ch. 831 ; 49 L. T. 558 ; 32 
 
 W. E. 180) 
 
 Bray v. Stevens (12 Ch. D. 162) 
 
 Breadalbane, Marquis of v. The Marquis of Chandos (2 My. & Cr. 
 
 739) 
 
 PAGE 
 
 400, 1183 
 
 . 870 
 
 . 376 
 
 . 47 
 
 . 414 
 
 . 717 
 
 . 437 
 
 782 
 171 
 
 601 
 
 Brereton v. Edwards (21 Q. B. D. 488) 358 
 
 Brewster r. Sewell (2 B. & A. 206) 856 
 
 Bridge v. Great Junction Eailway Co. (3 M. & W. 244) . . 485 
 
 Bridger v. Savage (15 Q. B. D. 363 ; 54 L. J. Q. B. 464 ; 53 L. T. 
 
 129; 33 W. E. 891) 404, 405 
 
 Bridgetown "Waterworks Co. v. Barbados Water Supply Co. (38 Ch. D. 
 
 378) 734 
 
 Briggs «. Briggs (5 P. D. 163) 1005 
 
 Bright V. Legerton (2 De G. F. & J. 617) 203 
 
 Smith, Ee. Bright Smith v. Bright Smith (31 Ch. D. 314 ; 
 
 55 L. J. Ch. 365 ; 54 L. T. 47 ; 34 W. E. 252) . . 8, 167 
 
 Brighton Brewery Co., Ee (37 L. J. (Ch.) 278) 
 
 (Mayor of) v. Guardians of Brighton (5 C. P. D. 368) 
 
 Brindley, Ee (4 Mor. 104) 
 
 Bringloe «. Morrice (1 Mod. 210) 
 
 Brinsmead v. Harrison (L. E. 7 C. P. 547) 
 
 Bristol, Cardiff and Swansea Aerated Bread Co. v. Maggs (44 Ch. D. 
 
 616) 
 
 Joint Stock Bank (44 Ch. D. 703) 
 
 Permanent Building Society v. Bomash (35 Ch. D. 390) 
 
 Bristow V. Booth (L. E. 5 C. P. 80, 91) 
 
 Bristowe V. Ward (2 Ves. Jun. 336) 
 
 British Seamless Paper Box Co. (17 Ch. D. 467, 479) . 
 
 Briton, Ee (37 W. E. 621) \ 
 
 Briton Medical and General Life Assurance Association Case, In re 
 
 (32Ch.D. 503) 
 
 Broad v. Perkins (21 Q. B. D. 533 ; 57 L. J. Q. B. 638 ; 37 "w. R 
 
 44; 60L. T. 8) 
 
 Broadbentu. Barrow (20 Ch. D. 676) . 
 
 ■". (29 Ch. D. 560 ; 31 Ch. D. 119) 
 
 644 
 204 
 919 
 407 
 452 
 
 582 
 658 
 581 
 695 
 669 
 643 
 927 
 
 591 
 
 Broadwood, Ee (55 L. J. (Ch.) 646) .. 
 Broadwood's Settled Estates, In re (1 Ch. D. 438) 
 Brook I'. Brook (12 P. D. 19) . . . . 
 Brooke, Ee (3 Ch. D. 630) . . \ . 
 
 V. Haynes (L. E. 6 Eq. 25) . \ 
 
 «. Kent (1 N. C. (P.C.) 95) . 
 
 356, 819 
 . 163 
 . 237 
 
 693, 782 
 . 41 
 . 1012 
 . 171 
 . 986 
 . 974 
 
TABLE OF GASES. 
 
 XXXlll 
 
 Brooks V. Mitchell (9 M. & W. 15) . 
 
 Brooksbank, In re. Beaucleik v. James (34 Ch. D. 163) 
 
 Brooking v. Maudslay, Son, & Field (38 Ch. D. 636) 
 
 V. Skewis (58 L. T. (N.S.) 73) 
 
 Broome v. Monck (10 Ves. 609) 
 
 Brough, Ee (38 Ch. D. 456) . 
 
 Broun v. Kennedy (33 Beav. 133) 
 
 Brown, Ex parte. Ee Tates (11 Ch. D. 148) 
 
 , In the Goods of (2 P. D. 110) 
 
 , Ee (60 L. T. 397) 
 
 V. Alabaster (37 Ch. D. 490) . 
 
 V. Allen & Oliver (4 Esp. 158) 
 
 V. Brine (1 Ex. D. 5) . 
 
 V. Brown (1 P. & D. 46) 
 
 V. (58 L. J. Ch. 420) . 
 
 V. Collins (25 Oh. D. 56) 
 
 , Ethel, In re (13 Q. B. D. 614) 
 
 V. Eye (L. E. 17 Eq. 343) 
 
 V. Sewell (16 Oh. D. 517) 
 
 V. Wooton (Cro. Jac. 73) 
 
 V. Watkins (16 Q. B. D. 129). 
 
 Brown's Will, Ee (27 Ch. D. 179 ; 53 L. J. Ch. 921 ; 51 L. T, 
 
 32 W. E. 894) .... 
 Browne v. La Trinidad (37 Oh. D. 1). 
 
 and Wingrove, Ee (W. N. (1890) 131) 
 
 Brownlie v. Eussell (8 App. Oas. 235) 
 Brownrigg v. Pike (7 P. D. 61) . 
 Brunsden v. Humphrey (14 Q. B. D. 141) 
 Bryant, Ee (4 Oh. D. 98) 
 
 and Barmingham's Contract, In re (32 Ch. D. 454) 
 
 V. Lefever (4 0. P. Div. 172) 
 
 V. Beading (17 Q. B. D. 128). 
 
 Buchan v. Artlett (W. N. (1888) 76) . 
 Buchan's Case, Ee (4 App. Oas. 589) . 
 Buckhurst Peerage, In re, the (2 App. Oas. 27) 
 Buckley v. Howell (29 Beav. 546) . 
 
 V. Eoyal National Life Boat Institution (43 Ch. 
 
 Buddon v. Great Northern Eailway Co. (28 L. J. Exoh. 
 Building Societies Trust, Limited, Ee (44 Oh. D. 140) 
 Buist V. Bridge (43 L. T. 432) .... 
 Bull, Ex parte. Ee Bew (18 Q. B. D. 642 ; 56 L. J. Q 
 
 L. T. 571 ; 35 W. R. 455) . 
 Bullmore v. Wynter (22 Ch. D. 619) . 
 Bulmer v. Hunter (L. E. 8 Eq. 46) . 
 Bunny, Ex parte (1 De G. & J. 309) . 
 Burd V. Burd (40 Ch. D. 628 ; 58 L. J. Oh. 170 ; 60 L, 
 
 W.R. 428) 
 
 Burden, Ee. Ex parte Wood (21 Q. B. D. 24) 
 VOL. I. 
 
 D. 27) 
 51) 
 
 T. 128 
 
 156; 
 
 PAGE 
 
 265 
 669 
 281 
 562 
 667 
 183 
 602 
 949 
 984 
 918 
 202 
 
 '451 
 398 
 
 1011 
 170 
 612 
 609 
 571 
 834 
 452 
 742 
 
 151 
 641 
 909 
 660 
 980 
 507 
 598 
 586 
 199 
 765 
 197 
 649 
 19 
 696 
 238 
 411 
 658 
 778 
 
 B. 270 ; 56 
 
 . 117 
 
 139, 228 
 
 . 135 
 
 . 898 
 
 ; 37 
 
 . 846 
 
 . 954 
 
 a 
 
XXXIV 
 
 TABLE OF OASES. 
 
 B. 
 
 Ch. D. 416) 
 
 Burgess, Ee (4 Morrell, 190 ; 35 W. E. 702) 
 
 V. Burgess (De G. M. & G. 896) . 
 
 Burkinshaw v. Nicholls (3 App. Oas. 1004). 
 Burland's Trade Mark, Ee (41 Ch. D. 542) . 
 Burlinson •</. Hall (12 Q. B. D. 347, 350 ; 58 L. J. Q, 
 
 L. T. 723 ; 32 W. R. 492) .... 
 Burnaby v. BaiUie (42 Ch. D. 282 ; 58 L. J. Ch. 842 
 
 38 W. E. 135) . . . . . 
 
 V. Equitable Eeversionary Interest Society (28 
 
 Burnard v. Haggis (14 C. B. (N.S.) 45) 
 
 V. Eodocanachi (7 App. Oas. 333 ; 51 L. J. Q. 
 
 L.-T. 277; 31W. E. 65) .... 
 Bumey v. United Telephone Co. (28 Ch. D. 94) . 
 Burns v. Bryan or Martin (12 App. Gas. 184) 
 Buron v. Denman (2 Ex. 167) .... 
 Burrell, Ee (L. B. 7 Eq. 399) .... 
 Burroughs, Lynn & Sexton's Contract, In re (5 Ch, 
 
 L. J. Ch. 528 ; 36 LJ T. 778 ; 24 W. E. 520) . 
 Burstall v. Beyfus (26 Ch. D. 35 ; 53 L. J. Ch. 565 ; 50 L. T. 542 ; 
 
 32W. E.418) 
 
 Burt V. Burt (29 L. J. (Prob.) 133) . 
 Burton v. Sturgeon (2 Ch. D. 318) . 
 Busfield, In re. Whaley v. Busfield (32 Ch. D. 123 ; 
 
 467 ; 54 L. T. 220 : 34 W. E. 372) . . 
 
 Bustros V. White (1 Q. B. D. 426 ; 45 L. J. Q. B. 642 ; 34 L. T, 
 
 834; W. E. 721) .... 
 
 Butcher v. Stead (L. E. 7 H. L. 839) 
 Bute (Marquis of) v. James (33 Ch. D. 157) 
 Butler V. Butler (14 Q. B. D. 835, 836 ; 16 Q. B. D. 374 ; 55 L. J, 
 
 Q. B. 55 ; 54 L. T. 591 ; 34 W. E. 132) 
 
 V. (15 P. D. 13, 32, 126) 
 
 V. and Burnham (15 P. D. 66. 
 
 ■■ V. (16 Q. B. D. 374) . 
 
 PAGE 
 
 . 916 
 
 . 317, 318 
 
 . 864 
 
 . 717 
 
 222; 50 
 
 . 267, 569 
 
 61L. T. 634; 
 
 182 
 59 
 444 
 B. 548 ; 47 
 
 . 270 
 . 301 
 . 59 
 445, 446, 453 
 . 104 
 D. 601; 46 
 
 . 586 
 
 532 
 
 1181 
 
 139 
 
 717 
 
 742 
 921 
 876 
 
 v. Dolben (2 Lee, 319) 
 
 V. Wearing (17 Q. B. D. 182) . 
 
 Butler's Will, In re (L. E. 16 Eq. 479) 
 
 Buxton V. Lister (3 Atk. 384) . 
 
 Byrne v. Boadle (2 H. & 0. 722 ; L. J. Ex. 13 • 9 L 
 
 W. E. 279) 
 Bywell Castle, The (4 P. D. 219) 
 
 71, et seq.) 
 
 55 L. J. Ch. 
 
 . 212 
 
 . 1021, 1029 
 
 . 1017 
 
 . 218 
 
 . 1026 
 
 . 930 
 
 . 41 
 
 . 576, 577 
 
 T. 450; 12 
 
 . 491 
 . 1056 
 
 C. 
 
 Cadell V. Palmer (7 Bligh. (N.S.) 202; Tudor's Eeal Property. 
 
 3rded.) 71 
 
 Cadman v. Cadman (33 Ch. D. 397 ; 55 L. J. Ch 833 • 55 T T 
 
 569; 33W. E. 1) " ' ° ^- ■^- 
 
 Gah€n, Exparte(10Ch. D. 183) ..".'.'.* 901 
 
TABLE OF CASES. 
 
 XXXV 
 
 Caird v. Moss (33 Ch. D. 22, 25) 
 
 V. Sime (12 App. Cas. 326) 
 
 Calcutta Jute Mills v. Nicholson (1 Ex. D. 445) 
 Californian Fig Syrup Co., In re (40 Ch. D. 620) 
 Callaway, In the Goods of (15 P. D. 147) . 
 Callow V. Young (56 L. T. 147) 
 Calvert v. Godfrey (6 Beav. 97) 
 
 V. Thomas (19 Q. B. D. 204) . 
 
 Calye's Case (8 Co. 32 ; 2 Smith's L. Cas. 9th ed. p. 132) 
 Cambefort v. Chapman (19 Q. B. D. 229; 56 L. J. Q. B. 
 
 57 L. T. 625 ; 35 W. E. 838) 
 Camden v. Fletcher (4 M. & W. 378). 
 Camelia, The (9 P. D. 27) 
 Cameron, Ee (37 Ch. D. 32) . 
 Campbell, Ex parte. Ee Wallace (15 Q. B. D. 213) 
 
 V. Corley (31 L. J. (Mat.) 60, 1862) . 
 
 V. Holyland (7 Ch. D. 171 ; 47 L. J. Ch. 145; 38 
 
 128 ; 26 W. E. 160) . 
 
 (Lord CoUn), Ee (20 Q. B. D. 816; 59 L. T. 
 
 36 W. E. 584) 
 
 V. Lord Dalhousie (L. E. 1 Sc. 462) 
 
 V. Poulett (W. N. (1884) 48) 
 
 V. Eickards (5 B. & Ad. 846) 
 
 Campbell's Case (L. E. 9 Ch. 1). 
 
 Trusts, Ee (31 Beav. 176) 
 
 Campden Charities, Ee (18 Ch. D. 310 ; 50 L. J. Ch. 646 ; 45 
 
 152; 30 W. E. 496) . 
 Cannan v. Bruce (3 B. & A. 179) 
 Canning v. Farquhar (16 Q. B. D. 727) 
 Cannon, Ex parte (30 Ch. D. 632) . 
 
 . V. Johnson (L. E. 11 Eq. 90) 
 
 V. Smalley (10 P. D. 9) 
 
 Capdevielle (33 L. J. Exch. 306) 
 
 Capital and Coonties Bank, Limited v. George Henty & 
 (7 App. Cas. 741, 787 ; 52 L. J. Q. B. 232 ; 47 L. T. 
 
 31 W. E. 157) 
 
 Capital Fire Insurance Association, In re (24 Ch. D. 408) 
 Capon's Trusts, In re (10 Ch. D. 484). 
 Capron v. Capron (L. E. 17 Eq. 288) .... 
 Cardigan v. Curzon-Howe (80 Ch. D. 586 ; 40 Ch. D. 338 ; 41 Ch. D. 
 375 ; 33 W, E. 836 ; 37 W. E. 247 ; 58 L. J. Ch. 177 ; 59 L. T. 
 
 252) 27, 158, 154, 155, 156 
 
 Caidinall v. Cardinall (25 Ch. D. 772 ; 58 L. J. Ch. 686 ; 82 W. E. 
 
 411) 752 
 
 Cargill V. Bower (10 Ch. D. 502 ; 47 L. J. Ch. 649 ; 26 W. E. 716) 493 
 
 Carlyon, Ee (55 L. J. Ch. D. 219) 786 
 
 Carmichael v. Liverpool, &c.. Indemnity Association (19 Q. B. D. 
 
 242) . . . 281 
 
 c 2 
 
 PAOB 
 
 603, 739 
 . 321 
 . 820 
 . 816 
 . 969 
 . 770 
 . 607 
 . 336 
 408, 410 
 639; 
 
 . 862 
 . 985 
 . 1073 
 . 142 
 . 909 
 . 1026 
 L. T. 
 
 560, 565 
 
 194; 
 
 916, 917 
 
 . 876 
 
 . 746 
 
 . 872 
 
 . 648 
 
 . 512 
 
 L. T. 
 
 539, 540 
 
 . 399 
 
 . 273 
 
 . 645 
 
 . 558 
 
 . 999 
 
 . 1004 
 
 Sons 
 
 476; 
 
 465, 466, 469 
 
 848 
 
 179 
 
 25 
 
XXXVl TABLE OF CASES. 
 
 Carpenters. Deen (23 Q.B.D. 566; 61 L.T. 860) . . .332 
 
 1;. Smith (1 Web. P. C. 532) 298 
 
 Carr v. Clarke (2 Chit. 261) 461 
 
 V. London and North Western Eailwaj' Company (L. E. 10 C. P. 
 
 307) 864: 
 
 Carsliore v. North Eastern Eailway Co. (29 Ch. D. 334 ; 54 L. J. Cli. 
 
 760 ; 52 L. T. 232 ; 33 W. E. 420) 712 
 
 Carson v. Piekersgill & Sons (14 Q. B. D. 859 ; 55 L. J. Q. B. 312 ; 
 
 52L. T. 950; 33 W. E. 589) 711 
 
 Carter v. Boehm (Smith's Leading Cases, vol. i.) . . . . 872 
 
 V. Wake (4 Ch. D. 605 ; 46 L. J. Ch. 841) . . .110 
 
 Cartwright, In re. Avis v. Neveman (41 Ch. D. 532) ... 28 
 
 , Ee (W. N. (1889) 101) 28 
 
 Casey v. Hellyer (17 Q. B. D. 97 ; 55 L. J. Q. B. 207 ; 54 L. T. 103 ; 
 
 34 W. E. 271, 337) 725 
 
 Cassels -v. Stewart (6 App. Cas. 64) 627 
 
 Cassidy v. Belfast Banking Co. (22 L. E. Ir. 68) ., . . 676, 677 
 
 Castellain v. Preston (11 Q. B. D. 380; 31 W. E. 557; 52 L. J. 
 
 Q. B. 366 ; 49 L. T. 29) 269 
 
 Castledine, Ke (44 L. T. 469) 691 
 
 Castle Mail Packets Co. Ee Payne (18 Q. B. D. 154) . . .944 
 
 Cate V. .Devon and Exeter Constitutional Newspaper Co. (40 Ch. D. 
 
 500). 319 
 
 Cato V. -Irving (5 De G. & S. 210 ; 58 L. J. Ch. 288 ; 60 L. T. 672 • 
 
 37W.E.487) 1085 
 
 Caton V. Caton (L. E. 2 H. L. 127 ; 16 W. E. 1 ; 36 L. J. Ch. 886) 
 
 374„376 
 Cattlin V. Brown (11 Hare, 372) 7q 
 
 Cautley v. Cautley. Cautley v. Cautley & Playfair (W E (1890) 
 
 48,49) 1041 
 
 Cavendish v. Cavendish (24 Ch. D. 685; 30 Ch. D. 227) , '237 
 
 Bentinck v. Penn (12 App. Cas. 653) ... 645 
 
 Cawley & Co., Ee (42 Ch. D. 209) ....."' 649 
 Cecilie, The (4 P. D. 210) ...,.' 1089 
 
 Cella, The (13 P. D. 87) [ [ " jqsi 
 
 Central Bank of London v. Hawkins (62 L. J. 901) 337 
 
 Ceto, The(14P. D. 670) ...... " 1065 
 
 Challender v. Eoyle (36 Ch. D. 425) .....' 301 
 
 Chamberlain v. Boyd (11 Q. B. D. 407, 414; 52 L. J Q B 277- 
 
 48L. T. 328) .' 505 506 
 
 Chamberlayne v. Brockett (L. E. 8 Ch. 206) . , ' 23<5 
 
 Chambers v. Kingham (10 Ch. D. 743) - - 1 ' 125 
 
 Champney v. Davy (11 Ch. D. 949) .....' 237 
 Chandelor v. Lopus (1 Smith L. C, 9th ed. 186) . . ' " 496 
 Chanter v. Hopkins (4 M. & W. 404). . . .' ' ' qbo 
 Chapleo v. Brunswick Building Society (6 Q. B D 696) ' ' raa. 
 Chaplin, Ex parte (26 Ch. D. 319) . II7 
 
 Chapman, Re (13 Q. B. D. 747) ••"!!" 925 
 
TABLE OF CASUS. 
 
 xxxvu 
 
 Chapman v. Withers (20 Q. Bi D. 824) 
 
 Chappie, Ke. Newton v. Chapman (27 Ch. D. 584) 
 
 Charles v. Jones (33 Ch. D. 80) 
 
 Charnian, Ex parte. In re Clagett (W. N". (1887) 184) 
 
 Charter v. Charter (58 L. J. (P. D. & A.) 44) ... . 
 
 Chartered Bank v. Dickinson (L. E. 3 P. C. 574) .... 
 
 Chartered Mercantile Bank of India, &c. v. Netherlands Steam Navi- 
 gation Co. (10 Q. B. D. 521) 1058, 1059 
 
 . 1084 
 . 8,31 
 . 324 
 . 776 
 
 PAGE 
 
 255 
 840 
 567 
 424 
 1040 
 263 
 
 Chasteauneuf v. Capeyron (7 App. Cas. 127) 
 Chatfield v. Berchtoldt (L. R. 7 Ch. 192) . 
 Chatterton v. Cave (3 App. Cas. 492) 
 
 V. Watney (16 Ch. D. 383) 
 
 Chaytor's Settled Estates Act in re (25 Ch. D. 651 ; 50 L. T. 88 ; 
 
 53 L. J. Cb. 321 ; 32 W. E. 517) 27, 156 
 
 Cheerful, The (11 P. D. 3) 1074 
 
 Cheese V. Lovejoy (2 P. D. 251) 162,975 
 
 Cherry v. Hemming (4 Ex. 631) 82, 362 
 
 V. Thompson (L. E. 7 Q. B. 574) 430 
 
 Chesham (Lord) In re. Cavendish v. Dacre (31 Ch. D. 466). . 667 
 
 Chester v. Powell (52 L. T. 722) 128 
 
 Chesterfield v. Black (13 Ch. D. 138, n.) . . . . ' . 745 
 
 V. Janssen (2 Ves. Sen. 127) 671 
 
 Chetwynd v. Cbetwynd (1 P. &. D. 35, 41 ; 35 L. J. 
 
 35) 
 
 ,1036 
 
 (Mat.) 21, 
 . 1034, 
 17 L. T. 35 ; 
 
 . 661, 662 
 
 Chichester, Lord v. Coventry (L. E. 2 H. L. 71, 95 
 
 36 L. J. (Ch.) 673; 15 W. E. 849) 
 Chidley v. Churchwardens of West Ham (32 L. T. 486) . . 6 
 Childs V. Morris (2 B. & B. 460 ; 5 Moore, 281) . . . .375 
 China, &c., Co. v. Commercial, &c. Co. (8 Q. B. D. 145 (O.A.)) . 730 
 Chinery, Ex parte. In re Chmery (12 Q. B. D. 342 ; 53 L. J. (Ch.) 
 
 662; 50L. T. 342; 32 W. E. 469) 900 
 
 Christchuroh Inclosure Act, In re (38 Ch. D. 142) . . .238 
 Christmas, Re. Martin v. Macon (33 Ch. D. 332) . . .238 
 Church V. Imperial Gas Co. (6 A. & E. 846) . . . .393 
 
 V. Wilson (9 Ch. D. 554) 730 
 
 Churchill (Lord) In re. Manisty w. Churchill (39 Ch. D. 174) . 684 
 
 City of Chester, The (9 P. D. 201) . 
 City of Hamhurg, The .... 
 City of Lincoln, The (15 P. D. 15) . 
 City of London Brewery v. Tennant (L. E. 9 Ch, 
 City of Pekmg, The (15 App. Cas. 483) . 
 Clack V. Carlon (7 Jur. (N.S.) 441) . 
 Clarapede v. Commercial, &c. Co. (32 W. E. 263) 
 Clark, Ex parte (13 Q. B. D. 426) . 
 
 , In the Goods of Amelia (15 P. D. 10) 
 
 V. Adie (2 App. Cas. 315) 
 
 V. Chambers (3 Q. B. D. 327) . 
 
 V. Newsam (1 Ex. 131) . 
 
 Ch. D. 174) 
 
 1068, 1069, 1070 
 . 1074 
 . 1067 
 212) . . .593 
 . 1067 
 . 840 
 . 734 
 . 908 
 . 989 
 . 291, 298 
 . 504 
 . 451 
 
XXXVlll 
 
 TABLE OF CASES. 
 
 Clarke r. Bradlaugh (8 Q. B. D. 63) . 
 
 V. Chamberlin (16 Ch. D. 176) 
 
 w. Franklin (4 K. & J. 257) . 
 
 D. Hart (6 H. L. C. 633) 
 
 V. Hayne (42 Ch. D. 529 ; 37 W. R. 667) . 
 
 V. Millwall Dock Co. (17 Q. B. D. 494) . 
 
 V. Saffery (Ryan and Mao. 176) 
 
 Clay w. Tetley (16 Ch. D. 3) .... 
 
 V. Yates (1 H. & N. 73) . 
 
 Clayton v. Clarke (7 Jur. (N.S.) 563) 
 
 Claytop's Case (1 Mer. 605) .... 
 
 Cleather v. Twisden (28 Ch. D. 340 ; 54 L. J. (Ch.) 408 ; 52 L. T. 
 
 330 ; 33 W. R. 435) . , . 
 Cleaver v. Cleaver (9 App. Gas. 631) . 
 Clegg i;. Rowland (L. R. 3 Eq. 368) . 
 Clement v. Cheeseman (27 Ch. D. 631 ; 54 L. J. (Ch.) 158 ; 33 W. E. 
 
 40) 
 
 )107 
 
 Clements v. Matthews (11 Q. B. D. 808, 814) 
 
 Clergyman, Ex parte a (L. E. 15 Eq. 154) . 
 
 Clifford V. Koe (5 App. Cas. 447) 
 
 CUft, Re (38 W. R, 688). .... 
 
 Clifton i;. Ridsdale (1 P. D. 316, in the Court of Arches, 
 
 appeal, Privy Council) 
 CUtheroe Estate, In re (31 Ch. D. 135 ; 55 L. J. (Ch.) 
 
 733 ; 34 W. B. 169) 
 
 Clock, Re (15 P. D. 132) 
 
 Clover V. Adams (6 Q. B. D. 622) . 
 Clun's Case (Tudor's R. P. Cas. 284) . 
 Coates, Ex parte. In re Skelton (5 Ch. D. 979, 980, 982 ; 37 
 
 43; 25W. B. 800) . 
 
 ■V. Stephens (2 M. & Rob. 137) 
 
 Coatsworth v. Johnson (55 L. J. (Q. B. D.) 220 ; 54 L, 
 Cochrane v. Entwistle (25 Q. B. D. 116) . 
 
 V. Moore (25 Q. B. D. 57 ; 59 L. J. (Q.B.) 3' 
 
 588) 
 
 Cock, Re. Ex parte Shilson (20 Q. B. D. 343) . 
 Cockcroft, In re. Broadbent v. Groves (24 Ch. D. 94) 
 Cockle V. Joyce (7 Ch. D. 56) . . 
 Codrington v, Lindsay (L. E. 8 Ch. 578-587) 
 
 ■ V. Codrington (3 Sw. & Tr. 496 ; 10 L. J, 
 
 Coggs V. Bernard (Raym, 3, 240 ; 1 Smith L. C.) 
 Cohen, Ex parte. Re Sparke (L. R. 7 Ch. 20) . 
 
 V. Kittell (22 Q. B. D. 680) 
 • V. Mitchell (25 Q. B. D. 262) 
 
 Cole V. Blake (Peake, 238) 
 
 Coleman v. Coleman (L. E. 1 P. & D. 81) 
 
 V. Jarrow (4 Uh. D. 165) 
 
 Colley V. Hart (44 Ch. D. 179) 
 
 PAGE 
 
 703 
 38 
 542 
 650 
 138 
 117 
 875 
 165 
 398 
 611 
 432 
 
 621 
 
 1046 
 
 986 
 
 678 
 
 20 
 
 1110 
 
 40 
 
 932 
 
 affirmed on 
 
 53 L, 
 27, 
 
 L. 
 
 T. 520) 
 
 38 
 
 387) 
 
 W 
 
 . 1153 
 
 T. 
 
 150, 156 
 . 995 
 . 703 
 . 199 
 
 T. 
 
 896, 898 
 , 255 
 . 114 
 . 335 
 
 E. 
 
 330, 364 
 . 927 
 . 553 
 
 735, 756 
 . 668 
 . 1034 
 
 371, 406 
 . 920 
 . 404 
 . 946 
 . 432 
 . 1019 
 . 586 
 . 301 
 
TABLE OF OASES. 
 
 XXXIX 
 
 PAGE 
 
 306 
 759 
 10d6 
 794 
 834 
 658 
 
 CoUins V. Blantem (2 Wils. 347 ; Smith's L. C, vol. i.). 
 
 V. Collins (26 Beav. 306) .... 
 
 u. Lamport (34 L. J. (Oh.) 196) . 
 
 • V. Vestry of PaddiDgton (5 Q. B. D. 368). 
 
 ■«. Worley (W. N. (1889) 115) 
 
 Colonial Bank v. Cady (15 App. Cas. 267) . 
 
 V. Whinney (30 Ch. D. 274; 11 App. Cas. 426; 34 
 
 W. R. 705) 240, 902, 920 
 
 Colonial Insurance Company of New Zealand v. Adelaide & Co. (12 
 
 App. Cas. 128) 281 
 
 Colquhoun ■;;. Heddon (25 Q. B. D. 129) 282 
 
 Coltman v. Chamberlain (25 Q. B. D. 328) 1084 
 
 Columbine v. Penhall (1 Sm. & G. 228) 135 
 
 Colyer, In the Goods of (14 P. D. 48) 968 
 
 Combined Weighing and Advertisement Machine Co., Re (43 Ch. D. 
 
 99 ; 59 L. J. (Ch.) 26 ; 61 L. J. 582 ; 38 W. R. 67) . 658, 776 
 
 Combined Weighing and Advertising Co. v. Automatic Weighing 
 
 Machine Co. (42 Ch. D. 665 ; 58 L. J. (Ch.) 709 ; 61 L. T. 474 ; 
 
 38 W. R. 233) 301 
 
 Compagnie Gen&ale de Bellagarde, Re. 
 
 470) 
 
 Concha v. Concha (11 App. Cas. 541) 
 
 V. Murrietta. De Mora v. Concha (40 Ch, 
 
 Coney v. Bennett (29 Ch. D. 993) 
 Connan, Ee. Ex parte Hyde (20 Q. B. D. 690) 
 Conolan v. Leyland (27 Ch. D. 632) . 
 Constable v. Constable (11 Ch. D. 681) 
 
 V. (32 Ch. D. 233) . 
 
 Constantia, The (38 W. R. 272) 
 Conway v. Fenton (40 Ch. D. 512) . 
 Coode, In the Goods of (L. R. 1 P. D. 449). 
 Cook V. Cook (15 P. D. 116) . 
 
 . V. Powler (L. R. 7 H. L. 27) . 
 
 - V. North Metropolitan Tramways Co. (18 Q. 
 
 D. 543) 
 
 Cooke V. Cooke (38 Ch. D. 202) 
 
 V. Jener (15 0. B. 145) . 
 
 V. Smith (45 Ch. D. 38) . 
 
 Cookson V. Swire (9 App Cas. 653) . 
 Cooper V. Chitty (1 Burr. 24) . 
 
 . V. Cooper (L. R. 7. H. L. 71) . 
 
 V. (13 App. Cas. 95, 109) 
 
 V. France (19 L. J. (Oh.) 315). 
 
 V. Macdonald (7 Oh. D. 288 ; L. 
 
 Campbell's Case (4 Ch. I). 
 
 . 283 
 
 . 862 
 
 . 870 
 
 . 771 
 
 . 900 
 
 . 219 
 
 . 25 
 
 . 151, 156 
 
 . 1064 
 
 . 155 
 
 . 958 
 
 80, 776, 1030 
 
 . 425 
 
 B. D. 683) 
 
 693; 42 L. J. (Oh.) 533, 539 ; 21 W. R. 833) 
 
 V. Phibbs (L. R. 2 H. L. 149 ; 16 L. T. 678) 
 
 V. Prichard (11 Q. B. D. 351) . 
 
 .„. Worlfitt (2 Hurl. & N. 122) 
 
 Ooote V. Ingram (35 Oh. D. 117) 
 
 . 490 
 
 70, 183 
 
 . 452 
 
 513, 530 
 
 . 340 
 
 . 482 
 
 . 670 
 
 . 799 
 
 51,62 
 
 R. 16 Bq. 258 ; 28 L. T. 
 
 40 
 
 603 
 
 946 
 
 .5 
 
 753 
 
xl 
 
 TA£LE OF CASES. 
 
 Coote V. Judd (23 Ch. D. 727) . 
 
 Cope, Ee. Cope v. Cope (16 Ch. D. 49, 50) 
 
 , In the Goods of (15 P. D. 107) . 
 
 Copenhagen, The (1 C. Bob. 293) . 
 
 Corhett, Ex parte. Ee Shand (U Ch. D. 122) 
 
 Corbett v. Corhett (14 P. D. 7). 
 
 Coriolanus, The (15 P. D. 103) . 
 
 Cork V. Baker (1 Str. 34) . 
 
 Comfoot V. Powke (6 M. & W. 358) . 
 
 Cornford v. Blhot (29 Ch. D. 947) . 
 
 Cornish v. Accident Insurance Co., Limited (23 Q. B. D. 453) 
 
 V. Cornish (15 P. D. 131) 
 
 CoTsellis, Ee (34 Ch. D. 675; 56 L. T. 411; 56 L. J. Ch 
 
 35W.E. 309) .... 
 Cotterell v. Stratton (8 Ch. D. 295) . 
 CotteriU v. Lempriere (24 Q. B. D. 634, 639) 
 Cotton V. Wood (8 C. B. (N. S.) 568). 
 Countess of Dudley's Contract, In re (35 Ch. D. 338) 
 Cousins, Ee (31 Ch. D. 671) . 
 Coutts V. Aokworth (L. E. 9 Bc[. 519) 
 Covell, in the Goods of (15 P. D. 8) . 
 Coventry and Dixon's Case (14 Ch. D. 670) 
 Cowing V. Cowing (33 L. J. (Mat.) 149) 
 Cowles V. Gale (L. E. 7 Ch. 12) 
 Cox V. Barker (3 Ch. D. 359) . 
 
 V. Bishop (8 De G. M. & a. 815) 
 
 V. Burbidge (13 C. B. (N.S.) 430) 
 
 V. Hakes (15 App. Gas. 506 ; 09 W. E. 145) 
 
 V. Hickman (8 H. L. C. 268) 
 
 V. Leigh (43 L. J. (Q. B.) 123 ; L. E. 9 Q. B. 333) 
 
 V. Midland Eailway Co. (3 Ex. 268) 
 
 Cox's Trusts, In re (9 Ch. D. 159) . 
 Coxhead v. Mullis (3 0. P. D. 439) . 
 Cradock v. Piper (1 Mao. & G. 664) . 
 Crane v. Price (1 Web. P. C. 377) . 
 Crawcour v. Salter- (18 Ch. D. 30) . 
 Crawford, In the Goods of (15 P. D. 212) 
 Crawshay, Ee (43 Ch. D. 615) . 
 Creadon, The (54 L. T. 880) . 
 Ci-eagh V. Gamble (24 L. E. Ir. 458) . 
 Crears u. Hunter (19 Q. B. D. 341) . 
 Crease v. Barrett (1 C. M. & E. 919) . 
 Cremetti v. Crom (4 Q. B. D. 225) . 
 CressweU v. Davidson (56 L. T. 811) . 
 Crick V. Hewlett (27 Ch. D. 354) 
 Cridland v. Cridland (60 L. T. 398) . 
 Croft V. Day (7 Beav. 84) 
 V. Graham (2 Dc G. J. & S. 155) 
 
 PAGE 
 
 . 322 
 
 . 960 
 
 . 989 
 
 . 271 
 
 . 928 
 
 . 48 
 
 . 1069 
 
 . 376 
 
 . 417 
 
 . 237 
 
 . 279 
 
 . 1040 
 294; 
 840, 850 
 
 . 567 
 
 . 1164 
 
 . 486 
 
 . 608 
 
 . 95 
 
 . 669 
 
 . 987 
 
 . 642 
 
 . 1035 
 
 . 584 
 
 . 730 
 
 . 124 
 
 . 450 
 
 . 806 
 
 . 634 
 
 . 118 
 
 . 415 
 
 . 25 
 
 . 388 
 
 ., 840 
 
 . 289 
 
 . 880 
 
 . 959 
 
 . 182 
 
 . 1067 
 
 . 458 
 
 . 371 
 
 . 888 
 
 . 772 
 
 . 127 
 
 . 753 
 
 . 1040 
 
 . 310 
 
 .. 674 
 
TABLE OF CASES. 
 
 xli 
 
 PA&E 
 
 Croggan v. Allen (,22 Ch, D. IQl) 785 
 
 Oromp.ton u..Ibbotson (1 Web. P. C. 83) 298 
 
 V. J^rrett (30 Ch. D. 298) 1137 
 
 Crook, In 10,(24: Q. B. D. 320) 899 
 
 Crookenden v. Puller (29 L. J. P. M. & A. 1) . . . . 1004 
 
 Cropper v. Smith (24 Ch. D. 305) , 797 
 
 Cross V. Barnes (46 L. J. (Q. B.)'479 ; 36 L. J. 693) ... 6 
 
 Crossley v. City of Glasgow Life Assurance Co. (4 Ch. D. 421) . 275 
 
 Crown Bank, Re (44 Ch. D. 634) 641, 658 
 
 Crowther, Re. Ex parte EUis (20 Q. B. D. 38) . . . . 951 
 
 Orozier v. Dowsett (31 Ch. D. 67) 571 
 
 Cubbon, In the Goods of (11 P. D. 169) 980 
 
 Cuddee o. Butter (5 Yin. Ab. 538, pi. 21; 1 White & Tudor's 
 
 Leading Cases) ......... 587 
 
 Cumber v. Wane (1 Str. 426) 371 
 
 Cumberland, The (9 Jur. 191) 1072 
 
 Cummins v. Fletcher (14 Ch. D. 699 ; 42 L. T. 859 ; 49 L. J. Ch. 
 
 563 ; 28 W. R. 772) 108 
 
 Cunhflfe v. Brancker (3 Ch. D. 393, 407) 67 
 
 Cunliffe, Brooks & Co. ii. Blackburn and District Building Society 
 
 (9 App. Cas. 857) 660 
 
 Cunningham & Co., Limited, In re. Simpson's Claim (36 Ch. D. 
 
 539) 
 
 , Ex parte. Re Mitchell (13 Q. B. D. 418) 
 
 • V. Foot (3 App. Cas. 974, 992) 
 
 Cuno, In re. Mansfield v. Mansfield (43 Ch. D. 12) . 
 
 Currant v. Jago (1 Coll. 261) 
 
 Currie, Be (W. N. (1888) 154) 
 
 Curtis V. Piatt (3 Ch. D. 135) 
 
 Curtius V. Caledonian Fire and Insurance Co. (19 Ch. D. 534) 
 
 Curweuu. Milburn (42 Ch. D. 424) 
 
 Cuthbertson v. Irving (6 H. & N. 135 ; 7 H. & N. 742) 
 
 632 
 
 . 903 
 
 . 513 
 212, 214 
 
 . 517 
 
 . 173 
 
 . 291 
 
 . 275 
 
 . 844 
 
 . 105 
 
 D. 
 
 D'Alton V. D'Alton (47 L. J. (Pro. & Mat.) 59)) . . . 1033, 1034 
 
 D'Angibau (15 Ch. D. 228) 613 
 
 D'Aquilar V. D'Aquilar (1 Hagg. B. B. 786) .... 1016 
 
 Dagg V. Midland Railway Co. (1 H. & N. 773, 781) . . .484 
 Dalby v. India and London Life. Assurance Co. (15 0. B. 365) . 274 
 
 Dale's Case. Enraght's Case (6 Q. B. D. 376 ; 7 App. Cas. 240) . 1153 
 Dalrymple v. Dalrymple ........ 1101 
 
 Dalton V. Angus (6 App. Cas. 740; 50 L, 
 
 844) 
 
 Dance v. Goldingham (L. R. 8 Ch. 903) 
 
 Danford v. McAnulty (8 App. Cas. 456) 
 
 Daniell, James (deceased). In the Goods of (8 P. D. 14) 
 
 V. Sinclair (6_App. Cas. 181) . . . , 
 
 J. Q. 
 
 B. 689 ; 
 
 44L. T. 
 
 195, 199 
 . 597 
 . 731 
 
 165, 971 
 . 110 
 
xlii 
 
 TABLE OF CASES. 
 
 Dansey v. Eiohai-dson (3 E. & B. 144) 
 
 Darby v. Darby (3 Drew, 495) . 
 
 Darley Main Colliery Go. v. Mitchell (14 Q. B. D. 125, 134 
 
 App. Cas. 127) 
 
 • V. The Queen (12 CI. & F. 541) 
 
 Darling, Be (39 Ch. D. 208) . 
 Darlington v. Hamilton (Kay, 550) . 
 Darrell v. Tibbits (5 Q. B. D. 560) . 
 Dartford Guardians v. Trickett (59 L. T. 754) 
 Dashwood and Paget, Ex pane (W. N. (1888) 139) 
 
 David, Re (43 Ch. D. 27) 
 
 Davies v. London and Provincial Marine Insurance Co. (L. 
 
 8 Ch. D. 469 ; 47 L. J. 511 ; 26 W. E. 794; 38 L. T. 478) 
 
 , Ee (38 Ch. D. 210) . 
 
 , M. A., Ee (21 Q. B. D. 236) . 
 
 V. Andre (24 Q. B. D. 598) . 
 
 V. Davies (38 Ch. D. 499) . 
 
 V. (36 Ch. U. 359) . 
 
 V. Mann (10 M. & W. 546, 549) 
 
 V. Otty (33 Beav. 540) . 
 
 V. Solomon (L. E. 7 Q. B. 112) 
 
 Davis & Cavey, Ee (40 Ch. D. 601) . 
 
 & Co., In re. Ex parte Eawlings (22 Q. B. D. 193) 
 
 , Ee (L. E. 12 Eq. 214) . 
 
 , Ee (37 W. K. 141) 
 
 V. Freethy (24 Q. B. D. 519) . 
 
 V. Galmoye (40 Ch. D. 355) . 
 
 V. Kirk (2 K. & J. 391) . 
 
 V. Shepstone (11 App. Cas. 187) 
 
 v. Spence (1 C. P. D. 721) 
 
 .V. Stridbolt (59 L. T. 854 ; 6 E. P. C. 
 
 ,207) 
 286) 
 
 /v. Udier (12 Q. B. D. 492) . 
 
 Dawes, Ex parte. In re Moore (17 Q. B. D. 
 Dawkins v. Antrobus (17 Oh. D. 615) 
 
 V. Lord Penrhyn (4 App. Cas. 51) 
 
 Dawson, In re. Johnston v. HQl (39 Ch. D. 155) 
 
 , Ee(41Ch. D. 415) .... 
 
 V. Bank of Whitehaven (6 Ch. D. 218 ; 26 
 
 46L. J. Ch. 884; 37L. T. 64) . 
 
 V. Beeson (22 Ch. D. 504) . 
 
 • V. Small (L. E. 9 Ch. 651) . 
 
 Day V. Brownrigg (10 Ch. D. 294) . 
 
 V. Luhke (L. E. 5 Eq. 336) 
 
 V. McLea (23 Q. B, D. 610) 
 
 V. Woolwich Equitable Building Society (40 Ch. 
 
 Dean v. Green (L. E. 8 P. D. 79) . 
 
 In re. Cooper-Dean v. Stevens (41 Ch. D. 552) 
 
 V. Keate (3 Camp. 4) . . . . 
 
 PAGE 
 
 . 403 
 
 . 545 
 
 11 
 
 501, 506 
 
 . 808 
 
 . 815 
 
 . 127 
 
 . 269 
 
 . 394 
 
 . 691 
 
 . 238 
 
 E. 
 
 . 681 
 . 786 
 , 953 
 , 707 
 . 28 
 . 595 
 . 485 
 . 511 
 . 506 
 . 585 
 . 339 
 . 512 
 . 921 
 . 776 
 . 782 
 . 53 
 . 471 
 . 725 
 
 312, 316 
 . 337 
 . 86 
 
 455, 599 
 39, 510, 512 
 70 
 605 
 
 W. 
 
 D. 491) 
 
 E. 34; 
 
 31 
 767 
 162 
 590 
 584 
 428 
 849 
 1145 
 233, 238 
 . 407 
 
TABLE OF CASES. 
 
 xliii 
 
 PAGE 
 
 Deane,Iiire, Bridger v. Deane (42 Ch. D. 9) . . . . l&'i 
 
 ■ , Ee (W. N. (1888), 249, (1889) 107) . . . .183 
 
 Dearie, Ex parte. Ee Hastings (14 Q. B. D. 184) . . .900 
 Debenham v. Mellon (6 App. Cas. 24) ',. . . 223, 379, 389 
 
 De Burgh Lawson, In re (41 Ch. D. 568) 165 
 
 Decroix, Verley et Cie v. Meyer & Co. (25 Q. B. D. 343) . . 260 
 
 Deerman v. Jenkins (2 A. & E. 256) 406 
 
 D'Epineuil, Ee (20 Ch. D. 217) 549 
 
 D'Eyncourt v. Gregory (1 Ch. D. 441) 71 
 
 V. (3Ch. D.635) . . . . .147 
 
 De Prancesco v. Barnum (43 Ch. D. 165) .... 386, 613 
 
 De Jongh V. Newman (56 L. T. 180) 587 
 
 De la Eue, A. C. Granet, In the Goods of (15 P. D. 185) . . 969 
 
 De Lossy v. De Lossy (15 P. D. 115) 1030 
 
 De Mattos ?;. Gibson (30 L. J. (Ch.) 145) 1086 
 
 De Pereda v. De Mancha (19 Ch. D. 451) 612 
 
 De Eosaz, Ee (5 L. T. E. 606) 234 
 
 De Eos's Trust, Ee (31 Ch. D. 81) 139 
 
 De Eothschild v. Morrison (24 Q. B. D. 750) . . . .765 
 De Stackpoole v. De Staokpoole (37 Ch. D. 139) . . . .216 
 
 Delaney v. Wallis (14 L. E. Jr. 31) 242 
 
 Delhasse, Ex parte. In re Megevand (7 Ch. D. 511) . . . 616 
 
 Dennis, Ee (60 L. T. 348) 900 
 
 Deposit and General Life Insurance Co. v. Ayscough (8 E. & B. 761) 405 
 
 Dering v. Dering (L. E. 1 P. & D. 531) 1020 
 
 V. Earl of Winohilsea ....... 681 
 
 Derry v. Peek (14 App. Cas. 337 ; 58 L. J. Oh. 864 ; 61 L. T. 265 ; 
 
 38 W. E. 33 ; 1 Megone, 292) .... 493, 494, 496 
 Dever, Ex parte. Ee Suse (14 Q. B. D. 611) . . . .918 
 
 Dewellv. Sandars(Cro. Jac. 490) 450 
 
 Dickin v. Dickin (30 W. E. 887) 697 
 
 , Ex parte. Ee Pollard (8 Ch. D. 377) . . . .949 
 
 Dickinson, Ee (22 Q. B. D. 187) 929, 930 
 
 V. Dodds (2 Ch. D. 463) 365 
 
 Dickson, Ee (29 Ch. D. 331) 137 
 
 V. Eeutei-'s Telegraph Co. (2 C. P. D. 62) ... 366 
 
 Diggle V. Higgs (2 Ex. D. 4^2) 405 
 
 Diggles, Ee. Gregory v. Edmondson (39 Ch. D. 253) . . 515, 516 
 Dillon, Ee. Duffin v. Duffin (44 Ch. D. 77) . . . . 679 
 
 V. Parker (1 Swanston, 359) 670 
 
 Dipple V. Corles (11 Hare, 184) 512 
 
 Ditcham v. Worral (5 C. P. D.) 410) 388 
 
 Dixon, In re. Byram t;. TuU (42 Ch. D. 306) . . . 63,213 
 
 , Ee (37 W. E. 161) 903 
 
 v. Bald wen (5 East, 175) 436 
 
 i;. Farrer (18 Q. B. D. 43) 753 
 
 w. Fawens (30 L. J. (Q. B.) 137) 452 
 
 V. London Small Arms Co. (1 Ajjp. Cas. 632) . . . 301 
 
xliv 
 
 TABLE OF CASES. 
 
 Dixon V. Yates (5 A. & E. 313, 340) . 
 Docker v. Greaves (33 Ch. D. 607) . 
 
 V. Somes (2 M. & K. 667) . 
 
 Docwra, Ee (29 Ch. D. 693) . 
 
 V. Eaitli (W. N. (1884) 174, 232) 
 
 Dodd V. Norris (3 Camp. 519) . 
 Dodds, Re (25 Q. B. D. 529) . 
 Doe d. Bray v. Huntington (4 East, 271) 
 
 V. Laming (4 Camp. 77) 
 
 ■ — ■ d. Moleswortli v. Slceman (9 Q. B. 301) 
 
 d. Newman v. Pusham (17 Q. B. 723) 
 
 V. Smaridge (7 Q. B. 957) . 
 
 — V. Suckermore (5 A. & E. 730) . 
 
 — d. Thompson v. Amey (12 Ad. & B. 476) 
 
 V. Vardill (2 CI. & Pin. 571) 
 
 Doglioni v. Crispin (U. R. 1 H. L. 301) 
 
 Doherty v. Allman (3 App. Cas. 709 ; 39 L. T. 129 
 
 513) 
 
 Dolphin V. Robins (3 Macq. 563, 584) 
 
 Don, Ee (4 Drew, 191) . 
 
 Donellan v. Read (3 B. & Ad. 899)" . 
 
 Donne v. Hart (2 Euss. & My. 360) . 
 
 Donnell v. Bennett (22 Ch. D. 835) . 
 
 Doorman v. Jenkins (2 A. & E. 256) 
 
 Dcirdogne, The (10 P. D. 6) . 
 
 Do. in V. Dorin (L. R. 7 H. L. 568, 577) 
 
 Dorman, Ex parte (L. R. 8 Ch. 51) . 
 
 Doswell V. Impey (1 B. & C. 163) . 
 
 Douglas, In re. Wood v. Douglas (28 Ch. D. 327) 
 
 Douglass V. Patrick (3 T. R. 683) . 
 
 Dowdeswell v. Dowdeswell (9 Ch. D. 294, 301) 
 
 Downing v. Falmouth United Sewage Board (37 Ch. D, 
 
 Doyle V. Kaufman (3 Q. B. D. 7) 
 
 ])oyley v. Roberts (3 Bing. (N. C.) 835 ; 5 Scott, 40 ; 3 
 
 Drake v. Trefusis (L. E. 10 Ch. 364) . 
 
 Draycott v. Harrison (17 Q. B. D. 147, 152) 
 
 Dresser v. Gray. Gray, Ee (36 Ch. D. 205) 
 
 Dressier, Ex parte. Re Solomon (9 Ch. 252) 
 
 Drew V. Drew (13 P. D. 97) . 
 
 V. Martin (2 H. & M. 130) 
 
 V. Eunn (4 Q. B. D. 661). 
 
 Dreyfus v. Peruvian-Guano Co. (43 Ch. D. 816 ; 41 Ch 
 Druid, The (I W. Rob. 391) . 
 Drummond v. Van Ingen (12 App. Cas. 284) 
 Drummond's Patent, Ee (43 Ch. D. 80) 
 Drybutter v. Bartholomew (2 P. Wms. 127) 
 Dryden v. Frost (3 My. & Cr. 670) . 
 Duborley v. Day (16 Beav. 33) . 
 
 PAGE 
 
 . 241 
 
 . 691 
 
 . 522 
 227, 228, 511 
 
 . 789 
 
 . 461 
 
 . 932 
 
 . 185 
 
 . 408 
 
 . 888 
 
 . 143 
 
 . 14 
 
 . 884 
 
 . 114 
 
 . 54 
 8 
 
 26 
 
 W. E. 
 
 . 28 
 . 1004 
 . 54 
 . 378 
 . 211 
 578, 596 
 . 406 
 . 1065 
 . 170 
 . 920 
 . 453 
 . 54 
 . 432 
 . 961 
 747 
 720 
 465 
 . 155 
 215, 953 
 163, 164 
 . 927 
 . 1013 
 . 517 
 421, 422 
 D. 151) 599, 744 
 1066 
 382 
 303 
 3 
 567 
 211 
 
 234,242) . 
 Hodges, 154) 
 
TABLE OF CASES. 
 
 xlv 
 
 Dublin, Wicklow and Wexford Railway Co. v. Slattery (3 App. Gas. 
 
 1155) 
 
 Dubotit & Co. V. Maoplierson (23 Q. B. D. 340) 
 
 Dudgeon v. Thomson (30 L. T. 244 ; S. C. 22 W. R. 464) 
 
 ■ V. • (3 App. Cas. 34) 
 
 PAGE 
 
 Dudley, Re (12 Q. B. D. 44) 
 
 Dudson's Contract, Re (8 Ch. D. 628, 631) 
 
 Dufouroet v. Bishop (18 Q. B. D. 373) 
 
 Duffs Executors' Case (32 Ch. D. 309) 
 
 Dugdale, In re. Dugdale v. Dugdale (L. R. 38 Ch. D. 
 
 V. Lovering (L. R. 10 C. P. 196) 
 
 Duke of Bucoleugh, The (15 P. D. 86) 
 Duncan v. Dixon (44 Ch. D. 211) 
 
 and Lawson, In re (41 Ch. D. 394) 
 
 Dundee, The (1 Hagg. 104) .... 
 
 ; Harbour (Trustees of) v. Dougall (1 Maoq. H. 1 
 
 Dundonald (Earl of) v. Mastermau (L. R. 7 Bq. 504) 
 Dunn V. Dunn (13 P. D. 91) . 
 
 , Ex parte. Re Brockelbank (58 L. J. Q. B. 375 
 
 461) . 
 
 Dunstan v. Patterson (2 Phil. 341, 345) 
 Dunston v. Imperial, &c., Co. (3 B. & Aid. 
 Durham v. Durham (10 P. D. 80) . 
 Durrell v. Evans (1 H. & C. 174) 
 Dymond v. Croft (3 Ch. D. 512 
 Dysart v. Dysart (3 N. C. 347) . 
 
 125) 
 
 182) 
 
 0. 321) 
 
 23 Q, 
 
 778, 
 
 486 
 
 717 
 
 594 
 
 299 
 
 835 
 
 . 38 
 
 . 281 
 
 , 650 
 
 . 47 
 
 . 452 
 
 . 1067 
 
 388, 613 
 
 4 
 
 . 1059 
 
 . 204 
 
 . 621 
 
 . 1030 
 
 B.D. 
 
 . 946 
 . 105 
 . 645 
 999, 1023 
 . 374 
 . 560 
 . 1011 
 
 E. 
 
 Eager, Re. Eager v. Johnstone (22 Ch. D. 86 ; 52 L. J. Ch. 56 ; 47 
 
 L. T. 685 ; 31 W. B. 33) . 
 V. Eurnivall (17 Ch. D. 115 ; 50 L. J. Ch. 537 ; 44 L. T. 464 ; 
 
 717 
 
 29 W. R. 649) 
 
 Eales V. Drake (1 Ch. D. 219) . 
 Eardly v. Granville (3 Oh. D. 826, 832) . 
 Earl and Webster, Re (24 Ch. D. 144) 
 Earl of Wemyss, The (61 L. T. 289) . 
 Eastern Counties Co. -y. Broom (6 Ex. 314). 
 
 Railway Co. v. Hawkes (5 H. 
 
 Eastland v. BurcheU (3 Q. B. D. 432) . 
 Easbin.«. London Joint Stock Bank (38 Ch. D, 
 
 329 ; 58 L. T. 364 ; 36 W. R. 375) 
 Eastwood V. Clark. Re Gadd (23 Ch. D. 134 
 
 48 L. T. 395 ; 31 W. R. 417) 
 Eaton 0, Lake (20 Q. B. D. 378) 
 Ebeile's Hotel Co. v. Jonas (12 Q. B. D. 459) 
 
 C. 48) 
 
 30, 154, 160, 161 
 . 178 
 . 187 
 . 156 
 . 1067 
 . 1171 
 . 392 
 . 390 
 
 25 ; 57 L. J. Ch. 
 
 52 L. J. Ch. 396 : 
 
 834 
 
 787 
 326 
 932 
 
xlvi 
 
 TABLE OF CASES. 
 
 Ebrand v. Duncer (2 Ch. Cas. 26) 
 Ebrard v. Gassier (W. N. (1886) 165) 
 Eccles, Iq the Goods of (15 P. D. 1) . 
 
 V. Kenyon (11 A. & E. 438) . 
 
 Ecclesiastical Commissioners to King (38 W. R. 473) 
 
 Eclipse, The (14 P. D. 71) 
 
 Eden v. Attenborough (23 Q. B. D. 130) 
 
 V. Naish (7 Ch. D. 781) . 
 
 Edevain v. Cohen (43 Ch. D. 187) . 
 
 EdisoD and Swan United Electric Light Co. v. Holland (33 Ch. D. 
 
 499) 
 Edmonds v. Blaina Furnaces Co. (36 Ch. D. 215 ; 56 L. J. Ch. 815 ; 
 
 57 L. T. 139 ; 35 W. E. 798) 
 
 V. Bobinson (29 Ch. D. 170) 
 
 Edney v. Smallbones (21 L. T. 500) . 
 Edwards, Ex parte (L. E. 9 Ch. 138). 
 
 , Ex parte. In re Tollemache (14 Q. B. D. 415) 
 
 , Ee (33 W. E. 578) . 
 
 V. Dennis (30 Cb. D. 454) 
 
 V. Grand Junction Eailway Co. (1 M. & C. 98) 
 
 V. Great Western Railway Co. (11 C. B. 588, 650) 
 
 V. London and North Western Eailway Co. (L. E. 5 C. P. 
 
 445) 
 
 • V. Midland Eailway Co. (6 Q. B. D. 287) 
 
 V. The Vestry of St. Mary's, IsUngton (22 Q. B. D. 338) 
 
 V. Slater (Tudor's Real Property Gases, p. 377) 
 
 Edwards' Trade Mark (30 Ch. D. 454) 
 
 Edwick u. Hawkes (18 Ch. D. 199 ; 50 L. J. Ch. 597 ; 45 L. T. 
 
 168 ; 29 W. R. 913) 131 
 
 E. de, Ee (25 Q. B. D. 228) 835,850 
 
 Egerton v. Earl Brownlow (4 H. L. C. 210; 23 L. J. Ch. 348; 18 
 
 •Jur. 71) 513 
 
 Elderton, In re (25 Ch. D. 220) 609 
 
 Eldridge v. Burgess (7 Ch. D. 411) ...... 713 
 
 Eley, In re (27 Ch. D. 40) " * §47 
 
 V. Positive Assurance Co. (1 Ex. Div. 88) . . 377, 641, 831 
 
 Ellington v. Clark (38 Ch. D. 332) '797 
 
 Elliott V. Davenport (Tudor's R. P. Cases, 916, et seq.) . . . 160 
 
 —. V. Nicklin (5 Price, 641) ...... 461 
 
 Ellis, Ex parte (2 Ch. D. 797) ! ! 897 
 
 Elphinstone (Lord) v. Monkland Iron and Coal Co. (11 App. Cas 
 
 332) 
 
 Elwes V. Ma we (Smith's Leading Cases) 
 
 Embrey v. Owen (6 Ex. 353) ...!". 
 
 Eniden v. Carte (17 Ch. D. 768 ; 29 W. R. 600 ; 50 L. J. (Ch ) 492 • 
 
 44L. T. 344) ^ / . 
 
 V. (19Ch. D. 311) . . . . 
 
 Emeris V. Woodwapd (43 Ch. D. 185) 
 
 PAQB 
 
 517 
 834 
 960 
 367 
 1123 
 1095 
 746 
 584 
 734 
 
 712 
 
 283 
 630 
 1117 
 1150 
 890 
 773 
 312 
 584 
 425 
 
 444 
 446 
 705 
 176 
 314 
 
 686 
 
 6 
 
 439 
 
 918 
 847 
 790 
 
TABLE OF OASES. 
 
 xlvii 
 
 55 L. 
 
 PAGE 
 
 . 339 
 . 237 
 J. (Q.B.) 51 ; 34 
 
 . 469 
 286, 658 
 
 742; 
 
 Emerson, Ex parte. Ee Hawkins (41 L. J. (Bkcy.) 20) 
 Emley v. Davidson (19 Ch. D. 156) . 
 Emmens v. Pottle (16 Q. B. D. 354, 358 ; 
 
 W. R. 116) .... 
 
 Empire Mining Co., In re (44 Ch. D. 402) 
 Empress Engineering Co., Ee (The) (16 Ch 
 
 29 W. E. 342) .... 
 Empress Eugenie, The (Lush. 140) . 
 England, The (12 P. D. 32, 33) 
 Eno V. Dunn (15 App. Cas. 252) 
 Ernest V. NichoUs (6 H. L. 419) 
 Esdaile v. Assessment Committee of the City of London (18 Q. B. D. 
 
 599 ; affirmed 19 Q. B. D. 431) . 
 
 , Ee. EsdaUe v. Esdaile (W. N. (1886) 47) 
 
 Eslick, Ee. Ex parte Phillips (4 Ch. D. 496) . 
 Evans, Ex parte (13 Ch. D. 252) 
 
 , In the Goods of Timothy (15 P. D. 215) . 
 
 , Ee (21 Ch. D. 297) .... 
 
 ^, Ee (54 L. J. (K.S.) 527) 
 
 ■ V. Bagshaw (L. E. 5 Ch. 340) . 
 
 V. Bear (L. E. 10 Ch. 76) . . . 
 
 V. Burrell (4 Swahey and Tristram, 186) . 
 
 V. Evans (1 Hagg. 0. C. 39) . 
 
 V. Manchester, Sheffield, and Lincolnshire EaUway Co. (36 
 
 Ch. D. 626) .... 
 
 Evan- Evans, Ee (54 L. T. 527) 
 Evelyn v. Evelyn (13 Ch. D. 138) . 
 Everett v. Everett (7 Ch. D. 428) 
 Ewing V. Grr-Ewing (9 App. Cas. 234 ; 53 L. J. (Ch.) 435 ; 50 L. T. 
 
 401 ; 32 W. E. 573) . 
 Exchange and Hop Warehouses, Limited v. Association of 
 
 FiDanciers(34Ch. D. 195) . 
 Eyre, Re (49 L. T. 259) . 
 
 V. Forbes (12 C. B. (N.S.) 191) . 
 
 V. Hughes (2 Ch. D. 148) . 
 
 417 
 
 1096 
 
 1083 
 
 313 
 
 644 
 
 1142 
 1142 
 920 
 775 
 993 
 815 
 782 
 558 
 953 
 958 
 1011 
 
 448 
 
 . 784 
 
 734, 753 
 
 . 162 
 
 Land 
 
 570 
 
 560 
 
 180 
 
 402 
 
 98 
 
 Fairclough v. Marshall (4 Ex. D. 37) 
 
 Fairer v. Park (3 Ch. D. 309) .... 
 
 Faithful, The (31 L. J. (Ch. D.) 81) . 
 
 PaithfuU V. Woodley (43 Ch. D. 287) 
 
 Falck V. Axthelm (24 Q. B. D. 174) . 
 
 Falcke v. Gray (4 Drew. 651, 657, 661) . 
 
 V. Scottish Imperial Co. (34 Ch. D. 234 ; 56 L. J. (Ch 
 
 56 L. T. 220; 85 W. E. 143) 
 Fanchon, The (5 P. D. 173) .... 
 
 , 352 
 . 664 
 . 1090 
 . 561 
 . 718 
 
 72, 573, 577 
 
 )707; 
 277, 1068 
 . 1086 
 
JXXVlll 
 
 TABLE OF CASES. 
 
 Pearks v. Moseley (5 App. Cas. 714; 43 L. T. 449 ; 29 W. R. 1 ; 50 
 
 L. J. Ch. 57) 
 
 Peam, In the Goods of (1 P. D. 70) 
 
 Pearse v. Pearse (1 De G. & Sm. 28, 29) 
 
 Pearson v. Commercial Union Assurance Co. (1 App. Cas. 507) 
 V. Pearson (27 Ch. D. 145 ; 51 L. T. 311 ; 54 L. J. Ch. 32 ; 
 
 PAGE 
 70 
 
 159 
 879 
 280 
 
 32 W. R. 1006) 
 Peat V. Jones (8 Q. B. D. 147) . 
 Pedder v. Hunt (18 Q. B. D. 565) 
 Peek V. Derry (37 Ch. D. 541) . 
 V. Gumey (L. E. 6 H. L. 377 ; 
 
 43 L. J. Ch. 19 : 22 W, 
 
 V. Trower (7 P. D. 21, 27) 
 
 Peers II. Lambert (7 Beav. 546). 
 Pemberton v. Barnes (L. R. 6 Ch. 685) 
 Pender v. Lushington (6 Ch. D. 70) . 
 Penn v. Bibby (L. R. 2 Ch. 132) 
 Penney, Ex parte (L. R. 8 Ch. 446, 452) . 
 Peppitt's Estate, Re (4 Ch. D. 230) . 
 Percival v. Dunn (29 Ch. D. 128) 
 Perkins, Re .(24 Q. B. D. 613) . 
 Perring v. Trail (L. R. 18 Eq. 88) . 
 Perry, Re (2 Curt. 655) .... 
 
 V. Turney (21 L. R. Ir. 480) . 
 
 Petchell, In the Goods of (L. R. 3 P. & D. 153) 
 
 Peter v. Compton (Skinner, 353), (Smith's Leading Cases, vol 
 
 Peters ,v. Fleming (6 M. & W. 42) . 
 
 Petre v. Buncombe (20 L. J. Q. B. 242) 
 
 Petty V. Daniel (34 Ch. D. 172). 
 
 Phene's Trusts, Re (L. E. 5 Ch. 139 ; 39 L. J. Ch. 316 • 22 
 
 111; 18W. R. 303) . 
 PhiUps V. Rees (24 Q. B. D. 17) 
 Phillimore v. Machon (1 P. D. 488) 
 Phillips, Re (5 Mor. 40) . 
 
 , Re (41 Ch. D. 417) . 
 
 V. Beale (26 Ch. D. 621; 50 L, 
 
 T. 433 (nom. 
 Beall) ; 54 L. J. Ch. 80 (nom. Phillip. ■». Beall) ; 32 W. 
 
 V. Cayley (43 Ch. D. 222) . 
 
 V. Henson (3 C. P. D. 26) . 
 
 Homfray (24 Ch. D. 439; 52 
 
 . T. 5) 
 
 V. Phillips (29 Ch. D. 673) . 
 
 — V. (4 Q. B. D. 127, 131) 
 
 V. (13 P. D. 220) . 
 
 338). 
 
 Philpot V. St. George's Hospital (6 H. L. G 
 Pickard v. Sears (6 Ad. & B. 474) . 
 
 V. Smith (10 C. B. (N.S.) 470) 
 
 Pickering v. Stephenson (L. R. 14 Eq. 322, 342) 
 
 595, 603 
 . 932 
 . 204 
 . 494 
 E. 29) 
 
 493, 496 
 1149 
 579 
 557 
 649 
 295 
 649 
 709 
 739 
 ,929 
 236 
 
 512. 
 
 i-) 
 
 173 
 
 969 
 
 377 
 
 . 387 
 
 . 425 
 
 778, 781 
 
 L. T. 
 
 . 862 
 . 120 
 . 1146 
 . 900 
 . 180 
 
 Philips V. 
 R. 665) . 
 
 752 
 180 
 118 
 
 L. J. Ch. 401, 833; 49 
 
 . 425, 499 
 . 521 
 . 728, 731 
 . 224,1023 
 . 235 
 . 864 
 . 445 
 . 644 
 
TABLE OF CASES. 
 
 Ixxix 
 
 FAGG 
 
 Pickersgill v. Rodger (5 Ch. D. 163-6) 668 
 
 Piggott and The Great Western Railway Co., In re (18 Ch. D. 146) 546 
 
 V. Stratton (Joh. 341 ; 1 D. P. & J. 33) . . . . 596 
 
 Pike V. Pitzgibbon (17 Ch. D. 454, 461) 219 
 
 Pillgrem v. Pillgrem (18 Oh. D. 93) 521 
 
 Pink v. Fleming (25 Q. B. D. 396) 281 
 
 Pinkerton V. Easton (L. R. 16 Eq. 490) 847 
 
 Pianey v. Hunt (6 Ch. t). 98) 356 
 
 Pinnook «. Bailey (23 Ch. D. 497) 777 
 
 Pitt V. Jones (5 App. Cas. 659) 554 
 
 V. White (57 L. T. 650) 784 
 
 Piatt V. Mendel (27 Ch. D. 46) 564 
 
 Player, Re. Ex parte Harvey (15 Q. B. D. 687) . . .923 
 
 Playford v. United Kingdom Telegraph Co. (L. R. 4 Q. B. 706) . 366 
 Plimpton V. Malcolmson (3 Ch. D. 531, 555) . . . 293, 294 
 
 Plumb V. Fluitt (2 Anst. 438) 94 
 
 Plumer v. Gregory (L. R. 18 Eq. 621 ; 31 L. T. 17, 80 ; 43 L. J. 
 
 (Ch.) 616, 803) 
 
 Pocock V. Att.-Gen. (3 Ch. D. 342) . 
 
 Polak V. Everett (1 Q. B. D. 673) 
 
 Polini V. Gray. Sturla v. Freccia (12 Ch. D. 411 ; 49 L. J. Ch. 7) 
 
 Pollard, In re (20 Q. B. D. 656) 
 
 V. Photographic Co. (40 Ch. D. 345 ; 37 W. R. 266 ; 60 
 
 L. T. 418) 
 
 Pollen, Ex parte. Re Benn-Davis (55 L. J. (Q. B.) 217) 
 PoUexlen v. Gibson (16 Q. B. D. 792) 
 Pullock V. Pollock (L. R. 18 Eq. 329) 
 Pomerauia. The (4 P. D. 195) .... 
 Pontida, The (9 P. D. 177) .... 
 Pooley, Re (40 Ch. D. 1 ; 58 L. J. Ch. 1 ; 37 W. R. 17 
 V. Driver (5 Ch. D. 458, 460, 469 ; 36 L. T. 79 
 
 466 ; 25 W. R. 162) . . ' . 
 Pooley's Trustee v. Whetham C28 Ch. D. 38) 
 Pope V. Curl (2 Atk. 342) .... 
 
 Popkins V. Popkins (1 Hagg. E. R. 768) . 
 Pople, In re (40 Ch. D. 589 ; 37 W. R. 554 ; 58 L. J. Ch. 372; 60 
 
 L. T. 668) 
 
 Poplett V. Stockdale (R. & M. 337) . 
 
 Portt-r V. Porter (37 Ch. D. 420) 
 
 Portland (Duke of) v. Topham (11 H. L. C. 32) . 
 
 Portuguese Consolidated Mining Co. (45 Ch. D. 16) 
 
 Postmaster-General, Ex parte. In re Bonham (10 Ch. D. 595) 
 
 621 
 538 
 683 
 
 889 
 834 
 
 595 
 
 118 
 
 707 
 
 25 
 
 738 
 
 . 1090 
 
 60L.T.73) 159 
 
 46 L. J. Ch. 
 
 614, 616, 740 
 . 939 
 . 591 
 . 1011 
 
 Potter V. Duffield (L. R. 18 Eq. 4; 22 W. R. 585; 43 L. J. 
 472) 
 
 . 691 
 . 398 
 . 710 
 . 181 
 . 658 
 
 904, 913, 
 924 
 
 Ch. 
 . 582 
 
 Poulton V. London and South Western Railway Co. (L. R. 2 Q. B. 
 
 534). . 444 
 
 Powell V. Cobb (29 Ch. D. 486 ; 54 L. J. Ch. 475 ; 52 L. T. 183) . 752 
 
Ixxx 
 
 TABLE OF OASES. 
 
 Powell Duffryn Steam Coal Co. v. Taff Vale Bailway Co. (L. E. 9 
 
 Ch.331) 
 
 Powers, Tn re. Lindsell v. Phillips (30 Chi. D. 291) 
 Powys V. Blagrave (4 De G. M. & G. 448) . 
 
 V. MansBeld (3 My. &-Cr. 359, 367) 
 
 Poyser v. Minors (7 Q. B. D. 329) . 
 
 Pratt V. Inman (43 Ch. D. 175) 
 
 Preston v. Danla (L. E. 8 Ex. 19) 
 
 Price, Ex parte. Ee Eoherts (21 Oh. D. 553) 
 
 ,Inre(27Ch.D.552) . 
 
 , In the Goods of Amelia (12 P. D. 137 ; 35 W, 
 
 L. J. P. D. & A. 72) . 
 
 , Ee. Stafford v. Stafford (28 Oh. D. 709) 
 
 V. Green (13 M. & W. 695 ; 16 M. & W. 346) 
 
 V. Jenkins (5 Ch. D. 619) 
 
 V. Manning (37 W. E. 785) . 
 
 V. Price (35 Oh. D. 297) . 
 
 & Co. and Others v. The Al Ships Small 
 
 Association, Limited (22 Q. B. D: 588) . 
 
 V. Strange (6 Madd. 161, 162) . 
 
 V. Toriington (Salkeld, 285) . 
 
 Priestley v. Fowler (3 M. & W. 1) . 
 
 Priestman v. Thomas (9 P. D. 70, 210 ; 32 W. E. 842 ; 53 
 
 P. D. & A. 109) 
 Prince^ Albert v. Strange (2 De G. & S. 652 ; 1 Mac. & 
 Pringle v. Gloag (10 Ch. D. 676) 
 -,'Ee(17Ch. D. 821) 
 
 Damage Insurance 
 
 Printing Eegistering Co. v. Sampson (L. E. 19 Eq. 
 
 Proctor V. Bennis (36 Oh. D. 740) 
 
 Protector Endowment Loan and Annuity Co, 
 
 592) 
 
 Proudfoot V. Hart (25 Q. B. D. 42) . 
 Prout V. Gregory (24 Q. B. D. 281) . 
 Prudential Assui'amce Co. v. Knott (L. E. 10 Oh, 
 
 249 ; 44 L. J. Oh. 192 ; 31 L. T. 866) . 
 Pryoe t;. Belcher (4 C. B. 866) . . . 
 Prynne, Ee (53 L.T. 465) 
 Pryor v. Pryor and Shelford (12 P. D. 165) 
 Prytherch, Ee (38 W. E. 61) . 
 Pulsford V. Biohards (17 Beav. 87) . 
 Pyatt, Ee (26 Ch. D. 31) . 
 Pybus, Ee (35 Oh. D. 568) 
 Pye, Ex parte (18 Ves. 140) . 
 Pyke, Ex parte. In re Lister (8 Ch. D. 754 
 
 L. T. 913) 
 
 Pyle Works Co., Ee (44 Ch. D. 534) . 
 
 465) 
 
 Grice 
 
 142 
 
 26 W, 
 
 PAGE 
 
 572 
 . 207 
 . 28 
 . 661 
 . 352 
 
 549, 776 
 
 . 724 
 
 . 949 
 
 . 608 
 
 E. 596 ; 56 
 
 975, 976 
 . 214 
 . 402 
 . 145 
 . 875 
 . 705 
 
 G. 25) 
 
 (5Q, 
 
 23 
 
 271 
 . 344 
 . 889 
 . 488 
 L. J. 
 356, 961 
 . 328 
 . 848 
 . 709 
 . 398 
 . 291 
 
 B. D. 
 
 . 688 
 . 115 
 776, 951 
 W. E. 
 
 592 
 440 
 218 
 1037 
 571 
 645 
 26 
 843 
 661 
 
 E. 806 ; 38 
 
 403 
 658 
 
TABLE OF OASES. 
 
 IXXXl 
 
 Queade, Be (33 W. E. 816) 
 
 Queen v. Archbishop of York (20 Q. B. D. 740) . 
 
 • V. Ashwell (16 Q. B. D. 195 ; 34 W. R. 297 ; 55 L. J 
 
 Q. 
 
 PAQE 
 
 Quartz Hill Consolidated Gold MlniDg Co. v. Beall (20 Cli. D. 501 ; 
 
 SOW. E. 583; 46 L. T. 746) 592 
 
 ■ ■ V. Eyre (11 Q. B. D. 674 ; 
 
 50L. T.274) . . . 460 
 
 . 222 
 1099, 1127 
 M. C. 
 
 . 1198 
 613, 700 
 . 8ii6 
 . 835 
 . 1195 
 . 476 
 . 237 
 . 881 
 . 1174 
 385 
 
 65) 
 
 ■ V. Barnardo (23 Q. B. D. 305 ; 24 Q. B. D. 280, 283) 
 
 ■ V. ■ (1 Q. B. D. 194, 196) . 
 
 V. Buchanan (15 L. J. Q. B. 227) 
 
 V. Buckmaster (20 Q. B. D. 182) 
 
 V. Carden (5 Q. B. D. 1) . . 
 
 V. Commissioners of Income Tax (22 Q. B. D. 296) 
 
 V. Cox & Eailton (14 Q. B. D. (C. C. E.) 153) . 
 
 V. Deary (15 Cox 334) 
 
 V. Doutre (9 App. Cas. 745 ; 53 L. J. P. C. 85 ; 51 L. T. 669) 
 
 V. Dudley and Stephens (14 Q. B. D. 273, 287 ; 33 W. E. 347 ; 
 
 54 L. J. M. 0. 32 ; 52 L. T. 107) .... 1169, 1170, 1215 
 
 V. Blowers (16 Q. B. D. 643) .... 
 
 V. Judge of the City of London Court (8 Q. B. D. 609) 
 
 ■ (25 Q. B. D. 339) 
 
 1198 
 1095 
 1053 
 
 V. Judges of the City of London Court and Another (14 
 
 Q. B. D. 695) 439 
 
 • V. Lambourn Valley Bail way Co. (22 Q. B. D. 463) 
 
 • V. Land Commissioners of England (23 Q. B. D. 64) . 
 - V. Lloyd (19 Q. B. D. 213) 
 
 ■ u. Perry (30 L. J. (Q. B.) 141) 
 
 ■ V. Eegistrar of Greenwich County Court (15 Q. B. D. 54) 
 
 • V. Vestry of St. Mary, L4ington (25 Q. B. D. 523) 
 
 V. Whitchurch (24 Q. B. D. 420) .... 
 
 • V. Wilson (5 Q. B. D. 28) 
 
 Queen Caroline's Case (2 B. & B. 286) 
 Quickstep, The (15 P. D. 196) . 
 
 355 
 
 192 
 
 1184 
 
 1159 
 
 905 
 
 1121 
 
 1139 
 
 901 
 
 885 
 
 1076 
 
 K. 
 
 R. u. Adams (22 Q. B. D. 66) . 
 
 — V. Arkwright (1 Web. P. C. 66) . 
 
 — V. Aston (2 Buss 732) 
 
 — V. Bailey (6 Cox, 29) . 
 
 — V. Barnardo (23 Q. B. D. 305) 
 
 — V. Bayley (E. & E. 1) . 
 
 — V. Bellgrove (Times, July 8, 1889) 
 
 — V. Birmingham and Gloucester Eailway Co. (9 C 
 
 2 Q. B. 47) 
 
 VOL. I. 
 
 & 1- 
 
 469; 
 
 475 
 298 
 1203 
 1211 
 613 
 1168 
 1183 
 
 1171 
 
Ixxxii 
 
 TABLE OF CASES. 
 
 E. V. 
 L. 
 
 — V. 
 
 — V. 
 
 V. 
 
 V. 
 
 V. 
 
 ■ V. 
 
 V. 
 
 V. 
 
 ■ — V. 
 
 V. 
 
 — V. 
 
 V. 
 
 V. 
 
 V. 
 
 V. 
 
 V. 
 
 — V. 
 V. 
 
 — ■;;. 
 
 — V. 
 
 — V. 
 
 — V. 
 
 — V. 
 
 — V. 
 
 — V. 
 
 — V. 
 
 — V. 
 
 — V. 
 
 — V. 
 
 — V. 
 
 — V. 
 
 49 
 
 V. 
 
 V. 
 
 V. 
 
 V. 
 
 V. 
 
 V. 
 
 V. 
 
 V. 
 
 V. 
 
 V. 
 
 ■ — V. 
 
 V. 
 
 ■ — V. 
 
 (36 W 
 
 Bishop of London (24 Q. B. D. 213 
 J. Q. B. 169 ; 62 L. T. 167) . 
 Bradlaugh (15 Cox. 231) . 
 Brittleton (12 Q. B. D. 266) 
 Brown (24 Q. B. D. 357) . 
 Brown & Webb (1 C. & K. 144) 
 Burdett (4 B. & Aid. 143) 
 Burgess (16 Q. B. D. 141) 
 Cabbage (R. & E. 292) . 
 Callicott (E. & R. C. C. R. 212) 
 Carr (15 Cox. 131) .... 
 Chamberlain (6 0. & P. 93) 
 Christopherson (16 Q. B. D. 7) . 
 Clark (L. R. 1 C. 0. R. 54) 
 Collins (L. & C. 471 ; 33 L. J. (M. C.) 177) 
 Commissioners of Pagham (8 B. & C. 355) 
 Coney (8 Q. B. D. 534) . 
 County Court Judge of Lambeth and Jonas 
 Creevey (1 M. & S. 273) . 
 Bring "(D. & B. 329) 
 Faderman (1 Den. 569) . 
 Flattery (2 Q.B.D.' 410) 
 Frost (Dears. 474) .... 
 Gallagher and Others (15 Cox. 291) . 
 Gibbons (L. & C. 109) . 
 Giles (34 L. J. (M.C.) 50) 
 Goldsmith (L. R. 2 0. C. R. 74) 
 Graham and Burns (16 Cox 420) 
 Gumble (L. R. 2 C. C. R. 1) . . 
 Gurney (11 Cox, C. C. 422) 
 Haines (1 F. & F. 86) . 
 Holbrook (4 Q. B. D 46) . 
 HoUis (12 Q. B. D. 25, 26 ; 32 W. R. 372 ; 53 L. 
 L. T. 57) .... 
 Huxley (D. & B. 606) . 
 Inglewood (8 Dowl. P. C. 693) . 
 James (12 Cox, 127 ; 24 Q. B. D. 439; 59 L. J, 
 
 PAOB 
 
 38 W. B. 214; 59 
 
 . 1152 
 . 1186 
 . 221 
 . 1163 
 . 1181 
 . 468 
 . 1183 
 . 1198 
 . 1203 
 . 1164 
 . 1213 
 . 1142 
 . 1216 
 . 1163 
 . 439 
 . 1178 
 E. 475) . 778 
 . 470 
 . 1200 
 . 1212 
 . 1192 
 . 1211 
 1174, 1175 
 
 (M.C, 
 
 Judge of County Court of Surrey (13 Q. B. D. 963) 
 
 Justices of Macclesfield (2 L. T. 352) . 
 
 Keyn (L. E. 2 Ex. D. 63 ; 13 Cox, 403) 
 
 Knill (5 B. & Aid. 929) . 
 
 Lake (11 Cox, 333) . 
 
 Land Commissioners (23 Q. B. D. 59 ; 37 W. E. 350) 
 
 Lloyd (19 Q. B. D. 213) . 
 
 Lockett (Leach, 94) 
 
 Lord Mayor of London (16 Q. B. D. 772) 
 
 Matthews (State Trials, ix. 680) 
 
 . 1184 
 . 1199 
 . 1212 
 . 1178 
 . 1211 
 . 1215 
 . 1215 
 . 464 
 C.38; 
 
 . 1199 
 . 1185 
 . 189 
 . 1172, 
 1195, 1211 
 . 948 
 . 1206 
 . 1164 
 . 1185 
 . 1203 
 . 192 
 915, 1184 
 . 1203 
 . 216 
 . 1173 
 
TABLE OF CASES. 
 
 Ixxxiii 
 
 J. P, 
 
 R. V. McNaughton (10 CI. & Fin. 200) 
 
 — V. Miles (24 Q. B. D. 423) .... 
 
 — V. Negus (L. E. 2 C. C. R. 34) . 
 
 — V. Overton (2 Mood. 0. 0. 263) . 
 
 — V. Owen (20 Q. B. D. 829) .... 
 
 — V. Oxford (9 0. & P. 525) .... 
 
 — V. Paul (25 Q. B. D. 829) .... 
 
 — V. Phillips (6 East, 463) .... 
 
 — V. Price (12 Q. B. D. 247 ; 53 L. J. (M. 0.) 51 
 
 — V. Prince (2 0. 0. K. 154) . . " . 
 
 — V. Pritcliard (7 0. & P. 303) 
 
 — V. Ramsay and Foote (15 Oox, 217) 
 
 — V. Russell (0. & Mar. 541) .... 
 
 — V. (1 Mood. E. 0. 377) . 
 
 — V. Rymer (2 Q. B. D. 136) .... 
 
 — V. Sandoval (56 L. T. 526 ; 35 W. R. 500 ; 51 
 16 Cox. C. C. 206) 
 
 — V. Seme (C. C. C. Sessions Papers ; 16 Cox. 0. 0. 31) 
 
 — V. Shaw (L. & C. 579) .... 
 
 — i;. Stone (4 0. & P. 379) .... 
 
 — V. Stourbridge (8 B, & C. 96) 
 
 — V. SulMvan (11 Cox. C. C. 52) . . . 
 
 — V. Tate (12 Cox, 7) 
 
 — V. Thurborn (18 L. J. (M. C.) 140; 2 C. & K. 831) 
 
 — V. Tolson (23 Q. B. D. 168 ; 37 W. R. 716 ; 58 L. J 
 60 L. T. 899) ... . . 
 
 — V. Tyson (11 Cox. 1, 4) . . 
 
 — V. Vice-Registrar (office of) Land Registry (24 Q. B. _ 
 
 — V. Watson (32 How. St. Tr. 82, et seq. ; 2 Stark. 129) 
 
 — «. Wealand (20 Q. B. D. 827) 
 
 — V. Western (L. R. 1 0. C. R. 122) . 
 
 — V. Wheeler (2 B. & Aid. 354) 
 
 — V. Whitchurch (24 Q. B. D. 420) . 
 
 — V. Woodcock (1 Lea. 502) . 
 
 — V. Woodward (L. & C. 122) . 
 
 — V. Woolstan (2 Str. 834) . 
 
 — V. Wright (2 F. & P. 320) . 
 Raggett, In re (16 Oh. D. 117 ; 29 W. R. 314; 50 L. J. Ch. 187; 
 
 44 L. T. 4) 108 
 
 Railway and Electric AppUances Co. (38 Ch. D. 597) ... 91 
 
 Raison, Re (39 W. R. 271) 941 
 
 Ramsden v. Dyson (L. R. 1 H. L. 129 ; 14. W. R. 926 ; 12 Jur. 506) 520 
 Eamskill v. Edwards (31 Ch. D. 100, 109 ; 34 W. R. 96 ; 55 L. J. Ch. 
 
 81 ; 53 L. T. 949) 681, 946 
 
 Randall v. Newson (2 Q. B. D. 102; 25 W. R. 313; 46 L. J. Q. B. 
 
 259 ; 36 L. T. 164) 382, 429 
 
 Eandell, In re. Randell v. Dixon (38 Ch. D. 213) ... 70 
 
 Eanelaugh v. Hayes (1 Vem. 189) 683 
 
 /2 
 
 FAQB 
 . 1167 
 
 . 1205 
 
 . 1199 
 
 . 1184 
 
 . 1141 
 
 . 1173 
 
 . 1193 
 
 . 1178 
 
 . 1188 
 
 . 1192 
 
 . 1213 
 
 1186, 1187 
 
 . 1204 
 
 . 1201 
 
 . 408 
 
 709; 
 
 . 1177 
 
 1191, 1213 
 
 . 1185 
 
 . 1183 
 
 . 856 
 
 . 475 
 
 . 1184 
 
 . 1197 
 (M. C.) 97 ; 
 
 1169, 1180 
 
 . 1184 
 
 D. 178) . 80 
 
 . 855 
 
 . 1193 
 
 . 1211 
 
 . 297 
 
 . 1191 
 
 . 892 
 
 . 1200 
 
 . 1187 
 
 . 1211 
 
Ixx 
 
 XIV 
 
 TABLE OF CASES. 
 
 Eann ?;. Hughes (7 T. E. 350) 
 
 Eapson v. Cubitt (9 M. & W. 710) .... 
 
 Eavensoroft v. Workman (37 Oh. D. 637) . 
 
 Eead v. Anderson (10 Q. B. D. 100 ; 13 Q. B. D. 779 ; 31 W. E, 
 52 L. J. Q. B. 214 ; 48 L. T. 74) . 
 
 V. Bishop of Lincoln (14 P. D. 8 ; [1891] vol. i. p. 9) 
 
 V. Brown (22 Q. B. D. 128, 132) 
 
 and Greswell's Design, In re (42 Ch. D. 260) 
 
 Joannon (25 Q. B. D. 300) .... 
 
 and Others, Ex parte (13 P. D. 221) . 
 
 Beading v. School Board of London (16 Q. B. D. 686) . 
 
 Reay v. Eawlinson (29 Beav. 88) .... 
 
 Eecepte, The (14 P. D. 131) 
 
 Eeed and Bowen, Ex parte (17 Q. B. D. 244) 
 
 Eees V. Berrington (2 Ves. jun. 540) .... 
 
 Eeeves v. Penrose (26 L. E. Ir. 141) .... 
 
 Eeichel v. Bishop of Oxford (35 Ch. D. 48 ; 14 App. Gas. 252 
 L. T. 131) : 
 
 Eeid V. Reid (31 Oh. D. 402 ; 33 Ch. D. 220 ; 34 W. E. 332 
 
 ■ L. J. Oh. 294 ; 54 L. T. 100) .... 
 
 Eendall v. Blair (45 Ch. D. 139) .... 
 
 Eenpor, The (8 P. D. 115) . . 
 
 Kepublio of Costa Eica v. Erlanger (1 Ch. D. (C.A.) 171) 
 
 : V. Strousberg (16 Ch. D. 8) 
 
 Eeynold.s, Ex parte. In re Eeynolds (L. E. 20 Ch. D. 294,, 300 ; 
 W. E. 651 ; 51 L. J. Ch. 756 ; 46 L. T. 508) . 
 
 , In re (3 Oh. D. 61) 
 
 ■Ehodes, Ee (31 Ch. D. 499 ; 55 L. J. Oh. 411 : 54 L. T. 294) 
 
 , In re. Ehodes v. Ehodes (36 Ch. D. 586 ; 56 L. J. Ch. 
 
 57 L. T. 652 
 
 V. Bate (L. E. 1 Ch. 252 ; 14 W. R. 292 ; 13 L. T. 778 ; S5 
 
 L. J. Oh. 267 ; 12 Jur. 178) 840 
 
 V. Dawson (16 Q. B. D. 548) 903, 918 
 
 V. Swithenhank (22 Q. B. D. 579 ; 58 L. J. Q. B. 287 ; 37 
 
 W.E.457) 605 
 
 Ehymney Eailway Co. v. Ehymney Iron Co. (25 Q. B. D. 146) . 425 
 Eice V. Eice (2 Drew, 73) ........ 109 
 
 Eiohard v. Jenkins (17 Q. B. D. 544 ; 18 Q. B. D. 451). . '. 918 
 
 Eichards v. J)elbridge (L. E. 18 Eq. 11) 510 
 
 Eichardson v. Feary (39 Ch. D. 45; 59 L. T. 165: 36 W E 
 
 807) 557 
 
 u. Harris (22 Q. B. D. 268) 335 
 
 V. Jackson (8 M. & W. 928) 432 
 
 Eickford v. Eidge (2 Cajnp. 537) 263 
 
 Eiddell, Ex parte. Ee Earl of Stralhmore (20 Q. B. D. 512) . . 900 
 Eidge, Ee. Hellard v. Moody (31 Ch. D. 504) . . . ! 156 
 Eiding v. Hawkins (14 P. D. 56) ...... 993 
 
 Eidler v. Eidler (22 Ch. D. 82; 52 Ji. J. Oh. 843 ; 48 L. T. 396) '. 144 
 
 PAGE 
 
 360; 364 
 . 445 
 . 238 
 453; 
 
 . 405 
 1153, 1154 
 
 267, 820 
 . 305 
 . 284 
 . 1155 
 
 267, 764 
 . 45 
 . 1057 
 
 909, 944 
 . 682 
 . 506 
 ; 61 
 
 366, 1113 
 ; 55 
 
 221, 226 
 . 238 
 . 1075 
 . 744 
 . 774 
 
 30 
 
 870, 871 
 . 41 
 
 693, 782 
 825; 
 
 . 862 
 
TABLE OF CASES:: 
 
 Ixxxy 
 
 54 
 
 Ridley, Iq re. Buckton v. Hay (11 Ch. D. 645, 649 ; 58 L. J. Ch. 
 
 563 ;, 41 L. T. 336 ; 27 W. E. 527) 
 Eidsdale v. CHfton (2 P. D. 276) 
 Eigby V. Connol (14 Cli. D. 482, 487) 
 Eimington v. Hartley (14 Oh. D. 630) 
 Eio Tinto, The (9 App. Gas. 356 ; 53 L. J. P. C, 
 Ritso, Ex parte (22 Ch. D. 529) 
 Eivett-Camac, Be (30 Ch. D. 136 ; 54 L. J. Oh. 1074 ; 
 
 33W. E. 837) . .... 
 
 Roberts, In re. Goodchap v. Eoberts (14 Ch. D, 
 
 ^^,Ee(430h. D. 52) 
 
 • V. Eoberts (13 Q. B. D. 794) 
 
 49) 
 
 Eobertson v. Broadbent (8 App. Gas. 312, 815) 
 
 -' V. French (4 East. 130, 135) 
 
 V. MacDonagh (14 Cox, 0. 0. 469) 
 
 , Ee (27 Ch. D. 160) . 
 
 V, Eobertson (6 P. D. 119) 
 
 V. (7 P. D. 84, 227) . 
 
 EobinVCase (Noy. 69; ToUer, 38) . 
 Kobinson, Ee (33 Ch. D. 265) . 
 
 , Ee (27 Oh. D. 160) . 
 
 , V. Chadwiok (7 Oh. D. 880; 47 L. J. 
 
 415; 26 W. E. 556) .... 
 
 ■^ V. Chartered Bank (L. E. 1 Eq. 32) 
 
 V. Flight (4 D. J. & S. 608) 
 
 V. Gailand (37 W. E. 898) . 
 
 V. Governors of London Hospital (10 Hare, 24, 25) 
 
 V. Harman (1 Ex. 855) ..... 
 
 V. Jenkins (24 Q. B. D. 275 ; 59 L. J. Q. B. 147 ; 62 L. T. 
 
 439 ; 38 W. E. 360) .... 
 
 V. Kilvert (41 Ch. D. 88) . 
 
 V. Eobin^on (2 De G. M. & G. 247) 
 
 Eobotham v. Eobotham (27 L. J. (Mat.) 61 ; 1 Sw. & Tr. 
 
 70, 212 
 
 . 1153 
 
 . 599 
 
 557, 613 
 
 50 L. T. 461) 1053 
 
 . 950 
 
 53 L. T. 81 ; 
 
 . 156 
 . 425 
 . 840 
 . 335 
 l(j3, 551 
 . 280 
 . 385 
 . 1029 
 1043, 1044 
 . 1045 
 . 985 
 . 711 
 . 1029 
 Ch. 607 ; 38 L. T. 
 
 . 738 
 . 649 
 . 510 
 . 770 
 . 236 
 . 422 
 
 L. T. 238) 
 
 Eobson V. Bennett (2 Taunt. 388) 
 
 V. Flight (4 D. G. J. & S. 608) 
 
 . V. The Owner of the " Kate " (21 Q. B. D. 13) 
 
 Eoddam v. Morley (26 L. J. Ch. 438, 447) . 
 Eodway v. Lucas (24 L. J. Ex. 155) . 
 Eoe V. Siddons (22 Q. B. D. 224) 
 Eoeoliff, The (L. E. 2 A. & E. 363) . 
 Eogers, Ex parte. Ee Pyatt (26 Oh. D. 31) 
 
 & Co. V. Lambert & Co. (24 Q. B. D. 573) 
 
 : V. Ingham (3 Oh. D. 351 ; 35 L. T. 677 ; 25 W, 
 
 V. Jones (7 Oh. D. 349) 
 
 ■„. Whiteley (23 Q. B. D. 236) 
 
 Eollason v. Leon (7 H. & N, 73) 
 Eolles V. Kewell (25 Q. B. D. 335) . 
 
 765 
 127 
 529 
 
 190; 31 
 . 1031, 
 
 E. 338) 
 
 1033 
 263 
 510 
 
 1095 
 203 
 425 
 193 
 
 1059 
 26 
 406, 862 
 603 
 690 
 776 
 113 
 
 1076 
 
Ixxxvl 
 
 TABLE OF OASES. 
 
 Bona, The (7 P. D. 247) .... 
 Eoper, Ee. Roper v. Doucaster (39 Ch. D. 482) 
 
 V. Harrison (2 K. & J. 86) 
 
 Boscorla v. Thomas (3 Q. B. 234) . 
 
 Eose V. Watson (10 H. L. 0. 672) . 
 
 Bosenberg v. Northumberland Building Society (22 Q. B, 
 
 Bosher, In re. Bosher «. Eosher (26 Ch. D. 801). 
 
 Boss V. Army and Navy Hotel Co. (34 Ch. D. 432) 
 
 r.- Buxton (42 Ch. D. 190) 
 
 «. Boss (7 P. D. 20) .... 
 
 V. (1 P. & D. 734) .... 
 
 Eossiter, In re. Eossiter k. Eossiter (13 Ch. D. 355) 
 V. Miller (3 App. Cas. 1124; 39 L. T. 173; 
 
 10 ; 26 W. E. 865) .... 
 Boss's Trusts, In re (L. E. 13 Eq. 292) 
 Botherham Chemical Co., Ee (25 Ch. D. 103) 
 Eothschild v. Brookman (2 Dow. & C. 189, 197) 
 Bousillon V. Eousillon (14 Oh. D. 351 ; 42 L. T, 
 
 338 ; 28 W. E. 623) .... 
 Eoutledge v. Low (L. E. 3 H. L. 100) 
 Eowath V. Wilks (1 Camp. 98) . 
 Bowe, In re (W. N. (1889) 74, 161) . 
 
 ■ V. School Board for London (36 Ch. D. 619) 
 
 Eowley v. Southwell (61 L. T. 805) . 
 Bownson, Ee (29 Ch. D. 358 ; 52 L. T. 825 ; 64 
 
 W. E. 604) 
 
 Boyle, Ee (43 Ch. D. 18) ... 
 
 Buby, The (15 P. D. 139, 164) 
 
 Eugg V. Minett (11 East, 210) ... 
 
 Burnley v. Winn (22 Q. B. D. 265) . 
 
 Bumsey v. Nicholl (2 C. P. D. 294, affirming 2 C 
 
 Eushton V. Crawley (L. E. 10 Eq. 517) 
 
 Bussell, Ex parte. In re Butterworth (19 Ch. D, 
 
 ■ , In the Goods of G. B. (15 P. D. Ill) 
 
 , Ee (37 W. B. 21) . . . 
 
 ■ V. Cambefort (23 Q. B. D. 526 ; 58 L. J. 
 
 679; 
 
 L. J. 
 
 751; 37 W. B. 701) 
 
 V. Cowley (1 W. P. C. 459) . 
 
 V. Ledsam (14 M. & W. 574) . 
 
 V. Eussell (1 Bro. C. C. 269) . 
 
 V. Wakefield Waterworks Co. (L. B. 20 Eq. 474) 
 
 V. Watts (10 App. Cas. 590) . 
 
 Eutland's; Countess of, Case (5 Co. Eep. 25) 
 
 Eyall V. Bowles (1 Atk. 165) . 
 
 Byder v. Wombwell (L. B. 3 Ex. 90; 38 L. J. Ex. 8 ; 19 L 
 
 17W. B.167) 
 
 Eylands v. Fletcher (L. E. 3 H. L. 330; 37 L. J, 
 
 220) 
 
 48 L, 
 
 49 L, 
 
 P. D, 
 
 588) 
 
 Q.B. 
 
 D. 373) 
 
 J. Ch. 
 
 179) 
 
 PAQB 
 
 . 1095 
 
 . 218 
 
 . 1136 
 
 367, 382 
 
 . 568 
 
 660 
 
 47 
 
 284 
 
 847 
 
 1037 
 
 lOliS 
 
 553 
 
 J. Ch. 
 
 581, 582 
 343, 344, 345 
 642 
 645 
 
 595 
 320 
 322 
 59 
 581 
 847 
 
 553 
 
 786 
 1077 
 379 
 733 
 1139 
 298 
 144 
 974 
 900 
 
 707 
 289 
 288 
 102 
 643 
 202 
 363 
 240 
 
 386 
 
 Ch. 950 ; 33 
 
 498 ; 61 L. T, 
 
 T.491; 
 
 Ex. 161 ; 19 L. T. 
 
 447, 448 
 
TABLE 0F casus: 
 
 Ixxx 
 
 Vll 
 
 s. 
 
 S. falsely called B. v. B. (9 P. D. 80, 81) 103 1 
 
 Sachs V. Spielman (37 Ch. D. 303) 744 
 
 Backer, In re. Ex parte Sacker (22 Q. B. D. 179 ; 58 L. J. Q. B. 
 
 4 ; 60 L. T. 344 ; 37 W. E. 204) . . . . '. .895 
 
 Sackville-West v. Viscount Holmesdale (L. R. 4 H. L. 543) . . 514 
 Salaman, Ex parte. In re Salaman (14 Q. B. D. 936) . . . 944 
 
 Sale V. Lambert (L. R. 18 Eq. 1) 582 
 
 Salford (Corporation of) v. Lever (24 Q. B. D. 695 ; 25 Q. B. D. 363) 
 
 421, 744, 880 
 Mayor, &c., of the County Borough of v. The County Council 
 
 of Lancashire (25 Q. B. D. 384) 807 
 
 Salisbury, Lord v. Nugent (9 P. D. 23) 995 
 
 Salmon, Re. Priest v. Uppleby (42 Ch. D. 351) . . . .795 
 Salt V. Cooper (16 Ch. D. 544, 549 ; 50 L. J. Ch. 529 ; 43 L. T. 682 ; 
 
 29 W. R. 553) 353, 560, 775 
 
 Sammons u. Bailey (24 Q. B. D. 727) 745 
 
 Sampson & WaU, Re (25 Oh. D. 482 ; 50 L. T. 435 ; 53 L. J. Ch. 
 
 459; 32 W. B. 617) 613 
 
 Samson, Re (L. E. 3 P. & D. 48) 983 
 
 Samuell v. Howarth (3 Mer. 272) 682, 683 
 
 Sanderson v. Mayor of Berwick-upon-Tweed (13 Q. B. D. 547, 551) 127 
 Sands to Thompson (22 Ch. D. 614 ; 52 L. J. Ch. 400 ; 48 L. T. 210 ; 
 
 31 W. R. 397) .... 
 Sara, The (14 App. Cas. 209) . 
 Sargent, Re (15 P. D. 168) 
 Sartup V. Macdonald (6 M. & G. 610). 
 Saunders v. Pawley (14 Q. B. D. 234) 
 Savery v. King (L. R. 5 H. L. 627) . 
 Savil V. Roberts (1 Ld. Raym. 374) . 
 Saville, Re (4 Mori 277) . 
 
 V. Cooper (36 Ch. D. 520) 
 
 Saxby V. Eaaterbrook (3 C. P. D. 339) 
 Sayers v. Collyer (28 Ch. D. 103) 
 Scanlan, Infants, In re (40 Ch. D. 200) 
 Scarf i;. Jardine (7 App. Cas. 345, 351 ; 47 
 
 612 ; 30 W. R. 893 . 
 Scarfe v. Morgan (4 M. & W. 270, 283) 
 Scarth, Ex parte (L. R. 10 Ch. 234) . 
 Scattergood v. Sylvester (15 Q. B. 506) 
 Schmitz, Ex parte. Re Cohen (12 Q. B. D, 
 Schove V. Schminck6 (33 Ch. D. 546). 
 School Board for London, Ex parte. In re 
 Sohultz V. Schultz (56 L. J. (Ch.) 356) 
 Schwan, The (61 L. T. 308) 
 Scott, Re (1 Ch. 298) 
 
 ; 
 
 
 
 1051, 1052 
 
 , 
 
 
 
 . 1149 
 
 , 
 
 
 
 . 431 
 
 
 
 
 . 753 
 
 , , 
 
 
 
 674, 675 
 
 , , 
 
 
 
 . 460 
 
 
 
 
 . 903 
 
 , , 
 
 
 
 . 535 
 
 , , 
 
 
 
 . 592 
 
 , 
 
 
 
 584, 598 
 
 
 
 
 . 611 
 
 ii. T.258; ; 
 
 51L.J.Q.B. 
 
 • 
 
 
 434, 622, 623 
 . 431 
 
 . 777 
 . 242 
 
 .509) 
 
 
 . 900 
 . 316, 320 
 
 Hart (41 Ch 
 
 D. 
 
 547) . 190 
 . 224 
 . 1067 
 
 . 
 
 
 
 . 612 
 
Ixxxv: 
 
 111 
 
 TABLE OF CASES. 
 
 Scott». Avery(5H. L. Ca.812) 760 
 
 V. Morley (20 Q. B. D. 120, 132 ; 57 L. T. Eep. 919) 217, 218, 953 
 
 u. Pape (31 Oil. D. 554, 573) 592,593 
 
 V. Sebright (12 P. D. 23) 1022 
 
 V. Shepherd (2 W. Bl. 892 ; 1 Smith's L. 0. 480) . . 502, 503 
 
 V. Stansfield (L. E. 3. Ex. 220) 454 
 
 Scottish Widows Fund v. Craig (20 Ch. D. 208) . . . 1125, 1142 
 
 Sootto «. Heritage (L. E. 3 Eq. 212) 571 
 
 Script Phonc^raphy Co. v. Gregg (59 L. J. Ch. 406) . . .734 
 Seager,Ee. •Seeley!;.Briggs(-60L.-T. (N.S.)665) . . .389 
 
 Seagrim u. Tuck (18 Ch. D. 296) 793 
 
 Seal i;. Claridge (7 Q. B. D. 516) 91 
 
 Seaman v. NethercUft (1 0. P. D. 540) 470 
 
 Searle w. Cooke (43 Ch. D. 516) • 191 
 
 Sears v. Lyons (2 Stark. 317) 506 
 
 Seath V. Moore (11 App. Cas. 350) 250 
 
 Seaton v. Seaton (13 App. Cas. 61 ; 57 L. J. Ch. 661 ; 96 W. E. 865; 
 
 58L. T. 565) 613 
 
 Sebright, Ee (33 Ch. D. 429) 156 
 
 Sedgwick, Ee (37 W. E. 72) 900 
 
 Seeley v. Jago (1 P. Wms. 389) 546 
 
 Selby ?;. Whitaker (6 Ch; D. 249) 167 
 
 Selwyn v. Garfit (38 Ch. D. 273 ; 57 L. J. Ch. 609 ; 36 W. E. 513; 
 
 59L. T. 233) 104 
 
 Semayne's Case (1 Smith's L. C.) 778 
 
 Serff V. Acton Local Board (31 Ch. D. 679) 202 
 
 Seroka v. Kattenburg (17 Q. B. D. 177, 179 ; 55 L. J. Q. B. 365 ; 
 
 54 L. T. 649 ; 34 W. E. 542) 215, 443 
 
 Seton V. Slade (7 Ves. 265) 587 
 
 Seyton, Ee (34 Ch. D. 511 ; 56 L. J. Ch. 775 ; 35 W. E. 373 ; 56 
 
 L. T. 479) 224 
 
 Shackleford v. Owen (L. E. 3 C. P. 407) 638 
 
 Shadwell v. Shadwell (9 C. B. (N.S.) 159) 369 
 
 Shakespear, Ee (30 Ch. D. 169; 55 L. J. Ch. 44; 53 L. T. 145- 
 
 33W. E. 744) .' 219 
 
 Sharp, Ee(3Ch. D. 59) 37 
 
 V. Powle (12 Q. B. D. 385) ....'.! 118 
 
 V. Lush (10 Ch. D. 473 ; 48 L. J. Ch. 23 ; 27 W. E. 528) .' 790 
 
 v. McHenry (38 Ch. D. 427) 925 
 
 V. Powell (L. E. 7 C. P. 258) . . . .' ! 502 
 
 1;. St. Sauveur (L. E. 7 Ch. 343) ..... 55 
 
 Sharpe v. Crispin (1 P. & D. 618) \ io04 
 
 V. San Paulo Eailway Co. (L. E. 8 Ch. 507) . . . 760 
 
 Shaw V. Benson (11 Q. B. D. 563) \ 636 
 
 V. Foster (L. E. 5 H. L. 321, 338) . . . . .520 
 
 V. Smith (18 Q. B. D. 193) ....."! 742 
 
 ■ V. Thompson (3 Ch. D. 233) 1120 
 
 Shane, Ex parte. Ee McGinity (29 Sol. Jo. 70) . . . . 339 
 
TABLE OF CASES. 
 
 Ixxxix 
 
 Sheffield (Earl of) v. London Joint Stock Bank (13 App. Gas. 333 ; 
 
 57 L. J. Ch. 986 ; 58 L. J. 738 ; 37 W. E. 33) . . . 
 
 Sheffield and South Yorkshire Building Society, Be (22 Q. B. D. 470) 
 Shell, Ex parte. In re Lonergan (4 Ch. D. 789 ; 46 L. J. (Bk.) 62 ; 
 
 36 L. T. 270 ; 25 W. R. 420) 
 
 257 
 660 
 
 Shelley's Case (1 Coke's Reports, 93J) 
 
 Shepard v. Jones (21 Ch. D. 469) .... 
 
 Shepherd, Ee (43 Ch. D. 131) 
 
 Sheppard v. Bennett (L. E. 2 A. & E. 335). 
 
 ~ V. ■ (4 P. C. 350) .... 
 
 Sherry, In re (25 Ch. D. 692) 
 
 Shilling V. Accidental Death Insurance Co. (1 P. & P. 116) 
 
 Short V. Short (3 P. & D. 193) 
 
 Shrapnel v. Laing (20 Q. B. D. 334) .... 
 Sibeth, Ex parte (14 Q. B. D. 417) .... 
 Siddell V. Vlckers (39 Ch. D. 92) . 
 
 V. (5 P. E. C. 99) . 
 
 Sidehotham, Ex pane (14 Ch. D. 458) 
 
 Simmons, Ee (15 Q. B. D. 348) 
 
 V. London Joint Stock Bank (1 Ch. (1891) 270) 
 
 V. Swift (5 B. & C. 862) .... 
 
 Simons v. McAdam (L. E. 6 Eq. 324) 
 Simpson v. Hartopp (1 Smith's L. 0.) 
 
 V. London and North Western Eailway Co. (1 Q, 
 
 274). 
 
 Sinclair, In re. Ex parte Payne (15 Q. B. D. 616) 
 Singer Manufacturing Co. v. Clark (5 Ex. D. 37) . 
 
 V. Loog (8 App. Cas. 15, 29) . 309, 
 
 •;;. Wilson (3 App. Oas. 3, 6) . 
 
 Singleton v. Tomlinson (3 App. Cas. 404 ; 26 W. E. 722 ; 38 
 
 653 . . . 
 
 Sisters, The (1 P. D. 117, 281) 
 
 Six Carpenters (8 Eep. 146 a ; 1 Smith's Leading Cases) 
 Skeat's Settlement (42 Ch.D. 522) .... 
 Skinner v. City of London Marine Insurance Corporation 
 
 Q.B. D. 882) 
 • ■ V. Skinner. (13 P. D. 90) 
 
 Sladden v. Serjeant (1 F. & P. 322) .... 
 Slattery v. Ball (40 Ch. D. 11 ; 58 L. J. Ch. 282 ; 37 W. E. 37 
 
 L. T. 800 
 
 Slazenger v. Peltham (Cutler's Eeports of Pat. Cas. vol. vi. No 
 
 p. 232) 
 
 Sleeman?;. Wilson (L. E. 13 Eq. 36). 
 
 Slinn, In the Goods of (15 P. D. 156) 
 
 Sloman v. Walter (1 Bro. C. C. 418) .... 
 
 Small ?;. Smith (10 App. Cas. .119) .... 
 
 Smallpage v. Tonge (17 Q. B. D. 644) 
 
 Smart, Ru (18 Ch. D. 165) 
 
 33, 44; 
 
 616 
 166 
 . 567 
 745, 793 
 . 1151 
 . 1150 
 . 433 
 . 279 
 . 1019 
 . 802 
 . 918 
 . 296 
 . 295 
 . 950 
 . 835 
 . 257 
 . 241 
 . 571 
 . 117 
 
 B. D. 
 
 . 422 
 . 918 
 . 407 
 310, 318 
 . 315 
 L. T. 
 
 171, 971 
 
 1056, 1058 
 
 . 478 
 
 138, 537 
 
 (14 
 
 . 422 
 610, 1035 
 . 885 
 ; 59 
 
 . 162 
 17, 
 . 290 
 . 608 
 . 157 
 685, 688 
 . 283 
 . 720 
 . 193 
 
xc 
 
 TABLE OF CASES. 
 
 D, 
 
 Smart v. Tranter (43 Ch. D. 587, reversing 40 Ch, 
 
 L. J. Ch. 363 ; 38 W. E. 530 ; 62 L. T. 356) . 
 Smee v. Smee (5 P. D. 84) 
 Smethurst v. Hastings (30 Ch. D. 490 ; 52 L. T. 567 ; 
 
 173; 33W. E. 496) . . 
 Pmirthwaite's Trusts, Ee (21 Ch. D. 778) . 
 Smith, In re. Hannington v. True. Gili'S v. True (33 Ch. D, 
 
 , In the Goods of E. J. (15 P. D. 2) . 
 
 , Ee (37 W. E. 558) .... 
 
 , Ee (17 Q. B. D. 4) 
 
 , Ee (25 Q. B. D. 536) .... 
 
 , Re. Clements v. Ward (35 Ch. D. 589, 596) 
 
 V. Anderson (15 Ch.D. 247, 274) . 
 
 , Arthur Heavens, In re (2 Ex. Div. 47) 
 
 V. Brown (48 L. J. Ch. 694) . 
 
 V. Chadwick (9 App. Cas. 187 ; 53 L. J. Ch. 873 ; 32 
 
 687; 50L. T. 697) .... 
 
 V. Cowell (6 Q. B. D. 625) 
 
 V. Day (21 Ch. D. 421 ; 31 W. E. 187 ; 48 L. T. 54) 
 
 V. — (13 Ch. D. 652 ; 28 W. E. 712) 
 
 V. Dobbin (3 Ex. D. 338) 
 
 V. Edwards (22 Q. B. D. 10) . 
 
 V. Hope (6 E. P. C. 200) 
 
 V. London and South Western Eailway Co. (L. E. 5 C. 
 
 u. Marrable (11 M. & W. 5) . 
 
 ■M.Eead (W.N. (1883)196) . 
 
 u. Smith (7 P. D. 84) .... 
 
 V. (W. N. (1882) 91) . 
 
 V. (58 L. T. (N.S.) 639). 
 
 V. (15 P. D. 47) . 
 
 Smithett v. Hesketh (44 Ch. D. 161) . 
 
 Sneesby v. Lancashire and Yorkshire Eailway Co. (1 Q. B. D. 
 
 Snowdon, Ex parte. In re Snowdon (17 Ch. D. 44) 
 
 Soar V. Koster (4 K. & J. 152) .... 
 
 Socie't^ G&drale de Paris v. Dreyfus (29 Ch. D. 239 ; 37 Ch. I 
 
 V. Walker (11 App. Cas. 41 ; 55 L. t 
 
 569 ; 54 L. T. 389 j 34 W. E. 662) ... 
 
 Solicitor, In re a. Ex parte Incorporated Law Society (37 
 598) 
 
 , Ee, a (25 Q. B. D. 17) . . . 
 
 Soils, The (10 P. D. 62) 
 
 Solomon v. Solomon (12 W. E. 540) . 
 
 Soltau V. De. Held (2 Sim. (N.S.) 142, 150) 
 
 Somerset (Duke of), Ee (34 Ch. D. 465) . 
 
 Somerville v. Schembri (12 App. Cas. 453) . 
 
 ■ : V. Somerville (5 Ves. 787) 
 
 Soper V. Arnold (35 Ch. D. 384 ; 14 App. Cas. 429) 
 
 Sottomayor, otherwise De Barros v. De Barros (3 P. D. 1) 
 
 PAGE 
 
 165); 59 
 356, 975, 993 
 . 962 
 55 L. J. Oh. 
 
 195) 
 
 635, 636, 
 
 625 
 
 537 
 
 553 
 
 967 
 
 895 
 
 933 
 
 927 
 
 211 
 
 642 
 
 . 952 
 
 . 590 
 
 W. E. 
 
 493, 494 
 
 775 
 
 598 
 
 589 
 
 721 
 
 842 
 
 305 
 
 484 
 
 123 
 
 746 
 
 1045 
 
 1040 
 
 1013 
 
 1026 
 
 5H4 
 
 504 
 
 682 
 
 517 
 
 718 
 
 P. 98) 
 
 42) 
 
 215) 
 Q.B. 
 
 W. E. 
 
 649 
 
 . 838 
 . 905 
 . 1092 
 . 552 
 479,594 
 216, 218 
 . 311 
 . 1004 
 78, 689 
 . 998 
 
TABLE OF CASES. XCl 
 
 PAQE 
 
 Soutar's Policy Trusts, Ee (26 Ch. D. 236) 224 
 
 South Eastern Railway Co. v. Eailway Commissioners (6 Q. B. D. 
 
 586) 817 
 
 South of Ireland Colliery Co. v. Waddle (L. E. 4 C. P. 617) . . 394 
 South Western Loan and Discount Co. v. Eobertson (8 Q. B. D. 17) 777 
 South Yorkshire Eailway Co. v. Great Northern Eailway Co. (9 Ex. 
 
 55,89) 392 
 
 Southern v. Southern (W. N. (1890) 80) . . . . 1021, 1041 
 Southport and West Lancashire Banking Co. v. Thompson (37 Ch.D. 
 
 72) 107 
 
 Sowerby v. Fryer (L. E. 8 Eq. 417) 1130 
 
 Spackman, In re. Ex parte Foley (24 Q. B. D. 728) . . 896, 897 
 
 Spears v. Hartley (3 Bsp. 81) 438 
 
 Spedding v. Fitzpatrick (38 Ch. D. 410) 730 
 
 V. Spedding (31 L. J. (P. & M.) 96) ... . 1035 
 
 Speight V. Gaunt (22 Ch. D. 727 ; 9 App. Cas. 1 ; 50 L. T. 330 ; 
 
 53 L. J. Ch. 419 ; 32 W. E. 435) 524, 525 
 
 Speller & Co. v. Bristol Steam Navigation Co. (13 Q. B. D. 96) . 718 
 
 Spence, In re (2 Ph. 247) 612 
 
 Spencer v. Clarke (9 Ch. D. 137) 275 
 
 (Earl) V. Peek (L. E. 3 Eq. 415) 876 
 
 V. Jack (3 De G. J. & S. 346) 289 
 
 V. Watts (23 Q. B. D. 350) 737 
 
 Spice «. Bacon (2 Ex. Diy. 463) 409 
 
 Spicer v. Martin (14 App. Cas. 12 ;;58 L. J. Ch. 389 ; 60 L. T. 546 ; 
 
 37 W. E. 689) 596 
 
 Spratt V. Spratt (1 Sw. & Tr. 215) 1033 
 
 St. Agnes, In re, Toxteth Park (11 P. D. 1) . . . . 1149 
 
 St. Botolph's, &o., Estates, In re (35 Ch. D. 142) . . .238 
 
 St. Helen's Smelting Co. v. Tipping (11 H. L. Cas. 642) . 481, 594 
 
 St. Paul V. St. Paul (1 P. & D. 739, 744) 1020 
 
 St. Sepulchre, Vicar of v. The Churchwardens of St. Sepulchre 
 
 (5 P. D. 64) 1118 
 
 St. Stephen's, Coleman Street, In re (39 Ch. D. 492) . . .238 
 
 Staffordshire, The (L. E. 4 P. C. 194) 1090 
 
 Stainar v. Evans (34 Ch. D. 470) 533 
 
 Stambank v. Pinning (11 C. B. 81) 1090 
 
 D. Sheppard (13 C. B. 418) 1090 
 
 Stakesby, The (15 P. D. 166) 1067 
 
 Stamford's, Lord, Ee, Settled Estates (43 Ch. D. 84) . . . 156 
 Standard Manufacturing Co., In re (W. N. (1891) 22) . . . 284 
 
 Standford v. Hurlstone (9 Ch. D. 116) 590 
 
 Standing v. Bowring (31 Oh. D. (C.A.) 282; 56 L. J. Oh. 218; 54 
 
 L. T. 197 ; 34 W. E. 204) 518 
 
 Stanford, Ex parte. Re Barber (17 Q. B. D. 259 ; 55 L. J. Q. B. 
 
 339 ; 54 L. T. 894 ; 34 W. E. 168, 237, 287, 507) . 334, 335, 336 
 
 V. Eoberts (26 Ch. D. 155) 845 
 
 Stanger, Ee (22 Oh. D. 436) 896, 946 
 
XCll 
 
 TABLE OF CASES. 
 
 Stanhope v. S.tanhope (34 W. R. 447) 
 V. (11 P. D. 103, 108) 
 
 Stanhope's Case (L, R. 1 Ch. 169) 
 
 Staniar v. Bv^ns (34 Oh. D. 470,; 56 L. T. 57 ; 35 W, 
 
 L. J. Ch. 581) . 
 , Roberts, & Co., In re. Ex parte Smith (Trustee) and 
 
 PAGE 
 
 . 713 
 
 1041, 1042 
 
 . 650 
 
 R. 286 ; 56 
 
 Another.(20Q. B. D.544) 
 
 Stannard v. Vestry of St. Giles, Camberwell (20 Ch. D. 190) 
 Stanton v. Lambert (39 Ch. D. 626 ; 57 L. J. Ch. 927 ; 59 L. T, 
 Stapletyn v. Waymen (12 W. R. 318) 
 Starey v. Chilworth Gunpowder Co. (24 Q. B. D. 90) . 
 Stead V. Mellor (5 Ch. D. 225 ; 36 L. T. 498 ; 46 L. J. Ch, 
 
 25W. R. 508) 
 
 Steed V. Preeoe (L. R. 18 Eq. 192 ; 43 L. J. Oh. 687 ; 22 W. R, 
 Steeds v. Steeds (22 Q. B, D. 537) .... 
 Steel V. Dixon (17 Ch. D. 285 ; 45 L. T. 142 ; 50 L. J. Oh 
 
 20 W. R. 735) 
 
 Stephen v. Cunningham (39 Oh. D. 426) . 
 
 Stephens, In the Goods of (22 L. J. (P. & M.) 727 ; 18 W. R 
 
 , Re (43 Oh. D. 39) . 
 
 V. London and South Western Railway Co. (18 Q, 
 
 121) 
 
 i;. Myers (4 0. & P. 349) .. 
 ■ V. Midland Railway Co. (10 Ex. 352) 
 
 Stephenson, Re (20 Q. B. D. 540) 
 
 Stevens v. Bi_shop (19 Q. B. D. 447 ; 20 Q. B. D. 446) . 
 
 V. Hounslow Burial Board (61 L. T. 839) 
 
 V. Midland Railway Co. (10 Ex. 352) . 
 
 r V. Sanjpson (5 Ex. D. 53, 54) 
 
 , Thomas, Re (31 Oh. D. 320) 
 
 Steward v. Metropolitan Tramways Co. (16 Q. B. D. 180) 
 
 Stewart, In re (41 Ch. D. 494) 
 
 V. Great Western Railway Co. (2 De J. & S. 319) 
 
 Stigand v. Stigaud (19 Oh. D. 460) .... 
 
 SLockil/u. Punsiion(6 P. D. 9). 
 
 Stocken, Jones & Hawkins, Re (38 Oh. D. 319) . 
 Stockton Iron Fumaoe _0o. (10 Ch. D. 335; 48 L. J. Ch. 
 
 L. T. 29 ; 27 W. R. 433) 
 
 Stoer, Re (9 P. D. 120) 
 
 Stokell V. Niven (61 L. T. 18) 
 
 Stone, In re (33 Oh. D. 541) 
 
 V. Attorney-Gen. (28 Ch. D. 464) . 
 
 ■ V. Smith (35 Oh. D. 188). 
 
 Stoneham v.. The Ocean, &c.. Accidental Insurance Co. (19 Q 
 
 237) 
 
 Stonor V. Todd (4 Oh. D. 58) 
 
 Stoomvaart Maatschappy Nederland v. Peninsular and Oriental 
 
 Steam Navigation Co. (7 App. Gas. 795) 1058 
 
 533 
 
 909, 910 
 590 
 
 429) 
 
 880; 
 
 432) 
 
 591; 
 
 976 
 251 
 316 
 
 515 
 545 
 
 427 
 
 . 681 
 162, 167 
 
 528) 970 
 
 . 207 
 
 , Div. 
 
 . 412 
 
 . 456 
 
 . 446 
 
 . 897 
 . 1142 
 
 . 393 
 
 . 446 
 
 . 470 
 
 . 691 
 
 . 734 
 
 . 201 
 
 . 501 
 
 . 719 
 
 . 165 
 
 . 787 
 
 41 
 
 40 
 
 794, 931 
 
 . 876 
 
 . 377 
 
 . 616 
 
 . 238 
 
 . 587 
 B. D. 
 
 . 278 
 
 . 295 
 
TABLE OF CASES. 
 
 XClll 
 
 Storrs V. Benbow (2 M. & K. 46) 
 Story V. Rees (24 Q. B. D. 748) 
 
 V. Story and O'Connor (12 P. D. 196) 
 
 Stovold, Ee (37 W. R. 511) . 
 
 Stranton Steel Co. (L. E. 16 Eq. 559) 
 
 Strathmore v. Bowes (1 Ves. Jun. 22) 
 
 Stratton v. Pettitt (16 C. B. 420) 
 
 Strauss v. Francis (L. R. 1 Q. B. 379) 
 
 Stray, Ex parte (L. R. 2 Ch. D. 374) 
 
 Streatfield v. Streatfield (1 W. & T. Leading Cases) 
 
 Strong, Ee (32 Ch. D. 842 ; 55 L. J. (Ch. 553 ; 55 L. T. 
 
 614) 
 
 Strutt V. Tippett (W. N. (1890) 23) . 
 
 Stuhbs V. Director of Public Prosecutions (24 Q. B. D, 
 
 Studdy u. Beesty (60 L. T. 647) 
 
 V. Studrly (28 L. J. (P. & M.) 44) . 
 
 StLirla V. Frecoia (5 App. Cas. 640, 641) 
 
 Sadden v. Lord St. Leonards (I P. D. 154, 250 ; 45 L. J, 
 
 49; 24 W. E. 209, 860; 33 L. T. 861; 34 L. T. 369, 372) 
 Sufig V. Bray (2 E. P. C. 224) . 
 Suggate V. Suggate (28 L. J. (Mat.) 46) . 
 
 V. (29 L. J. (Mat.) 1 67) . 
 
 Suisse V. Lowther (2 Hare, 424, 435). 
 
 Summers v. City Bank (L. E. 9 C. P. 580) . 
 
 Sunholf ?;. Alford (3 M. & W. 248) . 
 
 Sury V. Pigot (Tudor's Real Property Cases, 3rd ed. p. 166) . 
 
 Sutton, Ee (12 Ch. D. 175 ; 48 L. T. 95 ; 52 L. J. Ch. 333 
 
 W. R. 369) 
 
 V. Sutton (22 Ch. D. 511) 
 
 Svendsen v. Wallace (16 Q. B. D. 27). 
 Swain V. Ayres (21 Q. B. D. 289) . 
 Swaine v. Wilson (24 Q. B. D. 252) . 
 Swaisland v. Dearsley (29 Beav. 430) 
 Swan, Ex parte (7 C. B. (N.S.) 400) . 
 V. North British Australasian Co. (2 H. & C. 175 
 
 603) 
 
 Swansea Shipping Co. v. Duncan (1 Q. B. D. 644) 
 
 (Mayor of) v. Quirk (7 C. P. D. 106) 
 
 Sweet V. Lee (4 M. & Gr. 452) . 
 
 Sweetland v. -Sweetland (4 Sw. & Tr. 6) 
 
 Swenham v. Warlington (2 Leon. 224) 
 
 Swift V. Jewsbury (L. E. 9 Q. B. 301) 
 
 V. Swift (15 P. D. 86, 118) . 
 
 V. Wenman (L. E. 10 Eq. 15) . 
 
 Swinburne, In re. Swinburne v. Pitt (27 Ch. D. 696) 
 
 Swindell v. Birmingham Syndicate (3 Oh. D. 133) 
 
 Swindon Waterworks Company v. Wilts and Beika Canal Naviga- 
 tion Company (L. E. 7 H. L. 702) 
 
 PAGE 
 
 70 
 704 
 1016 
 914 
 649 
 226 
 113 
 833 
 897 
 667 
 3; 34W.R. 
 
 778, 839, 955 
 
 . 277 
 
 577) . . 1207 
 
 . 26S 
 
 . 1016 
 
 . 887, 890 
 
 P. D. & A. 
 
 172, 890, 978 
 
 . 301 
 
 . 1011 
 
 . 1033, 1034 
 
 . 662 
 
 . 215, 216 
 
 . 409 
 
 201 
 
 693 
 568 
 834 
 125 
 660 
 580 
 864 
 
 864 
 717 
 744 
 377 
 966 
 370 
 376 
 1037 
 139 
 669 
 795 
 
 198 
 
 194 
 
 7H 
 
 194, 
 31 
 
 267, 
 206, 
 
 &N. 
 257, 
 
XCIV 
 
 TABLE OF OASES. 
 
 Swinfen v. Lord Chelmsford (5 H. & N. 890) 
 Syers v. Syers (1 App. Oaa. 174; 35 L. T. 101 ; 
 Sykes V. Beadon (11 Oh. D. 170, 196). 
 
 V. Sykes (L. E. 5 C. P. 113) . 
 
 Symonds v. Hallet (24 Ch. D. 346) . 
 
 24 W. E. 970) 
 
 PAGE 
 
 833 
 616 
 617 
 985 
 216 
 
 T. 
 
 Tailby v. OfBcial Eeceiver (13 App. Cas. 523, 543 ; 60 L. T, 
 
 58 L. J. Q. B. 75 ; 37 W. E. 513) . 
 Talabot, The (15 P. D. 194) . 
 Tamplin v. James (15 Oh. D. 217) . 
 Tanenherg, Ee (60 L. T. 270) . 
 Tanner v. Scrivener (13 P. D. 128, 129) 
 Tapling v. Jones (11 H. L. 0. 290) . 
 Tarn v. Turner (39 Ch. D. 456 ; 58 L. T. 558) 
 Tanqueray-Willaume and Landau, In re (20 Ch. D. 465 ; 46 
 
 542 ; 51 L. J. Oh. 434; 30 W. E. 801) 
 Tasmania, The (15 App. Oas. 223) . 
 
 . (13 P. D. 110) . 
 
 Tatam v. Haslar (23 Q. B. D. 345) . 
 
 Tatham v. Drummond (4 D. J. &.S. 484) 
 
 Tatum, Ee (60 L. T. 896) 
 
 Taunton v. Eoyal Insurance Co. (2 H. & M. 135) 
 
 Taurine Co., Ee (25 Ch. D. 118) 
 
 Taylor, Bx parte. In re Grayson (12 Ch. D. 366) 
 
 , Ex parte. Ee Goldsmid (18 Q. B. D. 295) 
 
 , In re (4 Ch. D. 157) .... 
 
 V. Blakelock (32 Ch. D. 560; 56 L. J. Ch. 390; 24 
 
 175) 
 
 V. Corporation of St. Helens (6 Ch. D. 270) 
 
 ■ V. Bckersley (2 Ch. D. 302 ; 45 L. J. Ch. 527 ; 34 
 
 W. R, 
 
 62; 
 
 . 338 
 
 . 1067 
 
 . 580 
 
 . 897 
 
 . 1115 
 
 . 592 
 97, 558, 569 
 
 L, T. 
 
 . 165 
 
 . 1056 
 
 1059, 1066 
 
 . 261 
 
 . 234 
 
 . 938 
 
 . 639 
 
 . 656 
 
 . 616 
 
 . 922 
 
 . 609 
 
 W. E. 
 
 L. T. 
 
 335; 
 
 637 ; 24 W. E. 450) 
 
 V. Pede (29 W. E. 627) . 
 
 V. Pilsen, Joel & Co. (27 Ch. D. 268) 
 
 V. Poncia (25 Ch. D. 646 ; 53 L. J. Cli. 409 ; 32 
 
 SOL. T. 20) .... 
 
 V. Taylor (39 L. J. (Mat.) 23) 
 
 V. Timson (20 Q. B. D. 671, 679, 682 ; 57 L. J. Q. B. 216) . 
 
 Teasdale v. Braithwaite (5 Ch. D. 630) .... 
 
 Teevan v. Smith (20 Ch. D. 724) gc 
 
 Tempest v. Lord Oamoys (21 Oh. D. 571 ; 48 L. T. 13 ; 51 L. J Ch ' 
 
 785 ; 31 W. E. 326) ' * 
 
 Temple Bar, The (11 P. D. 6) [ 
 
 Tennaut, Ee (40 Ch. D. 594 ; 58 L. J. Ch. 457 ; 37 W. E. 542 • 60 
 
 L. T. 488) 
 
 533 
 23 
 
 793 
 723 
 648 
 
 156 
 
 1036 
 
 1119, 
 
 1120 
 
 134 
 
 ), 105 
 
 531 
 753 
 
 156 
 
TABLE OP OASES. 
 
 XCT 
 
 Tennent v. Welch (37 Ch. D. 622 ; 57 L. J. Ch. 481 ; 58 L. T. 368 ; 
 
 36 "W. R. 389) 
 
 , Ex parte. In re Howard, (6 Oh. D. 303) 
 
 Terry v. Hutchinson (L. E. 3 Q. B. 599) . 
 
 Terry and White's Contract, Ke (32 Ch. D. 14 ; 54 L. T. 353; 55 
 
 L. J. Ch. 345 ; 34 W. E. 379) .... 
 Tetley «. Griffith (57 L. T. (N.S.) 673) 
 
 V. Wanless (36 L. J. Ex. 153 ; L. E. 2 Ex. 275). 
 
 Templeton v. Tyree (2 P. & D. 420) .... 
 Tharsis Sulphur and Copper Co. v. Society Industrielle et 
 
 merciale Des Mdtaux (60 L. T. 924) 
 Thatcher's Trusts, Be (26 Ch. D. 426) 
 Theed v. Debenham (2 Ch. D. 165) . 
 Thellusson v. Eendlesham (7 H. L. C. 429). 
 
 V. Woodford (4 Ves. 227) 
 
 Theobald v. Eailway Passengers' Assurance Co. (10 Exch. 45) 
 
 v. Theobald (15 P. D. 26) .... 
 
 Thorn, In the Goods of (13 P. D. 36) ... 
 
 Thomas, Be (34 Ch. D. 166) 
 
 , Ee (14 Q. B. D. 379) 
 
 , Ee (21 Q. B. D. 380) 
 
 , Ee. Thomas v. Howell (34 Ch. D. 166) 
 
 V. Brown (1 Q. B. D. 714) .... 
 
 V. Exeter Flying Post Co., Ld. (18 Q. B. D. 822) 
 
 V. KeUy (13 App. Cas. 506 ; 58 L. J. Q. B. 66 ; 
 
 227 
 616 
 462 
 
 586 
 
 218 
 
 427 
 
 1000 
 
 Com- 
 
 . 419 
 
 . 137 
 
 . 593 
 
 . 73 
 
 . 73 
 
 . 279 
 . 1025 
 
 . 993 
 
 . 31 
 
 . 636 
 926, 927 
 
 . 545 
 
 . 689 
 
 . 756 
 60 L. T. 
 
 114; 37 W. E. 353) 332,335,336,339 
 
 V. Owen (20 Q. B. D. 225) 195 
 
 V. Palin (21 Ch. D. 360) 748 
 
 V. Quartermaine (18 Q. B. D. 685). . . . 488, 490 
 
 V. Turner (33 Ch. D. 292) 322 
 
 — V. Williams (14 Oh. D. 864) 592 
 
 Thompson, In re (30 Ch. D. 441) 844 
 
 , Ee. Bedford v. Teal (45 Ch. D. 161) . . .238 
 
 , Ee, and Holt (44 Oh. D. 492) 107 
 
 , Ee. Stevens v. Thompson (38 Ch. D. 317) . . 216 
 
 V. Chamock (8 T. E. 139) 760 
 
 V. Davenport (2 Smith's L. 0.) 420 
 
 V. Eastwood (2 App. Cas. 215) 512 
 
 V. Fisher (L. E. 12 Eq. 207) 514 
 
 i;. Hudson (L. E. 6 Ch. 328) 432 
 
 V. Lacy (3 B. & Aid. 283, 286, 287) . . . .408 
 
 . V. Montgomery (41 Ch. D. 35) 316 
 
 V. Thompson (31 L. J. (P. & M.) 213 ; 2 Sw, 
 
 1 P. & D. 53) 
 
 V. Welms (9 App. Cas. 671) 
 
 «. Wright (13 Q. B. D. 632) 
 
 Thomson v. Moore (6 K. P. C. 426) .... 
 V. Thomson (27 L. J. (Mat.) 65) . 
 
 &Tr. 
 
 402; 
 
 1030, 1032 
 . 278 
 . 764 
 . 291 
 . 1012 
 
XCVl TABLE OF CASES. 
 
 PAGE 
 
 Thorley's Cattle Food Co. v. Massam (6 Ch. D. 682 ; 46 L. J. Ch. 
 
 713) . . . / 592 
 
 Thorn v. City Eice Mills Co. (40 Oh. D. 357) . . . 285, 431 
 ■ V. Commissioners of Public Works (32 Beav. 490) . . 577 
 
 Thomdikeu. Hunt(3DeG. &J. 563) 632 
 
 Thomeyoroft v. Crockett (2 H. L. 0. 239) 571 
 
 Thornton, In the Good? of (14 P. D. 82) 975 
 
 Thorogood v. Bryan (8 C. B. 115) 1062 
 
 . Thorp V. Holdsworth (3 Ch. D. 639) 728 
 
 Thmpp V. Harman (3 My. & K. 513) 225 
 
 Thwaites v. Wilding (12 Q. B. D. 4) 118 
 
 Tichhorne Case . . . . . . , . • • 753 
 
 Tidey ^;. Mollett (16 C. B. (N.S.) 298) 113 
 
 Tidswell, In re (35 W. E. 669 ; 56 L. J. (Q.B.) 549) . . .220 
 
 Tierney v. Wood (19 Beav. 3.30) 511 
 
 Tildesley v. Harper (10 Ch. D. 393) 734 
 
 TUlett, Ee (60 L. T. 575) 921 
 
 V. Nixon (25 Ch. D. 238) 793 
 
 Tilley v. Thomas (L. E. 3 Ch. 61) 583, 584 
 
 Timmins v. Rowlinson (3 Burr. 1603) ..... 132 
 
 Timson v. Wilson (38 Ch. D. 72 ; 59 L. T. 76 ; 36 W. E. 418) . 753 
 Tippett's and Newbould's Contract, Ee (37 Ch. D. 444). . . 228 
 
 Tiiterton v. Cooper (9 Q. B. D. 473) 927 
 
 Toke V. Andrews (8 Q. B. D. 428) 734 
 
 Tollett V. Tollett (1 Wh. & T. L. Oas.) ..... 182 
 
 Tolson V. Kaye (6 Moore, 558) 203 
 
 Tomkins v. Colthurst (1 Ch. D. 626) 549 
 
 V. Tomkins (1 Sw. & Tr. 163) 1011 
 
 Tomlin v. Luce (41 Ch. D. 573 ; 43 Oh. D. 191 ; 59 L. J. Ch. 164 ; 
 
 62 L. T. 18) 104, 417 
 
 TomlinsoD v. Consolidated Credit and Mortgage Corporation (24 
 
 Q. B. D. 135) 116 
 
 , Elizabeth, In the Goods of (6 P. D. 209) . . 958, 980 
 
 V. South iia-tern Eailway Co. (35 Ch. D. 675) . . 638 
 
 Tompson V. Daahwood (11 Q. B..D. 43) 471 
 
 Tomson v. Judge (3 Drew. 306) 840 
 
 Toogood?;. Spviing(10. M.& R. 193) 470 
 
 Toomer v. London, Chatham, and Dover, and South Eastern Eailway 
 
 Cos. (2 Ex. D. 450) 818 
 
 Topham v. Greenside Glazed Fire Brick Co. (37 Ch. D. 281 ; 57 
 
 L. J. Ch. 583 ; 58 L. T. 274 ; 36 W. E. 464) . . . .284 
 
 , Torrance v. Bolton (L. E. 14 Eq. 124) 568 
 
 Tosh V. North British Building Society (11 App. Cas. 489) . . 660 
 Townsend, Marquis of, v. Stangroom (6 Ves. 328) . . . 582 
 
 Townsend's Case (L. E. 13 Eq. 148) 647 
 
 Trade Auxiliary Co. v. Middlesborough Tradesmen's Protection 
 
 Association (40 Ch. D. 425) 319^ 322 
 
 Treherne v. Dale (li7 Cb. D. 66) . . . . . . ' 773 
 
TABLE OF CASES. 
 
 XC7U 
 
 Treloar v. Lean (14 P. D. 49) . 
 
 Trench v. Harrison (17 Simons, 111) . 
 
 Trevor v. Wbitworth (12 App. Gas. 409, 423 ; 57 
 
 W. R. 145 ; 57 L. T. 457 . 
 Trew V. Railway Passengers' Assurance Co. (6 
 
 L. J. (Ex.) 317) 
 
 Trimmer v. Bayne (9 Ves. 209) 
 
 Trott V. Buchanan (28 Ch. D. 446 ; 52 L. T. 248 ; 
 
 33 W. R. 339 
 
 Trubner v. Truhner and Christiani (15 P. D. 24) 
 Tnieman v. Loder (11 A. & E. 595) . 
 Trufort, Be (39 Oh. D. 600) . 
 Truman & Co. v. Redgrave (18 Oh. D. 547, 550) 
 Trumper v. Trumper (L. B. 14 Bq. 295) . 
 Truro, In the Goods of Lady (L. R. 1 P. & D. 201) 
 Tuberville v. Savage (1 Mod. 3) 
 Tuck V. Priester (19 Q. B. D. 48, 629) 
 
 V. Southern Counties Deposit Bank (42 Ch. 
 
 Tucker u. Bennett (38 Ch. D 1, 15) . 
 
 V. Barrow (2 H. & M. 515) . 
 
 v." Collinson (16 Q. B. D. 562) 
 
 V. New Brunswick Trading Co. of London 
 
 H. & N. 
 
 54 L. J. Oh 
 
 D. 471) 
 
 Tuer's Will Trusts, Re (32 Ch. D. 39) 
 
 Tuff, In re. Ex parte Nottingham (19 Q. B. D. 88 ; 56 L. J, 
 
 440; 35W. B. 567; 56L. T. 573) ' 220 
 
 V. Warman (2 0. B. (N.S.) 740 ; 5 0. B. (N.S.) 573) . . 485 
 
 Tufnell i;. Borrell (L. R. 20 Eq. 194) 34,38 
 
 V. Nichols (56 L. T. 152) 564 
 
 Tnpper V. Poulkes (9 0. B. (N.S.) 797) 362 
 
 Turcan, Re (40 Ch. D. 5) 274 
 
 TumhuU V. Forman (15 Q. B. D. 234) 219 
 
 Turner, In re. Grlenister v. Harding (29 Ch. D. 985) . . .891 
 
 V. Hancock (20 Ch. D. 303) 567 
 
 , Jane, In the Goods of (12 P. D. 18) . . . . 918 
 
 ■;;. Turner (14 Oh. D. 829) . .... 86 
 
 Turquand v. Board of Trade (11 App. Oas. 286 ; 55 L. J. Q. B- 417 ; 
 
 55 L. T. 30 
 Turton v. Turton (42 Oh. D. 128) . 
 Tussaud V. Tussaud (9 Ch. D. 363) . 
 Tuther v. Oaralampi (21 Q. B. D. 414) 
 Tweeds, Be (25 Oh. D. 529) . 
 TweeHy, Be (28 Ch. D. 529) . 
 Two EUens, The (L. B 4 P. 0. 161) . 
 Two Friends, The (1 Robs. 271) 
 Twycross v. Gram (2 C. P. D. 544) . 
 Tyler v. Merchant Taylors' Co. (15 P. D. 216) 
 ,;. Yates (L. R. 11 Eq. 265 ; 6 Ch. 665) 
 
 T.vrringliam's Case (Tudor's R. P. Cas.) 
 VOL. I. 
 
 PAGE 
 
 . 968 
 . 666 
 L. J. Ch. 28 ; 36 
 
 648, 650 
 
 (44 Ch. D. 
 
 839; 30 
 
 . 279 
 . 553 
 678; 
 
 . 549 
 
 . 1040 
 
 . 374 
 
 8 
 
 593, 793 
 
 . 110 
 
 . 971 
 
 . 456 
 
 . 326 
 
 . 332 
 
 603, 708 
 
 . 517 
 
 . 711 
 
 598 
 
 815 
 
 249). 
 Q. B. 
 
 938 
 310, 317 
 . 662 
 724, 736 
 . 783 
 . 695 
 1052, 1053 
 . 1071 
 . 496 
 . 974 
 . 674- 
 . 200 
 9 
 
XCVIU TABLE OF CASES. 
 
 TJ. 
 
 PAGE 
 
 Udny V. Udny (L. R. 1 Sc. App. 452, 458) . . 1002, 1003, 1004 
 
 Undaunted, The (11 P. D. 46) ........ 1077 
 
 United Kingdom Mutual SteamsUp Association v. Nevill (19 
 
 Q. B. D. 110) 281 
 
 Union Bank of London v. Ingram (16 Oh. D. 56 ; 20 Ch. D. 463) . 104, 
 
 564, 565, 571 
 
 V. Lenanton (3 C. P. D. 243) . . .252 
 
 Union Bank v. Manby (13 Oh. D. 240) 744 
 
 PlateGlassCo., Re(42 0h.D. 513) 658 
 
 Upperton v. Nickolson (L. E. 6 Ch. 436) ; . . . .584 
 Upton V. Brown (20 Ch. D. 731 ; 30 W. R. 817 ; 47 L. T. 289) . 780 
 Usher v. Martin (24 Q. B. D. 272) 765 
 
 Vadala v. Lawes (25 Q. B. D. 310) 863 
 
 Vagliano Brothers v. Grovernors of Bank of England (22 Q. B. D. 
 
 103; 23 Q. B. D. 243; reversed by the House of Lords, March 5, 
 
 1891) . . . 258 
 
 Valdez's Trusts (40 Oh. D. 159) 160 
 
 Valentin! v. Canali (24 Q. B. D. 166) 388 
 
 Vandenburgh v. Truax (4 Denio, 464) ..... 503 
 
 Van Duzer's Trade Mark, In re. In re Leafs Trade Mark (34 
 
 Ch. D. 623) 312 
 
 Van Gelder v. Sowerby Bridge, &c.. Society (44 Ch. D. 374) . . 303 
 
 Vane v. Vane (2 Oh. D. 124) 815 
 
 Vansittart v. Vansittart (4 K. & J. 62) ..... 399 
 
 Vaidon's Trusts, Re (55 L. J. Oh. 259) 779 
 
 , Be (31 Oh. D. 275 ; 53 L. T. 895; 55 L. J. Oh. 
 
 259 ; 34 W. R. 185) . . 670 
 
 Vaughan, Re (33 Ch. D. 187) ! 232 
 
 V. Thomas (33 Ch. D. 187) ....!! 238 
 
 Veale v. Automatic, &c., Co. (18 Q. B. D. 631) .... 704 
 
 Vera Cruz, The (10 App. Cas. 59) 1063 
 
 Vernal v. Gardner (1 0. & M. 21) 1056 
 
 Vemon v. Hallam (34 Oh. D. 748; 35 W. R. 156; 55 L. T 676'- 
 
 56 L. J. Ch. 115) _' 595 
 
 Vickars v. Wilcocks (2 Smith's L. 0. 9th ed. 577) . . . 507 
 
 Victor, The (Lush, 72) 1059 
 
 Victorian Railway Commissioners v. Coultas (13 App. Cas. 222) . 507 
 Vindomora, The (14 P. D. 172 ; affirmed by House of Lords W N 
 
 (1890) 212) ; 1065 
 
 Vine, Ex parte. In re Wilson (8 Ch. D. 364) . . .501 919 
 
 Viney v. Bignold (20 Q. B. D. 172) ....'. 272^ 760 
 A^int V. Huds|jith (29 Oh. 322 ; 30 Ch. D. 24) . . . 754' 933 
 Vivar, The (2 P. D. 29) .' 'io91 
 
TABLE OF OASES. 
 
 XCIX 
 
 Vivienne, The (12 P. D. 185) . 
 
 Voisey, Ex parte. Ee Knight (21 Oh. D. 442) 
 
 Von Brocbdorf i;. Malcolm (30 Oh. D. 172) 
 
 Buseck, In the Goods of (6 P. D. 211) . 
 
 Heyden v. Neustadt (15 Oh. D. 230) . 
 
 Vortigern, The (Swa. 518) 
 
 PAGE 
 
 1082 
 
 931 
 
 70 
 
 160 
 
 288 
 
 1060 
 
 w. 
 
 Wade's Case (5 Co. Litt. 114a) 
 
 Wain I). Walters (5 East, 10; 1 Smith's L. C.) . 
 
 Waite t). Bingley (21 Ch. D. 674) 
 
 Wake V. Hall (8 App. Gas. 195, 203, 211 ; 52 L. J. Q. B. 494 
 
 W. E. 585 ; 48 L. T. 834) 
 
 Wakelin v. London and South Western Railway Co. (12 App. Cas, 
 
 430 
 374 
 558 
 
 31 
 
 ^'-J 
 
 Walker v. General Mutual Building Society (36 Ch. D. 777) . 
 
 too 
 . 660 
 
 «. r:L-^r,^i- TX7'.n„4-«i.r, "DnTi-rr-^^T- ri« /t ■dot? 
 
 xch. 228) . 
 
 . 415 
 
 
 -, Hunter & Co. v. Falkirk Iron Co. (4 Pat. ] 
 
 Rep. 390; affirmed 
 
 14 App. Cas. 550) .... 
 
 
 . 305 
 
 -• PrvVin" ^^ "Rnrr 1 ^f^^ 
 
 
 . 399 
 
 
 Tf ^mifVi {^^ "Rnv ^0^"^ 
 
 
 . 840 
 
 
 ,. Qr,,,*!, TTn^+^H^ ■Dnil-rrrnTr /^rt /T T> R H 
 
 P. 640) 
 
 . 444 
 
 
 .. Tir^lV^.. /9Q TXT- T? 'TRfiN 
 
 
 . 953 
 
 . 87 
 
 «. \KTn-^r^ TJn^ilm-n-rr Cr^ /'QK 'R/amr KQ\ 
 
 
 "^"— ^ Ut VVd,lC XVdliWdiy UU. \K>fJ JJBOiV. UOJ. 
 
 Wall, Ee. Pomeroy v. Willway (42 Ch. D. 510) 
 
 
 . 233 
 
 , Ee (59 L. J. Ch. D. 172) . 
 
 
 200, 238 
 
 V. Stanwick (34 Ch. D. 763) . 
 
 
 . 608 
 
 Wallingford v. Mutual Society (5 App. Cas. 699) 
 
 
 724, 728 
 
 Wallis, Ee (25 Q. B. D. 176) ... 
 
 
 . 840 
 
 .. a~!J-l, /01 ni, Tl 0/f9. A7 T. T 'JQQ 
 
 • ^1 W P 
 
 214; 
 
 . 686 
 
 52 L. J. Ch. 145) .... 
 
 , Oi, VV . I\, 
 
 Walrond v. Walrond (1 Johns. 18) . 
 
 
 . 399 
 
 Walsh V. Bishop of Lincoln (L. R. 10 0. P. 518) 
 
 
 . 1138 
 
 It "RiQlinn nf TiATirlnn ^4- A ^ V, 242"^ 
 
 
 . 1139 
 
 
 11 T.nTnirlalp C9A Ch D 9^ 
 
 
 114, 132 
 . 322 
 
 Walter v. Howe (17 Ch. D. 708) 
 
 
 .. a„\e,. /■^ Tin a. s^ Btv, Q9'>^ 
 
 
 . 594 
 . 926 
 
 Walton, Ex parte. Ee Levy (17 Ch. D. 746) 
 
 
 T flnnV MO Ch D 325"t 
 
 
 . 913 
 . 660 
 
 ,, -pj^p nfi A,,„ rt„„ Q-JN 
 
 
 
 Ward i>. Beck (13 C. B. (N.S.) 668) . 
 
 
 . 1085 
 
 V. Eyre (15 Ch. D. 130) . 
 
 
 . 425 
 
 V. Lawson (43 Ch. D. 153) 
 
 
 . 850 
 
 - V. Ward (L. E. 6 Ch. 789, 791) 
 
 
 . 58 
 
 Warwick, The (15 P. D. 189) . 
 
 
 . 1067 
 
 Waring, Ex parte (19 Ves. 344) . 
 
 
 . 918 
 
 - V. Ward (7 Ves. 337) . 
 
 
 . Ill 
 
TABLE OF OASES. 
 
 PAGE 
 
 Waring v. Waring (2 Cons. 154) 1011 
 
 Warkworth, Tlie (9 P. D. 20, 145) 1057 
 
 Warman v. Warman (43 Oh. D. 296) 138 
 
 Warne v. Reebohm (39 Ch. D. 73) 319, 324 
 
 Warner, In the Goods of (10 W. R. 566) 971 
 
 V. Murdock (4 Ch. D. 762) 690 
 
 Wairender v. Warrender (9 Bli^h. 103) .... 1003, 1004 
 
 Warter v. Warter (15 P. D. 35) 1027 
 
 V. (No. 2) 15 P. D. 152) .... 974, 1021 
 
 Wason V. Walter (L. B. 4 Q. B. 75) 470 
 
 Waterhouse v. Skinner (2 B. & P. 447) 370 
 
 Waterman's Trade Mark, In re (39 Ch. D. 29) . . . . 312 
 Waters, Ex parte. Be Hoyle (L. B. 8 Ch. 562) . . . .931 
 
 Watkins v. Evans (18 Q. B. D. 386) 336 
 
 Watling V. Stevens (Cutler's Pat. Cas. vol. iii. 151) . . .296 
 Watson, In re. Ex parte Official Beceiver v. Bankruptcy (25 
 
 Q. B. D. 27) 339 
 
 V. Arundel (10 Ir. B. E. 299) 911 
 
 V. Gray (14 Ch. D. 192) ...... 197 
 
 V. HoUiday (20 Ch. D. 780) 501 
 
 Watt V. Barnett (3 Q.B. D. 186, 366; 38 L. T. 903 ; 26 W. R. 745) 
 
 715, 735 
 Watfs, Re (22 Ch. D. 5 ; 52 L. J. Ch. 209 ; 48 L. T. 167 ; 31 
 
 W. B. 262 780 
 
 Waugh V. Carver (Smith's Leading Cases, vol. i.). . . . 634 
 
 Way man. Re (24 Q. B. D. 68) 850 
 
 Weaver, In re (21 Ch. D. 615 ; 48 L. T. 93 ; 31 W. R. 224) . . 530 
 
 Wtbb V. Beavan (11 Q. B. D. 609) 464 
 
 V. Bird (10 0. B. (N.S.) 268 ; 13 C. B. (N.S.) 841) . 199, 440 
 
 V. Hewitt (3 K. & J. 442) 683 
 
 V. Shaw (16 Q. B. D. 658) 765 
 
 V. Smith (30 Ch. D. 192) 110, 554 
 
 Webber, Ex parte (18 Q. B.D. Ill) 919 
 
 , Re (24 Q. B. D. 313) 950 
 
 V. Lee (9 Q. B. D. 315) 376 
 
 Webster v. British Mutual Life Assurance Co. (15 Ch. D. 169) . 275 
 
 ■!;. Cook (L. B. 2 Ch. 542) ! 674 
 
 V. Southey (36 Ch. D. 9) 204, 238 
 
 Weir V. Barnett (3 Ex. D. 32) 482,' 493 
 
 Welch V. Bishop of Peterborough (15 Q. B. D. 432) . . . 1139 
 
 Weldon v. Be Bathe (14 Q. B. D. 339) .... 215, 216 
 
 V. Dicks (10 Ch. D. 252) . . . . . . ' 322 
 
 V. Green (Phil. 304) 1108 
 
 V. Neal (32 W. B. 828 ; 15 Q. B. D. 471) . . 215 839 
 
 V. Weldon (9 P. D. 1883 ; 10 P. D. 72) . . . . 1025 
 
 V. Winslow (13 Q. B. D. 785) . . . . .215 
 
 Wells' Trust, Be. Hardisty v. Wells (42 Oh. D. 646 ; 58 L. J. Ch". 
 835 ; 38 W. B. 229 ; 61 L. T. 588) ' . . . 162, 181, 670 
 
TABLE OF CASES. 
 
 CI 
 
 FAOE 
 
 V/ells V. Forster (8 M. & W. 149) . ' 400 
 
 «. Wells (43 Ch. D. 281) 137 
 
 Wendt, Re (22 Q. B. D. 733) 903 
 
 ""■Venlock (Baroness) v. River Dee Co. (10 App. Gas. 354) . . 283 
 
 "Weiimaiiu.Asli(13 C. B. 836, 844) 468 
 
 Wenniak v. Morgan (20 Q. B. D. 635) .... 216, 468 
 Wensley, Elizabeth (deceased). In the Goods of (7 P. D. 13) . . 989 
 
 Werra, The (12 P. D. 52) 1069 
 
 Wesson Brothers v. Stalker (47 L. T. 444) 703 
 
 West Cumberland, &c., Co., Re (40 Ch. D. 361) . . . .656 
 West London Bank v. Kitson (13 Q. B. D. 360) . . . .644 
 West Riding Union Banking Co., Re Turner (19 Ch. D. 105). . 929 
 
 West V. White (4 Ch. D. 631, 636) 749 
 
 Western Bank of Scotland v. Addie (L. R. 1 H. L. 145) . . 495 
 Western Suburban Building Society v. Martin (17 Q. B. D. 609) . 660 
 Westmeath v. Westmeath (2 Hagg. B. R. Supp. 55) . . 1011, 1016 
 Westminster Fire Office v. Glasgow, &o.. Society (13 App. Cas. 699) 273 
 
 Weston V. Savage (10 Ch. D. 736) 584 
 
 Westropp's Divorce Bill (11 App. Cas. 294) .... 1047 
 
 Westrup V. Great Yarmouth Steam Carrying Co. (43 Ch. D. 241) 
 
 1053, 1077 
 
 Wheal BuUer Consols, Re (38 Ch. D. 42) 642 
 
 Unity Wood Mining Co. (15 Ch. D. 13) . . . . 650 
 
 Wheatiey Silkstone Coal Co. (29 Ch. D. 715) . . . .285 
 Wheeldon v. Burrows (12 Ch. D. 31, 49; 48 L. J. Ch. 853; 41 L. T. 
 
 327 ; 28 W. R. 196 197 
 
 Wheeler v. he Marchant (17 Ch. D. 675 ; 50 L. J. Ch. 793 ; 44 L. T. 
 
 632 ; 30 W. R. 235) 879 
 
 V. The United Telephone Co. (13 Q. B. D. 597) . . 737 
 
 Wheelwright v. Walker (23 Ch. D. 752 ; 48 L. T. (N.S.) 70 ; 52 
 
 L. J. Ch. 274; 31 W. R. 363) .... 27,151 
 
 Whelan v. Palmer (39 Ch. D. 649) . 
 Whetham v. Davey (30 Ch. D. 574) . 
 Whicker v. Hume (4 Jur. (N.S.) 938) 
 Whinney, Ex parte. Re Saunders (13 Q. B. D. 476) 
 
 : . Re Grant (17 Q. B. D. 238) 
 
 Whistler, Re (35 Ch. D. 561) .... 
 
 1;. Forster (14 C. B. (N.S.) 248) . 
 
 : — V. Webster (2 Ves. Jun. 367) 
 
 Whitaker, Re (21 Q. B. D. 261) 
 
 , Re. Christian v. Whitaker (34 Ch. D. 227) 
 
 Whitbread, Ex parte (2 Mer. 99) . . . 
 Whitby V. Mitchell (42 Ch. D. 494 ; 44 Ch. D. 85) 
 While, Re (14 Q. B. D. 600) .... 
 V. British Empire Mutual Life Assurance Co. 
 
 394) 
 
 V. Carter (2 Eden. 864). 
 V. ffindle. (7 Ch. D. 201) 
 
 (L. R, 
 
 155 
 IbS 
 625 
 1002 
 900 
 915 
 165 
 256 
 
 . 927 
 
 . 222 
 
 . 815 
 
 68, 70, 177 
 
 . 942 
 
 7Eq. 
 
 . 276 
 
 . 514 
 
 . 45 
 
Cll 
 
 TABLE OF CASES. 
 
 White V. Pigott (22 Ch. D. 264) 
 
 V. Tyndall (13 App. Gas. 263) 
 
 •«. White (L. R. 15 Eq. 247) . 
 
 V. (22 Ch. Div. 555) . 
 
 White's Trusts, Ee (33 Ch. D. 449) . 
 Whitehead, Ex pane (14 Q. B. D. 419) 
 
 V. Whitehead (L. E. 16 Eq. 528) 
 
 Whitehouse v. Edwards (37 Ch. D. 683) . 
 Whiteley, Ee. Whiteley v. Learoyd (33 Ch. 1). 347 
 Whitham v. Kershaw (16 Q. B. D. 613) . 
 Whittingham v. Murdy (60 L. T. 956) 
 Whitwell, Ee (W. N. (1890) 171) . 
 Whorwood, Ee (34 Ch. D. 446) 
 Whyte V. Ahrena (26 Oh. D. 417) . 
 Wicks, Ex parte (17 Ch. D. 70) 
 Widgery v. Tepper (6 Ch. D. 364) . 
 Wigglesworth v. Dallison (Douglas Kep. 201; : 
 
 last ed.) ...... 
 
 Wight V. Shaw (19 Q. B. D. 396) . 
 Wiguey v. Wigney (7 P. D. 177) 
 Wiloocks V. Wiloooks (2 Vernon. 558) 
 Wilding V. Bolder (21 Beav. 322) 
 Wilkins v. Aiken (17 Ves. 426) 
 
 -^ V. Hogg (3 Giff. 116; 8 Jur. (N.S.) 25) 
 
 Wilkinson, Ex parte. Ee Berry (22 Ch. D. 788) 
 
 ^ V. Hall (3 Biug. (N.C.) 508) 
 
 Willoock V. Terrell (3 Ex. D. 323) . 
 Willesford v. Watson (L. E. 8 Ch. 480 ; 121 W 
 
 (N.S.) 428 ; 42 L. J. Ch. 447) 
 William Symington, The (10 P. D. 1) 
 Williams, Ex parte. Ee Thompson (7 Ch. D. 138) 
 
 , Ee (36 Ch. D. 573) . 
 
 V. Dormer (2 Eob. 508) 
 
 , Esther, In re. Poulkea v. Williams (42 Ch. D. 93) 
 
 V. Lake (2 E. & E. 349) 
 
 • V. Preston (20 Ch. D. 672) 
 
 ~ V. Smith (22 Q. B. D. 134). 
 
 — V. Wheeler (3 C. B. (N.S.) 316) . 
 
 — V. Williams (17 Ch. D. 437) 
 
 — V. (3 S. & T. 548) 
 
 ■ (L. E. 1 P. & D. 370) 
 
 Willis V. Bishop of Oxford (2 P. D. 192) 
 
 , Ee (21 Q. B. D. 384 ; 36 W. E. 793) 
 
 WiUison v. Patteson (7 Taunt. 439). . 
 Willock V. Noble fL. E. 7 H. L. 580) 
 Wills V. Luff (38 Ch. D. 197, 200) . 
 Wilson V. Barnes (38 Ch. D. 507) 
 V. Brett (11 M. & W. 113) . 
 
 PAGE 
 
 . 391 
 
 . 59 
 
 . 603 
 
 . 669 
 235, 238 
 
 . 918 
 
 . 25 
 
 . 517 
 
 12 App. Cas. 733) 525 
 
 . 422 
 
 . 389 
 
 . 669 
 
 . 160 
 
 . 730 
 
 . 919 
 
 . 777 
 
 Smith's L. Cas., 
 
 . 24 
 
 . 802 
 139, 1037 
 
 . 665 
 
 . 512 
 
 . 322 
 
 . 138 
 
 . 897 
 
 . 131 
 
 . 400 
 
 E. 350; 28L. T, 
 
 . 760 
 . 736 
 . 931 
 . 933 
 . 1004 
 . 181 
 . 373 
 . 841 
 . 472 
 . 379 
 . 95 
 . 1012 
 . 1030 
 . 1139 
 . 102 
 . 384 
 . 214 
 . 566 
 . 238 
 407, 484 
 
i:able of cases. 
 
 cm 
 
 336) 
 
 Wilson V. Piuch-Hatton (46 L. J. (Ex.) 489 ; 2 Ex. Div. 
 
 V. Johnstone (L. E. 16 Eq. 606, 609) 
 
 V. Kenrick (31 Ch. D. 658) . 
 
 V. Thornbury (L. R. 10 Oh. 248) . 
 
 V. Wallani (5 Ex. D. 155) . 
 
 ■;;. Wilson (1 H. L. C. 538) . 
 
 V. (2 P. & D. 441) . 
 
 V. (L. E. 14 Bq. 40) . 
 
 Wimbledon Local Board v. Croydon Sanitary Authority (32 Ch. D, 
 421) 
 
 Winchilsea's (Earl of) Policy Trusts, Ee (39 Ch. D. 168 ; 58 L. J. Ch, 
 
 20; 37 W. E. 71) .... 
 Windham v. Sainton (21 Q. B. D. 199) 
 WindhiU Local Board of Health v. Vint (59 L. J. 
 Windsor, &c., Eailway Co. v. The Queen and the 
 
 Co. (11 App. Gas. 607) 
 Wingrave v. Wingrove and Others (11 P. D. 81) 
 Winn. I!. Bull (7 Ch. D. 82) . 
 Winspear v. Accidental Insurance Co. (6 Q. B. D. 
 Wise, Ee (17 Q. B. D. 389) 
 Withers v. Withers (Amb. 152) 
 Witt, In re (2 Ch. D. 489) 
 
 V. Banner (20 Q. B. D. 114) 
 
 Witten, In re (W. N. (1887) 167) . 
 Wollaston v. King (L. E. 8 Eq. 165) . 
 Wolmershausen, Ee (38 W. E. 537) . 
 Wolverhampton and Staffordshire Banking Co. v. 
 
 707) 
 
 Wood V. Beard (2 Ex. D. 30) . 
 
 u. Bell (6 E. & B. 772) . 
 
 V. Burgess (24 Q. B. D. 162) . 
 
 V. Earl of Durham (21 Q. B. D. 501). 
 
 V. Gregory (43 Ch. D. 82) 
 
 V. Lambert (32 Ch. D. 247) . 
 
 V. Leadbitter (13 M. & W. 838) 
 
 V. Odessa Waterworks Co. (42 Ch. D. 636) 
 
 V. Weightman (L. R. 13 Eq. 434) . 
 
 V. Wood (No. 2) (13 P. D. 22) 
 
 V, — __ (14 P. D. 157) . 
 
 V. and White (14 P. D. 157 ; 58 L. J. P. D. & 
 
 Woodall, Ex parte (13 Q. B. D. 479 ; 32 W. E. 774; 50 L, 
 
 Woodham, Ee (20 Q. B. D. 40). 
 
 Woodhouse and Another v. Balfour (13 P. D. 3) 
 
 V. Walker (5 Q. B. D. 404) 
 
 Woodrop V. Sims (2 Dod. Ad. 85) 
 Woods V. Eussell (5 B. & B. 942) . 
 Woodward v. Goulstone (11 App. Cas. 469, 485) 
 
 Ch. 738) , 
 Counties Western 
 
 42) 
 
 George (24 Ch. D. 
 
 FAGE 
 
 128 
 630 
 183 
 670 
 927 
 577 
 1019 
 1087 
 
 598 
 
 277 
 
 738 
 396 
 
 809 
 963 
 581 
 279 
 948 
 511 
 437 
 332 
 610 
 669 
 684 
 
 606 
 
 . 114 
 
 . 250 
 
 . 316 
 
 . 472 
 
 . 558 
 
 . 314 
 
 . 363, 478 
 
 . 641 
 
 . 986 
 
 . 1013 
 
 . 224, 699 
 
 A. 68). 1046 
 
 T. 747) 
 
 771, 900 
 930 
 979 
 28 
 1055 
 250' 
 978 
 
CIV 
 
 TABLE OF CASES. 
 
 Wooldiidge v. Norris (L. E. 6 Bq. 410) . 
 Woolf i;. Pemberton (6 Oh. D. 19; 25 W. K. 873) 
 WooUey V. Colman (21 Oh. D. 169) . 
 Worman v. Worman (43 Ch. D. 296) 
 Wormsley, Ee (4 Ch. D. 665) . 
 Worsley v. Wood (6 T. R. 710) 
 Worth V. GUling (L. E. 2 C. P. 1) . 
 Woithington v. Curtis (1 Ch. D. 419) 
 Wotherspoon v. Currie (L. E. 5 H. L. 508) 
 Wragg's Trade-Mark, Ee (29 Oh. D. 551) 
 Wray, Ee (36 Ch. D. 138) 
 Wright, Ex parte. Ee Arnold (3 Oh. D. 70) 
 
 V. Davis (1 0. P. D. 638) 
 
 V. q-off (22 Beav. 207) . 
 
 V. Horton (12 App. Cas. 371) . 
 
 V. MiUs (62 L. T. 558) . 
 
 V. Eedgrave (11 Oh. D. (O.A.) 24) 
 
 V. Shaw (19 Q. B. D. 396) . 
 
 V. Smith (5 Esp. 203) . 
 
 V. Swindon Railway Co. (4 Ch. D. 164) 
 
 Wyatt, In the Goods of (2 Sw. & Tr. 494) 
 Wylson V. Dunn (34 Ch. D. 569) 
 Wyman v. Ashwell (29 L. J. Proh. 94) 
 Wythe V. Lee (3 Drew. 396) . 
 
 PAGE 
 
 . 683 
 
 . 605 
 
 . 571 
 
 , 529 
 
 , 552 
 
 . 272 
 
 . 449 
 
 . 274 
 
 310, 314, 316 
 
 . 314 
 
 839, 903, 953 
 
 . 920 
 
 . 1133 
 
 . 602 
 
 . 644 
 
 . 882 
 
 . 357 
 
 . 802 
 
 . 131 
 
 . 734 
 
 . 973 
 
 . 574 
 
 . 993 
 
 . 568 
 
 Xenos V. Wickham (L. E. 2 H. L. 
 L. J. 0. P. 313; 16L. T. 800) 
 
 296 ; 14 C. B. (N.S.) 435 ; 36 
 362,365 
 
 Y. 
 
 Yarhorough and Others v. Bank of England (16 East, 6) . . 446 
 Yarmouth v. France (19 Q. B. D. 647) .... 255, 490 
 Yates, Ee (38 Ch. D. 112) 331 
 
 1012, 1013, 1019 
 
 . 998 
 
 . 951 
 
 . 642 
 
 352 
 
 Yeatman v. Yeatman (L. E. 1 P. & D. 489) 
 Yelverton v. Yelverton (1 Sw. & Tr. 586) . 
 
 York, Re (36 Ch. D. 333) 
 
 York Tramways Co. v. Willows (8 Q. B. D. 685) 
 Yorkshire Banking Co. v. Mullan (35 Ch. D. 125) 
 Young & Co. V. Mayor and Corporation of Leamington (8 App. Cas. 
 
 517 ; 8 Q. B. D. 579 ; 52 L. J. Q. B. 713 ; 57 L. J. Q. B. 292 ; 
 
 46 L. T. 555; 49 L. T. 1; 30 W. E. 500; 31 W. R. 925) . 
 
 , In re (19 Oh. D. 124) 
 
 Young, Ee. Trye v. Sullivan (28 Oh. D. 705) .... 
 V. Eosenthall (1 R. P. 0. 29) 
 
 392 
 707 
 214 
 292 
 
TABLE OF CASES. CV 
 
 FAQE 
 
 Young I). Young (L.R. 3 Eq. 805) 109 
 
 Youngs, Ee. Doggett v. Kevett (30 Ch. D. 421 ; 33 W. B. 880) . 797 
 
 Zeus, The (13 P. D. 188 ; 59 L. T. 164 ; 37 W. E. 127) . . 1095 
 Zoedone Co., Limited, Ee. Bx parte Higgins (60 L. T. 383) . 648 
 
 Zouche (Lord) v. Dalbiac (L. E. 10 Ex. 172 ; 23 W. E. 564 ; 44 
 L.J. Ex. 109) • . 185 
 
TABLE OF STATUTES. 
 
 PAGE 
 
 52 Hen. 3 28 
 
 11 Hen. 4, c. 9 1211 
 
 3 Bdw. 1, c. 4 1215 
 
 4Edw. 1, c. 5 28 
 
 13 Edw. 1, c. 1 (-De Lords ConditioncUibus) .... 34 
 
 13 Eiw. 1, c. 18 (Writ of Megit) 775 
 
 13 Edw. 1 {Oircumspecte Agatis) ...... 1145 
 
 18 Bdw. 1, c 1 (Quia Emptwes) 45 
 
 17 Edw. 2, c. 9 (Idiots) 812 
 
 17 Edw. 2, c. 10 (Lunatics) 812 
 
 2 Edw. 3, c. 3 1178 
 
 4 Edw. 3, c. 7 497 
 
 25 Bdw. 3, c. 2 1175 
 
 25 Edw. 3, c. 5 497 
 
 5 Eioh. 2, 0. 7 (Forcible Entry) 131 
 
 11 Hen. 7, c. 1 1174 
 
 23 Hen. 8, c. 20 1125 
 
 25Hen. 8, c. 10 1101 
 
 25Hen. 8,0.19 1098 
 
 25 Hen. 8, c. 21 (Special Licences) 1000, 1001 
 
 26 Hen. 8, c. 3 1125 
 
 26Hen. 8, 0.14 1104 
 
 27 Hen. 8, c. 10 (Statute of Uses) . . .17, 83, 158, 175, 188 
 31 Hen. 8, o. 1 62 
 
 31 Hen. 8, o. 3 13 
 
 32 Hen. 8. o. 1 158 
 
 33 Hen. 8, c. 39 41 
 
 34 Hen. 8, o. 5 158 
 
 5 & 6 Bdw. 6, 0. 16 402 
 
 1 & 2 P. & M. 0. 8 1098 
 
 2 & 3 P. & M. 0. 4 1125 
 
 2 & 3 P. & M. 0. 7 (Worses) 253,254 
 
 1 BUz. c. 1 1098 
 
 1 Eliz. 0. 4 . ; 1125 
 
 13 Eliz. c. 5 (Creditors) 50, 142, 144 
 
 27 Eliz. 0. 4 (Purchasers) 50, 143, 144 
 
 29 Eliz. c. 5 (Creditors) ........ 142 
 
CVlll 
 
 TABLE OF STATUTES. 
 
 31 Eliz. c. 6 . 
 
 31 Eliz. c. 12 {Horses) 
 
 43 Eliz. c. 4 (Cliariiies) 
 
 4 Jac. 1, c. 5 . 
 
 21 Jac. 1, c. 3 
 
 21 Jac. 1, c. 7 
 
 21 Jac. 1, c. 16 
 12 Car. 2, c. 24 (Feudal Tenures) 
 
 22 & 23 Car. 2, c. 10 (Statute of Distributions) 
 29 Car. 2, c. 3 (Statute of Frauds) 
 
 4 (Fraudulent Devises) 
 16 . . . 
 
 1 Jac. 2, c. 17 
 
 2 Wm. & M. c. 5 
 
 3 & 4 Wm. & M. c. 
 
 4 & 5 Wm. & M. c, 
 
 7 & 8 Wm. 3, c. 3 . 
 7&8 Wm. 3, c. 37. 
 
 8 & 9 Wm. 3, c. 11 
 
 9 & 10 Wm. 3, c. 32 
 9 <% 10 Wm. 3, c. 35 
 
 11 & 12 Wm. 3, c. 7 
 
 1 Anne, c. 17 
 
 2 Anne. c. 11 . 
 6 Anne, c. 7 . 
 
 6 Anne, c. 18 
 
 7 Anne, c. 12 . 
 
 8 Anne, c. 14 . 
 
 9 Anne, c. 18 . 
 
 12 Anne, Stat. 2, c. 12 (Simony) 
 
 I Geo. 1, Stat. 2, c. 5 
 8 Geo. 1, c. 24 
 
 4 Geo. 2, c. 28 (Bent Distress) . 
 
 8 Geo. 2, c. 13 (Copyright) 
 
 9 Geo. 2, c. 36 (Bepealed Mortmain Act) 
 
 II Geo. 2, c. 19 
 14 Geo. 2, c. 20 
 
 18 Geo. 2, c. 10 
 
 19 Geo. 2, c. 37 
 
 20 Geo. 2, c. 42 
 7 Geo. 3, c. 38 
 12 Geo. 3, c. 24 
 14 Geo. 3, 0. 48 (Insurance) 
 17 Geo. 3, c. 53 (Gilbert's Act) . 
 17Geo. 3, c. 57 . 
 28 Geo. 3, 0. 56 
 
 32 Geo. 3, c. 60 (Fox^s Libel Act) 
 36 Geo. 3, c. 7 
 36 Geo. 3, c. 52 (Legacy Duty Act) 
 
 PASB 
 
 402, 1137 
 253, 254 
 231, 233 
 . 1182 
 . 288 
 . 1182 
 . 500 
 1, 12, 158, 608, 610 
 7, 341, et.seq. 
 20, 31, 75, 82, 102, 113, 158, 
 372, et seq., 511, 574 
 7, 341, 
 . 123 
 . 46 
 . 98 
 1174, 1175 
 . 230 
 . 724 
 . 1186 
 . 1186 
 . 1177 
 . 1173 
 . U25 
 . 1173 
 . 691 
 . 1178 
 . 117 
 . 691 
 402, 1188 
 . 1179 
 . 1177 
 131, 200 
 . 327 
 231, 234, 236 
 25, 116, 132, 478 
 31 
 1177 
 274 
 997 
 327 
 1204 
 274 
 1126 
 327 
 270 
 475 
 1173 
 694, 783 
 
TABLE OF STATUTES. 
 
 CIX 
 
 38 Geo. 3, c. 87 . 
 
 39 & 40 Geo. 3, c. 98 (Thellusson Act) 
 
 42 Geo. 3, c. 116 . 
 
 43 Geo. 3, c. 75 
 43 Geo. 3, c. 108 . 
 47 Geo. 3. o. 74 
 49 Geo. 3, c. 126 . 
 
 51 Geo. 3, c. 37 (Lunatics) 
 
 52 Geo. 3, o. 155 . 
 
 53 Geo. 3, o. 127 . 
 
 54 Geo. 3, c. 56 
 
 55 Geo. 3, c. 184 . 
 57 Geo. 3, 0. 6 
 
 57 Geo. 3, c. 19 
 
 58 Geo. 3, c. 45 . 
 
 59 Geo. 3, c. 134 . 
 4 Geo. 4, 0. 48 
 
 4 Geo. 4, c. 76 (Ghurch of England) 
 4 Geo. 4. c. 83 (Bepealed) 
 
 4 Geo.. 4, c. 91 (Foreign Countries) 
 
 5 Geo. 4, c. 32 (Ghurches under Repair) 
 5 Geo. 4, c. 83 
 5 Geo. 4, c. 94 (Repealed) 
 
 5 Geo. 4, c. 113 
 
 6 Geo. 4, c. 16 
 
 6 Geo. 4, c. 50 
 
 7 Geo. 4, 0. 16 
 7 & 8 Geo. 4, c. 28 . 
 9 Geo. 4, 0. 14 (Lord Tenterden's Act) 
 9 Geo. 4, c. 31 
 9 Geo. 4, o. 69 
 
 9 Geo. 4, c. 94 (Resignation Bonds) 
 11 Geo. 4, c. 1, & 1 Wm. 4, c. 18 
 11 Geo. 4, and 1 Wm. 4, c. 41 
 11 Geo. 4, and 1 Wm. 4, c. 46 
 11 Geo. 4, and 1 Wm. 4, c. 68 (Carriers Act) 
 1 Wm. 4, c. 47 
 
 1 Wm. 4, 0. 65 
 
 
 1 & 2 Wm. 4, c. 
 
 31 
 
 1 & 2 Wm. 4, 0. 
 
 38 
 
 1 & 2 Wm. 4, 0. 
 
 45 
 
 2 & 3 Wm. 4, c 
 
 53 
 
 2 & 3 Wm. 4, c. 71 (Prescription Act) 
 
 2 & 3 Wm. 4, c. 93 
 
 3 & 4 Wm. 4, 0. 15 (Copyright) 
 3 & 4 Wm. 4, c. 27 (Statute of Limitations) 
 
 3 & 4 Wm. c. 42 
 
 PAGE 
 
 . 982 
 
 3, 73, 74 
 
 . 699 
 
 . 49 
 
 . 214 
 
 . 46 
 
 . 402 
 
 . 1001 
 
 . 1187 
 
 . 1145 
 
 304, 327, 364 
 
 . 172 
 
 . 1173 
 
 . 1180 
 
 1156, 1157 
 
 1156, 1157 
 
 . 1204 
 
 999, et seq. 
 
 . 244 
 
 . 1002 
 
 . 1002 
 
 . 1182 
 
 . 244 
 
 . 1177 
 
 , . 910 
 
 1183, 1211, 1215 
 
 . 1203 
 
 . 1213 
 
 372, 376, 378 
 
 . 1175 
 
 . 1210 
 
 . 1137 
 
 . 1002 
 
 . 980 
 
 . 179 
 
 . 412 
 
 . 46 
 
 . 785 
 
 . 1157 
 
 . 1157 
 
 1156, 1157 
 
 980, 1203 
 
 201, 208 
 
 . 1145 
 
 325 
 
 1, 62, 204, 205, 207, 434, 
 
 533 
 
 . 425,497 
 
ex 
 
 tablt: of statutes. 
 
 3 & 4 Wm. 4, 0. 74 {Fines and Recoveries) 35, 36, 37, 189, 2 
 
 26, 228, 691 
 
 3&4Wm.4, 0. 98 432 
 
 3 & 4 Wm. 4, c. 104 {Simple Contract Debts) . 
 
 . 46 
 
 3 & 4 Wm. 4, c. 105 \l)ower Act) . • . . . 
 
 188, 228 
 
 3 & 4 Wm. 4, c. 106 {Inheritance) .... 
 
 44,51 
 
 4&5Wm. 4,c. 22 
 
 . 25 
 
 4 & 5 Wm. 4, c. 36 
 
 . 1209 
 
 5&6 Wm. 4, 0. 41(PFaflrers) 
 
 . 402 
 
 5 & 6 Wm. 4, c. 54 {Prohibited Degrees) .... 
 
 . 1002 
 
 5 & 6 Wm. 4, c. 62 {Statutory Declarations) 
 
 . 1117 
 
 5 & 6 Wm. 4, c. 65 
 
 . 321 
 
 5&6Wm. 4, c. 76 
 
 . 1211 
 
 6&7Wm. 4,0.32 
 
 . 660 
 
 6 & 7 Wm. 4, c. 71 {Tithes Commutation Act) . 
 
 1140, 1141 
 
 6 & 7 Wm. 4, c. 77 1106, 
 
 1124, et seq. 
 
 6 & 7 Wm. 4, c. 85 {Solemnization of Marriages) 
 
 999, et seq. 
 
 7 Wm. 4, & 1 Vict. c. 22 
 
 1001, 1002 
 
 7 Wm. 4, & 1 Viot. o. 26 {Wills Act) 2, 23, 31, 45, 158, 159, 160, 161, 
 
 162, 176, 178, 180, 188, 239, 608, 
 
 961, 970, 974, 981, 994 
 
 1 Vict. c. 28 205 
 
 1 Vict, c, 69 {Tithes) 
 
 . 1140 
 
 1 Vict. c. 88 
 
 . 1176 
 
 1 & 2 Vict. 0. 23 
 
 . 1126 
 
 1 & 2 Vict. c. 38 
 
 . 1182 
 
 1 & 2 Vict. c. 64 {Merger of Tithes) .... 
 
 . 1140 
 
 1 &2 Vict. c. 106 . . . 1104, e< sej., 1113, 1153, 1154, 1158 
 
 1 & 2 Vict. c. 107 1156, 1157 
 
 1 & 2 Wet. 0. 110 {Judgments) 46,775,777 
 
 2 & 3 Viot. c. 49 1126, 1157, 1158 
 
 2 &; 3 Viot. c. 54 {Talfourd's Act) 608, 609 
 
 2 & 3 Viot. 0. 62 {Tithes) 
 
 . 1140 
 
 2 & 3 Viot. c. 94 
 
 . 1158 
 
 3 Vict. 0. 15 (ri^es) 
 
 . 1140 
 
 3 & 4 Vict. c. 20 
 
 . 1126 
 
 3&4Vict. c. 60 
 
 . 1157 
 
 3 & 4 Viot. 0. 65 {Admiralty Practice and Jurisdiction) 
 
 1078, 1084 
 
 3 & 4 Vict. c. 72 
 
 . 1002 
 
 3&4Viot. c. 82 
 
 . 777 
 
 3 & 4 Viot. u. 86 {Church Discipline Act) . 
 
 . IKO 
 
 3 & 4 Viot. 0. 93 
 
 . 1145 
 
 3 & 4 Vict. 0. 113 
 
 . 1106 
 
 4 & 5 Vict. c. 35 {Copyholds) 
 
 . 555, 699 
 
 5 & 6 Viot. 0. 38 
 
 . 1210 
 
 5 & 6 Vict. 0. 39 {Repealed) 
 
 , 244 
 
 5 & 6 Vict. c. 45 {Copyright) 
 
 . 319, et seq. 
 
 5 & 6 Viot. 0. 51 
 
 . 1176 
 
 6 & 6 Vict. 0. 54 {Tithes) 
 
 . 1140 
 
TABLE OF STATUTES. 
 
 CXI 
 
 5 & 6 Vict. c. 69 (^Perpetuation of Testimony, repealed') 
 
 5 & 6 Vict. c. 100 . 
 
 6 & 7 Vict. c. 37 . 
 6 & 7 Vict. c. 65 . 
 6 & 7 Vict. c. 73 {Solicitors) 
 
 6 & 7 Vict. c. 96 . 
 
 7 & 8 Vict. c. 56 . 
 7 & 8 Vict. c. 59 . 
 
 7 & 8 Vict. 0. 94 . 
 
 8 & 9 Vict. c. 16 {Companies Glauses) 
 8 & 9 Vict, c 18 {Lands Glauses Consolidation, 1845) 
 
 PAGE 
 
 . 876 
 
 . 304 
 
 1158, 1159, IIGO 
 
 . 304 
 
 784, 835, 842 
 
 473, 475, 1213 
 
 . 1157 
 
 . 1122 
 
 . 1158 
 
 . 364, 659 
 
 546, 691, 692, 
 
 759, 783 
 
 . 816 
 
 1126, 1156, 1157 
 
 8 & 9 Vict. c. 20 {Railways Glauses Consolidation) 
 
 8 & 9 Vict. o. 70 
 
 8 & 9 Vict. 0. 106 {Amendment of the Law of Eeal Property) 29, 67, 82, 
 
 85, 113, 363 
 
 8 & 9 Vict. c. 109 {Wagers) . 
 8 & 9 Vict. 0. 113 . 
 
 8 & 9 Vict, c, 118 {Enclosure Act, 1845) 
 
 9 Vict. c. 20 
 
 9 & 10 Vict. c. 59 . 
 
 9 & 10 Vict. c. 73 {Tithes) 
 
 9 & 10 Vict. c. 93 497, 959, 960, 
 
 9 & 10 Vict. c. 164 
 
 10 & 11 Vict. c. 96 ( Trustee Relief Act, 1847) . 281, 
 10 & 11 Vict. c. 98 {Licence) 
 
 10 & 11 Vict. c. 104 {Tithes) 
 
 11 & 12 Vict. c. 12 
 11 & 12 Vict. c. 42 
 11 & 12 Vict. c. 43 
 
 11 & 12 Vict. c. 78 
 
 12 & 13 Vict. 0. 68 {Foreign Countries) 
 
 12 & 13 Vict. c. 74 {Trustees) . 
 
 13 & 14 Vict. c. 21 {Interpretation of Statutes) 
 
 13 & 14 Vict. c. 28 
 
 13 & 14 Vict. c. 35 .... 
 13 & 14 Vict. c. 60 {Trustee Act, 1850) . 
 13 & 14 Vict. c. 94 .... 
 13 & 14 Vict. c. 98 
 
 25 
 
 67 
 
 97 
 
 14 & 15 Vict. 0. 
 14 & 15 Vict. c. 
 14 & 15 Vict. c. 
 14 & 15 Vict. c. 
 14 & 15 Vict. c. 
 
 100 
 
 15 & 16 Vict. c. 12 
 
 15 & 16 Vict. c. 24 ( Wills Act Amendment Act) 
 
 15 & 16 Vict. c. 55 {Trustees) . 
 
 15 & 16 Vict. c. 76 {Common Law Procedure Act, 1852) 
 
 403, et seq. 
 . 865 
 . 201 
 
 '9, 783, 816 
 . 1187 
 
 1126, 1140 
 
 1062, 1063 
 
 . 1126 
 
 612, 693, 783 
 
 1000, 1002 
 
 . 1140 
 
 . 1175 
 
 . 1207 
 
 . 1205 
 
 . 1217 
 
 . 1002 
 
 693, 783 
 
 . 865 
 
 535, 536 
 
 . 739 
 
 634, 695, 699, 783 
 
 1125, 1126 
 
 1111, 1112 
 . 24 
 . 1157 
 
 1157, 1158 
 . 1145 
 
 1208, 1211 
 
 . 327 
 
 159, 981 
 
 534, 695, 783 
 
 . 439 
 
 1156, 
 
 1206 
 
cxu 
 
 TABLE OF STATUTES. 
 
 16 & 17 Vict. 
 
 16 & 17 Vict. 
 
 17 & 18 Vict. 
 17 & 18 Vict. 
 17 & 18 Vict. 
 17 & 18 Vict. 
 17 & 18 Viet. 
 
 17 & 18 Vict. 
 
 17 & 18 Vict. 
 
 18 & 19 Vict. 
 18 & 19 Vict. 
 
 18 & 19 Vict. 
 
 19 & 20 Vict. 
 19 & 20 Vict. 
 19 & 20 Vict. 
 19 & 20 Vict. 
 
 19 & 20 Vict. 
 
 20 Vict. c. 19 
 20 & 21 Vict. 
 20 & 21 Vict. 
 20 & 21 Vict. 
 20 & 21 Vict. 
 
 20 & 21 Vict. 
 
 20 & 21 Vict, 
 
 21 & 22 Vict, 
 21 & 22 Vict 
 21 & 22 Vict 
 21 & 22 Vict, 
 21 & 22 Vict, 
 21 & 22 Vict, 
 21 & 22 Vict. 
 
 21 & 22 Vict. 
 
 22 & 23 Vict, 
 22 & 23 Vict, 
 
 PAGE 
 
 c. 51 {Succession Duty Act, 1853) . . 172, 173, 342 
 
 0.83 878 
 
 0. 31 (Railway and Canal Traffic Act) 412, 413, 815, 816 
 
 0.36. . . 329 
 
 c.47 1145 
 
 0.102 1210 
 
 c 104 (Merchant Shipping) . 248, et seq., 364, 699, 980, 
 1071, 1074, 1080, 1084, 1085, 1184, 1210 
 
 c. 113 549, et seq. 
 
 c. 125 (Common Law Procedure Act, 1854) 760, 875, 885 
 c. 43 (Infants Marriage Settlement Act) . 228, 612, 783 
 
 c. 81 
 
 c. 91 (Merchant Shipping) . 
 
 c. 41 
 
 c. 60 
 
 0. 97 (Mercantile Law Amendment Act) 372, 374, 614, 683 
 c. 104 (Lord Blandford's Act) . 1128, 1158, 1159, 1160 
 c. 119 (Solemnization of Marriages) . . 1001, 1002 
 (Churches) ..... 
 
 c. 43 
 
 c. 56 (Confirmation of Probate Act, 1858) 
 c. 57 (Malins' Act) .... 
 c. 77 (Prolate Act) . 959, 956, 958, 978, 987, 979, 989, 
 
 990, 996, 1144 
 
 c. 85 (Divorce Act) 212, 229, 612, 997, 1002, 1007, 1008, 
 
 1014, 1032, 1035, 1047, 1145 
 
 . 1187 
 
 248, 1084 
 
 . 980 
 
 . 614 
 
 . 1002 
 
 . 1206 
 
 . 955 
 
 228, 613 
 
 c. 157 (Mayor's Court Procedure Act) 
 
 c. 27 
 
 c. 34 
 
 . 819 
 . 584, 599 
 . 543, 555 
 
 c. 58 956 
 
 c. 70 304 
 
 c. 93 (Legitimacy Declaration Act, 1858) . 1007, 1027 
 
 c. 95 (Probate Amendment Act, 1858) 955, 956, 957, 978 
 
 0. 100 229 
 
 c. 108 (Matrimonial Causes Amendment Act). 1007, 1008 
 c. 17 ( Vexatious Indictments Act) . . . 1207 
 
 c. 35 (Lord St. Leonards' Act) 51, 52, 53, 138, 165, 688 
 
 695, 9«5, 986 
 22 & 23 Vict. c. 61 (Matrimonial Causes Amendment Act) 1007, 1008, 
 
 1032 
 94 1126 
 
 22 & 
 
 23 & 
 23 & 
 23 & 
 23 & 
 23 & 
 23 & 
 23 & 
 
 23 Vict. 
 
 24 Vict. 
 24 Vict. 
 24 Vict. 
 24 Vict. 
 24 Vict. 
 24 Vict. 
 24 Vict. 
 
 c. 18 (Quakers) ..... 
 c. 24 (Churches) ..... 
 
 c. 32 
 
 c. 38 (Lord St. Leonards' Act) 
 
 a. 93 (Tithes) 
 
 c. 106 
 
 c. 126 (Common Law Procedure Act, 1860) 
 
 . 1002 
 . 1002 
 
 1118, 1187 
 696, 775 
 
 1027, 1140 
 . 691 
 . 1139 
 
TABLE OF STATUTES. 
 
 CXUl 
 
 FAOE 
 
 23 & 24 Viot. c. 127 (Solicitors) 835, 847 
 
 23 & 24 Vict. 0. 144 {Matrimonial Causes Amendment Act) . 1007, 1008 
 
 23 & 24 Vict. c. 145 (Lord Oranworth's Act) . . . .103 
 
 24 & 25 Vict. c. 10 {Admiralty Omrt Act) . . . 1053, 1078 
 
 24 & 25 Vict. c. 62 204 
 
 24 & 25 Vict. c. 73 304 
 
 24 & 25 Vict. c. 94 1172 
 
 24 & 25 Vict. c. 96 (Criminal Law Consolidation) 242, 1162, 1164, 1196, 
 
 1200, et seq. 1210 
 
 97 1162, 1172, 1203, 1204 
 
 1162, 1172, 1203 
 
 24 & 25 Vict. c. 
 24 & 25 Vict. c. 
 24 & 25 Vict. c. 
 24 & 25 Vict. c. 
 
 99 
 100 
 
 1024, 1162, 1175, 1180, 1181 
 
 24 & 25 Vict. c. 114 (Wills of Personal Estate) 
 
 25 & 26 Vict. c. 53 (Transfer of Land) . 
 25 & 26 Vict. c. 63 (Merchant Shipping) . 
 25 & 26 Vict. c. 67 (Declaration of Titles) . 
 25 & 26 Vict. c. 68 (Copyright) 
 25 & 26 Vict. c. 81 .... 
 25 & 26 Vict. c. 86 .... 
 25 & 26 Vict. c. 89 (Companies Act, 1862) 50, 615, 617, 635, et seq., 655, 
 
 et seq. 
 25 & 26 Vict. c. 108 
 
 . 1162,1172 
 1191, 1192, 1194 
 . 160 
 .■ 690 
 248, 1057, 1063 
 . 690 
 . 326 
 . 1007 
 . 49 
 
 26 & 27 Viot. c. 41 (Innkeepers) 
 
 26 & 27 Vict. c. 57 
 
 26 & 27 Vict. c. 73 .... 
 
 26 & 27 Vict. c. 87 
 
 26 & 27 Vict, c. 92 .... 
 
 26 & 27 Vict. c. 103 
 
 26 & 27 Viot. c. 125 
 
 27 & 28 Vict. c. 44 .... 
 27 & 28 Vict. c. 95 
 
 27 & 28 Viot. c. ] 12 (Judgments) 
 
 28 & 29 Vict. c. 18 .... 
 
 28 & 29 Viot. c. 60 
 
 28 & 29 Vict. 0. 64 (Colonies) . 
 
 28 & 29 Vict. c. 69; 
 
 28 & 29 Vict. c. 72 (Navy and Marine Wills Act) 
 28 & 29 Vict. c. 78 .... 
 
 28 & 29 Vict. c. 79 .... 
 
 28 & 29 Vict. 0. 86 (Partnership Amendment Act, 
 28 & 29 Viot. 0. 94 .... 
 
 28 & 29 Vict. 0. Ill (Navy and Marines' Property of Deceased Act) 980 
 
 28 & 29 Vict. c. 124 
 
 29 & 30 Vict. 0. 32 
 
 29 & 30 Vict. c. 96 
 
 30 & 31 Viot. c. 35 
 
 30 & 31 Vict. c. 69 (Exoneration of Charges) 
 
 VOL. I. 
 
 , 409 
 
 . 968 
 
 . 1203 
 
 . 980 
 
 . 413 
 
 . 1199 
 
 . 1211 
 
 . 1004 
 
 . 498 
 
 42, 46, 696, 775 
 
 846, 875, 1215 
 
 . 449 
 
 . 1002 
 
 . 1126 
 
 . 968 
 
 . 700 
 
 . 1217 
 
 now repealed) 614, 616 
 
 . . .412 
 
 1203 
 
 1007, 1008 
 
 . 329 
 
 . 1208 
 
 549, 552 
 
 h 
 
CXIV 
 
 TABLE OF STATUTES. 
 
 FAOE 
 
 30 & 31 Vict. c. 124 {Merchant Shipping) 248 
 
 30 & 31 Vict. c. 127 {Railway Companies Act, 1867) . . 285, 700 
 30 & 31 Vict. c. 181 {Companies Act, 1867) 638, 642, 647, 648, 657, 
 
 658, 823, 1203 
 30 & 31 Vict. c. 133 {Churches) 1002 
 
 30 & 31 Vict. c. 144 {Life Assurance) .... 274, et seq. 
 
 31 Vict. c. 4 {Sales of Reversions) ..... 672, et seq. 
 31 & 32 Vict. c. 40 {Partition Act, 1868) . . .62, 555, et seq. 
 
 31 & 32 Vict. c. 61 {Foreign Countries) 1002 
 
 31 & 32 Vict. 0. 71 1079, 1094, 1095 
 
 31 & 32 Vict. c. 77 {Divorced Persons) .... 1002, 1007 
 
 31 & 32 Vict. c. 86 271 
 
 31 & 32 Vict. c. 109 {Compulsory Church Rate Abolition Act) . 1117, 
 
 1143, 1156, 1157, 1158 
 
 31 & 32 Vict. c. 117 1110 
 
 31 & 32 Vict. c. 119 413 
 
 31 & 32 Vict. c. 129 {Merchant Shipping) 248 
 
 ■32 Vict. c. 11 {Merchant Shipping) 248 
 
 32 & 33 Vict. c. 18 691 
 
 32 & 33 Vict. c. 19 {Stannaries Act, 1869) . . . .650 
 
 32 & 33 Vict. c. 26 536 
 
 32 & 33 Vict. c. 46 {Specialty and Simple Contract Debts) . 46, 548 
 
 32 & 33 Vict. c. 51 1094 
 
 32 & 33 Vict. c. 62 {Debtors' Act) . 218, 839, 952, et seq., 1199, 1208 
 32 & 33 Vict. c. 68 {Evidence in Actions of Breach of Promise of 
 
 Marriage) ...... 
 
 32 & 33 Vict. c. 69 
 
 32 & 33 Vict. c. 71 {Bankruptcy Act, 1869) 
 32 & 33 Vict. 0. 102 
 32 & 33 Vict. c. 109 
 
 32 & 33 Vict. c. Ill {Bishops' Resignation Act) 
 
 33 Vict. c. 10 
 
 33 Vict. c. 14 {Naturalization Act, 1870) . 
 33 & 34 Vict. c. 20 . . . . . 
 33 & 34 Vict. c. 23 {Treason and Felony Act) 
 33 & 34 Vict. c. 28 {Solictors) 
 33 & 34 Vict. 0. 35 {Apportionment) . 
 
 33 & 34 Vict. c. 58 
 
 33 & 34 Vict. c. 61 {Life Assurance Compcmies Act, 1870) 
 33 & 34 Vict. c. 76 .... 
 
 33 & 34 Vict. c. 90 
 
 33 & 34 Vict. c. 93 {Ma/rried Women's Property 
 
 33 & 34 Vict. c. 97 {Stamps) . 
 
 33 & 34 Vict, c. 102 .... 
 
 33 & 34 Vict. c. 104 {Companies) 
 
 34 & 35 Vict. c. 18 {Solicitors) . 
 34 & 35 Vict. c. 43 {Ecclesiastical Dilapidations Act) 
 
 1002, 1007 
 
 . 1112 
 
 . 908 
 
 . 700 
 
 . 1112 
 
 . 1103 
 
 . 432 
 
 55, 249, 384 
 
 . 700 
 
 11, 1162 
 
 835, 844 
 
 . 25 
 
 . 1203 
 
 276, 658 
 
 . 700 
 
 . 1177 
 
 ^c*, 1870)212, 229,699 
 
 84, 246, 1002 
 
 . 55 
 
 . 658 
 
 . 840 
 
 1107, 1114, 
 
 1126, 1131, et seq. 
 
TABLE OF STATUTES. 
 
 CXV 
 
 PAGE 
 
 34 & 35 Vict. c. 44 {Incumbents' Resignation Act) . . . 1113 
 34 & 35 Vict. c. 79 {Lodgers' Goods Protection Act) . .117, 118 
 
 34 & 35 Vict. c. 82 1156 
 
 34 & 35 Vict. c. 100 (Merchant Shipping) 248 
 
 34 & 35 Vict. c. 112 1200 
 
 35 & 36 Vict. c. 8 1105 
 
 35 & 36 Vict. c. 10 (Quakers) 1002 
 
 35 & 36 Vict. c. 39 55 
 
 35 & 36 Vict. c. 41 (Life Assurance Companies Act, 1872) . 276, 658 
 35 & 36 Vict. c. 44 (Court of Chancery Fund Act, 1872) . . 693 
 
 35 & 36 Vict. c. 73 (Merchant Shipping) 248 
 
 35 & 36 Vict. c. 93 (Paimbrokers) .... .407 
 35 & 36 Vict. c. 94 1182 
 
 35 & 36 Vict. c. 96 1131 
 
 36 Vict. c. 31 1007, 1008, 1038 
 
 36 & 37 Vict. 0. 12 (Infants' Custody Act). . . . 609, 699 
 
 36&37 Vict. c.42(ri%es) 1140 
 
 36 & 37 Vict. c. 48 (Regulation of Railways Act) . . . 815 
 36 & 37 Vict. c. 66 (Judicature Act, 1873) 20, 29, 207, 267, 350, 509, 
 
 533, 537, 555, 572, 582, 588, et seq., 600, 604, 614, 693, 705, 764, 769, 
 804, 807, 820, 823, 829, 834, 863, 955, 956, 991, 997, 1059, 1216 
 
 36 & 37 Vict. c. 85 
 
 36 & 37 Vict. c. 88 (Merchant Shipping) . 
 
 37 & 38 Vict. c. 36 
 
 37 & 38 Vict. c. 37 (Power of Appointment) 
 
 37 & 38 Vict. c. 40 (Board of Trade Arbitrations Act) 
 
 37 & 38 Vict. c. 42 (Building Societies Act) 
 
 37 & 38 Vict. c. 50 (Married Women's Property Act, 1874) 
 
 37 & 38 Vict. c. 57 (Real Property Limitation) 
 
 . 1063 
 
 248, 1066 
 
 1203, 1210 
 
 , 179 
 
 , 815 
 
 660, 823 
 
 212, 229 
 
 204, et seq., 533, 567, 
 
 696 
 
 37 & 38 Vict. c. 62 (Infant's Relief Act) 388 
 
 37 ife 38 Vict. c. 68 (Solicitors) 835 
 
 37 & 38 Vict. c. 78 ( Vendor and Purchaser Act, 1874) 76, 86, 94, 114, 
 
 229, et seq., 585, 696, 785 
 
 37 & 38 Viot. c. 85 (Public Worship Regulation Act, 1874) . 1120, 
 
 1150, et seq. 
 
 38 Vict. c. 9 660 
 
 38 & 39 Vict, c, 
 38 & 39 Vict. c. 
 38 & 39 Vict, c, 
 
 38 & 39 Vict. c. 
 38 & 39 Vict. c. 
 38 & 39 Vict, c, 
 
 38 & 39 Vict. c. 
 
 39 & 40 Vict. c. 
 39 & 40 Vict. c. 
 39 & 40 Vict. c. 
 
 55 (Public Health Act) 
 60 . . . . 
 
 77 (Judicature Act, 1875) 
 
 79 (Legal Practitioners Act, 1875) 
 
 86 (Conspiracy Act) 
 
 87 . . ■ . . 
 
 93 
 
 17 (Partition Act, 1876) . 
 45 (Provident Societies Act) 
 59 (Appellate Jurisdiction Act) , 
 
 364, 597, 759 
 
 . 659 
 
 346, 548, 702, 705, 813, 
 
 835, 868, 956, 957 
 
 . 835, 842 
 
 . 878 
 
 . 690 
 
 . 304 
 
 62, 555, et seq. 
 
 . 823 
 
 . 798, 804 
 
 i 2 
 
CXVl 
 
 TABLE OF STATUTES. 
 
 39 & 40 Vict. c. 61 .... 
 
 39 & 40 Vict. c. 66 {Legal Practitioners Act) 
 
 39 & 40 Vict. c. 80 {Merchant Shipping). 
 
 40 & 41 Vict. c. 18 {Settled Estates Act) 
 40 & 41 Vict. c. 25 {Solicitors). 
 40 & 41 Vict. c. 26 {Companies) 
 40 & 41 Vict. 0. 33 . . 
 40 & 41 Vict. c. 34 . 
 
 39 {Fa<^ors Act, repealed) 
 . 62 {Solicitors) . 
 .63 ... 
 
 PAGE 
 . 1217 
 
 . 1145 
 
 . 248 
 
 . 698 
 
 829, 835, 1145 
 
 . 658 
 
 . 68 
 
 . 552 
 
 244, 436 
 
 . 835 
 
 . 660 
 
 1007, 1024 
 
 102, 329, 330, et seq., 337 
 
 40 & 41 Vict. 
 40 & 41 Vict. 
 
 40 & 41 Vict. 
 
 41 Vict. c. 19 
 41 & 42 Vict. 
 
 41 & 42 Vict. 0. 38 " 410 
 
 41 & 42 Vict. c. 42 {Tithes) 1140, 1142 
 
 41 & 42 Vict. c. 54 {Debtors Act, 1878) . . . 839, 952, et seq. 
 
 41 & 42 Vict. c. 73 . . 1164 
 
 42 & 43 Vict. c. 11 {Bankers' Boohs Evidence Act) . . .866 
 42 & 43 Vict. c. 29 {Marriage on Her Majesty's Ships) . . 1002 
 42 & 43 Vict. c. 49 . . . . ' . . . 1205, 1206 
 
 42 & 43 Vict. c. 76 {Companies) 648, 658 
 
 43Vict. c. 14 172 
 
 43 Vict. c. 19 {Companies) ' 648, 658 
 
 43 & 44 Vict. c. 18 248, 250 
 
 43 & 44 Vict. c. 22 248 
 
 43 & 44 Vict. c. 41 1134 
 
 43 & 44 Vict. c. 42 {Employers' Liability) . . . 439, 488, et seq. 
 43 & 44 Vict. c. 43 {Carriage of Grain Act, 1880) . . .248 
 
 43 & 44 Vict. c. 47 {Ground Game Act, 1880) . . . .119 
 
 44 Vict. 0. 12 172, 173 
 
 44 & 45 Vict. c. 12 {Customs and Inland Revenue Act, 1881) 172, 676 
 44 & 45 Vict. c. 41 {Conveyancing Act, 1881) 2, 21, 34, 44, 75, 76, 87, 
 
 88, 89, 90, 91, 104, et seq., 114, 125, et seq., 137, 138, 152, 180, 190, 
 192, 196, 200, 201, 227, 229, 531, et seq., 570, 576, 688, 697, 759, 
 
 785, 796, 845, 848, 867 
 44 & 45 Vict. c. 44 {Solicitors' Bemuneration Act, 1881) 835, 844, et seq. 
 44 & 45 Vict. c. 58 {The Army Act) ...... 878 
 
 44 & 45 Vict. c. 60 {Newspaper Libel and Registration Act) . 322, 473 
 
 44 & 45 Vict. c. 68 {Judicature Act, 1881). . . . 705, 1046 
 
 45 Vict. c. 3 . . . . . . . . . _ 1204 
 
 45 & 46 Vict. c. 38 {Settled Land Act, 1882) 2, 26, 41, 133, 145, et seq., 
 
 162, 229, 608, 689, 698, 785, 822 
 45 & 46 Vict. c. 39 {Conveyancing Act, 1882) . 2, 70, 93, 104, 105, 131, 
 
 152, 180, 227, 867' 
 45 & 46 Vict. c. 43 {BUls of Sale) . . 102, 284, 329, et seq., 338 
 45 & 46 Vict. 0. 50 {Corporations) ..... 512 1211 
 45 & 46 Vict. 0. 51 {Government Annuities Act) .... 512 
 44 & 45 Vict. c. 60 ! .' 473 
 
TABLE OF STATUTES. CXVll 
 
 PAOE 
 
 45 & 46 Vict c. 61 {Bills of Exchange Act, 1882) . 256, et seq., 372 
 
 45 & 46 Vict. c. 75 (Married Women's Property Act, 1882) 63, 133, 177, 
 
 179, 210, 212, 214, 216, 217, 218, 223, et seq., 229, 239, 348, 389, 
 442, 443, 511, 613, 628, 699, 710, 785, 878, 901, 919, 982, 988, 
 
 10ii9, 1045 
 
 46 & 47 Vict. 0. 28 (Sepealed) 658 
 
 46 & 47 Vict. c. 34 (Cheap Trains Act) 815 
 
 46 & 47 Vict. c. 41 248 
 
 46 & 47 Vict. c. 49 581,599 
 
 46 & 47 Vict. c. 52 {Banhruptcy Act, 1883) 46, 50, 117, 145, 177, 229 
 
 350, 501, 775, 825, 878, 894, et seq., to end of Bankniptcy Bools 
 46 & 47 Vict. c. 57 (l-'afents. Designs, and Trade Marks Act, 1883) 
 
 287, et seq. 
 
 46 & 47 Vict. c. 61 (Agricultural Holdings Act, 1883) 26, 117, 119, 120, 
 
 229 
 
 47 & 48 Vict. c. 14 (Married Women's Property Act) . 221, 878, 1037 
 47 & 48 Vict. c. 18 (Settled Land Act, 1884) 26, 145, 149, 152, 154, 155, 
 
 698 
 47 & 48 Vict. c. 20 (Greek Marriages Act) . . . 1002, 1007 
 
 47 & 48 Vict. c. 41 660 
 
 47 & 48 Vict. c. 54 (Yorkshire Registry) .... 93, 109 
 
 47 & 48 Vict. c. 61 356, 765, 804 
 
 47 & 48 Vict. c. 66 1101 
 
 47 & 48 Vict. 0. 68 (Matrimonial Causes Act, 1884) 1007, 1013, 1025, 
 
 1032 
 
 47 & 48 Vict. c. 71 (Intestates' Estates Act, 1884) ... 55 
 
 48 & 49 Vict. c. 54 1111 
 
 48 & 49 Vict. i;. 63 288 
 
 48 & 49 Vict. c. 69 (Criminal Law Amendment Act, 1885) 878, 1192, 
 
 1193, 1208, 1210 
 
 48 & 49 Vict. c. 72 (Housing of the Working Classes, 1885) . . 128 
 
 49 Vict. c. 23 (Companies) 658 
 
 49 & 50 Vict. c. 3 (Marriages Validity Act, 1886) . . . 1002 
 49 & 50 Vict. 0. 14 (Hours of Solemnization of Marriages) . 1001, 1002 
 
 49 & 50 Vict. c. 20 1134 
 
 49 & 50 Vict. c. 27 ( Guardianship of Infants Act, 1886) 609, et seq., 
 
 699, 1007, 1034, 1035 
 
 49 & 50 Vict. 0. 33 304 
 
 49 & 50 Vict. c. 37 288 
 
 49 & 50 Vict. c. 48 (Medical Act) 386 
 
 49 & 50 Vict. c. 52 (Married Women Maintenance in Case of Deser- 
 tion Act, 1886) 229, 1013 
 
 49 & 50 Vict. c. 54 (Tithes) 1140, 1142 
 
 50 & 51 Vict. c. 23 (Incumbents^ Resignation Act) . . . 1113 
 
 50&5L Vict. C.26 120 
 
 50 & 51 Vict. c. 28 (Merchandise Marks Act, 1887) . . 316, 1208 
 50 & 51 Vict. 0. 30 (Settled Land Act, 1887) . . 26, 145, 149, 698 
 50 & 51 Vict. c. 48 120 
 
CXVlll 
 
 TABLE OF STATUTES. 
 
 186, 190, 191, 
 172, 174, 277, 
 
 50 & 51 Vict. c. 53 
 
 50 & 51 Vict. c. 56 
 
 50 & 51 Vict. 0. 57 (JJeeds of Arrangement) 
 
 50 & 51 Vict. c. 62 (Merchard Shipping) . 
 
 50 & 51 Vict. c. 66 (Bankruptcy Discharge and Closure Act, 1887) 
 
 50 & 51 Vict. c. 67 . 
 
 50 & 51 Vict. c. 73 (Copyholds) 
 &1 Yict. c. 8 (Customs and Inland Bevenue) . 95, 
 
 51 Vict. 0. 28 
 
 51 & 52 Vict. c. 2 (National Debt Conversion Act, 1888) 
 51 & 52 Vict. c. 17 . 
 51 & 52 Vict. c. 20 . 
 
 51 & 52 Vict. c. 21 (Law of Distress Amendment Act) 
 51 & 52 Vict. 0. 25 (Bailway and Canal Traffic Act) 
 51 & 52 Vict. c. 41 (Local Government Act) 
 51 & 52 Vict. c. 42 (Mortmain and Charitable Uses Act, 1888) 49, 230, 
 
 232, 234, et seq. 
 
 PAGE 
 55 
 
 659 
 
 911 
 
 248 
 
 946 
 
 980 
 
 ,192 
 
 278 
 
 . 174 
 
 . 247 
 
 . 325 
 
 . 1130 
 
 117, 118, 122 
 
 . 815, et seq. 
 
 . 825 
 
 51 & 52 Vict. c. 43 (County Cowts) . 
 
 51 & 52 Vict. c. 44 . 
 
 51 & 52 Vict. 0. 46 (Oaths Act) 
 
 51 & 52 Vict. c. 48 
 
 51 & 52 Vict. c. 50 . 
 
 51 & 52 Vict. c. 51 (Land Charges) 
 
 51 & 52 Vict. c. 56 (Suffragan's Nomination Act) 
 
 51 & 52 Vict. 0. 59 (Trustees) 78, 208, 273, 277, 524, 
 
 51 & 52 Vict. c. 62 (Preferential Payments) 
 
 61 & 52 Vict. c. 64 (Law of Libel Amendment Act, 1888) 473, et seq., 1208 
 
 122, 439, 807, e< se J., 821, 
 824, 825, 1095 
 . 227 
 . 870 
 . 659 
 288, 299, 304, 315 
 24,80 
 , 1105 
 et seq., 848, et seq. 
 658, 932, 933 
 
 51 & 52 Vict. c. 65 (Solicitors) 
 
 51 & 52 Vict. c. 66 (Friendly Societies Act, 1888) 
 
 52 Vict. c. 4 (Redemption of Consols) 
 52 Vict. c. 7 (Customs and Inland Bevenue Act) . 
 52 Vict. c. 10 (Administration of Oaths) . 
 52 & 53 Vict. c. 11 (Act Begulating the Sale of Horse-Flesh) 
 52 & 53 Vict. c. 12 (Act to Relieve the Courts of Assize) 
 52 & 53 Vict. c. 18 (Indecent Advertisements) 
 ZiSD^ZNict. cZO (Board of Agriculture Act, l?:8?i) . 
 
 . 835, et seq. 
 
 . 659 
 
 . 247 
 
 95, 172, 174, 677 
 
 . 1185 
 
 . 255 
 
 827, 1210 
 
 . 1188 
 
 191, 1130, 
 
 1131, 1141 
 
 et seq., 660 
 
 526, 
 
 52 & 53 Vict. c. 32 (Investm^it of Trust Funds) 
 
 52 & 53 Vict. c. 36 (Settled Land Act, 1889) . . 26, 145, 150 
 
 52 & 53 Victc. 37 (Companies Clauses Consolidation Act, 1889) . 659 
 52 & 53 Vict. c. 41 (Lunacy Amendment Act Repealed) . . 813 
 52 & 53 Vict. c. 42 (Customs and Inland Revenue Act, 1889) . 246 
 
 52 & 53 Vict. c. 44 " 1^94 
 
 52 & 53 Vict. c. 45 (Factors Act, 1889) . . 243, 244, 245, 421, 436 
 52 & 53 Vict. c. 46 (Merchant Shipping Act, 1889) . . 248 1053 
 52 & 53 Vict. c. 47 (Palatine Court of Durham Act) . . , 827 
 52 & 53 Vict. c. 49 (Arbitration Act, 1889) . . 760, et seq., 807 
 
TABLE OF STATUTES. CXIX 
 
 FAOE 
 
 52 & 53 Vict. c. 52 (The Official Secrets Act, 1889) . . .882 
 52 & 53 Vict. c. 63 {The Interpretation Act, 1889) . . 2, 1126 
 52 & 53 Vict. c. 68 248 
 
 52 & 53 Vict. c. 73 248 
 
 53 Vict. c. 5 {Limacy Act, 1890) . . 2, 543, 628, 813, et seq. 
 
 53 Vict. c. 7 . . . . 8'^8 
 
 53 Vict. c. 8 {Customs and Inland Revenue Act, 1890) . 263, 277, 278 
 
 53Vict. c. 9 248 
 
 53 & 54 Vict. c. 15 {Open Spaces Act, 1890) . . . 235, 700 
 53 & 54 Vict. c. 16 ( Working Classes Dwellings Act, 1890) . . 235 
 53&54:\ict.c. 19 {Trustees' Appointment Act, 1890). . .535 
 53 & 54 Vict. c. 23 {Chancery of Lancaster Act, 1890). . 700, 828 
 
 53 & 54 Vict. 0. 24 911 
 
 53 & 54 Vict. c. 29 {Intestates' Estates Act, 1890) 7, 229, 341, 342, 345 
 
 53 & 54 Vict. c. 30 1141 
 
 53 & 54 Vict. c. 39 {Partnership Act, 1890) 58, 59, 544, 545, 614, 616, 
 
 620, et seq. 
 53&S4:Yict.o.'iO {Factors {Scotland) Act, 1890) . . .244 
 
 53 & 54 Vict. c. 44 757,797,803,804 
 
 53 & 54 Vict. c. 47 {Marriage Act, 1890) . 953, 959, 999, 1002, 1007 
 53 & 54 Vict. c. 49 {Expiring Laws Continuance Act) . . . 488 
 53 & 54 Vict. c. 53 {Bills of Sale Act, 1890) . . 829, 334, 920 
 53 & Si Yiot. c. 54: {Tenants' Compensation Act) . . . . 121 
 
 53 & 54 Vict. c. 57 105,121,1140 
 
 53 & 54 Vict. c. 59 {Public Health Amendment Act, 1890) . . 827 
 53 & 54 Vict. c. 62 {Companies {Memorandum of Association) Act, 
 
 1890) 638, 639, 658 
 
 53 & 54 Yict. c. GS {Companies {Winding-up) Act) . . 651, et seq. 
 53 & 54 Vict. c. 64 {Directors' Liability Act, 1890) 638, 645, 647, 658 
 53 & 54 Vict. c. 66 {Metropolis Management Amendment Act, 1890) 827 
 53 & 54 Vict. c. 69 {Settled Land Act, 1890) 2, 24, 26, 114, 126, 133, 
 
 147, 149, et seq., 698 
 53 & 54 Vict. c. 70 {Housing of the Working Classes Act) . 128, 130 
 53 & 54 Vict. c. 71 . . . 117, 894, et seq., to end of Bankruptcy 
 
 Book, 1164 
 
INTRODtJOTOEY CHAPTER. 
 
 The object of this work, as already stated in the Preface, 
 is to give, in as comprehensive a manner as is possible 
 within moderate limits, an account of the present laws of 
 England, and a main idea throughout has been to bring 
 into special prominence the present and living law, and 
 only to deal with past law, or that which is practically 
 obsolete, so far as it is necessary to enable the reader to 
 understand the present. As, however, it is often necessary, 
 in considering a legal question, to follow the old principle 
 laid down by Lord Coke, melius est petere f antes quam sectari 
 rivulos, and to trace the law to its source, references have, 
 as far as possible, throughout the work been given to 
 authorities, where the diligent student can obtain, the 
 fullest and most accurate information on the various 
 subjects discussed. 
 
 The celebrated author of the 'Curiosities of Litera- 
 ture' (*), has told us that the introduction to a literary 
 work being the entrance to the book, ought to be rendered 
 as inviting as possible to the reader, and ought to contain 
 something analogous to the work itselt: "An elegant 
 porch announces the splendour of the interior. A good 
 preface is as essential to put the reader into good humour, 
 as a good prologue is to a play, or a fine symphony to an 
 
 (') Disraeli's ' Curiosities of Literature ' : Essay on Prefaces. 
 
CXXU INTRODUCTORY GHAPTEB. 
 
 opera." The object of the present work being to deal 
 concisely with a great variety of legal subjects, and to 
 render substantial assistance to the student who desires 
 to obtain within a reasonable compass a statement of the 
 present laws of England, the aim of this Introductory 
 Chapter, in order that it may be inviting to the reader and 
 analogous to the work itself, must be to indicate briefly the 
 general plan of the book and the order in which the 
 various subjects treated of are discussed. 
 
 The first main division of this work deals with that 
 perennial source of interest to mankind, that universal 
 object of human desire — Property. The principal distinc- 
 tions between the two classes of property, real and personal, 
 are considered in the First Chapter. The remainder of 
 Book I. is then devoted to the subject of Keal Property, 
 the law as to personal property being, however, in some 
 places (see p. 9) considered simultaneously. The various 
 estates and interests which can be enjoyed in real property 
 are first considered, and then the various modes in which 
 it may be dealt with by its owners by way of total or 
 partial disposition, by conveyance, mortgage, lease, settle- 
 ment, and will. In no portion of law have the great 
 changes that have taken place in modern times been more 
 conspicuous than in the law with regard to real property. 
 The alterations which have been introduced into the law 
 of real property by the Conveyancing Acts and the 
 Settled Land Acts are considered in the appropriate parts 
 of Book I., and particularly in Chapters VIII., IX., X., 
 XI., and XII., which deal with the subjects of Convey- 
 ances on Sale, Mortgages, Leases, and Settlements. A 
 separate ■ chapter (Chapter XVIII.) is devoted to the 
 consideration of the law as to the property of married 
 women, while in Chapter XIX. the law as to charities (so 
 far as it is connected with property), and mortmain is 
 reviewed with special reference to the Mortmain and 
 
INTRODUCTORY CHAPTER. CXXIU 
 
 and Charitable Uses Act, 1888. Book II. is devoted to 
 Personal Property, and in dealing with that subject special 
 chapters have been devoted to particular descriptions of 
 property which have of recent years come into peculiar 
 prominence. The law with regard to Negotiable Instru- 
 ments, now to a great extent codified by the Bills of 
 Exchange Act, 1882, is made the subject of Chapter IV. 
 Policies of Insurance and Assurance are dealt with in 
 Chapter V. Patents, Designs, and Trade-marks are con- 
 sidered in Chapters VII., VIII., and IX. respectively; 
 Copyright in Chapter X. Chapter XI. is devoted to the 
 difScult subject of Bills of Sale. Chapter XII. treats of 
 the rules which govern the descent of personal property in 
 cases of intestacy materially altered as they have been by 
 the Intestates' Estates Act, 1890. 
 
 Next, after the consideration of the law with regard to 
 property, comes the consideration of that portion of law 
 which is more intimately connected with the administration 
 of justice by the Courts. As in the study of physical 
 force the laws of bodies at rest are usually treated apart 
 from the laws of bodies in motion, so here the principles 
 of English law which are chiefly concerned with that 
 which is technically termed " non-contentious " business 
 have been dealt with before we proceed to the consideration 
 of " contentious " business. The great changes, not only in 
 practice, but in principle, which have been introduced by 
 the Judicature Acts and Kules are considered (p. 346, 
 et seq.), and the general plan of the remainder of the work 
 indicated (p. 358). Books III. and IV. treat of the prin- 
 cipal business which now devolves upon the Queen's Bench 
 Division, under the two main divisions of the Law of 
 Contracts and the Law of Torts. 
 
 Book V. is concerned with Equity, and deals not only 
 with the business which has been specially assigned by the 
 Judicature Act to the Chancery Division, but also with 
 
CXXIV INTRODUCTORY CHAPTER. 
 
 those other subjects which seem to fall most appropriately 
 within this portion of the work. And here it should be 
 borne in mind, as pointed out in a celebrated case Q-) by that 
 great judge the late Sir George Jessel, that with regard 
 to many subjects " the doctrines of Equity are progressive, 
 refined, altered, and improved ; and, if we want to know 
 what the rules of Equity are, we must look rather to the 
 more modern than the more ancient cases." The doctrines 
 of Equity are accordingly considered with special reference 
 to the modern cases which may be regarded as settling 
 the principles by which the Courts are guided in their 
 decisions at the present day. 
 
 Many subjects which have been already considered in 
 other portions of the work and in different bearings, are 
 again brought before the reader in the Book devoted to 
 Equity. 
 
 The law as to Trusts has been incidentally alluded to 
 (p. 16, et seq.) in connection with the subject of Keal Pro- 
 perty, but in the Book devoted to Equity it is assigned the 
 premier position, and attention is directed to the important 
 changes which have been made in recent years by the 
 Conveyancing Acts of 1881 and 1882, the Trustee Act, 
 1888, and the Trust Investment Act, 1889. Charities have 
 already been brought before the attention of the reader in 
 Book I., but here Trusts for their benefit are dealt with 
 and the doctrine of cy-fres is considered (p. 537, et seq.). 
 Joint Tenancies and Tenancies in Common have previously 
 occupied the attention of the student (p. 57, et seq.) as 
 modes in which lands and tenements may be held in 
 " concurrent ownership." Here the law as to the partition 
 or sale of such estates is considered as" a portion of the 
 business assigned to the Chancery Division of the High 
 Court. Mortgages have been considered in one of the 
 
 0) In re EalUei Estate, 13 Ch. D. 710. 
 
INTRODUCTORY CHAPTER. CXXV 
 
 chapters devoted to Keal Property (p. 97, et seq.). They 
 are now (p. 559, et seq.) considered along with Charges and 
 Liens in their contentious aspects, and the rights of parties 
 in proceedings for foreclosure and redemption. The law as 
 to Infants, which has been to some extent discussed in 
 connection with Real Property (p. 48) and Contracts 
 (p. 386, et seq.) and Torts (p. 433, et seq.), is considered 
 (p. 605) with special reference to actions by and against 
 them, and the questions of their guardianship, custody, and 
 religious education. 
 
 Other portions of the same book which may be here 
 referred to, are Chapter X. dealing with the law of Partner- 
 ship, codified to a great extent as it has been by the 
 Partnership Act, 1890; Chapter XI. on the law of Com- 
 panies (materially altered by the recent legislation of the 
 Directors' Liability Act, 1890 (p. 645) ; the Companies 
 (Memorandum of Association) Act, 1890 (p. 639); the 
 Companies Winding-up Act, 1890 (p. 651) ) ; and Chapter 
 XVIII. on the business specially assigned to the Chancery 
 Division. 
 
 Book VI. is concerned with Practice^ — ^well described by 
 Lord Penzance as " the machinery of justice in its adminis- 
 tration " (^) — and matters connected therewith, including 
 (Chapter XVIII.) a notice of the various bodies other than 
 the High Court which exercise jurisdiction in this country, 
 and (Chapter XIX.) a review of the law concerning the 
 position of Counsel and Solicitors, the members of the two 
 branches of the profession to whom the conduct of legal 
 business is entrusted. A new chapter (Chapter XVII.) 
 has here been added to the present edition dealing chiefly 
 with the remedies by means of which wrongs may in certain 
 cases be redressed, or their continuance prevented by the 
 exercise of extraordinary judicial powers. 
 
 C) See further on this subject, Yol. ii. 701. 
 
CXXVl INTRODUCTORY CHAPTER. 
 
 Book VII. deals with the principles and practice of the 
 law relating to Evidence, the definition of which is con- 
 sidered at p. 851. Book VIII. treats of the Law and Prac- 
 tice of Bankruptcy, special attention being directed to the 
 considerable changes which have been introduced by the 
 Bankruptcy Act, 1890. Books IX., X., and XL are occupied 
 respectively with the Law as to Probate, Divorce and 
 Admiralty, now somewhat strangely grouped together in 
 one Division of the High Court. 
 
 Here, again, a variety of subjects which have been pre- 
 viously considered in other aspects are again brought 
 before the reader. 
 
 The law of Wills has been previously considered (p. 157, 
 et seq.) with special reference to the law affecting property. 
 In Book IX. it is regarded in its relation to the business 
 of the Probate, Divorce and Admiralty Division. 
 
 The law as to Husband and Wife has been previously 
 considered in connection with Property (p. 210, et seq.) ; 
 Contracts (p. 389, et seq.) ; Torts (p. 442, et seq.) ; and the 
 Custody of Children (p. 608, et seq.). It is now (p. 1008, 
 et seq.) treated with reference to marriage and the juris- 
 diction of the Probate, Divorce and Admiralty Division, 
 dealing as it does primarily with the dissolution of marriage 
 and kindred subjects, and only secondarily with property 
 and the custody of children. Ships have been previously 
 considered (p. 248, et seq.) as subjects of Property; in 
 Book XL they are regarded from the standpoint of the 
 practitioner in the Admiralty Division. 
 
 Book XII. deals with Ecclesiastical Law. Here, too, 
 several subjects of Property, such as Advowsons and Tithes, 
 which have been previously but slightly touched on 
 (p. 194), are made the subject of particular consideration 
 (p. 1136, et seq., 1140, et seq.). The jurisdiction and 
 procedure of the Ecclesiastical Courts are considered in 
 Chapter VIII. (p. 1144, et seq.) 
 
INTRODUCTORY CHAPTER. CXXVU 
 
 Book XIII. is devoted to Criminal Law. The general 
 nature of crimes, the leading principles of the English 
 criminal law, and the question of responsibility or irrespon- 
 sibility for crime are first considered. The persons capable 
 of crime and the various classes of crime, concluding with 
 offences against property, are the subjects of the following 
 Chapters (III. to VII., inclusive). The final Chapter of 
 the work deals briefly with Criminal Procedure. 
 
COMMENTARIES 
 
 ON THE 
 
 PRESENT LAWS OF ENGLAND. 
 
 BOOK I. 
 REAL PROPERTY. 
 
 property. 
 
 CHAPTEE I. 
 
 Different Classes of Peopeety. 
 
 All property in the eye of modem English law is either real Real and 
 or personal property. personal 
 
 Land, said the late Mr. Joshua Williams, which is immovable 
 and indestructible is evidently a different species of property 
 from a cow or a sheop, which may be stolen, tilled, and eaten ; 
 or from a chair or a table, which may be broken up or burnt. 
 No man, be he ever so feloniously disposed, can run away with 
 an acre of land Q). 
 
 Attention was hence directed to the real remedy resulting in 
 the recovery of the property itself as contrasted with the mere 
 personal remedy, which could only result in damages against 
 him who had wrongfully appropriated personal property, such 
 as goods or money, and though real actions were to a great 
 extent abolished more than fifty years ago (^), the terms " real " 
 and "personal" came into use, and are recognised in many 
 important statutes of modem times ('). Thus the term " Pro- 
 
 (') Williams, Beal Property, in- movable ;" (2) When feudalism had 
 
 troductory chapter. become established, landed property 
 
 (^) 3 & 4 W. 4, c. 27, 3. 36. was looked upon as the subject of 
 
 Q) The various terms which have tenure and as descending to the heir, 
 
 been from time to time employed to and was accordingly regarded as 
 
 contrast the two great classes of "tenements and hereditaments" as 
 
 property may be divided into three opposed to " goods or chattels." 
 
 groups, representing different periods (3) When feudalismhad lost its hold, 
 
 of legal hist'iry :— (1) In the early after 12 Car. 2, cap. 24 (post, p. 12), 
 
 days of England, as of other Euro- the terms real and personal were 
 
 pean countries, property was first re- thenceforth employed, 
 garded as "movable" and "im- 
 
 VOL. I. B 
 
REAL PROPERTY. 
 
 [Book I. 
 
 Real pro- 
 perty. 
 
 Land, 
 
 perty " is defined in the Conveyancing Acts with sweeping com- 
 prehensiveness to include real and personal property, and any 
 estate or interest in any property, real or personal, and any debt, 
 and anything in action, and " any other right or interest in the 
 nature of property " Q'), and in the Wills Act, which assimilates 
 to a large extent the law with regard to real and personal pro- 
 perty, the terms are made the subjects of separate definitions (^). 
 
 The term " Eeal Property " comprises lands, tenements, and 
 hereditaments. 
 
 " Land," in its legal signification, comprehends not only the 
 land ithelf, but also all that is above the soil — castles, houses, 
 and other buildings, water, forests, and trees ; and also all that is 
 below the surface — mines, earth, clay, quarries, and the like. 
 The maxim of the law on this subject is cujua est solum ejus 
 est usque ad caelum et inferos. 
 Tenements. " Tenements,'' in a legal sense, means anything, whether 
 tangible or intangible, that, according to the law of feudal 
 tenure, might be " holden." Hence, the term is applicable not 
 only to everything comprised in the term " land," but also to other 
 rights and interests as offices, rents, and rights of common (f). 
 
 "Hereditaments " is a term of still wider import ; for it com- 
 prises not only lands and tenements, but whatsoever may be 
 inherited, be it corporeal or incorporeal, e.g. an advowson or a 
 fishery. 
 
 The term " hereditaments " accordingly includes, in addition 
 to immovable property generally, certain movable things, of 
 which the following may be mentioned : 
 
 (1) Deeds relating to the inheritance, " the sinews of the land," 
 as Lord Coke calls them, are regarded as hereditaments, and even 
 the very box or chest which is usually employed for keeping 
 them partakes of their nature, and goes to the heir. The rule, 
 however, does not apply to the title-deeds of terms for years'. 
 
 Heredita- 
 ments. 
 
 (') a & 45 Vict. c. 41 ; 45 & 46 
 Vict. c. 39. 
 (2) 6 & 7 Wm. 4, and 1 Vict. c. 26, 
 
 B. 1. 
 
 (') Co. Litt. ia and 45; Shep- 
 herd's Touchstone, 90. Land is de- 
 fined in the Conveyancing Act, to 
 include for the purposes of the Act, 
 " unless a contrary intention appears," 
 land of any tenure, and tenements 
 and hereditaments, eoi-poreal or in- 
 corporeal, and houses and other build- 
 ings, also an undivided share in land ; 
 and see a similar definition iu the 
 
 Settled Land Act, 18X2 (45 &46 Vict. 
 0. 38), s. 2 (10-11), extended to 
 Settled Land Act, 1890 (53 & 54 Vict, 
 c. 69). The Interpretation Act, 1889 
 (.52 & 53 Vict. 0. 63), s. 3, enacts that 
 in the interpretation of every Act 
 passed after the year 1850, the ex- 
 pression " land " shall include " mes- 
 suages, tenements, andhereditaments, 
 houses, and buildings of any tenure." 
 "Land " includes an undivided share 
 of land iu the Lunacy Act, 1890 
 (53 & 54 Vict. 0. 5), s. 341. 
 
Chap. I.] DIFFERENT CLASSES OF PROPERTY. 3 
 
 for terms of years, and consequently the title-deeds relating to 
 them, are regarded as personal property (i). 
 
 (2) Heirlooms, " the limbs or members of th-e inheritance '' — 
 STich goods and personal chattels of a " ponderous and more robust 
 character " as go by special custom to the heir, along with the 
 inheritance, and not to the executor or administrator of the last 
 proprietor. 
 
 Personal property comprises movable things generally (except Pei-sonal 
 those above mentioned), or as they are commonly called, " goods P'^P*' ^■ 
 and chattels," money, debts, stock in the public funds, shares in 
 companies (with the exception of New Eiver Shares (f) and a 
 few others), patents, copyrights, and other matters which will 
 be considered hereafter. 
 
 Under the head of personal estate fall also interests in land Chattels 
 for years. Such interests, since they savour, as is said, of the ™*'- 
 realty, have acquired the name of " chattels real." 
 
 All leases and terms of lands, tenements, and hereditaments, 
 which are for a definite space of time, no matter how long that 
 time may be, are deemed chattel interests, and as such pass to 
 a man's personal representatives on his decease (f). An im- 
 portant point, however, was decided with regard to chattel 
 interests in real estate in a case before the Lord Chancellor 
 (sitting as Master of the EoUs) in 1873 (*). In that case the 
 question 0,rose whether an English statute, which we shall 
 consider hereafter (jpost, p. 73), the Thellusson Act, forbidding 
 the accumulation of income beyond a certain period, applied to 
 leasehold property belonging to a testator who was domiciled 
 abroad (f). The Lord Chancellor decided that it did, and in 
 delivering judgment expressed himself as follows : — 
 
 " The territory and soil of England by the law of nature and of 
 nations, which is recognized also as part of the law of England, 
 is governed by aU statutes which are in force in England. Thus 
 leasehold property in Belgrave Square is part of the territory 
 and soil of England, and the fact that the testator had a chattel 
 interest in it, and not a freehold interest, makes it in no way 
 whatever less so. An Act of Parliament limiting the periods 
 for which accumulations are permitted has as much force in 
 
 Q) Williams on Executors, 8th ed. 1 Mac. & G. 574 ; and see Tyssen's 
 
 p. 730. Charitable Bequests, 33s, et seq. 
 
 (^) New Eiver Shares are real pro- (') See as to estates for the life of 
 
 perty : Drybutter v. Bartholomew, 2 P. another, post, p. 31. 
 
 Wms. 127 ; so also are Avon Naviga- (*) Per Selbome, L.C., for M.B., 
 
 tion Shares: Hawse v. Chapman, in Freke v. Lord Carbery, L. K. 
 
 4 Ves. 542 ; Shares of Tolls of Light- 16 Eq. 461. 
 
 houses: Attorney-Oeneral v. Jones, (') See, as to domioil, p. 1002, e< seiji. 
 
 B 2 
 
4 BEAL PEOPEBTT. [Book I. 
 
 Belgrave Square, and tipon every part of the property in the 
 land of Belgrave Square, as it has in any other part of England, 
 and for that purpose, it appears to me to be totally immaterial 
 what is the quantity of interest dealt with by the will .... 
 " Domicil is allowed in this country to have the same influence 
 as in other countries in determining the succession of moveable 
 estate ; but the maxim of the law of the civilised ' world is 
 mdbilia sequuntur personam, and is founded on the nature of 
 things. When mdbilia are in places other than that of the person 
 to whom they belong, their accidental situs is disregarded, and 
 they are held to go with the person. But land, whether held 
 for a chattel interest or held for a freehold interest, is in nature, 
 as a matter of fact, immoveable and not moveable " (i). 
 
 The real substance of the law is, that so strong is the force 
 of the immovable character where it is found, that it will 
 attract to itself prima facie things which are ambiguous, at 
 least to the extent of obliging other nations to recognise the 
 law of the place where the immovable property is situate. The 
 principle thus laid down has been applied in several cases. In 
 a case where a married woman domiciled in Italy died possessed 
 of leaseholds in Ireland, and her husband, who survived her, 
 was only entitled by Italian law to a limited interest in the 
 leaseholds, but by the law of Ireland he was entitled absolutely, 
 the Court decided that the case was governed by the Irish 
 law (2). Again, in a more recent case (3) where a Scotchman 
 died intestate as to leaseholds situate in England the devolution 
 of the leaseholds whs treated as governed by the English law. 
 
 There are also certain important descriptions of property 
 which lie, as it were, on the border-land between real and 
 personal estate, and are under some circumstances regarded as 
 real, and under others as personal property. 
 Chattels The reader will find the subject of chattels personal elaborately 
 
 persona . considered in Williams on Executors, under three heads : 
 1, chattels animate ; 2, chattels vegetable ; 3, chattels inanimate. 
 Chattels animate are divided into such as are domestic and such 
 as are ferie naturae. Animals, tame and domesticated, horses, 
 kine, sheep, poultry, and the like are personal chattels. Hounds, 
 greyhounds, and spaniels (*), pigeons, rabbits, &c., when 
 tame, fall under the same category. 
 
 (') Per Selborne, L.C., for M. E. 41 Ch. D. 394. 
 
 in Freke v. Lmd Carbery, L. E. (*) "And why not?" asks an old 
 
 16 Eq. 461. -writer, cited, Williams on Executors, 
 
 O In the Goods of Gentili, Ir. U. 8th ed. p. 710, note, "for althou-h 
 
 9 Eq. 541. hounds, greyhounds, and spaniels be 
 
 CO In re Duncan and Laweon, for the most part but things of plea- 
 
Chap. I.] DIFFERENT CLASSES OF PROPERTY. 5 
 
 There are certain animals, on the other hand, which are 
 treated as real property. They are regarded as incident to the 
 freehold inheritance, and do not pass to the executor or adminis- 
 trator. Thus deer in a park Q-'), unless reclaimed, conies in a 
 warren, doves in a dove-house, do not go to the executor or 
 administrator, as personal property. 
 
 Personal effects of a vegetable nature or chattels vegetable. Chattels 
 as they are called, when severed from the body of the plant, or ^^S^tao'^- 
 severed from the ground, as the case may be, are ti'eated as per- 
 sonal estate. On the other hand, as stated in Williams on 
 Exeoutors, apples, pears, and other fruits, if hanging on the 
 trees at the time of the death of the ancestor, shall go to his 
 heir, and not to his executor or administrator. So it is of 
 hedges, bushes, &o., for all tliese are the natural or permanent 
 profits of the earth, and are reputed parcel of the ground 
 whereon they grow (2). 
 
 The law on this subject was recently considered by the Court 
 of Appeal in a case w^hen the question arose whether a number 
 of beech trees, more or less blown down by extraordinary gales, 
 were to be treated as real or personal estate. " The question, 
 and the only question," said the Lord Chancellor, "put in the 
 baldest and broadest form, is, whether or not the tree is affixed 
 to the soil. If it is, it is realty; but if it is severed, it is per- 
 sonalty." " The question," added another of the judges, " is not 
 whether a particular tree can grow as a tree naturally would 
 grow, but whether it is fixed to the freehold. All we can do is 
 to say that trees which are severed from the soil are personal 
 estate, and trees which are not severed belong to the inheritance. 
 The life and growth certainly afi'ord no test as to whether a tree 
 is or is not afiixed to the soil " (^). 
 
 A somewhat similar principle as to the necessity of actual 
 severance was involved in the old decision that timber trees 
 " could not be felled with a goose quiU " (*). 
 
 Vegetable products of land or crops, which are produced by Emble- 
 annual labour, are regarded as personal property, even though ^ents. 
 not severed from the land ; so far, at least, that they do not 
 
 sure, that hinderetli not, but that (^) Williams on Exeoutors, 8th ed. 
 
 they may be valuable, as well as in- p. 713. 
 
 struments of music, both tending to (') Per Cotton, L.J., in Re Ainslie. 
 delight and exhilarate the spirits." Swinburne v. Ainslie, 30 Oh. Div. 485. 
 (') Morgan v. Earl of Abergavenny, (*) Liford's Case, 1 1 Co. 50 ; see 
 8 C. B. 768 ; Ford v. Tynte, 2 J. & H. however, "Williams on Executors, Hh 
 150-153, where it was said that " to edit., p. 713, where cases are men- 
 reclaim deer makes them no longer tioned where trees though not actu- 
 venison in a park but chattels like ally severed were treated as dividecT 
 auy other d jmesticated animals." from the land by sale or grant. 
 
6 
 
 REAL PROPERTY. 
 
 [Book I. 
 
 Fixtures. 
 
 Distinc- 
 tions 
 between 
 real and 
 personal 
 property. 
 
 belong to the heir, but pass to the executor or administrator. 
 Such crops are called emblements (*). 
 
 When personal inanimate chattels are affixed to the freehold 
 they are called fixtures. What are fixtures? The general 
 principle on which the law proceeds has been stated by a great 
 judge in a well-known judgment as follows : " Perhaps," says 
 Blackburn, J., "the true rule is, that articles not otherwise 
 attached to land than by their own weight are not to be con- 
 sidered as part of the land, unless the circumstances are such as 
 to show that they were intended to be part of the land, the 
 onus of showing that they were so intended lying on those who 
 assert that they have ceased to be chattels, and that, on the 
 contrary, an article which is affixed to the land, even slightly, 
 is to be considered as part of the land, unless the circumstances 
 are such as to show that it was intended all along to continue 
 a chattel; the onus lying on those who contend that it is a 
 chattel " C^). The general principle on which the law pro- 
 ceeds is quicquid plantatur solo, solo cedit, i.e., whatever is 
 affixed to the realty is thereby made parcel of it, and partakes 
 of all its incidents and properties. This " hard maxiiu " of our 
 law was recently considered by the House of Lords, when Lord 
 Blackburn said that it was much too broadly stated, even as 
 the general rule. In this case the present law was stated to be 
 that where a person, him.^elf the owner of the fee, has annexed 
 any chattels of his own to his own land, he does not always 
 cause the property in the chattels to cease to be personalty. 
 No doubt he generally intends to make them part of the in- 
 heritance, and when he does so intend there can be no question 
 that on his death before severance the heir takes, and not the 
 executor; but the rule, like all other rules, has received from 
 time to time judicial modifications to suit the exigencies of 
 modern life and modern progress, and numerous exceptions and 
 qualifications have been grafted on it in favour of trade, 
 agriculture, and in furtherance of the rights of creditors (3). 
 
 Eeal and personal property differ in certain essential par- 
 ticulars, which may be shortly stated as follows : 
 
 (1) The most important distinction which exists between 
 
 (') Aa between the devisee and the 
 executor these crops are however- 
 regarded (unless the contrary inten- 
 tion clearly appears by the will) as 
 real property : Cooper v. Worlfitt, 
 2 Hurl. & TSr. 122. 
 
 {') Holland v. Hodgson, 41 L. J. 
 C. P. UP ; L. U. 7 0. P. 328 ; ChidUy 
 
 V. Churchwardens of West Ham, 32 
 L. T. (K.S.) 486 ; O-oss v. Barnes, 46 
 L. J. Q. B. 479; 36 L. J. 693. 
 
 C) Wake V. Hall, 8 App. Cas. 195, 
 203, 211; and see the cases on the 
 subject of fixtures reviewed under 
 Elwes V. Maioe, Smith's Leading 
 Cases. 
 
property. 
 
 Chap. I.] DIFFERENT CLASSES OF PROPEBTY. 7 
 
 real and personal estate is in respect of descent in case of Distinc- 
 in testacy. Eeal property, upon the death of the owner intestate, ^"."^ ^ 
 descends to the heir (see jpost, p. 50, et seg.). Personal property, real and 
 on the other hand, upon the death of the owner intestate, if he P^i'son^l 
 be domiciled in England, goes to an administrator appointed by 
 the Court, to be distributed according to the provisions of the 
 Intestate's Estates Act, 1890, and the Statutes of Distribu- 
 tions (jpost, p. 341, et seq. Q)). A similar distinction occurs as 
 regards property given by will. Eeal property passes at once 
 to the devisee, while personal property passes in the first 
 instance to the executor of the will, and through him to the 
 legatee. 
 
 (2) A further distinction is with regard to the interests recog- 
 nised in the law which can be enjoyed in real and personal 
 estate. 
 
 The first lesson, said the late Mr. Joshua Williams, to be 
 learned on the nature of real property is this — that of such 
 property there can be no such thing as an absolute ownership ; 
 the utmost that can be held or enjoyed in real property is an 
 estate. With regard to personal property, however, the primary 
 rule is precisely the reverse. Such property is essentially 
 the subject of absolute ownership, and cannot be held for any 
 estate. 
 
 Practically, however, as pointed out by Mr. Watson, by means 
 of trusts, estates and interests in personal propertj'- may be 
 created which to a great extent correspond to similar interests 
 in real estate. Thus for instance in wills personal property 
 may be given upon trust for one person for life with remainders 
 over, and to such bequests effect is duly given by the Courts (2). 
 
 (3) The law with regard to real estate is the lex situs, or lex 
 loci rei sitse, i.e. the law of the country where the property is 
 situated. Both as regards the capacity of transferring and the 
 necessary forms to effect the transfer of real estate, the law of 
 the country of which the land is an integral part is alone 
 competent to speak. Eeal Property, says Mr. Jarman, is 
 generally governed by the lex loci rei sitae ; and, hence, the 
 place where a will happens to be made, and the language in 
 which it is written are wholly unimportant, as affecting both its 
 construction and the ceremonial of its execution ; the locality 
 of the devised property is alone to be consider, d. Thus a will 
 made in Holland and written m Dutch must, in order to operate 
 
 (') 53 & 54 Vict. c. 29 ; 22 & 23 (_^) "Watson's Compendium of 
 
 Car. 2, 0. 10; 1 Juc. 2, u. 17, =. 7. Equity, vol. i. 2ad eJ. p. 197. 
 
8 BEAL PROPERTY. [Book I. 
 
 Distinc- on lands in England, contain expressions which, being translated 
 
 between ^°*° °^'' language, would " comprise and destine " the lands in 
 
 real and question, and must be executed and attested in precisely the 
 
 personal game manner as if the will were made in England 0). 
 
 property. . ° ^ ' 
 
 The law with regard to personal estate, on the other hand, 
 proceeds on the maxim, Mobilia sequuntur personam, i.e. movable 
 property follows the person of the owner. Accordingly the law 
 as to the descent of personal property is governed by the law of 
 the domicil (^). 
 
 (4) Contracts with regard to personal property are construed 
 according to the lex loci contractus, i.e. the law where the con- 
 tract is made, unless the contract is to be performed somewhere 
 else, when it is governed by the lex loci solutionis, i.e. the law of 
 the place where the contract is to be performed. 
 
 (5) Personal property is liable in general to be applied in 
 payment of the deceased owner's debts in priority to his real 
 property. (See under Administration, post, p. 549). 
 
 (6) Probate duty is payable in respect of personal property, 
 but not in respect of real property. 
 
 (7) Another important distinction between real and personal 
 is that wills of real estate are more strictly construed than those 
 which deal with personal property. This distinction was 
 pointed out by the late Master of the EoUs, Sir George Jessel, 
 in the following manner : — " In real estate wills, as I have often 
 
 'said, and I will now repeat, I do not feel myself to have the 
 . same liberty as regards construing a will according to its mean- 
 ing, as I have in the case of what are commonly called personal 
 estate wills, and for this reason. Land in this country is held by 
 title, and the very complicated and curious law affecting real 
 estates depends almost entirely on judicial decisions as to the 
 construction of particular instruments — I mean as regards the 
 effect of limitations — and any judge who attempted to interfere 
 with the authorities by starting anew, and giving a new con- 
 struction to a will, because he thought it expressed something 
 different, would be in fact legislating and making new laws as 
 regards real property, which no judge has a right to do, and 
 which would do infinite mischief if he were right in his con- 
 clusion that the original meaning of the words was different 
 from that which they had been taken to bear by a long or an old 
 course of decisions " (^). 
 
 0) Jarman on Wills, 4th ed. p. 1. foH, 39 Oh. D. 600. 
 
 O Doglioni v. Ch-ispin, L. E. (3) Mihe v. Barford, 12 Gh D 
 
 1 H. L. 301; and see Chatfield v. 691,698 ^"^^J'""'' ^^ Wi. i>. 
 
 BercMoMt, L. E. 7 Ch. 192 ; Ee Tru- 
 
Chap. I.] DIFFEBENT CLASSES OF PROPERTY. 9 
 
 In a still more recent case (i) attention was expressly directed 
 to the establislied rules on the question of the construction of 
 wills relating to real property, with, regard to which it was 
 said that the cases have always had greater attention given to 
 them than in the case of personalty, because land in England 
 passes by title, and it has always been the habit of the lawyers 
 and judges to look with- greater strictness to the reported cases 
 where it is a question of land than where it is a question of 
 personalty. 
 
 In the following pages we shall begin with the consideration 
 of the subject of real property, which, though possibly not more 
 important than that of personal property, is certainly much more 
 complicated and difficult. It must be borne in mind that the 
 real property law of England had its origin at a time when land 
 and its rents and profits constituted nearly the whole tangible 
 wealth of the country, and when personal propeity was of com- 
 paratively little importance, and that, although the law as to 
 leal property has been considerably simplified, and in some 
 respects assimilated to that of personal property, the bulk of the 
 law peculiar to real property is still large and important (^). 
 In some cases, as, for instance, with regard to executory interests 
 {post, p. 71), and wills (post, p. 157), the two subjects of real 
 and personal property wUl be treated together. 
 
 In dealing with the subject of real property, we shall first 
 consider the property itself and how it may be held, and then 
 the various modes in which it may be disposed of by its owners. 
 
 (') Be Bright Smith. Bright 31i, 318. 
 Smith V. BHght Smith, 31 Oh. D. Q) Challis's Real Property, p. 1. 
 
( 10 ) 
 
 CHAPTER II. 
 
 History of 
 the law 
 of real 
 property. 
 
 Tenures xsh Estates. 
 
 It has already been pointed out (ante, p. 6) that one of the 
 distinctions which exist in English law between real and per- 
 sonal property, is that real property is essentially the subject 
 of tenure, and that " estates " are " held " in it. The object of 
 the present chapter is to consider briefly the subject of tenure, 
 and the various interests technically called " estates " (post, 
 p. 14) which are " held " in real property. 
 
 The history of the law of real property, as has been pointed 
 out by an eminent writer, may be considered under three great 
 main divisions (}). The first division embraces the period of 
 feudal ascendency, when the system of tenures flourished, severe 
 and pure, without any tincture of equitable doctrines. The 
 second division exhibits the rise and progress of equitable 
 interests under the name of " uses." 
 
 The third, and for practical purposes infinitely the most im- 
 portant, division compriees the following subjects — 
 
 (1) The adoption into our legal system of modes and forms 
 of conveyance founded on the " use," by which greater flexibility 
 was introduced into dealings with real property, and new capa- 
 bilities imparted to the legal dominion (post, p. 17) j 
 
 (2) The gradual development of the great system of trusts, of 
 which we shall speak hereafter when we treat of the business 
 specially assigned to the Chancery Divisiim of the High Court of 
 Justice, a system by which the strictness of tenure was to a 
 great extent evaded (post, p. 16, et seq.) (2); 
 
 (3) The changes introduced to some extent by judicial 
 decision, but chiefly by statute into the law of property. 
 
 The grand characteristic of real property, says Mr-. Hayes, 
 was Tenure. Tenure denoted " the specific feudal relation sub- 
 
 (') Hayes on Conveyancing, p. 1. 
 
 (^) Hayes on Oouveyanoing, p. 2, 
 et seq. ; Challis' Eeal Property, p. b. 
 Tenure is baoed on the theory of 
 acknowledgmeut of a higher and 
 
 paramount order of ownership in 
 another, and it implies the rendering 
 to that other of some service in return 
 for the limited proprietorship it con- 
 cedes : Goodeve, p. 17. 
 
Chap. II.] TENURES AND ESTATES. 11 
 
 sisting between the lord and the tenant," or, in other words, the 
 holding of land of a superior owner or lord by service, real or 
 nominal, rendered by owner or tenant to the lord. 
 
 The origin of the various tenures of land in this country is Origin of 
 well described by the learned writer from whom we have ^''"''^^• 
 already quoted. The chief who received a grant of land dedi- 
 cated the greater portion to arms and ambition, parcelling it 
 out among his voluntary followers in the field, to be held on 
 the honourable condition of military service ; another portion 
 he allotted to an inferior yet not degraded caste, to be held in 
 socage (^), and the resiilue he retained to be cultivated by his 
 villeins or serfs, who were attached to the soil, rather by the 
 chain of slavery than by the bond of tenure. Prom the former 
 two classes have proceeded the freeholders ; from the latter, the 
 copyholders of the present day (^). 
 
 It is a fundamental principle of English law that there is no 
 such thing as absolute ownership of land ; all lands in England 
 are held, either mediately or immediately, from the king. To 
 the Crown belongs the ultimate title to the soil, as lord 
 paramount (^). This right of the Crown, however, only comes 
 into practical operation in case of escheat which occurs when 
 a tenant in fee simple dies intestate, and there is no one who 
 can succeed to the estate as heir. Escheat formerly occurred 
 also on the tenant's conviction of felony, but this was abolished 
 by statute in the j'ear 1870 (''). See, as to esahea,t, jpost, p. 55. 
 
 The law on this subject was stated by the Lord Chancellor in 
 1883, as follows :— 
 
 " All land in England, in the hands of any subject, was holden 
 of some lord by some kind of service, and was deemed in law to 
 have been originally derived from the Crown, ' and therefore 
 the king was sovereign lord, or lord paramount, either mediate 
 or immediate, of all and every parcel of land within the realm.' 
 The king had dominium directum, the subject dominium utile. 
 The word ' tenure ' signified this relation of tenant to lord. 
 Free or common socage was one of the ancient modes of tenure 
 Q A man might hold of his lord by fealty only, and such tenure 
 is tenure in socage,' Litt. sect. 18) which by the statute of 
 12 Car. 2, o. 24, was substituted throughout England for the 
 
 (') The derivation of the word It wag called " free socage " because 
 
 " socage " is, aoourding to some the owners were freemen, 
 
 authorities, the Saxon word " soo," (^) Hayes' Introduction to Convey- 
 
 signifying a " liberty," or " privi- ancing, p. 6. 
 
 lege " J according to others, a Frenoh (') Goodeve, Keal Property, p. 36. 
 
 word signifying "a plough-share." (') HS & 34 Vict. o. 23. 
 
12 SEAL PB.OPEHTY. [Book I. 
 
 former tenures hj knight service and by socage in capite of the 
 king, and relieved from various feudal burdens. Some, how- 
 ever, of the former incidents were expressly preserved by that 
 statute, and others (escheat being one of them), though not 
 expressly mentioned, were not taken away " (^). A great portion 
 of the learning with regard to the many intricacies and oppres- 
 sive incidents of tenure is now, however, happily obsolete. 
 
 By an Act passed in 1660, immediately after the Eestoration 
 of Charles II. (12th Charles 2, cap. 24 (^)), the Court of Awards 
 and Liveries was abolished, and all wardships, liveries, fines, 
 &c., by reason of any tenure by knight-service, were taken away 
 and all sorts of tenures, held of the king or olhers, were turned 
 into free and common socage, with the exception of tenures iu 
 frankalmoign (jpost, p. 13), copyholds (posi, p. 184), and the 
 honorary services of grand serjeanty (post, p. 12). 
 
 The great division of the land in this country for practical 
 purposes is into (1) freehold, which will be considered in the 
 following chapters: (2) copyhold (jpost, p. 184, et seg.) and 
 (3) leasehold Qpost, p. 112 (fj). 
 Varieties The varieties of tenure, as pointed out by Mr. Joshua 
 
 of tenure. "Williams, which deserve attention relate either, (a) to the 
 persons to whom the estates were granted, or (6) the places in 
 which the lands held are situated. 
 
 The varieties of tenure which relate to persons are grand 
 serjeanty and petit serjeanty. 
 
 Grand serjeanty was an ancient tenure whereby the tenant 
 was bound to do some special honorary service to the king in 
 person, as to carry his banner or sword, or to be his butler, 
 champion, or other officer at his coronation. This tenure was 
 abolished by 12 Car. 2, c. 24 (^), but its honorary incidents are 
 retained. 
 
 Petit serjeanty is another ancient tenure of land which still 
 exists. Lands in petit serjeanty are held by the rendering to 
 the king annually some small implement of war, as a bow, a 
 Bword, a lance, an arrow, or the like. 
 
 The varieties of tenure which relate to places are gavelkind, 
 borough-English, and ancient demesne. 
 
 The chief peculiarity of the custom of gavelkind is that when 
 the owner dies without having made a will the land descends 
 among all the sons equally, and in default of sons, among aU 
 
 (') The Attorney-General of On- Q) By a legal fiction Charles Il.'a 
 
 tario V. Mercer, 8 App. Gas. 767. reien was dated as from the death 
 
 (') Williams on Real Property, of Charles I. in 16i8. 
 Chap. V. 
 
Chap. II.] TENURES AND ESTATES. 13 
 
 the daughters equally. The custom also extends to collaterals, Gavelkind. 
 and in default of children the lands go to all the brothers 
 equally. The issue of a deceased son, daughter, or brother, who 
 if living would have been entitled to a share, are entitled ^er 
 stirpes, i.e. to the share of their deceased parent. The husband 
 is entitled to curtesy (jpost, p. 30), on the death of his wife 
 seised of gavelkind lands, whether he had issue or not, but only 
 to a moiety ; and this right ceases on his marrying again. 
 Another marked peculiarity of this tenure is that an infant of 
 the age of fifteen years can alienate by feoffment (j)ost, p. 83). 
 
 Lands of gavelkind tenure exist almost exclusively in Kent, 
 where all lands are assumed to be gavelkind until the contrary 
 is shown, and it is said that the word " gavelkind " is not pro- 
 perly used of lands outside Kent, even though affected by the 
 custom. Various Acts have been passed fiom time to time, 
 beginning with 31 Hen. 8, c. 3, for the purpose of " disgavel- 
 ling " lands. 
 
 Borongh-English is a custom chiefly affecting lands held by Borough- 
 burgage tenure within certain ancient boroughs and some English. 
 manors ; the descent is to the youngest son, to the exclusion of 
 all other children. There are also certain modifications of this 
 custom extending to females and to collateral descendants ('). 
 Ancient demesne is a tenure existing only in manors which 
 were in the hands of the Crown in the days of Edward the 
 Confessor and William the Conqueror. The better opinion 
 would seem to be that these tenants are freeholders, and they 
 enjoy certain immunities, the chief of which is the right to sue 
 and be sued only in the lord's Court, but this tenure is at the 
 present time unimportant. 
 
 Frankalmoign, or free alms, is the tenure by which the lands Franlcal- 
 of parochial clergy of the Church of England are for the most '""'go- 
 part held. There are no services incident to this tenure ; and 
 as the church has a perpetual existence in its corporate capacity 
 there cannot be any escheat of the land. Hence, though in 
 theory absolute ownership of land is not recognised by law, yet 
 land held by this tenure is in effect held absolutely. 
 
 The word " estate " is used in two significations : (1) its 
 
 (') See further as to other peculiar law, which is only the general custom 
 
 customs of descent : Chiillis, Law of of the realm, would practically cease 
 
 Keal Property, p. 14, where it is to exist ; and see Bieldey v. Bickley, 
 
 pointed out that the restriction upon L. K. 4 Eq. 216, a case of mucti 
 
 the legalityof local oustomsisfounded singularity, where descent was held 
 
 upou the ciinsideration that, if every to mean " a single step in the scale 
 
 trilling locality were indulged in the of genealogy." 
 use of special customs, the common 
 
land, 
 
 14 REAL PROPEETT. [Book I. 
 
 technical sense, viz., the quantity of interest in real property 
 owned by a person; and (2) its popular sense, as the real pro- 
 perty itself. It is of course only with the first of these two 
 significations with which we have now to do (i). 
 Estates in Estates in land may be regarded in four different aspects : — 
 
 1. With regard to the nature of the estate. 
 
 2. With regard to the number and connection of the tenants. 
 
 3. With regard to the quantity or legal magnitude of the estate. 
 
 4. With reference to the time of the enjoyment of the estate. 
 
 1. With regard to the nature of the estate. The estate may 
 be either legal or equitable (jpost, p. 16). 
 
 2. With regard to the number and connection of the tenants. 
 
 The estate may be held (1) in severalty or individual owner- 
 ship, or it may be held (2) in concurrent ownership. In the 
 latter case, it may be held (a) as a joint tenancy, or (6) as a 
 tenancy in common, or (c) in coparcenary Qpost, p. 60). 
 
 3. With regard to the quantity or legal magnitude of the 
 estate. The great division of estates considered with reference 
 to their quantity is into estates of freehold and estates less than 
 freehold. Estates of freehold are: (1) Estates for life; (2) Estates 
 in tail ; and (3) Estates in fee. Estates less than freehold are 
 estates (1) at sufferance, (2) at will, (3) for years. 
 
 Thus, beginning at the lowest and proceeding through all the 
 stages to the highest estate known to English law, we find that 
 the various estates in real property considered with reference to 
 their respective quantities, are — 
 
 (1) Tenancy by sufferance (see infra, on this page) ; 
 
 (2) Tenancy at will (see infra, on this page) ; 
 
 (3) Estates for years (jpost, p. 112) ; 
 
 (4) Estates for life (jpost, p. 22) ; 
 
 (5) Estates in tail Qpost, p. 33) ; 
 
 (6) Estates in fee simple (jpost, p. 43). 
 A tenancy by sufferance is the lowest estate which can subsist. 
 
 It arises where a person has held by a lawful title, and con- 
 tinues the possession after his title has determined, without 
 either the agreement or disagreement of the person then en- 
 titled to the land, e.g., if a man has a lea^e for three years, and 
 he holds over after that is out he is a tenant by sufferance (^). 
 
 A tenancy at will is an estate in land, determinable at the 
 will either of the landlord or tenant. 
 
 Such a tenancy may be granted either by express words, 
 written or orally, or by implication or construction of law. 
 
 (') Wharton's Law Lexicon. (') Doe v. Smaridge, 7 Q. B. 957. 
 
Chap. II.] TENUBE8 AND ESTATES. 15 
 
 4. Estates considered with reference to times of their enjoy- 
 ment are either in possession or in expectancy. 
 Estates in expectancy are either — 
 
 A. In reversion ; 
 
 B. In remainder ; or 
 
 C. Executory estates. 
 
 These estates are treated together hereafter (p. 64, et seq.) 
 under the head of " future estates." 
 
( 16 ) 
 
 Legal 
 estates. 
 
 Equitable 
 estates. 
 
 CHAPTER III. 
 
 Legal and Equitable Estates. 
 
 One of the aspects, as has already been pointed out (ante, 
 p. 14), in whicli the various interests in property may be re- 
 garded, is that denoted by the distinction of estates and interests 
 into " legal " and " equitable." 
 
 The legal estate is that which was prior to the Judicature 
 Act alone recognised in the Courts of law ; the equitable estate 
 is that which was only recognised in the Courts of Equity. 
 
 The distinction between the two classes of estates is pointed 
 out by a well-known text- writer, as follows : — 
 
 1. A merely legal interest is such an interest in or ownership 
 of real or personal property, as is not of a beneficial, but simply 
 of a possessory and fiduciary character. 
 
 2. A merely equitable interest is a beneficial interest in or 
 beneficial ownership of real or personal property unattended 
 with the possessory and legal ownership thereof (^). 
 
 3. An interest both legal and equitable is an interest in or 
 ownership of real or personal property, which confers a right 
 both to the posseshion, and to the beneficial enjoyment of such 
 property, as well at law as in equity. Where the equitable and 
 legal estates are both equal and co-extensive and become vested 
 in the same person in the same right the equitable estate is said 
 " to merge " in the legal. 
 
 The division of the ownership of property into legal and 
 equitable estates or interests arose through the recognition by 
 the early chancellors of uses of land. Uses were originally 
 introduced by the ecclesiastics to avoid the effect of the Statutes 
 of Mortmain which forbade the granting of land to religious 
 houses, and were afterwards adopted by the laity, chiefly in 
 turbulent times, to avoid the penalties of forfeiture for treason. 
 The mode in which this was effected was that conveyances were 
 made to persons to hold to some specific uses, and declarations 
 were then made by the legal owners that they themselves would 
 hold to such uses. These uses were not recognised by the 
 Courts of common law jurisdiction, but were effectual only by 
 the rules of equity administered by the chancellors and were 
 therefore called " equitable " estates. The doctrine of equitable 
 
 (') Smith's Eeal and Personal Troperty, 248. 
 
Chap. III.] LEGAL AND EQUITABLE ESTATES. 17 
 
 interest, says Mr. Hayes (}), was founded on confidence in the '^s^^- 
 person as opposed to the direct dominion over the land. The 
 estate of the old common law proprietor was actual and mani- 
 fest ; the right of the new beneficiary presented nothing either 
 tangible or visible. The legal owner of the land contracted a 
 moral obligation to hold or to dispose of it for the benefit of 
 another, who was said to have the Use. Thus, A. conveyed land 
 to B., to his (A.'s) own use, or to the use of C. This declaration 
 of the use charged the conscience of B., the legal feofiee or grantee, 
 but did not attach itself to the land. The parents of the use, 
 as it was somewhat sarcastically said, were fraud and fear (^), 
 and a Court of conscience was its nurse. 
 
 As the feudal and other obligations which attached to owner- 
 ship at common law did not apply to the use, the creation of a 
 use became a means whereby the benefits of ownership might 
 be secured to a person without any of its burdens. This gave 
 rise to various inconveniences. " The clergy who were pro- 
 hibited (by the laws against mortmain) from purchasing land, 
 but who could now take the profits to any extent without 
 becoming the legal owner of a single rood, increased their 
 possessions. The factious baron vested his estate in a few con- 
 fidential friends, and committed treason with comparative 
 safety. The peaceful proprietor adopting the same precautions 
 enjoyed and disposed of the beneficial interest unvexed by the 
 exactions of the lord, and regardless of the rules of the common 
 law (3)." By way of remedy for this the legislature sought to 
 abolish the system by a single blow. The famous Statute of Statute 
 Uses (27 Hen. 8, c. 10) was accordingly passed in the year " ^^^' 
 1536. This Act provided that whore any person or persons 
 should stand seized of any lands or other hereditaments to 
 the " use, confidence, or trust " of any other person or persons, 
 or body politic, the person or persons or body politic that had 
 any such use, confidence, or trust, i.e., the persons, &c., entitled 
 to the beneficial interest in the property, should be deemed in 
 lawful seizin of the lands and hereditaments for such estates 
 as they had in the use, trust, or confidence. The same section 
 also provided " that the estate, title, right, and possession, that 
 was in such person or persons that were or thereafter should be 
 seized of any lands, &o., to the use, confidence, or trust of any 
 such person or persons, &c., should be from thenceforth clearly 
 
 (') Hayes on Conveyancing, p. 32. and fraud, to defeat dne debts, law- 
 
 (') " Fear," said Lord Coke, " iu ful actions, wards, escheats, moit- 
 
 times of trouble and civil wars to mains." 
 
 save inheritances from being forfeited; (') Hayes on Conveyancing, p. 35. 
 
 VOL. I. C 
 
Case. 
 
 18 SEAL PBOPERTT. [Book I. 
 
 deemed and adjudged to be in him or them that had or there- 
 after should have such use, confidence, or trust, after such 
 quality, manner, form, and condition, as they had had before in 
 or to the use, confidence, or trust, that was in them." The statute 
 thus "executed" the use as it was termed, that is, conTcyed 
 the right to the ownership and possession at common law to 
 the cestui que use, leaving no estate or interest in the person 
 holding to the use. 
 TyrreWs ' Soon after the statute it was decided in Tyrrell's Case that 
 there could not be " a use upon a use " ; so that if land were 
 conveyed to A., to the use of B., to the use of C, the statute 
 executed the use in B. only, and the use declared in C.'s favour, 
 was a nullity at law. This decision, which a great authority 
 tells us must have surprised every one who was not sufficiently 
 learned to have lost his common sense, had the efiect of com- 
 pletely defeating (so far as the Courts of Common Law were 
 concerned) the avowed object of the statute. The Court of 
 Chancery however intervened, and held that, though the use in 
 C.'s favour was void at law, it should be treated as valid in equity, 
 and should create an equitable estate in C. The effect of this 
 doctrine was to defeat the intended operation of the Statute of 
 Uses, by reviving equitable estates in lands to which the 
 statute applied, nothing more being needed for this purpose 
 than the formula of a " use upon a use." 
 
 The statute it will be observed only deals with cases where 
 any person or persons stand seized of any lands to the use, con- 
 fidence, or trust of any other person or persons. It accoidingly 
 does not apply to cases where the person seized and the bene- 
 ficiary are the same person as where the grant is made unto 
 and to the use of A. In such a case A. takes both the legal 
 and the beneficial ownership by the common law, and not under 
 the statute. This doctrine received a very remarkable illus- 
 tration in some cases which came before the Courts in recent 
 years in connection with the subject of election law. In one of 
 these cases the grant of a rent-charge was practically in the 
 form " unto and to the use of A.," in the others the words 
 practically amounted to a grant to A. to the use of B. It was 
 held that in the first case the actual " possession " was to be 
 reckoned only from the date of entry, while in the other two 
 cases the time of possession began to run from the actual date 
 of the grant itself (i). 
 
 e)Orme's Ca,e, L- E 8 C. P. 281 ; 12 Q. B. D. 369 ; in the flvBt of which 
 mdfsM s Case, L. E. 8 C. P. 30fa ; oases the law on the subject is most 
 Lowcock V Overseers of Broughton, elaborately considered. 
 
Chap. III.] LEGAL AND EQUITABLE ESTATES. 19 
 
 The effect of the Statute of Uses must also be considered in Statute of 
 reference to powers of appointment (jpost, p. 175). Thus, if an ^^^*' 
 estate were conveyed to A. and his heirs to the use of such 
 persons as B. should appoint, and B. appoints to C. Here, on the 
 appointment, C. takes the legal estate by force of the statute. 
 
 It has been said that the only practical effect of the Statute 
 of Uses was to add the words " unto and to the use " to every 
 conveyance ; but, as has been well pointed out by Mr. Haynes, 
 two very remarkable results followed from the statute as read 
 in the light of the decision in Tyrrell's case and subsequent 
 cases. 1. Facilities were afforded for creating through the 
 medium of it a variety of legal estates unknown to the common 
 law with all the flexibility and adaptability to circumstances. 
 
 The system of uses revived with a new and more healthful 
 vigour under' the name of trusts. 2. The trust was gradually, 
 though not without a struggle by the end of the reign of 
 Charles II., placed upon a similar though more liberal and more 
 satisfactory footing than the old uses Q"). 
 
 The Statute of Uses was, however, limited in its operation to Statute 
 freeholds, and therefore did not affect uses of copyholds or ^°^^ °°' 
 chattels real. _ copyholds 
 
 In 1876 the question (jame before the House of Lords whether or leaie- 
 the Statute of Uses applied to peerages. This question was 
 answered in the negative. The Lord Chancellor (Lord Cairns) *^'^*g^^- 
 in delivering judgment, said : " According to the doctrine of 
 these uses, the holder of an estate holding it absolutely as an 
 estate at common law, might have imposed upon his conscience 
 a trust which might be made to shift about, and pa.^s from 
 owner to owner. After these uses had prevailed for some time 
 the Statute of Uses was passed, and by it these uses were turned 
 into actual legal estates. But your Lordships will observe that 
 uses never could have had any application to a peerage, because 
 they were originally trusts, and there could be no trust of a 
 peerage which was a personal possession, and could not be held 
 by one person on trust for another" (^). 
 
 Of the rules applicable to equitable estates it must suifice 
 here, when speaking of the subject of property, to say, that 
 speaking generally, they are comprised in the comprehensive rule 
 expressed by the maxim, " equity follows the law," that is, the 
 rules applicable to equitable estates are in general similar to 
 
 (') Haynes, Outlines of Equity, Buchhurst Peerage, I>. E. 2 App. Gas. 
 p. 49. 5tli eriition. 27. 
 
 (^) Per Cairns, L.C., In re The 
 
 C 2 
 
'20 HjEAI PB0PEET7. ' [Book 1. 
 
 those by which legal estates are governed {post, p. 513). It must, 
 however, be borne in mind that for the creation or transfer inter 
 vivos of an equitable estate in land, the formal conveyances 
 applicable to legal estates are not requisite, though, by the 
 Statute of Frauds (29 Car. 2, o. 3), the creation of a trust of 
 land must be evidenced by writing signed by the party creating 
 the same ; and an as>ignment of an equitable interest in 
 property of any kind must also be evidenced by writing signed 
 by the assignor. 
 
 Prior to the Judicature Act, the Court of Chancery alone 
 had jurisdiction in regard to equitable estates. But that Act 
 provided (jpost, p. 351, et seq.) that equitable estates and rights 
 shall be recognised and taken notice of by all Courts, and that 
 in case of conflict between common law and equity, the latter 
 shall prevail Q-). 
 
 The Court of Appeal, however, lately held, that though 
 since the Judicature Act the Court administers and deals with 
 the rights of parties, having regard both to law and equity, 
 the legal estate and the equitable estate are still separate and 
 distinct (^). " It has been argued before us," said" one of the 
 judges of the Court of Appeal, "that the difference between legal 
 and equitable interests has been swept away by the Judicature 
 Acts. But it was not intended by the legislature, and it has 
 not been said, that legal and equitable rights should be treated 
 as identical, but that the Courts should administer both legal 
 and equitable principles. I think that the clause enacting that 
 the rules of equity shall prevail shows that it was not intended 
 to sweep away altogether the principles of the common law." 
 
 " It was contended," added another of the Lord Justices, "that 
 the effect of the provisions of the Judicature Acts, 1873 and 1876, 
 was to abolish the distinction between law and equity. Certainly 
 that is not the effect of those statutes, otherwise they would 
 abolish the distinction between trustee and cestui que trust." 
 
 It was an old established principle of the common law that a 
 man could not convey property, whether real or personal, to 
 himself, and on a similar principle a man might not grant nor 
 give his tenements to his wife during the coverture, for that 
 his wife and he be but one person in the law. Both these rules 
 were evaded, so far as real estate was concerned, by conveyances 
 under the Statute of Uses. The Conveyancing Act, 1881, s. 50 
 
 Q) 36 & 37 Vict. o. 66, es. 24, 25. the legal estate and interest, without 
 
 O Clements v. Matthews, 11 Q. B. notice was allowed to prevail over a 
 
 T)iv. 808, 814 ; Joseph v. Lyons, prior equitable interest 
 
 15 Q. B. Div. 280, 286, 287, where 
 
Chap, in.] LEGAL AND EQUITABLE ESTATES. 21 
 
 now provides with regard to conveyances made after the com- 
 mencement of the Act, Jan. 1, 1882, that freehold land or a 
 thing in action may be conveyed by a person to himself jointly 
 with another person, by the like means by which it might be 
 conveyed by him to another person ; and may, in like manner, 
 be conveyed by a hnsband to his wife, and by a wife to her 
 husband alone or jointly with another person (i). 
 
 (') 44 &, 45 Viot. e. 41, s. 50 ; see note thereon in Clerks and Brett's Con- 
 veyaucing Acts, &c., Srd&d. p. 191. 
 
( 22 ) 
 
 CHAPTEE IV. 
 
 Estates fob Life. 
 
 Definition. An estate for life is an estate held or capable of being held 
 during the subsistence of a life or lives, and not limited in 
 duration to a fixed period. The life may be either that of the 
 tenant or that of another person. An estate to a person for his 
 own life or for the life of another is an estate of freehold, and is 
 in the eyes of the law a larger estate than any estate for years. 
 A grant to A. for 999 years, if he shall so long live, or if B. 
 shall so long live, is only a chattel interest, and less than an 
 estate of freehold, because a fixed period is limited when the 
 estate must determine. 
 
 An estate for a person's own life may be either absolute, as 
 upon a conveyance or devise to A. for life, or it may be made 
 determinable on a contingency, and its duration may be limited 
 to some uncertain period included in the life ; as example, if an 
 estate be given to a woman " as long as she remain single," or 
 '■ during widowhood " (^). 
 
 An estate for the life of another, or for an uncertain period 
 included in another life, as when land is granted to A. to hold 
 during the life of B., or during B.'s widowhood, is called dis- 
 tinctively an estate pur autre vie. The person during whose life 
 the estate is held is called the cestui que vie. Where an estate 
 pur autre vie is granted to A. and his heirs, or to A. and the heirs 
 of his body, on his death his " heirs," or " heirs of his body," 
 as the case may be, are said to succeed to the estate p>ur autre 
 vie as " special occupants," that is, persons specially nominated 
 to the grant of the estate, and not as persons taking by descent 
 from the grantee. An estate pur autre vie limited to a person 
 and the heirs of his body is called a quasi entail (post, p. 41 (2)). 
 Creation of Estates for life are either created by some legal instrument, 
 e.g. a deed or will, in which case they are sometimes called, 
 " conventional or contractual," or arise by mere operation of law. 
 
 The estates for life which arise by operation of law, are : 
 
 (1) The Widow's Dower estate (jiost, p. 30). 
 
 (') Goodeve's Real Property, 2nd (^) See, us to the devolution of an 
 
 ed. p. 40; Tudoi's Leading Cases in estate pur autre vie afte^i the death of 
 Eeal Property, p. 19, 3rd edition. the tenant for life, post, p. 31. 
 
 estates for 
 life, 
 
Chap. FV.] ESTATES FOR LIFE. 23 
 
 (2) The Husband's estate, as tenant by the curtesy (post, p. 30). 
 
 (3) The estate of a tenant in tail after possibility of issue 
 extinct (jpoit, p. 33). 
 
 A grant of land to a person without anything more, confers 
 upon him only an estate for life. The reason for this is that 
 the old feudal rule by which gifts were strictly interpreted, 
 and limited precisely to the exact terms of the grant, had on 
 this point been so long and so firmly established before the 
 subsequent rule, that " every grant is to be taken as strongly as 
 possible against the grantor," had been recognised by the law, 
 that it prevails even at the present day {}). Thus a conveyance 
 to a man or his heirs, or to a man and his successors, only 
 conveys a life interest. It should, however, be borne in mind 
 that the word " heirs " is not essential in an agreement for the 
 purchase of land. A conveyance to a corporation ought to be 
 made in the form to A. and his successors. A conveyance, how- 
 ever, to a corporation aggregate, consisting of many capable 
 persons, as to a dean and chapter, is effectual to pass the fee 
 simple without the word " successors," the reason being that 
 the body never dies, but when the conveyance is to a bishop, 
 parson, or any other sole corporation, " having a successor after 
 his decease," nothing passes but a life estate, unless the word 
 " successors " be employed (^). 
 
 As this rule, however, was found to defeat the intention of Wills Act. 
 persons making wills, it has been enacted by the Wills Act 
 that a devise to a person without any words of limitation will 
 pass the fee simple or other the whole estate of the testator, 
 unless a contrary intention appear by the will (f). 
 
 A tenant for life is bound, as a general rule, to keep down 
 interest on mortgages and ascertained charges. That liability, 
 as was stated in a case when the law on the subject was con- 
 
 (') Williams on Real Property, the meaning of the instrument ao- 
 
 16tli edition, p. 23. It must, however, cording to the ordinary and proper 
 
 be borne in mind that it is, to say tbe rules of construction. If we can thus 
 
 least, extremely doubtful whether the find out its meaning we do not want 
 
 maxim that any grant is to be taken the maxim. If, on tlie other hand, we 
 
 as strongly as possible against the cannot find out its meaning, then the 
 
 grantor can be regarded as sound instrument is void for uncertainty, 
 
 law at the present day. On this and in that case it may be said that 
 
 subject the late Sir George Jessel the instrument is construed in favour 
 
 made the following important obser- of the grantor, for the grant is 
 
 vations : — " I do not see how, accord- annulled " : Taylor v. Corporation of 
 
 ing to the now established rules of St. Helens, 6 Oh. D. 270. 
 
 construction, as settled by the House (^) Co. Litt. 8 b ; Tudor's Leading 
 
 of Lords, that maxim can be con- Cases, 3rd ed., p. 716. 
 
 Bidered as having any force at the (') 1 Vict. c. 26, s. 28. 
 present day. The rule is to find out 
 
24 
 
 REAL PROPEBTY. 
 
 [Book I. 
 
 Mortgages 
 
 aud 
 
 charges. 
 
 Em- 
 blements. 
 
 sidered, is in harmony with the settled principles and rules of 
 the Court (}). The same principle applies to a tenant by 
 curtesy, and a tenant in dower, so far as her one-third interest 
 is concerned. The Land Charges Eegistration and Searches 
 Act, 1888 (51 & 62 Vict. c. 51, s. 10"), provides that a registry 
 of land charges shall be kept at the oiSce of Land Eegistry, and 
 that land charges may be registered therein in the prescribed 
 manner. In the case of freehold land, in the name of the 
 person beneficially entitled to the first estate of freehold at the 
 time of the creation of the land charge. 
 
 V\ hen a mortgage or a charge is paid off by a tenant for life 
 without any expression of his intention, he retains the benefit 
 of it against the inheritance. Although he has not declared 
 his intention of keeping it alive, it is presumed that his in- 
 tention was to keep it alive, because it is manifestly for his 
 benefit (2). Under the Settled Land Act, 1890, a power is 
 conferred upon a tenant for life of raising money by mortgage ■ 
 of the fee simple or otherwise for the purpose of discharging an 
 incumbrance on the settled land or part thereof (^). See post, 
 p. 38, as to the rule when a charge is paid off by the owner of 
 an estate of inheritance. 
 
 On the death of a tenant for life his personal representatives 
 are entitled to emblements (ante, p. 5). When the estate of a 
 person holding under a tenant for life comes to an end through 
 the determination of the estate of the tenant for life, the 
 undertenant is entitled to emblements. It is, however, provided 
 by a statute of the present reign (*) that where the lease or 
 tenancy of any farm or lands held by such a tenant shall 
 determine by the death or cesser of the estate of any landlord 
 entitled for his life, or for any other uncertain interest, instead 
 of claims to emblements, the tenant shall continue to hold and 
 occupy such farm or lands until the expiration of the then 
 current year of his tenancy. 
 
 Our law proceeds upon the principle laid down by Lord 
 Mansfield in the leading case of Wigglesworth v. Dallison (=), that 
 it is just and for the benefit of agriculture that he who sows 
 should be allowed to reap, or that, at all events, his estate 
 should be entitled to the benefit of his outlay. Accordingly, if 
 a tenant for life sows land, and his estate comes to an end, his 
 
 C) Per Hall, V.-O., in Marshall v. 
 Orowthdr, 2 Ch. D. 199, where the 
 principle as to personal estate was 
 extended to real estate. 
 
 (^') Adams v. Angell, 5 Ch. Div. 
 6;!4, 645. 
 
 (') 5S & .^4 Vict. 0. 69, s 11. 
 
 (0 14 & 15 Vict. 0. 25. 
 
 Douglas' Eeports, I., 201 ; 1 
 Smith's Leading Cases, 9th ed. 
 p. 569. 
 
CnAP. IV.] ESTATES FOR LIFE. 25 
 
 personal representatives are entitled to come on the land and 
 take away the crop which he has sown, if it be of such a 
 nature as bears an annual profit, e.g., corn, hemp and flax, and 
 he has also liberty to enter upon the land and carry them away. 
 This right, however, does not extend to things which the 
 tenant has planted, not bearing an annual profit, such as young 
 fruit trees, oaks, ashes, elms, or the produce of acorns which the 
 tenant may have sown Q-). Should, however, the estate de- 
 termine by the tenant's own act, as for instance, if a widow 
 entitled to a life estate determinable on her second marriage 
 should marry again, the tenant is not entitled to the crop. 
 
 At common law, and independently of statute, when the Appnrtion- 
 estate for life determined, no rent was payable by the under- ^^'^^ ^<=t- 
 tenant to anybody from the last rent day to the day of the 
 death of the tenant for life. This difficulty has been dealt 
 with by various statutes (f), ending with the Apportion- 
 ment Act, 1870 (^), which provides that all rents, annuities, 
 dividends, and other periodical payments in the nature of 
 income (whether reserved or made payable under an instrument 
 in writing or otherwise), shall, in the absence of express stipu- 
 lations, be considered, like interest on money lent, as accruing 
 from day to day, and shall be apportionable in respect of time 
 accordingly (*). 
 
 A tenant for life, even if impeachable for waste, is entitled to Estorers. 
 " estovers " (^). These are housebote, or a sufficient quantity of 
 wood for the fuel and repairs of his house. Ploughbote, suffi- 
 cient wood for making and repairing agricultural implements ; 
 and haybote, for repairing fences. The "estovers" must, how- 
 ever, be reasonable, and must not be applied for any other 
 purpose. 
 
 (') Co. Litt. 55a, 55b, cited in seemed to be some fatality about 
 
 Tudor's Leading Oases on Real Pro- Apportionment Acts, for even this 
 
 perty, 3rd ed. p. 103, wliich see. last one, though intended to settle 
 
 (*) 4 & 5 Wm. 4, 0. 22 ; 11 Geo. 2., all questions, is drawn in a very odd 
 
 u. 19. See as to incoming and out- way. And see as to what is and is 
 
 going tenants : Mansel v. Norton, not apportionable : Jones v. Ogle, 
 
 22 CI). D. 769 ; Woodfall's Landlord L. B. 8 Oh. 192 ; Whitehead v. 
 
 and Tenant, 14th ed. p. 774. Whitehead, L. E. 16 Eq. 528 ; Folloch 
 
 (0 33 & 84 Vict. c. 35. v. Pollock, L. R. 18 Eq. 329 ; In re 
 
 C) In In re Cfriffith, 12 Ch. D. Cox's Trusts, 9 Ch. D. 159. See alsb 
 
 655, it was laid down that the word Oapron v. Capron, L. R. 17 Eq. 288; 
 
 "dividends" in the Act includes In re Oliver's Estate, L. E. 18 Bq. 
 
 payments by way of bonus or surjilus 213 ; Hasluclc v. Pedley, L. R. 19 Eq. 
 
 profits to the shareholders of a public 271 ; Constable v. Constable, 11 Ch. D. 
 
 company, even though such pay- 681 ; Laurence v. Laurence, 26 Ch. D, 
 
 ments may be only occasional and 795. 
 
 not strictly periodical. In tijia case (') From the French word, mean- 
 Sir GeorKO Jessel said tliat there ing to furnish. 
 
26 MEAl PROPERTT. . [Book I. 
 
 Title- A legal tenant for life of freeholds is entitled to the custody 
 
 '^^'^'- of the title-deeds as a matter of right, except in cases where he 
 
 has been guilty of misconduct, so that the safety of the deeds 
 has been endangered, or where the rights of others intervene, 
 and it becomes necessary for the Court to take charge of the title- 
 deeds in order to carry out the administration of the property Q). 
 In a case which came before the Court of Appeal in 1884, the 
 following somewhat peculiar question arose with regard to the. 
 custody of title-deeds. A lady was legal tenant for life of 
 certain lands, and as it was not settled to her separate use, her 
 husband in her right would have been entitled under ordinary, 
 circumstances to receive the rents, and to have possession of 
 the title-deeds during the coverture. The husband became a. 
 bankrupt, and there was evidence that the wife was about to 
 apply to the Divorce Court for a dissolution of the marriage. 
 The Court decided that under these circumstances the title- 
 deeds ought not to be delivered to the husband's trustee in 
 bankruptcy, but ought to be retained in Court (2). 
 
 A change which may be in some cases of considerable import- 
 ance with regard to the position of a tenant for life is intro- 
 duced by the Agricultural Holdings Act, 1883. A " landlord" 
 is defined in relation to a holding to mean any person for the 
 time being entitled to receive the rents and profits, and the 
 Act provides that any "landlord," on paying compensation 
 or executing improvements as therein mentioned, is entitled to 
 obtain a charge on the holding for the amount so paid or 
 expended (^). 
 
 It is a principle of our law nemo dat quod non habet, i.e., no man 
 can give that which he does not possess (post, pp. 241, 256). 
 Accordingly, independently of statute, a tenant for life can 
 only alienate to the extent of his estate, so that no lease or other 
 estate granted by him can be effectual after the determination 
 of his life interest. He was further limited with respect to 
 improving the estate as in the absence of some special provision 
 all improvements were at his own cost. 
 Settled The powers of a tenant for life under a " settlement " are now 
 
 very greatly enlarged by the Settled Land Act, 1882, amended by 
 the Acts passed in 1884, 1887, lfc89, and 1890 (*). A settlement 
 
 C) Leathes v. Leathes, 5 Ch. D. 769. 
 221-222; Be Pyatt, 26 Ch. D. 31. (*) 45 & 46 Vio+ c. 38; 47 & 48 
 
 O Ex parte Rogers. Be Pyatt, 26 Vict. 0. 18; 60 & 51 Vict. 0. 30 s 8- 
 
 Oil. D. 31. 52 & 53 Vict. c. 36; 53 & 54 Viet' 
 
 46 & 47 Vict. c. 61, s. 29 ; which c. 69, to be cited as " the Settled 
 
 see as to exhausted improvements ; Land Acts, 1882 to 1890." 
 and see Hansel v. Aorton, 22 Ch. D. 
 
Chap. IV.] ESTATES FOR LIFE. 27 
 
 is defined, for the purposes of the Act, in the most compre- Settled 
 hensive language to include " any deed, will, agreement for a 
 settlement or other agreement, covenant to surrender, copy of 
 Court Eoll, Act of Parliament, or other instrument, or any 
 number of instruments," under or hy virtue of which any land, 
 or any estate or interest in land, stands for the time being 
 limited to or in trust for any persons by way of succession, and 
 this definition is expressly made retrospective so as to include 
 all settlements whatever their date may be. The object of these 
 Acts has been judicially stated to be " to confer upon the 
 present generation of landowners the means of alienation which 
 they had become deprived of in the process of time by the 
 ingenuity of conveyancers. It enables tenants for life to sell, 
 and thus to take settled land out of settlement, and substitute 
 for it its value in pounds, shillings, and pence, to partition, 
 lease, and otherwise dispose of settled land freed from the re- 
 strictions which, by the general law previously existing, and by 
 the numerous statutes applicable to the subject, had up to the 
 time of passing the Act, prevented tenants for life from so 
 dealing vdth settled land " (^). For the present it may be 
 sufScient to point out that the tenant for life has not only 
 power to sell, enfranchise, exchange, and make partition, but 
 also to grant building, mining, and other leases, execute 
 improvements authorised by the Act, raise money by mortgage 
 for the discharge of incumbrances on the settled land or any 
 part thereof, &c. (jpost, p. 147). It must also be borne in mind 
 that the powers conferred upon the tenant for life are also 
 enjoyed by a great number of other persons {post, p. 146), as if 
 each of them were a tenant for life as defined in the Settled 
 Land Act. The provisions of these Acts are so important that 
 it has been deemed advisable to devote a portion of a separate 
 chapter to their consideration {post. Chapter XII.). 
 
 A tenant for life is entitled to all the ordinary fruits and Waste, 
 profits of the land. But he is liable to succeeding owners of 
 the land for voluntary waste, unless his estate has been granted 
 to him expressly " without impeachment of waste," in which 
 case he is liable only for what is called " equitable waste." 
 Waste is the destruction or material alteration of things formerly 
 an essential part of the inheritance, as houses, timber, &c. The 
 opening of new mines is waste, but not the working of old ones. 
 
 (') Cardigan v. Ourzon-Howe, 30 of Newcastle's Estate, 24 Gh. D. 129 ; 
 
 Ch. D. 536 ; see In re Glitheroe Estate, In re Chaytor's Settled Estates Act, 25 
 
 31 Ch. Div. 135 ; Wlieelwright v. Ch. D. 651 ; In re Jones, 26 Oh. Div. 
 
 Walker, 23 Oh. D. 752 ; In re Duke 738. 
 
28 EEAL PS FEB TV. [Book I.. 
 
 Waste. It is laid down by text boots of great autbority, following 
 Lord Coke, that it is waste to build a new bouse, and to pull it 
 down again is waste also, but it was decided by Sir George 
 Jessel in 1875, in a well-known case, that the lessee of land^ 
 who erects a building thereon, without the consent of his lessor, 
 does not commit waste unless it can be shown that such build- 
 ing is an injury to the inheritance Q). Waste is either 
 voluntary or permissive (^). 
 
 Waste is voluntary when it consists in acts. The chief 
 instances of such waste being the felling of timber, destroying 
 or damaging buildings, opening mines or pits, or changing the 
 course of husbandry. 
 
 Permissive waste consists in that passive line of conduct 
 which permits decay rather than be at the trouble or cost of 
 preventing it — e.g., suffering buildings about the premises to 
 fall into ruin. 
 
 Courts of Equity, as was said by Lord Bramwell in a cele- 
 brated case, have always declined to interfere against mere per- 
 missive waste, and now, under the Judicature Acts, in all cases 
 of conflict the rules of equity are to prevail. It has accord- 
 ingly been decided that a tenant for life is not liable for mere 
 permissive waste (^). 
 
 Formerly by the operation of certain conveyances which were 
 said to have a " tortious operation," viz., feoffments, fines, and 
 recoveries, a tenant for life might grant the fee, but fines and 
 recoveries are now abolished (3 & 4 Wm. 4, c. 74) ; and it is 
 
 (') Burton's Law of Eeal Property, is void), tenants in tail, tenants in 
 
 p. 235 ; Jones v. Ohappdl, 20 Eq. 539 ; fee simple unless copyholders. Shear- 
 
 and see as to ameliorating waste : wood's Keal Property, 3rd ed. p. 31. 
 Doherty v. AlVman, 3 App. Gas. 709. (') Powys v. Blagrave, 4 De Gr. 
 
 {') The different classes of persons M. & G. 448 ; Barnes v. DowUng, 
 
 who may or may not commit the dif- 44 L. T. 809, and cases there cited ; 
 
 ferent kinds of waste fall naturally Be Cartvmght, W. N. (1889) 101 ; 
 
 under four graduated groups, viz. : — Edwards' Compendium, 61 ; see also 
 
 (1) Those who may not commit any Woodhouse\. Walker, 5 Q. B. X>. 404, 
 waste whatever, tenants at sufferance, and as to the liability of a tenant for 
 bishops, parsons, vicars, and other . years for permissive waste : Daviesy. 
 ecclesiastical persona andcopyholders; Davies, 38 Oh. D. 499. In a case 
 
 (2) Those who may not commit volun- decided in 1889, In re Cartwriglit, 
 tary, hut are not liable for mere per- Avis v. Newman, 41 Ch. D. 532, 
 missive waste, tenants at will, tenants Kay, J., said tliat from the time of 
 for years, not being bound to repair, the statutes of Marlborough (52 Hen. 
 tenants for life impeachable of waste; 3), and of Gloucester (6 Edw. 1, 
 
 (3) Those who can commit legal but c. 5), to the present day it could not- 
 not equitable waste, tenants in tail be shown that damages had ever been 
 after possibility of issue extinct, recovered by a remainderman against 
 tenants in fee subject to an executory the executor of a tenant for life on 
 devise over, tenants for life without the ground of permissive waste, and 
 impeachment of waste ; (4) Those who such authority as there was upon the 
 can commit any waste (and even a subject was against t)ie existence of 
 bond to restrain them fiom doing ao sucuaright. 
 
Chap. IV.] ESTATES FOB LIFE. 29 
 
 provided by the Property Amendment Act (8 & 9 Vict. c. 106), 
 sect. 4, that a feoffment shall not have a tortious operation. 
 
 " Equitable waste " for which, as has been said, a tenant for life Equitable 
 is liable, although his estate has been granted without impeach- ^''^'^• 
 ment of waste, consists of such acts as pulling down or dis- 
 mantling a family mansion, or felling ornamental timber; and 
 the Court of Chancery restrained such proceedings on the 
 ground that where the testator (or settlor) gave these powers 
 to the tenant for life, he intended them to be used fairly. 
 Accordingly the tenant for life was restrained, because though 
 he had legal powers he was not using them fairly; he was 
 making an unconscientious use of his powers, and abusing them 
 so as to destroy the subject of the settlement (post, p. 698). 
 
 What are the rights of a tenant for life in respect of trees ? Trees. 
 This question was most carefully considered by the late Sir 
 George Jessel in a well-known case, and answered as follows : — 
 " The tenant for life can cut all that is not timber with certain 
 exceptions. He cannot cut ornamental trees, and he cannot 
 destroy ' germins,' as the old law calls them, or stools of under- 
 wood, and he cannot destroy trees planted for the protection 
 of banks, and various exceptions of that kind ; but, with those 
 exceptions, which are waste, he may cut all trees that are 
 not timber, with again an exception that he must not cut those 
 trees which, being under twenty years of age, are not timber, 
 but which would be timber if they are over twenty years of age. 
 If he cuts them down he commits waste, as he prevents the 
 growth of the timber. There is also this qualification that the 
 tenant for life may cut down oak, ash, and elm under twenty 
 years of age, provided they are cut down for the purpose of 
 allowing the proper development and growth of other timber 
 that is in the same wood or plantation" C-). 
 
 It is now provided by the Judicature Act, 1873 (^), that an 
 estate for life without impeachment of waste shall not confer, or 
 be deemed to have conferred, upon the tenant for life, any legal 
 right to commit waste of the description known as equitable 
 waste, unless an intention to confer such right shall expressly 
 appear by the instrument creating such estate. 
 
 Having thus noticed the principal characteristics, or " inci- 
 dents" as they are technically called, of an estate for life, we 
 may revert to some of the peculiar kinds of life estates which we 
 have previously mentioned. These are the estate in curtesy, 
 estate in dower, and the estate pur autre vie. 
 
 (') Honywood v. Honywood, L. K. 18 Eq. 306. O 36 & 37 Vict. o. 66, s. 25. 
 
30 BEAL PEOPERTT. [Book I. 
 
 Curtesy. The hTisband's estate as tenant by the curtesy is a life estate 
 
 to which a husband is entitled in certain estates in lands of 
 freehold tenure in which his wife has an estate of inheritance, 
 i.e., in fee simple or tail, whether legal or equitable, in posses- 
 sion, and either in severalty or as tenant in common, and pro- 
 Tided there has been issue of the marriage bom alive and 
 and capable of inheriting the land. Until the birth of such 
 issue, the husband's interest in his wife's land is confined to an 
 estate during their joint lives. Where, however, land belongs 
 to a married woman as her separate property, whether by the 
 rules of equity or under the Married Women's Property Act, 
 1882, her husband has no interest therein during her life, nor 
 after her death, except in the event of her dying intestate, in 
 which case he becomes tenant by the curtesy as if the land had 
 not been separate property (i). 
 
 Dower. Dower, in cases within the Dower Act, i.e., in all cases where 
 
 the marriage has taken place after the 1st of January, 1834, is 
 an estate for life, to which (where it is not prevented, barred, or 
 lost) a woman becomes entitled on the decease of her husband, 
 ■in one-third of the lands and tenements to which he died legally 
 or equitably entitled, for any estate of inheritance in possession 
 otherwise than in joint tenancy, and which any issue which she 
 might have had might by possibility have inherited. If for 
 the words " to which he died legally or equitably entitled " we 
 substitute " of which he was seized in deed or in law at any 
 time during the coverture," this proposition expresses the law 
 as to cases not within the Dower Act, i.e., where the marriage 
 took place before the 1st of January, 1834 (2). 
 
 The effect of the Dower Act, which applies to all women after 
 the 1st of January, 1834, is to put the widow's right to dower 
 wholly in the power of the husband. The Act provides that 
 no widow shall be entitled to dower out of any land which 
 shall have been absolutely dispoped of by her huhband in his 
 lifetime or by will ; that all partial estates and interests, and 
 all charges created by any disposition, or will, of a husband, 
 and all debts, incumbrances, contracts, and engagements to 
 which his land shall be subject or liable, shall be valid and 
 effectual as against the right of the widow to dower, and also 
 enables the husband to bar his wife's right to dower by any 
 declaration made for that purpose in any deed or in his will. 
 . The Act, however, on the other hand, improved the position 
 
 ('■) See Eager v. Furnivall, 17 (") Smith's Eeal UTid PerBoual Pro- 
 
 Ch. D. 115 (post, p. 161). perly, 6th ed. p. 220. 
 
autre vie. 
 
 Chap. IV.] ESTATES FOR LIFE. 31 
 
 of the widow to some extent by allowing her dower out of 
 equitable estate Q). 
 
 Under tlie custom of gavelkind, the widow's dower is a 
 moiety of the estate, hut only during widowhood (^durante vi- 
 duitate). By custom, dower may extend to the whole estate (see 
 as to Copyholds, post, p. 193). 
 
 Allusion has already been made to the estate granted for the Estate pur 
 life of another pur autre vie, as it is called. Under the old law 
 if a tenant pur autre vie died without having alienated the 
 estate in his lifetime, and leaving the cestui que vie surviving 
 him, the land, unless it had been limited to the heir of the 
 tenant pur autre vie as special occupant, might be taken posses- 
 sion of by any person and held by him during the remainder of 
 the life of the cestui que vie. This right of possession was called 
 " general occupancy." General occupancy was abolished by the 
 Statute of Frauds (^), and the law was amended by subsequent 
 statutes (^), until finally it has been provided by the Wills 
 Act (''), that the tenant pur autre vie may dispose of his estate 
 by will ; and, failing any such disposition, the estate is to pass 
 to the heir as special occupant if so limited ; and if there be no 
 special occupant, it is to pass to the executor or administrator of 
 the deceased tenant as if it were personal estate, and is to be 
 dealt with accordingly. Whether in the hands of the heir or 
 the executor or administrator, it is assets for the payment of 
 debts (5). 
 
 The law as to estates pur autre vie was much considered in a 
 case which came before the Court in 1881, when it was 
 characterised as " very anomalous and very singular." The 
 Court in this case proceeded upon the principle which had 
 been laid down many years before by Lord St. Leonards, that 
 the analogy between estates pur autre vie and ordinary estate in 
 fee simple ought to be supported as far as possible, and it 
 accordingly decided that where an estate pur autre vie was 
 limited to several persons in succession, the power of alienation 
 
 (') The following cases are im- estates pur autre vie was much con- 
 
 portant as to the law of dower : sicJered, and the Court came to the 
 
 Lacey v. Sill, 19 Eq. 346 ; Dawson v. conclusion that such an estate was to 
 
 Banlc of Wliitelmven, 6 Ch. D. 218 ; be treated not as personal estate, but 
 
 Frampton v. Stephens, 21 Ch. D. as " realty not following the person." 
 
 164 ; Be Thomas, 34 Ch. D. 166. The devolution of an estate pur autre 
 
 O 29 Car. 2, c. 3, s. 12. vie is regulated by the words of limi- 
 
 (^) 14 Geo. 2, c. 20, s. 9. tation contained in the last convey- 
 
 (*) 7 Wm. 4, and 1 Vict. o. 26, ance, without regard to the mode of 
 
 s. 3 and 6. its original conveyance : 1 Jarm. on 
 
 (=) See Chatfield v. Serchtoldt, Wills, 4th ed., p. 55. 
 L. K. 7 Ch. 192, where the law as to 
 
32 REAL PEOPEETT. [Book I. 
 
 to the successive takers ought to be regulated as far as possible 
 by the rules which would govern similar limitations of an 
 ordinary estate in fee simple. In the course of his judgment. 
 Fry, J., said : " When an estate jpwr autre vie is given to a man, 
 or to him and his heirs, the most he can take is an estate for 
 his own life, and any one who comes in after him takes, not 
 through him, but as occupant of the estate. Originally any one 
 who pleased was allowed to scramble for the occupancy after 
 the death of the first taker, but this was found to be so incon- 
 venient that he was allowed to appoint by will a special 
 occupant. But still every one who came in after the first 
 taker came in as an occupant, and not as deriving title through 
 him. Such a mode of devolution is very different from that of 
 an estate in fee simple. But still, for the sake of convenience, 
 the Legislature and the Courts have enforced an analogy 
 between these estates pur autre vie and estates in fee simple, 
 and have given effect to it with regard both to the capacity and 
 incapacity of alienation by the first taker " (^). 
 
 O In re Barber' » Settled Estates, 18 Ch. D. 624, 627. 
 
( 33 ) 
 
 kinds of 
 estates tail. 
 
 CHAPTER V. 
 
 Estates Tail. 
 
 An estate tail — feudum talliatum, so called because the in- 
 heritance is cut down and confined to the heirs of the body — 
 is an estate limited to a person male or female and the heirs of 
 the body of such person. 
 
 Estates tail are of two kinds, i.e. — 
 
 1. Estates in tail general ; 2, estates in tail special. 
 
 (1) An estate in tail general is an estate limited to a person Different 
 
 and the heirs of his or her body, in -which case the 
 issue by any marriage may inherit. 
 
 (2) An estate in tail special is an estate limited to the heirs 
 
 of the body of two persons, either already mairied, or 
 capable of inter-marriage, as to A. and the heirs of 
 hi.s body begotten or to be begotten upon B., ia both 
 which cases no issue, except by the marriage of those 
 two persons, can possibly inherit. 
 
 Estates tail, whether general or special, may be 
 limited in tail male, i.e. to males and the male descen- 
 dants of males only, or in tail female, i.e. to females 
 and the female descendants of females. This latter kind 
 of estate tail, however, is of extremely rare occurrence. 
 Where, in the case of an estate in tail special, the person from 
 whose marriage with the tenant the issue was to proceed is 
 dead, and there has been no issue of the union, or the issue has 
 failed, the estate becomes in effect an estate for the life merely 
 of the tenant, and, as such, is subject to the rules applicable to 
 estates for life generally, except that the tenant is not liable for 
 waste. Such an estate is called an estate tail after possibility 
 of issue extinct (ante, p. 23). 
 
 And here upon the threshold of our subject it will be Rule in 
 desirable to notice the celebrated rule in Shelley's Case ('). c^^ ^^° 
 " The rule," says Mr. Jarman, " simply is, that where an estate 
 of freehold is limited to a person, and the same instrument 
 contains a limitation, either mediate or immediate, to his heirs 
 
 (') Coke's Keports, 93b. 
 VOL. 1. 
 
34 
 
 SEAL FRO FEB TY. 
 
 [Book I. 
 
 Creation of 
 estate tail. 
 
 Words of 
 limitation. 
 
 Origin of 
 estates tail. 
 
 Taltarum's 
 
 or Ihe heirs of his body, the word ' heirs ' is a word of limitation, 
 i.e., the ancestor takes the whole estate comprised in this term. 
 Thus, if the limitation be to the heirs of his body, he takes a 
 fee tail ; if to his heirs general, a fee simple " ('). 
 
 In a will technical words are not required in order to create 
 an estate tail; but any words that evince an intention to create 
 such an estate, will suffice for the purpose; thus, a devise to a 
 person and his seed, or to him and his issue, will create an estate 
 tail. So, a limitation to a person and his heirs male, which, if 
 it occurred in a deed would create an estate in fee simple will, 
 when it occurs in a will, create an estate in tail male according 
 to the apparent intention of the testator (f). 
 
 It is now provided by the Conveyancing and Law of Property 
 Act (44 & 45 Yict. c. 41, s. 61), with regard to deeds executed 
 after the commencement of the Act, January 1st, 1882, that in 
 the limitation of an estate in tail it shall be sufficient to use the 
 words " in tail," without the words " heirs of the body ;" and 
 in the limitation of an estate in tail male or in tail female, to 
 use the words " in tail male," or " in tail female," as the case 
 requires, without the words " heirs male of the body," or " heirs 
 female of the body." 
 
 Every estate tail owes its origin to the statute Be Bonis, 
 13 Edw. 1, c. 1, passed in 1285. Prior to this statute, when 
 an estate was given to a man and the heirs of his body, he was 
 enabled, as soon as he had issue born, at once to alienate and 
 defeat the lord's right to the land on failure of the issue, as well 
 as the right of the issue. 
 
 The Statute of Westminster the Second, Be Bonis condition- 
 alibus, provided that the wiU of the dunor according to the 
 form in the deed of gift manifestly expressed, should be from 
 thenceforth observed ; so that they, to whom the tenement was 
 given, should have no power to alien it, whereby it should 
 fail to remain unto their own issue after their death or to 
 revert unto the donor or his heirs, if issue should fail. 
 
 Nearly two centuries after this statute Taltarum's Case was 
 decided. The practical effect of this celebrated decision, which 
 established the right of every tenant in tail to convert his estate 
 tail into an estate in fee simple, by " suffering," as it was termed, 
 a common recovery, was to repeal to a great extent the statute 
 Be Bonis, and to set lands free from the fetters of perpetual 
 
 (') "Shelley, ivliose aucestor.s a 
 freehold take, 
 The words (his heii's) a limita- 
 tion make." 
 
 C) Tiidor'e Real Property, 3rd ed 
 p. 716; Theobald on Wills, 3rd ed 
 
 ?^?.?''',r?.°'^ ^"^ ^"/'"^^ "■ Borrell, 
 W Eq. 194. 
 
Chap. V.] ESTATES TAIL. 35 
 
 entails. After this time tlie estate tail was barred wholly and 
 thereby converted into a fee simple estate by means of a 
 " common recovery," i.e. a collusive action brought against 
 tenants in tail or persons to whom they had conveyed their 
 estates for the purpose of the action. Estates were also paiti«lly 
 barred, i.e. so as to bar the issue in tail but not no as to defeat 
 the ri^^hts in remainder and reversion, by fines, i.e. fictitious 
 actions commenced and compromised by leave of the judge and 
 in open Court, so as to put an end to all claims in respect of 
 the property which were not made within a year and a day. 
 
 Fines and recoveries were abolished in the year 1833 by a Fines and 
 statute (3 & 4 Wm. 4, c. 74), commonly called the Fines and E«''="verie3 
 Eecoveries Act, which substituted for these clumsy fictions a 
 simple method of bariing an estate tail, namelj', an ordinary 
 deed of conveyance. The Act, however, required that the deed 
 should be enrolled within ^ix months after its execution in the 
 Court of Chancery Q). In this w ay a tenant in tail is empowered 
 to convey away or dispose of the fee simple, or any less estate in 
 the lands entailed; the conveyance, to the extent of the estate 
 created thereby, is effectual as against all jDersons claiming by 
 virtue of the estate tail, or in remainder or reversion thereon. 
 Under the Judicature Acts enrolment in the central office of 
 the Supreme Court of Judicature takes the place of the enrolment 
 in the Court of Chancery (^). The deed by which an estate tail is 
 barred is called a "disentailing deed," or "disentailing assurance." 
 An estate tail cannot, however, be barred by will, and any dis- 
 position "resting only in mere contract,'' whether express or 
 implied, and whether supported by consideration or not, is 
 void. 
 
 The old rule of law was that the freehold tenant in possession Protector 
 (usually the tenant for life) must be a party to all proceedings °*^*'j^ 
 in recoveries, and the framers of the Fines and Eecoveries Act, 
 applying this idea to a practical purpose, established the office 
 of Protector. The Act provides that "If at the time when 
 there shall be a tenant in tail . . . there shall be subsisting 
 in the same lands . . . under the same settlement, any estate for 
 years determinable on the dropping of a life or lives, or any 
 greater estate (not being an estate for years) prior to the estate 
 
 (') Sects. 40,41. It must be borne to them if accompanied by some ex- 
 
 in mind, in construing this Act, that pi'ession denoting oopylioids. Tlje 
 
 " lands " extends to miinciis, advow- wcjrd " estate ' also extends to equit- 
 
 sons, rectories, messuages, lands, able as well as legal estates, and nny 
 
 tenements, tithes, rents, and here- interest therein, and money subject to 
 
 ditaments, corporeal or incorporeal, be invefted in the pwchase of lands. 
 of any tenure except copyholds, and C) 3 & 1 Wm. 4, c. 74, s. 15. 
 
36 
 
 REAL PROPER TT. 
 
 [Book I. 
 
 Protector 
 of the 
 Settlement, 
 
 tail, then such owner of the prior estate, or the first of such 
 estates if more than one. . . . shall be the protector of the 
 settlement." . . . Estates by the curtesy ... or by way of 
 resulting use or trust are within this section. The protector is 
 usually the first tenant for life, though it must be borne in 
 mind that the statutoiy definition includes an estate for years 
 determinable on the dropping of a life or lives. When there is 
 one tenant in tail in possession and another in reversion the 
 tenant in tail in possession is treated as the protector. Power 
 to appoint protectois is also given by sect. 32 of this Act, which 
 enacts that " it shall be lawful for any settlor entailing lands 
 to appoint, by the settlement by which the lands are entailed, 
 any number of existing persons, not exceeding three, and not 
 being aliens, to be piotector of the settlement in lieu of the 
 person who would otherwise have been protector . . ."(}). 
 
 The protector's consent is required by the Act (^) to enable the 
 tenant in tail to bar the entail as against persons entitled in 
 remainder or reversion subsequent to the estate tail. This con- 
 sent must be given either by the deed barring the entail or by 
 a separate deed, to be executed and enrolled prior to or at the 
 time of the execution and enrolment of the deed barring the 
 entail (^). The Act expressly provides that any " device, shift, 
 or contrivance by which it is sought to control the protector 
 in the exercise of his powers is void." He is declared by the 
 Act not to be a trustee, and the rules of equity which apply to 
 other personages in respect of powers are not to apply to his 
 dealings and transactions (*). 
 
 Where there is a protector of the settlement, a disentailing 
 assurance made without his consent will be operative only to the 
 extent of creating a hose fee ; that is, an estate effectual as against 
 the tenant in tail himself and his issue, but not as against persons 
 entitled in remainder or reversion. The Act, however, contains 
 provisions under which a base fee so cieated may subsequently 
 be enlarged, in different ways, into a fee simple absolute (^). 
 
 It was decided by the Court of Appeal in 1887 that if a 
 
 (') Challie, Law of Eeal Property, 
 p. 256. 
 
 (2) 3 & 4 Wm. 4, 0. 74, s. 34. 
 
 (') 3 & 4 Wm. 4, c. 74, s. 46. 
 
 (*) 3 & 4 Win. 4, c. 74, ss. 36, 37. 
 
 C) 3 & 4 Win. 4, 0. 74, ss. 1, 34. 
 It is provided by sect. 39 of the Act 
 that if a base fee in any lands, and 
 the remainder or reversion in fee in 
 tlie same lauds sliall be united in the 
 same person, and there shall be no 
 intermediate estate between the base 
 
 fee and the remainder or reversion, 
 then the base fee shall not merge, but 
 shall be ipso facto enlarged, into as 
 large an estate as the tenant in tail, 
 with the consent of the protector, if 
 any, might have created by any dis- 
 position under this Act, if such 
 remainder or reversion had been 
 vested in any otlier persun. See 
 Shelford's Keal Property as to the 
 effect of this section on cliarges. 
 
Chap. V.] ESTATES TAIL. 37 
 
 tenant in tail conveys a base fee, and enters into a covenant for Protector 
 fuitlier assurance {jpost, p. 88), he is bound on the death of of the 
 the protector to execute a disentailing deed, so as to enlarge ^^^^' 
 the base fee into a fee simple, and that the Court will force 
 him specifically to perform the coveniint (jpost, p. 665 (y) ). 
 
 If any protector of a settlement is lunatic, idiot, or of unsound 
 mind, whether found so by inquisition or not, the Lord Chan- 
 cellor is protector, and in a variety of other cases, e.g., where 
 the protector is convicted of treason or felony, the Court of 
 Chancery, now the Chancery Division, is the protector (^). 
 
 In a case where a lunatic was tenant in tail of an estate Lunatic 
 which was subject to charges, and it became necessary that a tenant in 
 disentailing deed should be executed for the purpose of raising 
 the charge by mortgage, the Court proceeded on the principle 
 that they could not assume that the lunatic, if sane, would have 
 desired to bar the entail, and, accordingly, that it ought not to 
 be barred further than was necessary for the purpose. The 
 mortgage was accordingly made in a limited form, and it was 
 directed that the deed should express that the estate tail of the 
 lunatic and the remainders over were barred " for the purpose of 
 giving effect to the security, but not further or otherwise" (^). 
 
 A disentailing assurance will be effectual to bar not only Barring 
 the entail, but all remainders and reversions in the cases follow- ^nt'""'- 
 ing, viz. : 
 
 (1) If the tenant in tail who executes it is in possession ; 
 
 (2) If the tenant in tail though not in possession is entitled 
 to the immediate remainder or reversion in fee simple ; and, 
 
 (3) If the protector consents. 
 
 The Fines and Beooveries Act was drawn with immense care 
 and consummate skill by a very eminent conveyancer, Mr. 
 Brodie, and has always been regarded as a model of parliamen- 
 tary drafting. For this reason, and, perhaps, because its pro- 
 visions have been comparatively little subjected to the ordeal- 
 of contentious business, very few cases have been decided upon 
 its construction. A variety of interesting cases, however, have 
 been decided hy the courts in recent years with regard to estates 
 tail, the principal of which we shall now proceed to consider. 
 
 (') Bankes \. Small, 36 Ch. Div. 333. See also Be Sharp, 3 Ch. D. 59, 
 
 71ti, affirming ;i4 Ch. D. 415. where the Court declined to interfere 
 
 O 8 & 4 Wm. 4, e. 74, s. 33. on the ground that it was not for the 
 
 I') In re Fares, 2 Oli. Div. 61. It benefit of the lunatic's estate : Se 
 
 is the duty of the Court so tu exercise Qaitslcell, 40 Ch. D. 416, where au 
 
 the power of barring an entail as not application by the committee of the 
 
 to affect the rights of persons entitled lunatic tenant in tail under the Settled 
 
 in remainder : lie Pares, 12 Ch. Div. Land Act, 1882, was authorised. 
 
38 
 
 REAL PROPERTY. 
 
 [Book I. 
 
 Office of 
 Protector. 
 
 Charges. 
 
 Who is 
 protector ? 
 
 In one of the comparatively few cases -wliich have arisen on 
 the construction of the Fines and Recoveries Act, decided in 1873, 
 four protectors of the settlement had been apj)ointed: one of them 
 died, and the others joined with the tenant in tail in executing a 
 disentailing deed. The Court decided that tlie office of protector 
 survived, and that the estate tail was effectually barred Q). 
 
 Where a tenant in tail pays off an incumbrance or charge, the 
 presumption of the law is that the charge is extinguished, unless 
 he has declared his intention to keep it alive, or has held him- 
 self out as a creditor of the estate in lieu of the mortgagee. The 
 reason of this rule is that such a tenant in tail might bar the 
 entail, and thus render himself owner in fee. The same prin- 
 ciple, however, does not apply to a tenant in lail not in posses- 
 sion ; when he pays off a charge he is presumed to have intended 
 to keep it alive (^). 
 
 In a case where a tenant in tail in possession of an estate 
 executed a disentailing deed, purporting to be a grant of the 
 estate to A. and B., and their heirs, free from all estates tail of 
 the grantor, to the use of A. and B. and their heirs upon trust 
 for the grantor. The deed was inrolled, but not executed by 
 A. and B., who subsequently executed a deed of disclaimer (f). 
 The Court decided that the deed did not convey any estate to 
 any one, and was merely an expression of intention on the part 
 of the tenant in tail to make other persons trustees, and that 
 accordingly the entail was not barred. 
 
 In a case which came before the Court of Appeal in 1878 the 
 property had been devised to trustees for A., a married lady, for 
 her separate use, with remainder to the use of B. in tail. B. 
 v/ith the consent of A., disentailed the estate. The Court of 
 Appeal stated that ever since the passing of the Fines and 
 Eecoveries Act it had been the universal opinion and the uni- 
 versal practice of conveyancers that the ''owner of the prior 
 estate " meant the substantial owner of the estate, that is, the 
 owner of the beneficial interest. That construction had been 
 settled, and family settlements and purchases been made on the 
 faith of it, for many years. And they accordingly decided that 
 A., and not the trustees, was the proper protector of the settle- 
 ment (*). 
 
 C) Bell V. Hulthy, 15 Eq. 189. See 
 also as to protector of settlement: 
 Tufndl V. Borrelk 20 Eq. 194 ; Clarke 
 V. Chamberlin, 16 Ch. D. 176. 
 
 («) Adams v. Angell, 5 Ch. D. 634. 
 
 (') Fearock v. Eastland, L. K. 10 
 Eq. p. 17. The diacntuiling deed 
 
 need not however be assented to or 
 executed by tiie grantees to uses: 
 Nelson v. Agnew, 6 Ir. Eep. Eq. 232. 
 C) Re Dudson's Contract, 8 Ch. 
 Div. 628, 631, followed Be Ainslie, 
 y3 W. R. 148. ' 
 
Chap. V.] E8TATE8 TAIL. 39 
 
 The right of the actual tenant in tail to enlarge his estate Right to 
 to a fee simple, cannot be restricted by any attempt on the part bar entail. 
 of the settlor or testator by inserting clauses either that he shall 
 not exercise the right or by defeating the estate tail in case he 
 exercises the right. Such an interdict upon barring the estate 
 tail, it was said in a case which came before the House of Lords 
 in 1878, is contrary to the law. 
 
 The testator in this case devised Penrhyn Castle and the 
 estates belonging thereto to his son Richard and the heirs male 
 of his body lawfully begotten, " upon special trust and confi- 
 dence," that he would not do nor suffer to be done " any act in 
 law or otherwise " to obstruct or prevent the thereinafter de- 
 clared trusts and limitations of the estates from taking effect, 
 but that, on the contrary, he would do every act in his power to 
 establish and confirm them. He then declared how the estates 
 were to go if the son died without issue of his body lawfully 
 begotten, and made a special devise of a portion of it. The son 
 entered into possession of the devised estates, and then barred 
 the entail according to the then existing state of the law by 
 suffering a recovery (i). 
 
 The House of Lords decided that the words of the will did not 
 create a trust, and that the entail was effectually barred. 
 
 The following statement of the law by the late Lord Justice 
 James was cited with approval : — " If there is one thing that 
 has been settled beyond all question in the real property law 
 of this country, it is that no condition, no restriction, no pro- 
 hibition, nothing, can prevent a tenant in tail from suffer- 
 ing a common recovery with all the consequences of that 
 common recovery; and it appears to me to be perfectly 
 immaterial whether the conveyancer uses one form of words or 
 another." 
 
 The celebrated rule in WiMs Case, which has also been made Wild's 
 the subject of consideration by the House of Lords, may here **' 
 be noticed. It is that where there is a devise to a person and 
 his children or issue, and he has no issue at the time of the 
 devise, there, prima facie, such person will tate an estate tail. 
 If, however, the devise be to a man and his children or issue, 
 and he then has issue of his body, in the absence of manifest 
 intention to the contrary on the face of the will, the parent 
 and his children will take concurrently. This rule was con- 
 sidered in the year 1880, when the Lord Chancellor said that 
 the rule in Wild's Case, though the reasoning on which it was 
 
 (') DawTcins v. Lord Penrhyn, i App. Cas. 51 
 
40 
 
 REAL PROPERTY. 
 
 [Book I. 
 
 Harried 
 women. 
 
 Rectifica- 
 tion. 
 
 Estates tail 
 which can- 
 not be 
 barred. 
 
 originally founded had been sometimes crit'oised, had as a 
 rule of construction been uniformly followed from Lord Coke's 
 time down to the present day, and that having been so 
 long established, and so constantly followed, it was not to 
 be departed from (i). 
 
 It was decided by the Court of Appeal in 1877, in a case 
 where a married woman was equitable tenant in tail of certain 
 freehold estates, that the fact of her being restrained from 
 anticipating or alienating the income (as to which, see post, 
 p. 212, et seq.) did not prevent her from barring the entail, 
 acquiring the equitable fee, and then defeatin^j her husband's 
 title as tenant by the curtesy (^). 
 
 It was decided in 1885 that the Court is not prohibited from, 
 exercising its ordinary jurisdiction to rectify a deed on the 
 ground of mistake (see post, p. 602), because it is enrolled as a 
 disentailing assurance under the Fines and Eecoveries Act. 
 
 It was pointed out by the Court of Appeal that if the legisla- 
 ture hail meant to touch the jurisdiction to rectify, one would 
 expect to find it specifically mentioned, but nothing was said on 
 the subject ; that the scope of the Act is to make the enrolled 
 deed conclusive, and that it would be monstrous and highly 
 unjust to say that the instrument on parchment was to be con- 
 clusive of the rights of the parties for all time, however great 
 the mistake or blunder, and however clear the evidence of it. 
 
 " The purport of the Act," said the Lord Chancellor, " is that 
 there shall be one instrument, attended with certain formalities, 
 including inrolment, and that nothing but that instrument shall 
 be effectual as a disposition of the estate comprised in it. But 
 what has that to do with the question whether that instrument 
 as executed carries out the real intention of the parties? It 
 appears to me to be entirely beside the question " (^). 
 
 There are certain estates tail v^'hich cannot be barred ; these 
 are: — 
 
 (1) Estates tail after possibility of issue extinct. 
 
 (2) Estates tail granted by the Crown as the reward for 
 public services which cannot be barred so long as the reversion 
 continues in the Cro"'n ; 
 
 (3) Estates limited by special Act of Parliament, as those 
 conferred upon the Duke of Marlborough, Lord Nelson, and the 
 Duke of Wellington (*). 
 
 (') Cliffm-d V. Koe, 5 App. Cas. 447. 
 C) Cooper V. Maedonald, 7 Ch. D. 
 
 C) Hall-Dare y„ Hall-Dare, 8] 
 
 Ch. Div. 251, 256. 
 
 (■*■) Earl of Abergavenny v. Brace, 
 L. R. 7 Exih. 145; Shelford, Eeal 
 Troporty Statutes, 8th cd. p. 322, 324. 
 
Chap. V.] ESTATES TAIL. 41 
 
 If an estate jmr autre vie be given to a person and the heirs of Estate pur 
 his body it is called a, quasi entail, and may be dealt with much ""''"<' ^'^■ 
 more easily than an ordinary estate tnil, for when in possession 
 any deed of transfer or surrender will bar the entail, and 
 when in remainder the consent of the tenant in possession is the 
 only additional requisite (^). 
 
 Suppose that an estate tail has been sold by the order or Money in 
 under the authority of the Court, or taken under the compulsory Court. 
 powers of the Lands Clauses Consolidation Act (posi, p. 691), 
 must the tenant in tail execute a disentailing deed before he 
 can obtain the money out of Court ? The practice would now 
 appear to be settled that a disentailing deed is necessary (2). 
 
 The rights of a tenant in tail with respect to the rents and Rights of 
 profits of the laud, waste, &c., are similar to the rights in these /"i"" '" 
 respects of a tenant in fee simple (as to which, see post, 46), 
 It must also be borne in mind tliat, among the persons who are 
 enumerated in the Settled Land Act {ante, p. 27, and post, p. 146), 
 who may exercise the powers of a tenant for life, the first men- 
 tioned is " a tenant in tail, including a tenant in tail who is by 
 Act of Parliament restrained irom barring or defeating his estate 
 tail, and although the reversion is in the Crown, and so that the 
 exercise by him of his powers under this Act shall bind the 
 Crown, but not including such a tenant-in-tail where the land in 
 respect whereof he is so restrained was purchased with money 
 provided by Parliament in consideration of public services." 
 In the same list as one of the " limited owners " entitled to 
 exercise the powers of a tenant is the tenant in tail after 
 possibility of issue extinct (f). 
 
 Land held for an estate tail is liable for the debts of the Debts, 
 tenant in tail in the event of his bankruptcy (jpost, p. 933, note) (*). 
 It is also liable even after his death for debts due from him to 
 the Crown by judgment recognizance, obligation, or other 
 specialty, although the heir shall not be comprised therein (^). 
 An estate is also liable in respect of judgment debts, i.e., debts 
 in respect of which judgment has been recovered against the 
 
 (') Allen V. Allen, 2 Dru. & the authorities are colleotud. 
 
 Warren, 307. C) Settled Land Act, 1882, sa. 58, 
 
 (^) In re Reynolds, 3 Ch. Div. 61 ; 31, and note in Gierke's Settled Land 
 
 In re JBroadwood's Settled Estates, Act therein. 
 
 1 Gil. D. 438, following Ire re J?«rte/s (") By sec^t. 56, sub-s. 5. Bank- 
 
 Will, 16 Eq. 479, ami see Mills v. ruptoy Act, 1883, and these powers 
 
 Fox, 37 Ch. D. 153, where under the can probalily be exercised even after 
 
 circumstances it was held that the the bankrupt's death : Eobson's 
 
 estate tail on a fund in Gourt was Bankruptcy, 6th edit. p. 433. 
 
 not barred ; and see Morgan and (') 33 Hen. 8, 0. 39, s. 75. 
 Wurtzburg on Costs, p. 290, where 
 
42 REAL PBOPERTY. [Book I. 
 
 tenant in tail, though the judgment does not bind the lands 
 until they have been actuallj' delivered in execution (^), but 
 (unlike land held in fee simple) an estate tail cannot be made 
 available after the dealh of the tenant in tail for his other debts. 
 Chattels. It is an old-established principle that a bequest to a person of 
 
 chattels, whether real or personal, in such terms as would in the 
 case of a devise of real estate have conferred upon him an estate 
 tail- — for instance, a gift to A. and the heirs of his body of lease- 
 hold or personal property — will generally confer on him an 
 absolute interest passing on his death, not to his heir in tail, 
 but to his personal representatives (^). 
 
 The subject of estate tail in copyholds will be subsequently 
 considered in the separate chapter dealing with lands of that 
 tenure. 
 
 ■ 0) 27&28Viot. 0. 112. 
 (') Levenihorpe v. Ashbie, Tudor's Beal Property Cases. 
 
'' 43 ) 
 
 CHAPTER VI. 
 
 Estates in Fee Simple. 
 
 An estate iu fee simple (^feudum simplex) is the greatest Fee simple, 
 interest in land known to the law ; being an estate of inherit- 
 ance that is capable of descending not only to heirs of the body 
 of the tenant, but also to his heirs generally, whether lineal 
 in the ascending or descending line, or collateral, male or 
 female, proximate or remote (i). It absolutely exhausts the 
 whole possible interest which any one can have, by way of 
 estate, in the lands so as to leave no residue subsisting in any 
 one else. The lord is the only person with whom the tenant as 
 such has any connection, and the only connection between them 
 is the tenure (2). 
 
 An estate in fee simple may be acquired either by some form How 
 of assurance, e.g. a deed of grant, or a will, or by operation of "^^^ ' 
 law, as by descent on intestacy (see ;post, p. 650). A person who 
 acquires an estate, otherwise than by title of descent, and other 
 
 (') The idea of a fee simple is well some event, as, for instauoe, if an 
 
 and quaintly expressed in the old estate is given to a man and Ijis heirs 
 
 lines quoted by Lord St. Leonards until the marriage of B., or, to take 
 
 (Handy Book on Real Property Law, the old illustration, until C. return 
 
 p. 128, 8fch ed.) : — from Rome. Here there is an estate 
 
 " A tenant in fee simple is he which may last for ever, and these 
 
 That need fear neither wind nor determinable fees are governed by 
 
 weather; the same rules as the fee simple ab- 
 
 For I'd have you to know and to solute. 
 
 see. Another instance of a qualified 
 
 'Tis to him and his heirs for estate in fee is the base fee, which 
 
 ever !" aiises when a tenant in tail not in 
 
 An estate of fee simple, said Lord possession with remainder over {post, 
 Coke, in Seymour's Case, is either an p. 65) bars the entail without the pro- 
 estate of inheritance absolute and in- lector's consent. See further on this 
 determinable, as where lanrls are subject,Tudor's Eeal PropertyCases; 
 given to a man and his heirs, when notes to Taltarum's and Seymour's 
 he has a pure and absolute estate ; or Case. See a list of examples of deter- 
 a fee simple determinable. A fee minable fees in Challis' Eeal Pro- 
 simple of the latter class, i.e. a fee perty, p. 201. 
 
 simple "limited and qualified," is (^) Goodeve'sEealProperty, p. 84; 
 
 determinable on the happening of Challis' Real Property, p. 29. 
 
44 REAL PROPERTY. [Book I. 
 
 means specified in the Act to amend the law of inheritance Q), 
 is called " a purchaser," and from him descent is traced in case 
 of intestacy (post, p. 51). 
 
 In the case of a grant by deed of the fee simple, it was, 
 generally speaking, essential that the land should he limited to 
 the grantee and his heirs. To this rule, however, there were 
 some exceptions, of which the most important is with regard to 
 grants to corporations. In a gift to a corporation sole, e.g. a 
 bishop, parson, &c., the word " buccessors " is necessary to pass 
 the fee, while in a gift to a corporation aggregate the same word 
 though the proper word of " limitation " is not usually essen- 
 tial (2). In practice, the estate has usually been limited to the 
 grantee, " his heirs and assigns " ; or to the grantee, " his heirs 
 and assigns for ever ;" but the word " heirs " alone was always 
 sufficient for the purpose, for the word " assigns," as pointed out 
 by Sir George Jessel, is not a word of limitation, and only 
 means that the man takes an assignable interest (^). The Con- 
 veyancing Act of 1881 (*), however, now provides with regard 
 to deeds executed after the commencement of the Act (1st 
 January, 1882) that in a deed it shall be sufficient in the limiia- 
 tion of an estate in fee simple to use the words " in fee simple " 
 without the word "heirs." 
 Convey- It has however been pointed out in a recent case where the 
 
 188°^ ° ' subject was considered, that the Conveyancing Act stops very 
 far short of enacting that an intention deduced from the context 
 or the actual limitation itself, shall be sufficient to pass by deed 
 an estate of inheritance without technical words, and that it is 
 confined to the popular expressions "fee simple," "in tail," and 
 " in tail male or female." " This section of the Conveyancing 
 Act applies to all future deeds of conveyance, whether of legal 
 or equitable estates ; but, except when those specified words are 
 used, it leaves the law unaltered " (s). 
 
 The celebrated rule in Shelley's Case, which we have already 
 stated in connection with the subject of estates tail, should here 
 again be noticed. It is that whenever an estate of freehold is 
 given to a person, and by the same conveyance or will an 
 ulterior estate (whether mediately or immediately) is limited 
 
 (') These other means are escheat (=) Osborne to Bowlett, 13 Ch. D. 
 
 (post, p. 55), partition (post, pp. 62, 774 ; and see as to words creating a 
 
 555;, and inclosure : 3 & 4 W. 4, c. fee simpie, Olivunt v.Wright, 9 Ch. D. 
 
 1(j6, iriterp. clause. 646. 
 
 (") See Elphinstoce's Interpreta- (<) 44 & 45 Vict. c. 41, s. 51. 
 
 tion of Deeds, p. 225, et saq. ; Tudor's Q) Meyler v. MeyUr, L. E. 11 Ir. 
 
 Eeal Property Oases, 3rd ed. p. 717, 523. 
 et seq. 
 
Chap. VI.] ESTA TES IN FEE SIMPLE. 45 
 
 to the heirs of the same person in fee, e.g. an estate to A. 
 for life, then to B. for life, then to the heirs of A., the word 
 " heirs " is regarded, as it is technically phrased, as a word of 
 limitation and not of purchase, and A. takes an estate in fee 
 simple (y). 
 
 In a will the use of the word " heirs " has never been essen- 
 tial to pass an estate in fee simple ; any other words indicating 
 an intention to devise the fee simple being sufficient for the 
 purpose. And the Wills Act (^) now provides that a devise with- 
 out any words of limitation shall be construed to pass the fee 
 simple, or other the whole estate or interest which the testator 
 had power to dispose of by will, unless a contrary intention 
 shall appear by the will. 
 
 It is pointed out, however, by Mr. Jarman (f) that this rule 
 does not apply to interests created de novo. Thus where a rent- 
 charge (^post, p. 199) was devised to a man without further words 
 he only took a life estate. 
 
 Prior to the Statute next referred to, a tenant in fee simple 
 might grant his land, or part of it, by a process called subin- 
 feudation to be held of him as lord, and there might thus be a 
 number of intermediate lords, who were called mesne lords, 
 between the actual owner of the laud and the king. 
 
 The right of free alienation was recognised, and the practice of Q„ia 
 subinfeudation forbidden by the famous statute of Quia emptores, emptores. 
 passed more than six centuries ago, which struck the first 
 great blow at the feudal system. That Act provided That 
 from henceforth it should be " lawful to every freeman to sell 
 at his own pleasure his lands and tenements, or part thereof, so 
 nevertheless that the feoffee (or purchaser) should hold the same 
 lands or tenements of the same chief lord of the fee, and by the 
 same services and customs as his feoffor held them before," and 
 further enacted that if part be so sold, that part should be held 
 immediately of the chief lord, and should be charged with a pro- 
 portionate part of the services due to the lord (*). 
 
 The effect of this enactment is, that on the transfer of an 
 estate in fee simple the transferee holds directly from the king 
 or other lord of whom the transferor previously held. One 
 main result was to put an end to the creation of manors ; for 
 the lordship, or seignory, as it is called, i.e. the having tenants 
 
 (') See Whit^ v. Kindle, 7 Ch. D. {') 3id ed. vol. ii., p. 287, and see 
 
 201. Beay v. BawUnson, 29 Beav. 88, where 
 
 (2) 1 Vict. c. 26, o. 28 ; and see it was dt-cided that the fee " in grass 
 
 Jarman on Wills, ith ed. vol. ii. 268, for a cow " did not pass. 
 
 et seq. for cases under the old law. (') 18 Edw. 1, c. 1. 
 
46 EEAL PROPEBTY. [Book I. 
 
 in fee simple, is an essential incident of a manor. The 
 tenancies in fee simple, however, existing at the date of the 
 passing of the Act were left unaiFected by its provisions Q'). 
 
 A tenant in fee simple may commit waste of any kind, and 
 may use the land in such manner as he pleases, subject only to 
 the restriction that he may not use it in such manner as to infringe 
 upon the rights of others — a rule expressed by the maxim, " Sic 
 utere tuo ut alienum non Isedag," " enjoy your own property in such 
 a manner as not to injure that of another person " (post, p. 447). 
 
 Debts. ^j^ estate in fee simple is liable for debts of all kinds incurred 
 
 by its owner. In the event of his bankruptcy, it passes to the 
 trustee for the creditors, appointed in the bankruptcy (^). It 
 is liable to be taken in execution under a writ of elegit and sold 
 for judgment debts (^). As regards the liability of the land for 
 the debts of the owner in fee simple after his decease, there was 
 under the old law no remedy independent of statute, either 
 direct or indirect, against the land in respect of such debts 
 (other than judgment and Crown debts) except where the debt 
 was due by contract under seal wherein the heirs of the debtor 
 were expressly bound. A most important alteration was made 
 in the law on this subjedt by a statute passed in the year 1833 
 (3 & 4 Will. 4, c. 104) (*) under which all estates in fee simple 
 which the owner should not b\' his will have charged with, or 
 devised subject to, the payment of his debts, were made liable 
 to be administeaed by the Court for the payment of all his 
 debts, as well those due on simple contract, as those due by 
 contract under seal. Thus the simple contract creditor was for 
 the first time given a remedy against the real estate of the 
 deceased debtor independently of the will of his debtor. The 
 Act, however, gave to creditors by contract under seal a priority 
 in payment over simple contract creditors, wheie the remedy of 
 the latter was under the Act ; Viut this priority was abolished 
 by a htatute of the year 1869 (32 & 33 Vict. c. 46) as regards 
 the estates of persons dying on or after the 1st January, 1870 
 (post, p. 548). 
 
 Charges. When the owner of an estate in fee or in tail pays off a 
 
 charge, the presumption is that he intended that the charge 
 should " merge," as it is technically phiased, in the inheritance 
 and so be destroyed. The person pajing off the charge can, 
 
 (') ■Williams's Keal Property, ject : 3 & 4 W. & M. c. 4 (Fraudulent 
 
 16th edit. p. 365. Devises) : 47 Geo. 3, c. 74 (Sir 
 
 (^) Bankruptcy Act, 1883, s. 44. Samuel Eomilly's Act); repealed, 
 
 (') 1 & 2 Vict. c. 110 ; 27 & 28 but to a great extent re-enacted by 
 
 Vict. c. 112. 1 Wm. 4, c. 47 ; Shelford's Heal Pro- 
 
 (*) See as to old law on tliis sub- pcrty Statutes, and see notes 8th edit. 
 
Chap. VI.] ESTATES IN FEE SIMPLE. 47 
 
 however, by expressly declaring his intention, keep it alive. " If 
 there is no reason for keeping it alive, then, in the absence of 
 any declaration of his intention, equity will destroy it ; but if 
 there is any reason for keeping it alive, such as the existence of 
 another incumbrance, equity will not destroy it " (^). 
 
 It is a cardinal principle of English law that a man shall not Restraint 
 take away with one hand what he gives with the other ; and °.° ^'"="*- 
 therefore a condition in absolute restraint of alienation attached 
 to a grant or devise in fee is void as being repugnant to the 
 nature of an estate in fee. 
 
 In a case decided near the close of last century it was treated 
 as long-established law that a condition that a tenant in fee 
 should not alien was inconsistent and repugnant to the grant, 
 and therefore void (^). 
 
 The law on this subject was very carefully reviewed in a 
 recent case. A testator devised an estate to his son in fee. 
 The will next contained a proviso that if the son, his heirs, or 
 devisees, or any persons claiming through or under him or them, 
 should desire to sell the estate, or any part or parts thereof, in 
 the lifetime of the testator's wife, she should have the option to 
 purchase the same at the price of £3000 for the whole, and at a 
 proportionate price for any part or parts thereof, and that the 
 property should accordingly be first offered to her at such price 
 or proportionate price or prices. The real selling value of the 
 estate was, at the date of the will and at the time of the testator's 
 death £15,000. The Court decided that the proviso amounted 
 to an absolute restraint on alienation during the life of the 
 testator's widow; that it was consequently void in law; and 
 that the son was entitled to sell the estate as he pleased, with- 
 out first offering it to the widow at the price named in the 
 will (3). 
 
 A similar point arose in another recently decided case. By an 
 instrument in the form of a settlement, but proved as a will, 
 real and personal property had been given to trustees upon 
 trust for the sole use and benefit of the settlor's son to " his 
 heir, executors, and administrators," to be assigned and trans- 
 
 (') Adams v. Angell, 5 Ch. D. 634. or judgment is an incident of the 
 
 (') Bradley v. Ptixoto, 3 Vee. 324, estate, and no attempt to deprive 
 
 and see notes in Tudor's Eeal Pro- it of that incident by direct prohibi- 
 
 perty Cases, 3rd ed., p. 968, et seq. tion would be valid. If a testator, 
 
 (') In re Bosher. Bosher v. Bosher, after giving an estate in fee simple 
 
 26 Ch. D. 801, where the cases on to A., were to declare that such 
 
 the subject are eolJected and re- estate would not be subject to the 
 
 viewed. bankruptcy laws, that would clearly 
 
 The liability of the estate to be be inopiiative : In re Dugdale. I)ug- 
 
 attached by creditors on a bankruptcy dale v. Dugdale, i!S Ch. D. 182. 
 
48 SEAL PROPERTY. ■ [Book I. 
 
 ferred to him as soon as conveniently might he after the settlor's 
 death. The gift, however, was subject to a proviso that if the 
 sun should die unmarried and without issue, his share should go 
 over, and also that the property assigned in trust for the son 
 was to he held hy the trustees upon the express condition, that 
 he should not during his life have power to " mortgage, sell, 
 alien, charge, or incumber " any part of the property, and that 
 in that event the trustees should stand possessed of such if in 
 trust for other persons. The Court of Appeal decided that the 
 son took an absolute interest in fee simple under the instrument, 
 and that the condition of forfeiture in case of charge or aliena- 
 tion was therefore void as repugnant Q'). 
 
 The complete right of alienation which, as already pointed 
 out (ante, p. -17), is generally inseparable from the estate in 
 fee simple, is limited to some extent by the English law, not 
 only with regard to persons but also with reference to objects (^). 
 The principal cases of personal disability under the present 
 law which aifect the alienation of property are those of married 
 women, infants, lunatics, and idiots. 
 
 Married The subject of the property of married women is considered in 
 
 women. ^ separate chapter {post, p. 210, et seq.). 
 
 Infants. An infant cannot make a will (post, p. 158). A conveyance 
 
 of real estate by an infant in his lifetime is not, like his will, 
 wholly void, but is voidable on his attaining the age of t"enty- 
 one, at which age, if he ratifies his previous conveyance, it will 
 be binding on him. An exception has been already pointed out 
 with regard to gavelkind land which by custom an infant can 
 alienate by feoffment at the age of fifteen years. 
 
 An Act passed in the year 1855 (the Infants' Settlement Act, 
 18 & 19 Vict. c. 43), enables infants (males not under the age 
 of twenty, and females not under the age of seventeen), with 
 the sanction of the Court of Chancery (now Chancery Division), 
 to make valid and binding marriage settlements upon or in 
 contemplation of marriage, and the Act provides that any 
 conveyance so executed by such an infant, with the appro- 
 bation of the Court, for the purpose of giving effect to such 
 settlement, shall be as valid and effectual as if the person 
 executing the same were of the full age of twenty-one years. 
 This, however, is followed by a provision that the enactment 
 shall not extend to powers of which it is expressly declared 
 that they shall not be exercised by an infant, and "that, in 
 
 C) Corbett v. Cnrbett, 14 P. D. 7. 
 (_"') Williams on Heal Property, I6tli cflition, p. 83, et seq. 
 
Chap. VI.] ESTATES IN FEE SIMPLE. 49 
 
 case any appointment under a power of appointment or any- 
 disentailing assuitince shall have been executed by any infant 
 tenant in tail under the provisions of the Act, and such infant 
 shall 'afterwards die under age, such appointment or disentailing 
 assurance shall thereupon become absolutely void " : (see as to 
 this statute, post, p. 612). 
 
 Conveyances by lunatics and idiots, unless executed in lucid Lunatics, 
 intervals, are void ; and prior to an Act of Geo. III. (^) there was 
 no power to sell or charge the estate of a lunatic. The prin- 
 ciple of this statute has been developed by subsequent legisla- 
 tion, and now under the Lunacy Act of 1890 (^), the judge in 
 lunacy is empowered to order that any property of the lunatic, 
 whether ^present or future, be sold, charged, dealt with or dis- 
 posed of as th^ judge thinks most expedient for the purpose of 
 raising or securing or repaying with or without interest, money 
 which is to be or which has been applied to all or any of the 
 purposes specified in the Act. These purposes are : — 
 
 Payment of the lunatic's debts' or engagements ; 
 
 Discharge of any incumbrance on his property ; 
 
 Payment of any debt or expenditure incurred for the lunatic's 
 maintenance, or otherwise for his benefit ; 
 
 Payment of or provision for the expenses of his future 
 maintenance. 
 
 The judge has also power to charge the, lunatic's property for 
 permanent improvements, and to authorize the committee of the 
 lunatic's estate to sell, exchange, lease it, &c. 
 
 The objects in respect of which the alienation of land is 
 limited by English law may now be briefly noticed. 
 
 The law limits very strictly the powers of an owner in dealing 
 with his land for the benefit of a charity. 
 
 At a future portion of this work the subject of charities will Charities, 
 receive farther consideration; but for the present it will be 
 sufScient for us to call attention to the fact that under the 
 Mortmain and Charitable Uses Act (61 & 52 Vict. c. 42), which 
 came int(j operation in 1888, and consolidated and amended the 
 previous law on the subject, any assurance of land for the 
 benefit of a charity, with the exceptions hereafter noticed (post, 
 p. 235), which is not made in accordance with the requirements 
 of that Act, is to be void. 
 
 (') 43 Geo. 3, o. 75. expressly authorised by the Act; and 
 
 Q) 53 Vict. c. 5, s. 117, et seq. See see the recent case of In re Fox, 33 
 
 Pope on the Law and Practice of Ch. Div. 37, where a form of order 
 
 Lunacy, 2nd ed. p. 182, et seq., where is given, authorising a mortgage of 
 
 it is pointed out that the sale or charge tlie lunatic's estate to pay the debts 
 
 must be strictly confiiied to the objtcts of her ancestor. 
 
 VOL, I. - E 
 
50 
 
 REAL PRO PER TT. 
 
 [Book I. 
 
 Voluntary 
 and frau- 
 dulent 
 settle- 
 ments. 
 
 Companies, The holding of land by companies and corporations is also 
 severely restricted. The Companies Act, 1862, s. 21, enacts that 
 " No company formed for the purpose of promoting art, science, 
 religion, charity, or any other like object, not involving the 
 acquisition of gain by the company, or by the individual 
 members thereof, shall, without the sanction of the Board of 
 Trade, hold more than two acres of land ; but the Board of 
 Trade may, by licence, under the hand of one of their principal 
 secretaries, or assistant secretaries, empower any such company 
 to hold lands in such quantity, and subject to such conditions, 
 as they think fit. Corporations sole and aggregate, with some 
 exceptions, cannot hold lands without a licence. 
 
 Again, great as are the powers of dealing with his estate which 
 the law confers upon the tenant in fee simple, it yet proceeds 
 strictly upon the principle that he must be just before he is 
 generous, and accordingly a statute (13 Eliz. o. 6) provides 
 that all grants and conveyances of lands or goods, or any 
 profit thereof, made with intent to delay, hinder, or defraud 
 creditors or other persons of their lawful actions, debts, 
 damages, &c., shall be utterly void against such creditors or 
 persons. This statute is made for the protection of creditors, 
 and another statute of the same reign, made for the protection 
 of purchasers (27 Eliz. c. 4), renders voluntary settlements 
 vgid as against subsequent purchasers for value, under which 
 head are included mortgagees, lessees, &c., of the same lands, 
 tenements, or other hereditaments. These important statutes 
 will be hereafter considered more fully when we come to speak 
 of settlements {fost, p. 144). Settlements may also be void under 
 the provisions of the Bankruptcy Act, 1883 {^ost, pp. 145, 921). 
 
 EuLEs OF Descent. 
 
 Let us now proceed to consider the descent of a fee simple. 
 
 In a case where the sole owner of an estate in fee simple 
 dies without having alienated it during his lifetime, or by his 
 will, recourse must be had to the rules or canons of descent, to 
 answer the question who shall succeed to the property. The 
 phrase " sole owner " is here used so as to exclude the idea of a 
 joint tenancy in which the property would go to the survivor 
 (jpost, p. 69). 
 
 The person from whom the descent is traced 'is sometimes 
 called the propositus, i.e. the person proposed. The person who 
 succeeds by descent to an estate of inheritance is called the heir, 
 and before proceeding to consider the canons of descent, it may be 
 well to say a few words with regard to the position of the heir : 
 
Chap. VI.] ESTATES IN FEE SIMPLE. 51 
 
 The law on the subject is expressed in the two maxims : 
 " Solus deus heredem facere potest non homo," and " Nemo est hmres 
 viventis " (J-") : " No man can be heir during the life of his 
 ancestor." The heir apparent is he whose right of inherit- 
 ance is indefeasible, provided only he outlive the ancestor. 
 
 The heir presumptive, on the other hand, is he or she who, if Heir pre- 
 the ancestor should die immediately, would be his heir, but sumptive. 
 whose right may be defeated by the birth of some nearer heir. 
 Thus the eldest son is heir apparent to his father, because if he Heir 
 survive the father he must be heir. A daughter, whose right apparent. 
 would be defeated by the birth of a son, is only an heir pre- 
 sumptive. 
 
 The law with regard to the descent of an estate in fee is 
 now governed by the Descent Act (3 & 4 Wm. 4, c. 106), 
 amended on one point by Lord St. Leonards' Act (2), and is 
 contained in the following rules : — 
 
 Eule 1. Inheritances shall descend lineally»to the issue of the 
 last purchaser in infinitum. 
 
 A purchaser is defined by the Act to mean the person who Purchaser, 
 last acquired the land otherwise than by descent, or by escheat, 
 partition, or inclosure, by the effect of which the land shall have 
 become part of or descendible in the same manner as other land 
 acquired by descent. Prior to the Inheritance Act, the rule was 
 seisinafacit stijpitem, i.e., the descent was to be traced from the per- 
 son who last had seizin, or actual possession, of the property (^). 
 
 " The former law " on this subject, as is pointed out by the 
 Eeal Property Commissioners, " produced many anomalous con- 
 sequences, as it sometimes made it a matter of chance whether 
 a whole sister or a half brother of the person who last died 
 entitled, or whether a father or an uncle, or more remote rela- 
 tion of the person who last actually enjoyed the property should 
 inherit ; and it might happen that one part of a family estate, 
 having been in the occupation of a tenant, should go one way ; 
 another part, as to which the possession might have remained 
 vacant during the time of the person last entitled, should go 
 another way " (*). 
 
 Q) See Broom's Legal Maxims as tainted persons, and see further notes 
 
 to this maxim. in Shelford's Eeal Property Sta- 
 
 C) The great changes introduced tutes, 8th ed. p. 436. 
 
 by this Act were (1) that the descent (') See Ingilby v. Amcotts, 19 Beav. 
 
 is now to he traced fiom the pur- 593, and as to seizin, Leach v. Jay, 
 
 chaser, and not to be traced from the 9 Ch. 1). 42. See as to coparceners, 
 
 person last seized ; (2) with regard to Cooper v. France, 19 L. J. (Ch.) 315, 
 
 the admission of the half blood ; (3) post, 62. 
 
 with regard to the " descent " of the (') See further notes to Shelford's 
 
 property to the ancestor; (4) allow- Eeal Property Statutes, 8th ed. 
 
 ing descent to be traced through at- p. 435, et seq. 
 
 E 2 
 
52 HJEAL PROPERTY. [Book I. 
 
 Rules of Eule 2. The male issue shall be admitted before the female (i). 
 
 descent. Exceptions to this rule occur in the case of gavelkiad lands, 
 borough English lands, and some lands of customary tenure. 
 
 Eule 3. Where there are two or more males in equal degree, 
 the eldest only shall inherit, but the females all together ; excep- 
 tions to this rule occur in the case of gavelkind lands, borough 
 English lands, and in some lands of customary tenure. 
 
 Eule 4. The lineal descendants in infinitum of any person 
 deceased shall represent their ancestor : that is, shall stand in 
 the same place as the person himself would have done had he 
 been living. Thus, the child, grandchild, or great-grandchUd 
 (either male or female) of the eldest son succeeds before the 
 younger son, and so in infinitum. 
 
 The four first rules of descent which have just been stated 
 apply alike to estates in tail unless and until barred under the 
 Fines and Eecoveries Act (ante, p. 35), as well as to estates in 
 fee simple. The remaining rules apply only to estate in fee 
 simple. The idea of each of these rules may be conveyed 
 shortly by saying that rule 5 deals with the " descent " of 
 real estate to the ancestor ; rule. 6 with the admission of the 
 father and male paternal ancestors, &c. (i.e. preference of the 
 male stock) ; rule 7 with the admission of the half blood ; rule 8 
 with the rare-occurring cases of questions as to the admission 
 of female paternal ancestors ; rule 9, introduced by Lord St. 
 Leonards' Act, passed in 1 859, provides for the case where there 
 is a total failure of heirs of the purchaser, treating the person 
 last entitled as the purchaser (2). 
 
 Eule 5. The fifth rule is, that on failure of lineal descend- 
 ants, or issue of the purchaser, the inheritance shall descend to 
 his nearest lineal ancestor. 
 
 Eule 6. The sixth rule is, that the father and all the male 
 paternal ancestors of the purchaser and their descendants shall 
 be admitted, before any of the female paternal ancestors or their 
 heirs ; all the felnale paternal ancestors and their heirs, before 
 the mother or any of the maternal ancestors or her or their 
 descendants ; and the mother and all the male maternal ancestors, 
 and her and their descendants, before any of the female maternal 
 ancestors or their heirs. 
 
 Eule 7. A kinsman of the half blood shall be capable of being 
 heir; and such kinsman shall inherit next after a kinsman 
 in the same degree of the whole blood, and after the issue of 
 
 (') This rule is founded on the " the quarter-btaff before the distaff." 
 principle expressed in the quaint say- i^) 22 & 23 Vict. u. 35, ss. 19, 20. 
 
 ings, " the spear before the spindle," 
 
Chap. VI.] ESTATES IN FEE SIMPLE. 53 
 
 such kinsman when the common ancestor is a male, and next Rules of 
 after the common ancestor, when such ancestor is a female. descent. 
 
 Rule 8. In the admission of female paternal ancestors, the 
 mother of the more remote male paternal ancestor, and her 
 heirs, shall be preferred to the mother of a less remote male 
 paternal ancestor, and her heirs ; and in the admission of female 
 maternal ancestors, the mother of the more remote male 
 maternal ancestor, and her heirs, shall be preferred to the 
 mother of a less remote male maternal ancestor, and her heirs. 
 
 Kule 9. The last rule is introduced by Lord St. Leonards' Act Lord St. 
 (22 & 23 Vict. c. 36), viz., "where there shall be a total Leonards' 
 failure of heirs of the purchaser, or where any land shall be 
 descendible as if an ancestor had been the purchaser thereof, 
 and there shall be total failure of the heirs of such ancestor, 
 then and in every such case the land shall descend, and the 
 descent shall thenceforth be traced, from the person last 
 entitled to the land, as if he had been the purchaser thereof." 
 
 In connection with the custom of descent it should also be 
 remembered that it is an established rule that proof of a custom 
 of descent contrary to the course of the common law prevailing 
 in a nearer degree of consanguinity is no proof of such custom 
 extending to a more remote degree (^). 
 
 And now, having enumerated the canons of descent, we may c^ggs ^^ j^ 
 briefly notice a few of the more important cases on the subject, descent. 
 
 One important case which was decided many years ago shall 
 be noticed subsequently when we come to speak of coparceners 
 {post, p. 62), and another in the chapter on copyholds {post, 
 p. 193), but the following cases may be more appropriately 
 considered in the present place. 
 
 A testator having inherited lands ex parte maternd devised 
 them to trustees in fee upon trust for his widow for life, and, 
 on her decease, to convey the same to such person as should 
 answer the description of his " heir-at-law," and died, leaving 
 only collateral heirs ; it was held that the heir general, and not 
 the heir ex parte maternd, was entitled. Lord Hatherley, then 
 Vice-Chancellor Wood, in delivering judgment, said, " There is 
 not any authority precisely in point, but the principle must 
 be, that when once the descent is broken by a devise of the 
 whole fee simple to trustees, upon trust to convey it to the 
 testator's heir, they are bound to convey it to the person who is 
 heir of the testator at the common law " (^). 
 
 (') Per Crompton, J.. 2 H. & N. 661. 
 O Davis V. Kirk, 2 K. & J. 391. 
 
54 
 
 REAL PBOPERTY. 
 
 [Book I. 
 
 Title to 
 land in 
 England. 
 
 Aliens. 
 
 The question how the paternal ancestors are to be exhausted so 
 as to let in the female line, was considered by the Court in 1877, 
 when the case was stated as follows, by one of the judges : — 
 
 " I think the true meaning of the section is that, when there 
 is no reasonable possibility of ascertaining that there are 
 descendants from the paternal ancestors — I mean, of course, a 
 reasonable poshibility, after due and sufficient investigation and 
 inquiry, — and what may be a due and sufficient investigation 
 must depend on the circumstances of the case — then descendants 
 of the maternal ancestors must be sought for. In the present 
 case, all the descendants of paternal ancestors who have been 
 born within 150 years have been exhausted. The intestate was 
 the last of those descendants. Therefore we are considering a 
 case in which certainly there has been a very full and very com- 
 plete investigation " (i). 
 
 The title to land in England is governed by English law, and 
 it has accordingly been held that when a person is not legitimate 
 at English law, though he be legitimate by the law of the 
 country where he is domiciled, he cannot inherit nor can inherit- 
 ance be traced from him (2). 
 
 An interesting case was decided on the subject of descent 
 in 1884 (3). The question arose whether the descent as to certain 
 real property was to be traced ex parte paterna or ex parte maternd. 
 The propositus was entitled to an equitable estate in the pro- 
 perty under his father's will, and also to a legal estate which 
 descended to him from his mother. The Court decided that 
 as the equitable estate merged in the legal, the descent must be 
 regulated by the legal estate, and that therefore on his death, 
 intestate and without issue, the property descended to the heir 
 of his maternal grandmother, who was the last purchaser of the 
 legal estate, and not to his own heir. 
 
 An exception from the right of holding land which formerly 
 existed in English law, but has now been abolished by legisla- 
 tion, may here be noticed. 
 
 The Naturalization Act, 1870, enacts that real and personal 
 property of every description may be taken, acquired, held, and 
 disposed of by an alien in the same manner in all respects as by 
 a nafural-born British subject; and a title to real and personal 
 property of every description may be derived through, from, or 
 in succession to an alien, in the same manner in all respects. 
 
 (') Per B;iggallay, L.J., in Greaves 
 V. Greenwood, 2 Bxch. Div. 289. 
 C) Doe V. Vardill, 2 CI. & Fin. 
 
 571 ; Be Don, 4 Drew. 191. 
 
 C) In re Douglas. Wood v. Douqlas, 
 28 Ch. D. 327. 
 
Chap. VI.] ESTATE 8 IN FEE SIMPLE. 55 
 
 as thiougli, from, or in siiccession to a natural-born British 
 subject (1). 
 
 Another " incident " of the fee simple estate which must be Escheat. 
 noticed is that it is liable to escheat, which may be defined or 
 described as follows : — It is the reverter of lands held for an estate 
 in fee simple to the next superior lord propter defectum tenentis 
 when the tenant in fee simple dies without having alienated his 
 estate in his lifetime or by his will, and where there is a total 
 failure of his heirs. 
 
 The law with regard to escheat was extended to equitable 
 estates and to incorporeal hereditaments by the Intestates 
 Estates Act, 1884, which provides that after the passing of the 
 Act (^) where a person dies without an heir, and intestate in 
 respect of any real estate, consisting of any estate or interest, 
 whether legal or equitable, in any incorporeal hereditaments, 
 or of any equitable estate or interest in any corporeal heredita- 
 ments, whether devised or not devised to trustees by the will 
 of such person, the law of escheat shall apply in the same 
 manner as if the estate or interest above-mentioned were a 
 legal estate in corporeal hereditaments (sect. 4). (^) 
 
 The subsequent sections of the Act provide that the Crown 
 may waive its rights, and that where any beneficial interest in 
 the real estate of any deceased person is " owing to the failure 
 of the objects of the devise, or other circumstances happening 
 before or after the death of such person, in whole or in part 
 not efiectually disposed of," such person shall be deemed, for 
 the purposes of the Act, " to have died intestate in respect of 
 such part of the said beneficial interest as is inefiectually 
 disposed of." 
 
 With regard to forfeiture for treason or felony, an Act passed Forfeiture. 
 in the year 1870 (33 & 34 Vict. c. 23), provides that, from and 
 after the 4th July, 1870, no confession, verdict, inquest, con- 
 viction, or judgment of or for any treason or felony, or felo de se, 
 shall cause any attainder or corruption of blood or any forfeiture 
 or escheat. But nothing in the Act is to affect the law of for- 
 feiture consequent upon outlawry. 
 
 Q) The Naturalization Act, 1870 (») 47 & 48 Vict. c. 71, ss. 4, 6, 7, 
 
 (33 & 34 Vict. u. 14). It is not retro- and see as to procedure with respect 
 
 spective : Sharp v. St. Sauveur, L. E. to escheat, 50 & 51 Vict. c. 53, under 
 
 7 Ch. 343, and ships are expressly which rules have heen made (see 
 
 excepted from the property which Weekly Notes, Aug. 3, 1889). See 
 
 may be so held. Bee also as to generally as to escheat and forfeiture, 
 
 naturalization, 33 & 34 Vict. c. 102 ; Attorney -General v. Sands, Tudor's 
 
 35 & 36 Vict. 0. 39. Ktal Property Cases, 3rd ed. p. 760, 
 
 C) Challis' Keal Property, p. 33, et seq. 
 et seq. 
 
56 BEAL PROPERTY. ' [Book I. 
 
 And now, having considered the principal characteristics of 
 the estate in fee simple, we shall hereafter regard it in another 
 respect, viz. in respect of the modes in which its owner may 
 deal with it. 
 
 The estate may be alienated wholly or partially by act inter 
 vivos or by will. These subjects shall be subKcquently con- 
 sidered under the headings of Conveyances, Mortgages, Leases, 
 Settlements, and Wills, but our next chapter will be concerned 
 with estates in which there is concuiTent ownership. 
 
 The rules of descent have been cleverly put in verse as 
 follows : — 
 
 "Descent from the purchaser is traced; 
 And males before the females must be placed; 
 Age will prevail ("), but females take as one. 
 And children take as parents would have done ; 
 Next, seek the ancestors near before far, 
 And males again before the females are. 
 The half-blood issue now their title make, 
 And mothers more remote the sooner take. 
 When of the purchaser all heirs are dead, 
 Heirs of the last-entitled take instead." 
 
 Law Students' Jovmal, 
 January, 1890. 
 
 (') Sometimes given thus : instead of " age will prevail," read " eldest of 
 males." 
 
( 57 ) 
 
 CHAPTER VII. 
 
 Joint Estates. 
 
 Joint estates or interests in lands and tenements held in 
 "concurrent ownership," as distinguished from sole or several 
 estates, are divided into four classes ; these are : — • 
 
 I. Estates in joint tenancy : Joint 
 
 II. Tenancies in common : estates. 
 
 III. Estates in parqenarj' or coparcenary : 
 
 IV. Tenancies by entireties. 
 
 I. A joint tenancy is where property is conveyed, devised, or 
 bequeathed to persons jointly, either for years, lives, pur autre 
 vie, or in fee Q-^. A joint tenancy cannot arise by descent or 
 operation of law. Each joint tenant is seized of the whole and 
 every part, or, as it is termed in old Norman French, per my et 
 per tout (2). 
 
 A joint tenancy is characterised by " four unities," viz. : — Four 
 
 (1) Unity of interest : unities of 
 
 (2) Unity of title: Cncy 
 
 (3) Unity of time : 
 
 (4) Unity of possession. 
 
 (1) Unity of interest. — The estates of all the joint tenants 
 must be the same in quantity or extent. Thus, an estate cannot 
 be given to one for life and to the other for years, as joint 
 tenants. Two, however, may hold as tenants for their lives, 
 with remainder to one in fee or in tail. 
 
 (2) Unity of title, viz. the estate must be created by the 
 same act or instrument, whether legal or illegal : 
 
 The doctrine of unity of title received a curious illustration in 
 a case which came before the late Lord Chancellor Hatherley in 
 1871. Eobert Ward and Bryan Ward came into lawful posses- 
 
 (') Litt. ss. 280, 281. is entitled to nothing separately, and 
 
 {") Another explanation which has yet to the whole jointly, et sic totvm 
 
 been given of these words is that the tenet et nihil tenet. See Watson's 
 
 word mie signifies nothing, and that Oompend. of Equity, 2nd ed. vol. i. 
 
 the meaning is that the joint tenant p. 500. 
 
58 BEAL PBOPERTT. [Book I. 
 
 sion of a certain property as tenants pur autre vie (ante, p. 22), 
 and after the life had dropped, they still continued in possession 
 as owners, and went on in this way for more than twenty years. 
 Bryan Ward then died, and the question ultimately arose 
 Joint whether there had been a joint tenancy. The Lord Chancellor, 
 
 tenancy. ^^ delivering judgment, said : " In what capacity do they so 
 hold on ? It appears to me as joint tenants. The possession of 
 each became wrongful as to this share at the same moment of 
 time, so that they acquired their title at the same moment of 
 time, they held by one common right, or by one common 
 wrongful title, whichever you please to call it, and they 
 have done nothing to sever their tenancy. As to the business 
 carried on by Bryan Ward and Eobert Ward, it is not 
 averred that they entered into a joint speculation as farmers 
 and made this land partnership property, nor is such a view in 
 the least consistent with any of the facts of the case. They 
 appear simply to have held on because no one made any claim 
 against them; and their cultivating the property at their 
 equal expense, and sharing the profits equally, is just what 
 two farmers would do as to land of which they were joint 
 tenants " (O- 
 
 (3) Unity of time. — The estates must vest at the same time, 
 but this rule does not apply to estates created by deeds operating 
 under the Statute of Uses or by Will. 
 
 (4) Unity of possession. — Joint tenants are seized in the old 
 Norman French phrase, per my et per tout, i.e. each holds an equal 
 share in the land, and at the same time is seized of the whole 
 land. 
 
 The right of survivorship, or jus accrescendi, is also an 
 incident of joint tenancy (^). On the death of one of two or 
 inore joint tenants, the estate remains to the survivors or 
 survivor i With respect to survivorship between joint tenants, 
 the following rules apply : — 
 
 Jus accrescendi prsefertur oneribus. — The right of survivorship 
 takes priority over incumbrances on the property. Thus a 
 rentcharge granted by a joint tenant will not be binding upon 
 the survivor (2). 
 
 Jus accrescendi prsefertur ultimse voluntati. — The right of sur- 
 vivorship prevails over the last will. It follows from this that 
 a joint tenancy cannot be severed by a will of one of the joint 
 tenants. 
 
 (') Ward V. Ward, L. E. 6 Ch. nerehip property ; 53 & 5i Vict. c. 39, 
 789, 791. See as to, the conversiou s. 22. 
 iato personalty of land held as part- {') Litt. 3. 277 Co. Litt. 180 b. 
 
Chap. VII.] JOINT ESTATES, ETO. 59 
 
 Jus accrescendi inter mercatorea pro heneficio commereii locum non Joint 
 habet. — The right of survivorship does not exist among merchants *^"*"''y- 
 for the benefit of commerce. The general rule of law is that 
 where persons have entered into a joint contract for the 
 purchase of an estate, and have paid, or contracbed to pay, the 
 purchase-money in equal proportions, the Court will not, upon 
 the death of one of them, decree a conveyance to the survivor 
 and the heirs of the deceased purchaser as tenants in common, 
 but the surviving purchaser will be solely entitled to the benefit 
 of the contract, and to have a conveyance of the estate to him- 
 self alone. 
 
 It was, however, settled even in the time of Lord Coke, that, 
 as between joint merchants, wares, merchandises, debts or 
 duties that they have as joint merchants or partners, shall not 
 survive, but shall go to the executors of him that deceaseth ; 
 and this is per legem mercatoriam. This rule is now extended 
 to the case of real property which has become partnership 
 property (}). 
 
 Although a joint tenant cannot dispose of his interest by 
 will, he may alienate it in his lifetime, as, e.g. sale or mortgage. 
 The effect of such alienation with respect to the share so dis- 
 posed of is to sever the joint tenancy and to convert the joint 
 interest into a tenancy in common — except, indeed, where one 
 of two joint tenants disposes of his share to his co-tenant, in 
 which case the latter becomes sole owner of the entirety. But 
 if, for example, there be three joint tenants, and one of them 
 grants his share to a stranger, such stranger will then hold 
 one undivided third part of the land as tenant in common with 
 the remaining two who still hold the other two-thirds as joint 
 tenants (^). 
 
 II. Tenancy in common is where property is conveyed. Tenancy in 
 devised, or bequeathed to persons in undivided shares for any common, 
 estate, expressly as tenants in common, or in other terms 
 indicating that they are to take distinct shares in the land. 
 It may also arise, as has been seen, through the alienation by 
 a joint tenant or coparcener of his or her share. 
 
 (1) Partnership Act, 1890 (53 & 54 12 App. Gas. 184 ; White v. Tyndall, 
 
 Vict. c. 39, SB. 22 and 46, and see 13 App. Gas. 263; and see generally 
 
 as to the law independent of this on tlje subject of joint tenancy : 
 
 enactment. Lake v. Craddock, 3 P. Tudor's Eeal Property, 3rd edition, 
 
 Wms. 158 ; W. & T., 6th ed. vol. i. pp. 889, 890 ; In re Bowe, W. N. 
 
 p. 217 ; Lindley on Partnership, 5th 1889, pp. 74, 161 ; and see as to 
 
 ed. p. 840; Be Hulton. Sulton v. severing joint tenancy, Burnaby v. 
 
 Lister, W. N. (1890) p. 14. Equitable Beversionary Interest So- 
 
 f ) See as to the liability of joint ciety, 28 Gh. D. 416. 
 tenants : Burns v. Bryan or Martin, 
 
60 BEAL PBOFEBTY. [Book I- 
 
 Tenancy in A tenancy in common is usually created in a deed by 
 common. limiting the estate to A and B equally to be divided between 
 tbem as tenants in common and not as joint tenants, tbough 
 the latter words " not as joint tenants " are not necessary. In 
 a will any words showing that a division amongst the parties 
 is intended will create a tenancy in common (^). 
 
 Thus the words " to be divided," or " equally," or " between," 
 or " amongst " or " respectively," or " the parties to participate," 
 have been held to create a tenancy in common. 
 
 The Court leans towards a tenancy in common, and will 
 prefer it when there is a doubt. 
 
 So in several cases where there have been such words as 
 " jointly and equally " the Courts have held the gift a tenancy 
 in cpmmon. 
 
 Tenancy in common may arise in any of the following ways : — 
 
 (1) By express limitation. 
 
 (2) By severance of a joint tenancy. 
 
 (3) By severance (through alienation without partition) of the 
 interest of coparceners. 
 
 (4) By construction of law. 
 
 Tenants in common have a unity of possession, but a distinct 
 and several title to their shares. Their shares are not necessarily 
 equal, or similar in quantity of estate. And there is no 
 survivorship between tenants in common (^). 
 
 A tenant in common may alienate his share either in his 
 lifetime, or by will. The alienee will hold as tenant in common 
 with the other co-tenant or co-tenants, except where one of two 
 tenants in common disposes of his share to the other, in which 
 case the latter will be sole owner of the whole land. 
 
 III. Parceners at common law are females, or heirs of females, 
 who, when there is no nearer heir male, succeed upon an intes- 
 tacy of the person seized of an inheritance. 
 
 By the custom of gavelkind, also, heirs, whether male or 
 female, succeed upon an intestacy as parceners. 
 
 The essential distinction between joint tenancy and tenancy in 
 
 (') Tudor'B Eeal Trnperty, 3rd husband and wife, as the remainder 
 
 edition, p. 894, et seq. ; Theobald on muat vtst In interest at different 
 
 Wills, 3rd edition, p. 298 ; Jarman times, the respective lieirs will take 
 
 on Wills, 4th ed. vol. ii. p. 257. as tenants in common ; (II.) Under a 
 
 C) Challis' Keal Property, p. 298. limitation, in the form of an estate 
 
 G.'he following illnstrations are there tail, to two persons neither married 
 
 given of tenancies in common arising nor capable of lawful marriage, or 
 
 by operation of law ; — (I.) If a (con- to three or more persons, they will 
 
 tingent) remainder be limited to the take as tenants in common. 
 heiiB of two living persons, not bemg 
 
Chap. VII.] JOINT ESTATES, ETC. 61 
 
 common on tlie one hand and coparcenary on the other hand, is Co-par- 
 that joint tenancy and tenancy in common always arise by <^<=°^>'y- 
 purchase. 
 
 Coparcenary arises hy operation of law; it cannot be created 
 by grant or devise. 
 
 Coparcenary, like joint tenancy, is characterised by the 
 ■unities of interest, time, and title. Coparceners have also 
 unity of possession, so far, at least, that they hold in undivided 
 shares. But a coparcener is not deemed (as a joint tenant is), to 
 be seized of the whole land. And there is no right of survivor- 
 ship between coparceners. On the death of a coparcener tenant 
 in fee simple her share passes to her heir, unless she has dis- 
 posed of it by will ; for a coparcenary may alienate either in 
 her or his lifetime, or by will. The effect of such alienation is 
 to create a tenancy in common with respect to the share disposed 
 of, except where alienation is by one of two coparceners in 
 favour of the other, in which case the latter becomes sole owner 
 of the whole land Q-"). 
 
 The law on the various subjects connected with the ownership 
 of land by persons in " concurrent " ownership which we have 
 been considering is well illustrated by the two following 
 pioblems : — 
 
 (1) A., B., and C. are brothers, A. being the eldest ; B. and Illustra- 
 C. become joint tenants of land in fee simple ; B., without C.'s *'°"^" 
 knowledge, conveys his undivided moiety in fee to D. by way of 
 mortgage. B. then dies ; does C. on B.'s death take the entirety, 
 
 or does a moiety (subject to the mortgage) descend on A. as B.'s 
 heir-at-law ? 
 
 The solution of this matter is — 
 
 The mortgage being of B.'s entire interest will sever the 
 joint tenancy, and C. and D. will hold as tenants in common, 
 and on B.'s death intestate his share will descend to A. his heir, 
 subject, of course, to the mortgage. 
 
 (2) A testator devises land to A. and B. and their heirs. A. 
 dies intestate leaving a son, and afterwards B. dies intestate 
 leaving two daughters, one of whom dies intestate - leaving a 
 son. Who can convey the land to a purchaser ? 
 
 The solution of this problem is — 
 
 The surviving daughter of B. and the son (and heir) of the 
 deceased daughter are the proper parties to convey the land. 
 The limitation to A. and B. was one in joint tenancy ; and the 
 
 (>) Co. Litt. 163. 
 
62 
 
 REAL PBOPERTT 
 
 [Book I. 
 
 Pai'titiou. 
 
 Tenancy 
 by entire- 
 ties. 
 
 two daughters of B. were coparceners, amongst whom there is 
 no right of survivorship (y). 
 
 A curious question arose (^), whether, where a coparcener dies 
 intestate leaving a son, the descent was to he traced from her 
 father as purchaser, or whether her whole share descended to 
 her son as her heir. At common law, the heir was entitled, 
 and the Court proceeding on the ground that the meaning of 
 the Act was to leave the law of inheritance in such parts as 
 were plain ahsolutely as it was found, and only to alter it 
 where it was doubtful, decided that the Law of Inheritance Act 
 had made no difference, and that the heir of the daughter was 
 entitled. 
 
 Joint tenants, tenants in common, and coparceners may effect 
 a partition of the land between themselves so as to vest in each 
 of the co-owners a distinct portion of the land to he held by him 
 or her as sole owner. This partition may be either voluntary, by 
 the act and agreement of the co-tenants, or compulsory, at the 
 instance of any one of them, irrespective of the consent of the 
 others. At common law, coparceners alone had the right of 
 enforcing a partition; but by a statute of Henry "VIII. (f), this 
 right was extended to joint tenants and tenants in common. 
 Partition was formerly effected by writ of partition ; but this 
 remedy, having become obsolete, has been abolished by statute (*), 
 and the mode of enforcing a partition is now by action in the 
 Chancery Division (jiost, p. 655, et «eg.). 
 
 Formerly the Court could not direct a sale of the property 
 and division of the proceeds of sale in lieu of a partition, how- 
 ever inconvenient or disastrous to the interest of the parties 
 concerned a partition might be. The law on this point was 
 altered, however, by the Partition Act, 1868 (^). By this Act, 
 as amended by the Partition Act, 1876 (*), the Court may in 
 certain cases direct a sale of the property instead of a partition 
 (jpost, p. 555, et seq.). 
 
 TV. Tenancy by entireties may next be briefly considered. 
 
 At common law, husband and wife were regarded as forming 
 together but one person ; they did not hold property given 
 to them jointly, in undivided shares, but each was deemed 
 to be owner of the entirety or whole of the property. They 
 held, to employ in a varied form the technical language 
 
 (') Hallilay's Digest, 14th ed., 
 pp. 232, 233 ; and see note thereto 
 for a fnrtlier problem solved on 
 the same principle as question 
 Ko. 2. 
 
 (2) Cooper V. France, 19 L. J. Ch. 
 
 315. 
 («) 31 Hen. 8, o. 1. 
 (*) 3 & 4 Will. 4, c. 27, s. 3G. 
 C) 31 & 32 Ylct. c. 40. 
 (») 39 & 40 Vict. 0. 17. 
 
Chap. VII.] JOINT ESTATES, ETC. 63 
 
 which has been previously employed (p. 57), per tout et non per my. 
 Hence, there coiild he no partition between them ; and neither 
 could dispose of the property, or any part of it, without the 
 other's concurrence; and on the death of either of them, the 
 property remained to the survivor. 
 
 At common law, on a gift to husband and wife and a third 
 person, the husband and wife took half the property between 
 them as tenants by entireties, and held in joint tenancy with 
 the third party, who took the other half of the property (i). 
 
 The effect of the Married Women's Property Act, 1882 Q), 
 would seem to be to abolish tenancy by entireties in the case of 
 any gift to husband and wife made since that Act came into 
 operation. Under such a gift a husband and wife will now 
 take in equal undivided shares, the share of the wife being 
 her separate property (f). 
 
 The law with regard to such gifts was recently considered in 
 a case which came before the Court of Appeal. A testatrix who Married 
 died after the 1st of January, 1883 (*) (the date when the Married Women's 
 Women's Property Act came into operation), by her will, dated Act'' 1882 
 before that time, gave all the residue of her real and personal ' 
 property to A. B. and G. B. and E., C. B.'s wife. The Court 
 decided that A. B. was entitled to one half of the property, 
 C. D. to a quarter, and E., his wife, to the other quarter for 
 her separate use. 
 
 In this case Lord Justice Cotton stated that in his opinion 
 "the Married Women's Property Act, 1882, was not intended to 
 alter any rights except those of husband and wife inter se." 
 
 (•) Litt. s. 291. see Be Dixon, 42 Ch. D. 306, where 
 
 (2) 45 & 46 Viot. c. 75. Be Jupp is commented on, and 
 
 (') In re March, 27 Oh. D. 166. Warrington v. Warrington, 2 Hare 
 
 (*) In re Jupp, 39 Ch. D. 148, and 54, followed. 
 
( 64 ) 
 
 CHAPTEE VIII. 
 
 Estate in 
 possession. 
 
 Estate in 
 expect- 
 ancy. 
 
 Berersion, 
 
 rcrtJEE Estates, 
 
 Estates, •when considered with reference to the times of their 
 enjoyment, are, as has already been pointed out (ante, p, 15), 
 either in possession or in expectancy. An estate is in possession 
 ■when the owner is entitled to the immediate enjoyment of it ; 
 and it must he borne in mind that an estate in possession, as 
 contrasted with an estate in expectancy, comprehends not 
 merely the actual and bodily occupation or enjoyment of the 
 property, but a right to have it (i). 
 
 An estate is said to be in expectancy when the owner has not 
 the immediate possession and enjoyment of the land, but is 
 entitled thereto at a future time (2), Estates in expectancy are 
 either reversions, remainders, or executory interests. 
 
 Suppose A. B., the owner of an estate in fee simple grants an 
 estate to C, D, for life : The estate to C. D, for life so granted 
 or " carved out," as it is technically called, is called the par- 
 ticular estate, being a particula or portion of the whole estate 
 in fee simple, originally held by A. B, The estate which still 
 remains in A. B,, " the present estate in virtue of which 
 he is to have again the possession at some future time," is 
 called a reversion (^). The owner of the estate is called a 
 reversioner. 
 
 Suppose, however, that when A, B, was granting the life 
 estate to 0, D, he at the same time, and by the same instrument, 
 granted subsequently to, or as it is called " subject " to C, D,'s 
 life interest all the rest of his estate to E, E,, or gave a life 
 estate or life estates after C, D,'s to another person or other 
 persons, each estate so conveyed after C. D.'s life estate is called 
 a remainder and the owner of it a remainderman, 
 
 A reversion always arises by mere operation of law, i.e. it is 
 
 (') Goodeve's Keal Property, 2nd 
 ed. p, 211. 
 
 Q Edwards' Compendium of Real 
 Property, p. 100. 
 
 (^) Williams on Real Property, 
 
 16th ed. p. 282. A reversion, says 
 Sir E Coke, is when the residue of 
 the estate doth continue in him that 
 made the particular estate : Co. Litt. 
 226. 
 
Chap. VIII.] FUTURE ESTATES. 65 
 
 a necessary consequence of granting a particular estate and 
 doing nothing more. 
 
 A remainder is always created by the act of the parties, and Remainder. 
 while there may be any numbi-r of remainders in the same estate, 
 there can be only one reversion. 
 
 Another distinction which exists between a reversion and a Reversion. 
 remainder is this : where the owner of an estate becomes a 
 reversioner by the grant or creation of a less estate, a tenure 
 springs into existence between him and the person put into 
 possession, and to this tenure (sometimes called an imperfect 
 tenure, to distinguish it from the tenure in fee simple) rent 
 service is usually incident. On the other hand, between the 
 different persons successively entitled in remainder who all hold 
 from the same grantor there is no tenure. 
 
 Eemainders are either vested or contingent. 
 
 A vested remainder is an interest certain and indefeasible. Vested re- 
 i.e. not liable to be defeated, an interest which however small ™'"" ^^' 
 it may be, being limited to some certain person or persons 
 in existence and on a certain event, is always ready, from its 
 commencement to its end, to come into possession the mo'nent 
 the prior estates, be they what they may, happen to determine. 
 There is always an immediate fixed right of future enjoyment. 
 
 A contingent remainder is one which is limited to an uncer- Contingent 
 tain person or on an uncertain event. As distinguished from a '■^™''"'"^'^- 
 vested remainder, it is an interest in remainder, which is not 
 ready from its commencement to its end, to come into posses- 
 sion at any moment when the prior estates may happen to 
 determine ('). 
 
 (') Four sorts of contingent re- dition upon which the remainder is 
 
 mainders are dibtinguished by Mr. limited is certain in event, but the 
 
 Fearne : First, Tyhbre the remainder determination of the particular estate 
 
 depends entirely on a contingent may happen before the contingency 
 
 determination of the preceding estate takes place, e.g. if an estate be given 
 
 itself, as wlien a conveyance is made to A. B. for life, and after the death 
 
 to B. until 0. returns from Rome, of C. D. to another in fee. Now C. 
 
 and after such return of C. remainder must cei tainly die some time or other, 
 
 ovi-r in fee ; Secondly, where the but his death may not happen until 
 
 contingency on which the remainder after A. B.'s particular estate was 
 
 is to take effect is independent of the determined by its owner's death ; 
 
 determination of the precedingestate. Fourthly, where the person to whom 
 
 e.g. if land be given to A. in tail, the remainder is limited is not yet 
 
 and if B. come to Westminster Hall ascertained, or not yet in being, e.g. 
 
 on buch a day to B. in fee. Here it if an eotute be given to A. B. for life 
 
 will be observed in the first case the with remainder to the right heirs of 
 
 happening of the event determines C. D. a living person. Now as nemo 
 
 the particular estate. In the second est Tiseres viventis there can be no 
 
 case the contingent event vests the ■' heirs " of 0. D. until his death, and 
 
 remainder without inierfering with this mny not happen until after the 
 
 A.'s estate ; Thirdly, where the con- determination of A. B.'s estate. 
 
 VOL. I. F 
 
66 EEAL PROPERTY. [Book I. 
 
 Contingent The true test whetlier an estate is vested or contingent is 
 remainders, ^j^^^ stated in Fearne on Contingent Eemainders : " It is not 
 the uncertainty of ever taking effect in possession that makes a 
 remainder contingent ; fur to that every remainder for life or in 
 i.ail is and must be liable; as the remainderman may die, or die 
 without issue, before the death of the tenant for life. The present 
 capacity of taking effect in possession, if the possession were to 
 become vacant, and not the certainty that the possession will 
 become vacant before the estate limited in remainder determines, 
 universally distinguishes a vested remainder from one that is 
 contingent." Thus, suppose successive estates for life are given 
 in the same property, e.g. to A., a healthy young man, for life 
 with remainder for life to B., who is on the very point of 
 death. Here the chance that B. will ever have possession of 
 the property is no doubt extremely remote, but as B.'a life 
 estate is always ready whilst he lives to come into possession 
 on the failure or expiration of A.'s, his estate is a vested 
 remainder. 
 
 The nature of a contingent remainder may also be illustrated 
 by conferring similar estates in a different order on the same 
 fictitious characters. Suppose the first life estate were limited 
 to B., then on the brink of the grave, followed by an estate to 
 A., in the prime of his manhood, if a certain extremely probable 
 event should occur ; here the chance of A. obtaining possession 
 of the estate is practically certain ; but as his estate is subject 
 to a contingency, and not certain to come into possession 
 immediately on the determination of the preceding estate, it is 
 only a contingent remaindei'. 
 
 Contingent remainders were liable to certain imminent perils 
 of destruction which have been to some extent removed by 
 legislation in the present reign. 
 
 The reason why a contingent remainder under a legal devise 
 failed, if at the death of the previous holder of the estate of 
 freehold thtre was no person who answered the description of 
 the remainderman next to take, is very clearly stated by Sir 
 George Jessel in a well-known case {^). " It arose from the feudal 
 rule that the freehold could never be vacant, because there must 
 always be a tenant to render the services to the lord, and there- 
 fore if the remainder could not take effiict immediately on the 
 determination of the prior estate it never could take effect 
 at all. This result of feudal rules was never held to apply to 
 equitable estates, and it was sometimes said that ' the legal 
 
 (') In re Finch. Abhiss v. Biirncy, 17 Ch. D. 211, 229. 
 
Chap. VIII.] FUTURE ESTATES. 67 
 
 estate in tiie trustee supported the remainder.' The real prin- Contingent 
 ciple, however, was that as the legal estate in the trustees remainders. 
 fulfilled all feudal necessities, there being always an estate of 
 freehold in existing persons who could render the services to 
 the lord, there was no reason why the limitations in remainder 
 of the equitable interest should not take effeot according to the 
 intention of the testator. If at the time of the determination 
 of the prior equitable estate of freehold there was no person 
 capable of taking, a person afterwards coming into existence 
 within the limits of the rule of remoteness, and answering the 
 terms of the gift, wks allowed to take. So that the doctrine of 
 ascertaining once for all at the death of the tenant for life what 
 persons were to take under the subsequent contingent limita- 
 tions, had no application to equitable estates. Equity on this 
 subject dill not follow the law." 
 
 Again contingent remainders were liable to be destroyed not 
 only by the natural expiration of the preceding estate, but also 
 by its forfeiture, surrender, or merger Q-). 
 
 In consequence of this state of the law, estates were often 
 limited in trustees " to preserve contingent remainders " as 
 they were called. This formality however has become practically 
 obsolete since the passing of the Act to amend the law of real 
 property which came into operation on the 1st of January, 
 1845 (^), and provided that a contingent remainder should be, and 
 if created before the passing of the Act should be deemed to 
 have been capable of taking effect, notwithstanding the deter- 
 mination 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. The same Act also provides 
 that a contingent interest, and a possibility, coupled with an 
 interest, in any tenements or hereditaments of any tenure, 
 whether the object of the gift or limitation of such interest or 
 possibilitj- be or be not ascertained, may be disposed of by deed. 
 
 The effect of this Act, however, was to preserve the contingent 
 remainder only against destructive acts by or with the concur- 
 rence of the owner of the particular estate. The remainder, 
 however, would still fail to take effect if the particular estate 
 expired before the contingency happened. In the words of the 
 late Lord Justice James, in his judgment in the celebrated case 
 which led to the change in the law which we shall presently 
 notice (^), contingent remainders were protected against the 
 
 (') See Cliallis' Eeal Property, C) 8 & 9 Vict. c. 106, s. 8. 
 
 pp. 110 and 111, for two other (now (') Cunliffe y. Brancher, 3 Ch. Div. 
 
 obsolete) modes of theh destruction. 393, 407. 
 
 F 2 
 
68 BEAL PROPERTY. [Book I. 
 
 Contingent destruction of tlie preceding particular estate, but they were 
 still left to die with the death of such estate through an 
 inherent defect in their original constitution. 
 
 An Act passed on the 2nd of August, 1877 (i), dealing with 
 the subject of contintrent remainders with extraordinary brevity 
 in a single clause, introduces an important alteration into the 
 law with respect to them. It provides that every contingent 
 remainder created by any instrument executed after the passing 
 of the Act or by any will or codicil, revived or republished by 
 any will or codicil, executed after that date in tenements or 
 hereditaments of any tenure, which would have been valid as a 
 springing or shifting use or executory devise 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. 
 
 A rule which governs the creation of contingent remainders 
 is that if an estate be given to an unborn person for life, 
 followed by any estate to any child of such unborn person, the 
 estate given to the unborn person's child must fail. 
 Rule of The rule of cy-pres (2), as it is called (which proceeds upon 
 
 cy-pres. ^^^ principle of effectuating the intention of the testator " as 
 nearly as possible"), is, neverthele.ss, applied in cases where 
 property is devised to an unborn person for life, with remainder 
 to his first and other sons in tail, Here the remainder is invalid 
 as being beyond the limits allowed by the rule, but the Court 
 if it can see that the testator's general intention is to benefit 
 the issue, though it cannot be done in the particular mode 
 pointed out in the will, will carry out the general intention by 
 giving an estate tail to the unborn person, which, if not barred, 
 may go to the i>sue according to the testator's wish. 
 
 The principle on which the Court proceeds was thus stated 
 by Lord St. Leonards, in the well-known case of Monypenny v. 
 Bering Q') : " This doctrine, as I understand it, is nothing more 
 than that which prevails in other cases of giving eifect to the 
 general intent, but with this difference, that it is not as in them, 
 carried into effect at the expense of the particular intent. In 
 the common case there is a valid particular intent, and there is 
 
 C) 40 & 41 Vict c. 33. (3) 2 De G. M. & G. 145, 173 : see 
 
 See as to the doctrine of cj/-p7-es WA«% v. Mitchell, 42 Ch D. 491, 
 
 in connection witli the subject of affirmud, 44 Ch. D. 85. 
 
 charities, ^os<, p. 2.37. 
 
Chap. VIII.] FUTURE ESTATES. 69 
 
 a valid general intent, and the particular intent not in tlie view 
 of the Court effeutuating all the intentions which they presume 
 the testator to have had, they look at the general intent and 
 they effect his general intent at the expense of his particular 
 intent. In applying, however, the doctrine of cy-pres nothing is 
 sacrificed ; for example, in the case of limitations under a power, 
 where there is a good gift of a limited estate to a person an 
 object of the power, and then a gift over to his children who 
 are not objects of the power, effect may be given to the whole 
 intention by giving to the parent an estate of inheritance by 
 means of which the estate will descend to his children. In such 
 a case the general intent is, no doubt, effectuated, but it is 
 done at no expense of the particular intent, because, there is 
 no valid particular intent to which effect can be given. So in 
 the case of a limitation to an unborn son for life with remainder 
 to his unborn son in tail, where, as effect cannot be given to the 
 expressed intention, because successive estates cannot be limited 
 to an unborn person and to his issue, an estate tail is given to 
 the party to whom the limitation was made for life. Here 
 again, the particular intent is not sacrificed, but effect is given 
 to it as a general intent.'' 
 
 The rule against perpetuities, as it is usually though by no Enle 
 means happily described, is as follows : — it prohibits real or pfrp^tui. 
 personal property being tied up for a longer period than the ties. 
 lives of existing percnyns, and twenty-one years after their 
 decease, allowing a further time in favour of a person en ventre 
 sa mere if gestation actually exists. 
 
 The piilicy of the law with regard to permitting, and at the 
 same time restraining, a settlor's power of tying up his property 
 was explained by Sir George Jessel, as follows : " Then there 
 was another rule, also invented by the Chancellors, in analogy 
 to the common law. That was an invention of a different kind 
 from the other, and was this time in favour of alienation and' 
 not against it. The law does not recognise dispositions which 
 would practically make property inalienable for ever. Con- 
 tingent remainders were introduced, which had the effect of 
 rendering property inalienable. The doctrine of contingent 
 remainders was discussed by the Chancellors, who held that a 
 remainder depending upon what was called a possibility on 
 a possibility was contrary to the common law. That was a 
 wholesome rule, only it was considered that it did not go far 
 enough. The result was that the Chancellors established this 
 rule in favour of alienation, that property could not be <ied up 
 longer than for a life in being and twenty-one years after. That 
 is called the rule against perpetuities. Tliis rule, therefore, was 
 
70 
 
 REAL PROPERTY. 
 
 [Book I. 
 
 Convey- 
 ancing 
 Act, 1882, 
 sect. 10. 
 
 established directly in favour of alienation ; it merely carried 
 out the principle of law that property is alienable. Similarly, 
 in the case of executory interests, the law put a limit or fetter 
 upon the testamentary power. The theory of both rules is, 
 however, the same, namely, that property is alienable, though 
 it may be made inalienable to a certain extent and in a peculiar 
 way." It must be remembered that the rule against perpetuities 
 applies to personal as well as to real estate, and that possible 
 and not actual events are alone regarded by the law, and that 
 therefore no limitation can be valid unless it must necessarily 
 take effect, within the prescribed period (y). 
 
 The 1 Otli section of the Conveyancing Act, 1882, now provides 
 with regard to executory limitations, contained in instruments 
 coming into operation after the comiuencement of the Act 
 (1st Jan., 1883), that where there is a person entitled to land 
 for (1) an estate in fee, or (2) for a term of years absolute or 
 
 (') In re Ridley. Bucldon v. Sail, 
 11 Ch. D. 645, 649. The rales which 
 govern the construction of expculory 
 devise were btated by Lord Hather- 
 ley, then Vice-Chancellor Wood, as 
 follows : — 
 
 (1.) The first rule is, that an exe- 
 cutory devise is bad unless it be clear 
 at the death of the testator that it 
 must of necessity vest in some one, if 
 at all, within a life in being;, and 
 twenty-one years afterwards. (2.) The 
 second rule is, that you must ascer- 
 tain the objects of the testator's 
 bounty by construing his " will with- 
 out any reference to tlie rules of law 
 which prohibit remote limitations, 
 and having apart fiom any considera- 
 tion of the effect of those rules in 
 supporting or destroying the claim, 
 arrived at the true construction of 
 the will, you are then to apply the 
 rules of law as to perpetuities to the 
 object so ascertained.'' (3.) " Thirdly, 
 if the devise be to a single person 
 answering a given description, and 
 any one member of the series in- 
 tended to take may by possibility be 
 a person excluded by the rule as to 
 remoteness, then no person whatever 
 can take, because the testator has 
 expressed his intention to include 
 all, and not to give to one excluding 
 others." (4.) The fourth rule is, that 
 where the devise is to a class of per- 
 sons answering a given description, 
 and any member of that class may 
 possibly have to be ascertained at a 
 period exceeding the limits allowed 
 by law, the same consequence follows 
 
 as in the preceding rule; and, for 
 the same reason, you cannot give the 
 whole pioperty to those who are in 
 fact ascertained within the period, 
 and might have taken if the gift 
 had been to them nmninatim, be- 
 cause they weje intended to take in 
 shnres to be rejiulated in amount, 
 augmented or diminished according 
 to the number of the other members 
 of the class, and not to take exclu- 
 sive! v of those other members. (5.) 
 The fifth rule is, that where there is 
 a gift or devise of u, given sum of 
 money or property to each member 
 of a class, and the gift to each is 
 wholly independent of the same or 
 similar gift to every other member of 
 the class, and cannot be augmented 
 or diminished according to the num- 
 ber of the other members, then the 
 gift may be good as to those within 
 the liiriits allowed by law. This was 
 settled by the case of Storrs v. Benbow, 
 2 M. & K. 46 ; Cattlin v. Sromi, 11 
 Hare, 372. And see Pearks v. Mose- 
 ley, 5 App. Cas. 714 ; Von Broclcdorf 
 V. Malcolm, 30 Ch. D. 172: In re 
 Seavan's Trust, 34 Oh. D. 716 ; How 
 lett V. Hodson, 35 Oh. D. 350; Coolce 
 V. Coolte, 38 Ch. D. 202 ; In re Gil- 
 hart's Settlement, Browett v. Warden, 
 W. N. 1887, p. 24; In re Bandell, 
 Randell v. Dixon, 38 Ch. D. 213; 
 III re Dawson, Johnston v. Rill, 39 
 Ch. D. 155 : Whitby v. Mitchell, 42 
 Ch. D. 494; affirmed, 44 Ch. D. 85; 
 Re Frost, 43 Ch. D. 246 ; Be Uar- 
 greaves, 43 Ch. D. 401. 
 
Chap. VIIL] FUTURE ESTATES. 71 
 
 delerminable on life, or (3) for term of life, witli an execu- 
 tory limitation over on default or failure of all or any of his 
 issue, whether within or at any specified period or time or not, 
 that executory limitation shall be or become void and incapable 
 of taking eifect, if and as soon as there is living any issue who 
 has attained the age of twenty-one years, of the class on default 
 or failure whereof the limitation over was to take effect. 
 
 The effect of this power has been illustrated as follows : — ■ 
 
 " If land were devised to A. and his heirs, but in the event of 
 A. dying without leaving issue living at his death, to B. and 
 his heirs, A. would have been, previously to this Act, incapable 
 during his entire life of making a title to the land, except with 
 the concurrence of B. Now, however, if one of his issue attains 
 twenty-one, the gift over becomes void upon the occurrence of 
 that event, and the land may be sold at once " Q). 
 
 Executory limitations of real estate are created either by Creation of 
 will, in which case they are called executory devises, or under interests, 
 the Statute of Uses, in which case they are called springing or 
 shifting uses. Springing uses are those which are limited to 
 take place in futuro, i.e. on the happening of a future event in- 
 dependently of any jireceding use ; for instance, if lands are 
 given to a certain person to such uses as John Smith shall 
 appoint under a power, this is a springing use (^). A " shifting 
 use " is when the use is made to shift from one person to another 
 on the happening of a given event. A use which defeats a 
 prior estate is called a shifting use. A use which does not 
 defeat a prior use is called a " springing use." Illustrations of 
 the shifting use are when lands are limited, in a marriage settle- 
 ment to the use of the settlor until the solemnization of the 
 intended marriage, and from and after the marriage to other 
 uses, or in the name and arms clause when an estate is limited 
 to A. and his heirs, if he shall assume the name and take the 
 arms of B., and if not then to C. and his heirs (5). 
 
 In the great case of Cadell v. Palmer (*), in which, as Mr. 
 
 (') Gierke and Brett's Convey- requiring a devisee to take the testa- 
 
 anoing Acts, 3rd ed. p. 261. tor's surname, adding the testator's 
 
 (^) Tiiisidea is sometimes expressed surname before his own was not a 
 
 in this way, a springing use does not compliance by the devisee, but that 
 
 take effect in derogation of any in- adding the testator's surname after 
 
 terest other than that wluch results his own was so ; see also on the same 
 
 to the grantor, or remains in him iu subject : Astley v. Earl of Essex, 
 
 the meantime. L. E. 18 Bq. 290 ; In re Finch. 
 
 (^) See an elaborate name and Ahbiss v. Burney, 17 Ch. D. 211 ; 
 
 arms clause in B'Eyncourt v. Gregory, Musgrave v. Brooke, 26 Ch. D. 792. 
 1 Ch. D. 441, where it was held (') 7 Bligh, New Series, 202, 
 
 that under a clause of this description Tudor's Eeal Property, Rrd ed. 
 
72 BEAL PBOPEBTY. [Book I. 
 
 Kule Tudor expresses it, the limits of the rule against perpetuities 
 
 pfrp"tui- ■'vere finally ascertained wnd marked out by the high authority of 
 ties. the House of Lords, an important point was raised wiih regard 
 
 to the length of time during which an executory devi.se might 
 remain suspended, so to say, and j^et not fail for remoteness. 
 In this case the House of Lords, acting on the unanimous 
 opinion of the judges who had been summoned to hear the case 
 argued on appeal, decided to the effect that the twenty-one years 
 might be tal;en absolutely. The result is that an estate may 
 be limited, not to take effect till after the determination of a 
 life or lives in being, and the expiration of a term not exceeding 
 twentj'-one years afterwards as a " terra in gross," as it is 
 called, not dependent on the minority of any individual or on 
 any other event. There cannot, however, be added to the term 
 in gross of twenty-one years the nunil-er of months equal to the 
 largest or usual period of ge.station. In the case of Hale v. 
 Hale Q-), which came before the Court of Appeal, the late Sir 
 Geoige Jessel treated the law on the subject as perfectly settled, 
 and it was, accordingly decided that the term of twenty-one 
 years must be strictly adhered to, and that therefore gifts by 
 will to children and other issue on attainiiig twenty-four years 
 of age, after a life interest to the testator's widow, were void for 
 remoteness. 
 
 Where executory gifts are made by will there is no necessity 
 to introduce any person to be "seised to the uses,'' as is required 
 in deeds. The limitations to the persons entitled may, therefore, 
 be direct, but should clearly shew the testator's intention to 
 make them take effect as executory limi'ations and not as 
 contingent remainders. 
 
 The Courts liHve also applied the rules against perpetuities to 
 conditions and covenants relating to the sale of land, of which 
 there is a remarkable illustration in a case decided by the Court 
 of Appeal in 1881. In that case (f) a railway company had 
 conveyed superfluous lands to an adjoining owner, who cove- 
 nanted that he would at any time when required by six months' 
 notice re-convey to the company at a fixed price. The Court of 
 Appeal decided that as the covenant gave to the company an 
 executory interest in land to arise on an event which might 
 occur after the period allowed by the rule as to remoteness, it 
 must be treated as invalid. " Is there," asked Sir George Jessel 
 in this case, " any substantial distinction between a contract for 
 purchase or an option for purchase and a conditional limitation ? 
 
 (') 3 Cli. D. 6-13, 645. ("■) L. & S. W. Jty. Co. v. Gomm, 20 Ch. Div. 562. 
 
Chap. VJIL] FUTURE ESTATES. 73 
 
 Is there any diffei ence in substance between the case of a limita- 
 tion to A. in fee, with a proviso that whenever a notice in 
 writing is sent, and £100 paid by B. or his heirs to A. or his 
 heirs, the estate shall vest in B. and his heirs, and a contract 
 that whenever such notice is given and such payment made by 
 B. or his heirs to A. or his heirs, A. shall convey to B. and hib 
 heirs ? It seems to me that in a Court of Equity it is impos- 
 sible to suggest that there is any real distinction between 
 these two cases. There is in each case the same fetter on the 
 estate and on the owners of the estate for all time, and it seems 
 to me to be plain that the rules as to remoteness apply to one 
 case as much as to the other " (i). 
 
 Before the year 1799 when the Act which is generally known Thellusson 
 as the Thellussi ^n Act was passed, trusts for the accumulation of 
 the income of property were allowed for the same periods as 
 those which the law permitted in respect of executory devises 
 with reference to the curpus of property. In this state of the 
 law a Mr. Thellusson brought his perverse ingenuity to bear upon 
 the ^ubject, and directed that the rents of his estates should bo 
 accumulated and invested during the lives of all his children, 
 grandchildren, and other issue, living at his death, for the 
 benefit of some more remote descendant. This will was, of 
 course, disputed, and gave rise to the well-known and lengthy 
 case of Thellusson v. Woodford (^), which finally decided that the 
 testator had not broken any rule against perpetuities, so that 
 the trust for accumulation was not set aside. But the Act of 
 Parliament above referred to, which was passed to prevent the 
 repetition of such a cruel absurdity (to borrow Mr. Joshua 
 Williams's phrase), with regard to the accumulation of income 
 for the future provided as follows : 
 
 Accumulation is allowed for any one of the four following 
 alternative periods : — 
 
 The life or lives of any grantor or grantors, settlor or 
 settlors ; or 
 
 The term of twenty-one years from the death of the grantor, 
 settlor, devisor, or testator ; or 
 
 (') In the very recent case of In the Court could not separate it, and 
 
 re Harvey. Peek v. Savory, 39 Ch. Div. that therefore the gift over was void 
 
 289, where the gift over was not in for remoteness 
 
 the alternative on the happening of {') 4 Vesey, 227. The parties en- 
 
 either of two distinct events, but a titled to tlje property were ascer- 
 
 single gift over on an event involving tained iu 1859. Thellusson v. Rendle- 
 
 two things, one of which transgressed sham, 7 H. L. C. 429 ; and see an 
 
 the rule against perpetuities, the account of the case in Mr. Nash's 
 
 Court of Appeal decided that as the Life of Lord Westbury, vol. i. p. 285. 
 testatrix had not separattd the gift. 
 
74 , REAL PROPERTY. .^ [Book I. 
 
 Thellusson During the minority or respective minorities of any person or 
 persons who shall be living or in ventre sa mere at the time of 
 the death of the grantor, devisor or testator ; or 
 
 During the minority or respective minorities of any person or 
 persons who under the uses or trusts of the deed, surrender, 
 will, codicil, or other assurance, directing such accumulations 
 would for the time heing, if of full age, be entitled to the 
 rents, issues, and profits, or the interest, dividends, or annual 
 produce so directed to be accumulated. 
 
 It is however provided that nothing in the Act is to extend — 
 
 (1) To any provision for the payment of the debts cf the 
 settlor ; or 
 
 (2) To any provision for raising portions for any child or 
 children of the settlor, or for any child or children of any person 
 taking any interest under the instrument ; or 
 
 (3) To any direction touching the pioduce of timber or 
 ■woods upon any lands or tenements. 
 
 It must be borne in mind that the four different periods 
 beyond which the accumulation of income is unlawful are 
 alternative and rot cumulative, i.e., only one of the f.ur peiiods 
 can be taken, and when one period has been applied and 
 exhausted, a second period cannot be resorted to and applied, in 
 order to extend the time for accumulation. In applying the 
 Act the Court is bound to consider not merely the events which 
 have happened, but also those which might have happened (i). 
 
 It has been decided that any direction which exceeds the 
 limits prescribed by the Thellusson Act is not void altogether 
 like an executory limitation which transgresses the rule against 
 perpetuities, but only 60 far as it exceeds the time allowed by 
 the statute (^). 
 
 C) Jagger v. Jagger, 25 Ch. Div. lected with a summary of the points 
 , p. 729. decided in Lewiu ob Trusts, 8th ed. 
 
 {") See the cases on this Act col- p. 90, et seq. 
 
C 75 ) 
 
 CHAPTEE IX. 
 
 Conveyance on Sales. 
 
 First amongst tlie various modes in whicli real property may 
 be dealt with, comes that of conveyance by one person to 
 another. The main subject of this chapter therefore is Convey- 
 ance on Sale. Before proceeding, however, to deal with this 
 specific sul)ject, and certain other matters incidentally connected 
 with it, it may be well to invite the attention of the student to 
 the consideration of the question. What is Conveyancing ? 
 
 Conveyancing has been defined as the science and art of Definition 
 
 transferrins; property from one owner or owners to another \'>'^'^^y- 
 
 . 11 1 • T 1 anoing. 
 
 owner or owners m due form, according to the law which ob- 
 tains under any given set of circumstances. It is a science, 
 inasmuch as it is founded on a system of general principles. It 
 is an art, inasmuch as it consists of a putting; of these principles 
 into practice (^). The main object of the following pages is to 
 give a short account of the nature of a modern conveyance along 
 with some practical advice as to the mode in which the theory 
 of conveyancing is to be applied to practice, and it may be 
 pointed out that nearly all that is here said upon the latter 
 branch of this subject is equally applicable to the subjects of 
 mortgages, leases, and settlements, of which we shall treat 
 hereafter (j^). 
 
 Before, however, we come to the conveyance itself, a good 
 many preliminary matters require to be considered. A purchase 
 of land is usually preceded by an agreement, and here it must 
 be borne in mind that (by the Statute of Frauds, 29 Car. 2, 
 c. 3, s. 4) any contract for the sale or purchase of lands, tene- 
 ments, or hereditaments, or any estate or interest concerning 
 them, must be in writing, signed by the party to be charged. 
 
 (') Cavanagh, Principlea and Pre- deed on a sale, mortgage, demise, or 
 
 cedents of Modern Conveyancing. settlement of any property, or on any 
 
 (^) A conveyance is defined by other deiding with or for any pro- 
 the Conveyancing Act, 1881 (unless perty ; and " convey," unless a con- 
 a contrary intention appears), to in- trary intention appear, lias a mean- 
 elude in the interpretation of that ing coiTesponding with that of con- 
 Act, assignment, appointment, lease, veyance : 44 & 45 Yict. c. 41, s. 2 
 settlement, and other assurance, and (sub-s. 5). 
 covenant to surrender made by a 
 
76 
 
 REAL PEOPEBTY. 
 
 [Book I. 
 
 Conditions 
 of sale. 
 
 Statutory 
 conditions 
 of sale. 
 
 or his agent thereunto lawfully authorised, though, as we shall 
 herenfter see in some ca^es, agreements not in writing may be 
 specifically enforced (see post, p. 574, et seq.'). 
 
 A man who oifers property for sale on what is called " an 
 open contract," i.e. a contract not guarded by any conditions of 
 sale, incurs certain serious responsibilities which are stated by 
 Mr. Prideaux as follows : — " He is bound, in the absence of 
 stipulation, to deduce and verify his title for a period of at 
 least forty years preceding the day of sale. This obligation 
 involves the delivery to the purchaser of an abstract of title 
 extending over the above period ; the production of all deeds 
 and documents stated in the abstract ; the identification of the 
 property as described in the particulars with the property 
 described in the several documents of title, and the strict proof 
 by certificates, declarations, or otherwise, of all births, marriages, 
 deaths, heirships, and other matters and facts forming a link in 
 the chain of title, unless such facts are recited or stated in 
 documents twenty years old." 
 
 In order to guard against this liability, it is usual to employ 
 particulars and conditions of sale — the proper office of the parti- 
 culars, as is well said by Mr. Davidson, being to describe the 
 subject-matter of the contract, that of the conditions to state 
 the terms on which it is sold. The particulars should describe 
 the property accurately, and if there be anything connected 
 with it important to be known which cannot be discerned, or 
 may be misapprehended by ocular inspection, or any right or 
 restriction interfering with its absolute possession or enjoyment, 
 it ought to be plainly stated in the particulars, as even its 
 partial concealment may afford the buyer a ground for abandoning 
 his purchase Q-). 
 
 A considerable number of important conditions of sale are 
 now implied by virtue of the Vendor and Purchaser Act, 
 1874, and the Conveyancing Act, 1881 (2). These "statutory 
 conditions" provide as follows: — 
 
 Forty years' title only need be shewn. 
 
 No objection shnll be raised on the ground of .the vendor's 
 inability to furnish a legal covenant to produce documents, 
 when the purchaser will, on completion, have an equitable 
 right to production. 
 
 The purchaser shall bear the costs of the acknowledgment 
 and undertaking for production and safe custody of deeds and 
 
 (■) Davidson's Conveyancing, vol. i. 
 Conditions of Sale. 
 (2) 37 & 38 Vict. 0. 78, bs. 1, 2 : 
 
 44 & 45 Vict. c. 41, s. 3. See Gierke 
 and Brett's Conveyancing Acts, 3rd 
 ed. p. 268. 
 
Chap. IX.] CONVEYANCE ON SALES. 77 
 
 documents, except costs of perusal and execution on behalf of Statutory 
 and by the vendor and on behalf of and by necessary parties ■'^'^'t""'' 
 other than the purchaser. 
 
 Where the vendor retains part of the land, he shall retain 
 the deeds. 
 
 Recitals, statements, and descriptions of facts, matters, and 
 parties contained in deeds, instruments. Acts of Parliament, or 
 statutory declarations, twenty years old at the date of the 
 contract, shall, unless and except so far as they shall be proved 
 to be inaccurate, be taken to be sufScient evidence of the truth 
 of such facts, matters, and descriptions. 
 
 A purchaser of any property shall not require the production, 
 or any abstract or copy, of any deed, will, or other document, 
 dated or made before the time prescribed by law, or stipulated, 
 for commencement of the title, even though the same creates a 
 power subsequently exercised by an instrument abstracted in 
 the abstract furnished to the purchaser ; nor shall he require 
 any information, or make any requisition, objection, or inquiry 
 w^ith respect to any such deed, will, or document, or the title 
 prior to that time, notwithstanding that any such deed, will, or 
 other document, or that prior title is recited, covenanted to be 
 produced, or noticed ; and he shall assume, unless the contrary 
 appears, that the recitals, contained in the abstracted documents, 
 of any deed, will, or other document forming part of that prior 
 title, are correct, and give all the material contents of the deed, 
 will, or other document so recited, and that every document so 
 recited was duly executed by all necessary parties, and perfected, 
 if and as required, by fine, recovery, acknowledgment, inrolment, 
 or otherwise. 
 
 On a sale of any property, the expenses of the production and 
 inspection of all Acts of Parliament, inclosure awards, records, 
 proceedings of Courts, Court rolls, deeds, wills, probates, letters 
 of administration, and other documents, not in the vendor's 
 possession, and the expenses of all journeys incidental to such 
 production or inspection, and the expenses of searching for, 
 procuring, making, verifying, and producing all certificates, 
 declarations, evidences, and information not in the vendor's 
 possession, and all attested, stamped, office or other copies or 
 abstracts of, or extracts from, any Acts of Parliament or other 
 documents aforesaid, not in the vendor's possession, if any such 
 production, inspection, journey, search, procuring, making, or 
 verifying is required by a purchaser, either for verification of 
 the abstract, or for any other purpose, shall be borne by the 
 purchaser who requires the same ; and where the vendor retains 
 possession of any document, the expenses of making any copy 
 
78 BEAL PBOPEBTY. [Book I. 
 
 tlieieof, attested or unattested, whioli a purchaser requires to 
 be delivered to him shall be borne by that purchaser. 
 
 On a sale of any property in lots, a purchaser of two or more 
 lots, held wholly or partly under the same title, shall not have 
 a right to more than one abstract of the common title, except 
 at his own expense. 
 
 The following are some of the iisual conditions of sale, which 
 are not provided for, and are accordingly still employed : — 
 
 (1) That the highest bidder shall be the purcliaf*er (subject 
 to the right of the vendor or his agent to bid up to the reserved 
 price), and in case of dispute that the lot shall be put up again 
 at the last undisputed bidding, &c. (2) As to payment of 
 deposit i}'). (3) As to valuation of timber, &c. (4) As to cum- 
 mencement cf title, e.g. that the title shall commence with an 
 indenture dated 6th June, 1847. (5) That the purchaser shall 
 admit the identity of the property with that comprised in tiie 
 muniments of title. (6) As to alio win"; or excluding compen- 
 sation for misdescription. (7) As to the time within which 
 requisitions must be made. (8) A power for the vendor to 
 rescind the contract rather than comply with the purchaser's 
 requisitions (^). 
 
 In connection with the subject of conditions of sale, it may 
 Trustee be pointed out that the Trustee Act, 1 888 (3), contains the follow- 
 Act, 1888. jjjg important provisions with regard to the employment of what 
 are called "depreciatory conditions " on sales by trustees: — 
 
 "No sahf made by a trustee shall be impeached by any 
 cestui que trust upon the ground that any of the conditions, 
 subject to which the ^ale was made, may liave been unneces- 
 sarily depreciatory, unless it shall also appear that the 
 consideration for the sale was thereby rendered inadequate. 
 
 " Nil sale made by a trustee shall, after the execution of the 
 conveyance, be impeached as against the purchaser upon the 
 ground that any of the conditions subject to which the s^le 
 was made, may have been unnecessarily depreciatory, unless it 
 shall appear that such puichaser was acting in collusion with 
 such trustee at the time when the contiact for such sale was made. 
 
 " No purchaser, upon any sale made by a tiustee, shall be 
 
 (') See as to forfeiture of deposit, any whicli cannot be removed or 
 
 Sowe y. Smitli, 27 Cli. D. 89; 8oper whicli it would be inconvenient to 
 
 V. ArnoU, 35 Cli. D. 384 : Brett's remove, without inseriing unneces- 
 
 LeariingCasesinEquity, i).41,e«(.'e2. sary or special stipulations whicli 
 
 (2) " The honest purpose of condi- may alarm prudent purchasers " 
 
 tiuns," says Mr. Davidson, " is that See as to misleading; conditions of 
 
 the vendor may not put up a better sale: Re Baniste'-, 12 Ch. I) 131 • 
 
 title thau he has, and that foreseeing Be Marsh and Earl Granville 24 
 
 every possible objection, he may Ch. D. 11. ' 
 
 guard, l)y special conditions, against (^) 51 & 52 Met. c. 59 
 
Chap. IX.] CONVEYANCE ON SALES. 79 
 
 at liberty to make any objection against tlie title upon the 
 ground aforesaid." 
 
 Having thus considered the agreements for purchase and 
 matters connected with it, we must next notice the investigation- Investiga- 
 of the title. A purchaser " is entitled to be satisfied, before ^°? ° 
 parting with his purcliase-money, that the person who professes 
 to convey to him the property sold has in fact the right'to do so ; 
 and for this purpose he is not bound to wade through the deeds and 
 other documents of title themselves at the place or several places 
 where they are to be found." He is entitled to have a resume 
 or abstract of the documents by which the vendor purposes to 
 prove his title, and discover whether a good title is disclosed (i). 
 
 The title, Mr. Dart tells us, is perfect whenever it appears 
 that under the contract the puroljaser either already has, or 
 will necessarily before the time fixed for completion be able to 
 acquire, an immediate and indisputable right to the legal and 
 equitable estates, even although the absence of parties or other 
 cirouri I stances may considerably delay the conveyance (^). 
 
 Within a limited time after the abstract is delivered — seven, 
 fourteen, or twenty-one days, or as may be, according to the con- 
 tract — the purchaser's solicitor delivers to the vendcjr's solicitor 
 certain requisitions of title — i.e., a statement of his objections to 
 the title and of the points which he may desire to have cleared up. 
 
 The following may serve as examples of tho requisitions Eequisi- 
 which might thus be delivered : — j.;jjg_ 
 
 The receipts for the Succession Duties payable on the deaths 
 of A. B. and C. D. respectively must be produced, and handed 
 to the purchaser on completion. 
 
 What deeds and documents of title will be handed to the pur- 
 chaser on completion ? 
 
 Are there any rights of way or other easements over, out of, or 
 affecting any part of the property sold ? If so, state the particulars. 
 
 In a case which came before the Court of Appeal in 1879 (^), 
 the purchaser made the following requisition : " Is there to the 
 knowledge of the vendors or their solicitors, any settlement, deed, 
 fact, omission, or any incumbrance, affecting the property not 
 disclosed by the abstract ? " 
 
 The Court considered that the question put was " anything 
 but a requisition." That it was in fact a searching interroga- 
 tory put to the vendors and their solicitors. " As I understand 
 
 (') Sweet ou Conveyancing, p. 1, C) Dart's Vendors and Purchasers, 
 
 which see for some valuable observa- 6th ed. p. 32i. 
 
 lions on the nature and preparation (') Be Ford and Hill, 10 Cli. Div. 
 
 of Abstracts. 371. 
 
80 BEAL FBOPERTr. [Book I. 
 
 the law," said Lord Justice James, " a vendor is bound to 
 furnisli an abstract of title ; and upon the requisition of the 
 purchaser, to verify it or complete it on any point on which it 
 appears defective. But if in addition to this questions are to be 
 asked for tlie purpose of negativing the existence of incum- 
 brances, where is the matter to end ? 
 
 " Is a vendor to be expected to remember every restrictive 
 covenant to which the property is subject ? A person in New 
 Zealand may have occasion to sell his property in haste ; is the 
 sale to be delayed until an answer to this inquiry has been 
 obtained from the antipodes? What is the good of such an 
 inquiry ? Every solicitor knows that he is subject to civil and 
 criminal responsibility if he wilfully suppresses matteis preju- 
 dicially affecting the title. 
 
 " The purchaser is entitled to say : I have received this 
 abstract ; I presume that you remember the provisions of the 
 Act as to suppressing incumbrances, and that I may rely on 
 the abstract as being complete, and I warn you that you incur 
 criminal liability if it is not so." The Court of Appeal ac- 
 cordingly decided that the vendor was not bound to answer the 
 requisition. The practice has been completely settled by this 
 decision, and though a general requisition as to incumbrances is 
 often made, the vendor's solicitor generally declines to answer it. 
 
 In addition to ccmsidering the abstract furnished by the 
 vendor and comparing it with the origiaal documents, the pur- 
 Searches, chaser's solicitor procures the statutoiy registers to be searched 
 for such charges and other matters affecting the land as are 
 capable nf being registered. A recent statute (^) has established 
 at tho office of Land Eegistry three registers of this kind, 
 namely, a register of writs and orders affecting land, a register 
 of deeds of arrangement affecting land, and a register of land 
 charges created under the authority of Acts of Parliament. All 
 incumbrances capable of being registered under the Act are to 
 be void as against a purchaser for value unless and until so 
 registered. But writs and orders registered at the central office 
 (under an earlier statute) before the 1st of January, 1889, do 
 not require registration under the Act of 1888, until the expira- 
 tion of the time for which they are so registered at the central 
 office ; and land charges cieated before that date need not be i egis- 
 tered until the expiration of one year after they shall have been 
 
 C) The Land Charges Eegistra- v. Vice-Registrar of Office of Land 
 
 tion and Searches Act, 1888 (51 & 52 Begistry, 24 Q. B D. 178 ; Ckiok v. 
 
 Yict. c. 51), and see Elphinstone and Coolt, 15 P. D. 116. 
 Clark, p. 1, tt seq., and 22. See Beg. 
 
Chap. IX.] CONVEYANCE ON SALES. 81 
 
 assigned by act inter vivos ; so that it will be necessary to search 
 
 the earlier registers as well as those established under the Act. 
 
 The searches at the office of Land Eegistry and at the central Searches. 
 
 office may be made by the officials upon the requisition of the 
 
 purchaser or his solicitor ; and a certificate of the result may 
 
 be obtained. Other searches, e.g., the search for bankruptcies, 
 
 the search in the county register if the property is situate in 
 
 Middlesex or Yorkshire, or the search in the Court rolls when 
 
 the property is copyhold — are made, not officially, but by the 
 
 purchaser himself or his solicitor. The numbei', nature and 
 
 extent of the searches to be made will depend in each case on 
 
 the tenure and quality of the property sold and the nature of 
 
 the title shown. But the registry office search for writs and 
 
 orders aifecting land, and the central office search for judgments 
 
 and pending actions, crown debts, executions, and annuities, are 
 
 of general application ; and these are commonly referred to as 
 
 the " usual " searches. 
 
 Assuming that these preliminary matters have been satisfac- 
 torily disposed of, we may now proceed to consider the form of 
 the conveyance of the property, and it may be pointed out that 
 the costs of the conveyance and of all matters lelating to it 
 fall, in the absence of stipulation to the contrary, on the pur- 
 chaser, but the expense attendant on the execution and examina- 
 tion of the deed by or on account of the conveying parties must 
 be paid by the vendor. 
 
 The various forms of conveyance, a great authority on the Forms of 
 subject tells us, are :— ™°^_'5'- 
 
 For freeholds : a grant, an appointment, a feoffment, a bargain 
 and sale, and a covenant to stand seised; for leaseholds an 
 assignment ; for copyholds an assignment, or a release, if the 
 estate be equitable ; and an actual surrender of the land evi- 
 denced by a record of the act on the Court EoUs if the estate be 
 legal Q). Of the five assurances of freeholds, however, only 
 two, the grant and the appointment, are in ordinary use, and 
 they are frequently employed in combination, but it will be 
 necessary to say a few words with regard to such other forms of 
 assurance as are still occasionally employed. See as to lease- 
 holds, jposf, p. 112, et seq. And as to copyholds, see post, p. 184, 
 et seq. 
 
 (') Davidson, vol. ii. p. 176. The and Personal Property, where the 
 
 reader who desires a more elaborate learned author gives a very formid- 
 
 enumeration of the various forma ahle list of common law conveyances, 
 
 which conveyancing has Proteus-like statutory conveyances, and modes of 
 
 assumed at various periods of legal alienation of property by matter of 
 
 history, is referred to Smith's Keal record. 
 
 VOL. I. G 
 
82 
 
 BEAL PBOPERTY. 
 
 [Book I. 
 
 Deeds. 
 
 Appoint- 
 ment. 
 
 Feoffment. 
 
 A grant is a conveyance by deed wliich at common law was 
 applicable only to incorporeal hereditaments, which were 
 accordingly said to " lie in grant " as contrasted with corporeal 
 hereditaments which were said to " lie in livery." But by the 
 Act to Amend the Law of Eeal Property, 1845, it was provided 
 that all corporeal hereditaments should, as regards the convey- 
 ance of the immediate freehold thereof, be deemed to lie in 
 grant, as vpell as in livery (^). 
 
 With regard to a deed (see post, p. 361), it will be sufficient for 
 our present purpose to say that it is a writing sealed and de- 
 livered ; and, in practice, signed also by the party or parties 
 making it, though it is a matter of doubt whether signing as 
 well as sealing is necessary (^). 
 
 Deeds are of two kinds, indentures and deeds-poll. The in- 
 denture — so called because the top of the parchment or paper was 
 cut in an indented or waiving line, which formerly served as a 
 tally where a similar line was cut on a duplicate of the deed — 
 is a deed made between two or more parties (^). A deed-poll 
 ■ — so called becaiise it is polled or shorn even at the top — is a 
 deed made by one party only. 
 
 An ajjpointment is a conveyance made in exercise of a power 
 of appointment (as to which, Bee post, p. 175, et seq.). 
 
 Thus, suppose that certain lands have been limited by will to 
 such uses as A. B. shall by deed or will appoint, A. B. might in 
 exercise of the power so vested in him appoint the property to 
 C. D. and E. F., in fee simple. 
 
 A feoffment is a conveyance applicable only to estates of 
 freehold in possession ; for it consists in " livery of seisin," that 
 is, a delivery of possession of the land, accompanied by appro- 
 priate words of transfer. At common law an instrument in 
 writing was not required on a conveyance by feoffment; but 
 now, by the Act to Amend the Law of Eeal Property, 1845, 
 it is provided that a feoffment, other than a feoffment made 
 under a custom by an infant, shall be void at law unless 
 evidenced by deed (*). The feoffment, though once commonly 
 employed, was long since superseded by other modes of convey- 
 ance ; and, at the present day a deed of grant taking effect 
 under the Act to Amend the Law of Eeal Property (^), is the 
 form of conveyance usually employed for the transfer of freehold 
 estates in possession. The feoffment is still employed, however, 
 
 (') 8 & 9 Vict. c. 106, s. 2. 
 (") Cherry v. Hemminfj, 4 Ex. C31. 
 (= ) By 8 & 9 Vict, c.' 106, s. 5, a, 
 deed purporting to be an indenture 
 
 is to have effect aa such, though 
 not actually indented. 
 
 C) !S & 9 Vict. 106, s. 2. 
 
 C) 8 & 9 Vict. 106, s. 3. 
 
Chap. IX.] CONVETANOE ON SALES. 83 
 
 on a conveyance by an infant under tlie custom of gavelkind 
 (^ante, p. 12 (^)), and sucli a conveyance need not be evidenced 
 by deed. 
 
 A bargain and sale is a conveyance depending for its effect Bargain 
 upon tbe operation of the Statute of Uses (ante, p. 17). Under 
 it an implied use arises in favour of the purchaser, on payment 
 of the purchase-money ; and to the use thus raised the Statute 
 of Uses annexes the seisin, thus vesting the estate in the pur- 
 chaser (ante, p. 18). 
 
 A covenant to stand seised, which is a form of conveyance Covenant 
 very rarely employed, is similar in its operation to a bargain and *°/'™'i 
 sale. It consists in a covenant by the party conveying that he 
 will stand seised of the land to the use of another in considera- 
 tion of natuial love and affection to a child or near relation, or 
 in consideration of marriage. The Statute of Uses by annexing 
 the seisin to the use thus declared (see ante, p. 18), vests the 
 estate in the party in whose favour the declaration is made. A 
 deed made in consideration of a sum of money will not operate 
 as a covenant to stand seised. 
 
 The effect of these two forms of conveyance has been well 
 explained, as follows : — 
 
 " A bargain and sale enrolled, and a covenant to stand seized, 
 wholly derive their effect from the Statute of Uses ; the first is 
 considered a real contract, by which the bargainor, for a pecu- 
 niary consideration, sells and contracts to convey the lands to 
 the bargainee ; the second is a real covenant by which a person 
 covenants to stand seized to the use of his or her husband, wife, 
 child, or near relation. Neither of those conveyances has any 
 effect at the common law, or independently of the Statute of 
 Uses, in conveying the land from the party selling or covenant- 
 ing to stand seized to those in whose favour they are intended 
 to operate ; so that at common law they have no legal operation, 
 and are merely declarations of trust, binding the land in equity. 
 But the statute attaches on them, and divests the land from 
 the party selling or covenanting to stand seized, and vests it in 
 the persons to whom it is limited " (2). 
 
 And now having briefly reviewed the various forms in which 
 a conveyance of real property may be made, and the usual pre- 
 liminaries to a purchase, let us consider a little more closely the 
 nature of the deed by which it may be effected. 
 
 (') Davidson on Conveyancing, custom of gavelkind, p. 2-11. 
 vol ii. Itli ed. p. 177, and see form of {') Sanders on Usls. 
 
 feoffment made by an infant under 
 
84 SEAL PROPEBTT. [Book I. 
 
 Parts of a The different parts of a deed, after the words " This indenture," 
 ■ are the date, the parties, the recitals (if any), the consideration 
 
 (if any), the grant, release, or other operative part, the parcels, 
 i.e. description of the property conveyed, the hahendum, the 
 declaration of uses or trusts, the provisoes, and other explanatory 
 clauses, the covenants (if any), and, finally, the testimonium, 
 commencing with the words " In witness," which connect the 
 contents with the signatures and seals. 
 
 In deeds-poll the instrument commences, if there be recitals, 
 with the words, " To all to whom these presents shall oome," and 
 if there be no recitals, with the words, " Know all men by these 
 presents," and the date is placed last. 
 Form of The attention of the reader may now be directed by way of 
 
 convey- illustration to a short form of conveyance in fee simple, which 
 may serve to some extent to bring before his mind the present 
 state of the law. 
 
 This Indenture made the 1st day of January, 1890. Between 
 A.B., of Egham Hythe, in the county of Surrey, Esq., of the one 
 part, and G.B., of Staines, in the county of Middlesex, merchant, 
 of the other part : Whereas the said A.B. is seised in unincum- 
 bered fee simple in possession of the hereditaments hereinafter 
 expressed to be hereby conveyed : And whereas the said A.B. has 
 agreed with the said G.B. for the sale to him of the said heredita- 
 ments for the sum of £5000. Now this Indenture witnesseth 
 that in pursuance of the said agreement and in consideration of 
 the sum of £5000 upon or before the execution of these presents 
 to the said A.B., paid by the said G.B. (the receipt whereof the 
 said A.B. hereby acknowledges). He the said A.B., as bene- 
 ficial owner doth hereby convey unto the said G.B., All that 
 messuage, or farmhouse and farm, with the several cottages and 
 parcels of land belonging thereto, known as the Manor Farm, 
 situate in the parish of Selborne, in the county of Oxford, and 
 more particularly described in the 1st schedule hereto, and deli- 
 neated in the plan drawn in the margin of these presents, and 
 therein contained within a pink border-line, the said schedule 
 and plan being respectively extracts from the apportionment of 
 the tithe commutation rent-charge for the said parish and from 
 the map therein referred to : To hold all the said premises Unto 
 and to the use of the said G.B., in fee simple. 
 
 Suppose that A.B. were retaining the deeds, the following 
 acknowledgment and undertaking would be added : " And the 
 said A.B. hereby acknowledges the right of the said G.B. to the 
 production and delivery of copies of the documents specified in 
 the 2nd schedule hereto (which are now in the possession of the 
 
Chap. IX.] CONVEYANCE ON SALES. 85 
 
 said A.B.) : And. hereby undertakes with the said CD. for the 
 safe custody of the same documents." In witness, &c. 
 
 The first schedule above referred to (description of premises). 
 
 The second schedule above referred to (the documents re- 
 tained by the vendor). 
 
 Let us now endeavour to analyse the various parts of this 
 conveyance, but before doing so, it may be useful to premise for 
 the benefit of the uninitiated, that writings of legal instruments 
 are without punctuation, though the forms contained in the 
 present books are punctuated. Marks of parenthesis are em- 
 ployed, but are disregarded unless consonant with the sense and 
 required by the context. 
 
 The date is invariably placed at the commencement of the Date. 
 deed, but it is not an essential part of it, and the deed takes 
 effect from delivery. With regard to parties, the rule is that 
 all persons from whom anything is to pass, or who are to enter 
 into any engagement, ought to be parties and execute the 
 instrument. It is, however, provided by the 8 & 9 Vict. c. 106, 
 that the benefit of a covenant contained in an indenture may be 
 taken by a person not named as a party. 
 
 With regard to the order of the parties, the rule is that Order of 
 those from whom the property passes are placed first, the pafties. 
 premier position of all being conceded to those who convey the 
 legal estate, the next to those who have partial or temporary 
 interests, e.g., second mortgagees, incumbrancers, and the last 
 to those to whom, subject to the preceding incumbrances, &c., 
 belongs the ultimate interest in the property conveyed. 
 
 Eecitals are the narrative of the facts aad instruments show- Recitals. 
 ing the title and the relation of the parties to the subject- 
 matter, and the motive for the operative parts of the instrument. 
 They are generally divided into narrative recitals, which set 
 forth the facts and instruments, and introductory recitals which 
 explain the motive for the operative parts. As a general rule, 
 recitals in conveyances upon sales, mortgages, exchanges, parti- 
 tions and the like, should be confined to such matters as are 
 required to elucidate the existing condition of circumstances, 
 and the estates and interests and intentions of the parties, 
 excluding such as are merely matters of title which are omitted 
 as irrelevant Q). 
 
 Where the vendor is owner in fee no recitals are really 
 required, and a conveyance from him might well proceed 
 straight from the parties to the operative part. But even in 
 
 (') Davidson's Precedeuts, vol. i. 5th cd. jij), 21, 31, 44, 46. 
 
86 SEAL PB0PEBT7. [Book I. 
 
 sucli a case, a recital, " Wtereas the said (fhe vendor) is 
 
 seised in fee simple in possession, free from all incumbrances of 
 the hereditaments hereinafter expressed to be hereby conveyed," 
 is not without its uses, and is now not unfreqnently inserted, 
 for it has been decided that under the Tender and Purchaser 
 Act, 1874, s. 2, such a recital in a conveyance more than twenty 
 years old is sufficient evidence of the fact, and no prior abstract 
 of title can be demanded, except so far as the recital can be 
 proved to be inaccurate ; and in such cases a forty years' title 
 (the usual length) is not required (^). 
 Recitals. And here, as we are speaking of recitals, it may be well, 
 
 though the observation is not altogether germane to the con- 
 sideration of an ordinary conveyance, to direct the reader's 
 attention to the well settled rule that a release of claims, how- 
 ever generally expressed, only extends to matters of which the 
 releasor was cognizant when he executed the release. In pre- 
 paring a deed of this nature, therefore {^), it is essential that 
 full and accurate recitals should be inserted in order to show on 
 the face of the instrument what are the claims to be released. 
 In framing recitals the usual and the safest rule is to recite 
 the necessary assurances and facts in chronological order; and 
 moreover each of them should be recited as an independent 
 matter, " recitals within recitals " being the abhorrence of the 
 conveyancer. The draftsman must bear in mind that he is 
 telling a story ; his business is to make it a clear and accurate 
 one, and to present to the reader, as far as the subject-matter 
 will allow, " a round unvarnished tale." 
 
 The recitals in a deed may on occasion exercise a most mate- 
 rial influence on its construction. The general rule of law on 
 this point has lately been expressed in the following terms : — 
 
 " If the recitals are clear and the operative part is ambiguous, 
 the recitals govern the construction. If the recitals are am- 
 biguous, and the operative part is clear, the operative part must 
 prevail. If both the recitals and the operative part are clear, 
 but they are inconsistent with each other, the operative part is 
 to be preferred " ('). 
 
 A recital in a deed in certain circumstances, as it is technically 
 said, " operates as an estoppel," i.e., a party may be held bound 
 not to deny it ; but it will not so operate against a party to the 
 
 (') BoUon V. London School Board, 829 ; and see as to setting aside 
 7 Oh, D. 766 ; see, however, some release : Be Garnett. Gandy v. Ma- 
 
 observations on this case: 1 David. caulay, 31 Ch. Div. 251. 
 5tl'„e'i„P- llO- C) Ex varte Dawes. In re Moore, 
 
 C) Tamer t. Turner, 14 Ch. D. 17 Q. B. D. 286. 
 
Chap. IX.] 
 
 CONVETANOE ON SALES. 
 
 87 
 
 deed in an action not founded on the deed, but collateral to Eecitals. 
 it Q'). The law on this subject has been well summed up as 
 follows : " If a distinct statement of a particular fact is made in 
 a recital of a bond or other instrument under seal, and a contract 
 is made with reference to that recital, it is unquestionably true 
 that as between the parties to that instrument, and in an 
 action upon it, it is not competent for the party bound to deny 
 the recital. But there is no authority to shew that a party to 
 the instrument would be estopped in an action by the other 
 party, not founded on the deed, and wholly collateral to it to 
 dispute the fact so admitted, though the recitals would 
 certainly be evidence " (see, as to Estoppel, post, p. 863). 
 
 With reference to the next portions of our conveyance, it may Considera- 
 sufBce here to point out that a deed of itself imports considera- *'°°' 
 tion, though of course in a conveyance on sale a consideration is 
 always expressed. Sect. 49 of the Conveyancing Act provides 
 that the word " grant " shall no longer be necessary to convey Grant, 
 tenements or hereditaments, corporeal or incorporeal. Sects. 54 
 and 55 of the same Act render a receipt in the body of the deed Receipt, 
 sufficient (see as to solicitor producing deed with receipt 
 indorsed in the body of it, post, p. 848). A deed is sometimes 
 delivered to a third party until some condition, ex gr., the pay- 
 ment of money is fulfilled, and is then called an escrow, i.e., a 
 mere scriptum, or writing, and when the condition is fulfilled it 
 dates from the time of execution (2). 
 
 Formerly, an elaborate form of words, as to " all the estate, 
 right, title," &c., of the conveying party would have been inserted 
 in the deed. The " all the Estate " clause, as it was called, had 
 become so firmly established, that an eminent conveyancer 
 predicted, that though wholly unnecessary, it would hardly be 
 eradicated by less force than an Act of Parliament. The 
 words are now implied by the Conveyancing Act, and the clause 
 is consequently invariably omitted (^). 
 
 It will be observed that in the above deed covenants for title CoTenauts. 
 are conspicuous by their absence. This is in accordance with 
 the invariable practice of conveyancers, the reason being that 
 in a conveyance for valuable consideration other than a mort- 
 gage when a person conveys, and is expressed to convey, as 
 beneficial owner, the following covenants which were formerly 
 
 Escrow. 
 
 Estate 
 clause. 
 
 (') Ex parte Morgan. Be Simpson, 
 2 Gh. D. 72. 
 
 (^) See Walker v. Ware Sailway 
 Co., 35 Beav. 58, where the deed waa 
 delivered by a man to his solicitor 
 
 to be exchanged against the purchase 
 money. The deed ought to be de- 
 livered to the solicitor as an escrow. 
 
 (') Sect. 63 of Conveyancing Act, 
 1881. 
 
88 REAL PBOPEBTY. [Book I. 
 
 Covenants, inserted in deeds are now implied by the Conveyancing Act, 
 1881 Q). 
 
 1. Eight to convey, viz. that notwithstanding anything by 
 the person who so conveys, or any one through whom he 
 derives title, otherwise than hy purchase for value, made, done, 
 executed, or omitted, or knowingly suffered, he has with the 
 concurrence of every other person, if any conveying by his 
 direction, full power to convey the subject-matter expressed 
 to he conveyed ; 
 
 2. For quiet enjoyment ; 
 
 3. freedom from incumbrances ; 
 
 4. Further assurance. 
 
 On the other hand, when in a conveyance a person eonvej'ing 
 is not expressed to convey as beneficial owner, or as settlor, or as 
 trustee, or as mortgagee, or as personal representative of a 
 deceased person, or as committee of a lunatic so found by 
 inquisition, or under an order of the Court, or by direction 
 of a person as beneficial owner, no covenant on the part of 
 the person conveying is implied by the Conveyancing Act Q). 
 
 When a mortgagor conveys and is expressed to convey as 
 beneficial owner, absolute covenants are implied. (See as to 
 covenants in conveyances of leaseholds, post, p. 132). 
 
 Where the conveyance is by way of settlement (jpost, p. 133, 
 et seq.), the following covenant is implied by a person who 
 conveys, and is expressed to convey " as settlor." 
 
 That the person so conveying, and every person deriving title 
 under him by deed or act, or operation of law, in his life- 
 time, subsequent to that conveyance, or by testamentary 
 disposition or devolution in law, on his death, will, from 
 time to time, and at all times, after the date of that con- 
 veyance, at the request and cost of any person deriving 
 title thereunder, execute and do all such lawful assurances 
 and things for further or more perfectly assuring the sub- 
 ject-matter of the conveyance to the persons to whom the 
 conveyance is made and those deriving title under them, 
 subject as, if so expressed, and in the manner in which the 
 conveyance is expressed to be made, as by them or any of 
 them shall be reasonably required : 
 When a person conveys, and is expressed to convey, as 
 trustee or mortgagee, or as personal representative of a deceased 
 person, or as committee of a lunatic so found by inquisition, 
 or under an order of the Court, the following covenant, which 
 
 (') U & 45 Vict. c. 41, s. 7. (^) 44 & 45 Vict. c. 41, s 7, subs. 4. 
 
Chap. K.] CONVEYANCE ON SALES. " 89 
 
 is to te deemed to extend to every such person's own acts Covenants, 
 only, is implied by the Conveyancing Act : — ■ 
 
 That the person so conveying has not executed or done, or 
 knowingly suffered, or been party or privy to, any deed or 
 thing, whereby or by means whereof the subject- matter of 
 the conveyance, or any part thereof, is or may be impeached, 
 charged, affected, or incumbered in title, estate, or other- 
 wise, or whereby or by means whereof the person who so 
 conveys is in anywise hindered from conveying the subject- 
 matter of the conveyance, or any part thereof,_in the manner 
 in which it is expressed to be conveyed (i). 
 The Conveyancing Act provides that where in a conveyance 
 it is expressed that " by direction of a person expressed to direct 
 as beneficial owner " another person conveys, then the person 
 giving the direction, whether he conveys and is expressed to 
 convey as beneficial owner or not, shall be deemed to convey 
 and to be expressed to convey as beneficial owner the subject- 
 matter so conveyed by his direction ; and a covenant on his part 
 shall be implied accordingly. 
 
 The Conveyancing Act also provides with regard to convey- 
 ances by husband and wife that when a wife conveys and " is 
 expressed to convey as beneficial owner," and the husband also 
 conveys and is expressed to convey as beneficial owner, then the 
 wife shall be deemed to convey and to be expressed to convey 
 by direction of the husband, as beneficial owner ; and, in addi- 
 tion to the covenant implied on the part of the wife, there shall 
 also be implied, first, a covenant on the part of the husband as 
 the person giving that direction, and secondly, a covenant on 
 the part of the husband in the same terms as the covenant 
 implied on the part of the wife. 
 
 Suppose now the conveyance in question instead of being in 
 this extremely simple form were a conveyance of part of a build- 
 ing estate, subject to what are called " restrictive covenants," 
 i.e., covenants not to erect any buildings, except of a particular 
 class. In that case recitals might be inserted that A. B. was 
 seised in fee of the property in question subject to certain 
 restrictive covenants. The conveyance would then be made 
 subject to these covenants, and there would be a covenant by 
 €. D. with A. B. in some such form as follows : — 
 
 " And the said G. D., for himself and his assigns, covenants 
 with the said A. B. that he, the said G. D., his heirs and assigns, 
 will at all times hereafter observe and perform all the covenants 
 
 (') 41 & 45 Viot. c. 41, s. 7, subs. 1 (F.). 
 
90 REAL PROPERTT. [Book I. 
 
 Covenants. \^j the said A. B., and restrictive provisions contained in the 
 said [Indenture of the 10th day of June, 1887,] so far as the same 
 covenants and provisions relate to the said premises hereinbefore 
 granted, and will keep the said A. B. and his estate indemnified 
 against all actions, proceedings, costs, damages, claims, demands, 
 and liability under or in respect of the said covenants and 
 provisions, or any of them." 
 
 This covenant in the deed, it will be observed, is simply 
 made by A. B. with C. D. The reason is, that a great many 
 words which were under the practice before the let of January, 
 1882, invariably inserted in all covenants, are now rendered 
 wholly unnecessary by the following provisions : 
 
 The Conveyancing Act, 1881, provides with regard to cove- 
 nants made after the commencement of the Act, 1st Jan. 1882 : — 
 
 That, (1) a covenant relating to land of inheritance, or de- 
 volving on the heir as special occupant, shall be deemed to be 
 made with the covenantee, his heirs and assigns, and shall have 
 effect as if heirs and assigns were expressed. 
 
 (2) A covenant relating to land not of inheritance, or not 
 devolving on the heir as special occupant, shall be deemed to 
 be made with the covenantee, his executors, administrators, and 
 assigns, and shall have effect as if executors, administrators and 
 assigns were expressed. 
 
 It is also provided by the same Act with regard to covenants, 
 contracts, bonds or obligations, made or implied after the com- 
 mencement of the Act : — 
 
 That, (1) a covenant and a contract under seal, and a bond or 
 obligation under seal, though not expressed to bind the heirs, 
 shall operate in law to bind the heirs and real estate, as well as 
 the executors and administrators and personal estate of the 
 person making the same, as if heirs were expressed. 
 
 The section, however, applies only if and as far as a contrary 
 intention is not expressed in the covenant, contract, bond or 
 obligation, and shall have effect subject to the terms of the cove- 
 nant, contract, bond or obligation, and to the provisions therein 
 contained (}). 
 
 When independent of the statutory covenants implied under 
 the Conveyancing Act, by the use of certain words, will cove- 
 nants be implied in deeds? This question was discussed in a 
 recent case where the law was stated as follows : 
 
 " Much the safest rule in such cases to follow, when there is 
 any reasonable doubt, whether the parties did intend to enter 
 
 Q) Conveyancing Act, 1881, sects. 58 & 59. 
 
tion. 
 
 Chap. IX.] CONVEYANCE ON SALES. 91 
 
 into a covenant sucli as is sought to be implied here, is to look 
 at the deed and at the circumstances under which the deed was 
 made ; and if you find that there is no such covenant in the 
 deed, and that there has been no bad faith on the part of those 
 against whom it is sought to imply such a covenant, the Court 
 ought to be extremely careful how it implies such a covenant 
 in a well-considered deed, when there are no words whatever 
 which express that covenant in any way " (}). 
 
 The last part of the deed is the testimonium. A change of Attesta- 
 considerable importance is here introduced by the Conveyancing 
 Act, 1881, sect. 8, which provides that " On a sale the purchaser 
 shall not be entitled to require that the conveyance to him be 
 executed in his presence, or in that of his solicitoi-, as such ; 
 but shall be entitled to have, at his own cost, the execution of 
 the conveyance attested by some person appointed by him, who 
 may, if he thinks fit, be his solicitor " (^). 
 
 It may here be pointed out that it is provided by sect. 53 of 
 the Conveyancing Act that when a deed is expressed to be sup- 
 plemental to a previous deed or directed to be read as an annex 
 to it, it is to be read as if it was made by indorsement on the 
 previous deed or contained a full recital of it. 
 
 Having thus considered the various portions of an ordinary 
 conveyance, we may proceed to notice briefly some points of 
 importance with regard to the rules which the draughtsman 
 ought to bear in mind in undertaking the task of its prepara- 
 tion. 
 
 The last portion of our conveyance contains the acknowledg- Acknow- 
 ment and undertaking for the custody of title deeds which is ancfunder- 
 now employed under sect. 9 of the Conveyancing Act, 1881, taking, 
 where the vendor retains possession of documents. 
 
 The object of legal instruments, as Mr. Davidson tells us, is to Object of 
 " bear witness," to preserve testimony clearly and distinctly '"Sal in- 
 respecting the matters to which they relate. The business of 
 the draftsman is to state the intention of the parties in clear 
 language (^). 
 
 The learned author from whom we have just quoted has laid 
 down a series of rules for the guidance of draftsmen, which may 
 be here usefully summarized. 
 
 (') In re Bailway and Electric the princiiial documents ■whioli re- 
 
 Applianees Co., 38 Ch. D. 597. quire attestation for their validity, 
 
 (^) It must be borne in mind that wills, warrants of attorney, cognovits, 
 
 attestation is only requisite when bills of sale, and under the Mortmain 
 
 required by an instrument creating a and Charitable Uses Act, 1888. 
 
 power or by statute : Seal v. Claridge, (^) Davidson, vol. i. p. 15. 
 7 Q. B. D. 516. The following are 
 
92 
 
 REAL PROPERTY. 
 
 [Book I. 
 
 PracticRl 
 rules for 
 convey- 
 ancing. 
 
 1. Before the draft is commenced, the whole design of it 
 should be conceived. It must, however, be borne in mind that 
 the details of the plan will generally require to be altered more 
 or less in the progress of the work, and that of course if the 
 original design be found seriously wrong it must be altered, 
 and the draft then be made the subject of a thorough revision. 
 A practical rule, which is also of value, is suggested by 
 another writer on Conveyancing (}), viz. that it is a good plan 
 for the draftsman to prepare a " skeleton draft " before he 
 begins to draw^ in reality. 
 
 Ex. gr. Parties. A. B. 1st, C. D. 2nd, E. F. 3rd. 
 Eecitals. 1. Mortgage in fee. 
 
 2. Contract for sale, &c. 
 
 2. Nothing should be omitted or admitted at random; all 
 that is introduced should have an object for its introduction, 
 and should be conducive to the general design, and only the 
 essential parts of instruments should be recited. 
 
 Particular attention is also directed to one branch of this 
 rule, viz., that necessary consequences which inevitably flow 
 from facts previously mentioned should not be expressed, ex. gr., 
 a statement that " A. B. died leaving C. D. his heir-at-law" is 
 quite sufficient, and should not be marred by the addition of 
 the wholly unnecessary words " him surviving," because C. D. 
 could not possibly be A. B.'s heir-at-law unless he survived. 
 Again, Mr. Davidson tells us statements of negatives should be 
 omitted. 'I'hus it is wholly superfluous to add to the words " to 
 A. B. and C. D. as tenants in common " the words " and not 
 as joint tenants." 
 
 3. The order of the draft should be strictly logical, i.e. the 
 recitals should be as far as possible connected with each other in 
 logical order, and the consequences effected by the operative 
 parts should follow in natural course upon the recitals and upon 
 each other. 
 
 4. The ordinary and accustomed forms of instruments and 
 technical language should be employed. 
 
 6. The language should be precise and accurate, so that by 
 the use of technical language, legal phraseology, and clear and 
 connected expressions, there may be no ambiguity. 
 
 Eeal accuracy and precision, says Mr. Davidson, in con- 
 clusion, consists not only in the use of apt words, but in the 
 omission of superfluous phrases, the avoidance of tautology. 
 
 (') ElphinstoDe on Conveyancing. 
 
Chap. IX.] CONVEYANCE ON SALES. 93 
 
 correct references, and a strict adherence to the rules of 
 grammar Q-). 
 
 Notice. Notice. 
 
 It will be here desirable in connection with the subject of 
 purchases to draw attention to the extremely important change 
 with regard to the doctrine of constructive notice introduced 
 by the third section of the Conveyancing Act, 1882, which 
 came into operation on the 1st of January, 1883, and, with a 
 saving clause as to pending actions, applies to purchases made 
 either before or after the commencement of the Act. This 
 section provides that — • 
 
 (1) A purchaser shall not be prejudicially affected by notice of 
 any interest, fact, or thing, unless : — 
 
 (i.) (2) It is within his own knowledge, or would have come to 
 his knowledge, if such inquiries and inspections had been 
 made as ought reasonably to have been made by him ; or 
 
 (ii.) In the same transaction, with respect to which a ques- 
 tion 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 know- 
 ledge of his solicitor, or other agent as such, if such 
 inquiries and inspections had been made, as ought reason- 
 ably 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 contained in any 
 instrument under which his title is derived, mediately or im- 
 
 (') Davidson on Conveyancing, 6th ed. p. 10). 
 5th ed. vol. ii. p. 20. The various (") See note in Gierke and Brett's 
 
 qualifications of a conveyancer are Conveyancing Acts, 2nd ed. p. 20, 
 
 well stated in an ancient treatise, as where it is pointed out that the line 
 
 follows : — " He that will arrive at any of succession of the authorities having 
 
 perfection in conveyancing must be been broken by this section, the 
 
 well acquainted with the diversities Courts will be much slower to impute 
 
 of the limitation of estates in fee tail, constructive notice to a purchaser ; 
 
 for life, &c., as also with the quali- and attention is directed to several 
 
 tiesthereof as joint tenancy, &c., and cases which would almost certainly 
 
 the incidents, rents, conditions, and be decided differently if they came 
 
 the like, and indeed he ought to now before the Court. The effect of 
 
 be well skilled in the Institute and the repeal of the former Yorkshire 
 
 Reports. And yet unless he can make Registry Acts by the Yorkshire 
 
 a, due application of his notions. Registries Act, 1884 (47 & 48 Vict, 
 
 unless he knows how to frame and c. 54) is to make the priority of 
 
 fit these materials suitable to kia assurance depend on the date of 
 
 intended design, he will rather be ex- registration, and the doctrine of 
 
 ploded as an unmethodical blunderer notice, actual or constructive, has no 
 
 than esteemed a neat conveyancer." application : Clerke and Brett, 3rd 
 
 The Conveyancer's Assistant, pub- ed. p. 248. 
 lished 1702 (cited Davidson, vol. i. 
 
94 EUAL PBOPERTT. [Book I. 
 
 mediately, 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 by reason of anything in this 
 section be affected by notice in any case where he would not 
 have been so affected if this section had not been enacted. 
 Notice. Where a purchaser or lessee has notice of a deed relating 
 
 to and forming part of the chain of title, he is regarded by the 
 Courts as having notice of the contents of the deed. In a well- 
 known case on this subject, a lady took a lease of a plot of 
 ground, for seven years, for the purposes of an Art College, 
 and proceeded to erect a studio upon it. The lease contained an 
 express provision that she should be at liberty to erect the 
 studio, but as the conveyance under which the lessor took the 
 property contained a covenant that private dwelling houses only 
 should be erected upon it, she was restrained by injunction from 
 proceeding with the construction of her studio. The change in 
 the law by which under the Vendor and Purchaser Act, 1874 
 (jpost, p. 114), an intending lessee or assignee cannot call for 
 the lessor's title has made no difference in this respect. 
 " Formerly," said Jessel, M.E., in delivering judgment, " if the 
 lessee had expressly stipulated not to look into his lessor's title 
 it would not have affected constructive notice. The Vendor 
 and Purchaser Act now makes it necessary for an intending 
 lessee to bargain that the lessor should shew a title : You may 
 bargain to shut your eyes, but if you do wilfully shut your 
 eyes, whether as a bargain or not, you must be liable to the 
 consequences of shutting your eyes. If, therefore, the lessee 
 had formerly expressly bargained to take a lease without 
 looking into the lessor's title, the lessee would have been bound 
 by constructive notice, and now, if the lessee says nothing, it is 
 exactly the same as if formerly he had bargained expressly not 
 to look into the lessor's title " Q). 
 
 Notice is either " actual notice " or " constructive notice," or, 
 as it has been called, " imputed notice," i.e. " evidence of notice 
 the presumption of which is so violent, that the Court will not 
 even allow of its being controverted " (2). 
 
 " If a man has notice that there is a deed or document, and at 
 the same time has notice that that deed or document is either 
 entirely worthless or does not affect the property with which he 
 is going to deal, he is put so completely off his guard that a 
 
 (■) Fatman v. Earland, 17 Ch. D. Q) Plumb v. Fluitt, 2 Anst. 438. 
 
 353. 
 
Chap. IX.] CONVEYANCE ON SALES. 95 
 
 Court of Equity does not treat him as fixed witli knowledge of 
 the document or the effect of it " Q). 
 
 The present law with regard to constmotive notice was Construe- 
 much considered in a case decided in ] 886 {^). In that case ^'^"^ notice. 
 Chitty, J., said " that the Act was clearly intended for the pro- 
 tection of purchasers to some extent — the question was to what 
 extent — against that refined doctrine of imputed notice which 
 had been found to work very grievous injustice to honest men, 
 the notice being implied in a very refined manner, and brought 
 home to a man who knew nothing about the matter, and who 
 found that though he had acted perfectly honestly, he was 
 postponed by reason of the doctrine of the Court." " Under 
 the former law," the judge went on to say, " a solicitor might be 
 employed who had had a considerable number of other trans- 
 actions, and amongst them might have had a dealing with the 
 particular estate which was under sale. He might or might not 
 have a good memory, but according to the doctrine of that law 
 notice was imputed to the client if there was such a distance 
 only between the former transaction and the present trans- 
 action in which he was engaged as left the Court under the 
 impression — it could not be much more than an impression 
 — that the solicitor had actually remembered the former trans- 
 action ; and in that way knowledge was imputed to the solicitor, 
 and then through the solicitor notice was imputed to the client. 
 The present law is as follows : There must be something which 
 comes to the knowledge of the solicitor as such, and in the 
 transaction. Every word of the section requires careful weigh- 
 ing, and the result is (1) that it must be in the same trans- 
 action ; (2) the matter must come to his knowledge, and 
 (3) must come to the knowledge of the solicitor as such, viz., 
 as solicitor for the purchaser or mortgagee." 
 
 It may here be pointed out that a deed that is not duly Stamps. 
 stamped cannot be given in evidence, except upon payment of 
 the proper stamp duty, together with certain pecuniary penal- 
 ties. The law as to the stamp duties on deeds is contained in 
 the Stamp Act, 1870, as amended by the Customs and Inland 
 Eevenue Acts, 1888 and 1889 (s). 
 
 An important section (sect. 20) of the Act of 1888 which may 
 here be noticed, enacts that " every condition of sale framed 
 
 (') Williams v. Williams, Yl Ch. D. 991, and authorities collected, Clerlre 
 
 437. and Brett's Conveyancing Acts, 3rd 
 
 (^) Be Cousins, 31 Ch. D. 671 ; and ed. p. 243, et seq. 
 
 see Earlnf Gainshoroughv. Watcomhe (') ?yA & 34 Vict. c. 97; 51 Vict. 
 
 Term Coita Clay Co.,'54 L. J. (Ch.) c. 8 ; 52 Vict. cc. 7 and 42. 
 
96 BEAL PROPEBTT. [Book I. 
 
 with the view of precluding objection or requisition upon the 
 ground of absence or insufficiency of stamp upon any instru- 
 ment executed after the passing of this Act, and every contract, 
 arrangement, or undertaking for assuming the liability on 
 account of absence or insufficiency of stamp upon any such 
 instrument, or indemnifying against such liability, absence, or 
 insufficiency, shall be void." 
 
( 97 ) 
 
 CHAPTER X. 
 
 Foundation 
 of doctrine. 
 
 Mortgages. 
 
 A mortgage, says Mr. Davidson, may be considered for the Definitioc. 
 " ordinary purposes of conveyancing " as a plerige of real or 
 personal estate, evidenced by deed, for securing the payment of 
 money. A somewliat fuller general description is that a mort- 
 gage is an assurance or pledge of, or charge upon, property, real 
 or personal, for an antecedent, present, or future debt or loan, as 
 security for, and redeemable on, the payment of it C-). " What- 
 ever property, personal or real, is capable of an absolute sale 
 may be the subject of a mortgage " (2). 
 
 " The equitable doctrine as to mortgages," as was stated in a 
 very recent case (^), " and more especially that part of it which 
 refers to the right to redeem, is founded in the first instance 
 on what is usually called a legal mortgage, that is to say a con- 
 veyance of land in fee by the mortgagor to the mortgagee, with 
 a proviso defeating that conveyance if a certain sum with 
 interest is paid by a certain time. At the end of that time, the 
 money not having been paid, there is an absolute estate in law. 
 But the Court has held from the earliest times that the real 
 contract between the parties is not one of vendor and purchaser, 
 but that it is a security for money and the interest upon that 
 money ; and that, if that money and interest be paid, then the 
 right of the grantor is to have back his property in exchange for 
 the money and interest. The Court of Equity gives effect to 
 what it sees to be the real contract between the parties, though 
 it be not expressed on the face of the instrument. That has been 
 extended to all sorts of mortgages, charges, and incumbrances ; 
 but the whole of the law on it is founded upon that one prin- 
 ciple arising out of the mortgage in fee." (*) 
 
 " The Couit of Equity " (said the Court of Appeal, upholding 
 
 (') Davidson, Conveyancing, 4th 
 ed. vol. ii. Part ii. p. 1 ; Watson's 
 Comp Eq., 2nd ed. p. 686. 
 
 (^) Story's Equity Jurisprudence, 
 p. 1021. 
 
 (=) Tarn v. Turner, 39 Ch. D. 456 ; 
 58 L. T. (N.S.) 558. 
 
 VOL. I. 
 
 (■') A mortgage has been defined, 
 (see Coote on Mortgages, 5th ed. p. 1), 
 "to be a debt by specialty, secured 
 by a pledge of lands, of which tlie 
 legal ownership is vested in the 
 creditor, but of which in equity, the 
 debtor and those claiming under him 
 
98 BEAL PBOPEBTY. [Book I. 
 
 the judgment from which we have just quoted) " always says :— 
 What is the real contract? When it is a mere security for 
 money, and when the money is tendered with interest, then we 
 direct the mortgagee to divest himself of the legal estate, and 
 not to insist on such legal rights as he has." 
 
 The richt of the mortgagor to have his estate back again on 
 payment'^of the amount owing to the mortgagee is called his 
 " equity of redemption." 
 Fraudulent A statute of William & Mary provides that if any person, 
 mortgages, j^aving once mortgaged, shall again mortgage, and shall not dis- 
 close the former mortgage to the second mortgagee, he shall have 
 no equity of redemption against such second mortgagee, and the 
 second mortgagee shall hold the land freed from the equity of 
 redemption, and as fully as if his mortgage had been an absolute 
 purchase. The statute, being of a penal character, is construed 
 strictly, and accordingly neither an equitable mortgagee by 
 deposit of title-deeds, nor a mortgagee under a deed in the form 
 of a further charge falls within its provisions Q-). 
 
 A lono'-established principle of the law is embodied in the 
 maxim " once a mortgage always a mortgage." The rule 
 " never to be transgressed " is, that a mortgagor never by any 
 contract made at the time of the mortgage gives up his right 
 to redeem or fetter the right in any way Q). Another and 
 analogous principle is that a man shall not have interest for his 
 money and a collateral advantage besides for the loan of it, or 
 clog the redemption with any bye agreement (^). 
 
 It is, however, often stipulated, in mortgage deeds especially, 
 when the mortgage money is of large amount, that the loan shall 
 continue for a certain period, e.g., seven years, for although the 
 law will not allow a mortgagor to be precluded from redeeming 
 
 remain tbe actual owners, until de- implied transfer of property (other- 
 barred by judicial sentence, by legis- wise than by mere delivery or pawn- 
 lative enactment, or their own laches." ing), as a pledge for the payment of 
 It has been pointed out, Davidson, a debt, or performance of an obliga- 
 vol. ii. Part ii. p. 2, note (1), that tion." 
 
 these words are rather a description (') 4*5 Wm. & M. c. 16 ; Ken- 
 
 of the type or standard form of mort- naird v. Futvoye, 2 Giff. 81. 
 
 gage than a definition, and that (1) a (^) Marquis of Noiihampton v. 
 
 mortgage debt must not necessarily Folhck, 45 Ch. X). 190. See notes to 
 
 be a specialty debt, as only a simple Howard v. Harris, 2 White & Tudor, 
 
 contract debt is implied, unless there where the rule is spoken of as an 
 
 is a bond or covenant for repayment ; exception to the general principle 
 
 (2) that it excludes mortgages of modus et conventio vincunt legem. 
 
 personal estate ; and (3) that it does (=) Eyre v. Hughes, 2 Ch. D. 148 ; 
 
 not apply to second mortgages or James v. Kerr, 40 Ch. D. 449 ; and see 
 
 mortgages of equitable interests. The Mainland v. Upjohn, 41 Ch. X>. 126, 
 
 true definition of a mortgage, says where the mortgagees' commissioner 
 
 Mr. Davidson, " must include every bonus was allowed, 
 case in which there is an actual or 
 
Chap. X.] MOBTGAGJSS. 99 
 
 altogether, yet he may be precluded from redeeming for a fixed 
 period, such as five or seven years (i). 
 
 It is a long-established rule that a mortgagee is entitled to Notice to 
 six months' notice before he can be paid oif in order that he '"*■*' 
 may be able to look out for another investment for his money. 
 
 A mortgage of freeholds is usually made by a conveyance in Freeholds, 
 fee simple, or of such other interest as the mortgagor has in the 
 premises, but it may be made by demise for a term of 
 years (2). 
 
 Mortgages of leaseholds are effected either by assignment of Leaseholds. 
 all the term and interest of the mortgagor, or by demise, i.e. by 
 underlease for all the term except the last day, or last (usually 
 three) days of the term. 
 
 The latter course should generally be adopted vs^here the 
 rent reserved by the lease is more than nominal, or' the cove- 
 nants are onerous, as the assignment renders the mortgagee 
 liable to the payment of the rent and performance of the cove- 
 nants. If, however, the liability for rent, and in respect of 
 covenants is trivial, a mortgage by assignment is the prefer- 
 able form (^). 
 
 Where a mortgage comprises buildings it is desirable gene- Insurances, 
 rally to insert a covenant by the mortgagor that he will insure 
 the premises to a certain amount, and that he will on demand 
 produce the policy and receipt to the mortgagee (*). 
 
 A mortgage of copyholds is usually effected by conditional Copyholds. 
 surrender entered on the Court rolls of the manor, i.e. by a 
 surrender subject to a condition for making the surrender void 
 on payment of principal and interest on a given day. The 
 mortgagee is seldom admitted, as such admission would entail 
 the expense of fines, fees, and liability to the payment of rents 
 and heriots, and to the performance of customary services; as 
 well as the necessity of re-admission on the mortgage being 
 paid off". The mortgagee runs no risk by adopting this course, 
 as the admittance when made relates back to the surrender on 
 which it is founded, and he cannot, therefore, be prejudiced by 
 the previous admittance of any subsequent surrender. 
 
 On the repayment of the mortgage-money, the mortgagee 
 gives an acknowledgment called a warrant of satisfaction to 
 the steward to vacate the surrender, and a receipt for the 
 mortgage-money is endorsed on the deed. 
 
 (') Per Jessel, M.K,, Teevan v. almost universally abandoned. 
 Smith, 20 Cli. D. 724. (=>) See as to 'liability for rent : 
 
 O Coote on Mtrrtgagea, 5tli ed. Johnson v. 11'7W, 44 Ch. D. 146. 
 p. 243. The mortf^age by the owner (') Prideaux, 14th ed. vol. i. p. 480. 
 
 in fee for a long term of joars is now 
 
100 REAL PBOPEETT. [Book I. 
 
 Jfortgages Tte following short forms will serve to illustrate the mode 
 holds " ^■'^ which mortgages of freeholds and leaseholds are effected : — - 
 This indenture made the 10th day of January, 1890. Between 
 A.B. of in the county of of the one part, and CD. 
 
 of in the county of of the other part, witnesseth 
 
 that in consideration of the sum of £ now paid to the said 
 A.B. hy the said CD. the receipt whereof the said A.B. 
 hereby acknowledges, the said A.B. hereby covenants with the 
 said CD. to pay to him on the 10th day of July, 1890, the 
 sum of £ with interest thereon in the meantime at the rate 
 of per cent, per annum : And also so long after that day as 
 any principal money shall remain due under this mortgage to 
 pay to the said CD., interest thereon at the same rate by equal 
 half-yearly payments on the day of and the 
 
 day of in every year. And this indenture also witnesseth 
 
 that for the consideration aforesaid the said A.B. hereby as 
 beneficial owner conveys unto the said CD. All that &c., to 
 hold all the premises unto and to the use of the said CD., 
 in fee simple, subject to the proviso for redemption herein- 
 after contained : Provided always that if the said A.B., his heirs, 
 executors, administrators, or assigns, shall on the said 10th day 
 of July, 1890, pay to the said CD., his executors, administra- 
 tors, or assigns, the sum of £ and interest thereon at the 
 rate aforesaid, then the said CD., his executors, administrators, 
 or assigns, will at the request and cost of the said A.B., his heirs, 
 executors, administrators, or assigns, reconvey the premises 
 hereby granted unto the said A.B. , his heirs or assigns, And the 
 said A.B. hereby covenants with the said CD. that he the said 
 A.B. will at all times during the continuance of this security keep 
 the messuages and buildings now existing or hereafter to be 
 erected on the premises, hereby conveyed, in proper and substan- 
 tial repair and insured against loss or damage by fire, in the sum 
 of £ at the least, and will pay all premiums and sums of money 
 necessary for such purpose on the first day on which the same 
 respectively ought to be paid and will on demand produce to 
 the said CD., his executors, administrators, and assigns, the 
 policy or policies of such insurance and the receipt for every 
 such payment : And also that if default shall be made in keep- 
 ing the said premises so repaired or insured, it shall be lawful 
 for the said CD., his executors, administrators, and assigns, 
 to enter into and upon the said premises and put the same into 
 proper and substantial repair, or (as the case may be) to insure 
 and keep insured the said premises in any sum not exceeding 
 £ , and that the said A.B., his executors, administrators. 
 
Chap. X.] MORTGAGES. 101 
 
 or assigns, will on demand repay to the said CD., his executors, 
 administrators, or assigns, all moneys expended for either of the 
 aforesaid purposes by him or them with interest thereon at the 
 rate aforesaid from the time of the same respectively, having 
 been advanced or paid, and that until such repayment the same 
 shall be a charge upon the said premises hereinbefore expressed 
 to be hereby conveyed. 
 
 Suppose now that the property mortgaged was leasehold. Mortgages 
 The lease is iisually recited formally, and the parcels set out in ^01(1^'^" 
 the recital ; but, as pointed out by Mr. Davidson, this is only 
 necessary when it is required to show who the lessor is. Let 
 us suppose that it is considered desirable to mortgage without 
 reciting the lease in this case (i). The form might proceed as 
 follows : — 
 
 That, for the consideration aforesaid, the said A.B. hereby 
 demises and, as beneficial owner, conveys unto the said CD. All 
 that, &c. To hold all the premises hereby demised unto the 
 said CD., his executors, administrators, and assigns, fur all the 
 residue now unexpired of a term of years, from the 
 
 day of , 188 , therein created by an indenture of lease, 
 
 dated the day of , 188 , and made between , 
 
 except the last three days of the said term, Subject to the pro- 
 viso for redemption hereinafter contained. And the said A.B. 
 declares that he and his executors, administrators, and assigns 
 will henceforth stand possessed of the reversion hereby excepted 
 out of the said term in trust for the said CD., his executors, 
 administrators, and assigns, and to assign and dispose of the 
 same as he or they shall from time to time direct, subject to 
 such right of redemption as may for the time being be subsist- 
 ing by virtue of this mortgage. And the said A.B. hereby 
 irrevocably appoints the said CD., his executors, administrators, 
 and assigns, and every of them, and his or their nominee or 
 nominees, the attorney or attorneys of him the said A.B. in his 
 name and on his behalf at any time when they or he shall think 
 fit to assign the said excepted reversion to the said CD., his 
 executors, administiatois, or assigns, or as he or they shall 
 direct, subject to such equity of redemption (if any) subsisting 
 as aforesaid, and to execute and do all deeds, instruments, and 
 things which may be necessary or proper for that purpose. 
 
 A clause which was formerly much in use in oases of what Attorn- 
 were called residentiary mortgages, that is, where the mortgagor ™^°* 
 continued in occupation of the mortgaged property, was an 
 
 (') Davidson, vol. i. Part ii. p. 212; Part ii. p. 118; and see Me Gee, 
 24 Q. B. D. 65, 67. 
 
102 REAL PROPERTY. [Book I. 
 
 attornment clause by which the mortgagor became tenant to 
 the mortgagee at rent equal to the interest so as to give tlie 
 mortgagee the power to distrain for the interest as rent. Since 
 the Bills of Sale Acts, 1878 and 1882, however, this clause is not 
 unfrequently omitted Q-~). 
 
 Attention may now be directed to the various kinds of mort- 
 
 kinds of 
 mortgages. 
 
 Various An " equitable mortgage," whether of real or personal property, 
 
 may be created by making a mortgage subject to a prior legal 
 mortgage ; by charging the property without a conveyance ; or 
 by an agreement to execute a legal mortgage. It may also be 
 created (and this is the transaction to which the term " equitable 
 mortgage " is most usually applied), by deposit of title-deeds or 
 copies of Court rolls in the case of copyholds, either with or with- 
 out a memorandum of the terms of the deposit. It was decided 
 by Lord Thurlow in Russell v. Russell (^), that the provisions of 
 the 4th section of the Statute of Frauds {post, p. 376), do not in- 
 terfere with the validity of the transaction. A deposit may 
 create a legal mortgage, " though there be not one word spoken 
 at the time," but a parol agreement to deposit deeds unaccom- 
 panied by any actual deposit is not an equitable mortgage. (^) 
 
 It was established by a well known decision in the House of 
 Lords, that if a mortgage is made to secure a specified sum and 
 future advances, and then a subsequent mortgage is made, and 
 notice thereof given to the first mortgagee, the first mortgagee 
 will not be entitled to priority over the second mortgagee, in 
 respect of any sums which he advances after the notice (''). 
 
 A form of mortgage which is still existent, is that which 
 is called the Welsh mortgage ; there is no covenant for payment 
 of mortgage debt, the mortgagee has no power to compel redemp- 
 tion or foreclosure, but the mortgagor may redeem at any 
 time. The mortgagee meanwhile, retaining the profits without 
 account in lieu of interest (^). 
 
 Q) Be Willis, 21 Q. B. D. 384; was held, reversing the Court of 
 
 Mumfm-d v. Collier, 25 Q. B. D. 279. Appeal, 31 Ch. D. 19, that this doc- 
 
 (2) 1 Bro. C. G. 269, followed by trine applied, 
 
 tlio same judge in Feaiherstone v. (=) Howell v. Frice, Free. Ch. 423. 
 
 Fenwiok. Harford v. Carpenter, 1 See as to the Vivum Vadium and 
 
 Bro. C. C. 270, note. Mortuum Vadium (both now obso- 
 
 (=) See further as to equilable lete), and how they differ from the 
 
 mortgage : Coote on Mortgages, Welsh mortgage : "Coote on Mort- 
 
 5th ed. p. 336, et seq. ; Watson's Com- gage, 5d. ed. p. 5. It has been 
 
 pendium of Equity, p. 690 et seq. ; decided that tlie Court will, if the 
 
 Fisher ou Mortgages, 4th ed. p. 49. amount of rents and profits be ex- 
 
 C) Hopkinson v. Rolt, 9 H. L. 0. cessive, order an account, notwith- 
 
 ^\i ; 3,uA see Bradford Banking Co. standing the agreement that the 
 
 V. Briggs, 12 App. Cas. 29, where it rents and profits are to be taken in 
 
Chap. X.] MOBTGAOSS. 103 
 
 The nature of anotlier class of mortgage security was rauch 
 considered in a case which came before the Court of Appeal in 
 1879. 
 
 In this case there was, as Sir George Jessel said, what is even 
 now by no means an uncommon form of mortgage, and what 
 was at the beginning of this century a most common form of 
 mortgage, viz., a conveyance reciting the loan and the intended 
 security, and then a grant or release of the land to the mort- 
 gagee upon trust when he thought fit to sell, or to sell or 
 mortgage, with a declaration of the trusts of the money, and a 
 further declaration that whenever he chose he might enter and 
 take the rents and apply them in keex)ing down the interest Q). 
 
 The Court of Appeal decided that this security was intended 
 by the parties and was to be treated by the Court as simply a 
 mortgage and nothing more. 
 
 A transaction which must be carefully distinguished from a Condi- 
 mortgage, is that which is called a " conditional purchase," ^^^^^ 
 viz., a sale by the owner of property to another person with an 
 option of repurchasing at a particular time. The rule of the 
 Court is, in the case of such a conditional purchase, to hold the 
 vendor strictly to his contract. The inadequacy of the con- 
 sideration, the value of the property, the taking by the grantee 
 of immediate possession under the conveyance, the payment by 
 grantee or by grantor, of the costs of the transaction or of insur- 
 ance and other outgoings of the property, are circumstances, 
 each or all of which with other circumstances will be taken into 
 consideration in deciding whether the transaction is a mortgage, 
 but they are not conclusive on the point (2). 
 
 A mortgagee has a variety of remedies for the purpose of Mortga- 
 recovering money which he has lent, and, subject to certain ^f^ I'eme- 
 limitations, he may pursue all his remedies concurrently. He 
 may (1), foreclose ; (2), apply to the Court for a judgment or 
 order for sale; (3), he may sell under a power of sale, either 
 expressly given by the mortgage deed, or conferred upon him by 
 the provisions implied by Lord Cranworth's Act (23 & 24 Vict. 
 c. 145), or the Conveyancing Act ; (4), he may enter into posses- 
 sion ; but this course is open to many disadvantages ; (5), he 
 may sue on the personal covenant for his principal and interest ; 
 
 lieu of interest, and Mr. Coote ex- p. 325. 
 
 presses an o]pinion that at the present Q) In re Alison. Johnson v. Motm- 
 
 day the Court would, in every in- seij, 11 Ch. D. 284, explaining Lock- 
 
 stanoe, order an account against the iiig v. Parker, L. K. 8 Ch. 30. 
 
 mortgagee of the rents and proiits, (^) Fisher on Mortgages, 4th ed. 
 
 whether the value was excessive or p. lU. 
 
 not: Coote on Mortgages, 5th ed. 
 
104 REAL PROPERTY. [Book I. 
 
 but a mortgagee who sues on the oovenant and obtains full pay- 
 ment cannot have judgment for foreclosure; but if he only 
 recovers part he may foreclose for the balance. Tf, on the other 
 hand, the mortgagee gets his foreclosure judgment first and 
 then sues on the covenant, he thereby " opens the foreclosure," 
 as it is said, and gives the mortgagor a fresh right to redeem. 
 If the mortgagee, having foreclosed, sells, and thus disables 
 himself from restoring the property, he will be prevented from 
 bringing an action on the covenant (^). 
 
 In a case which came recently before the Court of Appeal, a 
 mortgage contained a covenant to pay at the expiration of six 
 months, with a power of sale in the usual form, and a proviso that 
 the power should not be executed nntil after notice and three 
 months' defanlt. The deed also contained the usual clause that, 
 upon any sale purporting to be made in pursuance of the power, 
 the purchaser should not be bound to inquire whether the case 
 mentioned in the power of sale had happened, or whether any de- 
 fault had been made in payment of any prin'cipal or interest at 
 the time appointed for payment, or as to the propriety or regu- 
 larity of such sale, and that, notwithstanding any impropriety 
 or irregularity whatsoever in any such sale, the same should, so 
 far as regarded the safety and protection of the purchaser, be 
 deemed to be within the power, and be valid and effectual 
 accordingly. 
 
 Two months after the date of the mortgage the mortgagee 
 gave notice to the mortgagor to pay off the debt, and five 
 months after the notice sold. 
 
 The mortgagor then brought an action to set aside the sale, 
 and the Court decided in his favour. The principle upon which 
 the Court proceeded was that a proviso relieving a purchaser 
 under a power from inquiring as to the regularity of a sale does 
 not protect a purchaser who knows of an irregularity which 
 cannot have been waived (}). 
 
 A new right has been conferred upon mortgagors and incum- 
 brancers, by the Conveyancing Acts of 1881 and 1882. 
 
 Section 15 of the Conveyancing Act, 1881, which is retrospec- 
 tive in its operation and is to have effect, " notwithstanding anv 
 stipulation to the contrary," provides that where a mortgagor is 
 entitled to redeem he shall by virtue of that Act have power to 
 
 (') Falmer v. Hendrie, 27 Beav. London v. Ingram, 16 Oh. D. 53; 
 
 349 and 28 Beav. 341 ; Loclthart v. Noyes v. Pollock, 32 Ch. D. 53 ; and 
 
 Sardy, 9 Beav. 349 ; Re Burrell, see Tomlin v. Luce, 41 Ch. B. 573, 
 
 7 Eq. 399 ; and see Kinnaird v. Trol- varied 43 Ch. D. 191 as to mistake on 
 
 lope, 39 Ch. D. 636. See, as to mort- sale, 
 gagee in possession : Union Panic of C) Selwynv. GarJif,38Ch. Div.278. 
 
Chap. X.] MORTGAGES. 105 
 
 require tlie mortgagee, instead of reconveying and on tlie terms 
 on which he ■would be bound to reoonvey, to assign the mortgage 
 debt and convey the mortgaged property to any third person as 
 the mortgagor directs, and the mortgagee shall, by virtue of this 
 Act, be bound to assign and convey accordingly Q-^. The pro- 
 visions of this section do not apply where a mortgagee is or has 
 been in possession. 
 
 Section 12 of the Conveyancing Act, 1882 {^), provides that 
 the right of a mortgagor under section 15 of the Conveyancing 
 Act, 1881, to require a mortgagee instead of reconveying to 
 assign the mortgage debt and convey the mortgaged property 
 to a third person shall belong to and be capable of being 
 enforced hy each incumbrancer or by the mortgagor, notwithstanding 
 any intermediate incumbrance, but a requisition of an incum- 
 brancer shall prevail over a requisition of the mortgagor, and 
 as between incumbrancers a requisition of a prior incumbrancer 
 shall prevail over a requisition of a subsequent incumbrancer. 
 
 Sect. 16 of the Conveyancing Act, 1881 — which applies only 
 to mortgages made after the commencement of the Act, but is 
 to have eifect notwithstanding any stipulation to the contrary — 
 provides that a mortgagor, as long as his right to redeem subsists, 
 shall, by virtue of that Act, be entitled from time to time, at 
 reasonable times, on his request, and at his own cost, and on pay- 
 raent of the mortgagee's costs and expenses in this behalf, to 
 inspect and make copies or abstracts of or extracts from the 
 documents of title relating to the mortgaged property in the 
 custody or power of the mortgagee. 
 
 Before the Conveyancing Act, 1881, in the absence of special 
 powers in the mortgage deed, it was necessary, in order that a 
 proper lease should be granted, that both mortgagor and mort- 
 gagee should concur (^). 
 
 The Conveyancing Act now provides that a mortgagor of land 
 while in possession may as against every incumbrancer, and a mort- 
 gagee of land while in possession may, as against all prior incum- 
 brancers and against the mortgagor, lease such land in the following 
 manner, viz. : — 
 
 (i.) An agricultural or occupation lease for any term not 
 exceeding twenty-one j^eavs ; and 
 
 (■) This provision is a legislative 279; 1 Smith's Leading Oases, 9tlied. 
 
 reversal of the old law as stated in pp. 546-604 ; Cuthbertson t. Irving, 
 
 Dumtany.Fatterson,2Fhil3il,3i5. 6 H. & N. 135: 7 H. & N. 742; 
 
 {") Passed in consequence of Tee- and note in Gierke & Brett's Con- 
 
 van V. Smith, 20 Oh. D. 724. veyancing Acts, p. 97, et seq., and 
 
 (^) 44 & 45 Vict. u. 41, s. 18. See see as to compensation to tenants 
 
 as to previous law : Keech v. JEall, when mortgagee in possession, 53 & 
 
 Dougl. 21 ; Moss v. Gallimore, Dougl. 54 Vict. i>. 57. 
 
106 SEAL PBOPERTT. [Book I. 
 
 (ii.) A ■building lease for any term not exceeding ninety-nine 
 
 years. 
 Every person making a lease under this section may execute 
 and do all assurances and things necessary or proper in that 
 behalf. 
 
 Every such lease must take effect in possession not later 
 than twelve months after its date; must reserve the best 
 rent that can reasonably be obtained, and the section also 
 contains further elaborate provisions as to the contents of the 
 lease. It is, however, provided that the section is only to have 
 application if and so far as a contrary intention is not expressed 
 either in the mortgage deed or otherwise in writing and its 
 provisions are usually excluded as regards the mortgagor. 
 
 The Conveyancing Act also gives to a mortgagee, where the 
 mortgage is made by deed, these further powers : — 
 
 (1.) A power where the mortgage money has become due to 
 sell the mortgaged property or any part thereof, either by public 
 auction or private contract, and either together or in lots. 
 
 (2.) A power at any time after the date of the mortgage deed 
 to insure and keep insured against loss or damage by fire. 
 
 (3.) A power, when the mortgage money has become due, to 
 appoint a receiver. 
 
 (4.) A power, while the mortgagee is in possession, to cut and 
 sell timber, ripe for cutting. But these powers may be excluded 
 if a contrary intention is expressed in the mortgage deed. (^) 
 
 A mortgagee, however, cannot exercise the power of sale 
 conferred on him by the Conveyancing Act unless and until 
 one of the following conditions has been fulfilled : — 
 
 (i.) There must be notice requiring payment of the mort- 
 gage money served on the mortgagor or one of several 
 mortgagors, and default made in payment of the 
 mortgage money, or of part thereof, for three months 
 after such service ; or 
 (ii.) There must be some interest under the mortgage in 
 arrear and unpaid for two months after becoming 
 due; or 
 (iii.) There must be a breach of some provision contained in 
 the mortgage deed or in the Act, and on the part 
 of the mortgagor, or of some person concurring in 
 making the mortgage, to be observed or performed, 
 other than and besides a covenant for payment of the 
 mortgage money or interest thereon (^). 
 
 C) 44 & 45 Vict. i;. 41, s. 19. {^) 44 & 45 Vict. c. 41, s. 20. 
 
Chap. X.] M0B1GAGE8. 107 
 
 It is provided tliat a mortgagee exercising tlie power of sale 
 conferred by the Act sliall have power, by deed, to convey the 
 property sold, for such estate and interest therein as is the sub- 
 ject of the mortgage, freed from all estates, interests and rights 
 to which the mortgage has prioiity, but subject to all estates, 
 interests and rights which have priority to the mortgage ; 
 except that, in the case of copyhold or customary land, the legal 
 right to admittance shall not pass by a deed under this section, 
 unless the deed is sufficient otherwise by law, or is sufficient by 
 custom, in that behalf (i). 
 
 In a mortgage of freehold property all things which are 
 annexed to the place are part of the mortgage security, unless 
 a contrary intention can be collected from the deed, and, there- 
 fore, the deed need not contain any mention of the fixtures, (2) 
 and it has been held by the Court of Appeal that words which, 
 in a conveyance in fee by way of mortgage, are sufficient to 
 pass trade fixtures, will have the same effect when the mortgage 
 is of leasehold property by subdemise. The difference between 
 the two cases, however, is that in the mortgage of the leaseholds 
 the absolute property in the fixtures as separate chattels, with 
 the right to remove and sell, will not pass to the mortgagee 
 unless an intention to that effect is apparent on the deed. 
 
 Brief forms of mortgages of freeholds and leaseholds for 
 years, and of transfers and reconveyances of such mortgages, 
 are sanctioned by the Conveyancing Act, 1881, (^) and these forms 
 may be us-ed, with such variations and additions, if any, as 
 circumstances may require. Each of the instruments in ques- 
 tion must be expressed to be a statutory mortgage, statutory 
 transfer of mortgage, or statutory reconveyance, as the case 
 may be. 
 
 An important doctrine in connection with the subject of 
 mortgages is that of consolidation. The rule of consolidation of 
 mortgages in its simplest form is this : Where one person has 
 vested in himself by way of mortgage two estates, the property 
 of the same mortgagor, one of these cannot be redeemed without 
 the other; and this is so, whether the two mortgages were 
 
 Q) 44 & 45 Vict, c 41, s. 21 ; see very materially from the repealed 
 
 In re Hodson and Howes' Contract, section in Lord Cranworth's Act and 
 
 35 Oh. Div. 668, where it was decided the case of Eiatt v. Sillmann, 19 
 
 that an equitable mortgagee by deed, W. B. 694, is considered : see, as to 
 
 ■who sells in exercise of the power of sale under power. Be Tliompson and 
 
 sale conferred by the Conveyancing Holt, 44 Ch. D. 492. 
 
 Act, cannot convey the legal estate (^) Southport and West Lancashire 
 
 vested in the mortgagor. In this Banking Co.Y.Thompson,57 Oh. D. 72. 
 
 case it was pointed out that the (') 44 & 45 Vict. c. 41, s. 26, and 
 
 language of the present section differs Sched. III. 
 
108 BEAL PBOPEBTY. [Book I. 
 
 originally granted to the same mortgagee or, having been 
 originally vested in different persons, Lave by assignment be- 
 come vested in the same person Q-). A mortgagee, in fact, as 
 the law was stated in the House 'of Lords, who holds several 
 distinct mortgages under the same mortgagor, may within 
 certain limits and against certain persons, consolidate them, 
 that is, treat them as one, and decline to be redeemed as to any 
 unless he is redeemed as to all. 
 
 The reason of the law as to consolidation has been stated as 
 follows : " The principle upon which the Court proceeds is that 
 he who seeks equity must do equity. The Court refused to 
 assist a mortgagor in getting back one of his estates unless he 
 paid all that was due, though secured on a different estate. The 
 mortgagor was coming into a Court of Equity to obtain its 
 assistance in getting back an estate which at law belonged to 
 the mortgagee, and it was held to be inequitable to allow him to 
 get back an estate of more value than the debt charged on it, 
 and to leave the mortgagee with an estate charged with a debt 
 due by the_ mortgagor which might be of larger amount than 
 the value of the estate." 
 Consolida- The law as to consolidation of mortgages applies to all mort- 
 tion. gages whether legal or equitable, whether of real or personal 
 
 property, and in actions whether for foreclosure or redemption ; 
 but the leaning of the Courts in modern cases has been against 
 anything in the nature of an extension of the doctrine. Thus 
 it has been held that the doctrine does not apply to a case where 
 default has not been made on all the securities in respect of 
 which the right to consolidate is claimed (2). In another case 
 where one of the securities, a lease which had been determined 
 by bankruptcy, had ceased to exist, it was held that there could 
 be no consolidation of the two debts (^). 
 
 A great change has been introduced into the law with regard 
 to consolidation of mortgages by the Conveyancing Act, 1881 (''). 
 It provides that a mortgagor seeking to redeem any one mort- 
 gage shall, by virtue of the Act, be entitled to do so, without 
 paying any money due under any separate mortgage made by 
 him, or by any person through whom he claims, on property 
 other than that comprised in the mortgage which he seeks to 
 
 Q) Mills V. Jennings, 13 CIi. D. 639, (=) In re Raggett, 16 Oh. D. 117 ; 
 
 646, reported in the House of Lords Gierke and Brett's Conveyancing 
 
 as Jennings v. Jordan, 6 App. Cas. Acts, 3rd ed. p. 93 ; Brett's Leading 
 
 698. Cases in Equity, p. 178. 
 
 Cummins v. Fletcher, 14 Ch. D. («) 44 & 45 Vict. c. 41, s. 17. 
 699. 
 
Chap. X.] MORTOAOES. -109 
 
 redeem. The section, however, only applies if and as far as a 
 contrary intention is not expressed in the mortgage deeds or one 
 of them, and where the mortgages or one of them are or is made 
 after the 1st of January, 1882, the date of the commencement 
 of the Conveyancing Act. 
 
 Next after the law as to consolidation may be noticed the law "Tackijg.' 
 as to " tacking," as it is technically called. Consolidation relates 
 to several mortgages on different properties. Tacking relates to 
 several mortgages on the same property. In other words con- 
 solidation is the right to throw together several mortgages on 
 several estates. Tacking is the right to throw together several 
 dehts lent on the same estate. 
 
 In dealing with the question of priorities between the various 
 incumbrancers on an estate two great principles must be borne 
 in mind : (1) that where the equiiies are equal the person who 
 has the legal estate is to prevail, and (2) that, where the equities 
 are in all other respects equal, the incumbrancers rank in order 
 of time according to the maxim, " Qui prior est tempore potior est 
 jure " (^). 
 
 It is a settled rule that when a mortgagee has the legal 
 estate and makes a further advance, and has no notice of any 
 claim adverse to his title, being a purchaser for valuable con- 
 sideration, he is entitled to tack the further advance to the 
 original mortgage (^). The doctrine, however, has a wider 
 application, and is not limited to cases where the purchaser or 
 mortgagee acquires the legal estate in the first instance or before 
 notice of a prior incumbrance. 
 
 Thus, suppose a third mortgagee has advanced his money 
 without notice of a second mortgage, he may purchase the first 
 mortgage which gives him the legal estate, tack his third mort- 
 gage thereto and squeeze out the second incumbrancer. The 
 legal estate thus obtained is called the tabula in naufragio (the 
 plank in the shipwreck), for which the incumbrancers are 
 entitled to struggle. 
 
 The Yorkshire Eegistry Act provides that no priority or pro- 
 tection is in future to be allowed to any estate or interest in 
 lands by tacking it to any legal estate therein, as to lands within 
 the three Eidings of Yorkshire (except as against estates existing 
 prior to this Act), even though the party claiming such priority 
 or protection claims as a purchaser for value without notice (^). 
 
 Q) Prideaux Conveyancing, vol. i. (=) 47 & 48 Vict, c. 54, b. 16. It must 
 
 14th ed. p. 503, citing Fonblanque on be boi-ne in mind that the doctrine of 
 
 B(}uity; Biee v. Mice, 2 Blew, 73. tacking wns abolished between 7th 
 
 (,2) Young v. Young, 3 Eq. 805. Aug, ) 874, and 1st Jan. 1876 ; see 
 
110 REAL PROPERTT. [Book I. 
 
 The statutory covenants implied by the Conveyancing Act in 
 a conveyance by way of mortgage by a person who conveys and 
 is expressed to convey as beneficial owner, are absolute and 
 not limited as in a conveyance for value other than a mortgage ; 
 see, as to the covenants where a person is expressed to convey 
 as mortgagee or trustee (ante, p. 89). 
 
 In the absence of special agreement, simple interest only can 
 be charged in a mortgage account. Where such mortgage 
 account had been settled on the footing of compound interest 
 with half-yearly rests, both parties wrongly understanding the 
 mortgage deed to require the same, it was held that such settled 
 account might be re-opened Q). 
 Marshal- The doctrine of marshalling in its relation to the subject of 
 
 '°^' mortgages must here be noticed. If A. has a charge upon White- 
 
 acre and Blackacre, and if B. also has a charge upon Blackacre 
 only, A. must take payment of his charge out of Whiteacre, and 
 must leave Blackacre so that B., the other creditor, may follow 
 it and obtain payment of his debt out of it ; in other words, if 
 two estates, Whiteacre and Blackacre, are mortgaged to one 
 person, and subsequently one of them, is mortgaged to another 
 person, unless Blackacre is suiScient to pay both charges, the 
 fi.rst mortgagee will be compelled to take satisfaction out of 
 Whiteacre, in order to leave to the second mortgagee Blackacre, 
 upon which alone he can go (^). 
 Law as to In connection with this subject it will be desirable to direct 
 ^ ^ ^^' the reader's attention to the law with regard to pledges of 
 personal property, which has been well summed up in a case 
 which came before the Court of Appeal in 1886, as follows : — 
 
 " There is another entirely distinct transaction, which was 
 known to the Eomans, and has long been familiar to English 
 law, the transaction of a pawn or pledge Q). In this there 
 must be a delivery of the goods pledged to the pledgee, but only 
 a special property in them passes to him, in order that they 
 
 note Gierke & Bretfs Conveyancing Q) Per Cotton, L.J.,Tre66 v. ;S'mftA, 
 
 Acts, 3rd ed. 271 ; see the law as to 30 Oh. D. 192 ; and see Ex ■parte 
 
 tacking as against various classes of Ahion, L. E. 4 Oh. 168 : Heyman v. 
 
 persons reviewed and tabulated ; Dubois, L. E. 13 Eq. 158 ; Trumpir 
 
 Fisher on Mortgages, 4th ed. p. 554, v. Trimper, L. E. 14 Eq. 295. 
 
 et seq., and p. 575 ; and see Ledbrook (=) Ex parte Hubbard. In re 
 
 V. Passman, 57 L. J. (Oh.) 855, where Sardwick, 17 Q. B. Div. 690, 698 ; 
 
 tacking was not allowed ; and as to and see Carter v. Wake, 4 Ch. D. 605, 
 
 building societies : Eosking v. Smith, where it was decided that the pledgee 
 
 13 App. Oas. 582 ; 58 L. J. (Ch.) of personal chattels is not entitled to 
 
 367. foreclosure, but only to an order for 
 
 (') Baniell v. Sinclair, C App. Cas. sale. 
 181. 
 
Chap. X,] MORTGAGES. Ill 
 
 may be dealt witli by him, if necessary to enforco Lis rigbts — 
 tbe general property in tbe goods remaining in the pledgor. 
 A special property in the goods passes to the pledgee in order 
 that he may be able — if his right to sale arises — to sell them. 
 In all such cases there is at Common Law an authority to the 
 pledgee to sell the goods on the default of the pledgor to repay 
 the money, either at the time originally appointed, or after 
 notice by the pledgee. If the pledge is accompanied by a 
 written document, still the essence of the transaction is that 
 actual possession of the goods should be given to the pledgee." 
 When a purchaser buys property subject to a mortgage debt, 
 he should ascertain by inquiry in writing the existing state of 
 the mortgagee's debt, and it should be stated that the inquiry 
 is made on behalf of an intending purchaser. A purchaser 
 is bound to indemnify the vendor against the mortgage debt, 
 and a covenant to so indemnify him is not necessary (^), but is 
 usual. 
 
 Q) Waring v. Ward, 7 Yes. 337. 
 
( 112 ) 
 
 CHAPTEE XI. 
 
 Leases. 
 
 Definition. A lease Q) is a conveyance by way of demise of lands or 
 tenements, for life or lives, for years, from year to year, or at 
 ■will. A lease must always be for a less term tlian the party 
 conveying bas himself in the premises ; for, if it be for the 
 whole interest, it is an assignment and not a lease. A tenant 
 from year to year, however, since he has an estate for an inde- 
 finite period may underlet from year to year, or for a term, and 
 it will not operate as an assignment (^). A lease is usually 
 made in consideration of rent, or some other annual recompense 
 rendered to the party conveying the premises — who is called 
 the lessor or landlord — by the party to whom they are conveyed 
 or let, who is called the lessee or tenant. 
 
 It must be borne in mind that " almost every sort of tene- 
 ments and hereditaments, incorporeal as well as corporeal, 
 advowsons, annuities, corrodies, leases, estovers, ferries, fisheries, 
 franchif^et , rights of common, rights of herbage, rights of way, 
 tithes, goods, furniture, sheep, and other live animals, and 
 almost all else, even of&ces of trust, save those connected with 
 the public revenue and justice, may be let on lease for a term 
 of years, and that leases of live stock are among the most ancient 
 known to the law." The usual leases of course are those of 
 land and houses (^). 
 
 A lease must entitle the tenant to exclusive possession, for 
 some definite period, of the matter demised. If a mere limited 
 right to use premises is conferred and the property remains 
 under the control of the owner, a licence and not a lease is 
 created. 
 
 O Woodfall's Landlord and Ten- person to another for an interest less 
 
 ant, lith ed. p. 129 ; Eedman & in point of duration than the lessor 
 
 Lyon's Landlord and Tenant, p. 2, cf has therein. A lease may be for 
 
 seq., where the authorities are col- lives, or for a term of years or from 
 
 lected. A lease is deiiued by Mr. Pri- year to year, or at will. ' 
 
 deaux to be an assurance or contract (^) Redman & Lyon, p. 360. 
 
 whereby land or any other thing (') Eedman & Lyon', p. 68.' 
 Ciipable of being demised is let by one 
 
Chap. XL] LEASES. 113 
 
 Every lease must contain (1) proper parties ; (2) words of Requisites 
 present demise ; (3) a description of the premises to be demised ; " ''°*^°" 
 (4) the commencement and duration of the term ; and (6) the 
 rent. A date is not necessary, and if there be no date, or an 
 impossible one, as the 30th of February, the instrument operates 
 from delivery. The usual words employed to create a lease are 
 " demise " or " lease," but these words are not essential, and any 
 words which sufficiently express the intention of the parties that 
 one shall divest himself of possession and the other come into it 
 for a determinate time are sufficient to create a lease. 
 
 By the joint operation of the Statute of Frauds and the Act 
 to Amend the Law of Eeal Property passed in 1845 (8 & 9 
 Vict. c. 106, s. 3), all leases for more than three years, or at a 
 less rent than two-thirds at least of the full improved value, 
 must be made by deed. 
 
 An executory agreement for a lease does not satisfy the 
 Statute of Frauds, unless it can be cnllected from it on what 
 day the term is to begin, and there is no inference that the 
 term is to commence from the date of the agreement in the 
 absence of language pointing to that conclusion Q-). 
 
 A curious result which follows from the provisions of the 
 Statute of Frauds which relate to leases, and agreements for 
 leases, may here be pointed out. A lease not exceeding tliree 
 years from the making thereof where two-thirds improved rent 
 is reserved, may be by parol, but every agreement for a lease 
 must be in writing; where there is no writing, a tenant 
 entering and paying rent is regarded as a tenant from year 
 to year on the terms of the parol lease (^). 
 
 (') Marshall v. Berridge, 19 Oh. D. a lease for any term, however long, ia 
 
 233, overruling Jaques v. Millar, 6 valid, and will be specifically en- 
 
 Ch. D. 153. forced : see Ball v. Warren, 9 Ves. 
 
 O The following summary of the 605. 
 
 somewhat complicated law relating 5. An instrument in writing which 
 
 to leases and agreement for leases, purports to demise, but which, not 
 
 taiten from Gierke & Humphrys on being under seal, is void as a lease. 
 
 Sales of Land, will be found useful, will be construed as an agreement, 
 
 1. A lease for a term not exceeding and specific ptrformance will be 
 three years, at a rent of two-thirds of decreed : Parker v. Taswell, 2 De 
 the full improved value, may be made G. & J. 559 : and an action lies for 
 by parol : 29 Car. 2, c. 3, s. 2. not accepting the lease : Brnid y. 
 
 2. But an agreement for such a BosHng, 1 B. & S. 371. See also 
 lease is void if not in writing : 29 Tidey v. Mollett, 16 C. B. (N.S.) 298 ; 
 Car. 2, c. 3, s. 4. Hayne v. Cummings, Ibid. 421 ; Rol- 
 
 3. When the term exceeds three lason v. Leon, 7 H. & N. 73 ; over- 
 years, or the rent is less than two- ruling Stratton v. Pettitt, 16 C. B. 
 thirds of the full improved value, the 420. 
 
 lease must be under seal : 8 & 9 Vict. 6. An action may be brought after 
 
 c. 106, s. 3. the determination of the term for 
 
 4. An agreement in writing to grant breach of the stipulations contained 
 VOL. I. I 
 
114 REAL PROPERTY. [Book L 
 
 The Settled Land Act, 1890 (the provisions of which shall he 
 
 further considered hereafter (jpost, p. 149) ), provides that a lease 
 
 for a term not exceeding twenty-one years at the hest rent that 
 
 can reasonably be obtained without fine, and whereby the lessee 
 
 is not exempted from punishment for waste, may be made by a 
 
 tenant for life " by any writing under hand only containing an 
 
 agreement instead of a covenant by the lessee for payment of 
 
 rent in cases where the term does not extend beyond three 
 
 years from the date of the writing " (}). 
 
 Eestriction The lights of an intended lessee, or purchaser of a lease 
 
 call for ° °^ underlease, in regard to calling for the title to the rever- 
 
 titie to the sion, are now limited by the joint operation of the Vendor and 
 
 reversion. Puj-cJiaser Act, 1874, sect. 2, rule 1, and the Conveyancing Act, 
 
 1881, sect. 3, which provide as follows (^) : — 
 
 " Under a contract to grant or assign a term of years, whether 
 derived or to be derived out of a freehold or leasehold estate, the 
 intended lessee or assign shall not be entitled to call for the title 
 to the freehold." 
 
 " Under a contract to sell and assign a term of years derived 
 out of a leasehold interest in land, the intended assign shall 
 not have the right to call for the title to the leasehold rever- 
 sion." 
 
 A., the owner in fee, grants a lease to B. for 999 years. B. 
 grants an under-lease to 0. for ninety-nine years. If C. con- 
 tracts with D. to grant him a lease for twenty-one years, the 
 latter section applies. D. is precluded from calling for the title 
 to the leasehold reversion, i.e. B.'s term of 999 years, as he is, 
 by the Vendor and Purchaser Act, 1874, from calling for the 
 title to the freehold (^). 
 
 An important question often arises w^hen an agreement for a 
 lease has been entered inio which contains a provision that the 
 lease shall contain " all usual covenants." This subject was 
 
 in a void deinise : Martin v. Smith, 248. 
 
 L. K. 9 Ex. 50. (') 53 & 54 Vict. c. 69, s. 7, which 
 
 7. Entry and payment of rent also provides that such a lease may 
 imder a void lease or agreement con- be made without notice under sect. 45 
 stitutes a tenancy from year to year : of the Settled Land Act, 1882, and 
 Doe d. Thompson v. Amey, 12 Ad. & E. notwithstanding that there are no 
 476 ; Wood v. Beard, 2 Ex. D. 30. trustees of the settlement for the 
 
 8. An agreement for a lease, which purposes of the Settled Land Acts, 
 is capable of being specifically per- 1882 to 1890. 
 
 formed, confers since the Judicature C) 87 & 38 Vict. c. 78, o. 2 ; 44 & 
 
 Act on both parties the same rights 45 Vict. c. 41, s. 3 (1). 
 
 as a lease under seal : Walsh v. Lorn- (') See as to the effect of these 
 
 dcde, 21 Ch. D. 9; and see Coats- provisions, Gierke and Brett's Convey- 
 
 worth V. Johnson, 55 L. J. (Q.B.D.) anoing Acts, 3rd ed. p. 30, et seq. See 
 
 220; Lowther v. Heaver, 41 Ch. D. Jozies v. Watts, 43 CI). D. 570. 
 
Chap. XL] LEASES. 115 
 
 carefully considered in a case which came before the Court in Usual 
 1878. In that case an agreement had been entered into to accept ''°^^"™'^- 
 a lease of a dwelling-house in London " to contain all usual 
 covenants and provisoes." The lease contained a covenant not 
 to assign without the lessor's consent, and the Court decided 
 that such a covenant was not a " iisual covenant," and accord- 
 ingly the agreement could not be enforced, (i) 
 
 Sir George Jessel in delivering judgment, after enunciating 
 and illustrating the proposition that "usual covenants may 
 vary in different generations, and that the law declares what 
 are usual covenants according to the then knowledge of man- 
 kind, but that it could not be said that usual covenants never 
 change," cited thefollov?ing passage from Davidson's Precedents 
 in Conveyancing (^) as containing a statement of the present 
 law on the subject. " The result of the authorities appears to be 
 that in a case where the agreement is silent as to the particular 
 covenants to be inserted in the lease, and provides merely for 
 the lease containing usual covenants, or which is the same 
 thing, in an open agreement without any reference to the 
 covenants, and there are no special circumstances (^) justifying 
 the introduction of other covenants, the following are the only 
 ones which either party can insist upon, namely, — 
 " Covenants by the lessee, 
 " 1 . To pay rent (*). 
 
 " 2. To pay taxes, except such as are expressly paj-able by the 
 landlord ; 
 
 " 3. To keep and deliver up the premises in repair (^) ; and, 
 '' 4. To allow the lessor to enter and view the state of repair. 
 " And the usual qualified covenant by the lessor for quiet 
 enjoyment by the lessee. " 
 
 The usual covenants in an agricultural lease (^) are (1) to pay 
 rent ; (2) to pay taxes (except landlord's taxes) ; (3) to keep and 
 
 (') Hampshire v. WieJcens, 7 Ch. D. Johnson v. Wild, 44 Ch. D. 146. 
 555. 1 ') See as to the meaning of good 
 
 C) Davidson's Conveyancing, 3rd tenantable repair, Proudfoot v. Eart 
 
 ed. vol. V. pp. 48. 49. 25 Q. B. D. 42. 
 
 (=) By " special circumstances " (") In an agreement for a lease to 
 
 Sir George Jessel pointed out are contain " all covenants usual and 
 
 meant circumstances peculiar to a ordinary in farming leases," the local 
 
 particular trade, e.g. in leases of custom in respect of such leases may 
 
 public-houses, where the brewers be looked to : Bell v. Barchard, 21 
 
 have their own forms of leases, the L. J. (Ch.) 411 ; 16 Beav. 8, or pre- 
 
 " usual covenants " would mean the vious leases between the same parties : 
 
 covenants always inserted in the Eedman & I.yon on Landlord and 
 
 leases of certain brewers. Tenant, p. 120. 
 C) See as to liability for rent, 
 
 I 2 
 
116 
 
 SEAL PROPERTY. 
 
 [Book I. 
 
 Landlord's 
 remedies. 
 
 Distress. 
 
 Exemptions 
 from dis- 
 tress. 
 
 deliver up the premises in repair ; (4) to cultivate the land in 
 accordance with good husbandry ; (5 j to permit the landlord to 
 enter and view the state of repairs ; and, (6) for quiet enjoyment 
 until default. 
 
 The landlord's remedies for enforcing payment of rent (^ ) are : 
 (1) An action on the covenant express or implied, or for use 
 and occupation. A lease contains not only a reservation of 
 rent, " the yielding and paying clause," as it is called, but also 
 a covenant by the lessee to pay the rent. The express covenant 
 is inserted in order to render the lessee liable during the whole 
 term, whether he assigns or not, as his liability under the 
 yielding and paying clause would only continue until assign- 
 ment. (2) By re-entry on his condition of re-entry if, as 
 usually is the case, such condition exists ; and (3) By distress, 
 which is well characterized by Mr. Smith as " the great and 
 peculiar remedy of landlords immemorially known to the 
 common law." 
 
 Distress is defined by the same authority as a right to take 
 personal chattels found on the demised premises, for the purpose 
 of obtaining payment of the rent in arrear. When goods are 
 fraudulently removed to avoid distress for rent, a statute of 
 Geo. II. gives landlords power within thirty days to seize them 
 wherever found, unless they are sold bond fide and for value to 
 some person not privy to the fraud. The landlord is also 
 empowered by the same statute to recover double the value of 
 the goods so fraudulently carried off the premises to avoid 
 distress (^). 
 
 As a general rule, all chattels personal (f) there found, 
 whether the goods of strangers or of the tenant, are liable 
 to be distrained, unless paiticularly exempted. 
 
 The following things are, however, absolutely privileged 
 from distress : — 
 
 1. Animals /eras waiuras. 
 
 2. Whatever is in the personal use of a man, as an axe, with 
 which he is cutting wood; or a horse which he is riding. 
 
 (') See as to landlord's right to 
 claim for arrears of rent under 
 County Courts Act, 1888. s. 160; 
 Sughes v. Smallwood, 25 Q. B. D. 
 306. 
 
 O 11 Geo. 2, c. 19. See for the 
 other provisions of this statute and 
 cases thereon, Woodfall's Landlord 
 and Tenant, 14th ed. p. 483, et seq. 
 The statute only applies to the goods 
 of a tenant and not to those of a 
 
 stranger : Tomlimon, v. Consolidated 
 Credit and Mortgage Corporation, 
 
 24 Q. B. D. 135. the action is a 
 penal one, and the plaintiff cannot 
 administer interrogatories to the de- 
 fendant : Hohbs & Co. v. Hudson, 
 
 25 Q. B. D. 232. 
 
 Cj The antiquities of the subject 
 of distress are considered with much 
 learning in Sir Henry Maine's Early 
 History of Institutions. 
 
Chap. XL] LEASES. 117 
 
 3. Things delivered to a person to be carried, wrought, or 
 managed in the way of his trade, as cloth at a tailor's house Q-). 
 
 4. If the Agricultural Holdings Act, 1883, applies, agri- 
 cultural or other machinery, bona fide hired by the tenant, and 
 live stock, the property of another, and only on the farm for 
 breeding purposes (^). 
 
 5. Things already in the custody of the law, such as property 
 taken damage feasant, or in execution. 
 
 6. Loose money. 
 
 7. Everything which cannot be returned in as good a 
 condition as when distrained, as milk, fruit, and the like. 
 
 8. Fixtures. 
 
 9. The goods of a lodger under the Lodgers' Goods Protection 
 Act, 1871 (j)ost, p. 118). 
 
 10. Any goods or chattels of the tenant or his family which 
 would be protected from a County Court execution ; see the 
 Law of Distress Amendment Act, 1888 (51 & 52 Vict. c. 21, 
 (jpost, p. 122) ). 
 
 The following are also privileged sub modo, or conditionally, 
 i.e. if there be other sufficient distress on the premises : beasts 
 of the plough and instruments of husbandry, and beasts which 
 improve the land, such as sheep, and the instruments of a 
 man's trade or profession, such as the axe of a carpenter, the 
 books of a scholar, and the like, even though not in actual 
 use. The Agricultural Holdings Act also exempts from distress 
 live stock belonging to another person, and taken in by the 
 tenant to be fed at a fair price agreed on, if other sufficient 
 distress is to be found ; and if there is no other sufficient 
 distress, they are distrainable only for the amount of the price 
 agreed on which remains unpaid, and the owner may redeem 
 on paying this. (^) 
 
 The amount of rent which can be recovered by distress is, in 
 ordinary cases, six years' arrears, but in cases under the Agri- 
 cultural Holdings Act, 1883 (^), distress is limited to one year's 
 arrears. Again, if the tenant be bankrupt, the distress, if levied 
 after the commencement of the bankruptcy, is available only 
 for one year's rent, accrued due prior to the date of adjudication 
 under the Bankruptcy Act, 1883, and six months' rent under 
 the Bankruptcy Act, 1890 (^). The landlord may, however. 
 
 (') See Clarke v. Millwall Dock (') 46 & 47 Vict. c. 61, s. 45. 
 
 Co.,17Q.B.D. 494, and for a general {*) Ex parte Bull. Be £ew, IS 
 
 review of the law, notes to Simpson Q. B. D. 642 ; 8 Anne, c. 14, s. 1. 
 
 V. Hartopp, 1 Smith's Leading Oases, (') 46 & 47 Vict. c. 52, a. 42 ; 
 
 C) 46 & 47 Vict. c. 61, s. 45. 53& 54 Vict. c. 71, s, 28. 
 
118 
 
 BHAL PROPERTY. 
 
 [Book I. 
 
 Jlodera 
 legislation 
 as to land- 
 lord and 
 tenant. 
 
 Lodgers' 
 Goods Pro- 
 tection Act. 
 
 Ground 
 Game Act, 
 1880. 
 
 prove for the deficiency in the bankruptcy (jpost, p. 930). As 
 against an execution creditor the landlord can only claim rent 
 actually due at the time of taking the goods, and his claim is 
 limited to one year's rent (i). 
 
 The relative positions of landlords and their tenants have 
 been very materially altered by the Legislature in modern times. 
 
 The general principle of the law that all personal chattels 
 found on the premises, with the exceptions which we have 
 named, no matter to whom they belong, could be made the 
 subject of distress, was found to bear most unfairly upon 
 lodgers whose goods might be distrained upon by the superior 
 landlord for arrears of rent due to him from his immediate 
 tenant. The law on this subject was altered in 1871. 
 
 Now by the Lodgers' Goods Protection Act any lodger whose 
 goods are seized for rent due to the superior landlord by the 
 immediate tenant may serve the landlord or the bailiff or other 
 person employed by him to levy the distress with a declaration 
 in writing setting forth that the immediate tenant has no right 
 of property or beneficial interest in such goods, and that they are 
 the property, or in the lawful possession of the lodger, and there- 
 upon, and upon payment of the rent (if any) due by the lodger 
 to the imii.ediate tenant, the landlord is prohibited from pro- 
 ceeding to levy distress upon the goods of such lodger (^). 
 
 By the Ground Game Act, 1880, it is enacted that every 
 occupier of land shall have the right to kill and take ground 
 game (defined by sect. 8 to be hares and rabbits) thereon con- 
 currently with any other person who may be entitled to kill 
 and take ground game on the same land. This right is in- 
 separable from the occupation of the land, and the occupier 
 cannot contract himself out of the Act. The right, however, 
 can only be exercised subject to certain limitations, the prin- 
 cipal of which are that the right must be exercised by the 
 occupier himself or by one other person authorized in writing, 
 such person being either a resident member of his household 
 or a person in his ordinary service on the land, or a person 
 
 (') Mx parte Pollen. Be Benn- 
 Dams, 55 L. J. (Q.B.) 217 ; Cox v. 
 Leigh, 43 L. J. (Q.B.) 123; L. E. 
 9 B 333 
 
 O 3t & 35 Vict. c. 79. It has 
 been decided that the existence of the 
 relationship of landlord and tenant 
 Is a question of fact in each case, 
 and that if the landlord, reserving a 
 room in a house, lets the rest of it to 
 a person, but retains such control and 
 
 dominion over it as is usually re- 
 tained by masters of houses let In 
 lodgings, the relation of landlord and 
 " lodger " may still exist between the 
 parties within the meaning of the 
 Act: Phillips V. Benson, 3 0. P. D. 
 26; Ness v. Stephenson, 9 Q. B. D. 
 245 ; also Thwaites v. Wilding, 12 
 Q. B. D. 4 ; Sharp v. Fowle, ib. 385 ; 
 Seawood v. Bone, 13 Q. B. D. 179. 
 
Chap. XI.] LEASES. 119 
 
 \a fide employed by him for reward in the taking and 
 destruction of ground game (^). 
 
 The Agricultural Holdings Act, 1883, which supersedes the A^ricul- 
 Agricultural Holdings Acts of 1875 and 1876, materially alters tural 
 the law of landlord and tenant with regard to four classes of ^^^ ^li^Z 
 subjects, viz. : (1) the rights of the tenant with regard to 
 compensation for improvements ; (2) the tenant's rights as to 
 fixtures and buildings ; (3) the law of distress ; and (4) the 
 length of the notice to quit in cases of tenancies from year 
 to year. The Act applies to all holdings however small, of the 
 following character, but to no other holdings, viz. : holdings 
 which are either wholly agricultural or wholly pastoral, or in 
 part agricultural, and as to the residue pastoral, or in whole or 
 in part cultivated as market gardens. The Act enables a 
 tenant when he leaves such holding to claim compensation for 
 improvements made by him of the nature specified by the Act, 
 provided they fall under the three classes enumerated in the 
 note (^). 
 
 With regard to the tenant's rights to fixtures and buildings 
 erected on or after 1st of January, 1884, the Act provides (^) 
 that all engines, machinery, fencing, fixtures, and buildings 
 voluntarily erected by the tenant become, unless he be entitled 
 to compensation for them, by special agreement, custom, &c., the 
 
 (') 43 & 44 Vict. c. 47; and see agricultural or domestic purposes. 
 
 Allhusen v. Brooking, 26 Ch. D. 559, Making of fences. Planting of hops, 
 
 where it was held that the saving Planting of orchards or fruit bushes, 
 
 clause with regard to leases and con- Eeclaiming of waste land. Warping 
 
 tracts in force at the passing of the of land. Embankment and sluices 
 
 Act applied to an agreement for a against floods, 
 
 lease. By Part JI. of the Schedule notice 
 
 {') 46 & 47 Vict. c. 61 ; and see as to the landlord is required ia the case 
 
 to notice of claim for compensation, of drainage not less than two or more 
 
 Be Paul. Ex parte Earl of Portar- than three mimths before executing 
 
 lington, 24 Q. B. D. 247. The im- the work, so as to give the landlord 
 
 provements specified in Part I. of the power of draining and charging 
 
 the schedule to the Act to which the the tenant with not more tlian five 
 
 consent of the landlord, or his agent per cent, interest, 
 
 duly authorised in that behalf, is The improvements specified in 
 
 required, are fourteen in number, Part III. of the Schedule to which 
 
 viz. : — the consent of the landlord is not 
 
 Erection or enlargement of build- required, are as follows : — 
 ings. Formation of silos. Laying Boning of land with undissolved 
 down of permanent pasture. Making bones. Chalking of land. Clay- 
 and planting of osier beds. Making burning. Claying of land. Liming 
 of water meadows or works of irriga- of land. Marling of land. Applica- 
 tion. Making of gardens. Making tion to land of purchased artificial or 
 or improving of roads or bridges. other purchased manure. Consump- 
 Making or improving of watercourses, tion on the holding by cattle, sheep, 
 ponds, wells, or reservoirs, or of or pigs, of cake or other feeding-stuff 
 works for the application of water- not produced on the holding, 
 power or for supply of. water for' Q) Sect; 34. 
 
120 
 
 REAL PEOPERTT. 
 
 [Book I. 
 
 Agricul- 
 tural 
 Holdings 
 Act, 1883. 
 
 absolute property of the tenant and removable by him, subject 
 to the landlord electing to exercise an option of purchase. The 
 tenant must give the landlord one month's notice in writing of 
 his intention to remove, he must also before removal pay all 
 rent owing, do no avoidable damage in removing, and repair all 
 damage done after removal; 
 
 With regard to distress — a subject to which allusion has 
 already been made — the principal changes which have been 
 made in the law with regard to distress, are as follows : Only one 
 year's arrears of rent can be recovered ; Agricultural or other 
 machinery on hire, and live stock on hire for breeding purposes, 
 are exempted absolutely from distress ; Agisted cattle, when 
 a fair price is paid by the owner, are exempted sub modo or con- 
 ditionally, that is, they are exempted in case other sufficient 
 distrainable goods should be upon the premises, and even when 
 dietrainable, are distrainable only for the amount due to the 
 tenant from the owner for their keep (^). 
 
 The change made by the Act with regard to the length of 
 notice to quit is, that a year's notice is now necessary and 
 sufficient, unless excluded by mutual written agreement of the 
 landlord and tenant. The operation of the section, however, 
 is excluded in case of the bankruptcy, &c., of the tenant (f). 
 
 The Allotment Act, 1887 (^), which enables sanitary authori- 
 ties to acquire lands for the purpose of providing allotments 
 foT the labouring classes, and contains special enactments as 
 to the use and letting of such allotments, provides that 
 rent and possession may be recovered by the sanitary autho- 
 rities in the same manner as in any other case of landlord and 
 tenant. 
 
 The Allotments and Cottage Gardens Compensation for Crops 
 Act, 1887 (*), provides that upon the determination of the 
 tenancy of a holding (^), the tenant shall be entitled, notwith- 
 standing any agreement to the contrary, to obtain from the 
 
 (') Sect. 45. See as to percentage 
 for levying distress : PMUpps v. Reee, 
 24 Q. B. D. 17. 
 
 O 46 & 47 Vict. V. 61, d. 33. It 
 ■was held in Barlow v. Teal, 15 
 Q. B. Div. 501, that a tenancy 
 under a written agreement from 
 year to year until six months' notice 
 should be given ia the usual vray to 
 determine the tenancy, was not one 
 where a half year's notice was by law 
 necessary within the Agricultural 
 Holdings Act, 1883, and that a year's 
 
 notice was not necessary for the 
 determination of the tenancy. 
 
 (=) 50 & 51 Vict. c. 48. 
 
 C) 50 & 51 Viet. 0. 26. 
 
 Q) Defined by the Act to mean an 
 allotment or cottage garden. Allot- 
 ment is defined as any parcel of laud 
 of not more than two acres held by a 
 tenant under a landlord, and culti- 
 vated as a garden or as a farm, or 
 partly as a garden and partly as a 
 farm. Cottage garden id defined as 
 an allotment attached to a cottage. 
 
Ohap. XL] 
 
 LEASES. 
 
 121 
 
 landlord compensation in money for the following matters and 
 things, that is to say : — 
 
 (a.) For crops, including fruit growing upon the holding in 
 the ordinary course of cultivation, and for fruit trees 
 and fruit bushes growing thereon, which have been 
 planted by the tenant with the previous consent in 
 writing of the landlord, 
 (b.) For labour expended upon and for manure applied to 
 the holding since the taking of the last crop therefrom, 
 in anticipation of a future crop, 
 (c.) For drains and for any out-buildings, pigsties, fowl- 
 houses, or other structural improvements made by the 
 tenant upon his holding with the written consent of 
 his landlord. 
 In the ascertainment of the amount of compensation payable 
 to the tenant under this Act, any sum due to the landlord in 
 respect of rent or of any breach of the contract of tenancy or 
 wilful or negligent damage committed or permitted by the 
 tenant is to be taken into account in reduction of the amount 
 of compensation. Prior to the Act, which shall next be noticed, 
 when a mortgagee touk possession of land which was held 
 under a contract of tenancy binding only upon the mortgagor, 
 the tenunt lost his compensation because the claim was not 
 enforceable against the mcirtgagee, although enforceable against 
 the mortgagor. This evil is remedied by the Tenant's Compen- 
 sation Act, 1890 (^), which provides that where a person under the 
 Agricultural Holdings Act, 1883, and the Allotments and Cottage 
 Garden Act, 1887, occupies land under a contract of tenancy with mortgagee 
 the mortgagor (whether made before or after the passing of the g";,^'"'*^^^' 
 Act) which is not binding on the mortgagee, then — 
 
 (1) The occupier shall, as against the mortgagee who takes 
 possession, be entitled to any compensation which is, 
 or would but for the mortgagee taking possession be 
 due to the occupier from the mortgagor as respects 
 crops, improvements, tUlages, or other matters con- 
 nected with the land. It is also provided that any 
 sum ascertained to be due to the occupier for compen- 
 sation or costs connected therewith, may be set off 
 
 Compensa- 
 tion to 
 tenants, 
 when 
 
 C) 53 & 54 Vict. c. 57. The 
 third section of this Act provides 
 that where compensation for im- 
 provements oompiised in Part I. or 
 Part II. of the first schedule to the 
 Agricultural Holdings (England) 
 
 Act, ISS'S, is charged by an order 
 under sect. 31 of that Act, tlie charge 
 shall be a land charge within the 
 meaning of the Land Charges Eegis- 
 tration and Searches Act, 1888, and 
 shall be registered accordingly. 
 
122 £EAL PROPERTY. [Book I. 
 
 against rent or other sum due from him in respect of 
 the land, and charged and recovered as compensation 
 in the manner provided, as if the mortgagee were the 
 landlord. 
 (2) Before the mortgagee deprives the occupier of the 
 possession of the land otherwise than in accordance 
 with the said contract, he shall give the occupier six 
 months' notice in writing of his intenti<m so to deprive 
 him. If he so deprives him compensation shall he due 
 to the occupier for his crops, and for any expenditure 
 upon the land which he has made in expectation of 
 holding the land for the full term of his contract of 
 tenancy, in so far as any improvement resulting there- 
 from is not exhausted at the time of his being so 
 deprived. This provision is, however, only to apply 
 where the contract is for a tenancy from year to year, 
 or for a term of years not exceeding twenty-one, at a 
 rack-rent. 
 Law of Very considerable changes have been introduced into the 
 
 4mend- ^^^ °^ distress by an Act passed in the session of 1888, which 
 ment Act, is to be cited as the Law of Distress Amendment Act, 1888, and 
 ^^^^- which, except so far as otherwise provided, came iuto operation 
 
 "from and immediately after October 31, 1888" (i). 
 
 This Act first provides that after the passing of the Act, 
 viz. the 7th of August, 1888, the following goods and chattels 
 shall be exempt from distress for rent : namely, any goods or 
 chattels of the tenant or his family which would be protected 
 from seizure in execution under sect. 96 of the County Courts 
 Act, 1846, or any enactment amending or substituted for the same. 
 The goods excepted by this section of the County Courts 
 Act, 1846, which is re-enacted by sect. 147 of the County Courts 
 Act, 1888 (51 & 52 Vict. c. 43), are the wearing apparel and 
 bedding of the person whose goods are taken in execution, or 
 of his family, and the tools and implements of his trade to the 
 value of £5. 
 
 This, however, is followed by a proviso that the enactment 
 shall not extend to any case where the lease, term, or interest 
 of the tenant has expired, and where possession of the premises 
 in respect of which the rent is claimed has been demanded and 
 where the distress is made not earlier than seven days after 
 such demand. 
 
 (') 51 & 52 Vict. c. 21, repealing sectB. 49, 50, 51 and 52 of the Agricultural 
 Holdinga Act, 1888. 
 
Chap. XI.] LEASES. 123 
 
 The provision of the statute of "William the Third and Law of 
 Mary (y) requiring appraisement hefore sale of goods distrained ^istress 
 is repealed, except in cases where the tenant or owner of the ment Act 
 goods and chattels, by writing, requires the appraisement to be l^^^- 
 made, and the landlord or other person levying a distress niay, 
 subject to this exception, sell the goods and chattels distrained 
 without causing them to be previously appraised ; and for the 
 purposes of sale the goods and chattels distrained shall, at the 
 request in writing of the tenant or owner of such goods and 
 chattels, be removed to a public auction-room or to some 
 other fit and proper place specified in the request, and there be 
 sold. The costs of removal, &c. are to be borne and paid by 
 the person requiring them. 
 
 The Act further provides that the period of five days pro- 
 vided in the said Act of William and Mary, within which the 
 tenant or owner of goods may replevy the same, may be extended 
 to fifteen days, on the request in writing of the tenant or owner, 
 and his giving security for the additional cost thereby incurred ; 
 and that the distress shall be levied by a bailiff certified under 
 the hand of a county court judge. 
 
 If a lessee grants an underlease, e.g. if having a lease for 
 ninety-nine years, he grants a lease to B. for ninety-nine years ■ 
 less three days, the underlessee holds of him and not of the 
 original lessor, between whom and the underlessee " no privity " 
 is said to exist. Accordingly, the original lessor cannot maintain 
 any action against an underlessee for any breach of the covenants 
 contained in the original lease C^). 
 
 Even if the lessee parts with his whole interest in the lease Assign- 
 he nevertheless remains liable on the covenants in it so long as °"^°' "^ 
 the lease subsists. Accordingly, when he assigns the term, 
 he protects himself by requiring the assignee to covenant that, 
 henceforth " he, the assignee, will pay the rent and perform the 
 covenants in the lease and indemnify the lessee against liability 
 in respect of any breach," and whenever a continuing liability 
 remains, the lessee is entitled as of right to such a covenant. 
 The lessee is also entitled against each successive assignee to an 
 implied indemnity against breaches of covenant in the lease 
 committed during his tenancy, and this obligation is not affected 
 by any covenants which the assignee may have made with his 
 immediate assignor (f). 
 
 (') 2 W. & M. 0. 5, 8. 1. 8 Q. B. D. 329. 
 
 Y) Holford V. Hatch, 1 Doug. 183, {') Movie v. Garrett, L. E. 5 Ex. 
 
 and see further Kedman and Lyon, 132, afBrmed L. E. 7 Ex. 101. 
 p. 360, et seq., and Hornby v. Caldwell, 
 
124 
 
 BEAL PROPER TT. 
 
 [Book I. 
 
 Determina- 
 tion of 
 
 Yielding 
 up posses- 
 sion. 
 
 Merger. 
 
 In consequence of these principles of tlie law with regard to 
 leases, it is usual in mortgaging leasehold property, in cases where 
 the rent is heavy or the covenants are onerous, to make the 
 mortgage by subdemise for the whole term less (usually) three 
 days, thus leaving only a nominal reversion in the mortgagor 
 and enabling the mortgagee to avoid aU direct liability in 
 respect of the covenants in the lease (^) (see ante, pp. 99, 101). 
 
 Leases are determined in various ways, of which the principal 
 are the following (^), viz. : — 
 
 1 . Effluxion of time. 
 
 2. Merger. 
 
 3. Surrender, either express or by operation of law, such as 
 grant of new lease, creation of new relationship, abandon- 
 ment. 
 
 4. Forfeiture and re-entry, or action for recovery of land 
 pursuant to a proviso or condition contained in the lease. 
 
 6. Notice to quit or determine. 
 
 Where a tenancy determines there is an implied undertaking 
 by the tenant to yield up possession. This rule of law is well 
 illustrated by a case in which the tenant was in under a parol 
 agreement without any stipulation that he would deliver up pos- 
 session of the premises at the end of the term, and a sub-tenant 
 to whom part of the premises had been underlet refused to go 
 out at the end of the tenancy, and held over against the original 
 tenant's will. The Court decided that the landlord could recover 
 against his tenant not only the value of the whole premises for 
 the time he was kept out of possession but also the costs of 
 ejecting the sub-tenant. They proceeded on the principle laid 
 down by Lord Kenyon seventy years before, that when a lease is 
 expired the tenant's responsibility is not at an end ; for, said 
 Lord Kenyon, if the premises are in possession of an under- 
 tenant, the landlord may refuse to accept the possession, and 
 hold the original lessee liable ; for the lessor is entitled to 
 receive the absolute possession at the end of the term (^). 
 
 The rules concerning the merger and forfeiture of chattel 
 interests are in general the same with those relating to estates 
 for life, but with some variations. With respect to merger the 
 
 (') The liability to the covenants 
 does not attach to an equitable 
 assignee, e.g., an equitable mort- 
 gagee : Moores v. Choat, 8 Sim. .'508 ; 
 Moore v. Greg, 2 De G. & S. 304 ; 
 2 Ph. 717 ; Cox v. Bishop, 8 De G. M. 
 & G. 815. 
 
 C) See further on this subject, 
 Woodfall's Landlord and Tenant, 
 14th ed. p. 310, et seq. See as to dis- 
 claimer of lease in bankruptcy, poet, 
 p. 926. 
 
 (') Henderson v. Squire, L. R. 
 4 Q. B. 173. 
 
Chap. XL] LEASES. 125 
 
 following points may be observed. A term of years, of what- 
 ever duration, is always considered as of less magnitude (because 
 anciently of less importance) than an estate of freehold ; and 
 therefore if the same person have such a term and a freehold 
 estate immediately succeeding it, and both in the same right, 
 the term is merged (}). 
 
 A very great change has been introduced into the law by For- 
 the Conveyancing Act of 1881 with regard to the forfeiture of f^'*'"*^-' 
 leases. Sect. 14 of that Act, which applies to leases C^) made ^"'^J^V- 
 
 ' ^'^ ^ '' ancing Act, 
 
 either before or after the commencement of the Act (1st Jan. i88i,s. 14. 
 1882), and is to take effect, notwithstanding any stipulation 
 to the contrary, provides that — 
 
 (1) A right of re-entry or forfeiture under any proviso or 
 stipulation in a lease, for a breach of any covenant or con- 
 dition in the lease, shall not be enforceable, by action or other- 
 wise, unless and until the lessor serves on the lessee a notice 
 specifying the particular breach complained of and, if the 
 breach is capable of remedy, requiiing the lessee to remedy 
 the breach, and, in any case, requiring the lessee to make com- 
 pensation in money for the breach, and the lessee fails, within 
 a reasonable time thereafter, to remedy the breach, if it is 
 capable of remedy, and to make reasonable compensation in 
 money, to the satisfaction of the lessor, for the breach. 
 
 (2) Where a lessor is proceeding, by action or otherwise, to 
 enforce such a right of re-entry or forfeiture, the lessee may, in 
 the lessor's action, if any, or in any action brought by himself, 
 apply to the Court for relief; and the Court may grant or refuse 
 relief, as the Court, having regard to the proceedings and con- 
 duct of the parties under the foregoing provisions of this 
 section, and to all the other circumstances, thinks fit ; and in 
 case of relief may grant it on such terms, if any, as to costs, ex- 
 penses, damages, compensation, penalty, or otherwise, including 
 
 (') Burton's Compendium, pp. 339, executors, administrators, and as- 
 
 340, and 341. The interposition of signs of a lessee — also a grantee under 
 
 a second estate for years vested in such a grant as aforesaid, his heirs 
 
 another person is, however, sufficient and assigns." A lessor includes " an 
 
 to prevent the merger of the first : original or derivative under-lessor. 
 
 Burton, p. 361 ; Chambers v. King- and the heirs, executors, administra- 
 
 ham, 10 Ch. D. 743. tors, and assigns of a lessor, also a 
 
 (^) A lease is defined for the pur- grantor as aforesaid, and his heirs 
 
 poses of the section to include " an and assigns." It has been decided 
 
 original or derivative under-lease, that the section does not apply to an 
 
 also a grant at a fee farm rent, or agreement for a lease when there is 
 
 securing a rent by condition." A no actual lease in existence, nor any 
 
 leasee includes " an original or deri- title to specific performance : Swain 
 
 vative under-lessee, and the heirs, y.^Jyres, 21 Q. B. Div. 289. 
 
126 SEAL PROPERTY. [Book I. 
 
 the granting of an injunction to restrain any like breacli in 
 the future, as the Court, in the circumstances of each case, 
 thinks fit. 
 
 The provisions of the 14th section of the Conveyancing Act 
 do not however, extend to — 
 
 (i.) A covenant or condition against assigning, under-letting, 
 parting with the possession, or disposing of the land 
 leased ; or to a condition for forfeiture on the bank- 
 ruptcy of the lessee, or on the taking in execution of 
 the lessee's interest ; or 
 (ii.) In case of a mining lease, to a covenant or condition for 
 allowing the lessor to have access to or inspect books, 
 accounts, records, weighing machines or other things, 
 or to enter or inspect the mine or the workings 
 thereof Q-'). 
 They also do not affect the law relating to re-entry or forfeiture 
 or relief in case of non-payment of rent. 
 
 In one case Lord Justice Bowen said that the provisions of 
 the Conveyancing Act with regard to relief against forfeiture 
 appeared to him to be cast in an iron framework, and to be an 
 instance of formidable legislation with which to remedy an 
 existing ill, so to speak, by fire and sword. No thought had 
 been taken of the evil which might be done by the Act But 
 it was an Act of Parliament, and he was bound to give effect to 
 it. The policy of the Act in this respect and with regard to the 
 form of notice was stated by Vice-Chancellor Bacon as follows : 
 " It is the intention of the legislature that there should be 
 reasonable compensation in money, if that is the shape that the 
 compensation takes, or that the covenant should be performed 
 that has been broken. One plain condition imposed on the 
 lessor is, that before he enforces a forfeiture he shall give an 
 intelligible notice, the particulars whereof are stated in sect. 14, 
 and without that he has no right whatever to bring such 
 action " (2). 
 Estoppel. The doctrine of " estoppel " (jpost, p. 862) is applicable to leases 
 
 for years, so that if a person execute an indenture purporting to 
 
 C) The Settled Land Act, 1890 may be the marketable value as 
 
 (53 & 54 Vict. c. 69, s. 8), provides ascertained in any mnnner prescribed 
 
 •with regard to mining leases that the by the lease (including a reference 
 
 rent may be made to vary according to arbitration), or may be an average 
 
 to the price of the minerals or the of any such prices or values taken 
 
 substances gotten, or any of them. during a specified period. 
 Such price may be the saleable value (^) North London Freelwld Land 
 
 or the price or value appearing in and House Co. v. Jacques, 32 W. K. 
 
 any trade or market, or other price- 283. 
 list or return from time to time, or 
 
Chap. XL] LEASES. 127 
 
 demise for any term, lands in which lie has in fact no estate 
 whatever, or no estate by a good legal title, and the want of 
 estate do not appear upon the instrument, the lease will operate 
 upon any interest which he may afterwards acquire in the 
 same lands during the continuance of the term. In the tech- 
 nical language of the law the interest when it accrues " feeds 
 the estoppel." But if any valid interest, however short of that 
 pretended, actually pass from the lessor there can be no estoppel 
 against him. An indenture is required that the deed may be 
 the act of both parties, for it is necessary that estoppels of this 
 kind should be reciprocal. 
 
 It was decided in a recent case that the doctrine established 
 in a case decided in the year 1854 — that where two houses are 
 comprised in one lease, and subject to covenants common to 
 both, an underlessee of one house is liable to have his under- 
 lease determined by le-entry by the original lessor for breach 
 of any covenant relating to the other house — still prevails, and 
 is not affected by the provisions of the Conveyancing Act {}). 
 
 Let us now con>>-ider briefly some points in connection with Covenants. 
 the covenants usually inserted in leases. If a lessee covenant 
 generally to repair, he must restore any premises which are 
 destroyed by accidental fire, or by lightning or tempest. 
 
 It has been decided that in order to constitute a breach of 
 covenant for quiet enjoyment in a lease of land, it is sufficient 
 that the lessee's ordinary and lawful enjoyment of the demised 
 land be substantially interfered with by the acts of the lessor 
 or those lawfully claiming under him, although neither the 
 title to the land nor the possession of the land be otherwise 
 affected (2). 
 
 " It is in every case a question of fact whether the quiet enjoy- 
 ment of the land has or has not been interrupted ; and where 
 the ordinary and lawful enjoyment of the demised land is sub- 
 stantially interfered with by the acts of the lessor, or those 
 lawfully claiming under him, the covenant is broken, although 
 neither the title to the land nor the possession of the land may 
 be otherwise affected " (^). 
 
 In a case decided in the year 1888, A. granted a lease to B., 
 of two rooms with a covenant for quiet enjoyment. Then 
 A. let a room above the two rooms to C. for dancing and other 
 entertainments. B. brought an action against A. and C. 
 
 (•) Oreswell v. Davidson, 56 L. T. upon-Tweed, 13 Q. B. D. 547. 
 
 (N.S.) 811; following Darlington v. Q) Sanderson y. Mayor 0/ Berwich- 
 
 Hamilton, Kay, 550. upon-Tweed, 13 Q. B. D. 551 ; Bobm- 
 
 C) Sanderson y. Mayor of Berwick- son v. Kilvert, 41 Ch. D. 88. 
 
128 
 
 REAL PROPERTY. 
 
 [Book I. 
 
 Implied 
 warranty. 
 
 Statute of 
 Uses. 
 
 for an injunction to restrain such use of the upper room, 
 alleging that the dancing over his head and the behaviour 
 of visitors on the stairs was a breach of the covenant and a 
 nuisance. 
 
 The Court pointed out that the covenant — that the premises 
 should be quietly possessed and enjoyed — did not mean that the 
 possession must be undisturbed by noise, but that it must be 
 without interference, without interruption of possession, and 
 decided that the covenant had not been broken (^). 
 
 An interesting question with regard to the liability of a lessee 
 came before the Court of Appeal in 1881. The plaintiff in the 
 action had demised premises to the defendant for a term of years 
 by deed containing a covenant by the defendant for the pay- 
 ment of the rent reserved. The defendant assigned the term 
 and his assignee surrendered a portion of the premises to the 
 plaintiff. In an action on the covenant the plaintiff claimed to 
 recover the amount of the apportioned rent for the part of the 
 premises not surrendered. It was decided that the liability of 
 the defendant on the covenant was not extinguished by the 
 surrender of part of the demised premises, but that he still 
 remained liable to the amount claimed (2). 
 
 Where a house is let unfurnished there is no implied warranty 
 that it is reasonably fit for habitation (f). If, however, the 
 house be let furnished there is an implied condition that it is 
 reasonably fit for occupation and comfortable habitation when 
 the tenancy commences (*). The Housing of the Working 
 Classes Act, 1890 (*) provides (sect. 75) that in any contract 
 made after the lith of August, 1885, for letting a house or 
 part of a house for habitation by persons of the working classes 
 there shall be implied a condition that the house is at the com- 
 mencement of the holding in all respects reasonably fit for 
 human habitation. 
 
 The Statute of Uses applies to the creation though not to the 
 assignment of a lease, and the lessee at once by force of it 
 acquires the legal estate in the premises for the term granted. 
 In the ordinary case of a lease under the common law the 
 
 Q) Jenhins v. Jackson, 40 Ch. D. 
 71, where the head-note should be 
 corrected so as to show that B. 
 brought the action against A. and 0. 
 
 C) Baynton v. Morgan, 22 Q. B. D. 
 74. 
 
 (') HaH V. Windsor, 12 M. & W. 
 68 ; Manchester Bonded Warehouse 
 Co. V. Carr, 5 C. P. D. 507 ; 49 L. J. 
 
 (C.P.) 809; aiesler v. Fowell, 52 
 L. T. 722. 
 
 C) Wilson V. Finch-Hatton, 46 
 L. J. (Ex.) 489 ; 2 Ex. D. 336 ; Smith 
 V. Marrdble, 11 M. & W. 5. 
 
 53 & 54 Vict. c. 70, superseding 
 the provision in 48 & 49 Vict. 0. 72, 
 8. 12. 
 
Chap. XI.] LEASES. 129 
 
 interest of the lessee is not complete until lie enters into 
 possession; until then his interest is said to be an interesse 
 termini. 
 
 Difficulties formerly arose in cases where a landlord sold 
 property, which was subject to a lease, to diflerent purchasers,, 
 whether the purchasers on the one hand or the tenant on the 
 other could take advantage of the covenants and provisions. 
 This difficulty began to be seriously felt at the time of the 
 dissolution of the monasteries, where lands which had been 
 leased by the monks passed largely into the hands of the paten- 
 tees of the Crown, and was then dealt with by Act of Parliament. 
 Various statutes which are now of little more than historical Convey- 
 interest were subsequently passed dealing with the subject ; they ^'"''"^^gsi 
 are now practically superseded by the provisions of the Con- g^ {q h ' 
 veyancing Act. These provisions are as follows : Section 10 12. 
 provides that " rent reserved by a lease, and the benefit of every 
 covenantor provision therein contained, having reference to the 
 subject-matter thereof, and on the lessee's purt to be observed or 
 performed, and every condition of re-entry and other condition 
 therein contained, shall be annexed and incident to and shall go 
 with the reversionary estate in the land, or in any part thereof, 
 immediately expectant on the term granted by the lease, not- 
 withstanding severance of that reversionary estate, and shall be 
 capable of being recovered, received, enforced, and taken advan- 
 tage of by the person from time to time entitled, subject to the 
 term, to the income of the whole or any part, as the case may 
 require, of the land leased." 
 
 The next section enacts that " the obligation of a covenant 
 entered into by a lessor with reference to the subject-matter of 
 the lease shall, if and as far as the lessor has power to bind the 
 reversionary estate immediately expectant on the term granted 
 by the lease, be annexed and incident to and shall go with that 
 reversionary estate, or the several parts thereof, notwithstand- 
 ing severance of that reversionary estate, and may be taken 
 advantage of and enforced by the person in whom the term is 
 from time to time vested by conveyance, devolution in law, or 
 otherwise ; and, if and as far as the lessor has power to bind 
 the person from time to time entitled to that reversionary 
 estate, the obligation aforesaid may be taken advantage of and 
 enforced against any person so entitled." 
 
 The effect of these provisions may be illustrated as follows : — 
 If A. be entitled to a certain property and gives B. a lease and 
 then sells the property subject to the lease, one half to 0. and 
 the other half to D., C. and D. stand with regard to the beneiit 
 
 VOL. I. K 
 
130 REAL PEOPERTT. [Book I. 
 
 and the Imrden of the covenants in the lease in precisely the 
 Bame position as A. did before he sold ('). 
 
 The next section deals with conditions and rights of entry as 
 follows : " Notwithstanding the severance by conveyance, sur- 
 render, or otherwise, of the reversionary estate in any land 
 comprised in a lease, and notwithstanding the avoidance or 
 cesser in any other manner of the term granted by a lease as to 
 part only of the land comprised therein, every condition or 
 right of re-entry, and every other condition, contained in the 
 lease, shall be apportioned, and shall remain annexed to the 
 severed parts of the reversionary estate as severed, and shall be 
 in force with respect to the term whereon each severed part is 
 reversionary, or the term in any land which has not been 
 surrendered, or as to which the term has not been avoided or 
 has not otherwise ceased, in like manner as if the land com- 
 prised in each severed part, or the land as to which the term 
 remains subsisting, as the case may be, had alone originally 
 been comprised in the lease." 
 
 These three sections apply only to leases made after the com- 
 mencement of the Act. (1st Jan. 1882) (^). 
 Enlarge- A novel provision has been also iotroduced by the Convey- 
 
 ancing Act (^) with regard to the enlargement of terms of years. 
 Sect. 65 now provides that when there is a residue unexpired of 
 not less than 200 years of a term, which, as originally created, 
 was for not less than 300 years, without any trust or right of 
 redemption affecting the term in favour of the freeholder or 
 other reversioner, and without any rent, or merely a pepper- 
 corn or other rent having no money value incident to the rever- 
 sion, the term may be enlarged by means of a declaratory deed 
 into a fee simple by 
 
 (1) Any person beneficially entitled in right of the term to 
 possession of any land comprised in the term ; or 
 
 (2) By a trustee of the term ; or 
 
 (') Davidson's Concise Precedents, non-performance of any covenant or 
 
 15tli ed. pp. 38^0 ; Gierke and contract entered into by a tenant or 
 
 Brett's Conveyanci-Qg Acts, 3rd ed. lessee in reference to any dwelling- 
 
 p. 72, et seq. Si e Municipal Per- house in respect of wliioh an order is 
 
 manmt Invedment Building Society made by a local authority under this 
 
 V. Smith, 22 Q. B. D. 70. part of this Act; and if any owner 
 
 (2) It may be pointed out in con- is obliged to take possession of any 
 
 nection with the subject of remedies dwelling-house in order to comply 
 
 tor breach of covenant that sect. 48 of with any such order, the taking pos- 
 
 the Housing of the Working Classes session shall not affect his right to 
 
 Act, 1890 (53 & 54 Vict. c. 70), pro- avail himself of any such breach, 
 
 vides tliat nothing in this part of this non-observance, or non-performance 
 
 Act bhall prejudice or interfere with that may have occurred prior to his 
 
 the right or remedies of any owner so taking possession, 
 for the breach, nou-observance, or (^) 44 & 45 Vict. c. 41, s. 65. 
 
 raent of 
 terms 
 
Chap. XL] LEASES. 131 
 
 (3) By the personal representative of the owner of the 
 term. 
 
 The Act, moreover, provides that the estate in fee simple 
 acquired by enlargement shall be subject to all the same trusts, 
 powers, executory limitalions over, rights, and equities, and to 
 all the same covenants and provisions relating to user and 
 enjoyment, and to all the same obligations of every kind as the 
 term would have been subject to if it had not been enlarged (^). 
 
 The following statutes also require to be noticed in con- 
 nection with the subject of leases : — 
 
 The statute 5 Eich. 2, stat. 1, c. 8, provides that "none from statutes 
 henceforth make any entry into lands and tenements, but in concerning 
 case where entry is given by the law, and in such case not with 
 strong hand, nor with multitude of people, but only in peace- 
 able and easy manner." It has been decided in this Act that a 
 licence by the tenant to the landlord to make a forcible entry 
 is void (^). 
 
 A statute of George II. (4 Geo. 2, c. 28, s. 1) enacts that 
 in case any tenant or tenants for any term of life, lives, or 
 years, or other person or persons who are or shall come into 
 possession of any lands, tenements, or hereditaments, by, from, 
 or under, or by collusion with such tenant or tenants, shall 
 wilfully hold over any lands, tenements, or hereditaments, after 
 the determination of such term or terms, and after demand made 
 and notice in writing given for delivering the possession thereof, 
 by his or their landlords or lessors, or the person or persons to 
 whom the remainder or reversion of such lands, tenements, or 
 hereditaments shall belong, his or their agent or agents there- 
 unto lawfully authorized ; such person or persons so holding 
 over shall during the time the person or persons entitled are 
 kept out of possession pay at the rate of double the yearly value 
 of the lands so detained, and there shall be no relief in equity 
 against such penalty (^). 
 
 (') The Conveyancing Act, 1882, (^) Edwich v. Hawkes, 18 Ch. D. 
 s. 11, provides that, " Section sixty- 19y ; and see Seddall v. Maitland, 
 five of the Conveyancing Act of 1881 17 Ch. D. 174. 
 shall apply to and include, and shall (^) See cases on this section : Ked- 
 be deemed to have always applied to man & Lyon, 3rd ed. 328, et seq. It 
 and included, every sucii term as in must be borne iu mind that this is a 
 that section mentioned, whether penal statute, and is therefore con- 
 having as the immediate reversicm strued strictly. An action accordingly 
 thereon the freehold or not ; but not does not lie under it against a weekly 
 
 (1) any term liable lo be determined or quarterly tenant : Lloyd v. Rosbee, 
 by re-entry for condition broken ; or 2 Camp. 453 ; Wilhiason v. Hall, 3 
 
 (2) any term created by sub-demise Bing. (N.C.) 508. The holding over 
 outof a superior term, itself incajiable must be contumacious: Wright v. 
 of being enlarged into a fee simple." Smith, 5 Esp. 203. 
 
 K 2 
 
132 BEAL PBOPERTT. tBooK I. 
 
 Another statute of the same reign to which allusion has 
 already heen made (arde, p. 116 (11 Geo. 2, c. 19, s. 18)) pro- 
 vides that in case any tenant shall give notice of intention to 
 quit the premises at a timn mentioned in such notice, and shall 
 not accordingly deliver up the possession thereof at the time in 
 such notice contained, then the tenant, or his executors or 
 administrators, shall from thenceforward pay to the landlord 
 double rent, to be recovered at the same time and in the same 
 manner as the single rent might have been recovered Q-"). 
 
 It must be borne in mind that if a tenant holds under an 
 agreement fur a lease, and it is a case in which specific perform- 
 ance would be ordered by the Court, the Court looks upon that 
 as done which ought to be done, and considers that the tenant 
 stands in precisely the same position as if the lease had been 
 executed (f). 
 
 Before taking leave of the subject of leases, it must be pointed 
 out that, the Conveyancing Act, 1881, s. 7, provides that in a 
 conveyance of leasehold property for valuable consideration 
 other than a mortgage, a covenant by a person who conveys, 
 and is expressed to convey, " as beneficial owner," shall be 
 implied as to the validity of the lease (^). The summary 
 process now provided for the recovery of land by landlord 
 against tenant is hereafter considered in the book dealing with 
 Practice (*). 
 
 (') The notice to quit need not be 41 Ch. D. 248. See further, Brett's 
 
 in writing: Timmins v. Eowlinson, Leading Cases in Modern Equity 
 
 3 Burr. Iti03; see also Johnstone v. p. 135. 
 
 Hudleston, 4 B. & 0. 922 ; Booth v. Q) Olerte and Brett's Convey- 
 
 Macfarlane, 1 B. & Ad. 904. ancing Acts, 3rd ed. pp. 53, 60 
 
 C^) Walsh V. Lonsdale, 21 Ch. Dir. (<) See post, pp. 704, 724, et sea 
 
 9; iowtto- V. iZeoTOr, 37 W. R. 465; f ' ff ' ' 1 
 
( 133 ) 
 
 CHAPTEE XII. 
 
 Settlements. 
 
 The homely word " settlement," as Mr. Vaizey tells us in his Definition 
 learned work upon the subject, has been put to various technical of settle- 
 usages in the language of the law Q). Attention has already "*"'' 
 been directed (ante, p. 27), to the peculiar statutory definition 
 of the term " settlement " (^) contained in that important Act of 
 Parliament, the Settled Land Act, 1882, to which allusion has 
 already been made, and to which we shall presently refer some- 
 what more in detail in bhe latter portion ot this chapter. For 
 the purpose with which we are at present concerned, viz., the 
 settlement of property, a "settlement" has been well defined 
 by the author to whom we have just referred, as "a legal act 
 designed to regulate during a specified period the enjoyment of 
 property, and to provide during the same period for the safe 
 custody and prudent management of the subject-matter of that 
 property." A settlement has been more briefly defined by Mr. 
 Davidson, as "a deed whereby the destination or devolution of 
 real or personal estate is settled" (^). The great majority of 
 settlements, as pointed out by the same authority, originate 
 " either in marriage and the consequent obligation to provide 
 for a wife and family or the desire to prevent the alienation of 
 a family estate." It deserves to be borne in mind that the 
 Married Women's Property Act, 1882, has not materially Married 
 affected the necessity or expediency of making a settlement, as Women's 
 that Act, while it protects the property of the wife against the ^'♦''^/J^o 
 husband, does not fulfil the main object of a settlement, viz., 
 " the securing of a certain provision for the issue of the mar- 
 riage, which will be safe against the engagements of the 
 husband, and of the wife also (*)." 
 
 (') Vaizey on Settlements, vol. i. wliich is attached a right to be main- 
 
 p. 1. "Settlement" is defined in taiiied by that piirish. 
 Mr. Whartim's Law Lexicon as fol- (^) See a'so as to definition of 
 
 lows: — 1. The act of giving possession settlement, Settled Laud Act, 1890, 
 
 by legal sanction ; a jointure gjanted 53 & 54 Vict. c. 69, s. 4, post, p. 152. 
 to a wife ; a family arrangement of (') Davidson's Conveyancing, vol. 
 
 property. '^. The obligation of a iii., part 1, p. 1. 
 person on becoming a pauper to (*) Prideaux's Conveyancing, 14th 
 
 remain in a particular parish to nl. vol. ii, p. 286. 
 
134 MEAL PROPERTY. [Book I. 
 
 Divisions The main division of settlements is into (1) Settlements for 
 
 ments'"' value, i.e. settlements made in consideration of money or mar- 
 riage, or other valuable consideration on the one hand, and 
 (2) Voluntary settlements on the other. 
 
 Settlements may also be classified with reference to their 
 subject-matter as settlements of personalty and settlements of 
 real estate. Between settlements of personalty and settlements 
 of land, there are, as Mr. Vaizey tells us, usually two broad 
 distinctions. 
 
 The first is that, in the case of settlements of personalty the 
 parties do not, unless with regard to chattels, which are in the 
 nature of heirlooms (see ante, p. 2), desire to retain the par- 
 ticular subject-matter which is settled, but regard the property 
 merely as an investment. The other distinction is that personal 
 property is not, like real, settled, so that after the death of 
 the parents it shall devolve, subject to charges for the other 
 children, on the eldest son, but is so settled that it may be 
 divided, subject to the power of appointment reserved to 
 the parents, equally among the children. 
 
 The highest and most valuable consideration for a settlement 
 is marriage. It must, however, be borne in mind that there may 
 be a variety of valuable considerations for settlements uncon- 
 nected with marriage, e.g. agreements for re-settlements between 
 father and son, payment of debts or some modification of the 
 interests which the husband and wife respectively possess in 
 property : — " It is settled that if husband and wife, each of 
 them having interests, no matter how much, or of what degree, 
 or of what quality, come to an agreement which is afterwards 
 embodied in a settlement, that is a bargain between husband 
 and wife, which is not a transaction without valuable 
 consideration " (}). The law with regard to re-settlements of 
 family estates was much considered in a case which came before 
 the Court in 1889, where the principle was laid down that in 
 such cases the Court gives weight to considerations which in 
 other matters would not be allowed into the scale. In all cases 
 where the father obtains a benefit the Court loots jealously 
 at the transaction, but it is not essential that the son should 
 have independent advice (^). 
 
 Although as has been pointed out marriage is the highest 
 and most valuable consideration known to the law for a settle- 
 ment, yet it is clearly settled law that " Where there is 
 
 {') Per James, L.J., in Teasdale v. Q) Hdblyn v. Eoblyn, 41 Oh. D. 
 
 Braithwaite, 5 Ch. I). 630. 200. 
 
marriage. 
 
 Chap. XII.] SETTLEMENTS. 135 
 
 evidence of an intent to defeat and delay creditors, and to make 
 the celebration of marriage part of a sclieme to protect pro- 
 perty against the rights of creditors, the consideration of 
 marriage cannot support such a settlement " (^). 
 
 On the other hand, where a marriage settlement is impeached Considera- 
 hy creditors of the husband, as the wife is a purchaser for value, *""' ?^ 
 the settlement cannot be set aside unless she be proved to have 
 been a party to the fraud. In Mr. May's words (^), when the 
 marriage itself is honest, the question must be, not whether the 
 settlement is a fraud on the creditors, but whether it can be set 
 aside without defrauding the wife, or if the marriage is after 
 December 31, 1882 (when the Married Women's Property Act, 
 1882, came into force) the party to it who is innocent of the fraud. 
 
 The subject is well illustrated by a case decided by the Court 
 of Appeal in 1877. The facts, so far as material for our present 
 purpose, are as follows : Mr. Crawford, who was carrying on 
 business as a flax spinner, and who was at the time hopelessly 
 insolvent, became engaged to be married to a Belgian lady who 
 was imperfectly acquainted with English. The lady had no 
 property, and Mr. Crawford arranged a marriage with her on 
 the terms that he should settle £20,000 on her, and he so 
 informed her. He then went to a respectable solicitor, and told 
 him, what was wholly untrue, viz., that he was indebted to his 
 intended wife in the sum of £20,000, and in consideration of the 
 debt and marriage then intended and about to be solemnized, he 
 covenanted to pay within a short period of time this sum of 
 £20,000 to the trustees named in the settlement upon trust that 
 as soon as he should become owner in fee simple of a mill 
 estate which he had contracted to purchase, the trustees should 
 advance him the £20,000 on the security of it. Trusts were 
 then declared of the £20,000 for the wife for life, with remainder 
 to himself for life, with remainder in trust for the children of the 
 marriage, and in default of children, for the wife absolutely. 
 The wife was wholly ignorant of the husband's insolvency, and 
 understood nothing about the recitals, &o., except only that 
 £20,000 was to be settled. After the marriage the niill was 
 purchased pursuant to the agreement, and was then mortgaged 
 to the trustees for £20,000, but no money actually passed. 
 Crawford afterwards became a bankrupt, and the trustee in his 
 bankruptcy commenced an action to set aside the mortgage and 
 the settlement. The Court decided that notwithstanding the 
 
 (') ColumUne v. Fenhall, 1 Sm. & G. 8 Eq. 46. 
 228 ; and see Buhner v. Hunter, L. E. Q) May on Voluntary Settlementa. 
 
136 REAL PROPERTY. [Book I. 
 
 falsity of the recitals the mortgage was valid so far as concerned 
 the interests of the wife and children. 
 
 Sir George Jessel, in delivering judgment expressed himself as 
 follows : — " The allej^ation against Crawford is made out. Bui 
 the wife did not know it, she was no party to it. She says she 
 believed Mr. Crawford to be a man wealthy and prosperous ; he 
 was the owner of one very large mill employing a great number 
 of hands; he was senior partner in a firm which owned another 
 large mill, and all that she expected wfl,s a settlement of £20,000. 
 She gave valuable consideration — consideration of marriage. 
 Whether that recital were in or were out of the settlement the 
 covenant to settle the £20,000 in consideration of the marriage, 
 would have been a covenant for value, and would have prevailed 
 against creditors. Why should the mere fact of the insertion 
 of an inaccurate or untrue recital vitiate the settlement, as 
 regards the wife, who was ignorant and innocent of the fraud ? 
 I cannot see why, and I entirely concur with the Vice-Chan- 
 cellor in the conclusion he came to, that the settlement was 
 for value given by the wife, namely, the consideration of 
 marriage, and that she was no party to the fraud, and that it 
 is unimpeachable on the part of the creditors " (i). 
 
 The reader's attention may now be directed to the various forms 
 in which property, personal or real, may be settled on marriage (^). 
 Settlement The usual form of a marriage settlement of personalty other 
 altv!'^™' tlian leaseholds, is somewhat as follows: The settlement is 
 made between the intended husband of the first part, the 
 intended wife of the second part, and the trustees of the third 
 part. If the property to be settled is in possession, e.g. a sum 
 of stock, it is usually transferred beforehand, and there is a 
 recital to that effect. If it be reversionary property, it is 
 assigned by the deed itself. The settlement then declares the 
 trusts on which the trustees are to hold it. These are, first, 
 either to retain the trust funds in their actual state of invest- 
 ment, or to sell them and invest the proceeds in certain specified 
 securities, and pay the income, if it has been agreed that the 
 wife should take the first life interest, to the wife during the 
 joint lives of husband and wife without power of anticipation, 
 and then to the survivor of them. 
 
 If the husband takes the first life interest, the trust is for the 
 husband for life, and if the wife survives him, to her for life ('). 
 
 alty. 
 
 (') Kevan v. Oi-awford, 6 Ch. D. (3) See as to stamp duty, Attomey- 
 
 29- General v. Theobald, 24 Q. B. D. 557 ; 
 
 (^) See as to real and personal Ounslow v. Inland Revemoe Commis- 
 
 settlements, Davidson,. vol. ill. p. 3. doners, 2i Q. B. D. SSl^affd. [1891] 
 
Chap. XIL] SETTLEMENTS. 137 
 
 On the death of tlic survivor the trust property is to bo held in Settlement 
 trust for the issue of the marriage as the husband and wife jointly °*',P"''*°"- 
 by deed, or the survivor of them by deed or will, may appoint, 
 and in default of appointment in trust for the children of the 
 marriage in equal shares, the sons taking as they attain tlie age 
 of twenty-one, the daughters as they attain that age or marry. 
 These trusts are followed by what is called a " hotch-pot " Q-) 
 clause, which provides that, in the absence of a direction to the 
 contrary, no child to whom an appointment has been made shall 
 share in the unappointed part of the trust fund, without first 
 throwing his appointed share into the common stock ; and an 
 " advancement " clause which empowers the trustees, with the 
 consent of the tenant for life for the time being, to advance an 
 amount not exceeding the presumptive share of any child for 
 his or her advancement, e.g., to apprentice or otherwise start him 
 or her in life. In one well-known case, where the clause em- 
 powered trustees to apply the moiety of a fund for the " settle- 
 ment or advancement or otherwise for the benefit " of an adult, 
 as they should think fit, the late Sir George Jessel authorised the 
 trustees to pay his debts (2). It was formerly usual to insert 
 maintenance and accumulation clauses, but these are now almost 
 invariably omitted, the Conveyancing Act, 1881, containing 
 ample provisions for the purpose (^). The settlement then pro- 
 ceeds to declare what shall be done with the trust property 
 after the death of the parents in case there shall be no issue of 
 
 1 Q. B. 239. The usual practice pay to the infant's parent or guar- 
 
 is that each party has the first life dian, if any, or otherwise apply for 
 
 interest in the property which he or towards the infant's maintenance, 
 
 or she brings into settlement, but education, or benefit, the income of 
 
 Mr. Prideaux expresses an opinion that property, or any part thereof, 
 
 that where the wife's property is large, whether there is any other fuml 
 
 and the husband has little or nothing, applicable to the same purpose, or 
 
 and is in no business or profession, any person bound by law to provide 
 
 this course is not desirable. for the infant's maintenance or educa- 
 
 (') See as to explanation of " Hotch- tion, or not. 
 pot," note, p. 343. The trustees are to accumulate the 
 
 {'') Lowther v. Sentinck, h. E. 19 residue of the income in the way of 
 
 Eq. 166. compound interest, by investing in 
 
 (') Sect. 43 of the Conveyancing authorized securities and to hold these 
 Act, 1881, which applies to instru- accumulations for the benefit of the 
 ments of any date, but is to apply person who ultimately becomes en- 
 only so far as a contrary intention is titled to the property from which 
 notexpressed, provides that where any the same arise: see Re Judkin's 
 property is held by trustees in trust Trusts, 25 Oh. D. 743 ; Be Thatcher's 
 ioT an infant, either for life, or for Trusts, 26 Ch. D. 426 ; Be Vichson, 
 any greater interest, and whether 29 Ch. D. 331. See Wells v. Wells, 
 absolutely, or contingently on his 43 Oh. D. 281, where it was said 
 attaining the age of twenty-one years, that the Conveyancing Act was in- 
 or on the occuixence of any event tended to shorten and simplify con- 
 before his attaining that age, the veyances, nut to alter the devolution 
 trustees may, at their sole discretion, of property. 
 
138 
 
 SEAL PnOPERTT. 
 
 [Book I. 
 
 Settlement 
 of person- 
 alty. 
 
 After- 
 acquired 
 property. 
 
 the marriage. The usual trust is that it shall revert, as to the 
 husband's trust fund to him absolutely, and as to the wife's 
 trust fund after the death of the husband, and such failure of 
 issue in trust for such persons as the wife shall, when discovert 
 by deed or whether covert or discovert by will or codicil, 
 appoint and in default of appointment, if the wife shall 
 survive the husband then in trust for the wife as her separate 
 property, but if the husband shall survive the wife, then in 
 trust for her next of kin, as though she had died intestate and 
 without having been married (i). The settlement concludes by 
 directing that the power of appointing new trustees shall be 
 exerciseable by the husband and wife during their joint lives, 
 and by the survivor during his or her life (^), leaving any 
 subsequent appointment that may become necessary to be made 
 under the provisions of s. 31 of the Conveyancing Act, 1881, as 
 to which, see ;po8t, pp. 636, 696. The clauses formerly inserted 
 giving power to trustees to give receipts, compound, &c., are 
 now omitted in reliance on the Conveyancing Act, 1881, ss. 36, 
 37 (jpost, pp. 531, 632), which make ample provision for this 
 purpose, and what were called the trustee indemnity clauses, 
 declaring in effect that trustees should not be liable for 
 any loss except such as was incurred by their own individual 
 neglect, are also omitted, being now contained in s. 31 of Lord 
 St. Leonards' Act (22 & 23 Vict. c. 35). This section, however, 
 affords no substantial protection to trustees, in fact it rather 
 tends to mislead them into supposing their liability in equity 
 to be less than it really is (^). It may be here mentioned that 
 the duties, powers, and liabilities of trustees are very materially 
 altered by an Act passed in the year 1888, which is considered 
 somewhat in detail in a later portion of this work, and that an 
 Act passed in the year 1889 {post, p. 626) deals specially with 
 the subject of investment of trust funds by trustees (f). If one of 
 the trustees be a solicitor, it is usual to insert a clause enabling 
 him to charge for his professional services {post, p. 840). 
 
 A clause which is very often inserted in marriage settlements 
 provides for the settlement of after-acquired property of the 
 wife ; the object being to impress upon such property the trusts 
 of the settlement. This clause is usually drawn so as only to 
 
 (') See as to trust for wife's next 
 of kin, Clarke v. Hayne, 42 Cli. D. 
 529. 
 
 (^) See as to appointment of new 
 trustees, Slceat's Settlement, 42 Ch. D. 
 522. 
 
 (^) An indemnity clause to be 
 
 really of value must be carefully and 
 specially framed : see Wilkins v. 
 Sogg, 3 Giff. 116; 8 Jur. (N.S.) 25; 
 Pass V. Dundas, 29 W. E. 332. 
 
 (') See Warman v. Warman, 43 
 Ch. D. 296. 
 
Chap. XII.] 8ETTLEMENTS. 139 
 
 apply to property over a certain amount, and not to apply to 
 jewellery or Bmall chattels in some such form as the following : 
 " If the said (wife) shall at one and the same time become 
 seised of, or possessed of, or entitled to real or personal property 
 of the value of £200." Considerable care is required in the 
 wording of a proper clause, as very difficult questions have from 
 time to time occupied the attention of the Courts with respect 
 to it (1). 
 
 In some cases it is considered desirable to make the interest Hnsband's 
 conferred upon the husband under the settlement determinable d"termin- 
 ehould he become a bankrupt or attempt to charge or alienate it. able on 
 
 The authorities on this subject are summed up by Mr. Prideaux \^^l ^^ 
 in a series of propositions, of vrhich the following are the most 
 important : — 
 
 (1) That where the property settled comes from the wife, or 
 from any other source than the husband himself, a gift over on 
 the husband's bankruptcy or alienation is valid (2). 
 
 (2) That virhere the property settled comes from the husband 
 himself, such a gift over is invalid as against his trustee in 
 bankruptcy, but good as against his alienees. 
 
 (3) Where the husband receives part of his vsdfe's fortune on 
 marriage and settles property of his own upon himself for life, 
 with a gift over on bankruptcy, &c., the wife is considered as 
 a " purchaser " to the extent of her fortune received by the 
 husband, and accordingly the gift over is to that extent valid. 
 
 (4) A mere condition forbidding alienation annexed to the gift 
 of a life interest, unless followed by a gift over, or something 
 equivalent to it, is inoperative. 
 
 Formerly the law would seem to have been that the effect of a 
 dissolution of marriage by reason of the husband's misconduct was 
 to forfeit his interest under the settlement, but it is now estab- 
 lished that under such circumstances no forfeiture is worked ('). 
 
 The frame of a settlement of real estate varies usually accord- Settlement 
 ing to the amount of the property to be settled. A large estate of ''<'<'^' 
 is usually settled "strictly," as it is called, according to the 
 form which we shall presently mention. But if the property is 
 only small, the usual practice is to employ what Mr. Davidson 
 
 (') See the cases collected in Swift v. Wenman, L E. 10 Eq. 1.5 
 
 Prideaux on Conveyancing, 14th ed., Fussell v. Dowding, L. E. 14 Eq. 421 
 
 vol. ii., p. 241, et seq, ; Be Be Bos' Fitzgerald v. Chapman, I Ch. D. 563 
 
 Trust, 31 Ch.X). 81; Fishery. Shirley, Burton v. Sturgeon, 2 Ch. D. ,S18 
 
 43 Ch. D. 290. See Wigney v. Wigney, 7 P. D. 177 
 
 O See further, Prideaux'a Con- Bulhnore v. Wynter, 22 Ch. D. 619 
 
 veyancing, 14th ed. vol. ii. p. 237. see, as to variation of settlement by 
 
 ('; Jessop V. Blake, 3 Giff. 639 ; Divorce Court, post, p. 1036. 
 
140 
 
 REAL PBOPERTY. 
 
 [Book I. 
 
 Covenant 
 implied by 
 Convey- 
 ancing Act. 
 
 calls the artifice of a trust for sale and declaration of trusts cf 
 the proceeds, i.e., to convey it to trustees upon trust to sell with 
 the consent of the tenants or tenant for life. The trusts of the 
 money to arise by the sale are declared either by the deed of 
 conveyance or a deed of even date therewith. These trusts do 
 not differ in substance from those of a common personalty settle- 
 ment, as stated above. 1'he deed or deeds also give the 
 trustees power to lease until sale and declare that the rents and 
 profits are in the meantime to be applied in the same way as 
 income arising from an investment of the sale moneys (^). 
 
 Let us now assume that it is desired to draw a marriage 
 settlement in a case where there is a real estate of great value 
 coming from the husband's side. In that case the property 
 would be limited somewhat in the following manner : — 
 
 (1) To the Tise that the wife may receive during the joint 
 lives of herself and her husband an annual sum by way of pin 
 money. 
 
 (2) To the use of the husband for life. 
 
 (3) To the use that the wife, if she should survive her 
 husband, may receive a jointure rent-charge during her life to 
 commence on the husband's death. 
 
 (4) To the use of the trustees for a term to secure portions 
 for younger children of the marriage. 
 
 (5) Tothe use of first and other sons successively in tail male. 
 
 (6) To the use of sons in tail general. 
 
 (7) To the use of daughters of the marriage as tenants in 
 common in tail, with cross-remainders between them. 
 
 (8) The ultimate remainder is to the use of the settlor in fee. 
 The trusts of the portions term are then declared. This is 
 
 followed by the appointment of trustees of the settlement for 
 the purposes of the Settled Land Act, and of section 42 of the 
 Conveyancing Act. Certain clauses may be added extending 
 the powers of the Settled Land Act. 
 
 Powers are not unusually inserted enabling the husband to 
 jointure a future wife and to charge portions for the children 
 of a future marriage. 
 
 In settlements prior to the Conveyancing Act, the settlor 
 usually entered into the same covenants as those which were 
 given by an ordinary vendor on a sale. The covenant implied 
 by the Conveyancing Act, when a person conveys and is ex- 
 pressed to convey " as settlor " (which is now usually relied on), 
 is as follows : — That he, and every person deriving title under 
 
 (') Sec Forms exix., cxx, ; Davidson's Concfso Precedents, 15th cd. 
 
Chap. XII.] 
 
 SETTLEMENTS. 
 
 141 
 
 him, by deed, or act, or operation of law in his lifetime subsequent 
 to the settlement, or by testamentary disposition or devolution 
 in law on his death, will, from time to time, and at all times, 
 after the date of the settlement, at the request and cost of any 
 person deriving title thereunder, execute and do all such lawful 
 assurances and things for further or more perfectly assuring the 
 settled property to the trustees and those deriving title under 
 them, as shall be reasonably required (s. 7, sub-s. 1, E). 
 
 If copyholds {post, p. 184) are to be settled along with the Copyholds, 
 freeholds, there will be a covenant to surrender them to the use 
 of the trustees on trusts to correspond with the uses of the free-' 
 holds. This might be done in some such form as follows : — 
 
 " To the use of the said (the trustees) their heirs and 
 
 assigns, according to the custom of the said manor, by and under 
 the accustomed rents, fines, suits, and services, and upon such 
 trusts, and subject to such powers, as shall as nearly correspond 
 with the uses, trusts, and powers hereinbefore limited and 
 contained of the said premises hereinbefore granted, as the 
 different qualities of the estates and the rules of law and equity 
 will permit," and in the meantime the trustees are directed to 
 hold the land as though a surrender had been actually made. 
 
 Where leaseholds are settled along with freeholds they are Leaseholds, 
 usually assigned to the trustees to be held by them upon trusts 
 corresponding to the uses, trusts, &c., limited and declared 
 concerning the freeholds expressed to be thereby granted as 
 nearly as the different tenure and quality of the premises and 
 the rules of law and equity will permit, but not so as to 
 increase or multiply charges or powers of charging, and so 
 nevertheless that the said leasehold premises shall not vest 
 absolutely in any person made tenant in tail male or tail 
 general by purchase of the settled land, unless he shall attain 
 the age of twenty-one years, but on his death under that age, 
 shall go, devolve, and remain in the same manner as if they 
 had been part of the settled freeholds Q). 
 
 The circumstances under which the Court will annul a settle- 
 ment which has been entered into in contemplation of a marriage 
 which never takes place were considered in a case which came 
 before the Court in 1886 (2). There an intended wife and her 
 father executed the engrossment of a settlement of, among other 
 things, funds which were to be provided by the father and the 
 present and after-acquired property of the intended wife. The 
 engrossment was given into the custody of the solicitors of the 
 
 Annulment 
 of settle- 
 ment. 
 
 (') See Davidson on Settlements, 
 vol. iii. Part I. p. 593, et seq. ; Part II. 
 
 p. 1131. 
 O Bond\'. F«//occ?,32 Ch.D.238. 
 
142 
 
 EEAL PROPERTY. 
 
 [Book I. 
 
 Volunteers, 
 
 Voluntary 
 andfrtiudu- 
 lent settle- 
 ments. 
 
 intended husband ; it was not executed by him or the trustees, 
 and the engagement was subsequently broken off by agreement. 
 
 Pearson, J., in delivering judgment, said that it was always 
 considered a matter of difficulty how far the Court could declare 
 a marriage settlement absolutely null and void because the 
 marriage did not take place at the time. It was the duty of the 
 Court to see that everything done was done fairly and honestly, 
 and that an attempted revocation of a settlement was not a 
 revocation simply because the parties desired to make different 
 terms from what they desired at the time the settlement was 
 executed. 
 
 In the present case the judge considered that under the exist- 
 ing circumstances, as three and a half years had expired since 
 the execution of this inchoate settlement, he was entitled to 
 come to the conclusion that even if a marriage did take place 
 between the parties, it would take place under such different 
 circumstances that it would be, strictly speaking, not the same 
 marriage, but another marriage than the one then intended, and 
 under these circumstances he ought to declare that the deed was 
 not binding and ought to be delivered up. 
 
 Settlements sometimes provide for persons who are not within 
 the consideration of the marriage, and only come within the 
 bargain made by the parties. Such parties are called " volun- 
 teers." In a case which came before the Court of Appeal in 1882 
 the ultimate trust in default of children was for the next of kin 
 of the wife. There was no possibility of issue in this case, and 
 the question was whether this trust could be revoked so as to 
 entitle the husband and wife to the corpus of the settled fund. 
 The Court of Appeal answered this question in the negative. 
 Sir George Jessel, in delivering judgment, said: "In this case 
 a trust was declared by the settlement for the next of kin of the 
 lady, and the fund has been transferred to the trustees. The 
 fact of their being volunteers does not enable the trustees to 
 part with it without the consent of their cestuis que trust. That 
 has been the rule ever since the Court of Chancery 
 existed " (^). 
 
 Let us now briefly consider the law with regard to voluntary 
 and fraudulent settlements. The statute 13 Eliz. c. 6 (made 
 perpetual by 29 Eliz. c. 5), enacts that grants, and conveyances 
 of lands or goods, or any profit thereof, made with intent to 
 delay, hinder, or defraud creditors, shall be utterly void against 
 
 (■) Paul V. Paul, 20 Ch. D. (C.A.) 
 742. And see also Muclcie v. Herbert- 
 
 son, 9 App. Cas. 303; Be Cameron, 
 37 Ch. D. 32. 
 
Chap. XII.] SETTLEMENTS. 143 
 
 such ci-editors, &c. A section however provides that the Act 
 is not to extend to any estate or interest in land for good 
 (i.e. valuable) consideration and bona fide conveyed to any 
 person not having at the time notice of the fraud (}). 
 
 Another statute of the same reign, 27 Eliz. c. 4, provides that 
 all conveyances of lands, tenements, and hereditaments made 
 with intent to defraud purchasers, and all conveyances with 
 any clause of revocation at the grantor's pleasure shall be void 
 against subsequent purchasers. It will be observed that the 
 statute protecting creditors deals with personal as well as real 
 estate, while that with regard to purchasers speaks only of lands, 
 tenements, and hereditaments under which copyholds and lease- 
 holds are included. It is settled law that any mere voluntary 
 conveyance, unless perhaps in favour of a charity, is fraudulent 
 within the meaning of the 27 Eliz. even although made by 
 the direction of the Court (2). In order, however, that the Voluntary 
 statute should apply, the voluntaiy conveyance and subsequent ^-^^^^^ 
 sale must be made by the same person (5), and accordingly, if 
 there be first a voluntary conveyance to A., and then one to B., 
 A.'s title would be good even against a subsequent purchaser 
 for value from B. (*). It must also be borne in mind that a 
 voluntary conveyance is good against the grantor. The law is 
 that anybody of full age and sound mind who has executed a 
 voluntary deed by which he has denuded himself of his own 
 property, is bound by his own act, and if he himself comes to 
 have the deed set aside — especially if he comes a long time 
 afterwards — he must prove some substantial reason why the 
 deed should be set aside (^). It is not essential that there 
 should be a power of revocation inserted in a voluntary 
 settlement (*). 
 
 " It is established," said Lord Hatherley, " by the authorities 
 
 (') The preamble of this Act re- society can be maintained or oon- 
 
 cites that its object is for the avoid- tinued. See the effect of these words 
 
 ing and abolishing of feigned, covin- considered : In re Johnson. Golden 
 
 ons, and fraudulent feoffments, as v. Gillam, 20 Ch. D. 389, 392. 
 
 well of Lmdd and tenements as of (^) Dart's Vendors and Purchasers, 
 
 goods and chattels, devised and con- 6th ed. pp. 1003, 1008, where it is 
 
 triived of malice, fraud, covin, collu- pomted out that the question as to 
 
 sion, or guile, to the end, purpooe, whether charities are excepted is 
 
 and intent to dela}', hinder, or de- still unsettled, 
 
 fraud creditors and others of their (^) Godfrey v. Foole, 13 App. Gas. 
 
 just and lawful actions, suits, debts, 497. 
 
 "&c., not only to the let or hindrance Q) Doe d. Newman v. Busliam, 
 
 of the due couise and execution of 17 Q. B. 723. 
 
 law and justice, but also to the over- (') Henry v. Armstrong, 18 Ch. D. 
 
 throw of all tiue and plain dealitjg 668. 
 
 . . . between man and man without (") Hall v. Hall, L. B. 8 Oh. 430. 
 whii.'h no commonwealth or civil 
 
144 BEAL PROPERTY. [Book L 
 
 that, in tlie absence of any such direct proof of intention, 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 ("sup- 
 posing 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." 
 
 A voluntary settlement may be set aside under 13 Eliz. c. 5, 
 without proof of actual intention to defeat, hinder, or delay 
 creditors, if, under the circumstances, the instrument will neces- 
 sarily have that effect (i). 
 
 It is now clearly settled by a series of authorities that a man 
 is not entitled to go into a hazardous business, and immediately 
 before doing so to settle all his property voluntarily, his object 
 being, in Sir George Jessel's words, " If I succeed in business, 
 I make a fortune for myself. If I fail, I leave my creditors 
 unpaid. They will bear the loss." That is the very thing 
 which the statute of Elizabeth was meant to prevent (2). 
 Sjatutes of In summing up the law as settled by the cases decided on 
 the two Statutes of Elizabeth, Mr. May lays down the two 
 following propositions, which wiU, he tells us, give the key to 
 eliciting "a satisfactory and harmonious principle from many 
 decisions which might otherwise appear unintelligible or con- 
 tradictory " (»). 
 
 1. In order to decide whether a disposition of property is void 
 as to creditors under the statute 13 Eliz. c. 5, the state of cir- 
 cumstances at the time the conveyance is executed must be 
 regarded. 
 
 2. In order to determine under the statute 27 Eliz. c. 4, 
 whether a disposition of property is void as against a subsequent 
 purchaser, the circumstances at the time when the purchaser 
 assumed that character must be louked at, and considered in 
 relation to the previous disposition which is impeached as 
 fraudulent. 
 
 With regard to the question whether a settlement is voluntary, 
 it is a well-established principle that so long as there is some 
 consideration, and in the absence of fraud, the Court does not 
 " weigh in golden scales," the quantum of the consideration 
 
 Elizabeth. 
 
 (') Freeman v. Fope, L. R. 5 Cli. .^3S, woiih, ] 9 Oh. D. 588. 
 
 and see lUdler v. Ridler, 22 Cli. D. 82. (=) May on Voluntary Settlements, 
 
 (^) Mackayy. Douglas,lj. R. 14 Kq. 2nd ed. p. 15. 
 lOl) ; Ex parte Russell. In re Butter- 
 
Chap. XII.] SETTLEMENTS. 145 
 
 which has passed. Thus, in an oft-quoted case, the settlement 
 of leaseholds was held to be an assignment for ^alue, on the 
 ground that liability was attached to the assignee for payment 
 of rent and observance of covenants (i). 
 
 Attention must also here be directed to the provisions of the Bank- 
 Bankruptcy Act, 1883 C), with regard to voluntary settlements. ,003°''^'^*' 
 That Act provides that any settlement of property not being (1 ), 
 a settlement made before and in consideration of marriage, or 
 (2), made in favour of a purchaser or incumbrancer in good 
 faith and for valuable consideration ; or (3), a settlement made 
 on or for the wife or children of the settlor of property which 
 has accrued to the settlor after marriage in right of his wife, 
 shall, if the settlor becomes bankrupt within two years after 
 the date of the settlement, be void against the trustee in 
 the bankruptcy, and shall, if the settlor becomes bankrupt at 
 any subsequent time within ten years after the date of the 
 settlement, be void against the trustee in the bankruptcy unless 
 the parties claiming under the settlement can prove (1) that 
 the settlor was at the time of making the settlement able to 
 pay all his debts without the aid of the property comprised in 
 the settlement ; and (2) that the interest of the settlor in such 
 property had passed to the trustee of such settlement on the 
 execution thereof (see jposi, p. 922). 
 
 It is also provided that any covenant or contract made in con- 
 sideration of marriage for the future settlement on or for the 
 settlor's wife or children of any money or property wherein he 
 had not at the date of the marriage any estate or interest, 
 whether vested or contingent, in possession or remainder, and 
 not being money or property of or in right of his wife, shall, 
 upon his becoming bankrupt before the property or money has 
 been actually transferred or paid pursuant to the contract or 
 covenant, be void as against the trustee in bankruptcy (see 
 further, post, p. 922). 
 
 The Settled Land Acts ('). 
 
 Next after our review of the principal features of the law as Settled 
 to settlements it will be appropriate for us to direct the reader's ^^^^ ^<^^'- 
 attention to the legislation which is specially concerned with 
 
 (') Price V. Jenldns, 5 Ch. D. 619 ; C) 46 & 47 Vict. 0. 52, s. 47. 
 
 Harris v. Tubh, 42 Ch. D. 79, where (') 45 & 46 Viot. c. 38; 47 & 48 
 
 the cases are collected, and the ques- Viot. c. 18; 50 & 51 Vict. c. 30; 
 
 tion whether the rule on this point 52 & 58 Vict. u. 36 ; 5.T it 54 Viot. 
 
 is confined to cases under 27 Eliz. c. 4, c. 69. 
 is considered. 
 
 VOL. I. I' 
 
146 
 
 REAL PROPERTY. 
 
 [Book I. 
 
 settled land. , In a fotmer chapter (ante, p. 27), allusion has 
 been made to the various powers conferred upon tenants for 
 life and other limited owners by the Settled Land Act, 1882, 
 and it is now proposed to consider briefly the principal provi- 
 sions of the extremely important series of enactments which are 
 to be cited together as the Settled Land Acts, 1882 to 1890. 
 
 The general scope of the Settled Land Acts may be briefly 
 described as follows : It is to enable the tenant for life or 
 " other limited owner" Q) of the land to deal with it as if 
 he were an absolute owner subject to such provisions and 
 restrictions as will secure the interests of those who are 
 entitled in remainder. It was said by Lord Eldon, years ago, 
 that the most improvident course that could be adopted was to 
 intrust the tenant for life with the execution of a pov?er of sale ; 
 " for (he went on to say) it is generally the interest of the 
 tenant-for-life to convert the estate absolutely into money, 
 
 (') Sect. 2, sub-s. 6 of the Settled 
 Land Act, 1882, provides that if in 
 any ease there are two or more per- 
 sons entitled as tenants in common 
 or as joint tenants, or for other con- 
 current estates, they together consti- 
 tute the tenant for life for the pur- 
 poses of the Act. By sect. 58 the 
 term " tenant for life " includes the 
 following persons, when the estate or 
 interest of each of them is in posses- 
 sion : — 
 
 (i.) A tenant in tail. Under this 
 term is to be included a 
 tenant in tail who is by 
 Act of Parliament re- 
 strained from barring or 
 defeating his estate tail, 
 and although the reversion 
 is in the Crown, and so 
 that the exercise by him 
 of his powers under the 
 Act shall bind the Crown, 
 but not a tenant in tail 
 ■where the land in respect 
 •whereof he is so restrained 
 was purchased with money 
 provided by Parliament in 
 consideration of public ser- 
 vices (see aide, p. 40) ; 
 (ii.) A tenant in fee simple, with 
 an executory limitation, 
 gift, or disposition over 
 (see ante, p. 71) ; 
 (iii.) A person entitled to a base 
 , .fee, although the reversion 
 is in the Crown, and so 
 that the exercise by him 
 
 of his powers under this 
 Act shall bind the Crown 
 (see ante, p. 40) ; 
 (iv.) A tenant for years deter- 
 minable on life, not hold- 
 ing merely under a lease 
 at a rent ; 
 (v.) A ti'uant for the life of an- 
 other, not holding merely 
 under a lease at a rent; 
 (vi.) A tenant for his own or any 
 othi.-r life, or for years 
 determinable on life, whose 
 estate is liable to cease in 
 any event during that life, 
 or to be defeated, or is 
 subject to a trust for ac- 
 cumulation of income ; 
 (vii.) A tenant in tail after possi- 
 bility of issue extinct ; 
 (viii.) A tenant by the curtesy ; 
 (ix.) A person entitled to the in- 
 come of land under a trust 
 or direction for payment 
 thereof to him during his 
 own or any other life, 
 whether subject to ex- 
 penses of management or 
 not, or until sale or for- 
 feiture of the land. 
 The next sections (59 and 60) pro- 
 vide for cases where the person who 
 is in his own right seised of or en- 
 titled in possession to land is an 
 infant. Sect. 61 deals with the case 
 of a married woman, and sect. 62 . 
 with that of a lunatic tenant for life. 
 
Chap. XII.] 
 
 SETTLEMENTS. 
 
 147 
 
 either witli a view to sell another estate to his family, or 
 for the ordinary purpose of getting a better income during 
 his life." This would, doubtless, be true as a general prin- 
 ciple if in the exercise of his powers the tenant for life 
 were not kept in check by prudential safeguards, but the 
 Legislature has taken care in the present instance to make 
 ample provision for the protection of the remaindermen. 
 Every tenant for life under a settlement, no matter what its 
 date may be, has (along with a variety of subsidiary powers) 
 power to sell the settled land, " or any easement, right, or 
 privilege of any kind over or in relation to the same." He may 
 enfranchise copyholds held of any " settled" manor; he may 
 effect exchanges and make partitions ; he may grant leases for 
 any purpose whatever, whether involving waste or not, for any 
 term not exceeding — in the case of a building lease, ninety-nine 
 years ; in the case of a mining lease, sixty years, and in case of 
 any other lease twenty-one years. He may also grant licences 
 to copyholders to lease. He may rais^! money by mortgage, for 
 equality of exchange or partition, subject as to all these powers 
 to the conditions and restrictions prescribed by the Acts ('). 
 
 (') The following more articulate 
 enumeration of the powers cunferred 
 by the Settled Land Act, 1882, upon 
 a tenant for life under a settlement 
 may be found convenient : — 
 
 To sell, enfranchise, exchange and 
 concur in partition (sect. 3) ; and see 
 sects. 5, 6, 10, and 12 of the Settled 
 Land Act, 1890. 
 
 To grant building.miningand other 
 leases (sects. 6, 12) ; and see sects. 
 7 and 8 of the Settled Land Act, 
 1890. 
 
 To accept surrenders of leases, and 
 make new leases (sect. 13). 
 
 By sect. 17, in sale, exchange, par- 
 tition, and mining lease, the surface 
 and minerals may be dealt with apart. 
 To grant licences for leasing to 
 copyholders (sect. 14). 
 
 To appropriate land for streets and 
 open spaces on or in connection with 
 sales or grants, or building purposes, 
 or building leases (sect. 16). 
 
 To raise money by mortgage for 
 enfranchisement or for equality of ex- 
 change or partition (sect. 18) ; and 
 see sect. 11 of the Settled Land Act, 
 1890. 
 
 To transfer incumbrances on sale, 
 exchange, or partition, with consent 
 of incumbrancer from one part of the 
 settled land to another (sect. 5). 
 
 To convey the settled land in com- 
 pletion of the exercise of powers of 
 sale, lease, &c. (sect. 20) ; and see 
 sect. 6 of the Settled Land Act, 1890. 
 To execute deeds, &c., in exercise 
 of powers (sect. 65). 
 
 To direct the investment and ap- 
 plication of capital money (sect. 22) ; 
 and see sects. 13, 14, and 15 of 
 the Settled Land Act, 189U. 
 
 To execute improvements autho- 
 rized by the Act defined by sect. 25 
 (sect. 29) ; and see sect. 13 of the 
 Settled Land Act, 1890. 
 
 To enter into and vary and rescind 
 contracts (sect. 31) ; and see sect. 6 
 of the Settled Land Act, 1890. 
 
 To cut timber, ripe and fit for 
 cutting, with consent of the trustees 
 or under an order of the Court, even 
 when the tenancy for life is impeach- 
 able for waste (sect. 35). 
 
 To sell or purchase chattels settled 
 or to be settled on trust, but only 
 under an order of the Court (sect. 37) ; 
 and see as to cases where order of 
 the Court is required, sect. 6 Settled 
 Land Act, 1884. See as to the pre- 
 vious law in respect of such chattels : 
 Fane v. Fane, 2 Ch. D. 711 ; B'Eijn- 
 court V. Gregory, 3 Oh. D. 635. 
 
 It has been pointed out that the 
 policy of the Act, which seems to be 
 L 2 
 
148 
 
 BEAL PBOPERTT. 
 
 [Book I. 
 
 Safeguards 
 against 
 abuse of 
 powers by 
 tenant for 
 life. 
 
 Capital 
 money. 
 
 The tenant for life is prevented from abusing his powers by 
 the following provisions of the Acts : — 
 
 Every sale must he made at the best price that can reason- 
 ably be obtained. Every exchange and partition must be made 
 for the best consideration in land, or in land and money, which 
 can reasonably be obtained (^). 
 
 When the land is leased, every lease must be by deed and 
 be made to take effect in possession not later than twelve 
 months after its date, and must reserve the best rent that can 
 be obtained, having regard to any fine or money laid out or to 
 be laid out for the benefit of the settled land, and generally to 
 the circumstances of the case. 
 
 The lease must also contain a covenant by the lessee for 
 payment of the rent, and a condition of re-entry on the rent 
 not being paid within the specified time, which is not to exceed 
 thirty days. A counterpart of the lease is to be executed by 
 the lessee and delivered to the tenant for life (^). 
 
 It has been laid down in a recent case that a tenant for life 
 has now under the Settled Land Act, 1882, an absolute, and 
 (except in the cases pointed out by the Act) an unfettered right 
 to sell the settled land without the consent or control of the 
 trustees of the settlement, unless they have reason to believe 
 that any intended exercise of the power is improper (f). 
 
 Capital money arising under the Act must be paid either to 
 the trustees of the settlement or into Court (*), and be applied 
 according to the direction of the tenant for life, or of the Court 
 in one or more of the following modes : — 
 
 (1) In any of the " authorized modes of investment." 
 
 (2) In discharge, purchase, or redemption of incumbrances 
 affecting the inheritance, or whole estate settled, or of land-tax, 
 
 to entrust the tenant for life with all 
 the administrative powers of an abso- 
 lute owner, is strikingly exemplitied 
 by the section regulating the invest- 
 ment and appliration of capital 
 money arising under the Act. At 
 the option of the tenant for life the 
 capital money is to. be paid to the 
 trustees or into Court ; according to 
 Ms direction, the trustees are bound 
 to apply any money in their hands in 
 any of the authorized modes ; and 
 no change can be made in the invest- 
 ments without his consent : Gierke's 
 Settled Land Act, p. 79. 
 
 (') Settled Land Act, 1882, s. 4, 
 sub-ss. 1, 2. 
 
 {') Settled Land Act, 1882, s. 7. 
 
 (') In cases where the trustees 
 have reason to believe that any 
 intended exercise of the power is 
 improper, they can apply to the 
 Court under sect. 44 of the Act. 
 The fact that at the time the tenant 
 for life enters into a contract for sale 
 there are no trustees of the settle- 
 ment under the Act, or, when there 
 are any, the fact that no notice has 
 been given them by the tenant for 
 life, under sect. 45, sub-seot. 1, of his 
 intention to proceed to a sale, will 
 not prevent the tenant for life making 
 a statutory title : Hatten v. Busiell, 
 38 Ch. D. 334. 
 
 O 45 & 46 Vict. 0. 38, sb. 21, 22. 
 
Chap. XII.] SETTLEMENTS. 149 
 
 rent-charge in lieu of tithe, Crown rent, chief rent, or quit-rent, 
 charged on or payable out of the settled land. 
 
 (3) In payment for any improvement authorized by the Act ; 
 or (4) for equality of exchange, or partition of settled land. 
 
 (5) In purchase of the seignory of the settled land, being 
 freehold, or of the fee-simple of such land being copyhold. 
 
 (6) In purchase of the reversion or freehold in fee of the 
 settled land, being leasehold for years, or life, or years determin- 
 able on life. 
 
 (7) In the purchase of land in fee-simple, or of copyhold or 
 customary land, or of leaseholds held for sixty years or more, 
 unexpired at the lime of purchase, subject or not to exceptions 
 or reservations of mines or minerals, or of rights of working 
 them. 
 
 (8) In purchase, either in fee-simple, or for a term of sixty 
 years or more, of mines and minerals, convenient to be held or 
 worked with the settled land, or any easement, &o., convenient 
 to be held with such land for mining or other purposes. 
 
 (9) In payment to any person becoming absolutely entitled, 
 or empowered to give an absolute discharge. 
 
 (10) In payment of costs, charges, and expenses of or in- 
 cidental to the exercise of any of the powers, &o., of the Act. 
 
 (11) In any other mode in which money produced by the 
 exercise of a power of sale in the settlement is applicable there- 
 under. 
 
 The Settled Land Act, 1884 (s. 4), provides that a fine re- 
 ceived on the grant of a lease under any power conferred by the 
 Act shall be capital money. 
 
 A long list of " authorized improvements " for which capital 
 money may be applied is given in sect. 25 of the Settled Land 
 Act, 1882 (1). The Settled Land Act, 1890 (sect. 13), makes 
 the following additions to the list of authorized improvements : 
 
 (i.) Bridges. 
 
 (ii.) Making any additions to or alterations in buildings 
 reasonably necessary or proper to enable the same to 
 be let. 
 
 Q) Sect. 1 of 50 & 51 Vict. c. 30, of defraying the expenses of such 
 provides as follows : " Where any improvement, any capital money ex- 
 improvement of a kind authorised pended in redeeming such rent- 
 by the Act of 1882 has been or may charge or otherwise providing for 
 be made either before or after the the payment thereof shall be deemed 
 passing of this Act, and a rent- to be applied in payment for an 
 charge, whether temporary or per- improvement authorised by the Act 
 petual, has been or may be created of 1882." The next section provides 
 in pursuance of any Act of Parlia- that s. 28 of the Settled Land Act, 
 ment, with the object of paying off 1882, is to -apply to improvements 
 any moneys advanced for the purpose within the section just g,uoted. 
 
150 
 
 REAL PROPERTY. 
 
 [Book I. 
 
 Settled 
 Land Act, 
 1889. 
 
 Principal 
 
 mansion- 
 house. 
 
 (iii.) Erection of buildings in substitution for buildings 
 within an urban sanitary district taken by a local or 
 other public authority or for buildings taken under 
 compulsory powers, but so that no more money be 
 expended than the amount received for the buildings 
 taken and the site thereof, 
 (iv.) The rebuilding of the principal mansion house on the 
 settled land. It is however provided that the sum to 
 be applied in this last case shall not exceed one half 
 of the annual rental of the settled land. 
 It is also provided by the Settled Land Act, 1890 (ss. 14 and 
 15), with regard to the application of capital money, that all or 
 any part of any capital money paid into Court may, if the Court 
 thinks fit, be at any time paid out to the trustees of the settle- 
 ment for the purposes of the Settled Land Acts, 1882 to 1890. 
 
 The Court may, in any case where it appears proper, make 
 an order directing or authorising capital money to be applied 
 in or towards payment for any improvement authorised by the 
 Settled Land Acts, 1882 to 1890, notwithstanding that a scheme 
 was not, before the execution of the improvement, submitted, 
 for approval, as required by the Act of 1882, to the trustees of 
 the settlement or to the Court. 
 
 The Settled Land Act, 1889, (i) which is to be construed as 
 one with the Settled Land Acts, 1882-1887, provides that any 
 building lease, and any agreement for granting building leases, 
 under the Settled Land Act, 1882, may contain an option, to be 
 exercised at any time within an agreed number of years not 
 exceeding ten, for the lessee to purchase the land leased at a 
 price fixed at the time of the making of the lease or agreement 
 for the lease, such price to jbe the best which, having regard to 
 the rent reserved, can reasonably be obtained, and to be either a 
 fixed sum of money, or such a sum of money as shall be equal to 
 a stated number of years' purchase of the highest rent reserved 
 by the lease or agreement, and that such price when received 
 shall for all purposes be capital money arising under the Settled 
 Land Act, 1882. 
 
 The powers of the tenant for life in respect of sale, exchange, 
 and leasing, are subject to a most important restriction. The 
 Settled Land Act, 1890 (2), provides that, Notwithstanding 
 anything contained in the Act of 1882, the principal mansion 
 house (if any) on any settled land, and the pleasure grounds and 
 
 (') 52 & 53 Vict. u. 36. 
 
 O 53 & 54 Vict. c. 69, s. 10, re- 
 
 pealing s. 15 of the Settled Land Act, 
 1882. 
 
Chap. XII.] SETTLEMENTS. 151 
 
 jparle, and lands (if any) usually occupied therewitli, shall not 
 be sold, exchanged, or leased by the tenant for life without the 
 consent of the trustees of the settlement or an order of the 
 Court. 
 
 " Where a house is usually occupied as a farmhouse, or where 
 the site of any house and the pleasure grounds and park and 
 lands (if any) usually occupied therewith do not together exceed 
 twenty-five acres in extent, the house is not to be deemed a 
 principal mansion house within the meaning of the section." 
 In one case leave to sell a manpion-house, &c., was granted 
 on the ground that, owing to ill-health and permanent resi- 
 dence elsewhere, the tenant for life was unable to reside in it, 
 and because, as the estate was in proximity to a large town, the 
 bulk of the estate could not be advantageously sold without the 
 mansion-house and adjoining lands (i). 
 
 The tenant for life must also give the trustees and their Notice of 
 solicitor a notice of his intention to sell. At the date of any ^^^^■ 
 such notice there must not be less than two trustees unless a 
 contrary intention is expressed by the settlement (^). But it 
 is provided by the Settled Land Act, 1884, that this notice may 
 be a general one, and that the trustees may waive notice, or 
 accept a notice shorter than a month's notice. 
 
 And here it will be desirable to notice that the definition of Trustees of 
 " the trustees of the settlement " which is given in the Act 
 must be carefully borne in mind (^). 
 
 It comprises the following persous : 
 
 (1) Trustees, with a power of sale of settled land : 
 
 (2) Trustees, with a power of consent to, or approval of, the 
 exercise of such a power of sale. 
 
 (3) The persons declared by the settlement to be trustees 
 thereof for purposes of the Act. 
 
 It is also provided by the Settled Land Act, 1890 (sect. 16), 
 that " where there are for the time being no trustees of the 
 settlement within the meaning and for the purposes of the Act 
 of 1882, then the following persons shall, for the purposes of 
 the Settled Land Acts, 1882 to 1890, be trustees of the settle- 
 ment; namely, 
 
 (i.) The persons (if any) who are for the time being under 
 the settlement trustees, with power of or upon trust 
 for sale of any other land comprised in the settlement 
 
 the settle- 
 meDt. 
 
 (•) Be Brown's Will, 27 Oh. D. 179. power must be a present power : 
 
 C) Settled Land Act, 1882, s. 45. Wheelwright v. Walker, 23 Ch. D. 
 
 (') 45 & 46 Vict. c. 38, s. 2 (8), 752 ; and see Constable v. Constable, 
 
 under which it was held that the 32 Oh. D. 238. 
 
152 REAL PROPEBTT. [Book I. 
 
 and subject to the same limitations as the land to be* 
 sold, or with power of consent to or approval of the 
 exercise of such a power of sale, or, if there be no snob 
 persons, then 
 (ii.) The persons (if any) who are for the time being under 
 the settlement trustees with future power of sale, or 
 under a future trust for sale of the land to be sold, or 
 with power of consent to or approval of the exercise of 
 such a future power of sale, and whether the power or 
 trust takes effect in all events or not." 
 It is also provided (sect. 17) that all the powers and provi- 
 sions of the Conveyancing Act, 1881 {post, p. 685), with refer- 
 ence to the appointment, discharge, and retirement of trustees, 
 are to apply to trustees for the purposes of the Settled Land 
 Acts, 1882 to 1890, whenever appointed, discharged, or retiring, 
 and whether appointed by the Court or by the settlement, or 
 under provisions contained in the settlement. 
 
 It must not be forgotten that, as nothing can be done in pur- 
 suance of the powers conferred by the Settled Land Acts, unless 
 there be in existence trustees of the settlement within the 
 scope of these definitions or descriptions, the first step that 
 must be taken in case there are no such trustees, is to apply to 
 the Court for their appointment. 
 
 The tenant for life must also, at the request of a trustee, 
 furnish him with such particulars and information as may be 
 required by him from time to time with reference to sales, ex- 
 changes, partitions or leases effected or in progress, or imme- 
 diately intended (i). 
 Powers of The powers of the tenant for life cannot be assigned, released, 
 tenan or ^^ forfeited, and do not pass to a person as being by operation of 
 law, or otherwise, assignee of the tenant for life, but remain still 
 exeroiseable by the tenant for life (f). And it is expressly pro- 
 vided that any contract not to exercise them, or any prohibition 
 or limitation of their exercise, is void. 
 
 The Settled Land Act, 1882, s. 30, contains a provision that 
 the rights of any person being an assignee for value of the 
 estate or interest of the tenant for life are not to be prejudiced. 
 The Settled Land Act, 1890 (s. 4), however, provides that — 
 
 " (1) Every instrument whereby a tenant for life, in considera- 
 tion of marriage or as part or by way of any family arrange- 
 ment, not being a security for payment of money advanced, 
 makes an assignment of or creates a charge upon his estate or 
 
 (') SetUed Land Act, 1884, s. 5. Q) SetUed Land Act, 1882, a. 50. 
 
Chap. XIL] SETTLEMENTS. 153 
 
 interest under the settlement is to be deemed one of the instru- 
 ments creating the settlement, and not an instrument vesting 
 in any person any right as assignee for value within the mean- 
 ing or operation of s. 50 of the Act of 1882." This provision is 
 to apply to every disposition before as well as after the passing 
 of the Act, unless inconsistent with the nature or terms of the 
 disposition. 
 
 In cases of conflict between the provisions of a settlement 
 and the provisions of the Act as to the powers of the tenant 
 for life, the provisions of the Act are to prevail ; and, accord- 
 ingly, notwithstanding anything there may be in a settlement, 
 no express power given to the trustees can be exercised wijthout 
 the cimsent of the tenant for life, or those persons who together 
 fill that character. 
 
 In exercising the powers given him by the Act, the tenant 
 for life must have regard to the interests of all parties entitled 
 under the settlement, and is deemed to have the duties and 
 liabilities of a trustee for those parties (i). 
 
 The tenant for life is, said Chitty, J. (2), to have regard to 
 the interests of other persons, and he is to be deemed to be a 
 trustee in the exercise of the powers for those persons. He is 
 not to exercise this power simply for his own benefit. The 
 tenant for life has the absolute right to sell, though it 
 may be suggested he is selling out of ill-will or caprice, or 
 because he does not like the remainderman ; because he desires to 
 be relieved from the trouble of attending to the management of 
 land, or from any other such object or with any such motive. 
 The object of the section (when read in connection with 
 sect. 54) is that the tenant for life must pursue his powers 
 according to the Act. He must sell for the best price, and if he 
 does not, and there is any corrupt or underhand bargain between 
 him and the purchaser, then neither is his sale good, nor does 
 the purchaser obtain a good title. 
 
 With regard to dealings between the tenant for life and the 
 estate, the Settled Land Act, 1890 (sect., 12), contains the follow- 
 ing important provision : — 
 
 " When a sale of settled land is to be made to the tenant for 
 life, or a purchase is to be made from him of land to be made 
 subject to the limitations of the settlement, or an exchange is 
 to be made with him of settled land for other land, or a parti- 
 tion is to be made with him of land an undivided share whereof 
 is subject to the limitations of the settlement, the trustees of 
 
 (1) Settled Land Act, 1882, s. 53. 
 
 (f) Cardigan v. Cunon-Howe, 30 Ch. D. 539, 540. 
 
154 
 
 EEAL PROPERTT. 
 
 [Book I. 
 
 Trust for 
 sale. 
 
 Tenant for 
 life. 
 
 the settlement shall stand in the place of and represent the 
 tenant for life, and shall, in addition to their powers as trustees, 
 have all the powers of the tenant for life in reference to nego- 
 tiating and completing the transaction." 
 
 Sect. 63 of the Settled Land Act, 1882, provides that lands 
 subject to a trust or direction for sale and for the application 
 of the moneys arising from the sale or the income thereof for 
 the benefit of any person or persons for life, or any other 
 limited period, and whether absolutely, or subject to any trust. 
 for accumulation of income, or to any other restriction, shall 
 be "settled land." The instrument under which the trust 
 arises is to be deemed to be a settlement, and the person or 
 persons beneficially entitled to the income is, or are, to be 
 deemed tenant for life. The trustees who have power to sell, 
 or consent to a sale, are, for the purposes of the Act, trustees 
 of the settlement. 
 
 The effect of this section has been very materially modified 
 by the Settled Land Act of 1884 (i), which provides that the 
 powers thereby conferred are not to be exercised except with 
 leave of the Court, and that any consent not required by the 
 terms of the settlement is not to be required by force of the 
 section. 
 
 Before the Settled Land Act, 1882, large though rather onerous 
 powers had been granted to limited owners for the improvement 
 of settled land by the Improvement of Land Act, 1864. These 
 powers are now extended by the Settled Land Acts, and rendered 
 much more favourable to the tenant for life, and although in 
 some cases it may still be desirable to employ the provisions of 
 the Improvement of Land Act, they are superseded by those of 
 the Settled Land Acts. 
 
 Questions have several times arisen as to who is tenant for 
 life. It has been decided that a man who is entitled to the 
 income subject to incumbrances is to be deemed tenant for life 
 though the estate is so heavily charged that he derives no 
 income from it (2). 
 
 On the other hand it has beea held in another case, that a 
 trust, although it be to last during the life of A., to apply the 
 rents and profits of an estate for the benefit of A. and of his wife 
 and his children, if any, does not constitute A., or A. and his 
 wife together, a tenant for life, or a person with the powers of 
 a tenant for life (^). 
 
 C) 47 & 48 Vict. c. 18, ss 6, 7. 
 (2) Re Jones, 26 Ch. Div. 736; 
 Cardigan v. Curzon-Howe, 40 Oh, D. 
 
 341. 
 
 (') In re Atkinson. 
 Bruce, 31 Ch. Div. 577. 
 
 Atkinson v. 
 
CuAP. XII.] SETTLEMENTS. 155 
 
 The ebtate of a tenant by the curtesy is to be deemed an 
 estate arising under a settlement made by his wife (}). 
 
 A married woman entitled to the income of land for her sepa- Expendi- 
 rate use is tenant for life even though she be restrained from trust" 
 anticipation. If, however, the lady be not entitled for her money. 
 separate use, the powers belong to her in conjunction with her 
 husband (f). 
 
 When the tenant for life is an infant the powers are to be 
 exercised by the trustees of the settlement or by such person as 
 the Court may appoint. "When he is a lunatic the powers are 
 to be exercised by his committee (^). 
 
 A very interesting question came recently before the Court 
 with reference to the power to expend trust money for the 
 preservation of settled property. Land and money were vested 
 in the trustees of a settlement for the benefit of the husband 
 and wife for their lives, and after their deaths for the children 
 of the marriage. Certain farm buildings on the estate were 
 BO much out of repair as to render the farm untenantable, and 
 the application was for leave to expend certain trust funds in 
 repairs and improvements (*). 
 
 It was pointed out by the Court that there were many de- 
 cisions, starting from a case decided by the Court of Appeal 
 in 1871, as from a corner-stone, in which the Court had held 
 that, where there was a power to purchase real estate, that 
 power might be well exercised in the erection of buildings on a 
 property already in settlement, as that was really equivalent to 
 a purchase of real estate (^). These cases, however, the judge 
 said had no application to the matter before the Court, as there 
 was no trust or power in the settlements enabling the trustees 
 or the tenant for life to purchase land or to dip into the capital 
 for the purposes of repairs. The Court, however, considered 
 that it had power under its " original jurisdiction " to authorise 
 the required expenditure, and the application was accordingly 
 allowed. 
 
 The following are some of the more important cases on the Cases on 
 Settled Land Acts -.—Mackenzies' Trusts, 23 Ch. D. 750 (Trustees' Settled 
 investments) ; WheelwrigJit v. Walker, 23 Ch. D. 752 (Notice to 
 trustees) ; Me Beck, 24 Ch. D. 608 (Costs), but see Cardigan v. 
 
 (1) 47 & 48 Vict. c. 18, s. 8. 512. 
 
 (2) Settled Land Act, 1882, s. 61, (») Be Leigh's Estate, L. E. 6 Ch. 
 Bub-ss. 2, 3, 6. 887, aad see Drake v. Trefusis, L.K. 
 
 (3) Sects. 61, 62. 10 Ch. 364, 
 (■") Conway v. Fenton, 40 Ch. D. 
 
156 MEAL PROPERTT. [Book I. 
 
 Cwzm-Eom, 40 Ch. D. 338, aflGid. 41 Ch. D. 375 ; Be Earl and 
 Webster, 24 Ch. D. 144 (Trust for sale) ; J)uke of Newcastle's Estate, 
 24 Oh. D. 129 (Exercise of powers, &c.) ; Be Chaytor, 26 Ch. D. 651 
 (Power of sale) ; Taylor v. Fonda, 25 Ch. D. 646 (Trnstees for 
 sale) ; Be Jones, 26 Ch. D. 736 (Tenant for life) ; Be Knatchhull, 
 29 Ch. D. 688 (Payment of charges) ; Be Houghton, 30 Ch. D. 
 102 (Improvements) ; Be Bivett-Carnac, 30 Ch. D. 136 (Title of 
 honour) ; Be Paget, 30 Ch. D. 161 (Tenant for life, forfeiture for 
 non-residence, and see Be Haynes, 37 Ch. D. 306) ; Cardigan v. 
 Curzon-Eowe, 30 Ch. D. 531 (Pendency of action) ; Be Clitheroe, 
 31 Ch. D. 135 (Tenant for life) ; Be Bidge. Eellard v. Moody, 
 
 31 Ch. D. 504 (Tenant for life— Waste) ; Constable v. Constable, 
 
 32 Ch. D. 233 (Trustee for sale); Be Sebright, 33 Ch. D. 429 
 (Tenant for life— Mortgage) ; Be Eotchkin, 36 Ch. D. 41 (Pay- 
 ment for improvements out of capital money) ; Be Lytton,\ 38 
 Ch. D. 20, 26 (Extra expenditure for improvements) ; Eatten v. 
 Bussell, 38 Ch. D. 334 (Eelative powers of tenant for life and 
 trustees of settlement) ; Be Tennant, 40 Ch. D. 594 (Investments) ; 
 Be Lord Stamford's Settled Estates, 43 Ch. D. 84 (Powers of tenant 
 for life, &c.) ; Be Newton's Settled Estates, W. N. (1890) 24 (Im- 
 provements). The provisions of the Settled Land Act, 1882, 
 have heen amended by the Housing of the Working Classes 
 Act (63 & 54 Vict. o. 70), as regards erection of buildings for 
 the working classes. 
 
( 157 ) 
 
 CHAPTER XIII. 
 
 Wills. 
 
 A will is defined by Mr. Jartnan as " an instniment by which Definition 
 a person makes a disposition of his property to take effect after 
 his decease," and which is in its own nature ambulatory and 
 revocable during his life. " It is this ambulatory or revocable 
 quality," Mr. Jarman goes on to say, " which forms the charac- 
 teristic of wills, for though a disposition by deed may postpone 
 the possession or enjoyment, or even the vesting until the death 
 of the disposing party, yet the postponement is in such a case 
 produced by the express terms and does not result from the 
 nature of the instrument " (}^. 
 
 A codicil, in the modern acceptation of the term, is " an Definition 
 addition made by the testator, and annexed to, and to be taken "^ codicil, 
 as part of, a testament being for its explanation or alteration 
 or to make some addition to, or else some subtraction from, the 
 former disposition of the testator " (2). A codicil is part of the 
 will, and the will with the codicil or codicils makes but one 
 testament. When real property is given by will, it is said to 
 be " devised ; " when personal property is so given, it is said to 
 be " bequeathed." 
 
 With regard to the form of a will, the law does not require Form of 
 that any particular form should be adopted, provided that it is ™'^'- 
 the intention of the deceased to make a " posthumous des- 
 tination of his property," and that the instrument should only 
 operate after his death, and if this appears to be the nature of 
 its contents, some contrary designation bestowed on it by the 
 maker will be disregarded. Thus, it has been held that a deed 
 poll or an indenture, a deed of gift, a bond, marriage settle- 
 ments, letters, drafts on bankers, the assignment of a bond by 
 indorsement, and promissory notes are testamentary disposi- 
 tions (^). It must, however, be borne in mind, that in such cases 
 
 (') Jarman on Wills, vol. i. 4tli ed. Be Blackburn, 43 Ch. D. 75, where it 
 
 p_ 16. was lield that the codicil had the 
 
 Q) Williams on Executors, 8th ed. effect of reiterating the will, 
 
 p. 8. The word "codicil '' is derived (^) See Milnes v. Foden, 15 P. D. 
 
 from codicillus the diminute of codex. 105 ; In the Goods of Slinn, 15 P. D. 
 
 See Justinian Instit. lib. ii. cap. 25 ; 156. 
 
158 REAL PMOPEBTT. [Book I. 
 
 the formalities required by the Wills Act as to execution and 
 attestation must be complied with (^). An infant cannot make 
 a will (see post, p. 961, as to who may make a will). 
 
 Early The early histoiy of wills may be told sufficiently for our 
 
 vvTur^ ° present purpose in a very few words : — 
 
 Prior to the statute passed in the 32nd year of the reign of 
 Henry 8, known as the Statute of Wills, there was no power, 
 unless in some few exceptional cases, to devise leal estate, but 
 this difficulty was evaded by the ingenious device of uses (ante, 
 p. 17), as the Court of Chancery enforced devises of uses. 
 When, however, the Statute of Uses was passed,. 27 Henry 8, 
 c. 10 (ante, p. 17), which turned all u.<es into legal estates, 
 real estate again became incapable of being devised. 
 
 This was remedied by 32 Henry 8, c. 1 (explained by 34 
 Henry 8, c. 6), which gave a complete power of devising 
 lands by socage service, but only a limited power of devising 
 land of knight tenure. The Act (ante, p. 12) which converted 
 nearly ?A\ lands into socage tenure (12 Car. 2, c. 24), was 
 followed by the Statute of Frauds (29 Car. 2, c. 3), which re- 
 quired that all devises and bequest of lands or tenements should 
 be attested and subscribed in the presence of the devisor by 
 three or four credible witnoses, and this formality is requisite 
 with regard to all wills of real estate made before the 1st of 
 January, 1838, unless re-executed, republished, or revived by 
 codicils made after that date. 
 
 The Wills The law with regard to all wills made on or after the 1st of 
 January, 1838, and all wills previously made but re-executed, 
 republished, or revived by codicils, made on or after that date, 
 is now governed by the Statute passed in the first year of the 
 present reign (1 Vict. o. 26), and as this Act has now been in 
 operation for more than half a century, the previous law is of 
 comparatively slight and steadily diminishing importance. 
 
 Requisite With regajd to the formalities now required in making a 
 
 "'""" '- will (see alsopo«i, p. 966). 
 
 The Wills Act (2) provides that: "No will shall be valid 
 unless it shall be in writing and executed in the following 
 manner : It shall be signed at the foot or end thereof by the 
 testator or by some other person in his presence and by his 
 direction, and such signature shall be made or acknowledged 
 by the testator, in the presence of two or more witnesses present 
 at the same time, and such witnesses shall attest and shall 
 
 (') Jarman on Wills, 4tli ed. p .18 ; collected. 
 Williaras on Executors, 8th ed. p. (^) 1 Vict. c. 26, s. 9. 
 
 106, et seq., where the authorities are 
 
 Act, 1 Vict. 
 c. 26. 
 
 formali- 
 ties. 
 
Chap. XIIL] 
 
 WILLS. 
 
 159 
 
 tion. 
 
 subscribe the will in tbe presence of the testator ; but no form 
 of attestation shall be necessary " : The Wills Act Amendment 
 Act, 1852 (15 & 16 Vict. c. 24), which was passed by Lord 
 St. Leonards, removes the diflRculty which, as Mr. Joshua 
 Williams says, the great cleverness of some judges and the 
 great carelessness of some testators had created, and explains 
 at considerable length and with much elaboration what the 
 meaning of "the foot or end thereof" is. The signature is Signature, 
 now effectual, although it does not follow immediately after the 
 end of the will, or though there may be a blank space between 
 it and the last word of the will, or though it is in the testi- 
 monium, or attestation, clause, or follows, is after, under, or 
 beside, the names of the witnesses, or on part of the will 
 whereon no clause or disposing part is above it, but it is not 
 operative to give effect to anytliing underneath or following 
 it (0- 
 
 Another section (15) of the Wills Act provides : " That if any Attesta- 
 person shall attest the execution of any will to whom or to 
 whose wife or husband any beneficial devise, legacy, estate, 
 interest, gift or appointment of, or affecting any real or personal 
 estate (other than and except charges and directions for the 
 payment of any debt or debts) shall be thereby given or made, 
 such devise, legacy, estate, interest, gift or appointment shall so 
 far only as concerns such person attesting the execution of 
 such will, or the wife or husband of such person, or any person 
 claiming under such person, or wife or husband, be utterly null 
 and void." 
 
 An important case on this section was decided in 1888. A 
 testatrix appointed a solicitor, and another person, executors 
 and trustees of her will. There was a clause in the will declaring 
 that any trustee of the will who should be a solicitor should be 
 entitled to charge for all business done in relation to the estate 
 as if he had been employed by the trustees. The solicitor in 
 question was one of the attesting witnesses to the will. The 
 Court of Appeal decided (affirming the decision of the Court 
 below) that the solicitor was not entitled to any profit costs 
 for business done by him in relation to the estate, for that the 
 right to make professional charges could only be claimed under 
 the will and was a beneficial interest under it, from claiming 
 which, he being an attesting witness, was precluded by the Wills 
 Act (2). 
 
 Solicitor 
 attesting 
 
 (') In the Goods of Pearn, 1 P. D. 
 70 ; In the Goods of Benjamin Hughes, 
 12 P. D. 107. 
 
 Q) In re Fodley, 40 Ch. D. 1 : ap- 
 proving Be Barber, 31 Ch. D. 065. 
 
160 SEAL PROPERTY. [Book I. 
 
 Wills of With regard to wills of personal estate made out of the 
 
 esta™"'' United Kingdom by British subjects, a statute, passed in 1861, 
 provides that every such will and other testamentary instru- 
 ment (whatever may be the domicile of the testator or person at 
 the time of making the will, or at the time of his or her death) 
 shall, as regards personal estate, be held to be well executed for 
 the purpose of being admitted in England and Ireland to pro- 
 bate, and in Scotland to confirmation, if the same be made ac- 
 cording to the forms required either, (1) by the law of the place 
 where the will was made, or, (2) by the law of the place where 
 the testator was domiciled when the will was made, or, (3) by 
 the laws then in force in that part of Her Majesty's dominions 
 where the testator had his domicile of origin (i). 
 Lapse. The failure of a devise or bequest by the death of the devisee 
 
 or legatee in the testator's lifetime is called a lapse (^). Two 
 exceptions are made by the Wills Act, viz. : — 
 
 (1) With regard to a devise of an estate tail : (2) with 
 regard to a devise of real or bequest of personal estate to a child- 
 or other issue of the testator. 
 These clauses provide that — 
 
 1. When real estate is devised for an estate tail or in quasi 
 entail (ante, p. 22) to a person who shall die in the lifetime of 
 the testator leaving issue inheritable under such entail living at 
 the testator's death, the devise shall not lapse, but shall take 
 effect as if the death of such person had happened immediately 
 after the death of the testator, unless a contrary intention shall 
 appear by the will (^). 
 
 2. That when any person being a child or other issue of the 
 testator, to whom any real or personal estate shall be devised or 
 bequeathed for any estate or interest not determinable at or 
 before the death of such person, shall die in the lifetime of the 
 
 / testator leaving issue, and any such issue of such person shall be 
 living at the time of the death of the testator, such devise or 
 bequest shall not lapse, but shall take effect as if the death of 
 such person had happened immediately after the death of the 
 testator, unless a contrary intention shall appear by the will. 
 Sect. 33. A curious case on the provisions of this section, in which the 
 
 (') 24 & 25 Vict. c. 114; Lord v. Furnivall, 17 Ch. D. 115; Be 
 
 Kmgsdowne'sAot; aee In the Ooods of Eensler, 19 Ch. D. 612. Sect. 33 
 
 Von Btiseclc, 6 P. D. 211 ; Bloxam V. does not apply to gifta under special 
 
 Favre, 8 P. D. 101 ; 9 P. D. 130. powers of appointment nor to gifts 
 
 C') And see Me Whorwood, 34 to classes. Bee notes to Elliott v. 
 
 Ch. D. 446 ; Valdez's Trusts, 40 Davenport, Tudor's Real Property 
 
 Cb. D. 159. Cases, 916, et seq. ; and see Jarman, 
 
 C) 1 Vict. c. 26, ss. 32, 33, Mager 4th ed. 338. 
 
CiiAP. XIIL] WILLS. 161 
 
 property passed as it were through a vicious circle, came before 
 the Court in 1881. A father, by his will, devised a freehold 
 house to a son, and his residuary estate to trustees in trust for 
 other persons. The son, who died in his father's lifetime leaving 
 issue living at his father's death, had left a will devising all his 
 real estate to his father. The Court decided that under this 
 section the son must be deemed to have survived the father, 
 and that accordingly the property passed to the son absolutely 
 under his father's will, and became subject to the son's will, 
 but that as by the will of the son the property was devised to 
 his father, the devise by the son failed, and the son's heir-at-law 
 was entitled to the property ('). 
 
 Another singular case on the same section came before the late Sect. 33. 
 Sir George Jessel in 1881, and raised a point which, as the judge 
 expressed it, had not been foreseen by the draftsman, or as we 
 generally say, the Legislature. The testator, who died in 1875, 
 had, by his will, dated in 1872, devised property to his daughter 
 in fee simple for her separate use. The daughter died in 1874, 
 leaving a child who was her heiress at law. The husband 
 claimed to be entitled to an estate as tenant by the curtesy 
 (ante, p. 30), and the Court decided in his favour, on the ground 
 that the effect of the section was as it were to postpone the 
 daughter's death, to put her death a day after the testator's 
 death, and that the seisin of her husband was not required on 
 the ground that impotentia excusat legem, and he could by no 
 industry attain seisin of the estate (^). 
 
 A will may be revoked — Revocation 
 
 1. By marriage either of a man or a woman (^). 
 
 2. By the burning, tearing, or otherwise destroying the same 
 by the testator or by some person in his presence and by his 
 direction with the intention of revoking it. 
 
 3. By another wUl or codicil duly executed. 
 
 4. By some writing declaring an intention to revoke the 
 same, and executed in the mannejr in which a will is herein- 
 before required to be executed. In the first, second, and 
 fourth cases it must be borne in mind that unless some testa- 
 mentary instrument be executed disposing of the property the 
 quondam testator will die intestate (*). 
 
 (') In re Tfensler, deceased. Jones pointed would not in default of such 
 
 V. Hensler, L. E. 19 Oh. Div. p. 612. appointment pass to liis or her heii-, 
 
 C) Eager v. Furnivall, 17 Ch. D. cnstomary heir, executor or admiuis- 
 
 215. trator, or the persona entitled as liis 
 
 (^) " Except a will made in exercise or her next of liin, under the Statute 
 
 of a power of appointment, when the of Distributions : '' 1 Vict. c. 26, s. 18. 
 real or personal estate thereby ap- (*) 1 Vict. c. 26, s. 20; and see 
 
 VOL. I. M 
 
162 
 
 BEAL PROPERTY. 
 
 [Book I. 
 
 Wills A will since the Wills Act is to be construed with refer- 
 
 the t sta™ ^'^'^^ ^° *^® ^^^^ estate and personal estate comprised in it, to 
 
 tor's death, speak and take effect as if it had heen executed immediately 
 
 before the death of the testator, unless a contrary intention shall 
 
 appear by the will (^). 
 
 The doctrine that a will speaks from the death of the testator 
 received a remarkable illustration in a case which came before 
 the Court of Appeal in 1877. A testator recited in his will 
 that his son was " now indebted" to him in respect of various 
 advances, and that he was desirous that his son should be 
 released from them, and that the securities held in respect of 
 them should be given to him. He then bequeathed to his son 
 all " the aforesaid several moneys with securities then in the 
 testator's custody relating thereto, and also released him from 
 all claims in respect of the aforesaid moneys, and all other 
 moneys due from him " to the testator. The testator afterwards 
 made a codicil by which he released the son from another 
 specified debt for moneys misappropriated by the son. The 
 Court decided that the will must be construed as speaking from 
 the death of the testator, and that the son was released from 
 the repayment of money advanced to him by the testator 
 between the date of his codicil and his death (2). 
 
 Prior to the Wills Act, words referring to the death of a 
 person without issue, e.g. " if he die without issue," " if he have 
 no issue," " in default of issue," unexplained by the context, 
 were generally construed to refer to a general indefinite failure 
 of issue, and thus to confer an estate tail in realty and an 
 absolute interest in personalty (3). The Wills Act provides (*) 
 that in any devise, or bequest of real or personal estate, the 
 words " die without issue," or " die without leaving issue," or 
 
 " Death 
 without 
 issue.' 
 
 Cheese v. Love-joy, 2 P. D. 251, post, 
 p. 927 ; Gardiner v. Courfhope, 12 
 P. D. U ; In the Goods of Maley, 12 
 P. D. 131 ; In the Goods of Gosling, 
 
 11 P. D. 79 ; In the Goods of Morton, 
 
 12 P. D. 141; McAra v. MoCay, 21 
 L. E Ir. 138 ; Mills v. Millward, 15 
 P. D. ^0. 
 
 Q) 1 Vict. (J. 26, B. 24. It is not 
 necessary that the contrary intention 
 should be expressed in the words of 
 the will, if it appears by a fair con- 
 Btruction to be the intention of the 
 tistator ; and see Be Wells' Trusts, 
 42 Ch. D. 646, and cases then referred 
 to. 
 
 (2) EvereU v. Everett, 7 Ch. Div. 
 428. 
 
 (') See for the exceptions to this 
 rule (which is now of comparatively 
 slight importance) and the cases 
 thereon: Jarman on Wills, 4th ed. 
 p. 497, et seq, 
 
 O 1 Vict. c. 26, s. 29. See on 
 this section: Morris v. Morris, 17 
 Beav. 198 ; Greenway v. Greenway, 
 2 D. F. & J. 128 ; Dawson v. Small, 
 L. E. 9 Ch. 651. See, as to the effect 
 of the words "die without leaving 
 any child surviving," Stephen v. 
 Cunningham, 39 Ch. I). 426 ; and as 
 to " die without leaving issue male," 
 Slattery y. Ball, 40 Oh. D. 11 ; as to 
 " die leaving lawful issue," Lewin v. 
 Killey, 13 App. 783 ; and see Convey- 
 ancing Act, 1882, 3. 10 {ante, p. 70). 
 
Chap. XIII.] WILLS. 163 
 
 " have no issue," or any other words, which may import either 
 a want or failure of issue of any person in his lifetime, or at 
 the time of his death, or an indefinite failure of his issue, shall 
 he construed to mean a want or failure of issue in the lifetime 
 or at the time of the death of such person, and not an indefinite 
 failure of his issue, unless a contrary intention shall appear by 
 the will, by reason of such person having a prior estate taU, or 
 of a preceding gift, being, without any implication arising 
 from such words, a limitation of an estate tail to such person or 
 issue, or otherwise : Provided that this Act shall not extend to 
 cases where such words as aforesaid import, if no issue described 
 in a preceding gift shall be bom, or, if there shall be no issue 
 who shall live to attain the age or otherwise answer the 
 description required for obtaining a vested interest by a 
 preceding gift to such issue. 
 
 Legacies are either general, specific, or demonstrative. Different 
 
 A legacy is general when it is so given as not to amount to a igg^ci^g 
 bequest of a particular thing or money of the testator distin- 
 guished from all others of the same kind, e.g., a legacy of £100, 
 or of a diamond ring. 
 
 A legacy is specific when it is a bequest of a specified part of Specific 
 the testator's personal estate which is so distinguished i^). egacy. 
 
 A specific devise or a specific bequest (for the word " specific '' 
 means exactly the same thing, whether it be applied to lands 
 or chattels, to heritable estates or leaseholds) is a devise or 
 bequest by a description which identifies a particular subject 
 then existing as intended to pass to the donee, e.g., " all the 
 horses which I have in my stable at the date of my death " (^). 
 
 " All my stock in the Midland Eailway Company " are specific 
 legacies, but a gift of all the residue after a part of it has been 
 given is not a specific legacy (^). 
 
 A specific legacy is in some respects better, in others worse 
 than a general legacy. The specific legacy is liable to fail by 
 " ademption," that is if the thing given be wholly or partially 
 destroyed, or if the testator parts with it ; but it does not abate 
 if the assets are insufficient. A general legacy, on the other 
 hand, is liable to abatement, but not to ademption, except where 
 a legacy to a child is considered to be satisfied by a subsequent 
 gift made by a parent or person in loco parentis. 
 
 (■) Williams on Executors, Stti ed. Jessel, in Bothamley v. Sherson, L. K. 
 
 p_ 1163. 20 Eq. 20i, aDd Broadbent v. Barrow, 
 
 (') GjZes V. ilfeZsora, L. E. 6 H. L. 24. 20 Ch. D. 676; and see same case, 
 
 (') The subject of specific legacies sub nom. Bobertson v. Broadbent, 8 
 
 will be found very fully discussed in App. Gas. 812, 815 ; aud see 31 Ch. D. 
 
 two judgments of the late Sir G. 113 ; Dresser v. Gray, 36 Ch. D, 205. 
 
 M 2 
 
164 
 
 EEAL PROPERTY. 
 
 [Book I. 
 
 Demon- 
 strative 
 legacy. 
 
 Cumula- 
 tive and 
 substitu- 
 tional 
 legacies. 
 
 In a recent case a testator heqneatlied " fifty shares in the 
 York Union Banking Company " to trustees, to be held upon 
 certain trusts, for the benefit of his wife and other persons. 
 At the date of the will the company was registered and incor- 
 porated as an unlimited company, under the Companies Acts, 
 and the testator was the holder of seventy shares in it, of the 
 nominal value of £100 each. Between the dates of his will 
 and his death the company was registered as a limited com- 
 pany under the same style, except that the word " limited " was 
 added, and each £100 share was converted into two shares of 
 the nominal value of £60, and 140 of these new shares were 
 allotted to the testator in substitution for his seventy shaies 
 of £100 each. . 
 
 The Court decided that the bequest was not specific but 
 general — that what the testator intended to give was so much 
 money as would buy fifty bhaves in the York Union Company 
 as an unlimited company, and that as it had become impossible 
 to determine the value the bequest failed Q). 
 
 A demonstrative lega,cy is a legacy of quantity in the nature 
 of a specific legacy, as of so much money, with reference to a 
 particular fund for payment, e.g. " a legacy of £50 to be paid out 
 of the money which I have at the bank, or a legacy of ten 
 lambs out of my flock." This legacy is so far general, that if 
 the fund which is indicated by the testator fail, the legatee is 
 still entitled to the legacy out of the general assets ; and so far 
 specific, that it will not be liable to abate with the general 
 legacies upon a deficiency of assets. It is accordingly regarded 
 as the best of the three classes of legacies. 
 
 Legacies are also treated as being either substitutional or 
 cumulative, i.e., where a testator has twice given a legacy to the 
 same person, the question is whether the one legacy is to be 
 treated as a mere repetition of the other, and therefore disre- 
 garded, or whether it is to be construed &s additional. 
 
 The law on this subject may be summarised as follows: — 
 When the same specific thing is bequeathed twice to the same 
 legatee in the same will and codicil he is entitled to only one 
 legacy. The rule is the same when two legacies of equal amount 
 are given in one and the same instrument ; but if the legacies 
 are of unequal amount tlie legatee gets both. When two legacies 
 are given simpUciter, i.e., witliout any expression of the motive of 
 . the gift to the same legatee by different instruments the pre- 
 sumption is that the gift is cumulative. If, however, the same 
 
 (') Be Gray. Dresser v. Gray, 36 Ch. D. 205. 
 
Chap. XIII.] WILLS. 165 
 
 motive is expressed aad the same sum given in both instru- 
 ments it is treated only as a repetition. Legacies are also either 
 vested or contingent. In the former case the legatee's interest 
 should he die before the time for payment is transmissible to his 
 executor or administrator. In the latter case his interest lapses, 
 e.g., a legacy payable to A. B. " to be paid or payable at 21 " is 
 vested. But a legacy payable " if the legatee attains 21 " is con- 
 tingent (1). 
 
 An executor is allowed one year from the testator's death "Execu- 
 to ascertain and settle his affairs. For this reason, interest on tor's year." 
 legacies is not allowed imtil after the expiration of the " exe- 
 cutor's year," unless where the legacy is regarded as given in 
 satisfaction of a debt, or where it is given to an infant by 
 a parent or a person in loco parentis (see post, p. 661), in both 
 which cases the Court allows interest from the testator's 
 death. 
 
 In a case where a testator after making his will had deposited 
 a long list of gifts with his brother, which he desired him to 
 attend to after his death, and subsequently made a codicil and 
 referred to one gift in the list, the Court decided that the whole 
 list must be incorporated with the will (^). 
 
 With regard to wills that come into operation after the 13th Charge of 
 of August, 1859 (3), Lord St. Leonards' Act provides that where fe'^'acies'"' 
 the testator shall have charged his real estate, or any specific 
 portion thereof, with the payment of his debts, or with the pay- 
 ment of any legacy or any specific sum of money, and shall have 
 devised the estate so charged to any trustee or trustees for the 
 whole of his estate or interest therein, and shall not have made 
 any express provision for the raising of such debt, legacy, or 
 sum of money out of such estate, such trustee may, notwith- 
 standing any trusts actually declared by the testator, raise such 
 debts or legacy by sale or mortgage of the lands devised to 
 them (*). 
 
 But if any testator, who shall have created such a charge 
 shall not have devised the hereditaments charged in such terms 
 as that his whole estate and interest therein shall become vested 
 
 (') See further on the subject of Heatheote, 6 P. D. 31. 
 
 legacies : Williams on Executors, C) 22 & 23 Vict. c. 35, s. 13. 
 
 8th ed. p. 1055, et seq. ; Hawkins on (*) In re Tanqueray, Willaume 
 
 Wills, p. 278, et seq. : Theobald on and Landon, 20 Cli. Div. 465. And 
 
 Wills, 3rd ed. p. 147, et seq. see Be Whistler, 35 Ch. D. 5(51, In re 
 
 (^) In the Goods of James Daniell, De Burgh Lawson, 41 Ch. D. 568. 
 
 8 P. U. 14 ; and see Stookil r. Pun- And as to administrator, Claif v. 
 
 elwn, 6 P. D. 9; In the Goods of Tetley, 16 Ch. D. 3. 
 
166 
 
 REAL PROPERTY. 
 
 [Book I. 
 
 Incorpora- 
 tion. 
 
 Rules of 
 construc- 
 tion and 
 rules of 
 law. 
 
 in any trustee or trustees, the executor or executors for the time 
 being named in his will (if any) shall have the same power of 
 raising the same moneys as is before vested in the trustees ; and 
 such power shall from time to time devolve to the person or 
 persons (if any) in whom the executorship shall for the time 
 being be vested. 
 
 A question which is of great importance with regard to the 
 construction and proof of wills is that of incorporation. In a 
 subsequent portion of this work the question of incorporation 
 shall be further considered with regard to the subject of 
 Probate (^post, p. 969), i.e. for the purpose of determining what 
 document or documents constitute the will of the testator. In 
 our present chapter it will suffice to 8ay that the result of the 
 decisions as to the incorporation of documents, for the purpose 
 of Probate, may be summed up as follows : — 
 
 1. The testamentary instrument must clearly describe the 
 document proposed to be incorporated, but the document may be 
 identified by parol. 
 
 2. The testamentary instrument must describe the document 
 as already existing — if defective in this, the fact cannot be 
 supplied by parol. 
 
 3. When duly incorporated, the paper, however informal, 
 becomes equally valid with the instrument with which it is 
 incorporated, but it must be an operative instrument (i). 
 
 It must, however, be borne in mind on the subject of construc- 
 tion of wills that any document in existence when the will is 
 executed and sufficiently described to enable it to be identified, 
 may be incorporated with the will and may be referred to for 
 purposes of construction, whether incorporated in the probate or 
 not (2). 
 
 The Court only grants probate of the will of the deceased, 
 and it does not necessarily follow that probate will be granted 
 of all the writing on a testamentary paper ('). So, too, part of a 
 will may be established and part held not to be entitled to 
 probate (*). 
 
 Attention must here be directed to the important difference 
 between rules of construction and rules of law. The rules of 
 law act independently of intention, e.g. the rule in Shelley's 
 Case. 
 
 Eules of construction, on the other hand, may, we are told 
 
 (') Browne on Probate, pp. 120, 
 121. 
 
 (^) 'Theobald on Wills, 3rd ed. 
 p. 60, where the authorities are 
 
 collected. 
 
 (") Nathan V.Morse, 3 PhlUim. 529. 
 
 (*) BilUnghuret v. Viclcers, 1 
 PLillim. 180. 
 
CiiAP. XIIL] WILLS. 167 
 
 by a learned author Q-), always be reduced to the following 
 form. Certain words or expressions, which may mean either 
 X or y, shall, prima facie, be tat en to mean x. They are all 
 subject to intention, but some rules are stronger than others 
 •and require a clearer expression of intention. 
 
 The law on this subject was recently summed up by the 
 Court of Appeal as follows :-^All rules of construction are 
 simply rules to be applied where there is no definite expression 
 of intention in the instrument. If there is, you do not want 
 any rule of construction. Even whea it has been laid down as 
 a rule that certain words have a particular meaning, still, if 
 there is any expression in the will which shows that the 
 testator intended to use them in a different sense, we must 
 give them the meaning which he has shown that he intended 
 them to bear. Eules of construction are only intended to aid 
 us where there is ambiguity, and not to enable us to get rid 
 of the express words of the testator if expressed in clear 
 language (^). 
 
 In construing a will, as Mr. Jarman tells us, the intention Eule of 
 of the testator has been spoken of as " the law of the instru- consti-uc- 
 ment," " the pole star," " the sovereign guide," but it must be 
 borne in mind that this rule is, as the same authority warns 
 us, always subject to the great limitation that the intention 
 must be collected upon grounds of a judicial nature as distinct 
 from arbitrary conjecture (3). 
 
 The modern view of the Courts on the subject of construc- 
 tion was stated by the Lord Chancellor (who expressed his 
 opinion that it was in accordance with reason and common 
 sense) in a very recent case in the House of Lords, as follows : — 
 " Whatever the instrument, it must receive a construction 
 according to the plain meaning of the words and sentences 
 therein contained. But you must look at the whole instrument, 
 and, inasmuch, as there may be inaccuracy and inconsistency, 
 you must, if you can, ascertain what is the meaning of the 
 instrument taken as a whole in order to give effect, if it be 
 possible to do so, to the intention of the framer of it " (*). 
 
 " I take it," said a great judge (^), " that no rule of construc- 
 tion is better settled than that, when two meanings are open to 
 a judge, and the one is reasonable and sensible, and the other, 
 
 (') Hawkins on Wills, Preface. 301. 
 
 (2) Ter Cotton, L.J., in In ie (=) Jessel, M.K., in Selby v. Whit- 
 Hamlet. Steplien v. CunningMm, 39 taker, 6 Ch. Div. 249 ; and see Re 
 Cii. D. 426. Bright Smith, 81 Ch. D. 314 ; and as 
 
 (') Jarman on Wills, vol. ii. p. 838. to the "province of authorities" : Ee 
 
 (^) Leader v, Duffey, 13 App. Cas. Jodrell, 44 Ch. D. 590. 
 
168 
 
 BEAL PROPERTY. 
 
 [Book I. 
 
 Intention 
 of testator. 
 
 Eules of 
 construc- 
 tion. 
 
 though not absolutely unreasonable in the sense of supposing 
 that the testator must have been a lunatic, yet is extremely 
 unlikely, he ought to select that meaning which is consonant 
 to ordinary reason, and not liable to the imputation of excessive 
 caprice." 
 
 The Court in its anxiety to carry out the intention of the 
 testator will in proper cases even go so far as to supply, reject, 
 transpose and change words, w^hen the intention is clear on the 
 face of the will, and when it is also clear what words ought to 
 be supplied, rejected, or transposed. 
 
 The extent to which the Court will go in cases of this descrip- 
 tion may be illustrated by the leading case of Abbott v. Middle- 
 ton (y), decided by the House of Lords, which has been charac- 
 terised as probably marking the extreme limit to which the 
 Court will go. In that case the gift was of an annuity of £2000 
 to the testator's wife for life, and then to his son for life, and on 
 his demise the principal sum was to become the property of any 
 child or children he might leave, and in such sums as his said 
 son should will and direct ; but " in case of my son dying before 
 his mother, then the principal sum to be divided between the 
 children of his daughters" B. C. and D. The son died, leaving a 
 child. A majority of the House of Lords supplied the words 
 " without children " after the words " in case of my son dying," 
 the effect of which was that the property passed to the son's 
 child. 
 
 The following are some of the principal rules for the 
 construction of wills, stated as the result of the authorities by 
 Mr. Jarman (^) :— 
 
 1. Technical words are not necessary to give effect to any 
 species of disposition in a will. The law proceeds on the priaciple 
 that the testator may not have had any professional assistance. 
 
 2. A will speaks, for some purposes, from the period of exe- 
 cution, and for others, from the death of the testator ; but never 
 operates until the latter period. 
 
 3. All the parts of a will are to be construed in relation to 
 each other, and so as, if possible, to form one consistent whole ; 
 if however it is impossible to reconcile the several parts, the 
 latter must prevail. 
 
 4. The Court will look at tlie circumstances under which the 
 testator makes his will — as the state of his property, of his 
 family, and the like. It is tlie duty of the judge, as was said 
 in one case, to put "himself in the testator's arm-chair," and 
 
 0) 7 H. L. Cas. 68. 
 
 (') Jarman on Wills, 4th ed. vol. ii. p. 840. 
 
Chap. XIII.] WILLS. 169 
 
 consider the circumstances by which the testator was sur- Rules of 
 rounded when he made his will, and thus obtain assistance as to construe- 
 the intention Q). 
 
 5. The rules of construction cannot be strained to bring a 
 devise or bequest within the rules of law ; but it seems that 
 where the will admits of two constructions, that is to be 
 preferred which will render the devise or bequest valid. 
 
 6. Words are, in general, to be taken in their ordinary and 
 grammatical sense, unless a clear intention to use them in 
 another signification can be collected, and that other signifi- 
 cation can be ascertained ; and of two modes of construction, that 
 one is to be preferred which will prevent a total intestacy. 
 
 7. Where a testator uses technical words he is presumed to 
 employ them in their legal sense, unless the context clearly 
 indicates the contrary. 
 
 8. Words occurring more than once in a will shall be 
 presumed to be used always in the same sense, unless a 
 contrary intention appear by the context. And on the same 
 principle where a testator uses an additional word or phrase, he 
 must be presumed to have an additional meaning. 
 
 9. A clearly vested gift is not to be divested or defeated 
 except by words equally clear. 
 
 It is of course impossible to attempt to notice, even in the 
 most summary way, the innumerable questions that have arisen 
 upon the construction of wills. The reader who desires further 
 information may be leferred to the special standard works upon 
 the subject, Jarman on Wills, Hawkins on the Construction 
 of Wills, Theobald on Wills, where, with the help of the decided 
 cases, he will find abundant information on this most difficult 
 subject. Attention must, however, be directed to a few rules 
 which are of such primary importance that we make no apology 
 for noticing them. 
 
 A legacy given to a person at a future time, e.g. at twenty- 
 one, or "if" "when" "in case" or "provided" he shall attain 
 twenty-one years of age, is a contingent legacy (2), i.e., contin- 
 gent on his attaining twenty-one, but when a legacy is given 
 and there is a superadded direction that it is "to be paid " or 
 " payable " when he shall attain twenty-one years, i.e., when 
 the gift and direction to pay are distinct, this is a vested legacy. 
 When, however, there is no gift, but in the direction to pay at a 
 future time the vesting of the legacy is postponed for that time. 
 
 (') Soyes v. Coolc, 14 Ch. D. 53 ; p. 1030, et seq. 
 Bee as to patent and latent ambigui- (^) Williams on Executors, Sth ed. 
 
 ties : Taylor on Evidence, 8th ed. p. 1236, et seq. 
 
170 HEAL PROPERTY. [Book I. 
 
 To this rule, however, there are two exceptions, namely (1) when 
 the interest of the fund is given in the meantime. In a well- 
 known case on Ihe subject. Sir George Jessel said, " Being 
 opposed to the frittering away of general rules, and thinking 
 that such rules, so long as they remain rules, ought to be fol- 
 lowed, I hold that a gift contained in a direction to pay and 
 divide amongst a class at a specific age, followed by a direction 
 to apply the whole income for maintenance in the meantime, is 
 vested, and not the less so because there is a discretion conferred 
 on the trustees to apply less than the whole income for that 
 purpose " ('). 
 
 It was decided, however, by the same judge in a subsequent 
 case (^), that where the gift is of an entire fund payable to a 
 class of persons equally on their attaining a certain age, a 
 direction to apply the income of the whole fund in the mean- 
 time for their maintenance does not create a vested interest in 
 a member of the class who does not attain that age. 
 
 (2) A second exception arises, when the payment of the legacy 
 is postponed as it is said " for the convenience of the estate " as 
 when the future gift is only postponed to let in a prior interest, 
 e.g., if there be a gift to A. for life with remainder to B. the 
 bequest to B. vests at once (^). 
 Gift to The following rule is also of great importance : — " It is,'' 
 
 children. gg^j,j Lord Selbome, in Borin v. Darin (*), "perfectly well 
 established as the law now stands, that the word ' children ' 
 in a will means legitimate children, unless, when the facts are 
 ascertained and applied to the words of the will, some re- 
 pugnancy or inconsistency (and not merely some violation of a 
 moral obligation or of a probable intention) would result from 
 so interpreting them." 
 Charge of Another rule, which was described by the late Sir George 
 legacies. Jessel as one thoroughly well established, having been acted 
 on by the Court of Chancery for 200 years, and confi.rmed by 
 a decision ot the House of Lords, may here be noticed. It is 
 that if a testator gives legacies generally, and then gives the 
 residue of the real and personal estate in one mass, or as it 
 was expressed by another judge, with considerable vigour of 
 
 (') Fox V, Fox. L. E. 19 Eq. 286. Ee HaseUine, 31 Ch. D. 511 ; and 
 
 (') In re Farlier. Barker v. Barlcer, see Be Horner, 37 Ch. D. 695, where 
 
 16 Ch. D. 44. the previous oases, including the 
 
 (=) Hanson v. Graham, 6 Vesey, celebrated decision in Occleston v. 
 
 239; and see Williams on Executors, FulMove, L. E, 9 Ch. 147, are re- 
 
 Sth ed. p., 1240, for other cases. viewed; see as to a gift to an ille- 
 
 (') L. R. 7 H. L. 568, 577 ; and gitimato niece : Brown v. Brown, 58 
 
 Bce Hill v. Crook, L. K. 6 H. L. 265 ; L. J. Ch. 420. 
 
Chap. XIIL] WILLS. 171 
 
 language not unaccompanied by some confusion of metaphor, 
 " bound up, blended, tied togetber," the effect is that legacies 
 must be considered as charged upon the entirety, the residuary 
 real estate as well as the personalty Q). 
 
 It must, however, be borne in mind, as laid down by the 
 House of Lords (2) " that very little assistance can be derived in 
 the construction of wills from authorities. A certain amount 
 of principle is established, and certain settled and fixed rales of 
 construction are laid down, but they are fixed subject to a very 
 important qualification with regard to intention." 
 
 A few practical rules with regard to the making and altering Rules as to 
 of wills may be here usefully summarized. All attempts to making and 
 alter the effect of a will or testamentary paper by interlineation ^\\\^_ 
 or obliteration are dangerous, and should be made with great 
 caution, and if the proposed alterations relate to any except 
 the simplest matters, it is generally safer to prepare a new 
 document. 
 
 A valuable series of suggestions to persons taking instructions Instruc- 
 for wills, concerning the inquiries which they ought to make '"°°^ *^°'^ 
 with relation (1) to the subject, and (2) to the objects of 
 testamentary dispositions, will be found in the Appendix to 
 Jarman on Wills, where it is pointed out that to a want of 
 complete and accurate information as to the consequences of 
 their proposed schemes, must be ascribed many of the absurd 
 and inconvenient provisions introduced into testamentary gifts ; 
 to say nothing of the obscurities and inconsistencies which 
 frequently throw an impenetrable cloud over the testator's real 
 intentions. It must of course be borne in mind, as pointed 
 out by Mr. Jarman, that the nature of the inquiries which 
 ought to be made in each case must be greatly regulated by 
 the situation in life and other circumstances of the testator (^). 
 The dangers incident to a testator being his own will-maker 
 have passed into a proverb, and this applies with equal, if not 
 greater force to professional men, " who having acquired repute 
 by framing or advising on the wills of others, are advised 
 against the folly of jeopardizing it by making their own " (*). 
 Finally, all who have disposable property are strongly recom- 
 mended " to settle their affairs at leisure and in health, while 
 
 (') Ee Brooke, 3 Ch. D. 630, fol- (*) A fact -which has been made 
 
 lowing Greville v. Browne, 7 H. L. C. the subject of frequent and sarcastic 
 
 689 ; and see Bray v. Stevens, 12 comment, is how often the wills of 
 
 Ch. D. 162. eminent lawyers have been made the 
 
 (^) Singleton v. Tomlinson, 3 App. subject of legal proceedings. See, for 
 
 Cas. 404-423. a great variety of instances, Hayes and 
 
 (^) Jarman on Wills, 4th ed, JarmanonWilla, 'Jthed.p. 101,where 
 
 vol. ii. p. 23y, 848. a long series of illustrious names will 
 
172 SEAL PS OPES TY. [Book I. 
 
 there is yet a Bound mind in a sound body, that so they 
 may die, not only testate, but advisedly, justly, and wisely 
 testate " (^). 
 
 Duties on Wills— Letters or Administration, Settlements, &c. 
 It will here be desirable to point out that on the death of 
 any person whether testate or intestate, his property, of whatever 
 nature it may be, becomes primarily liable to the payment of 
 certain duties to the State (^). 
 Death The " death duties " to which property is liable are — 
 
 , duties. ^^-j Probate or administration duty. This payment is now 
 
 made under the Customs and Inland Eevenue Act, 1881 
 (44 & 45 Yict. c. 12), on the affidavit of value for probate, and 
 letters of administration and of " inventories" in Scotland. 
 
 (2) Legacy Duty. Governed by 55 Geo. 3, c. 184, as altered 
 by the Customs and Inland Eevenue Act, 1881 (^). 
 
 (3) Succession Duty (16 & 17 Vict. c. 51 and 51 Vict. c. 8, 
 ss. 21 and 22). 
 
 (4) Account Duty (*). 
 
 (5) Estate Duty introduced by the Customs and Inland 
 Eevenue Act, 1889 (52 Vict. c. 7, ss. 5 and 6). 
 
 Where the value of the personal estate is under £100 no 
 
 legacy duty is payable (^), and where the personal estate without 
 
 any deduction for debts or funeral expenses does not exceed £300, 
 
 the probate duty is £1 10«. (^), which is to be deemed to be in 
 
 full satisfaction of any claim to legacy duty or succession duty 
 
 in respect of the estate or effects to which such affidavit or 
 
 inventory relates. 
 
 be found, beginuing with that of a Hansou'a Probate, Legacy and Suc- 
 
 leamed Serjeant whose will was so cession, &c., Duties, 
 
 singularly confused tliat, but for the {') By the Customs and Inland 
 
 respect due to him personally, it Eevenue Act, 1889 (52 Vict. o. 7, 
 
 might not unreasonably have been s. 14) (which see), it is provided 
 
 held void for its uncertainty; and that liability to legacy and succes- 
 
 including the names of Sir Samuel sion duty is to cease after a specified 
 
 Bomilly, Holt, O.J., Eyre, C.J., Mr. period. 
 
 Justice Vaughan. Last, though assur- (*) The account duty (44 Vict. c. 12, 
 
 edly not least, may be mentioned the ss. 38 and 39) resembles the probate 
 
 names of the very learned Lord duty, and like it is confined to per- 
 
 Chancellors Lord Westbury and Lord sonal or movable property, and is 
 
 St. Leonards, ; see Bethell v. Abra- imposed on property taken as a 
 
 ham, 17 Eq. 24 ; Sugden v. Lord St. donatio mortis causa, or other gift 
 
 Leonards, 1 P. D. 154, 250 (post, which shall not have been bond fide 
 
 p. 978). The will of a celebrated con- made twelve months before the death 
 
 veyancer was set aside for uncertainty, of the deceased. On property passing 
 
 and a Chancery Master directed an by survivorship, or under any volun- 
 
 investment after his decease in his tary settlement where a life interest 
 
 own name. is reserved to the settlor, leaseholds 
 
 (') Hayes and Jarman, 9th ed. are liable to account duty, but not 
 
 p, 102. freeholds or copyholds. 
 
 (') See as to history of legislation (') 43 Vict. c. 14, s. 13. 
 
 on this subject, the introduction to (") 44 Vict. c. 12, s. 36. 
 
Chap. XIIL] WILLS. 173 
 
 The Customs and Inland Eevenue Act, 1881, provides that 
 in respect of any legacy, residue, or share of residue, payable 
 out of or consisting of any estate or effects, where duty has 
 been paid on the affidavit or inventory, or account, the one per 
 cent, legacy or succession duty shall not be payable (44 Vict, 
 c. 12, s. 41). 
 
 The effect of this is that personal estate passing to children 
 of the deceased and their descendants, or to or for the benefit 
 of the father or mother or any lineal ancestor of the deceased, is 
 exempt from legacy or successi<m duty, if probate or adminis- 
 tration duty has already been paid under the Act of 1881, but 
 not otherwise. 
 
 The liability of legacies to duty has been made the subject 
 of consideration in several recent cases. Legacies of " a clear 
 annuity " (^), and of " clear sums " were held to be free of legacy 
 duty (^), but legacies of full salaries to clerks and workmen 
 were held not to be free {^). 
 
 It was held that a nomination by will for the benefit of the 
 customs and annuity fund was not a legacy, and accordingly not 
 liable to legacy duty, but was held lia,ble to succession duty (*). 
 
 A legacy for masses for the repose of the testator's soul was 
 held not to be exempt from legacy duty (f). 
 
 It was formerly not unusual to avoid payment of legacy 
 duty by leaving legacies of nineteen guineas. Sect. 42 of the 
 Act of 1881, however, now provides that "every pecuniary 
 legacy or residue, or share, of residue, under the will, or the 
 intestacy of a person dying on or after the 1st of June, 1881, 
 although not of an amount or value of £20, shall be chargeable 
 with duty." 
 
 The Succession Daty Act, 1853, for the first time imposed a 
 death duty on succession to real estate. This duty varies 
 according to the degree of relationship in which the person 
 succeeding to the property stands to the person to whom he 
 succeeds. The Act provides the following definitions of the 
 terms " succession," " successor," and " predecessor." 
 
 Every past or future disposition of property whereby any 
 person becomes entitled to property on the death of any person 
 dying after the commencement of the Act, and every devolution 
 by law of any beneficial interest in property or income upon the 
 death of a person dying after that time, is to be deemed to 
 
 (1) Nelson Y. BoUns, 58 L. T. 282. (0 See Attorney General v Ahdy, 
 
 (') lie Currie, W. N. (1888) 154. 1 H & 0. 266 
 
 (') Marcus v. Marcus, 57 L. T. C) Perry v. Turney, 21 L. R. Ir. 
 
 407. 480. 
 
174 
 
 HEAL PROPERTY. 
 
 [Book I. 
 
 Succession 
 duty. 
 
 Estate 
 duty. 
 
 confer on the person entitled, by reason of such disposition or 
 devolution, a " succession." The term " successor " is to denote 
 the person so entitled. The term " predecessor " is to denote 
 the person from whom the interest is derived. This, of coui'se, 
 included personal estate passing under settlement. 
 
 The Act also provides (inter alia) that the beneficial interest 
 accruing to a joint-tenant by survivorship is to be deemed a 
 " succession." 
 
 Any person exercising a general power of appointment, is to 
 be deemed to be entitled to the property appointed as a succes- 
 sion, derived from the donor of the power ; and any person 
 taking by exercise of a limited power of appointment, to be 
 deemed to take the same as a succession, derived from the person 
 creating the power (see, as to Powers, post, p. 176). 
 
 The increase of benefi.t accruing to any person iipon the 
 extinction of an annual charge, by death of the life tenant of 
 tlie charge, is to be deemed a succession. 
 
 The rate of succession duty payable under the Act of 1853 
 was increased by the Customs and Inland Revenue Act of 1888 
 which also introduced changes as to the mode in which the duty 
 was payable, and in some other respects (^). 
 
 By the Customs and Inland Eevenue Act, 1889 (^), purchasers 
 for value and mortgagees are exempted from liability after the 
 time specified by its 12th section. 
 
 The " estate duty,'' an additional duty payable in respect of 
 personal estate and succession to real and personal property 
 exceeding £10,000, was introduced by the Act of 1889 (3). 
 
 Before taking leave of the subject of wills the attention of 
 the reader may be directed to the essential distinction between 
 a deed and a will. 
 
 " The distinction between a deed and a will," said Vice- 
 Chancellor Bacon, " is a very palpable one. A deed is a con- 
 tract by which the owner of property gives a certain destination 
 to it then and thenceforth for ever, and he parts with aU his 
 power over it. A will is an instrument which is not to take 
 efl'ect till the death of the testator " (f). 
 
 (') See the Customs and Inland 
 Eevenue Act, 1888 (51 Vict, c, 8), 
 ss. 21, 22. 
 
 Q) The Customs and Inland Eeve- 
 nue Act, 1 889 (52 Vict. c. 7), s. 10, e( seq. 
 
 (0 52 Vict. c. 7, 8. 5. The reader 
 ■who desires further information on 
 the subject of the death duties is 
 referred to Mr. Hanson's works on 
 
 these subjects ; Mr. Gosset's Practical 
 Guide, (fee, and a valuable synoptical 
 table on the English death duties by 
 Mr. E. Harris, of the Legacy and 
 Succession Duty Department, Somer- 
 set House. 
 
 (') Per Vice - Chancellor Bacon: 
 Olivant v. Wright, 9 Ch. D. 646, 650. 
 
( 1^5 ) 
 
 CHAPTEE XIV. 
 
 Powers. 
 
 Powers may be descrilicd generally as authorities to dispose Definition 
 of or deal with property renl or personal, or to nominate others " '"' ''' 
 so to do, such authorities being either reserved by the owners 
 of property to themselves or given to others, with or without 
 an estate or interest in the subject-matter on which the power 
 is to operate (^). A power of appointment is a power of 
 disposition given to a pert-on over property not his own, by 
 some one who directs the mode in which that power shall be 
 exercised by a particular instrument (^). 
 
 Powers when considered with reference to their origin are Diff«rent 
 either (1) Common Law Powers; (2) Equitable Powers; or „"^ei.s 
 (3j, such as derive their efficacy from the* Statute of Uses. A 
 common law power, for example, a devise by a testator that his 
 executors should sell his land, enables the donees of the power, 
 who themselves take no estate, to pass the legal estate to the 
 purchaser. Again, Lord St. Leonards tells us : "A power 
 given by a will or by an Act of Parliament to sell an estate is 
 a common law authority. The estate passes by force of the 
 will, or Act of Parliament, and the person who executes the 
 power merely nominates the person to take the estate " (^). 
 Equitable powers arise where the legal interest is properly 
 vested in one or more, but a power of disposing of the beneficial 
 interest is in some other person. 
 
 Powers operating under the Statute of Uses are powers of 
 revoking existing, or declaring future uses vested in some person 
 named for that purpose in the deed by which the uses to be 
 affected by the operation of the power are created (''). An 
 instance of this would be if an estate were conveyed by a deed 
 dated 18G0 to A. B. and his heirs to the use of C. D. for life, 
 with remainder to such uses as E. F. should appoint, and in 
 
 (') Watson's Compendium of {') Sugden on Powers, p. 19G, 8th 
 
 Equity, 813. edition. 
 
 (') Per Jcssel, M.E., in Fremc. v. (*) Farwell on Powers, pp. 1-3. 
 Olemenl, 18 Cli. D. i'M. 
 
176 
 
 REAL PROPERTT. 
 
 [Book I. 
 
 Different 
 classes of 
 powers. 
 
 default of appomtment to the use of C. D. and his heirs. Sup- 
 pose now that E. F. should by deed in 1880 appoint the estate 
 to G. H. In that case the appointment effected hy the deed of 
 1880 would take effect just atj if the grant to G. H. had been 
 inserted in the deed of 1860. 
 
 Powers when considered with reference to the persons by 
 whom they are to be exercised, are of three classes. These 
 are : — 
 
 1. A power simply collateral, i.e. a power given to a person 
 who has no interest whatever in the property over which the 
 power is given, e.g. where executors have a power to sell land. 
 
 2. A power in gross, i.e. a power given to a person who 
 has an interest in the property over which the power extends; 
 but such an interest as cannot be affected by the exercise of the 
 power. The most familiar instance is that of a tenant for life 
 with a power of appointment after his death. 
 
 3. A power appendant or appurtenant, i.e. a power exer- 
 cisable by a person who has an interest in the property, which 
 interest is capable of being affected, diminished, or disposed of 
 to some extent by the exercise of the power, e.g. power of a 
 tenant for life to grant leases Q). 
 
 Powers are also divided into " general " and " special " ; or, as 
 they are sometimes called, " invested " or " particular " powers. 
 A power is general (f) when there is no restriction as to the per- 
 sons in favour of whom, or the purposes for which, the power 
 may be exercised. It is special or particular where it is exercis- 
 able only in favour of some particular person or persons, or for 
 some specified purpose. Thus a power to appoint to whom the 
 donee pleases is a general power. A power to appoint among 
 the children of a particular person is a special power (^). 
 
 When a person possesses a general power he is regarded as 
 in the position of an absolute owner, and with reference to the 
 rule against perpetuities time is reckoned from the date of the 
 instrument executing the powers. In the case of a special 
 power on the other hand, the rule against perpetuities applies 
 
 (') Tudor's Eeal Property, p. 377, 
 3rd ed., following the classification 
 given byChief BaronHale, in Edwards 
 V. Slater. Ttie division of power is 
 sometimes made as follows, viz. : — 
 
 Powers are either 1, Powers simply 
 Collateral ; or 2,.Powers not simply 
 collateral; and powers not simply 
 collateral are sul>-divided into, first, 
 powers appendant and annexed to 
 the estate; secondly, powers in gross: 
 
 Tudor's Eeal Property Cases, vM 
 supra. 
 
 C) A general devise or bequest 
 operates as an execution of a general 
 power, unless "contrary" intention 
 appears : 1 Vict. c. 26. s. 27 ; see as 
 to effect of codicil, Me Blackburn, 43 
 Ch. D. 75. 
 
 C) Sugden on Powers, p. 394; 
 Farwell on Powers, p. 7. 
 
Chap. XIV.] 
 
 POWERS. 
 
 Ill 
 
 from the date of the instrument creating the powers, and the 
 time is reckoned as commencing from the date of the instrument 
 creating it if a deed, or the death of the testator in the case of a 
 will. It should also be borne in mind that if the power assume 
 to enable the donee to transgress the rule against perpetuities, 
 and he exercises the power within due limits, the exercise is 
 valid (I). 
 
 The Bankruptcy Act, 1883 (2) (sect. 44), comprises in the 
 property divisible among the bankrupt's creditors, the capacity 
 to exercise and to take proceedings for exercising all such 
 powers in or over or in respect of property as might have been 
 exercised by the bankrupt for his own benefit at the commence- 
 ment of his bankruptcy, or before his discharge, except the 
 right of nomination to a vacant ecclesiastical benefice. 
 
 Where a general power of appointment is exercised by will, 
 the property is rendered assets for payment of debts (f). 
 
 There are three requisites to the valid creation of a power : 
 namely, (1) sufficient words to denote the intention; (2) an apt 
 instrument ; and (3), a proper object (f). But no technical or 
 express words are necessary, either in a deed or in a will, to 
 create a power, if the intention be clear (^). 
 
 A power may be exercised excessively. (1) With regard to 
 the objects, i.e. when persons are included who were not con- 
 templated in the creation of the power. For instance, in the 
 leading case of Alexander v. Alexander (^), it was decided that 
 under a power to appoint among children an appointment to 
 grandchildren was invalid. It was decided, however, in the 
 same case that such an exercise of the power would be valid, if 
 made with concurrence of the true object of the power, e.g. if 
 upon marriage of a child, a parent with power to appoint 
 amongst children, only appointed, with the consent of the child, 
 to the intended husband and issue of the marriage, such an 
 arrangement being regarded as first an appointment, and then 
 a resettlement by the object of the power. (2) With regard to 
 the amount of the subject appointed. (3) Where conditions 
 
 Bank- 
 ruptcy Act, 
 1883. 
 
 Requisites 
 for creation 
 of power. 
 
 Excessive 
 exercise 
 of power. 
 
 (■) See Whitly v. Mitchell, 42 
 Ch. D. 494 ; affirjiied 44 Ch. D. 85. 
 
 {^) 46 & 47 Vict. c. 52, and see 
 Nichols to Nixey, 29 Ch. D. 1005, 
 ■where it was held that a trustee 
 could not exercise the power after 
 the debtor's deatli. 
 
 Q) Fleming v. Buchanan, 3 De 
 G. M. & G. 976, and jee as to 
 married women : Re uarvey, V6 
 
 VOL. I. 
 
 Ch. D. 216; Hodges v. Hodges, 20 
 Ch. D. 749 (and cases cited), and 
 sect. 4 of the Marric-d Women's Pro- 
 perty Act, 1882. 
 
 (^) Sugden on Powers, p. 102. 
 
 (') Farwell on Powers, p. 29. 
 
 (") 2 Ves. Sen. 640 ; and see notps 
 to Tudor's Eeal Property Cases, 3rd 
 ed. p. 395. 
 
 N 
 
178 
 
 REAL PROPERTY. 
 
 [Book I. 
 
 Illustra- 
 tions. 
 
 Appoint- 
 ment. 
 
 are annexed to the appointment which are not authorized by 
 the power. 
 
 The second may be illustrated by a case decided by Sir George 
 Jessel. A testator who had power to appoint £7000 by will, 
 thought he had power to appoint £10,000; and made a will 
 appointing sums of £1995, £4000, £4000, and £5. The appointee 
 of one of the £4000 died in the lifetime of the testator. Sir, 
 George Jesse], in delivering judgment said that, if nothing more 
 had happened than that the testator had appointed £10,000 
 instead of £7000, it was quite clear that all the gifts must have 
 abated, because there was not enough to pay the bequests in 
 full. But one of the appointees has died, which augments the 
 fund, exactly in the same way as if the testator had given 
 pecuniary legacies of greater amount than his whole personal 
 estate ; and then one of these legatees had died. In that case 
 the personal estate would have been augmented for the benefit 
 of the other legatees, and the appointees here are in the same 
 position (1). The decision of the Court accordingly was that 
 the other appointees and not the persons who would have been 
 entitled in default of appointment were to receive the £4000. 
 
 The third case may be illustrated as follows : Suppose a 
 power to a man to appoint £1000 among his children; if the 
 father gives the £1000 to his children and annexes a condition 
 that they shall release a debt owing to them or pay money over, 
 the appointment of £1000 would be absolute, and the condition 
 would be only void (^). 
 
 The exercise of a power is commonly called an " appointment." 
 Where the instrument by which a power is created does not 
 specify the mode in which the appointment is to be made, or 
 the formalities to be observed in the exercise of the power, 
 the appointment may be made either by deed or by will, or by 
 any other writing. But if there be express directions on any 
 of these points in the instrument creating the power, the re- 
 quirements of the power must be strictly complied with, except 
 where the defective execution of the power may be aided {post, 
 p. 182), or by one of the statutory provisions to which we shall 
 now refer. 
 
 The Wills Act, 1 Vict. c. 26, s. 10, provides that no appoint- 
 ment made by will in exercise of any power shall be valid, 
 unless executed in the manner in which wills generally are 
 thereby required to be executed ; and that a will so executed 
 
 (1) Bales V. Drahe, 1 Ch. D. 219. 
 
 Q) Alexander v. Alexander, 2 Ves. Sen. 640. 
 
Chap. XIV.] POWERS. 179 
 
 shall, as regards the execution and attestation thereof, be a 
 valid exercise of a power of appointment by will, notwithstand- 
 ing some other or additional formality shall have been required 
 by the instrument creating the power. And by Lord St. 
 Leonards' Act (22 & 23 Vict. o. 35, s. 12) it is provided with 
 regard to appointments otherwise than by will, that a deed 
 executed, and attested by two or more witnesses in the manner 
 in which deeds are ordinarily executed and attested shall, as 
 regards execution and attestation, be a valid exercise of a power 
 of appointment, although some other or additional formality of 
 execution or attestation or solemnity shall have been expressly 
 required by the instrument creating the power. 
 
 A power is often framed so as to authorise an appointment to Exclusive 
 
 some one or more of the obiects to the exclusion of the others, '^PP"'"'' 
 
 , . . ment. 
 
 and this is called " an exclusive appointment." Prior to 1830, 
 
 in oases where powers were not exclusive, the rules of equity 
 and law were at variance on the subject. At law, a shilling out 
 of £100,000 was sufficient, but in equity such an appointment 
 was treated as illusory. In 1830 an Act was j)assed by Lord 
 St. Leonards (i) providing that no appointment should be in- 
 validated or impeached on the ground that an " unsubstantial 
 illusionary or nominal" share alone was appointed. This Act 
 has now to a great extent been supeiseded (^) by the Powers 
 Law Amendment Act, passed the 30th of July, 1874, which 
 provides that no appointment thereafter made in exercise of 
 any power to appoint any property real or personal amongst 
 several objects, should be invalid at law or in equity on the 
 ground that any object of such power had been altogether ex- 
 cluded, but that every such appointment should be valid and 
 effectual, notwithstanding that any one or more of the objects 
 should not thereby, or in default of appointment, take a share 
 or shares of the property which was subject to such power. 
 'I'he Act, however, includes a proviso that nothing therein con- 
 tained shall prejudice or affect any provision in any deed, will, 
 or other instrument creating any power which shall declare the 
 amount or share or shares from which no object of the power 
 shall be excluded, or some one or more object or objects of the 
 power shall not be excluded. 
 
 It is now provided by the Married Women's Property Act, Married 
 1882, that the execution of a general power by will of a married Women's 
 woman shall have the eifect of making the property appointed Act''l882 
 
 (') 11 Geo. 4, and 1 Wm. 4, e. 46. v. Bunn, L. E. 17 Eq. 405; In re 
 Sugrlen on Powers, 8th ed. 449. Capon's Trusts, 10 Ch. D. 484. 
 
 (;') 37 & 38 Vict. c. 37. Gainsford 
 
 N 2 
 
180 
 
 BJEAL PBOPERTT. 
 
 [Book I. 
 
 Convey- 
 ancing Act, 
 1881 and 
 1882. 
 
 Wills Act. 
 
 Geneial 
 devise. 
 
 liable for her debts and other liabilities in the same manner as 
 her separate estate is made liable under the Act. 
 
 The Conveyancing and Law of Property Act, 1881, now 
 provides that, where a power or trust is given to or vested in 
 two or more executors or trustees jointly, then, unless the 
 contrary is expressed in the instrument, if any, creating the 
 power or trust, the same may be exercised or performed by the 
 survivor or survivors of them for the time being (^). 
 
 Sect. 6 of the Conveyancing Act, 1882, which is retro- 
 spective, provides that a person to whom any power, whether 
 coupled with an interest or not, is givfen, may, by deed, dis- 
 claim the power, and after disclaimer, shall not be capable of 
 exercising or joining in the exercise of the power. 
 
 On such disclaimer the power may be exercised by the other 
 or others, or the survivor or survivors of the others of the 
 persons to whom this power is given, unless the contrary is 
 expressed in the instrument creating the power (^). 
 
 Where a person has a general power of appointment exercis- 
 able by will, and by his will he gives all his, estate or all his 
 property in general terms, but does not expressly refer to the 
 power, will this general gift operate as an exercise of the power 
 of appointment? Under the former law it did not, but extended 
 only to the testator's own property. But as this construction of 
 such a gift tended frequently to defeat the intention of testators, 
 it was provided by the Wills Act that a general gift of the real 
 or personal estate of a testator should be construed to include 
 any real or personal estate which he might have power to 
 appoint in any manner he might think proper, and should 
 operate as an execution of such power, unless a contrary 
 intention should appear by the will (S). 
 
 In a recent case, where a testatrix having a general power of 
 appointing by will made a general devise of her property 
 without expressly referring to the power, the Court, in deliver- 
 ing judgment, said : It is useless to speculate about the intention 
 of the testatrix. The Court may have a strong suspicion that the 
 testatrix did not intend to exercise what is called a general 
 power of appointment, and if she had been told that she had 
 
 (1) 44 & 45 Vict. u. 41, s, 38. See 
 as to tlie law applicable to the exe- 
 cutorships and trusts which are ex- 
 cepted from the operation of this 
 section, which applies to executor- 
 ships and trusts constituted after or 
 created by instruments coming into 
 operation after the commencement of 
 
 the Act, 1st Jan. 1882 : Gierke and 
 Brett's Conveyancing Act, p. 142, 
 et seq. 
 
 (") 45 & 46 Vict. 0. 39 ; and see 
 Me Eyre, 49 L. T. (N. S.) 259. 
 
 C) 1 Vict. c. 26, s. 27 ; Ee Phillips, 
 41 Gl). D. 417; Phillipsy. CayUy, i3 
 Cli. D. 222. 
 
Chap. XIV.] POWERS. 181 
 
 done so, she would have been very mucli surprised to hear it. 
 But the statute renders any such speculation fruitless (i). 
 
 In a case which came before the Court of Appeal in 1889 (2) Special 
 a testator, who had no real estate of his own, but had a special P"*^'^'''^* 
 power of appointing a life interest in certain real and personal 
 estate to his widow, bequeathed all his real and personal estate 
 to his widow absolutely, but without referring in any way to 
 the special power or the property comprised therein. The Court 
 of Appeal held that the will did not operate as an exercise of 
 the special power. One of the judges, in delivering judgment, 
 expressed himself as follows : " We must bear two things in. 
 mind. Pirst, that sect. 27 of the "Wills Act only applies to a 
 general power of appointment, as to which a general devise 
 operates as an exercise of the power, unless there is some indica- 
 tion in the will of a contrary intention. Secondly, that, as 
 regards special powers, the old law applies, which is that you 
 must find some indication, either by reference to the power or 
 by reference to the property, of an intention to exercise the 
 special power. Anything which shewed that the testator had 
 the power in his mind would be enough. But if you cannot 
 find anything to shew that the testator had the special power 
 in his mind, it would be straining language to say that the 
 devise would be an exercise of that power." 
 
 It is a long-established principle of the law that a power of Bond fide 
 appointment must be exercised bond fide for the end designed, po^gj^*^ ° 
 The law on this subject was stated by the House of Lords in 
 a celebrated case as follows : " A party having a power like this 
 (i.e. a limited power) must fairly and honestly execute it, with- 
 out having any ulterior object to be accomplished. He cannot 
 carry into execution any indirect object, or acquire any benefit 
 for himself either directly or indirectly. It may be subject to 
 directions or limitations ; but it must be a pure, straightforward, 
 honest dedication of the property, as property, to the person to 
 whom he affects or attempts to give it in that character. He 
 must act with good faith and sincerity, and with an entire and 
 single view to the real purpose and object of the power, and not 
 for the purpose of accomplishing or carrying into effect any bye 
 or sinister object (sinister in the sense of being beyond the 
 purpose and intent of the power) " (^). 
 
 (1) In re Jones, 34 Ch. D. 65, 67, Be Mills, 34 Ch. D. 186. See also 
 
 and see In re Gibbe's Settlement. In re Wells. Hardisty v. Wells, 42 
 
 White V. Bandolf, 37 Oli. D. 143. Cb. D. 646. 
 
 O In re Esther Williams. FoulJces (^) Duke of Portland v. Topham, 
 
 V. Williams, 42 Oh. D. 93, approving 11 H. L. C. 32. 
 
execution 
 aided. 
 
 182 REAL PROPERTY. [Book I. 
 
 A power of appointment was exercised by codicil under an-ange- 
 ments which involved a threat to revoke the will previously- 
 made unless the proposed arrangements were carried into effect. 
 The Court decided that the appointment proceeded upon a bargain 
 which was contrary to the nature of the power, and was there- 
 fore invalid Q-"). 
 
 Defective The Court will not relieve against the non-execution of a 
 
 power, but when a power has been executed, but not in the 
 form prescribed, the Court will in certain cases " aid the defec- 
 tive execution of the power." It must be shewn that the donee 
 of the power had a clear intention to exercise it and that the 
 defect is not of the essence of the power, and then if the 
 exercise of the power be in discharge of a moral or natural 
 obligation and there be no countervailing equity, the defective 
 execution will be aided. This aid has been granted in favour 
 of: (1) purchasers (under w^hich term mortgagees and lessees 
 are included); (2) creditors; (3) charities; (4) wives; (5) 
 legitimate children Q). 
 
 This doctrine of the Court may be illustrated by a well- 
 known case. A lady, having a power of appointment by deed 
 or will over certain leasehold property, which in default of 
 appointment was vesled absolutely in her, wrote and signed an 
 unattested paper, by which, after referring to the property in 
 terms sufficient to identify it, she proceeded : " If I die suddenly, 
 I wish my eldest son to have it. My intention is to make it 
 over to him legally if my life is spared." She died within three 
 months, leaving this memorandum among her papers, and 
 without having otherwise exercised her power. The Court of 
 Appeal decided that the memorandum was a defective execution 
 of the power, and that equity would relieve against the defect 
 in favour of the eldest son (f). 
 
 Lord Justice James, in delivering judgment, said : " In 
 favour of purchasers or children, the Court relieves against the 
 defective execution of a power, provided it sufficiently appears 
 that there was an intention on the part of the donee to give the 
 property which he had power to dispose of. Here the lady had 
 power to give the property by an instrument sealed and de- 
 livered. By an instrument nut sealed and delivered she 
 expresses her intention that her son shall have the property 
 
 (') In re Kirwan's Trusts, 25 Ch. D. and Tudor's Leading Cases ; Ken- 
 
 373, and see Jn re Deane. Bridger v. nard v. Kennard, L. E. 8 Ch. 227; 
 
 Deane, 42 Cli. D. 9 ; Burnaby v. Me Kirwan's Trusts, 25 Ch. 1). 373. 
 BailUe, 42 Cli.D. 282; Be Crawshay, (=) Kennard v. Kennard, L. K. S 
 
 43 Ch. D. 615. Oh, 227. 
 
 (2) See Toilet v. Toilet, 1 White 
 
Chap. XIV.] 
 
 POWERS. 
 
 183 
 
 wMch is subject to the power, and the case is one in which a 
 Court of Equity will relieve against the defective execution.'' 
 
 No aid will however be afforded to a husband, a grandchild, 
 a natural child, or cousin, a brother or sister, a nephew or niece 
 or a volunteer, even although such a volunteer be the creator of 
 the power (i). 
 
 Where there is complete execution of a power, and something 
 ex abundanti added, which is imptoper, there the execution 
 shall be good, and only the excess void ; but where there is not 
 a complete execution of a power, and the boundaries between 
 the excess and execution are not distinguishable, the execution 
 will be bad (^). 
 
 (') Farwell on Powers, p. 276, 
 where the authorities are collected. 
 
 (-) The law with regard to revo- 
 cations and new appointments was 
 considered in Wilson v. Kenrick, 31 
 Oh. D. 658, and there summed up in 
 the thiee following propositions : — 
 
 (1) Where under a power to ap- 
 point a definite fund among special 
 objects an appointment is made of 
 aliquot parts of the fund, or of parts 
 of the fund exhausting the whole by- 
 one instrument, or by several instru- 
 ments, which form one transaction 
 and ought to be construed together, 
 there frimd facie there is no priority, 
 and the several parts of the fund, if 
 the fund proves deficient, must abate 
 rateably. 
 
 (2) Where under a like power 
 several sums are appointed by succes- 
 
 sive independent deeds, there primd 
 fa^ie the sums or parts appointed, 
 not being aliquot parts, have priority 
 according to the dates of the deeds. 
 
 (3) Where under a power an ap- 
 pointment authorized by the power is 
 made reserving a power of revocation 
 and new appointment, and subse- 
 quently an instrument of revocation 
 and new appointment is executed, 
 the new appointment operates as an 
 exercise of the original power. 
 
 See further on tlie subject of powers, 
 Eenty v. Wrey, 21 Ch. D. 332 ; Brett's 
 Leading Oases, p. 225 ; Me Mills, 34 
 Oh. D. 186 ; Cooke v. Cooke, 38 Ch. D. 
 202; Be Brough, 38 Oh. D. 456; 
 Whelan v. Palmer, 89 Ch. D. 649; 
 Be Deane, W. N. (1888) 249; (1889) 
 107. 
 
( 184 ) 
 
 Definition. 
 
 Sketch of 
 the law as 
 to copy- 
 holds. 
 
 CHAPTEE XV. 
 
 Copyholds. 
 
 Copyholds are defined as lands expressed to be held (1) at 
 the will of the lord ; (2) by copy of Court roll ; (3) according to 
 the custom of the manor, subject to the rent and services to be 
 paid or rendered to the lord. 
 
 The history of copyholds may be told sufficiently for our 
 present purpose in a few words. 
 
 The tenure of the copyholders was originally a mere occupa- 
 tion licence from a feudal lord to the villein who cultivated that 
 part of his estate which was not granted to free tenants. 
 
 Portions of the demesne lands of manors were then held by 
 the villeins or bondsmen on a base tenure. These tenancies 
 were at first actually, as they still are nominally, at the will 
 of the lord, but gradually by custom the tenants acquired 
 permanent rights. 
 
 Custom developed into right. The will of the lord which 
 had originated the custom came at last to be controlled by it. 
 The word villenage as applied to this tenure fell into disuse, 
 and it came to be called " copyhold," from the fact of the 
 instrument of title to the tenant's estate being a copy of the 
 Court roll or book of the manor in which dealings with the 
 copyhold lands are recorded. 
 
 Thus, to quote from a well-known writer on Copyholds, has 
 the law supported and strengthened the estate of the tenant, 
 though it still regards him as holding (nominally) at the will 
 of the lord. The tenant has long ceased to be subject to the 
 caprice of his lord. The grant by the lord is solely dependent 
 on his option, but from the very time of the grant, and, in 
 consequence of the very act, the copyholder ceases to be a mere 
 tenant at the will of the lord ; he is no longer subject to his 
 caprice. The lord has granted him his estate, and the law has 
 established it. The absolute control of the lord has fled, and 
 the tenant is in by the custom. Hence he is no longer said to 
 hold merely " at the will of the lord," but " at the will of the 
 lord according to the custom of the manor " (^\ 
 
 (') Watkins on Copyholds, vol. i. 
 p. OS. Co. Cop. ij. 9, Tr. p. (j. 
 
 " Oopyhold(ira,'' said Sir Edwajcl 
 Coke, writing of tlie state of tlie law 
 
Chap. XV.] 
 
 COPYHOLDS. 
 
 185 
 
 There are three kinds of customary tenure for copyholds : Varieties 
 
 (1.) Copyholds proper or pure copyholds which are described ofcusto- 
 as parcel of the manor held at the will of the lord, according to X&alxe. 
 the custom of the manor ; 
 
 (2.) Customary freeholds, or customary-holds, which are 
 described as parcel of the manor held according to the custom 
 thereof, but not at the will of the lord ; 
 
 (3.) Tenant-right estates, being the customary freeholds in 
 some manors in the north of England (^). 
 
 The principal characteristics or incidents, as they are called, 
 of copyholds are : 
 
 1. They are technically held at the lord's will. 
 
 2. The tenants cannot commit waste as the mines, minerals. Incidents 
 and timber, even though it be planted by the tenant, belong to f ij'''^' 
 the lord. Besides his right to the timber, trees, and minerals, 
 
 the lord of the manor is also entitled to the benefit of the 
 various other incidents subject to which copyhold estates are 
 held. Thus, the lord is entitled to all escheats and forfeitures 
 of copyhold estates, and, in many instances, to rents of small 
 amounts, and reliefs, payable by the tenant. 
 
 3. The tenants cannot lease the lands for more than a year, 
 unless there be a special custom, without the lord's licence. 
 
 4. Copyhold lands are also by special custom subject to a 
 peculiar incident, said to have been introduced by the Danes, 
 viz., that on the death of a tenant the lord becomes entitled to 
 his best beast or chattel, then in the tenant's possession, as a 
 heriot, as it is called. Sometimes a pecuniary composition is 
 payable in Heu of a heriot (^). 
 
 6. A sum of money called a fine is payable to the lord on 
 every transfer of the tenancy of the land, whether by alienation 
 or death. The fine may be either fixed in amount by custom, 
 or " arbitrary." In the latter case it was originally such a sum 
 as the lord might choose to exact, but in modern times it has 
 
 in his own day, " now stand upon a 
 sure ground ; now they weigh not 
 their lord's displeasure ; they shake 
 not at every sudden blast of wind ; 
 they eat, di'ink and sleep securely ; 
 only having a special care of the 
 main chance, namely, to perform 
 carefully what duties and services 
 soever their tenure doth exiict and 
 custom doth require; then let lord 
 frown, the copyholder cares not, 
 knowing himself, safe." 
 
 (') The law with regard to tenant 
 right estates was considered by Lord 
 
 Ellenborough in Doe d. Bray v. 
 Huntington, 4 East, 271, who stated 
 that although they seemed to want 
 some of the qualities and characteris- 
 tics of copyholds, yet notwitlistauding 
 all these anomalous " circumstances," 
 it was now settled beyoud question 
 that they were not freeholds, but that 
 they fell within the same considera- 
 tion as copyholds. 
 
 (^) See Lord Zouclie v. Dalhiac, 
 L. R. 10 Ex. 172 ; Owen v. De Beau- 
 voir, 16 M. & W. 547, 566. 
 
186 
 
 REAL FROPEBTY. 
 
 [Book I. 
 
 Incidents 
 of copy- 
 holds. 
 
 Restraint 
 on the 
 creation 
 of copy- 
 holds. 
 
 Timber, 
 trees and 
 minerals. 
 
 ■been fixed at a BUin not exceeding two years' improved value of 
 the land. It was decided by the Court of Appeal that the lord 
 is only entitled to a fine when the legal estate is transmitted, 
 and that if there be only a covenant to surrender or a devolution 
 of the equitable estate, the legal estate still remaining in the 
 person admitted as tenant on the rolls, no fine can be claimed Q). 
 
 6. If on the death of a copyhold tenant the person next 
 entitled to the land does not seek admittance as tenant, the 
 lord, after certain formalities, may seize the land quo usque, that 
 is, until some tenant claims to be admitted to the land. 
 . No land can be copyhold unless it be demesne land of a manor 
 held by villein tenure ; except that, until the recent legislation 
 to which we shall next allude, the lord of the manor might, 
 under certain conditions, grant portions of the waste lands of 
 the manor to be held as copyhold. 
 
 But by the Copyhold Act, 1887 (2), it is provided that, after the 
 passing of that Act, it shall not be lawful for the lord of any 
 manor to make grants of land not previously of copyhold tenure 
 to any person to hold by copy of court roll or by any tenure of 
 a customary nature without the previous consent of the Land 
 Commissioners, who, in giving or withholding their consent, shall 
 have regard to the same considerations as are to be taken into 
 account by them on giving or withholding their consent to any 
 inclosure of common lands ; and that whenever any such grant 
 has been lawfully made the land therein comprised shall cease to 
 be of copyhold tenure, and shall be vested in the grantee thereof 
 to hold for the interest granted as in free and common socage. 
 
 The law with regard to the rights of the lord and the copy- 
 holder respectively in respect of timber and minerals, was 
 considered by Sir George Jessel in an elaborate judgment, from 
 which the following statement of the law is taken : — 
 
 The estate of a copyholder in an ordinary copyhold is an 
 estate in the soil throughout, except as regards for this purpose 
 timber, trees, and minerals. As regards the trees and minerals 
 the property remains in the lord, but in the absence of custom 
 he cannot get either the one or the other, so that the minerals 
 must remain un worked, and the trees must remain uncut. The 
 possession is in the copyholder ; the property is in the lord. If 
 a stranger cuts down the trees, the copyholder can maintain 
 an action for trespass against the stranger, and the lord can 
 maintain an action for the value of the trees. If the lord cuts 
 down the trees, the copyholder can maintain an action for 
 
 C) Sail V. Bromley, 35 Ch. D. 642. Q) 50 & 51 Vict. 0. 73. s. 6. 
 
Chap. XV.] COPYHOLDS. 187 
 
 trespass against the lord ; but if the copyholder cuts down the 
 trees, irrespective of the question of forfeiture, the lord can' 
 bring his action against the copyholder. 
 
 The law with regard to minerals is as follows : If a stranger Minerals. 
 takes the minerals, the copyholder can bring an action for 
 trespass against the stranger for interfering with his possession, 
 and the lord may bring an action against the stranger to recover 
 the minerals. The same rule applies to minerals as to trees. 
 If the trees are once cut down, the lord cannot compel the 
 copyholder to plant another. The latter has a right to the soil 
 of the copyhold where the tree stood, including the stratum of 
 air which is now left vacant by reason of the removal of the 
 tree. So, if the lord takes away the minerals, the copyholder 
 becomes entitled to the possession of the space where the 
 minerals formerly were, and he is entitled to use it at his will 
 and pleasure. If there be a shaft made for working the mines, 
 the copyholder may descend in the shaft, and either walk about 
 in the space below or use it for any other rational purpose (y). 
 
 The general rule is that the same words are requisite to Estates in 
 create certain estates of copyholds as are necessary to the copyholds. 
 creation of the same estates of freehold lands. By the force, 
 however, of a particular custom, estates may be otherwise 
 created : e.g., by special custom, an estate of inheritance may 
 be created by the words " to him and his " (aibi et suis) ; or to 
 him and his assigns (sibi et assignatis), or similar words. In 
 some manors the words to A. and his "sequels in right" are 
 used instead of the technical word " heirs " ; and in others, 
 in addition to it; as " to A. his heirs and sequels in right" are 
 used instead of the technical word " heirs " to create an estate 
 in fee simple (^). 
 
 It is not necessary in a surrender of copyholds that the name Surrender 
 of the person for whose benefit the surrender is made should be ? ?y^' 
 precisely mentioned. It is sufficient if the grantee can be 
 
 (') Eardley v. Oranville (3 Ch. D. underlying mineral layer or stratum. 
 826, 832, et seq.). In this case Sir That underlying stratum remains in 
 GeiTge Jessel exjalained and illus- the grantor. But in the case of a copy- 
 trated the law as to copyholders' holder, that is not so, because the 
 rights in respect of mines, as laid copyholder, tliough he has no pro- 
 down by Lord Campbell in Bowser perty in the stratum in the sense of 
 V. Maeltan, 2 De (i. F. & J. 427, as being entitled to take the minerals, 
 follows : — bas property and possession in this 
 
 " If a freeholder grants lands, ex- sense, that the moment the minerals 
 
 cepting mines, he severs his estate are taken away the space is in his 
 
 vertically, i.e. he grants out his estate possession, and he only can interfere 
 
 in parallel horizontal layers, and the with it, the lord having no right to 
 
 grantee only gets the parallel layer do so." 
 
 granted to him and does not get any C) Watkins on Copyholds, 172. 
 
188 
 
 EJEAL PEOPEBTT. 
 
 [Book I. 
 
 Surrender 
 of copy- 
 holds. 
 
 Statute of 
 Uses and 
 Dower Act. 
 
 Wills Act. 
 
 Convey- 
 ancing Act, 
 1881. 
 
 Estates tail 
 in copy- 
 holds. 
 
 certainly ascertained. Thus, says Mr. Watkins, a surrender to 
 the Lord Archbishop of Canterbury, the Lord Mayor of London, 
 without mention of Christian name, or surname, or to the use of 
 the next of my blood, or mj' brother and sister, if I have but 
 one sister, is good ; or to the use of my son W., where there are 
 more sous W. than one if collateral circumstances can relieve the 
 uncertainty, are good. A surrender to the use of him who shall 
 come next into St. Paul's is valid, but a surrender to the use of 
 my cousin or friend is so uncertain that no subsequent manifes- 
 tation of intention can strengthen it (^). 
 
 "It is a general rule that no statute relating to lands or 
 tenements, in which those of a customary tenure are not ex- 
 pressly mentioned, shall be applied to customary estates, if such 
 application would be derogatory to the customary rights of the 
 lord or tenant " (^). Accordingly, the Statute of Uses and the 
 Dower Act (^) do not apply to copyholds. The Wills Act (*), 
 however, expressly provides that a general devise which would 
 describe a customary copyhold, or leasehold estate, if the testator 
 had no freehold estate which could be described by it, shall be 
 construed to include the customary, copyhold, and leasehold 
 estates, to which such description shall extend, as well as free- 
 hold estates, unless a contrary intention shall appear by the will. 
 
 Under the present law, however, the Wills Act enables every 
 person to dispose by will of all his real estate of the nature of 
 customary freehold, or tenant right, or customary or copyhold, 
 which if not so disposed of would devolve upon his customary 
 heir (i.e., heir by the custom of the manor), notwithstanding that 
 the testator may not have suiTendered the same to the use of his 
 will, or, notwithstanding that, being entitled as heir, devisee, or 
 otherwise to be admitted thereto, he shall not have been admitted 
 thereto Q). 
 
 The Conveyancing and Law of Property Act, 1881, " does not 
 profess to touch customary or copyhold lands, except whore they 
 can be dealt with as freeholds " ("), 
 
 By general custom, copyhold estates may be held in foe simple 
 for life, or years, or at will ; though chattel interests in copy- 
 holds are not often met with. But estates tail in copyholds 
 exist only in manors where they are allowed by special custom, 
 called a " custom to entail." In the absence of such custom, a 
 gift of copyholds to a person and the heirs of his body creates 
 
 (') Watkins on Copyholds, p. 171. 
 (f) Burton's Compendium of Keai 
 Properly, p. HSS. 
 (=) 27 Hen. 8, c. 10. 
 
 (<) 3 & 4 Wm. 4, c. 105. 
 Q) 7 Wm. 4, and 1 Vict. c. 26, s. 3. 
 (°) Wolstenholme & Turner's Cou- 
 veyancing Acts, note to s, 7 (5). 
 
Chap. XV.] COPYHOLDS. 189 
 
 an estate in fee simple conditional — similar as regards the right Estates tail 
 of alienation to the like estate in freeholds prior to the statute de J^.^fP^" 
 donis conditionalibus (see ante, p. 34) Q), but dissimilar as regards 
 the lord's right to the timber and the minerals, and the tenant's 
 liability, whatever his estate may be, to forfeiture of the land 
 to the lord for waste, either voluntary or permissive, on his part. 
 
 If an estate be given to a copyholder and the heirs of his 
 body (or by other words which by the custom are equivalent, 
 see ante, p. 187), in a manor where there is a custom to entail, 
 he may, if the estate be legal, bar the entail by surrender. If 
 the estate tail be equitable he has the option of barring the 
 entail either by deed enrolled on the Court rolls of the manor or 
 by surrender (2). 
 
 Disentailing assurances of copyholds under the Act must be 
 enrolled on the Court rolls within six months after execution, 
 except in manors where conveyances have not usually been 
 entered on a Court roll or similar record (^). 
 
 It was decided that a declaration of trust as to copyholds by 
 a tenant in tail was not a " disposition" within the Fines and 
 Eecoveries Act, and therefore inoperative as an assurance to bar 
 an estate tail. In the same case it was also held a disentailina: 
 assurance by an equitable tenant in tail of copyholds which was 
 not entered upon the court-rolls of the manor within six months 
 after execution, was void (*). 
 
 In a case which came before the Court in 1889 the facts were 
 as follows : The tenant in tail in possession of copyhold land, 
 held of a manor where there was custom to entail, devised all 
 the real estate of or to which he should be seised or entitled at 
 the time of his death to two trustees, their heirs and assigns, 
 upon certain trusts declared by the will. After the death of 
 the testator the trustees were, as such devisees, admitted tenants 
 of the copyhold land, to hold the same to them, their heirs and 
 assigns, upon the trusts of the will. The lord of the manor 
 afterwards executed an enfranchisement (not under the Copy- 
 hold Acts) to the trustees, and they executed a conveyance to 
 the only daughter of the testator (who was his heiress in tail) 
 in fee. Under the trusts of the will the daughter had become 
 
 (') A manor must have two free- (=) Elton on Copyholds, p. 280; 
 
 holders at least. A court baron is as to stewards' duties, Honeywood v. 
 
 the cliief prop of a manor which no Foster, 30 Beav. 1 ; Reg. v. lugle- 
 
 sooner faileth than the manor itself wood, H Dowl. P. 0. 693. 
 
 cometh to an end. If there be no (*) Oi-een v. Patterson, 32 Ch. Div. 
 
 copyholders, tlie manor ceases to be a 95. See also Honeywood v. Foster, 
 
 miinor in the proper sense, and be- 30 Beav. 1 ; and Gibbons v. Snape, 
 
 conies only a manor in reputation. 1 D. J. & S. 621. 
 
 (2) 3 & 1 Wm. 4, 0. 74, s. 50. 
 
190 REAL PBOPEBTY. [Book I. 
 
 solely beneficially entitled to the real estate which passed under 
 
 the devise to the trustees. It was held on the authority of cases 
 
 of long standing, that the entail was barred, and that the 
 
 daughter was entitled in fee simple Q). 
 
 Enfran- The 1st section of the Copyhold Act, 1887, provides that on 
 
 chisement {he admittance of any tenant after 31st December, 1887, the 
 
 holds steward of the manor shall be bound without any further charge, 
 
 to give to the tenant so admitted or enrolled a notice in the 
 
 form or to the effect prescribed, informing him that he is 
 
 entitled to have the land enfranchised on paying compensation 
 
 and fees, and stating how the compensation may be fixed (2). 
 
 Enfranchisement is defined by Mr. Watkins as " the changing 
 of the tenure from base to free " (f). In a case which came before 
 the Court in 1889, the facts were as follows (f) : — ■ 
 
 A contract in writing had been entered into for the sale of a 
 mansion and estate, and the question to be determined was 
 whether a good freehold title was shewn. The lands, which 
 were formerly copyhold had been treated as freehold for upwards 
 of one hundred years. No claim had been made on the part of 
 the lord of the manor, and the only intimation that the land 
 was copyhold was in recitals to' that effect, and a covenant to 
 surrender contained in recent deeds to which the lord was 
 neither " party nor privy." Under these circumstances the 
 Court decided that the recitals must be treated as a " complete 
 mistake," and that enfranchisement must be presumed. 
 
 It is now provided by the Conveyancing Act, 1881, that 
 where land of copyhold or customary tenure has been converted 
 into freehold by enfranchisement, then under a contract to sell 
 and convey the freehold, the purchaser shall not have the right 
 to call for the title to make the enfranchisement (^). 
 
 In modern times a number of statutes — known collectively as 
 
 (') Ex "parte School Board for the enfranchisement of your land. 
 
 London. In re Bart, 41 Oh. D. 547. If the steward neglects to serve such 
 
 f ) 50 & 51 "Vict. c. 73, s. 1. The notice he shall not be entitled to any 
 
 following is the form given in the fee for that admission." 
 
 Act : " Take notice that if you desire Q) "Watkins on Copyholds, p. 556, 
 
 that the copyhold land which you hold et seq. 
 
 of this manor of shall become (*) Be Lidiard and Jackson's and 
 
 freehold, you are entitled to enfran- Broadley's Contract, 42 Ch. D. 254. 
 
 chise the same upon paying the C) 44 & 45"V'ict. 0. 41,s. 3, sub-s. 2. 
 
 lord's compensation and the steward's It was decided in a case arising 
 
 fees. The lord's compensation may on this section that a purchaser of 
 
 be fixed either by agreement between copyholds is not entitled on comple- 
 
 the lord and you, or by any valuer tion of a contract for enfranchise- 
 
 appointed by yourselves, or through ment, to an undertaking from the 
 
 the agency of the Land Commis- lord's trustee to uses for safe custody 
 
 siuners, to whom you may make of the documents of title to the manor, 
 
 application, if you think iit, to effect and of the Court rolls, relating to 
 
Chap. XV.] COPYHOLDS. 191 
 
 the Copyliold Acts, 1841 to 1887 — have heen passed with the Enfran- 
 view of facilitating both the comnmtation of manorial rights and chisement 
 the enfranchisement of copyhold land, that is, the conversion of holds. 
 the tenant's interest into an interest in land of freehold tenure. 
 Under the last of these Acts, either the lord or the tenant may 
 require and compel the extinguishment of heriots, quit rents, 
 free rents, or other manorial incidents, in consideration of a 
 pecuniary compensation or rent-charge payable to the lord (i). 
 
 Enfranchisement of copyholds may be effected independently 
 of the above Acts by a simple conveyance of the freehold from 
 the lord to the tenant, if both parties consent thereto ; but for 
 this purpose it is obvious that the lord must be capable of con- 
 veying the fee simple of the land, and must not be under any 
 personal disability with respect to conveying. But an enfran- 
 chisement may be effected under the Copyhold Acts, 1841-1887, 
 notwithstanding that the lord has only a limited estate in the 
 manor, or that either the lord or tenant is under any disability, 
 and either lord or tenant may compel an enfranchisement. 
 Under the last of these Acts, on the admittance of any person as 
 tenant, the steward of the manor is bound to give him notice of 
 his right to enfranchise the land. The same Act also provides 
 that, subject to the right of the tenant to pay the amount of the 
 compensation for the enfranchisement in a gross sum, it is to 
 take the form of a redeemable rent-charge on the land, and the 
 enfranchisement is to be effected by an award of enfranchise- 
 ment made by the Land Commissioners. The same Act contains 
 provisions for a general enfranchisement of all coj)yhold lands 
 in a manor by a single award of the Land Commissioners whers 
 the same is desired by not less than two-thirds in number of the 
 ■ copyholders of the manor. The rights of the lord to the mines 
 and minerals in and under copyhold land, and certain other 
 rights of the lord and tenant remain unaffected by an enfran- 
 chisement under the Copyhold Acts ; and the Copyhold Act, 
 1887, preserves the lord's right of escheat for want of heirs to 
 the same extent as if the land had not been enfranchised (2). 
 
 The position of the Land Commissioners whose powers are Land Com- 
 now transferred to the Board of Agriculture (3) was fully con- missioners. 
 sidered in a case which came before the Court of Appeal in 
 1889. The Court there decided that the Land Commissioners 
 
 the land enfranchised. The most to safe custody : In re Agg-Gardner, 
 
 which he is entitled is an acknowledg- 25 Ch. D. 600. 
 
 ment by the lord and the trustee to (") 50 & 51 Vict. c. 73, b. 7. 
 
 uses of the purchaser's right to pro- C] Sects. 4 and 5 : see as to rent- 
 
 ductioaofthe documents and delivery charges and boundaries, Searle v. 
 
 of copies thereof, with an undertak- Cooke, 43 Oh. D. 519. 
 
 in" from the lord himself for their (^ 52 & 53 Vict. c. 30. 
 
Act, 1887. 
 
 192 BEAL PBOPERTT. [Book I. 
 
 have power, if it appears to them that the valuation of the 
 valuers or umpire appointed under the Act is imperfect or 
 erroneous, whether it be too great or too small, to remit it for 
 reconsideration ; and in case of the refusal or neglect of the 
 valuers or umpire to amend it, the Commissioners may consider 
 the matter and determine the valuation for themselves (i). 
 Copyhold One of the judges of the Court in delivering judgment 
 
 reviewed the policy of the Copyhold Acts in general, and the 
 Act of 1887 in particular, as follows : " The Act of 1887 is one 
 of a group commonly referred to as the Copyhold Acts. There 
 are half-a-dozen of them ; they begin in 1841, and go on 1843, 
 1844, 1852, 1858, and 1887, and sect. 50 in the Act of 1887 says 
 this is to be one of that group of Acts. It is necessary, there- 
 fore, not only to look at the language of sect. 11, but also to see 
 what light is thrown upon that section by the other Acts. The 
 scheme of the legislature appears to have been from first to last 
 that the Commissioners, first of all the Copyhold Commissioners, 
 and now the Land Commissioners, should be the persons who 
 in the final resort should decide the matters which arise under 
 those Acts. It must be borne in mind that these Acts are 
 applicable not only between people who are sui juris, and can 
 make bargains for themselves, but to tenants for life, and infants, 
 and in all sorts of cases where persons are not capable of making 
 bargains, and the ultimate decision appears to me from first to 
 last to rest with the Commissioners. . . . The key to the whole 
 thing is this^ — that the award which is effective is not the 
 award of the valuers, it is the award of the Commissioners. 
 That is so from first to last. It is their decision and their 
 award which binds the parties " (^). 
 
 Section 45 of the Copyhold Act, 1887, provides that the 30th 
 section of the Conveyancing and Law of Property Act, 1881 
 Qpost, p. 533), shall not apply to land of copyhold or customary 
 tenure vested in the tenant on the Court rolls of any manor 
 upon any trust or by way of mortgage. This section was con- 
 sidered by the Court in a very recent case, in which it was 
 decided that the effect of the enactment is to repeal entirely 
 s. 30 of the Conveyancing Act, 1881, as regards copyholds, so 
 that when a sole trustee of copyholds had died between the 
 commencement of the Conveyancing Act, 1st January, 1882, and 
 the passing of the Copyhold Act, the legal estate in the copy- 
 holds, which had by the Conveyancing Act devolved upon the 
 persona] representatives, was, on the passing of the Copyhold 
 
 (•) Eeq. V. Land Commissioners, 23 v. Land Commissioners of Enaland, 
 Q. B. D.'59 23 Q, B. D. 64. 
 
 (2) Per Lindlcy, L.J., in Tlie Queen 
 
Chap. XV.] COPYHOLDS. 193 
 
 Act, divested from them, and vested in the customary heir or 
 devisee Q-). 
 
 Copyholds may he held, like freeholds, either in severalty or Estates in 
 jointly, and either in possession or in expectancy, and either for '^"''^ ° '' 
 a legal and equitable, or a merely equitable, estate. In the 
 case of an equitable estate in copyholds, the trustee in whom 
 the legal estate is vested is of course a tenant on the court-rolls 
 of the manor. Curtesy and dower (freebench as it is called) 
 do not exist in copyholds in the absence of special custom. 
 Where freebench exists it generally consists of a life interest in 
 one divided third part of the lands. 
 
 The descent of copyholds is governed by custom. An in- Descent of 
 teresting case on this subject may here be noticed. The facts <=<'Py''°l<'^' 
 were as follows : — 
 
 The custom of a manor was stated to be that all copyholds 
 descended to the youngest son or daughter, brother or sister, 
 uncle or aunt. A tenant died intestate seised of customary 
 lands of the manor leaving neither son, daughter, brother, sister, 
 uncle, nor aunt, but leaving sons of deceased uncles. The 
 Court decided that the youngest son of the youngest uncle was 
 not entitled, and that the heir-at-law was entitled to the lands (^~). 
 The judge in delivering judgment said : — 
 
 " Here is a custom of a manor which is as much a part of the 
 law of the realm as any other law by whatever authority it is 
 established. The Courts take notice of borough English and 
 of gavelkind, and have several times recognised these particular 
 customs. Nor has any one ever questioned that the customs of 
 a manor are of equal authority with, and as equally binding as 
 the common law. Their antiquity is perhaps greater than that 
 which can be ascribed to the common law. It was admitted by 
 Chief Justice Cockbum, in Muggleton v. Barnett, that customs 
 are a law of themselves, and I know of no mode of construing 
 customs but the literal mode. 
 
 " The custom of the manor is, that upon the death of a tenant 
 
 his youngest son, if there be one, shall take ; if not, his youngest 
 
 daughter, if there be one ; if uot, his youngest brother or sister, 
 
 uncle or aunt, if any such there be ; but if there be none there 
 
 is an end of the custom. It is as if it had never existed, and 
 
 the inheritance must descend according to the course of the 
 
 common law." 
 
 (') In re Mill's Trusts, 37 Ch. D. personal rppresentatives before the 
 
 312, affirmed 40 Ch. D. 14; and see passing of the Copyhold Act would, 
 
 Ee Franklyn's Mortgages, W. N. however, be unaffected by that Act. 
 (188H) 217. The validity of any die- (^) In re Smart. Smart v, Smart, 
 
 position of the property made by the 18 Ch. D. 165, 170. 
 
 VOL. I. 
 
( 194 ) 
 
 CHAPTEE XVI. 
 
 Incoepoeeal Heeeditaments. 
 
 Definition. An incorporeal hereditament is defined by Blackstone as a 
 right issuing out of a thing corporate (whether real or peisonal) 
 or concerning or annexed to, or exercisable within the same. 
 This is illustrated by the case of an annuity charged on land. 
 Here we have the corporeal thing itself on the one hand, which 
 can be seen and touched, and on the other hand, the incorporeal 
 thing, the right — something collateral to the land, which can 
 never be the object of sense, and is not capable of being shewn 
 to the eye, or of being delivered into bodily possession. Incor- 
 poreal hereditaments are either appendant, appurtenant, or in 
 gross Qy 
 
 The principal kinds of incorporeal hereditaments which are 
 of importance at the present day are easements, advowsons, 
 tithes (now chiefly tithe-rent charges), rents and commons (^). 
 Advowsons and tithes may be discussed moro appropriately in 
 the portion of this work devoted to Ecclesiastical Law (jpost, 
 pp. 1136, 1140). The other classes of incorporeal hereditaments 
 which we have mentioned shall now be briefly considered in 
 their order. 
 
 Easements. An easement {^) is a privilege without profit, existing in 
 respect of their several tenements, which the owner of one 
 neighbouring tenement, which is called the dominant tenement, 
 has over another, which is called the servient tenement, to 
 compel the owner thereof to permit to be done, or to refrain 
 from doing, something on such tenement for the advantage of 
 the dominant owner. An easement has indeed been described 
 as rather a fringe to property than property itself (*). 
 
 Principal 
 kinds of 
 incorporeal 
 heredita- 
 ments.' 
 
 (') Williams' Eeal Property, pt. ii. 
 cap. 4, ad init. 
 
 (^) Under tlie term incorporeal 
 hereditamente, Mr. Joshua ■Williams 
 places remainders and reversions, 
 and treats of the incorporeal here- 
 ditaments above-mentioned as purely 
 incorporeal. 
 
 (^) Tudor's Eeal Property, 3rd ed. 
 166; Sury v. Pigot ; Gale on 
 
 Kasements, 6tli ed. by G. Cave, p. 6, 
 
 to which reference is hereafter made 
 in this chapter, citing Termes de la 
 Ley, tit. Easements. 
 
 (') An easement differs from an 
 obligation, inasmuch as it gives a 
 right over the land of another, while 
 an obligation gives >■• right against 
 the owner. 
 
 An easement differs from a licence 
 in a similar way. Both the benefit 
 and the burden of an easement are 
 
Chap. XVI.] INCOREOBEAL HEREDITAMENTS. 195 
 
 The essential qualities qf easements, jiroperly so called, are Easements 
 thus distinguished in Gale on Easements (i). 
 
 1. Easements are incorporeal. 
 
 2. They are imposed upon corporeal property, and not upon 
 the person of the owner. 
 
 3. They confer no right to a participation in the profits arising 
 from the servient tenement. 
 
 4. They must be imposed for the benefit of corporeal pro- 
 perty. 
 
 6. There must be two distinct tenements, the dominant to 
 which the right belongs, and the servient upon which the 
 obligation is imposed (2). 
 
 Easements are divided into affirmative and negative. Those 
 coming under the head of affirmative easements authorize the 
 commission of acts, which, in their very inception, are positively 
 injurious. The following are some of the instances of affirma- 
 tive easements mentioned in the standard work on the subject. 
 
 Eights of way (3). 
 
 Eight to make a surface uneven by working mines in such a 
 manner as to let it down. 
 
 Eight to go on a neighbour's close, and draw water from a 
 spring there. 
 
 Eight to use or to affect water of a natural stream in any 
 manner not justified by natural right. 
 
 Eight to discharge water or other matter on to a neighbour's 
 land. 
 
 Eight to carry on an offensive trade (*). 
 
 Negative easements are injurious consequentially only — re- 
 stricting the owner of the soil in the exercise of the natuial 
 rights of property. The principal negative easements are stated 
 in Gale on Easements to be the acquired right to receive light 
 and air by windows, and the acquired right to support of neigh- 
 bouring soil ('). 
 
 Easements may also be divided into continuous and dis- 
 
 annexed to land, while a licence, Q) Gale on Easements, 6tli ed. 
 
 unless coupled with a grant, is per- p. 19, et seq. 
 
 sonal to both grantor and grantee, and (') See Thomas v. Owen, 20 Q. B. D. 
 
 neither binding on the assignee of 225 ; Roe v. Siddons, 22 Q. B. D. 224. 
 
 the licence, nor generally assignable (■•) And see, for a lengthy enumera- 
 
 by the licensee : Gale on Easements, tioii of such easements : Gale, 6th td. 
 
 6th ed. p. 2, citing Kensit v. Great p. 20. 
 
 Eadtrn Railway Co., 27 Ch. Div. 122. (") See on this subject Lord Black- 
 
 (') Gale on Easements, dth edit. burn's judgment in Dalton v. Angus, 
 
 p. 6, et seq. (cited with approval 6 App. Caa. 740, 821. 
 Mounsey v. Ismay, 3 H. & C. 486). 
 
196 
 
 REAL PBOPEMTT. 
 
 [Book I. 
 
 Easements. 
 
 Provisions 
 of Con- 
 veyancing 
 Act, 1881, 
 as to ease- 
 ments. 
 
 contimious, and into apparent and non-apparent servitudes or 
 easements. 
 
 Continuous easements are tkose of which the enjoyment is or 
 may be continued without the necessity of any actual interference 
 by man, as a waterspout, or right to light and air. 
 
 Discontinuous easements are those the enjoyment of which 
 can only be had by the interference of man, as rights of way or 
 a right to draw water. 
 
 Apparent easements are those the existence of which is shewn 
 by external works, as a window, a watercourse. 
 
 Non-apparent easements are those which have no external 
 sign of their existence, as the prohibition to build on particular 
 land, or to build above a certain height. 
 
 Easements are created, or arise, either by express grant, or by 
 implied grant, or by prescription. 
 
 An express grant of an easement, unless by will, must be 
 made by deed of grant. 
 
 The Conveyancing Act (i) now provides with regard to cases 
 after the commencement of the Act, 1st of January, 1882, 
 that a conveyance of freehold land to the use that any person 
 may have, for an estate or interest not exceeding in duration 
 the estate conveyed in the land, any eapement, right, liberty, or 
 privilege in, or over, or with respect to that land, or any part 
 thereof, shall operate to vest in possession in that person that 
 easement, right, liberty, or privilege, for the estate or interest 
 expressed to be limited to him. Prior to this enactment, an 
 easement, or other similar interest could not be created by limi- 
 tation of a use under the Statute of Uses (as to which, see 
 ante, p. 17). 
 
 An equitable right to an easement may however be created 
 by an agreement (^). 
 
 An easement or gwasi-easement may arise by implied grant 
 where the owner of property sells and conveys a portion of that 
 property, reserving the remaining portion to himself. The 
 rules respecting the implication of an easement under such cir- 
 cumstances were stated in a well-known judgment by the late 
 Lord Justice Thesiger, as follows : — " Two propositions may bo 
 stated as the general rules governing cases of this kind. 
 
 " The first of these rules is, that on the grant by the owner of 
 a tenement of part of that tenement as it is then used and enjoyed, 
 there will pass to the grantee all those continuous and apparent 
 
 (1) 44 & 45 Vict. 0. 41, b. 62. 
 
 l^) See Gale on Easements, 6fh ed. 
 
 pp. 25, 58, anil see MoMamts v. Cooke, 
 35 Cb. D. 681. 
 
Chap. XVI.] INCORPOREAL HEREDITAMENTS. 197 
 
 easements (by whicli, of, course, I mean quasi easements), or, in Easements, 
 other -words, all those easements which are necessary to the 
 reasonahle enjoyment of the property granted, and which have 
 been and are at the time of the grant used by the owners of the 
 entirety for the benefit of the part granted. 
 
 " The second proposition is that, if the grantor intends to 
 reserve any right over the tenement granted it is his duty to 
 reserve it expressly in the grant ('). 
 
 " By an implied obligation or an implied right I mean this : 
 an obligation or right arising not from the express words of an 
 instrument, nor from that which, having regard to the circum- 
 stances, must be considered the true meaning and effect of the 
 words in the instrument ; but that obligation or that right 
 which results from the position into which the parties have 
 placed themselves by the contract. For instance, where one 
 man grants to another a house, then prima facie he cannot 
 interfere with that which he has granted ; there is an implied 
 obligation on him not to interfere with that which he has 
 granted ; namely, the house and enjoyment of the house. That 
 obligation arises, I repeat, not from any interpretation of the 
 conveyance, but from the duty which is imposed on the grantor 
 in consequence of the relation which he has taken upon himself 
 towards the grantee " (^). 
 
 An easement also arises by implied grant in the case of what 
 is called an easement of necessity. An instance of an easement 
 of this kind occurs in the case of a grant of land to which 
 access can be obtained only by passing over other land of the 
 grantor, the grant being implied of a right of way over the 
 grantor's land to the land granted. 
 
 The principal easements which are regarded by Mr. Gale as 
 of sufficient importance to require separate discussion are rights 
 to water, rights to light and air, rights of way, rights to support 
 from adjoining soil and houses (^). 
 
 The right to receive a flow of water in a natural stream, and Water. 
 transmit it in its accustomed course, is an ordinary right of 
 property — a natural right; the right to interfere with the 
 accustomed course, either by penning it back upon the land 
 
 (') Wheeldan v. Burrows, 12 Ch. D. legalisation of private nuisances, and 
 
 31 49. as to the rights analogous to ease- 
 
 Q) Birmingham, Dudley, and Dis- ments connected with party walls and 
 
 trict Banking Company v. Boss, 38 fences, as to which, see Watson v. 
 
 Oh Div 295 312. Gray, 14 Ch. D. 192; Buchan v. 
 
 (3) Gale on Easements, 6th ed., Artleit, W. N. (1888) 76. 
 see also Chapters v. and vi. as to 
 
198 
 
 :REAL PR0FERT7. 
 
 TBooK i: 
 
 Eights of 
 riparian 
 pro- 
 prietors. 
 
 above, or transmitting it altered in quality or quantity to an 
 extent not jiistified by natural right, is an easement (^). 
 
 The kw with reference to the rights of upper and lower 
 riparian proprietors is summed up in Swindon Waterworks Company 
 V. Wilts and Berks Ganal Navigation Company (^), where it is 
 regarded as so well settled in its general aspects as not to 
 require the citation of authorities. After speaking of the 
 ordinary rights of the lower , liparian proprietor, viz. that he 
 is entitled to the accustomed flow of the water for the ordinary 
 purposes for which he can use the water, if it be quite consistent 
 with the right of the upper owner also to use the water for all 
 ordinary purposes, namely, as has been said ad lavandum et 
 ad potandum, whatever portion of the water may be thereby 
 exhausteil, and may cease to come down by reason of that 
 use, the Lord Chancellor (Cairns) proceeded as follows : — 
 " But, further, there are uses no doubt to which the water may 
 be put by the upper owner, namely, uses connected with the 
 tenement of that upper owner. Under certain circumstances, 
 and provided no material injury is done, the water may be used 
 and be diverted for a time by the upper owner for the purpose 
 of irrigation. The exhaustion of the water which may thereby 
 take place may be so inconsiderable as not to form a subject 
 of complaint by the lower owner, and the water may be restored 
 after the object of irrigation is answered, in a volume sub- 
 stantially equal to that in which it passed before. Again, it 
 may well be that there may be a use of the water by the upper' 
 owner for manufacturing purposes, so reasonable that no just 
 complaint can be made upon the subject by the lower owner. 
 Whether such a use in any particular case could be made for 
 manufacturing purposes connected with the upper tenement 
 would, I apprehend, depend upon whether the use was a reason- 
 able one. Whether it was a reasonable use would depend, at 
 all events in some degree, on the magnitude of the stream from 
 which the deduction was made for this purpose over and above 
 the ordinary use of the water." 
 
 In an imiiortant case which came before the Court of Appeal 
 in 1884, the owner of land not abutting on a river with the 
 license of a liparian owner, took water from the river, and after 
 using it for cooling certain apparatus, returned it to the river un- 
 polluted and undiminished, and it was held that a lower riparian 
 owner could not obtain an injunction against the landowner so 
 taking the water, or against the riparian owner through whose 
 land it was taken. 
 
 (') Gale on Easements, 6th ed. p. 212. 
 
 C) L. E. 7 H. L. 702. 
 
Chap. XVI.] INCOEPOREAL HEREDITAMENTS. IQOf 
 
 Lord Justice Lindley, in delivering judgment, said that an Eipaiian 
 argument had been put that a man who was not a riparian P™P"etor. 
 proprietor had no right to take water from a stream at all, and 
 that if a riparian proprietor found any one who was not a 
 riparian proprietor taking water from the stream, although he 
 was not damnified, he might maintain an action. This, he 
 said, would lead to the absurd consequence that if there were a 
 riparian proprietor near the mouth of the Mississippi, and some- 
 body a thousand miles up diverted the water, an action might be 
 maintained, although there was no damage. Finally, the Court 
 declined to agree to the proposition that riparian proprietors in 
 a stream were a class of persons in the nature of a close borough, 
 and that any one of them had a right to object to the intro- 
 duction, into that class, of persons who had got no property 
 bordering on a stream (i). 
 
 The right to light will be hereafter considered {^post, p. 592), Air. 
 but a few words may be said with regard to the right to air. 
 It is now settled by modern decisions that the right of user of 
 air must be confined to that which comes through a definite 
 aperture. The leading authority of modern times is the case of 
 Webb V. Bird (2), where it was held that an action did not lie 
 for obstruction of the currents ol air to a windmill. 
 
 A right to lateral support from adjoining land may be Lateral 
 acquired by twenty years uninterrupted enjoyment for a ^"PP"'^ • 
 building proved to have been newly built, or altered so as 
 to increase the lateral pressure at the beginning of that time ; 
 and it is so acquired if the enjoyment is peaceable and without 
 deception or concealment and so open that it must be known 
 that some support is being enjoyed by the building Q). 
 
 " Eent " may be defined generally as a fixed tribute, issuing Kent. 
 out of lands and tenements corporeal, as part of their actual or 
 possible profits. It is usually, though not necessarily, payable 
 in money (*). 
 
 There were, at common law, three kinds of rents : rent- 
 service, rent-charge, and rent-seek, but the last-mentioned is 
 
 Q) Kensitv. Great Eastern Eailway 740. Support may be lateral or 
 
 Co., 27 Ch. D. (C.A.) 122 : see as to vertical, or partly lateral and partly 
 
 rights of riparian owners, Bourhe v. vertical. The law as to support is 
 
 Davis 44 Ch. D. 110; Booth v. elaborately discussed: McSwinney 
 
 Rattg, 15 App. Caa. 188. on Mines, 286-354. 
 
 (2) 10 C. B. (N.S.) 268 ; 13 C. B. (*) Burton's Compendium. As to 
 
 (N.S.) 841 ; and see Bryant v. Le- rents generally : see Cluns Case, 
 
 fever, 4 C. P. Div. 172 ; Harris v. and notes thereto, in Tudor's Real 
 
 De Pinna, 33 Cli. Div. 238; Bass v. Property Cases, 284; Edwards' Com- 
 
 Gregory, 25 Q. B. B. 481. pendium of the Law of Property in 
 
 (2; Dalton v. Angus, 6 App. Cas. Land, part 2. ch. iii. 
 
200 
 
 BEAL PROPERTY. 
 
 [Book I. 
 
 Rent. now olDsolete. Kent service is the rent due from a tenant to 
 
 the person of whom he holds his land. Such, for instance, is 
 the ordinary rent due from a tenant to his landlord. This rent 
 was originally called rent-service, as being a service incident 
 to the tenure of land. 
 
 A right of distress for the rent is inseparably incident to 
 rent-service (see as to distress, ante, p. 116). 
 
 A rent-charge is a rent granted by an owner of land to be 
 payable out of his land, with a power of distraining for the 
 same. A rent-charge may be granted for a term of years, for 
 life, in tail, or in fee simple. 
 
 At common law a power to distrain for rent, thus granted, 
 was not incident thereto unless an express power of distress 
 accompanied the grant of the rent. But by a statute of 
 George II. (^), a power of distress was made incident to this 
 and other kinds of rent. Moreover, the Conveyancing Act, 
 1881 (^), gives to the person entitled to a rent-charge a power 
 of distraining where the rent, or any part of it, is in arrear for 
 twenty-one days ; and where the rent, or any part of it, is in 
 arrear for forty days, a power to enter on the land and receive 
 the rents and profits thereof, until the arrears of the rent, with 
 all costs and expenses occasioned by non-payment, are fully 
 paid ; and in the like case also a power to demise the land by 
 deed to a trustee on trust, by mortgage, sale, or demise, for the 
 whole or any part of the term, or by receipt of the income 
 thereof, or by all or any of those means, or other reasonable 
 means, to raise and pay the annual sum and all arrears thereof 
 due, or to become due, with costs and expenses, and the surplus, 
 if any, of the money raised is to be paid " to the person for the 
 time being entitled to the land therein comprised in reversion, 
 immediately expectant on the term thereby created." 
 
 A rent-seek, or bare rent, was nothing more than a rent for 
 the recovery of which no power of distress was given either by 
 common law or agreement of the parties. But by the statute of 
 George II., already mentioned, a power of distress is made 
 incident to all such rents. 
 Common. Common is a right that one or more persons may have to take 
 
 or use a portion of the lands, waters, woods, or produce of the 
 lands of another (^). 
 
 Provisions 
 of Convey- 
 ancing Act, 
 1881, as 
 to rent- 
 charges. 
 
 (') 4 Geo. 2, 0. 28. 
 
 (2) 44 & 45 Vict. c. 41, s. 44. See 
 as to rent-cliarge. Be Wall, 59 L. J. 
 Oh. D. 183. 
 
 (') Ae to commons generally : see 
 
 Tyrringham's Case, and notes thereto, 
 Tudor's Keal Property Cases, 3rd ed. 
 p. 120 ; Edwards' Compendium of 
 Law of Property in Land, part 2, 
 ch. V. 
 
Chap. XVI.] INOORPOBEAL HEREDITAMENTS. 201 
 
 Common is chiefly of four sorts : common of pasture, of Common, 
 piscary, of turbary, and of estovers. Common of pasture is a 
 right of feeding one's beasts on another's land. Common of 
 piscary is the right of fishing in another's waters. Common of 
 turbary is the right of cutting turf on another's land. Common 
 of estovers is the right of cutting wood on another's land for 
 certain purposes. 
 
 Common of pasture over the waste lands of manors is appen- 
 dant by law to estates held by freehold tenants of manors ; and 
 by special custom copyholders may have the same right. 
 
 A right of common of any kind may be acquired as appur- 
 tenant to an estate in land, either bj' express grant or by pre- 
 scription ; and common " in gross," that is, not attached to the 
 ownership of land, may be acquired in the same way. 
 
 The common law as to acquisition by prescription (see ^post, 
 p. 208) has been altered by the Prescription Act (2 & 3 Wm. 4, 
 c. 71), as regards rights of common. By this Act a right of 
 common or other profit or benefit from or upon land (except 
 tithes, rent, and services) may be acquired by thirty years' 
 enjoyment, in some circumstances, and, under other conditions, 
 by sixty years' enjoyment. 
 
 Various provisions have been made by statute for the en- 
 closure of waste lands, over which rights of common are 
 enjoyed by persons. The principal statutes dealing with the 
 subject now in force are the Enclosure Act, 1845, and statutes 
 amending that Act (^). 
 
 The reader who desires further information on the subject of 
 easements is referred to Gale on Easements, 6th ed. by G. Cave, 
 notes. Sury v. Pigot, Tudor's Eeal Property. 
 
 It has been decided that grants by way of sale of rights and 
 easements of laying and maintaining pipes in land, are not 
 "conveyances of property" within Sched. I. Part i. of the 
 Conveyancing Act, 1881 (post, p. 845), and consequently the 
 scale is not applicable to solicitors' charges in respect of such 
 grants (^). 
 
 The following cases may be usefully consulted : — Barhshire v. 
 Gruhb, 18 Ch. D. 616 (Eight of way — where the previous 
 authorities are considered) ; Hollins v. Verney, 13 Q. B. D. 304 
 (Question of uninterrupted enjoyment of right of way) ; Bayley 
 
 (') 8 & 9 Vict. c. 118. see as to production of documents, 
 
 (2) In re Stewart, 41 Ch. D. 494 : Jones v. Watts, 43 Oh. D. 574. 
 
202 REAL PBOPERTT. . [Book I. 
 
 V. Great Western Bailway Co., 26 Ch. D. 434 (Eiglit of way) ; 
 SerffY. Acton Local Board, 31 Ch. D. 679 (Way of necessity); 
 Lemaitre v. Davis, 19 Cli. D. 281 (Eight to support from build- 
 ings) ; Birmingham, Dudley and District Banleing Co. v. Boss, 
 38 Ch. D. 295 (Light); Brown v. Alabaster, 37 Ch. D. 490 
 (Eight of way — Implied grant) ; Bussell v. Watts, 10 App. Cas. 
 590 (Light — Implied reservation). 
 
( 203 ) 
 
 CHAPTER XVII. 
 
 Statutes of Limitation and Presceiption. 
 One of the securities which the law affords for the enjoyment Principle 
 
 on which 
 the law is 
 
 of real property is the limitation of the time during which a 
 claim for its recovery may be enforced against the possessor, based. 
 Tor this purpose various statutes have been passed at different 
 times. 
 
 " If time," said Lord Plunket, " destroys the evidence of title, 
 the laws have wisely and humanely made length of possession a 
 substitute for that which has been destroyed. He comes with 
 his scythe in one hand to mow down the monuments of our 
 rights, but in his other hand the law-giver has placed an hour- 
 glass by which he metes out incessantly those portions of dura- 
 tion which render needless the evidence that he has swept 
 away"e). 
 
 It has been said (^) that the Statutes of Limitations, being as Interpreta- 
 they were emphatically termed by Lord Kenyon, " Statutes of *'™ °f , 
 Eepose," " passed for the quieting of men's estates, and the Limita- 
 avoiding of suits," ought to be liberally interpreted ; but the tio^s. 
 tendency of modem decisions would seem to be fo give them a 
 strict interpretation, the Courts proceeding on the principle 
 that the defence of the Statute of Limitations, though it may 
 often be a righteous one, is yet a creation of statute, and not to 
 be extended to oases not within the enactment (2). 
 
 Every species of prescription by which property is acquired 
 or lost is founded on this presumption, that he who has a quiet 
 and uninterrupted possession of any thing for a certain number 
 of years is supposed to have a just right, without which he 
 would not have been suffered to continue in the enjoyment of 
 it ; for a long possession may be considered as a better title 
 than can commonly be produced, as it supposes an acquiescence 
 
 (') See for another version of this bell's judgment in Bright v. Legerton, 
 
 celebrated passage which was de- 2 De G. F. & J. til7. 
 
 livered in an address to a jury : (') Tolson v. Kaye, 6 Moore, 558. 
 
 Taylor on Evidence, 8th ed., note, (^) Per Lord Cranworth, Boddam 
 
 p. 102, last edition. The idea of the v. Morley, 26 L. J. Oh. 438, 447. 
 passage is reproduced in Lord Camp- 
 
perty. 
 
 204 REAL PROPERTY. [Book I. 
 
 in all other claimants, and that acquiescence also supposes 
 some reason for which, the claim was forborne. 
 
 The object of all Statutes of Limitation, said Lord St. 
 Leonards, is to prevent claims at great distances of time when 
 evidences are lost, and in all well regulated countries the ques- 
 tion of possession is held to be an important point of policy ('). 
 Rights of With regard to the rights of the Crown, the law proceeds on 
 
 the Crown. ^^ principle nullum ten/pus occurrit regi, and accordingly no 
 Statute of Limitations affects the Crown without express 
 mention. By a statute of Geo. III., as amended by 24 & 25 Vict, 
 c. 62, however, the claims of the Crown to recover lands or here- 
 ditaments, or their profits (except liberties and franchises), are 
 barred after the lapse of sixty years from the time when adverse 
 possession was taken. 
 Claims to With respect to other claims to real property the principal 
 
 i,!tti''°" statutes now in force are the Limitation Acts of 1833, and the 
 Eeal Property Limitation Act, 1874 (^), the latter shortening the 
 period of limitation prescribed by the former. Under these 
 Acts no person can bring an action for the recovery of lands 
 unless within twelve years next after the time at which the 
 right to bring such action shall have first accrued to him, or 
 to some person through whom he claims (^). As to estates in 
 reversion or remainder, or other future estates, the right is 
 deemed to have first occurred at the time when any such estate 
 has become an estate in possession (^). But, by the Act of 1874, 
 where the person last entitled to any particular estate on which 
 any future estate was expectant was not in possession of the 
 land, &c., at the time when his interest determined, then the 
 action must be brought within twelve years next after the time 
 when the right to recover the land first accrued to the person 
 whose interest has so determined, or within six years next after 
 the time when the estate of the claimant has become vested in 
 possession, which ever shall be the longer period (5). 
 
 It is provided, however, that where an acknowledgment in 
 writing of the title of the person entitled is given to him or his 
 agent, signed by the person in possession, &c., the right to recover 
 the land shall be deemed to have first accrued at the time when 
 such acknowledgment was given («). And if when the right 
 
 (') Trustees of Dundee Harhour v. 37 & 38 Vict. o. 57, s. 1 ; Sands to 
 
 Dougall, 1 Mae(i. H. L. 0. 321. Thompson, 22 Ch. D. 614. 
 
 (2j 3 & 4 Wm. 4, c. 27 ; 37 & 38 (*) 3 & 4 Wm. 4, c. 27, a. 3. 
 
 Vict. c. 57. See Mayor of BrigMon l^) 37 & 38 Vict. c. 57, a. 2 ; Pedder 
 
 V. Guardians of Brighton, 5 C. P. D. v. Sunt, 18 Q. B. D. 565 
 
 368 ; Webster v. Southey, 36 Ch. D. 9. («) 3 & 4 Wm. 4, c. 27, s 14 
 
 (=) 3 & 4 Wm. 4, c. 27 and c. 42 ; 
 
fraud. 
 
 Chap. X VII.] STATUTES OF LIMITATION. 205 
 
 to bring the action first accrues tlie person entitled is under Persons 
 disability to sue by reason of infancy, coverture (if a woman j, \^l '^' 
 idiocy, lunacy, or unsoundness of mind, six years are allowed 
 from the time when the person entitled shall have ceased to be 
 under any disability, or shall have died, notwithstanding the 
 period of twelve years may have expired, yet so that the whole 
 period do not, including the time of disability, exceed thirty 
 years (^). Moreover, in any case of a concealed fraud, the right Concealed 
 of any person to bring an action for the recovery of any land or 
 rent, of which he, or any person through whom he claims, may 
 have been deprived by such fraud, is deemed to have first 
 accrued at and not before the time at which such fraud shall 
 be, or with reasonable diligence might have been, first known 
 or discovered ; except as against a hona fide purchaser for 
 valuable consideration who was not a party to, and had no 
 knowledge of, the fraud (^). 
 
 The period within which actions may be brought to recover Mortgages, 
 money secured on mortgages, judgments, liens, and charges on 
 land and legacies is now governed by the Eeal Property Limita- 
 tion Act, 1874, which came into operation on the 1st of January, 
 1879, and which is to be read in connection with the Statutes ot 
 Limitation, 3 & 4 Wm. 4, c. 27, and 1 Vict. c. 28. Sect. 8 of the 
 Act of 1874 provides that " no action or suit or other proceeding 
 shall be brought to recover any sum of money secured by any 
 mortgage, judgment, or lien, or otherwise charged upon or pay- 
 able out of any land or rent at law or in equity, or any legacy, but 
 within twelve years next after a present right to receive the same 
 shall have accrued to some person capable of giving a discharge 
 for or release of the same, unless in the meantime some part of 
 the principal money or some interest thereon shall have been paid, 
 or some acTcnowledgment of the right thereto shall have been given 
 in writing, signed by the person by whom the same shall be pay- 
 able, or his agent, to the person entitled thereto or his agent, 
 and in such case no such action or suit or proceeding, bat within 
 twelve years after such payment or acknowledgment, or the last 
 of such payments or acknowledgments, if more than one, was 
 given." It has been laid down that the principle on which all 
 Statutes of Limitation are based, is that any payment to " take 
 a case out of the statute," as it is called, must amount to an 
 acknowledgment by the person making the payment of his 
 liability, and an admission of the title of him to whom he pays. 
 
 (•) 3 & 4 Wm. 4, 0. 27, s. 16 ; Vict. c. 57, a. 9. 
 and see as to express trusts, Patrick (^) 3 & 4 Wm. 4, u. 27, s. 26. 
 
 V. Simpson, 24 Q. B, D. 128 ; 37 & 38 
 
206 EEAL PROFERTT. [Book I. 
 
 and accordingly a payment of rent by a tenant was lield not to 
 be sufScient {}). 
 
 Not very loug after the Eeal Property Limitation Act, 1874, 
 came into operation the following important point was decided 
 with regard to it : — 
 Mortgage A mortgagee brought his action on the covenant for paymt-nt 
 
 debt. Qf t]]ie amount which he had lent, with interest and costs. The 
 
 defence was that no part of the principal or inteiest had been 
 paid for more than twelve years before the commencement of the 
 action, and the defendant claimed the benefit of the Eeal Pro- 
 perty Limitation Act, 1 874, and of all Statutes of Limitation (^). 
 The Court of Appeal decided that, although twenty years is 
 the time allowed for suing on a covenant, the effect of this 
 section is, after twelve years from the last payment of interest 
 or acknowledgment in writing of the debt, to bar not only the 
 remedy against the land which is mortgaged, but also the per- 
 sonal remedy of the mortgagee upon the covenant. 
 
 A further point upon the construction of this statute was 
 settled by a case which came before the Court in the same 
 year (^). In this case, in which the mortgage was effected 
 by a conditional surrender of copyholds (ante, p. 99), the cove- 
 nant to pay the mortgage debt was contained in a bond which 
 was given by the mortgagor at the same time by way of 
 collateral security. The Court decided that the fact that the 
 mortgage was secured not by a covenant in the mortgage deed, 
 but by a collateral bond made no difference, and that conse- 
 quently the debt was barred as twelve years had elapsed since 
 tlie last payment of interest or written acknowledgment of the 
 mortgagee's debt. To hold otherwise, the Court of Appeal said 
 in a subsequent case, would be to give a different effect to an 
 instrument because it was not written on the same sheet of 
 paper. An important distinction was, however, taken in a case 
 which occurred some years afterwards. In this case a surety 
 had given a collateral bond to secure a mortgage debt, and the 
 bond was conditioned to be void on payment by the mortgagor 
 of principal and interest. The Court of Appeal lield that this 
 was not a proceeding to recover money secured on land, but to 
 recover damages, because another person failed to pay money 
 
 (•) Sarlock v. Asliberry, 19 Cli D. form in which the plaintiff inge- 
 
 539 ; Heath v. Pugh, 7 App. Cae. 235. niousty, but, as the result proved, un- 
 
 (_") Sutton V. Sutton, 22 Oli. Div. buccc-ssfully, brought his action. 
 51 1 ; and see Brett's Leading Cases in (') Fearnside v. Flint, 22 Ch. Div. 
 
 Modern Equity, p. 126, where atten- 579. See Hughes v. Coles, 27 Ch. D. 
 
 tion is directed to the very peculiar 231 ; Me Blackford, 27 Ch. D. 676. 
 
Chap. XVII.] STATUTES OF LIMITATION. 207 
 
 secured on land, and that it did not come witliin the scope of 
 the Eeal Property Limitation Act, 1874 Q). 
 
 The Eeal Property Limitation Act, 1874, further provides Charge on 
 that no action, suit, or other proceeding shall be brought to '*'"'• 
 recover any sum of money or legacy charged upon, or payable 
 out of, any land or rent, at law or in equity, and secured by an 
 express tru»t, or to recover any arrears of rent or of interest in 
 respect of any sum of money so charged or payable and so 
 secured, or any damages in re.spect of such arrears, except 
 within the time within which the same would be recoverable if 
 there were not any such trust (^). 
 
 The Act of 1874 also provides that when a mortgagee is in 
 possession of the mortgaged land, the mortgagor shall not bring 
 an action to redeem the mortgage but within twelve j'ears next 
 after the time when the mortgagor obtained possession, or next 
 after a written acknowledgment of the mortgagor's right to 
 redeem signed by the mortgagee has been given to the mortgagor 
 or his agent {f). 
 
 By the Limitation Act (3 & 4 Wm. 4, c. 27 (*) ), the time for Right of 
 bringing an action to enforce the light of presentation to a P5<=senta- 
 benefice is limited to sixty years, or three successive adverse 
 incumbencies, whichever be the longer period, with an extreme 
 limit of one hundred years of successive adverse incumbencies, 
 unless the benefice has been since possessed under a rightful 
 presentation. 
 
 The Judicature Act, 1 873, enacted that no claim of a cestui que Judicature 
 trust against his trustee for any property held on an express ^'^^' ■'■^''^• 
 trust, or in respect of any breach of such trust, should be held 
 to be barred by any Statute of Limitations Q). The effect of 
 this enactment was to extend the provisions of the former Statute 
 of Limitations with regard to land to personal property (^). 
 It is now provided by the Trustee Act, 1888, with regard to Trustee 
 proceedings commenced after the 1st of January, 1890, that in '^'^'^' ^^^^* 
 any action or other proceeding against a trustee or any person 
 claiming through him (excerpt where the claim is founded upon 
 any fraud or fraudulent breach of trust to which the trustee was 
 party or privy, or is to recover trust property, or the proceeds thereof, 
 still retained hy the trustee, or previously received by the trustee. 
 
 (■) In re Powers. Lindsell v. (*) Sect. 30, ei seg. Dart's Vendors 
 
 Phillips, 30 Ch. Div. 291. See also and Purchasers, 6th ed. 452, 453. 
 
 MeStep}iens,'i3 0h.D.39; Be Frisby, (') 36 & 37 Vict. c. 66, s. 25, 
 
 43 Oil. D. 106 sub-s. 2. 
 
 (2) 37 & 38 Vict. 0. 57, s. 10. («) Banner v. Berridge, 18 Ch. D, 
 
 C) Ibid. s. 7, 254. 
 
208 REAL PROPERTY. [Book I. 
 
 and converted to Ms use) all rights and privileges conferred by any 
 statute of limitations shall be enjoyed in the like manner and 
 to the like extent as they would have been enjoyed in such 
 action or other proceeding if the trustee or person claiming 
 through him had not been a trustee or person claiming through 
 Mm. The section also provides that if the action or other 
 proceeding is brought to recover money or other property, and 
 is one to which no existing statute of limitation applies, the 
 trustee or person claiming through him shall be entitled to the 
 benefit of and be at liberty to plead the lapse of time as a bar 
 to such action, or proceeding in the like manner and to the like 
 extent as if the claim had been against him in an action of 
 debt for money had and received, but so nevertheless that the 
 statute shall run against a married woman entitled in posses- 
 sion for her separate use, whether with or without a restraint 
 upon anticipation, but shall not begin to run against any 
 beneficiary, unless, and until the interest of such beneficiary 
 shall be an interest in possession Q). 
 
 No beneficiary, as against whom there would be a good 
 defence, by virtue of this section shall derive any greater or 
 other benefit from a judgment or order obtained by another 
 beneficiary than he could have obtained if he had brought such 
 action or other proceeding, and this section had been pleaded. 
 Prescrip- The law with regard to prescription, with reference to rights 
 
 tion. of an incorporeal character, is now governed to a great extent 
 
 by the Prescription Act, 2 & 3 Will. 4, c. 71, which was passed 
 in 1832, to shorten prescription in the following cases (2) : — 
 
 1. With regard to rights of common or other profits or 
 benefits from or upon land (except tithes, rents, and services). 
 
 2. Ways or other easements, water-courses, or the use of 
 any water. 
 
 The enjoyment of an easement in order that a right to it may 
 be conferred by length of time, must be continuous, open, 
 peaceable, and " as of right." In the language of the Eomau 
 law, which is in precise accord with the English on this subject, 
 the enjoyment must be " nee vi nee clam nee precario " (^). 
 
 3. The access and use of light to and for any houise, work- 
 shop, or other building. 
 
 As to rights of common, &c., the Act provides that where 
 
 (') 51 & 52 Vict. c. 59, s. 8. p. 203. The distinction between 
 
 (') See as to prescription at com- casements and profits a prendre, " the 
 
 mon law, notes to the statute in right to take something out of tlie 
 
 Shelford's Real Property Statutes. soil,'' (e.g. right of pasture, digging 
 
 (') Gale on Easements, 6th ed. sand), must be borne in mind. 
 
Chap. XVIL] STATUTES OF LIMITATION. 209 
 
 such a matter has been enjoyed by a person claiming right 
 thereto, without interruption, for a period of thirty years next 
 before the commencement of an action in which the matter has 
 been brought into question, the oLiim shall not be defeated 
 merely by proof that it was first taken or enjoyed at some time 
 prior to the commencement of that period, though it shall 
 remain liable to be defeated in any other way in which it was 
 defeasible before the Act ; and when such right, profit, or 
 benefit shall have been enjoyed for the full period of sixty 
 years, it shall be deemed absolute. 
 
 The provision with regard to ways, easements, and water- 
 cou'ses, is similar, with the variation of twenty and forty years 
 instead of thirty and sixty. 
 
 With regard to light, the Act provides that when the access Light, 
 and use of light to and for any dwelling-house, workshop, or 
 other building, shall have been actually enjoyed therewith for 
 the full period of twenty years without interruption, the right 
 thereto shall be deemed absolute and indefeasible, any local 
 usage or custom to the contrary notwithstanding, unless it shall 
 appear that the same was enjoyed by some consent or agree- 
 ment, expressly made or given for that purpose by deed or 
 writing ('). i 
 
 (') Sollins V. Verney, 13 Q. B. D. eluding the celebrated case of Flight 
 304, where the previous oases, in- v. Thomas, are considered. 
 
 VOL. I. 
 
( 210 ) 
 
 Married 
 Women's 
 Propertr 
 Act, 1882. 
 
 Law in- 
 dependent 
 of Married 
 Woinen*s 
 Property 
 Act. 
 
 CHAPTER XVIII. 
 
 Married Women's Property. 
 
 The law witli regard to the property of married women has 
 been practically revolutionised by the Married "Women's Pro- 
 perty Act, 1882, which Ciune into operation on the 1st of 
 January, 1883. It will, however, be necessary to state briefly 
 the law on the subject which exists independently of that im- 
 portant statute, as it still applies to a considerable number of 
 cases. 
 
 In order, we are told in Mr. Macqueen's ' Eights and Lia- 
 bilities of Husband and Wife,' to understand the doctrine 
 of the common law upon the subject of the wife's chattels 
 personal in possession, it is necessary to bear in mind that, 
 according to a legal fiction of the ancient jurists, the husband 
 and wife became one person in law, or rather, the personality 
 of the wife was merged in that of the husband. This prin- 
 ciple was carried out to its logical result so far as rights of 
 property were concerned ; but it was qualified, if not aban- 
 doned, when it was necessary to consider the acts of the wife. 
 As to these, the wife was regarded as distinct from her husbanci, 
 but so entirely under his power and control, that she could do 
 nothing of herself, but everything by his licence and authority 
 (see, as to the application of this principle to the wife's criminal 
 liability, jjosi, p. 1166 (i)). 
 
 Marriage, it is stated in Cote upon Littleton, " is an absolute 
 gift of all chattels personal in possession in the wife's own 
 right, whether the husband survive the wife or no." The 
 former law with regard to the personal property of married 
 women was in fact quaintly expressed in the saying : " Husband 
 and wife are one, and the husband is that one" (^). With 
 
 (') Macqueen's Husband and Wife, 
 p. 19 '3rd ed., liy J. C. & E. B. 
 
 Euss<-ll), to which I must acknowledge 
 my obligations in connection with 
 this cliapter 
 
 C) Co. Litt. 300. A somewhat 
 similar idea is to be found in tlie 
 follnwing lines which Shakespeare 
 has put into the mouth of Petruchio : 
 
 " I will be master of what is mine 
 
 own; 
 She is my goods, my chattels; 
 
 she is my house, 
 My household stuff, my field, my 
 
 barn. 
 My horse, ray ox, my ass, my 
 
 any thing." — Shakespeare. 
 Taming of the Shrew, Act iii., sc. ii. 
 
Chap. XVIII.] MARRIED WOMEN'S PROPERTY. 
 
 211 
 
 regard to choses in action, i.e. debts, money on deposit, bills of 
 exchange, &o., the law was that they became the property of 
 the husband if he reduced them into possession, e.g. by receipt Reduction 
 of a debt. The law as to what amounted to i eduction into into pos- 
 possessiun htis been summed up as follows : — Nothing has ever 
 been held to amount to retluctinn into possession of a wife's 
 choses in action which does not give the husband for .-ome moment 
 of time absolute dominion over the property without any con- 
 cunenre of the wife (i). 
 
 With regard to chattels real which belonged to the wife Chattels 
 before marriage, the law was that the husband might dispose i'**^- 
 of them at his pleasure, either absolutely or by way of mort- 
 gage, but he could not dispose of them by will. If the husband 
 survived the wife, the wife's chattels real became his absolutely 
 in his marital right (^). If, on the other hand, the husband 
 died without having aliened them, the wife was entitled to 
 them by survivorship. 
 
 As to her real e^tale, the husband was entitled to the freehold, 
 and took the rents and profits during the coverture. 
 
 A rigid adherence to the rule of common law as to the unity 
 of husband and wife was obviously the fruitful souice of much 
 injustice to the wife. To remedy this, the two great doctiines Separate 
 of (1) the " separate use," and (2) the restiaint on anticipation, "'•'* ^""^ 
 were introduced into the law. In former years (said a gi eat judge, ^^ antici- 
 the bite Loid Justice James), and down to times within my pation. 
 recollection, judges of what used to be the Common Law Courts 
 of this realm delighted in ap[)lying, rigidly and strictly, a seiies 
 of rules and maxims which their predecessors had delighted 
 themselves in devising ; although they did not alwuy.-i commend 
 themselves to the aiiprehension of the million. Anmngst those 
 maxims was one by whii-h a mariied woman was held incapable 
 of taking a gift, either from her husband or from a sti anger — 
 holding that in tlie one case it remained and in the other 
 became the husband's propurty : " but the Court of Chancery (a 
 very great Court in its day, although it has now ceased to 
 exist) invented that blessed word and thing ' the separate use 
 of a married woman,' and as that Court never allowed itself to 
 be impeded or obstructed by mere technicalities, it provided, 
 whenever it was necessary, that the husband should be made a 
 trustee of whatever property came to him in his marital right, 
 which ought to be so held." 
 
 48. 
 
 (') Nicholson v. Drury, 7 Ch. D. 
 8. 
 (^) Donne v. Hart, 2 Russ. & My. 
 
 360 ; Duberley v. Day, 16 Beav. 33 ; 
 Be Bellamy, 25 Ch. D. 620, where 
 tlie authorilies are colkcted. 
 
212 
 
 REAL PBOPERTT. 
 
 [Book I. 
 
 Restraint 
 on antici- 
 pation. 
 
 Married 
 Wqmen's 
 Property 
 Act, 1882." 
 
 " The legal right was nut interfered with, but the hushand 
 was made a trustee for his wife " (^). The Conrt of Equity then 
 went further still by allowing a married woman to be restrained 
 from anticipating her property. The law of this country, said 
 the late Sir George Jessel (f), declares " all property shall be 
 alienable ; but there has been one exception to the general law, 
 for a restraint on anticipation or alienation was allowed in the 
 case of a married woman. That was purely an equity doctrine, 
 the invention of the Chancellors, and is an exception to the 
 general law which says that property shall not be inalienable. 
 That exception was justified, on the ground that it was the 
 only way, or at least the best way, of giving property to a 
 married woman. It was considered that to give it to her with- 
 out such a restraint would be practically to give it to her 
 husband, and therefore to prevent this, a condition was allowed 
 to be imposed resiraining her from anticipating her income and 
 thus fettering the free alienation of her property." 
 
 The equitable doctrine of " separate use " was, as we have 
 seen, originally a creation of the Court of Chancery. In latter 
 years it has been made the subject of express legislation in 
 various statutes culminating in the Married Women's Property 
 Act, 1882 (^), which came into operation on 1st Januaiy, 
 1883. 
 
 The object of this Act, as it has been judicially stated, is not 
 to destroy the " doctrine of the common law by which there 
 was what has been called a unity of person between husband 
 and wife, but to confer in certain specified cases new powers 
 upon the wife and in others new powers upon the husband, and 
 give to them in certain specified cases new remedies against one 
 another " (*), not to place the feme coverte in the position of the 
 feme sole purely and simply (5), but to extend the right of 
 acquiring property and to confer powers of disposition over it, 
 when acquired, either by act inter vivos, or by will. 
 
 Section 1 (1) provides that a married woman shall, in accor- 
 dance with the provisions of the Act (e), be capable of acquiring. 
 
 (') Per James, 1,.J., Ashworth v, 
 Putram, 5 Cii. D. 041. 
 
 (^) See Re MicUey, Bucldon v. Bay, 
 11 Oil. D. C45, 649; see as to tlie 
 liistory, &c., of tlje doctrine of re- 
 straint on anticipation : Prett's Lewd- 
 inf? Cases in Equily, p. 230, et seq. 
 
 (^) Tlie Divorce and Matrimonial 
 Causes Act, 20 & 21 Vict, c. 85; 
 i;lie Married Women's Property Act, 
 1870, 3a & 34 Vict. c. 93 ; the Mar- 
 
 ried Women's Property Act (1870) 
 Amendment Act (1874), 37 & 38 
 Vict. c. 50. 
 
 e) Per Wills, J., ButUr v. Butler, 
 14 Q. B. D, 835,836; see albo Be 
 Jupp, 39 Oil, D. 148. 
 
 C) Myles V. Burton, 14 L. E. Ir, 
 
 (') See as to tlie effect of these 
 words, He Cuno, 43 Ch, D. 12. 
 
Chap. XVIII.] MARRIED WOMEN'S PROPERTY. 213 
 
 holding, and disposing by will or otherwise, of any real or 
 personal property as her separate property, in the same manner 
 as if she were a feme sole, without the intervention of any 
 - trustee. 
 
 The capacity of a married woman, as it was said in a very Capacity of 
 recent case, to take property is only altered between herself and, "'*"''«<' 
 
 r f J J women to 
 
 her husband C^). "The true view," it was there stated, " ap- hold pro- 
 pears to be that the wife had unlimited capacity before the Act to P^'''y- 
 acquire property, but that upon its acquisition the marital right 
 of the husband gave him certain interests in it which the Act- 
 has interfered with. That seems to me to be the extent to 
 which her status, if that be the right word, is intended to be 
 altered." 
 
 "But for collateral purpnses, that is, for any purposes in 
 re.--peot of property, except altering her right to property as 
 between herself and her husband, I do not find in the Act any 
 intimatiim of an intention to chHnge her legal position. If 
 that had been the intention, I should have expected to find 
 in the Act an express provision to the effect, for example, 
 that in all questions relating to property the husband and 
 wife should be considered, not only as between themselves, 
 but also as between them and third persons, two separate 
 individuals, and that the old law of unity of persons should be 
 abolished." 
 
 In a case decided in 1889, where a testator gave the residue 
 of his estate unto " William B., Elizabeth B., his wife, Sarah B., 
 wife of Henry K., Jane B.,the wife of George D., George Dixon B., 
 Cyrus C, and Charlotte C. his wife, to be equally divided between 
 them, share and share alike," it was held that the residue was 
 divisible into sevenths, each husband and each wife taking a 
 separate share (2). 
 
 The general principle of the law, as stated by Lord Thuilow 
 just one hundred years ago, is that property the moment it can 
 be enjoyed must be enjoyed with all its incidents (3). 
 
 The sub-section in question, accordingly, having enlarged the Disposition 
 capacity of a married woman to acquire property, also expressly "f property- 
 gives the correlative right of disposition " by will or other- ^amen^^ 
 wise." But although the right of testamentary disposition is 
 thus conferred on married women " in wide words " by the 
 
 (1) Re Jupp, 39 Ch. D. 148, 151 ; 12 Ch. D. 306, where the previous 
 
 see also Re March, 24 Ch. D. 222 ; authorities are considered. 
 
 27 Ch. D. 166, see ante, p. 63. (^) Fettiplace v. Gorges, 1 Ves. 
 
 C) In re Dixon. Byram v. Tull, Jun. 49. 
 
women s 
 will: 
 
 214 BEAL PBOVERTY. [Book I. 
 
 Married Women's Property Act, 1882, it must be alwaj's care- 
 fully borne in mind tliat the wills of married women " will not 
 in all respects have the same effect as those of spinsters " (^). 
 Marr'ed Thus it has been held in Re Price, Stafford v. Stafford (f), that 
 a married woman is only enabled to dispose by will of property 
 of which she is seised or possessed during coverture, and as a 
 consequence a will made by a married woman during coverture 
 must be re-executed after she has become discovert, in order to 
 render it effectual to dispose of property acquired after the 
 coveitiire has come to an end (^). 
 
 Again, in a case where balances of accounts and investments 
 kept in the joint names of husband and wife survived to the 
 wife, and the wife died five days after her husband, the Court 
 decided that these balances were excluded from the operation of 
 a will she had executed during coverture (*). 
 
 A third illustration of this principle is afforded by a case 
 decided in 1887. 
 
 An Act passed in 1803 excluded (with perhaps some lack of 
 gallantry, not only in principle but also in the language em- 
 ployed by the draftsman) " Women covert without their hus- 
 bands," along witii "infants and persons of non-sane memory," 
 from the privilege of making gifts, grants, and alienations by 
 deed enrolled, or will executed three months before death, of 
 lunds not exceeding five acres, or goods and chattels not exceed- 
 ing £500, towards building any church or cliapel (f). It was 
 held that the Married Women's Property Act did not operate so 
 as to repeal the exception contained in the previoun enactment, 
 and that accordingly a gift by will by a married woman of 
 £300 to be applied in the erection of a new church was 
 invalid ("). 
 Liability of Polio wir]g on this provision as to the acquisition, &c., of 
 property, comes a power to contract and a concurrent liability, 
 for the Act provides (in sub-sect. 2 of the 1st section) that a 
 married woman shall be capable of entering into and rendering 
 herself liable in respect of and to the extent of her separate 
 property on any contract, and of suing and being sued, either 
 in contract or in tort, or otherwise, in all respects as if she 
 
 married 
 women, 
 
 (') Be Smith. Clements v. Ward, perty Act, 1882, see Theobald on 
 
 35 Oil. Div. 589. -Wills, o. 3, and Macqueen's Husband 
 
 O 28 Ch. D. 709 and Wife. 
 
 C) In re Cum. Mansfield v. Mans- ^ Be Young. Try e\. Sullivan, 28 
 
 field, 43 Oh. D. 12, followins Willock Cli. D. 705. 
 
 V. Noble, L. E. 7 H. L. 580. As to (») 43 Geo. 3 e. 108. 
 
 the wills of man-ied women, indepen- (=) Be Smith's Estate. Clements v. 
 
 dently of the Married Women's Pro- Ward, 35 Ch. D. 589. 
 
Chap. XVIIL] MARRIED WOMEN'S PROPERTY. 215 
 
 were a feme sole, and her Imsband need not be joined with her Liability of 
 as plaintiff or defendant, or be made a party to any action or -n-omen. 
 other legal proceeding brought by or taken ajiiainst 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 other- 
 wise. 
 
 The meaning of these words has been carefully considered in 
 several cases. The words, it was said in one case, " are clear 
 that a married woman can enter into and render herself liable 
 as if she were a, feme sole, not upon any contract, but only upon 
 contracts in respect of her separate estate" Q-). The Act, it 
 was said, in another cnse, is an Act in favour of the wife, and 
 it does not affect the liability of the husband, " except in those 
 instances where there is a specific limitation." It was accord- 
 ingly decided that the liability of a husband for his wife's 
 wrongful acts still remains, and a plaintiff may sue the husband 
 and wife joinily, or the wife alone, for wrongs committed by 
 her after marriage (^j. 
 
 A married woman can sue her husband for arrears of main- Actions by 
 tenance, due under a contract for separation, by way of com- ™^''"sd 
 promise of legal proceedings (^). She can maintain an action 
 for slander (*), for trespass against her separate pioperty (f), 
 for assault and false imprisonment C^), probably for libel on her 
 trade ('), and even for a tort committed before the Act came 
 into operation (^). In a case decided in 1886 the question arose 
 whether a married woman was entitled to maintain an action 
 for assault and false imprisonment committed before 1st January, 
 1883, when the cause of action had accrued more than four years 
 before suit, and it was held that as the action was brought 
 within four years after 1st Jan., 1883, when she became dis- 
 covert by the operation of the Married Women's Property Act 
 she was entitled to maintain the action (^). 
 
 As a married woman may " sue and be sued " in all respects Actiona by 
 
 and against 
 married 
 
 (') DraycottY. Sarrison,n Q.B.I). (') McGregor v. McGregor, 21 women. 
 
 152. Q. B. D. 424. 
 
 (2) Serolca v. Kattenburg, 17 (*) Weldon v. Neal, 32 W. E. 828. 
 
 Q. B. D. 179. It was decided in (») Weldon v. De Bathe, 14 
 
 BaMn v. Hughes, 31 Ch. D. 390, tliat Q. B. D. K39. 
 a husband's liability for breaolies of (") Lowe v. Fox, 15 Q. B. D. 667. 
 
 trust by tbe wife extends to breaches (') Summers v. City Sank, L. E. 
 
 aiising from negligence, and is not 9 C. P. 580. 
 
 con lined to losses occasioned by active (•) Weldon v. Winslow, 13 Q. B. D. 
 
 misconduct. See, as to wife's liability, 785. 
 JIale V. Sheldrake, W. K. (1889) 27. (.") Lowe v. Fox, 15 Q. B. D. 667. 
 
216 SEAL PEOPEMTY. [Book I. 
 
 as if she were a feme sole, she is not required to give security 
 for costs, even though she has no separate estate (*). But where 
 she sues by a next friend security may he ordered (2). 
 
 The power of " suing and being sued," however, only relates 
 to matters affecting the married woman personally. She 
 cannot therefore fill the oflflce of next friend or guardian ad 
 litem (^). 
 
 One of the objects aimed at by the Act was the protection and 
 security of the wife's separate estate. It has been decided (*) 
 that a wife cannot take criminal proceedings against her husband 
 for a defamatory libel upon her concerning her profession of a 
 vocalist ; although it was left undecided by the Court whether 
 an action for the libel could be maintained. 
 
 Where a married woman was in sole possession of a house, 
 being the product of money earned by her own exertions, the 
 Court of Appeal held that she might maintain an action for 
 trespass against a person who had entered the house against her 
 will, but with the authority of her husband. Lord Justice 
 Lindley observed that " whatever his (the husband's) rights are, 
 he cannot authorize anybody to intrude on the possession of his 
 wife's separate property " (^). And where a house was settled 
 upon a married woman for her separate use, and she and her 
 husband were living apart, an interim injunction was granted 
 to restrain the husband from going to and using the house for 
 his own purposes (^). But this jurisdiction will only be invoked 
 to preserve the separate property, and not to prevent a husband 
 from enjoying the society of his wife. 
 
 A married woman may still be sued, for any liability either in 
 contract or in tort incurred before marriage, and her separate 
 property is the fund primarily liable for any judgment and costs 
 recovered in respect thereof ('). Her husband is also under a 
 similar liability to the extent of all property he acquires or 
 becomes entitled to through his wife ("). The husband and the 
 wife may be sued either separately or jointly for such ante- 
 nuptial liabilities, and where the husband's liability is estab- 
 
 (') Be Isaac. Jacob v. Isaac, 30 sufSoient publication : see Wennhah 
 
 Ch. D. 418. V. Morgan, 20 Q. B. D. 635, and post, 
 
 (') Be Tlwmpson. Stevens v. p. 457. 
 
 Thompson, 38 Cb. D. 317. (') Weldon v. De Bathe, 14 Q. B. D. 
 
 (3) Be Duke of Somerset, 34 339. 
 
 Ch. Div. 465. (") Symonds v. Hallet, 24 Ch. Div. 
 
 (*) Beg. V. Lord Mayor of London, 346. 
 
 16 Q. B. D. 772. And see Summer (') 45 & 46 Viet. 0. 75, s. 13. 
 
 V. City Banlc, L. E. 9 C. P. 580. As (») Sect. 14, and a^e De Stacpoole 
 
 to whether tlie communication of a v. De Stacpoole, 87 Cb. T>. 139, 
 libel from husband to the wife is 
 
Chap. XVIII.] MARRIED WOMEN'S PROPERTT. 217 
 
 listed there will be a joint judgment against him personally 
 and against the wife as to her s^ parate property (').. 
 
 The law with regard to the husband's liability for his wife's Ante- 
 ante-nuptial debts was much considered in a case which came j"/'*'"'^' 
 before the Court of Appeal in 1889 (2). In this case a judgment 
 had been recovered by the plaintiff in an action brought a*;ainst 
 a married woman in respect of an ante-nuptial debt of the wife's. 
 Tlie judgment, however, remained unsatisfied, because she had 
 no separate e.state. An acticjn was afterwards brought by the 
 plaintiif against the husband, who had acquired property from 
 his wife to an amount exceeding the debt. The Court decided 
 that the judgment recovered against the wife was no defence to 
 the action against the husband. It was, however, decided in the 
 same case that a husband cannot he made liable uuder the pro- 
 visions of the Married Women's Property Act, 1882, for an 
 ante-nuptial debt of the wife which accrued due against the 
 wile more than six years before the commencement of the action. 
 
 In this case the law on the subject was reviewed by Lord 
 Justice Lindley as follows : — " Tlio Married Women's Property 
 Act, 1882, has entirely altered the law as regards the liabilities 
 of husbands for their wives' ante-nuptial debts. First, he can 
 now be sued without her, and whether she be alive or dead. 
 Secondly, he can be sued with her under s. 15, if the plaintiff 
 seeks to establish his claim wholly or in part against both hus- 
 band and wife ; but in this case the judgments may be separate, 
 Hlthough, to , the extent to which they are both liable, the 
 judgment may be 'a j(jint judgment against the husband 
 personally, and against the wife as to her separate property.' 
 What the word 'joint' means in this sentence is not clear. 
 Thirdly, the husband's liability is no longer unlimited • as at 
 common law ; it is limited to the value of the wife's property 
 which he may have acquired (see s. 14). Fourthly, as between 
 him and her he is entitled to be indemnified out of her separate 
 property (see s. 13)." 
 
 The Act provides that " any damages and costs recovered " Damages 
 against the married woman are to be "payable out of her '""^ "^"^ ^" 
 separate property and not otherwise." 
 
 A judgment against a married woman accordingly does not 
 create a personal liability, but, to borrow a phrase from a judg- 
 ment in a leading case on the ttubject, " a proprietary liability " 
 in respect of her separate property (f). 
 
 (') 45 & 46 Viot. u. 75, s. 15. Q. B. D. 548; Jay v. EoUnson, 25 
 
 C) Beck V. Pieroe, 23 Q. B. D. Q. B. D. 467. 
 316, and see Axford v. Reed, 22 C) Scottv. MorUy,20Q,,B.'D.12i. 
 
218 
 
 REAL PB0PEET7. 
 
 [Book I. 
 
 Form of 
 judgment. 
 
 Debtors 
 Act. 
 
 Contracts 
 of married 
 women. 
 
 The proper fonn of final judgment against a married woman 
 tinder sect. 1, sub-sect. (2) of the Married Women's Property- 
 Act was settled by the Court of Appeal (') as follows : " Jt is 
 adjudged that the plaintiff do recover £ and costs (to be 
 taxed) against the defendant (the married woman), such sum 
 and costs to be paid out of her separate property, as hereinafter 
 mentioned, and not otherwise. And it is ordered that execution 
 hereon be limited to the separate property of the defendant (the 
 married woman) not subject to any restriction against antici- 
 pation, unless, by reason of sect. 19 of the Married Women's 
 Property Act, 1882, the property shall be liable to execution, 
 notwithstanding such restriction " (seeposi, p. 221 ). 
 
 In that case also it was decided that a married woman is 
 not within the Debtors Act, 1869, and could not be committed 
 under its provision for disobedience to an order for pay- 
 ment (2). 
 
 A husband can now maintain an action against his wife and 
 charge her separate estate with money lent by him to her after 
 marriage, and tor money paid by him for her after marriage at 
 her request (^). 
 
 Every contract entered into by a married woman is now to 
 be deemed to be a contract entered ■ into by her with respect 
 to and to bind her separate property, unless the contrary be 
 shewn, but the practice rules no longer require that it should 
 appear on the face of the writ that sho is suing or sued in 
 respect of her separate estate (*). 
 
 Again, the Married Women's Propeity Act, 1882, provides 
 that every contract (which by the 24th section is defined to 
 include the acceptance of any trust or of the ofBce of executrix 
 or administratrix) entered into by a married womnn with 
 respect to and to bind her separate property shall bind not only 
 
 (>) Scott V. Morley, 20 Q. B. Div. 
 120, 132, and see Leak v. Driffield, 
 24 Q. B. D. 98 ; Holtby v. Hodgson, 
 24 Q. B. D. 103. 
 
 Q) The Court will direct an en- 
 quiry of wliat the separate estate 
 consists, and appoint. a receiver who 
 will receive what would otherwise 
 be paid to the married woman : 
 McGarry v. Wliite, 16 L. E. Ir. ;h22 
 (where the plaintiff was appointed 
 receiver). See also Beckett v. Tasker, 
 19 Q. B. D. 7; Re Pearce and 
 Waller, 24 Ch. Div. 408 ; Re Duke of 
 Somerset, 34 Oh. D. 465. 
 
 (') Butler V. Butler, 16 Q. B. D. 
 
 374. A married woman can give a 
 sole undertaking as to damages : Re 
 Prynw, 53 L. T. (N.S.) 465 ; and a 
 husband can enforce against her 
 such imdertalciug given to the Court 
 upon obtaining an injunction again>-t 
 liim: Sunt v. Hunt, 54 L. J. Ch. 
 289. 
 
 (•") Miirried Women's Property Act, 
 18(^2, s. 1, sub-s. 3. Central OfBce 
 Practice Eules, 5, see as to state- 
 ment of cLiim : Tetley v. Griffith, 
 57 L. T. (N.S.) 673; Be Roper, 
 lioper V. Doncaster, 39 Ch. D. 482; 
 Leak v. Driffield, 24 Q. B. D. 98. 
 
Chap. XVIII.] MARRIED WOMEN'S PROPERTY. 219 
 
 the separate property wliicli Bhe is possessed of or entitled to at 
 the date of the contract, but also all separate property which 
 she may thereafter acquire Q). 
 
 This sub-section very materially alters the law laiii down in 
 the well-known case of Pihe v. Fitzgihbon (2) decided in the 
 year 1881. The Court of Appeal there decided that where a 
 mariied woman has separate property, and is restrained from 
 anticipating, the only separate property which can be reached 
 i-i the separate property or the residue of the separate property 
 that she had at the time of contracting the engagements which 
 ir, is sought t(j enforce. 
 
 The eifect of this sub-section is, that when the married woman 
 has " unsettled separate property " (3) upon which section 19 
 (jpost, p. 221) would be inoperative, a contract entered into by 
 her binds not only the separate property she is possessed of at 
 the date of the contract, but all separate property thereafter 
 acquired during the coverture (*). 
 
 A very important limitation with regard to the liability of a 
 married woman's separate property has, however, been estab- 
 lished by recent decisions. In order that her contract should 
 bind her future separate property it must be entered into at a 
 time when she has existing separate property. In order to 
 entitle a plaintiff to succeed he must plead aud prove the exiist- 
 eucB of some separate property at the time of entering into the 
 alleged contract (*). 
 
 The 5th sub-section renders a married woman who carries 
 on a trade separately from her husband liable to bankruptcy 
 in respect of her separate estate (see post, p. 901). 
 
 Sect. 2 of the Act introduces a very important change by 
 providing that every woman who marries after the commence- 
 ment of this Act shall be entitled to have and to hold as her 
 separate property and to disjjose of in manner aforesaid all real 
 
 (') Sect. 1, sTib-s. 4r. under which the summonses ■were to 
 
 (^) 170h. D. 454, 461. be withdrawn, the parties were to 
 
 (^) See Ee Armstrong, 21 Q. B. D. live apart, the husbaad was to allow 
 
 264. This sectioji is not retrospective : the wife a weelily sum for mainten- 
 
 see Conolan v. Leyland, 27 Ch. D. ance, ami the wife was to indemnify 
 
 632; Turiibullv. For7nan,15Q,.B.I>. the husband against any debts she 
 
 234. might contract, the Court decided 
 
 (') Beckett v. Tasker, 19 Q. B. D. that the parties had power to validly 
 
 10. enter into such a contract without 
 
 O Falliser v. Gurney, 19 Q. B. D. the intervention of a trustee, and 
 
 519 ; Be Shakespear, 30 Ch. D. 169. that accordingly an action brought 
 
 In a recent case where a hus- by the wife for arrears of mainten- 
 
 band and wife had taken out cross- ance was maintainable : McGregor v. 
 
 summonses for assaults, and then McGregor, 20 Q. B. D. 529 ; afiirmed, 
 
 entered into a verbal agreement 21 Q. B. D. 424. 
 
220 
 
 REAL PROPERTY. 
 
 [Book I. 
 
 Loan by 
 husband to 
 wife. 
 
 Powers. 
 
 Settle- 
 ments. 
 
 and personal property wbicii 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 oc- 
 cupation, 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. 
 
 Sect. 3 provides that any money or other estate of the wife 
 lent or entrusted by her to her husband for the purpose of any 
 trade or business carried on by him, or otherwise, shall be 
 treated as assets of her husband's estate in case of his bank- 
 ruptcy, under reservation of the wife's claim to a dividend as a 
 creditor for the amount or value of such money or other estate 
 after, but not before, all claims of the other creditors of the 
 husband for valuable consideration in money or money's worth 
 have been satisfied. This section only applies where the 
 husband is a sole trader, and accordingly where a married 
 woman lent her own money to a trading partnership of which 
 her husband was a member, she was entitled on the bankruptcy 
 of the partnership to prove against the joint estate in competi- 
 tion with other creditors Q"). 
 
 Sect. 4 provides that the execution of a general power by 
 will by a married woman shall have the effect of making the 
 property appointed liable for her debts and other liabilities in 
 the same manner as her separate estate is made liable under 
 this Act. 
 
 Under the previous law there was some conflict of opinion, 
 where the power of appointment was only by will, whether in 
 the absence of fraud a married woman's property was rendered 
 liable to meet her engagement, but all such doubts are now 
 completely set at rest by this section (2). 
 
 Sections and 19 of the Act muot be considered together. 
 Section 5 deals with the question of property acquired after the 
 Act. The 19th section saves existing settlements and the power 
 to make future settlements. 
 
 Sect. 5, dealing with the case of those who have entered into 
 
 (') In re Tuff. Ex parte Notting- 
 ham, 19 Q. B. D. 88, and see In re 
 Tidswell, 35 W. E. 669; 56 L. J. 
 (Q.B.) 549, where it was held that a 
 wife may prove for money lent to her 
 husband for private as distinguished 
 from trade purposes ; and see Be 
 Genese, 16 Q. B. D. 700. 
 
 (^) See as to general power of 
 apjjointment, ante, p. 176. See John- 
 
 son V. Gallagher, 3 D. P. & J. 494. 
 See also Be Armstrong, 17 Q. B. D. 
 521, Fry, Ij.J., where the autliorities 
 are fully discussed. London Chartered 
 Bank v. Lempriere, L, E. 4 P. C. 572 ; 
 Be Sarvnj. Godfrey v. Harben, 13 
 Ch. D. 216; Hodges v. Hodges, 20 
 Ch. D. 749, and as to bankruptcy, 
 post, p. 919. 
 
Chav. XVIIL] married WOMEN'S PROPERTY. 221 
 
 tlie matrimonial state before 1st Jannary, 1883, provides : 
 " 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 com- 
 mencement of this Act, including .any wages, earnings, money, 
 and property so gained or acqijired by her as aforesaid." 
 
 The Court of Appeal decided in the leading case on this subject 
 that where a woman, married ia 1871, had, before the 1st of 
 January, 1883, acquired a title to property, such property was 
 not made her separate estate under this section merely by 
 falling into possession after the Act. " The object of these 
 words," said the Court of Appeal, " is to make it clear that all 
 property in which the married woman iirst acquires a title 
 after the commencement of the Act comes within the ojieration 
 of this section, whatever the nature of that title may be " Q). 
 If, however, the property when it falls into possession is subject 
 to a settlement, the operation of this section will be excluded, 
 by reason of section 19, which preserves all rights acquiied 
 under settlements (^). 
 
 Sections 12 & It) confer to some extent reciprocal rights on Criminal 
 husband and wife with regard to property, but it is to be W"'^'^^'^- 
 obseiwed that the wife has civil and criminal remedies against, 
 the husband for the protection and security of her separate pro- 
 perty, w^hile by sect. 16 the husb.md has only criminal remedies 
 against the wife. The wife's criminal remedies, however, do 
 not exist when she and her husband are living together. It is 
 only when the husband has deserted or is about to desert his 
 wife that redress by criminal proceedings is open to her. In 
 any criminal proceedings authorised by the Act, husband and 
 wife are now competent and admissible to give evidence as 
 witnesses against each other, and are, except when defendants, 
 compellable to give evidence (^). 
 
 Section 19 (*) provides that nothing in this Act contained shall Settle- 
 interfere witli or affect any settlement or agreement for a settle- '"<^"*'^- 
 ment made or to be made, w^hether before or after marriage, 
 respecting the property of any married woman, or shall interfere 
 
 Q) Reid v. Eeid. 31 Oh. Div. 402 ; Act, 1884 (47 & 48 Vict. cap. 14), 
 
 and see as to spes successioms. Be passed in consequence of Reg. v. 
 
 Parsons, 45 Ch. D, 51. BrittUton, 12 Q. B. D. 206. 
 
 Q) See post. sect. 19. and Saneoclc C) See Jayv. Robinson, 25 Q. B. D. 
 
 V. Hancock, 3S Ch. D. 78. 467. 
 
 (0 The Married Women's Property 
 
222 REAL PROPERTY. [Book I. 
 
 Settle- with or render inoperative any restriction against anticipation 
 ""'^ °' at present attached or to he hereafter attached to the enjoy- 
 
 ment of any property or income by a woman under any settle- 
 ment, agreement for a settlement, will, or other instrument; 
 but no restriction against anticipation contained in any settle- 
 ment or agreement for a settlement of a woman's own property 
 to be made or entered into by herself shall have any validity 
 against debts contracted by her before marriage, and no settle- 
 ment 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. 
 
 In a case in which a married woman became entitled, on the 
 denth of her father in 1884, to a share of personalty not limited 
 to her separate use, the question arose whether this was bound 
 by a covenant to settle after-acquired property contained in 
 an ante-nuptial settlement made in 1873, or whether it became 
 the separate property of the wife under sect. 5. The Court 
 decided that the property was bound by the covenant ('), and 
 laid down the principle that the effect of sect. 19 is to modify 
 the operation of sect. 5, so that pursons interested under a settle- 
 ment of a married woman's property are not by sect. 5 deprived 
 of any benefit to whiuh they would have been entitled if it had 
 never been enacted. 
 Liability of ipj^g principle on which a husband is held liable on his wife's 
 husband. . j , i • , • i ■ i . , i . 
 
 cimtncts IS that she is acting as his agent and with his autho- 
 rity e). 
 
 This subject received very careful consideration in the House 
 of Lords in 1880, in the case of DebenJiam v. Mellon, when the 
 judgment pronounced in 1864 in the well-known case of Jolly 
 V. Bees was upheld, and the following important principles were 
 laid down : — 
 
 Where the husband neither does, nor assents to, any act to 
 show that he has held out his vsdfe as his agent, to pledge his 
 credit for goods supplied on her order, the question whether she 
 bears that character must be examined upon the circumstances 
 of the case. That question is a question of fact. The manage- 
 ment of the husband's house w(juld raise a presumption of 
 agency as to matters necessarily connected with that manage- 
 
 (') Re Wliilalcer. Clirutian v. Q. B. D. 273 ; afl3rmlng 17 Q. B. D. 
 
 Whitalcer, 34 Ch. Div. 227; Ranrock 176. 
 
 V. Hancock, 38 Ch. D. 78 ; where the (") Macqneen's Husband and Wife, 
 
 cases on tlie subject aie discussed ; 3,d ed. p. V/3 ; Manhy v. Scott, Smith's 
 
 and Be Queade, 33 W. R. 816, dis- Lending Cases, vol. i. ; Jolly v. Bees, 
 
 approved ; and sec Ee Armstrong, 21 \5 C. B. (N.S.) 628. 
 
Chap. XVIII.] MARRIED WOMEN'S PROPERTY. 223 
 
 ment, which miu;ht not be got rid of by a mere private arrange- Liability of 
 ment between husband and wife. But it would be otherwise "^ ^° ' 
 where such management did not exist Q-'). 
 
 In this case Lord Selborno expressed himself as follows : 
 
 " According to all the authorities, there is no such mandate 
 in law from the fact of marriage only, except in the particular 
 case of necessity ; a necessity which may arise when the 
 husband has deserted the wife, or has by his conduct compelled 
 her to live apart from him, without properly providing for 
 her, — but not when the husband and wife are living together, 
 and when the wife is properly maintained ; because there is, in 
 that state of circumstances, no prima facie evidence that the 
 husband is neglecting to discharge his necessary duty, or that 
 there is any necessary of^casion for the wife to run him into debt, 
 for the purpose of keeping herself alive, or supplying herself 
 w^ith lodging or clothing." 
 
 Sects. 6, 7, 8, 9, contain provisions with regard to stocks, &c.. Stock, 
 standing in the name of a married woman, or which are trans- shares, &c. 
 ferred to her ; unless tbe contrary is shown she is to be deemed 
 beneficially entitled thereto for her separate use, and her separate 
 estate alone is liable to answer any liability incident thereto. 
 
 No corporation or company is, however, compelled to admit a 
 man ied woman to be a holder of any shares or stock to which 
 any liability may be incident contrary to its ci institutional 
 regulations. A married woman will have the benefit of these 
 provisions in the case of her being jointly interested with any 
 other persons or person, other than her husband, in stocks, &c., 
 and it will not be necessary for her husband in resp&;t of her 
 interest to join in transfers, whether the account is joint or 
 separate. Sect. 10 provides for the case of an investment by a 
 married woman of her husband's money without his consent. 
 The Court has power to transfer such an investment to the 
 husband, and it is provided that nothing in the Act shall give 
 validity as against the husband's creditors to any gift by a 
 husband to his wife if the gift continues in the order and dispo- 
 sition or reputed ownership of the husband or to any invest- 
 ment by the husband in the name of his wife in fraud of his 
 creditors, but the money may be followed as if the Act had not 
 been passed. 
 
 A married woman has express power by sect. 11 of the Married Insurance. 
 Women's Property Acf, 1882, to effect a contract of insurance on 
 (1) Her own life ; or (2) her husband's life for her separate use, 
 and " the same and all beriefit thereof shall enure accordingly." 
 
 (') Vebenliam v. Mellon, 6 App. Cas. 24, 31. 
 
224 
 
 SEAL PBOPEBTT. 
 
 [Book I. 
 
 Insur 
 
 Power to 
 determine 
 questions. 
 
 Married 
 woman 
 executrix, 
 administra- 
 trix, or 
 trustee. 
 
 Support of 
 
 husband, 
 
 &c. 
 
 If the policy on either life is effected for her separate use, it 
 will form pait of her separate estate, and he liable to her debts. 
 
 A husband or wife may effect a policy on his or her own life 
 for the benefit of 
 
 (1) The other of them, i.e., the husband on the wife's life, 
 
 or the wife on the hnsband's life, or 
 
 (2) Their children, or any of them, or 
 
 (3) The other of them and their children, or any of them. 
 The policy must express for who^e benefit it is efiected, and a 
 
 trust will then be created in favour of the objects named, and 
 the policy moneys will not form part of the estate of the insured, 
 nor will they be subject to his or her debts so long as any object 
 of the trust remains unperformed (^). 
 
 Where a policy is effected and the premiums are paid with 
 intent to defraud the creditors of the insured, the crediiors have 
 a charge on the policy money to the amount of the premiums 
 so paid (2). 
 
 Sect. 17 expressly enables any judge of the High Court of 
 Justice to determine all questions between husband and wife as 
 to the title to or possession of property. Either party may 
 require the dispute to be heard in private, and any order made 
 is subject to appeal in the same way as any other order made by 
 the same Court would be (f). 
 
 Sect. 18 enables a married woman who is an executrix or 
 administratrix or a trustee to sue and be sued, and to join in 
 and make transfers of stucks without her husband, as if she were 
 a, feme sole ; the concurrence of the husband in an administration 
 bond is therefore no longer necessaiy (^). 
 
 Before the Married Women's Pioperty Act, 1882, a wife was 
 not bound to maintain her husband or even to contribute to the 
 isuppoit (if the family. 
 
 A married woman having separate property is now liable to 
 the parish for the maintenance of her husband, her children, and 
 
 (') Sect. 11 Married WoiiK-n's Pro- 
 perty Act, 1882. In a case where the 
 policy was effected by a husband for 
 the "benefit of his wife and chil- 
 dren," the words were construed as 
 giving the wife a life interest with 
 remainder to the children ; Re Adams' 
 Policy, 23 Oh. Div. 525. But in a 
 subsequent case it was held that the 
 widow and children took as joint 
 tenants: Re Seyton, 34 Oh. Div. 511. 
 See as to appointment of new trustees. 
 Re Soutar's Policy Trusts, 26 Ch. D. 
 236 ; Scuultze v. Hchullze, 56 L. J. 
 
 D. 
 
 (Ch.) 356. 
 
 C^) See Holt v Everall, 2 Ch 
 2i:6. 
 
 C) Phillips V. PMlUps. 13 P. D. 
 220; Wood v. Wood, 14 P. D. 157, 
 where it was held that the registrar 
 liad no jurisdiction. Tliere are also 
 pi'oyloions in this section for the 
 dec! ion of such questions by county 
 conrt judges in England, and judges 
 of the civil bill courts in Ireland. 
 
 C) Re Hawksworth, 83 L. T. 80 ; 
 Re Ayres, 8 P. D. 168. 
 
Chap. XVIII.] MARRIEB WOMEN'S PROPERTY. 225 
 
 grandchildren just as the husband is now liable. But it is ex- 
 pressly provided that nothing in the Act shall relieve the 
 husband from any liability imposed on him by law to maintain 
 the children or grandchildren Q"). 
 
 It is also provided that for the purposes of the Act the legal 
 personal representative of any married woman shall in respect 
 of her separate estate " have the same rights and liabilities and 
 be subject to the same jurisdiction as she would be if she were 
 living " (2). 
 
 It has been decided that although the law casts upon a 
 husband the duty of burying his wife, he is not always bound 
 to do so at his own cost. So, where a married woman exercised 
 a general power of appointment by will, and appointed her 
 husband executor, but omitted to mention the payment of her 
 funeral expenses, the husband was allowed to retain them out 
 of the appointed fund, though her estate was insufficient for her 
 creditors (f). 
 
 Closely connected with separate estate is the subject of pin- Pin-money, 
 money, which is defined as a provision for the wife's dress and 
 pocket, to which there is annexed a duty of expending it on her 
 " personal apparel, decoration, or ornament " (f). If the wife 
 permit her pin-money to run in arrear, it would seem that should 
 she survive her husband she would be entitled to demand only 
 one year's arrear of the amount due before his death (f). 
 
 The subject of the wife's equity to a settlement, which was Equity to a 
 formerly a prominent cardinal doctrine of the Courts of Equity, ^*' '^°"^" " 
 is now of comparatively slight practical importance. As the 
 law now stands, the question can only arise when the marriage 
 was contracted and the title to the property acquired before 
 the 1st of January, 1883. The principle on which the Court 
 proceeded was that he who seeks equity must do equity, and 
 the rule was that, whenever a husband sought the assistance of 
 a Court of Equity to recover property, the Court, as the price of 
 its assistance, obliged him to make a provision for the wife if 
 she required it. The wife could actively assert this equity as 
 plaintiff. The equity was personal to the wife, and she could 
 waive it, but unless she waived it, it always extended to the 
 children of the marriage. 
 
 In one of the last cases upon the subject of equity to a settle- 
 ment, where the fund in question was about £1500, producing an 
 
 (>) Sects. 20, 21. 658. 
 
 (2) Sfct. 23. (*) Peacock v. Monk, 2 Ves. Sen. 
 
 (=) In re M^Myn, 33 Ch. D. 577. 190 ; Thrupp v. Marman, 3 My. & K. 
 
 (<) Howard v. Digbij, 2 CI. & F. 513. 
 
 VOL. I. Q 
 
226 
 
 BEAL PEOPERTY. 
 
 [Book I. 
 
 Equity to 
 a settle- 
 ment. 
 
 Fraud on 
 
 marital 
 
 rights. 
 
 Parapher- 
 Tialia. 
 
 Acknow- 
 ledgment 
 of deeds. 
 
 income of not over £60, and where the husband had persisted 
 in disregarding an order of the Court for restitution of con- 
 jugal rights, and declared that his wife and he should not live 
 together again, the Court considered that the conduct of the 
 husband amounted to " aggravated misconduct," and that, under 
 all the circumstances of the case, the whole fund ought to be 
 settled on the wife and children (}). 
 
 The amount to be settled i.s in the discretion of the judge, who 
 will take into account all the circumstances, ex. gr., a previous 
 settlement, or any property of the wife's which had previously 
 been acquired by the husband. 
 
 The amount generallj' settled is one-half, in some cases a 
 larger proportion, and, under special circumstances, the whole 
 fund, ex. gr., the husband's insolvency or cruelty, &c., or where 
 the husband had already received part of the fund, or the whole 
 fund. 
 
 Another doctrine of equity which has become, if not wholly 
 obsolete, at all events of very slight practical importance, since 
 the revolutionary changes introduced by the Married Women's 
 Property Act of 1883, is that of "fraud on marital rights." 
 The leading case on this subject is that of the Countess of 
 Strathmore v. Bowes, where a settlement made by a lady, who, in 
 Lord Thurlow's opinion, had only marriage in general as her 
 object, as she was disposed to marry any person but not to part 
 with her fortune, was under the circumstances not set aside (^). 
 
 The paraphernalia of the wife are such articles of personal 
 apparel, personal ornament, and persona] convenience suitable to 
 her rank and degree, as she continued to use during the marriage. 
 
 Down to the year 1833 a married woman could only convey 
 her interest in real estate by a, fine levied in the Court of Com- 
 mon Pleas with the concurrence of her husband. A fine was a 
 fictitious suit commenced and then compromised by leave of the 
 Court whereby the lands were acknowledged to be the right of 
 one of the parties ; and when a married woman was a party it 
 was necessary that she should be examined separately from her 
 husband to ascertain that she joined in the fine of her own free 
 will and not through compulsion. In the year 1833 this 
 clumsy process was abolished by the Fines and Eeooveries Act 
 (3 & 4 Wm. 4, c. 74 (ante, p. 35, et seq.)), and in lieu of it was 
 substituted a deed executed by the married woman with her 
 husband's concurrence. The deed miist, however, be acknow- 
 
 (') Eeid V. Eeirl. 33 Ch. D. 220. Tuilor's Leading Cases, vol. i ; Boxall 
 C) Strathmore V. Bowes, 1 yes. Jnv. v. Boxall, 27 Cii. D. 22(1. 
 22, and boo notes theroto ; White and 
 
Chap. XVIII.] MARRIED WOMEN'S PROPERTY. 227 
 
 ledged before a judge or two commissioners (now one commis- 
 sioner), who, before taking the acknowledgment, satisfies himself 
 by separately examining the woman that she freely consents to 
 the deed. 
 
 The law with regard to the acknowledgments of deeds by 
 married women is now of very little practical importance, as all 
 property which belongs to women married after 31st December, 
 1882, or acquired by them after 31st December, 1882, is their 
 separate property, and may consequently be disposed of by 
 them, as if they were femes soles, without any acknowledgment. 
 The practice on this subject has been altered by the 7th section 
 of the Conveyancing Act, 1882, by the abolition of certificates 
 of acknowledgment, and the substitution of one commissioner 
 for two (1). 
 
 One of the essential purposes of the separate examination of 
 the wife is to ascertain what is the bargain between her and the 
 husband — that is, whether the purchase-money is to belong to 
 him or not. Accordingly, in a case when a married lady had 
 acknowledged the conveyance before the commissioners, and had, 
 on being separately examined by them, refused any provision 
 out of the purchase-money or otherwise, she was treated as 
 having given up to her husband all claim upon the purchase- 
 money and as having no further interest in it in any way, 
 and that though a portion of the money had been left outstand- 
 ing in the hands of trustees as an indemnity fund against an 
 annuity charged on the estate (^). 
 
 The 39th section of the Conveyancing Act, 1881 (which came Removal of 
 into operation on the 1st of January, 1882), confers a com- restraint 
 pletely new power upon the Court with reference to property pation. 
 settled upon married women with restraint upon anticipation 
 by providing that : Notwithstanding that a married woman is 
 restrained from anticipation, the Court may, if it thinks fit, 
 where it appears to the Court to he for her benefit, by judgment or 
 order, with her consent, bind her interest in any property. The 
 section however applies only to judgments or orders made after 
 the commencement of the Act (^). 
 
 Suppose there is a bequest to a married woman for her Restraint 
 
 on antici- 
 pation. 
 
 (') 45 & 46 Vict. c. 39, s. 7 ; and (') See the numeroua cases on 
 
 see Be Docwra, 29 Ch. D. 693 ; and as this section reviewed : note to Gierke 
 
 to County Courts, 51 & 52 Vict. c. 44, and Brett's Conveyancing Acts, 
 
 g ]^y^ p. 161, and see Be Little. Sarrison 
 
 (2) Tennent v. Welch, 37 Ch. D. v. Harrison, 40 Ch. D. 418 ; Latham 
 
 622, where the law on the subject is v. Latham, W. N. (1889) 171. 
 reviewed. 
 
 Q 2 
 
228 REAL PBOPERTT. [Book I. 
 
 separate use absolutely, and this is followed by a clause restrain- 
 ing her from anticipation; is the restraint on anticipation 
 effectual, or can she claim that the fund should be paid over to 
 her ? This question gave rise to a good deal of conflict which 
 may now be considered as settled. 
 
 The principle upon which the Court proceeds is, what was the 
 intention of the testator, did he intend that the legatees should 
 have the capital paid over to them, or did he intend that the 
 trustees should retain the fund in their hands with a restraint 
 against the married women anticipating their shares ? (i) 
 Settled Sect. 61 of that extremely important statute, the Settled 
 
 ■^gg2 Land Act, 1882, contains a provision that a married woman, if 
 
 entitled for her separate use, is to have the powers of a tenant 
 for life under the Act without her husband ; but if not entitled 
 for her separate use, then along with her husband, and that the 
 provisions of the Act are to apply to her alone, or to her and her 
 husband, as the case may be. It is also provided by the same 
 section that a restraint on anticipation in the settlement is not 
 to prevent the exercise by a married woman of any power under 
 the Act. 
 
 In a case where a testator bequeathed a share of his residuary 
 personal estate in trust for his son for life, and after his decease 
 in trust for any wife of the son's for life, it was held that a 
 woman from whom the son had been divorced previous to the 
 testator's death was not entitled to the income (2). 
 
 The law as to a widow's rights when her husband dies 
 intestate is considered hereafter (p. 341, et seq.). 
 
 As questions concerning the property of married women are 
 of extreme importance and frequent occurrence, the following 
 list of statutes specially referring to that subject may be of 
 service : 
 
 3 & 4 Will. 4, c. 74 (Fines and Eecoveries Act), sects. 77 
 
 et seq. ; and see Be Docwra, 29 Ch. D. 693 ; 
 3 & 4 WUl. 4, c. 105 (Dower Act) ; 
 18 & 19 Vict. c. 43 (Infants' Settlement Act (;post, p. 612)) ;. 
 
 20 & 21 Vict. c. 67 (Malins' Act, as to reversionary 
 interests) ; 
 
 C) Re Sown, 27 Ch. D. 41], and (') Be Morrieson, 40 Ch. D. 30, ob- 
 
 aee Be Tippelt's andNewbould's Con- serving on Bullmore v. Wynter, 22 
 
 tract, 37 Ch. D, 444, and casea there Ch. D. 619. 
 referred to. 
 
Chap. XVIII.] MABBIED WOMEN'S PBOPERTT. 229 
 
 20 & 21 Vict. c. 85 (Divorce Act (amended by 21 & 22 
 Vict. c. 100) enabling the Court to grant protecting 
 orders) ; 
 
 33 & 34 Vict. c. 93, and 37 & 38 Vict. c. 50 (Married 
 Women's Property Acts, 1870 and 1874). Both re- 
 pealed (but with a saving clause) by sect. 22 of the 
 Married Women's Property Act of 1882. 
 
 37 & 38 Vict. c. 78, sect. 6 (Vendor and Purchaser Act) ; 
 
 44 & 45 Vict. c. 41 (The Conveyancing Act), sects. 39 and 
 
 40; 
 
 45 & 46 Vict. 0. 38 (Settled Land Act, 1882) ; 
 
 45 & 46 Vict. 0. 75 (The Married Women's Property Act, 
 
 1882) ; 
 
 46 & 47 Vict. c. 52 (Bankruptcy Act, 1883), sects. 29 and 
 
 47, as to settlements. 
 
 46 & 47 Vict. c. 61 (Agricultural Holdings Act, 1883), 
 sect. 26 ; 
 
 49 & 50 Vict. 0. 52 (Married Women (Maintenance in case 
 of Desertion) Act, 1886), enabling women who are 
 deserted to summon their husbands for maintenance : 
 Pope v. Pape (20 Q. B. D. 76) ; 
 
 53 & 54 Vict. c. 29 (The Intestates' Estate Act, 1890), post, 
 p. 341, et seq. 
 
( 230 ) 
 
 Mortmain'' 
 and Chari- 
 table Uses 
 Act, 1888. 
 
 CHAPTER XIX. 
 
 Chaeities and Mortmain. 
 
 In a former portion of this work (ante, p. 49), some allu- 
 sion has been made to the subject of charities, and it is now 
 proposed to devote a short chapter to the consideration of some 
 of the leading principles of the law connected with that difBcult 
 and important subject, so far as it is concerned with property, 
 and also of the law as to mortmain which is usually associated 
 with the law of charities, and has been dealt with along with it 
 by the legislature in the important statute to which we shall 
 now refer. 
 
 The subject of gifts to charities and the law as to mortmain 
 is now to a great extent controlled by a Consolidating and 
 Amending Act, which was passed in the year 1888, under the 
 title of the Mortmain and Charitable Uses Act, 1888 (51 & 52 
 Vict. c. 42). 
 
 As this statute repeals, though with a large measure of sub- 
 stantial re-enactment, a very considerable portion of the previous 
 legislation upon the subject of charities and mortmain, and 
 practically forms the existing code of statute law on these 
 subjects, it will be desirable to consider its provisions in some 
 detail. 
 
 This Act is divided into four parts. The first part deals 
 with assurances in mortmain. Alienation in mortmain, in 
 mortud manu, is defined by Blackstone to be an " alienation of 
 lands or tenements to any corporation, sole or aggregate, 
 ecclesiastical or temporal " (y). The origin of the term " mort- 
 main " is stated by Lord Coke to be that the lands were said to 
 come to hands which were dead as far as the Lord was con- 
 cerned, i.e., yielded no service inasmuch as the lords lost their 
 escheats, wardships, &c. (2). The present statute enacts that 
 where land is assured to a corporation in mortmain otherwise 
 
 C) 2 Bl, Com. 268. 
 
 (f) Part of the present Act repro- 
 duces tlie old statute De Viris 
 Keligiosis [repealed iu the schedule]. 
 The power to grant licences in mort- 
 niuiu, preserved by the present Act 
 
 (s. 2), was first made the subject of 
 enactment by 7 & 8 Wm. 3, c. 37. See 
 for the history of this, Tudor's Charit- 
 able Trusts, 3rd ed. byL. S.Briatowe 
 and W. I. Cook. 
 
Chap. XIX.] CHARITIES AND MORTMAIN. 231 
 
 than under the authority of a statute for the time being in 
 force, or of a licence from the Queen (power to grant such 
 licence being by s. 2 given to her Majesty), the land so assured 
 may be forfeited from the date of such assurance. If the land 
 be held directly from the Crown it is forfeited to the Crown ; 
 if from one or more mesne lords, to such mesne lord or lords, 
 provided entry under the forfeiture is made within certain 
 periods. If there be no such entry the forfeiture is to the 
 Crown. No entry for forfeiture under this part of the Act is 
 to merge, or extinguish, or otherwise .affect any rent or service 
 which may be due in respect of any land to her Majesty or any 
 otlier lord thereof (s. 3). 
 
 The second part of the Act treats of assurances to charitable 
 uses, and re-enacts with slight modification the Act 9 Geo. 2, 
 c. 36, commonly, but inaccurately, referred to as the Statute of 
 Mortmain. The law as to charities is to a very large extent a 
 creation of statute. Charities are largely controlled by statute : 
 (1) in their very definition ; (2) with regard to dispositions of 
 property for their benefit ; (3) with regard to their regulation 
 and control. 
 
 With regard to the meaning of " charity," Sir William Grant What is 
 in an oft-quoted judgment, Morice v. Bishop of DurMm (^), said : "^^"^-y ^ 
 " That word in its widest sense denotes all the good affections 
 men ought to bear towards each other ; in its most restricted 
 and common sense, relief of the poor. In neither of these 
 senses is it employed in this Court. Here its signification is 
 chiefly derived from the Statute of Elizabeth. Those purposes 
 are charitable which the statute enumerates, or which by 
 analogies are deemed within its spirit and intendment ; and to 
 some such purpose every bequest to charity generally shall be 
 applied." The statute here referred to is 43 Eliz. c. 4. 
 
 The charitable objects enumerated in the Statute of Eliza- 
 beth, the archaic language of which is specially preserved in the 
 present Act, are as follows : " Eelief of aged, impotent, and poor 
 jjeople, maintenance of sick and maimed soldiers and mariners, 
 schools of learning, free schools and scholars in universities, 
 repair of bridges, ports, havens, causeways, churches, sea-banks, 
 and highways, education and preferment of orphans, relief, stock 
 or maintenance for houses of correction, marriages of poor maids, 
 ■ supportation, aid and help of young tradesmen, handicraftsmen, 
 and persons decayed, relief or redemption of prisoneis or cap- 
 
 (') 3 Vcs. at p. 405. 
 
232 
 
 BEAL PROPERTY. 
 
 [Book I. 
 
 What are 
 charities ? 
 
 Trusts for 
 tombs. 
 
 tives ; aid or ease of any poor inhabitants concerning payment 
 of fifteens, setting out of soldiers, and other taxes." (') 
 
 What are charities within the intendment of the Statute of 
 Elizabeth ? Here we embark upon a wide sea of decisions which 
 have established that not only are trusts for the benefit of the 
 poor and relief of the sick, aged and infirm, charitable, but also 
 trusts for such general purposes as the advancement of educa- 
 tion or religion, the general benefit of the inhabitants of a place, 
 or even of a limited class of persons, provided the individuals 
 are not ascertained. Thus it has been held that gifts for the 
 erection of waterworks for the use of the inhabitants of a town ; 
 to be applied for the good of a place ; for charities and other 
 public purposes in a parish ; for the general improvement of a 
 town; for the establishment of a life-boat; or of a botanical 
 garden ; to the trustees and for the benefit of the British 
 Museum; to the Eoyal, the Geographical, and the Humane 
 Societies are charitable (^). 
 
 On the other hand, bequests for the purposes of general 
 benevolence and liberality, which need not necessarily include 
 any charitable object, are not charitable. 
 
 An immediate gift to the poor relations or kindred of the 
 testator, or of any one else, whether made directly or entrusted 
 to the discretion of the executors, or any other person or persons, 
 is a private gift and not a charity (^). 
 
 A bequest for the support of a tomb inside a church is 
 charitable, while a bequest to support one outside is not (*). 
 In a case which came before the Court in 1889 in which it was 
 also decided that a tiust for the maintenance of specified horses 
 and hounds so long as they should live, &c., was not a charity, the 
 law as to trusts for tombs was summed up as follows : " There 
 is not the least doubt that a man may if he pleases give a 
 legacy to trustees upon trust to apply it in erecting a monument 
 to himself, either in a church or in a churchyard, or even in un- 
 consecrated ground, and I am not aware that such a trust is in 
 any way invalid, although it is difficult to say who would be 
 the cestuis que trust of the monument. In the same way I know 
 of nothing to prevent a gift of a sum of money to trustees, upon 
 trust, to apply it for the repair of such a monument. In my 
 opinion such a trust would be good, although the testator must 
 
 Q) This enumeratioii of charitable 
 objects is preserved by sect. 13 of 
 51 & 52 Vict. c. 42. 
 
 (2) Jaiman on "Wills, 4th ed. 208, 
 and I'udoi's Charitable Trusts, 3rd 
 ed. chapter i., passim. 
 
 C) Tyssen's Charitable Trusts,151. 
 
 (*) See the numerous cases on this 
 subject collected in Tudor's Charit- 
 able Trusts, 3rd ed. p. 7 i Me Vaughan, 
 33 Ch. D. 187. 
 
Chap. XIX.] CHARITIES AND MOBTJUAIN. 233 
 
 be careful to limit the time for wHch it is to last, because as it 
 18 not a charitable trust, unless it is to come to an end within 
 the limits fixed by the rule against perpetuities, it would be 
 illegal. But a trust to lay out a certain sum in building a 
 monument, and the gift of another sum in trust to apply the 
 same to keeping that monument in repair, say for ten years, is, 
 in my opinion, a perfectly good trust, although I do not see 
 who could ask the Court to enforce it " (i). 
 
 In a case decided in 1889 it was held that a direction that the 
 interest of a fund should be for ever divided into annuities of 
 £10 each, and be paid half-yearly to persons not under fifty 
 years of age and members of a particular religious denomination, 
 was good as a charitable gift for the benefit of " aged " persons 
 within 43 Eliz. c. 4 (2). 
 
 The provisions of the present Act with regard to assurances Mortmain 
 for the benefit of charities, and with the conditions under andCharit- 
 which alone such assurances may be made, are as follows : ^^t 1888. 
 Subject to the savings and exceptions contained in the Act, 
 every assurance of land or of any interest in land to or for the 
 benefit of any charitable uses, and every assurance of personal 
 estate to be laid out in the purchase of land to or for the benefit 
 of any charitable uses, shall be made in accordance with the 
 requirements of this Act, and unless so made shall be void. 
 They must take effect in possession for the charitable uses declared 
 immediately from the making thereof, and they must not contain 
 any power of revocation, reservation, condition, or provision for 
 the benefit of the assuror, or of any person claiming under him. 
 Exceptions to the latter part of this rule are permitted where the 
 assurance is voluntary so far as to allow grants and reservations 
 of a peppercorn or other nominal rent, of mines and minerals, of 
 any easement or building covenants, and the like. When the 
 assurance is in good faith on a sale for full and valuable con- 
 sideration, a further relaxation is permitted, namely, that part 
 or all of that consideration may consist of a rent, rent-charge, 
 or other annual payment reserved to the vendor or any other 
 person with or without a condition of re-entry on non-payment. 
 As to the formalities necessary to such assurances, the great point 
 is that, save in the excepted cases, they can never be made by 
 will. Where the property is anything except land of copyhold, 
 or customary tenure, or stock in the public funds, the assurance 
 must be made by deed executed in the presence of at least two 
 
 (') In re Dean. Cooper-Dean v. (_') Be Wall. Fomeroy v. Willway, 
 
 Stevens, 41 Oli. U. 552. 42 Ch. D. 510. 
 
234 REAL PROPERTY. [Book I. 
 
 witnesses, whether the assurance be for full and valuable con- 
 sideration or not. Where the assurance is not for full and 
 valuable consideration, when the property conveyed is anything 
 real or personal, except stock in the public funds, the assurance 
 must be made at least twelve months, and when it is stock in 
 the public funds it must be transferred in the public books kept 
 for the transfer of stock, at least six months, before the death of 
 the assuror ; and in all assurances to charitable uses, whether 
 they be for valuable consideration or not, and whether they be 
 of real or personal property (stock in the public funds excepted), 
 the assurance, or the deed setting forth the uses, must be 
 enrolled in the central office of the Supreme Court of Judicature 
 within six months after the execution thereof. Provision is 
 made for enrolling, in certain cases, where enrolment within 
 this time has been omitted. Unless all the requirements of 
 this part of the Act are fulfilled, assurances to charitable uses 
 are to be void. 
 Object of The object of the Legislature in this matter was stated by a 
 
 the Act. great judge in commenting on the provisions of the now 
 repealed Act (i), in words which seem equally applicable to the 
 present condition of law, as follows : — • 
 
 " The mischief, and sole mischief, which the legislature set 
 itself to prevent, was to prevent the increase of inalienable 
 land through the weakness of, or practice upon, dying persons, 
 or through posthumous charity. And upon examination of the 
 enactments it will be found that the Act is in entire consistency 
 with the recital. In the Act there is no prohibition of gifts of 
 land by deed inter vivos, but there are regulations securing that 
 such gifts shall not be in substance posthumous merely by 
 avoiding the form. There is no prohibition of any amount of 
 testamentary charity confined to pure personal property (2)." 
 
 A bequest of money to be laid out in building or establishing 
 a charitable institution (f) is held prima facie to imply a 
 direction to purchase land, and to be therefore void. Thus in 
 a case which was decided in 1889, since the passing of the 
 Mortmain and Charitable Uses Act, 1888, it has been decided 
 that a bequest of bank annuities " towards the establishment " 
 of a school is void under the present Act (*). 
 
 A bequest to build or establish a charitable institution is, how- 
 ever, good if the testator shows a clear intention that land shall 
 
 (1) 9 Geo. 2, c. 36. & S. 484. 
 
 (2) Per Lord Justice James, ^iiree {*) Be Goldsmith, W. N. (1889) 
 V. Raim, 9 Ch. D. 337, 34.'). 196 ; Re De Bomz, 5 T, L. K. 000. 
 
 (') Tatham v. Brummond, 4 D. J. 
 
Chap. XIX.] CHARITIES AND MORTMAIN. 235^ 
 
 not be purchased. It has accordingly been decided that a 
 bequest of money to be employed in the building, e.g., of alms- 
 houses, should a site be provided by some one else within a 
 reasonable time, is valid Q) . 
 
 The third part of the Act deals with exemptions. Assurances Mortmain 
 of land not exceeding twenty acres for any one public park, two ^^^ Chaiit- 
 acres for any one public museum, or one acre for any one school- ^^^ jggg 
 house, may be made by will, and assurances of land to any 
 extent for these objects may be made by deed. It is however 
 provided that the vsdll or deed must be executed at least twelve 
 months before the death of the assuror, or (and this is a novel 
 provision introduced by the present Act) be a reproduction in 
 substance of a devise made in a previous will in force at the 
 time of such reproduction, and which was executed not less 
 than twelve months before the death of the assuror. It is also 
 provided that the assurance must be enrolled in the books of the 
 Charity Commissioners within six months, in the case of a will, 
 after the death of the testator, or, in case of a deed, the execution 
 of the deed. The second part of the Act is not to apply to gifis 
 of land or personal estate to be laid out in the purchase of land, 
 or to or in trust for the universities, or any of the colleges or 
 houses of learning of the universities of Oxford, Cambridge, 
 London, Durham, and Victoria University, or to or in trust for 
 the colleges of Eton, Winchester, and "Westminster, "for the 
 better support and maintenance only of the scholars upon the 
 foundation " of these last-mentioned colleges, and Keble College. 
 It is also not to apply to assurances, otherwise than by will, for 
 full and valuable consideration, of land not exceeding in extent 
 two acres, to trustees on behalf of any society, or body of persons 
 associated together for religious purposes, or for the promotion 
 of education, art, literature, science or other like purposes, and 
 for the erection of a building for such purposes, or any of them, 
 or whereon a building used, or intended to be used, for such 
 purposes, or any of them, has been erected. 
 
 In certain cases charities are exempted from the operation of 
 the law prohibiting gifts of land by special Act of Parliament, 
 or charter, or custom (2). The law on this subject may be illus- 
 
 (') Fhilpot V. St. George's Hospital, Lands held for ecclesiastical, parn- 
 
 6 H. L. C. 338 ; Chamherlayiie v. ohial, or charitable purposes may 
 
 Brockett, L. B. 8 Ch. 206 ; Ee White's to the extent of one acre, subject to 
 
 Trusts, 33 Ch. D. 449. the provisions of the Act, be con- 
 
 (^) See Tudor 'a Charitable Trusts, veyed to any library authority, and 
 
 3rd ed. pp. 428, 429, 432, et seq. held by it without any licence in 
 
 Vurther exLnii>tions are also created mortmain : .^3 & 54 Vict. c. 68, s. 8. 
 
 by the Working Classes' Dwellings See also the Open Spaces Act, IbDO 
 
 Act, 1890 (53 & 54 Vict. c. 16). (53 & 54 Vici c. 15). 
 
236 REAL PROPERTY. [Book I. 
 
 Mortmain trated by a case decided in 1874 Q). The Act of Parliament 
 abfe*^Ds"s'" "^^licli incorporated the Westminster Hospital empowered it by 
 Act, 1888. will, gift, purchase, or otherwise to obtain, acquire, hold and 
 retain land for the purposes of the charity ; and also by will, 
 gift, purchase, or otherwise to obtaia, acquire, hold and maintain 
 for the purposes of the charity any kind of personal estate, 
 including moneys secured on mortgage or charged on land. It 
 was decided that these words implied a power to devise land 
 for the use of the charity. " It is clear," said the judge, '" that if 
 no one could give any land to the charity by will, it could not 
 take any land by devise, and could never become possessed of 
 any. I think, therefore, that, in order to give the words of the 
 Act any effect, I must hold that persons are at liberty to devise 
 land for its benefit." 
 
 The fourth and last part of the Act is supplemental. It 
 declares that the Act does not extend to Scotland and Ireland. 
 It contains a saving clause for existing charters, licences, and 
 customs, enabling land to be assured and held in mortmain, and 
 for every right, obligation, or liability acquired, secured, or 
 incurred under any enactment, which it repeals. The effect of 
 this is to preserve the ancient custom of the city of London, 
 enabling citizens and freemen of London to devise lands in the 
 city of London in mortmain ; but it must be borne in mind that 
 this power is only to devise to civil and not to charitable 
 corporations. Licences to hold lands in mortmain contained in 
 any charter or statute are also saved. The Act declares, further, 
 that Acts not by it repealed, referring to Acts repealed, are to 
 be construed as referring to it. Finally, in a schedule, it enume- 
 rates the Acts wholly or partially repealed. Of these there 
 are sixteen, the more important of which is the 9 Geo. 2, o. 36, 
 commonly called the Mortmain Act {^'). 
 
 (') Perring v. Trail, L. E. 18 Eq. hereditaments, corporeal and incor- 
 
 88 ; see also Bdbimon v. Governors of poreal, of whatsoever tenure, and any 
 
 London Hospital, 10 Hare, at pp. 24, estate and interest in land. Now it 
 
 25; Harrisonv. Corporation of South- must be borne in mind that the 
 
 ampton, 2 Sm. & Giff. 387 ; and Imck- former Mortmain Act (9 Geo. 2, 
 
 cra/< V. Pn'dAam, 6 Ch. D. at pp. 212, c. 36) received a very strict inter- 
 
 213. pretation, and that the doctrine of 
 
 Q) An extremely important ques- impure personalty, as it has been 
 
 tion, and one which wiU in all pro- called, renders void not only gifts of 
 
 babiUty require to be settled by land, any estate or interest in it, but 
 
 judicial decision, has been raised also a variety of gifts where the suh- 
 
 •with reference to the meaning of the ject-matter of the gift affects land, 
 
 present Act, when considered in the and has a tendency to bring land 
 
 liglit of the previous decisions on the into mortmain. Thus gifts of rents 
 
 old Mortmain Act of George II. and profits not in arrear, growing 
 
 What is " land " ? Land is defined crops, money secured by mortgage or 
 
 by the Act to include tenements and charge of land, money to arise from 
 
Chap. XIX.] CHABITIES AND MORTMAIN. 237 
 
 It must be pointed out before leaving this portion of our 
 subject that gifts to charity which are not within the statutory- 
 prohibitions are regarded with special favour by the Court. 
 This favour is exhibited in a variety of cases which may be 
 next stated as follows : (1) The celebrated doctrine of cy-pres, to 
 which we shall have occasion hereafter to refer, is perhaps the 
 strongest illustration of the peculiar favour with which gifts 
 to charities are regarded Q (post, p. 538) ). The cases upon this 
 important subject establish the following proposition, viz., that 
 where a testator has manifested a general intention of charity, 
 the Court will support it if no particular object be named, or if 
 the particular objects mentioned by him subsequently fail. 
 (2) The rule against perpetuities has no application to trusts in 
 favour of charities (2). (3) Defective executions of powers, as 
 has already been pointed out (ante, p. 182), in favour of charities 
 are aided. We shall hereafter have occasion to consider the 
 rule that assets are not marshalled in favour of charities, though 
 the Court will obey a direction to marshal (post, p. 553). 
 
 The following cases may be usefully consulted on the subject 
 of charities : Champney v. Davy, 11 Ch. D. 949; Me Harris, 15 
 Ch. D. 561 ; Be Hill's Trusts, 16 Ch. D. 173; Emley v. Davidson, 
 19 Ch. D. 156 ; Jervis v. Lawrence, 22 Ch. D. 202 ; Cavendish v. 
 Cavendish, 24 Ch. D. 685 ; 30 Ch. D. 227 ; Broadbent v. Barrow, 
 29 Ch. D. 560 ; Cornford v. Elliot, 29 Ch. D. 947 ; In re White's 
 
 the sale of land, even if the oonver- veyed to trustees, upon trust to apply 
 
 siim had been directed by a former two-fourtlis of the income for tlie 
 
 instrument, liens for unpaid purchase purpose of maintaining, supporting, 
 
 money, &c., have been held to be and advancing the missionary esta- 
 
 included within its provisions. It blishmenta among heathen nations of 
 
 would seem probable that, as no tlie Protestant Episcopal Church, 
 
 change is expressly made by the known as the Moravians, one-fourtti 
 
 present Act, the judge-made law on for the maintenance, support, and 
 
 the subject remains intact. The education of the children of ministers 
 
 point is, however, by no means free and missionaries of the Church, and 
 
 from doubt : Tyssen's Charitable the remaining fourth to the mainte- 
 
 Bequests, p. 561, el seq. nance of establishments for the resi- 
 
 The question what is the meaning deuce and support of single persons 
 
 of the term "charitable purposes" belonging to the Church. The Court 
 
 was considered by the Court of of Appeal decided that the trustees 
 
 Appeal in the year 1888, in connec- were entitled to the allowance. The 
 
 tion with the Income Tax Act of Queen v. Commissioners of Income 
 
 1842, which directs allowances to be Tax, 22 Q. B. D. 296. 
 
 made in respect of the duties in that (') See cases on this subject (post, 
 
 schedule on, inter alia, the rents and pp. 538-540), and Tudor's Charituble 
 
 profits of lands, tenements, heredita- Trusts, 3rd ed. p. 146, et seq.; Tyssen's 
 
 ments, or heritages vested in trustees. Charitable Trusts, p. 440, et seq. 
 
 for charitable purposes, so far as the (^) Attmney-General v. Webster, 
 
 same are applied to " charitable pur- 20 Eq. 483. 
 poses." Freehold estates were con- 
 
238 REAL PROPERTT. [Book I. 
 
 Trusts, 33 Ch. D. 449 ; Be Christmas. Martin v. Laeon, 33 Cli. D. 
 332 ; Briscoe v. Jackson, 35 Ch. D. 460 ; Bavenscroft v. Workman, 
 37 Ch. D. 637 ; Buckley y. Boyal National Life-boat Institution, 
 43 Ch. D. 27 ; In re Dean. Cooper-Dean v. Stevens, 41 Ch. D. 562. 
 See also on the subject of charitable trusts : Tudor's Charitable 
 Trusts, by L. S. Bristowe and W. I. Cook ; Tyssen's Charitable 
 Bequests, p. 194, et seq. ; Jarman on Wills, 4th ed. vol. i. p. 208 ; 
 Be Fleetwood, 15 Ch. D. 594, 609 ; Stone v. Attorney-General, 28 
 Ch. D. 464 ; Vaughan v. Thomas, 33 Ch. D. 187 ; Lea v. Coohe, 
 34 Ch. D. 528 ; In re St. Botolph's &c.. Estates, 35 Ch. D. 142 ; 
 Ohert V. Barrow, 35 Ch. D. 472 ; Webster v. Southey, 36 Ch. D. 9 ; 
 In re St. Stephen's, Coleman Street, 39 Ch. D. 492 ; Wilson v. 
 Barnes, 38 Ch. D. 507 ; In re Christchurch Inclosure Act, 38 Ch. D. 
 142 ; and see also the reluctant decision : Be Wall, 59 L. J. Ch. D. 
 172 ; Be David, 43 Ch. D. 27 ; Bendall v. Blair (as to consent of 
 Charity Commissioners before bringing action), 45 Ch. D. 139 ; 
 Be Thompson, Bedford v. Teal, 45 Ch. D. 161. 
 
( 239 ) 
 
 BOOK II. 
 PERSONAL PROPERTY. 
 
 CHAPTEE I. 
 
 Intkoductory. 
 
 Thus far our attention has been to a great extent confined to Division of 
 real property, under which head it was thought convenient to P"^'^""^' 
 
 . propcrtv, 
 
 consider leaseholds or " chattels real." Our present subject is 
 " personal property," which, though comparatively insignificant 
 in the early period of English law, has in modern days become 
 of at least as much importance as real property. The considera- 
 tion of the subject may perhaps be best begun by directing the 
 reader's attention to the various classes into which personal 
 property is divided. 
 
 " The things which come to executors," as an old writer says 
 quaintly and well ; that is to say, the personal property of a 
 testator " are of great multiplicity, and would make a large and 
 confused heap if tied together in one bundle or lump. I will 
 therefore divide and sort them out in parts after the best 
 manner I can." Let us follow this precedent, and just consider 
 the divisions of personal property. 
 
 Personal property is usually divided into two classes — 
 
 1. Corporeal chattels or choses in possession, or, as they are 
 generally called, goods and chattels (^), i.e., things capable of 
 motion, or of being moved, which may be perceived by the 
 senses, seen, touched, taken possession of. 
 
 2. Incorporeal chattels or choses in action, such as debts, stock 
 in the public funds, shares in companies, debentures, &c., &c. (^). 
 
 " There always," said Lord Blackburn in delivering judg- 
 ment in 1886 in a great case in the House of Lords, " was a 
 
 (') The word " chattels," accord- property includes a thing in action. 
 
 ing to Sir E. Coke, is a French word In the Wills Act (1 Vict. c. 26), s. 1, 
 
 signifying goods. According to personal estate includes in addition 
 
 Blackstone, the word is derived from to leaseholds and other chattels real 
 
 the Latin word catalla, which pri- " moneys, shares of government and 
 
 marily signified only beasts of hus- other funds, securities for money (not 
 
 bandry or cattle, but in its secondary being real estates), debts, choses in 
 
 sense was applied to all moveables action, rights, credits, and goods." 
 
 in general. See as to assignments of choses in 
 
 C) In the Married Women's Pro- action, post, p. 266. 
 perty Act (45 & Hi Vict. o. 75), a. 24, 
 
240 
 
 PERSONAL PROPERTT. 
 
 [Book II. 
 
 property. 
 
 Division of difference between personal property, such as to be capable of 
 personal ^jgj^g gtolen, taken, and carried away, and so to be the subject 
 of larceny at common law, and to be capable of being seized 
 by the sheriff tinder a fi. fa., and other kinds of personal 
 property. Personal property of the first sort, when belonging 
 to a married woman, vested at once in the husband. The 
 others the husband might reduce into possession, but did not 
 have till he had done so. And when new kinds of property, 
 like stock in tbe funds, or in more modem times shares in 
 companies, were created, questions arose as to whether they 
 were within the principle of being in possession or not ; but till 
 the phrase was used in the Bankruptcy Act of 1869 it never 
 became important to inquire whether they were to be called 
 things in action or not " (}'). 
 
 A difficulty which exists in making a strictly logical classifi- 
 cation of the various descriptions of personal property arises 
 from the fact that when the foundations of our law were laid 
 several classes of personal property, which have since then 
 become of great importance, were non-existent or of compara- 
 tively little moment. These are denominated by Mr. Joshua 
 Williams (in analogy to the division of real estate into corpo- 
 real and incorporeal) " incorporeal personal property," and 
 under this head he places those important classes of personal 
 property, Patents, and Copyright, which are hereafter considered 
 (jpost, pp. 287, 319). 
 
 A great number of important questions which concern per- 
 sonal property will be more conveniently considered hereafter, 
 when we come to speak of contracts. There are, however, 
 
 (') Per Lord Blackburn ia The 
 Colonial Bank v. Whinney, 11 App. 
 Cas. 426, 439. In this important 
 case it was decided that shares in 
 an incorporated company transferable 
 only by deed were clioses in action 
 within tlie meaning of the Bank- 
 ruptcy Act, 1883, s. 44, eub-s. 3. In 
 the Court of Appeal, Fry, L.J. (whose 
 judgment, dissenting from that of the 
 majority of the Court, was upheld 
 by the House of Lords) expressed 
 himself as follows : " According to 
 my view of that law, all personal 
 things are either in possession or in 
 action. The law knows no tertium 
 quid between the two. 'No chattel,' 
 says Lord Coke, in Fulwood's Case, 
 ' either in action or possession, shall 
 go in succession,' as if the two alter- 
 natives were the only possible ones. 
 
 ' Property in chattels personal,' says 
 Blackstone, 'may be either in pos- 
 session, which is where a man hath 
 not only the right to enjoy, but hath 
 the actual enjoyment of the thing; 
 or else it is in action ; where a man 
 hath only a bare right, without any 
 occupation or enjoyment,' and so 
 Lord Hardwicke, in the great case of 
 Byall V. Bowles, speaks of personal 
 property whether in possession or 
 action only, as equivalent to all kinds 
 of personal property. The expression 
 choses in suspense isfound in Brooke's 
 Abridgment, in conjunction with 
 clioses in action, but so far as I can 
 understand the two expressions are 
 synonymous": 30 Ch. D. 285. See 
 as to interpleader (post, p. 764 \ in 
 respect of choses in action : Rohinson 
 V. Jenkins, 24 Q. B. D. 275. 
 
Chap. I.] INTBODUCTORY. 241 
 
 certain broad principles in relation to tlie law wliicli it will be 
 desirable for us to consider in tbis portion of our work. 
 
 A sale of personal property is defined by Mr. Benjamin in Sale of 
 his able treatise to be "a transfer of the absolute or general pjop™ty 
 property in a thing for a price of money." To constitute a 
 valid sale, adds the same authority, there must be a concurrence 
 of the following four elements, viz. : (1st) parties competent 
 to contract ; (2nd) mutual assent ; (3rd) a thing, the absolute 
 property in which is transferred from the seller -to the 
 buyer ; and (■ith) a price in money paid or promised. The 
 circumstance that an absolute property is so transferred dis- 
 tinguishes the contract of sale from such a transaction as that 
 of a pawn, when a special property only is transferred ; the fact 
 that a price is paid constitutes an essential difference between 
 a sale and dealings with personal property by way of exchange, 
 gift, &c.(i). 
 
 At common law the only requisite to the complete validity of 
 a sale of personal property of any value was the mutual assent 
 of the contracting parties. This rule has been very greatly 
 modified by the provisions of the Statute of Frauds and Lord 
 Tenterden's Act (post, p. 372, et seq.). But, when the provisions 
 of those enactments do not apply, the law is that whenever a 
 bargain is made for the purchase of specific goods, where nothing 
 remains to be done, and nothing is said about payment or 
 delivery, the property passes immediately to the purchaser. 
 All future risk as to the goods is cast upon the purchaser, 
 though he cannot remove them without paying the price. 
 " The very appropriation of the chattel,'' as was said by Baron 
 Parke, "is equivalent to delivery by the vendor, and the assent 
 of the vendee to take the specific chattel and to pay the 
 price is equivalent to his accepting possession. The effect 
 of the contract, therefore, is to vest the property in the 
 bargainee " (^). 
 
 A most important principle which may also here be noticed 
 is that it is a general rule of the law that no man can sell 
 goods and convey a valid title to them unless he be the owner, 
 or lawfully represent the owner. Nemo dat quod non habet. 
 Accordingly, an innocent person who buys goods from one not 
 the owner obtains no property whatever in them (3). To this 
 rule, however, there are several important exceptions, the chief 
 
 (') Benjamin on Sale, 4tli ed. p. 1. 5 A. & E. 313, 340, and see pod, 
 
 I') Benjamin on Sale, 4th ed. p. 379, et seq. 
 pp. 4, 278, et seq, citing Simmons v. O Benjamin on Sale, 4tli ed. 
 
 Sioift, 5 B.&C. 862 ; Dixon v. Yates, pp. 6, 7. 
 
 VOL. I. a 
 
242 PERSONAL PROPEBTT. [Book II. 
 
 of which relate to (1) negotiable instruments {post, p. 256), and 
 (2) sales in market overt. 
 
 The privilege of market overt is, however, for the benefit of 
 innocent purchasers only, it does not extend to innocent vendors. 
 This is illustrated by a case cited by Mr. Benjamin (i), where 
 it was decided that public salemasters who had innocently 
 sold stolen animals were liable to the owner. Nor does it avail 
 in the following cases : — 
 
 1. If the buyer knew that the goods were not the seller's, 
 or was guilty of any fraud ; 
 
 2. If the goods were the Sovereign's property ; 
 
 3. If the sale took place in a back room or concealed place — 
 for the goods must be publicly exposed for sale ; 
 
 4. If the sale took place between sun-setting and sunrise ; 
 6. Where the treaty was begun out of market overt ; 
 
 6. If the vendor is a pawnbroker. 
 
 It was decided by Lord Mansfield that a sale by sample is 
 not a sale in market overt (^). 
 
 Market overt in the country is confined to special days and 
 places which are specified by charter or prescription. In the 
 City of London every weekday is market day, and every shop 
 where goods are exposed publicly is market overt for such 
 articles as the owner professes to trade in. 
 
 It must, however, be borne in mind that the position of the 
 innocent purchaser in a market is liable to be impeached 
 under the provisions of the Larceny Act, 1861. That Act 
 provides (^) that if any person guilty of stealing, taking, 
 obtaining, extorting, embezzling, converting, or disposing of, 
 or knowingly receiving any chattel, money, valuable security, 
 or other property whatsoever, shall be indicted for such offence 
 by or on the behalf of the owner of the property, or his executor 
 or administrator, and convicted thereof, in such case the pro- 
 perty shall be restored to the owner or his representative, and 
 in every case in this section aforesaid, the Court before whom 
 any person shall be tried for any such felony or misdemeanor 
 shall have power to award from time to time writs of restitution 
 for the said property, or to order the restitution thereof in a 
 summary manner. 
 
 The law in connection with this subject was much considered 
 
 (') Belaney v. Wallis, 14 L. R. Ir. Scattergood v. Sylvester, 15 Q. B. ,506 ; 
 
 31 ; Benjamin on Sale, 4th ed. p. 9. Lindsay v. Gundy, 1 Q. B. D. 348 ; 
 
 (2) Hill V. Smith, 4 Taunt. 532. 2 Q. B. D. 96; 3 App. Oas. 459. 
 Q) 24 & 25 Vict. c. 96, s. 100 ; 
 
Chap. I.] INTRODUGTORT. 243 
 
 in a case whicli came before the House of Lords in 1887. In 
 that case, the owner of goods, induced by fraud, parted with 
 them under a voluntary contract of sale, which vested the 
 property in the fraudulent purchasers. The goods were then 
 sold in market overt to a purchaser without notice of the fraud. 
 The fraudulent purchasers were afterwards, upon the prose- 
 cution of the original owner, convicted of obtaining the goods 
 by false pretences. The judge before whom the prisoners were 
 tried refused to make an order of restitution. The House of 
 Lords decided with very great reluctance that, under the above 
 Act, the property in the goods revested in the original owner 
 upon conviction, and that he was entitled to recover them from 
 the innocent purchaser Q-). 
 
 Among other exceptions to the general rule that none but 
 the owner can pass the property, there may also be noticed 
 hondfide sales of valuable securities, sales by pawnees, by public 
 officers under the authority of the law, and by order of the 
 Court (2). 
 
 Yet another exception is afforded by the power of the master Power of 
 of a vessel to whom the law entrusts an authority to sell the ™^^^^^ "' 
 goods of the owner of the cargo in case of absolute necessity ; 
 as, for instance, where inability to carry the goods to their 
 destination, or otherwise to obtain money indispensable for 
 repairs to complete the voyage is established. The purchaser, 
 however, has no title, unless such necessity is shown to have 
 existed (f). 
 
 Another most important class of exceptions from this general 
 principle is afforded by the law relating to factors, which has 
 been recently consolidated and amended by the Factors Act, 
 1889, which came into operation on the 1st of January, 
 
 (') Bentley v. Vilmont, 12 App. that is, has authority to sell so as to 
 Cas. 471. It is pointed out in Ben- bind the owners of the goods en- 
 jamin on Sale, that the statutory trusted to him for a different purpose, 
 title to the goods only dates from namely, carriage to their port of 
 the conviction of the fraudulent destination, only where there is a 
 buyer, and the order for restoration necessity for that course, and that it 
 can only be made against the person lies on those who claim the title to 
 who then has the goods in his posses- cargo, as purchasers from the captain, 
 sion, and that accordingly a hond to prove that this necessity clearly 
 Jide purchaser who deals with the existed ; further, that it is not suifi- 
 goods in the interval between the cient to prove that the master thought 
 sale and the conviction is not liable he was doing the best for all con- 
 to the real owner. cemed, or even that the course 
 
 C) See, further, Benjamin on Sale, adopted was, so far as can be ascer- 
 
 4tli ed. p. 15, et seq. taiiied, the best for all concerned" : 
 
 (^) " The rule laid down in the per Cotton, L.J., in Atlantie Mutual 
 
 cases where the sales of cargo have Assurance Co. v. North, 16 Oh. D. 
 
 been questioned, is, that the master 474, 481, where the authorities are 
 
 becomes agent for sale of the cargo, reviewed. 
 
 r. 2 
 
244 PERSONAL PROPERTY. [Book II. 
 
 1890 (1). The Act commences with a series of definitions, 
 some of which are simply declaratory of the old law, while 
 others introduce considerable changes. 
 
 (1.) "Mercantile agent" is defined to mean a mercantile 
 agent having in the customary course of his business as such 
 agent authority either to sell goods, or to consign goods for the 
 purpose of sale, or to buy goods, or to raise money on the security 
 of goods : 
 
 (2.) A person is to be deemed to be in possession of goods or of 
 the documents of title to goods, where the goods or documents 
 are in his actual custody or are held by any other person subject 
 to his control or for him or on his behalf : 
 
 (3.) The expression " goods " includes " wares and mer- 
 chandize " : 
 
 (4.) " Document of title " includes any bill of lading, dock 
 warrant, warehouse-keeper's certificate, and warrant or order for 
 the delivery of goods, and any other document used in the 
 ordinary course of business as proof of the possession or control 
 of goods, or authorizing or purporting to authorize, either liy 
 indorsement or by delivery, the possessor of the document to 
 transfer or receive goods thereby represented : 
 
 (5.) "Pledge" includes any contract pledging, or giving a 
 lien or security on, goods, whether in consideration of an 
 original advance or of any further or continuing advance or of 
 any pecuniary liability : 
 
 (6.) The expression " person " includes any body of persons 
 corporate or unincorporate. 
 
 The Act then proceeds to make the following important 
 provisions with regard to dispositions by mercantile agents : — 
 
 (1.) Where a mercantile agent is, with the consent of the 
 owner, in possession of goods or of the documents of title to 
 goods, any sale, pledge, or other disposition of the goods, made 
 by him when acting in the ordinary course of business of a 
 mercantile agent, shall, subject to the provisions of this Act, be 
 as valid as if he were expressly authorized by the owner of the 
 goods to make the same ; provided that the person taking under 
 the disposition acts in good faith, and has not at the time of the 
 disposition notice that the person making the disposition has 
 not authority to make the same. 
 
 (2) Where a mercantile agent has, with the consent of the 
 
 (1) 52 & 53 Vict. 0. 45, (repealing to Scotland by the Factors (Scotland) 
 the wiLole of the four Acts euume- Act, 1890 (53 & 54 Vict. o. 40), sub- 
 rated in the schedule, viz., 4 Geo. 4, ject to certain provisions mentioned 
 c. 83 ; 6 Geo. 4, c. 94 ; 5 & 6 Vict. in the let section. 
 c. 39 ; 40 & 41 Vict. c. 39), extended 
 
Chap. I.] 
 
 INTRODUCTORT. 
 
 245 
 
 owner, been in possession of goods or of the documents of title 
 to goods, any sale, pledge, or other disposition, which would 
 have been valid if the consent had continued, shall be valid 
 notwithstanding the determination of the consent : provided 
 that the person taking under the disposition has not at the 
 time thereof notice that the consent had been determined. 
 
 (3.) Where a mercantile agent has obtained possession of any 
 documents of title to goods by reason of his being or having 
 been, with the consent of the owner, in possession of the goods 
 represented thereby, or of any other documents of title to the 
 goods, his possession of the first-mentioned documents shall, 
 for the purposes of this Act, be deemed to be with the consent 
 of the owner. 
 
 (4.) For the purposes of this Act the consent of the owner 
 shall be presumed in the absence of evidence to the contrary (i). 
 
 Attention may now be directed to some very recent enact- 
 ments which specially affect the law and practice relating to 
 personal property. 
 
 An important change was introduced in 1889 with regard to 
 stamping contracts or agreements for the sale of certain classes 
 of property. 
 
 The Eevenue Act, 1889, s. 15, sub-s. (1), enacts that any 
 
 C) 52 & .53 Vict. c. 45, ss. 1 and 2. 
 The principal points dealt with in 
 the rest of the Act concern pledges 
 of documents of title to goods, and 
 pledges of goods, the Act limiting 
 in certain cases the right of the 
 pledgee, &c. 
 
 The Act also protects contracts 
 entered into by clerks of mercantile 
 agents, and deals with dispositions 
 by sellers and buyers of goods in the 
 following manner : — • 
 
 It provides (sect. 8) that where a 
 person, having sold goods, continues, 
 or is, in possession of the goods or of 
 the documents of title to the goods, 
 the delivery or transfer by that per- 
 son, or by a mercantile agent acting 
 for him, of the goods or documents of 
 title under any sale, pledge, or other 
 disposition thereof, or under any 
 agreement for sale, pledge, or other 
 disposition thereof, to any person 
 receiving the same in good faith and 
 without notice of the previous sale, 
 shall have the same effect as if the 
 person making the delivery or trans- 
 fer were expressly authorized by the 
 owner of the goods to make the same. 
 
 The converse case of a buyer ob- 
 
 taining possession is dealt with in 
 the next section as follows : — 
 
 Where a person, having bought or 
 agreed to buy goods, obtains with 
 the consent of the seller possession 
 of the goods or the documents of 
 title to the goods, the delivery or 
 transfer, by tliat person or by a 
 mercantile agent acting for him, of 
 the goods or documents of title, under 
 any sale, pledge, or other disposition 
 thereof, or under any agreement for 
 sale, pledge, or other disposition 
 thereof, to any person receiving the 
 same in good faith and without 
 notice of any lien or other right of 
 the original seller in respect of the 
 goods, shall have the same effect as 
 if the person making the delivery or 
 transfer were a mercantile agent in 
 possession of the goods or documents 
 of title with the consent of the 
 owner. 
 
 There are also important provisions 
 with regard to stoppage in transitu, 
 and the rights of owners against 
 agents which shall be noticed here- 
 after (pp. 435, et seq., 421), when we 
 come to speak of contracts. 
 
246 PERSONAL PROPERTY. [Book II. 
 
 contract or agreement made in. England or Ireland nnder seal, 
 or under hand only, or made in Scotland, with or without any 
 clause of registration, for the sale of any equitable estate or 
 interest in any property, or for the sale of any estate or interest 
 in any property except lands, tenements, hereditaments, or heri- 
 tages, or property locally situate out of the United Kingdom, or 
 goods, wares, or merchandise, or stock, or marketable securities, 
 or any ship or vessel, or part interest, share, or property of or 
 in any ship or vessel, shall be charged with the same ad valorem 
 duty, to be paid by the purchaser, as if it were an actual 
 conveyance on sale of the estate, interest, or property agreed 
 or contracted to be sold. 
 
 The next sub-section deals with cases where a purchaser 
 resells before the property has been conveyed or transferred to 
 him, and provides that where the purchaser has paid the said 
 ad valorem duty, and before having obtained a conveyance or 
 transfer of the property, enters into a contract or agreement for 
 the sale of the same, the cont:fact or agreement shall be charged, 
 if the consideration for such sale is in excess of the consideration 
 for the original sale, with the ad valorem duty payable in 
 respect of such excess consideration, and in any other case with' 
 the fixed duty of ten shillings or of sixpence, as the case may 
 require, according to the law in force prior to the passing of 
 the Customs and Inland Eevenue Act, 1889 Q^. 
 
 Q) 52 & 53 Vict. c. 42. The 4th (5.) Provided also that where any 
 
 sub-section of this section (sect. 15) such contract or agreement is stamped 
 
 provides that a contract stamp shall with the said fixed duty according 
 
 be sufficient for the purposes of pro- to the law in force as aforesaid, and 
 
 ceedings to enforce specific per- a conveyance or transfer made in 
 
 formance {post, p. 572), or recover conformity with the contract or agree- 
 
 damages for the breach thereof. ment is presented to the said Com- 
 
 Other eub-sections of this im- missioners for stamping with the ad 
 
 poriant section provide as follows : — valorem duty chargeable thereon 
 
 (3.) Where duty shall have been under the said law within the period 
 
 duly paid in conformity with the fore- of six months after the fir»t execution 
 
 going provisions, the conveyance or of the contract or agreement, or 
 
 transfer made to the purchaser or within such longer period as the said 
 
 sub-purchaser, or any other person Commissioners may think reasonable 
 
 on his behalf or by hia direction, in the circumstances of the case, the 
 
 shall not be chargeable with any said conveyance or transfer shall be 
 
 duty, and the Commissioners of In- stamped accordingly, and tlie same, 
 
 land Eevenue, upon application, and the said contract or agreement, 
 
 either shall, under the provisions of shall be deemed to be duly stamped, 
 
 sect. 14 of the Stamp Act, 1870, Notliing in this proviso shall alter or 
 
 denote the payment of the ad valorem affect the provisions of the said law 
 
 duty upon the conveyance or transfer, as to the stamping of a conveyance 
 
 or shall transfer the ad valorem duty or transfer after the execution thereof, 
 
 thereto upon production of the con- (6.) Provided also, that the ad 
 
 tract or agreement, or contracts or valorem duty paid upon any such oon- 
 
 agreemeuts, duly stamped. tract or agreement forsale as aforesaid 
 
Chap. L] INTBODUGTORY. 247 
 
 Another change lately made by the Legislature in respect of 
 another description of personal property may here be noticed. 
 Consols, in the old sense of the term, are numbered among the 
 things that were, by virtue of the National Debt Conversion Conversion 
 Act, 1888 (51 & 52 Vict. c. 2), and the National Debt Eedemp- "f ^^^ols- 
 tion Act, 1889 (62 & 53 Vict. c. 4), by which provision has 
 been made for the conversion and redemption of Consolidated 
 Three Per Cent. Stock and Eeduced Three Per Cent. Stock, and 
 their conversion into Two and three-quarters Per Cent. Con- 
 solidated Stock, as they are called. 
 
 Attention has already been directed (ante, p. 6, et seq.) to a 
 considerable number of marked distinctions between real and 
 personal property. Foremost among these is that which arises 
 when owners of these different classes of property die intestate 
 (see ante, p. 50, post, p. 341). The two classes of property are, Eeal and 
 however, for practical purposes in many points similar to each P'^i'^"'^^' 
 other. Personal estate can, like real estate, be held by one 
 person as legal owner in trust for another, and can be owned 
 in severalty or by persons as joint tenants or tenants in 
 common. Like real estate, personal estate can be sold, mort- 
 gaged, settled, and disposed of by will. Some portions of the 
 law relative to personal estate have accordingly already been 
 dealt with in connection with real estate, but some other 
 portions will now be separately noticed (J-). 
 
 In dealing thus with the personal property portion of our 
 work the following order will be adopted : — 
 
 Our first subject shall be certain classes of personal property Subjects 
 which from their peculiar character seem to require a separate <^°''s>''^''^"' 
 treatment. Under this head we shall speak of ships and horses. 
 Secondly, we shall speak of choses in action, under which head fall 
 policies of insurance, stocks, shares in companies, and debentures. 
 Thirdly, we shall speak of incorporeal personal property, includ- 
 ing patents, designs, trade-marks, copyright. Fourthly, we shall 
 deal with the mode of assuring personal property by bills of 
 sale ; and lastly, with the rules which govern the descent of 
 personal property when the owner dies intestate. 
 
 shallbereturntdby the said Commis- and interpretation as in -the Stamp 
 
 sioners in case the contract or agree- Act, 1870. 
 
 inent be afterwards rescinded or (') In settlements of real estate, 
 
 annulled, or for any other reason be legal estates are given to the persons 
 
 not substantially performed or carried whom the settlor desires to benefit, 
 
 into effect, so as to operate as or be while in settling personal property 
 
 followed by a conveyance or transfer. the property is assigned absolutely to 
 
 (7.) Words and expressions in this the trustees, and the interests of the 
 
 section shpH have the like meaning beneficiaries are eq^uitable only. 
 
( 248 ) 
 
 CHAPTER II. 
 
 Ships. 
 
 A very important class of things in possession requiring 
 special notice are ships. 
 
 As ships differ widely in their nature and the conditions to 
 which they are subject from any other class of property known 
 to the law, it has been the policy of the law to deal with them 
 in a peculiar and exceptional manner. 
 Ships the Ships are accordingly subject to special legislation, contained 
 
 s*'loial°^ in a series of Acts called the " Merchant Shipping Acts, 1854 
 legislation, to 1890 " (^). Every British ship, with the exceptions of certain 
 small vessels, is required jto be registered (^). The conse- 
 quences of non-registration are pointed out hereafter (p. 251). 
 
 It was pointed out by the late Lord Hatherley, then 
 Vice-Chancellor Page Wood, in a celebrated judgment, that 
 " there are two objects of public policy to which the statutes 
 with regard to the registration of ships are directed. One 
 which may be termed a national policy, relating to the interests 
 of the nation at large, and carried out by prescribing the condi- 
 tions which shall entitle any ship to the privileges of the 
 British flag. The other, concerning the rights of individuals, 
 which is effected by provisions specifying what shall and what 
 shall not be deemed proper evidence of title, as between persons 
 who may deal with property of this description " (^). 
 
 " Where a purchase is made without notice of fraud for a 
 valuable consideration,^ and the purchaser has got his name 
 upon the register, it is not competent to the Court to look 
 
 (■) 17 & 18 Vict. c. 104 ; 18 & 19 (1) Coasting vessels not exceeding 
 
 Vict. c. 91; 25 & 26 Vict. c. 63; fifteen tons burden employed 
 
 30 & 81 Vict. c. 124: 31 & 32 Vict. Ih the United Kingdofti or a 
 
 c. 129 ; 32 Vict. c. 11 ; 34 & 35 Vict. British possession ; 
 
 clOO; 35&36 Vict. c. 73; 36&37 (2) Coasting and fishing vessels 
 
 Vict. c. 88; 39 & 40 Vict. c. 80; not exceeding thirty tons 
 
 43 & 44 Vict. cc. 18,22,43 (Carriage burden employed on the 
 
 of Grain Act, 1880); 46 & 47 Vict. shores of Newfoundland and 
 
 c. 41 ; 00 & 51 Vict. c. 62 ; 52 & 53 the Gulf of St. Lawrence 
 
 Vict. CO. 46, 68, 73 ; 53 Vict. c. 9 (as (17 & 18 Vict. o. 114, o. 19). 
 
 to compulsory marking of load line). (') Liverpool Borough Bank v. 
 
 Q) The two classes of vessels not Turner, 1 J. & H. p. 159. 
 required to be registered are — 
 
Chap. II.] SHIPS. 249 
 
 behind the regieter for the purpose of dispossessing the innocent 
 purchaser whose name is then on the register. He combines 
 both a legal and equitable title, of which it is not competent to 
 this Court to dispossess him " Q-). 
 
 Ships, except those which are so new that they have never British and 
 been registered, are divided, so far as they have been dealt with foi'^ign 
 by Statute law, into two classes — British and Foreign. 
 
 A ship is not to be deemed a British ship unless she is owned 
 by- 
 
 (1) Natural-born British subjects ; 
 
 (2) Persons made denizens by letters of denization or pro- 
 
 perly naturalized ; 
 
 (3) Bodies corporate having their principal place of business 
 
 in the United Kingdom or some British possession. 
 
 But if a natural-born subject has taken an oath of allegiance 
 to a foreign sovereign he is not qualified to own a British ship 
 unless he subsequently takes an oath to her Majesty, and is 
 resident in her Majesty's dominions. 
 
 Alho denizens must either be resident in her Majesty's 
 dominions, or be members of a factory or house carrying on 
 business in her Majesty's dominions, and have taken the oath of 
 allegiance after being made denizens (2). The Naturalization 
 Act, 1870 (^), does not affect the disability of an alien to own a 
 British ship. 
 
 An officer of customs cannot grant a clearance or transire 
 enabling a ship to proceed to sea as a British ship, unless she 
 has already been registered as such. 
 
 The registrar of every British port, who is the principal Registra- 
 ofScer of customs when theie is such an official, or in anj' ''"'■ 
 British possession where there is no customs officer the governor 
 or administrator is required to keep a register book, and to 
 enter therein on the application of the owners of any Biitish 
 ship or their agents, the particulars required to be registered (*) 
 as follows : — 
 
 (1) The name of the ship and port of registry, 
 
 (2) Description of the ship. 
 
 (3) Her master's name. 
 
 (4) The particulars as to her origin stated in the declaration 
 of ownership. 
 
 (5) Her owners' names, and the proportions in which they 
 are interested in the ship (s). 
 
 (>) The Sorlock, L. E. 2 P. D. 243. p. 54. 
 
 f ) 17 & 18 Vict. c. 104, s. 18. (*) 17 & 18 Vict. c. 104, ss. 30, 33. 
 
 (3) 33 & 34 Vict. u. 14, see ante, (^) 17 & 18 Vict. c. 104. s. 42. 
 
250 PERSONAL PBOPEBTT. [Book IL 
 
 Shares in The property in a ship is divided into Bixty-four shares ('), 
 
 ^'''P^- and not more than sixty-four persons may be registered as 
 
 owners of a ship (^). 
 
 No person is entitled to be registered as owner of any 
 fractional part of a share, but any number of persons not 
 exceeding five, who are considered as one person, may be 
 registered as joint owners of a share or shares in a ship (^). 
 
 The national character of a British ship is also guarded by 
 stringent provisions in the Merchant Shipping Act, 1854. If 
 any person uses the British flag and assumes the British 
 national character on board any ship owned, in whole or in 
 p^rt, by persons not qualified to own a British ship, except for 
 the purpose of escaping capture by an enemy, or by a foreign 
 ship of war in exercise of some belligerent rights, the ship shall 
 be forfeited to her Majesty (^). A similar penalty is imposed 
 if the master or owner of a British ship attempts to conceal her 
 nationality, or to assume a foreign character, &c. (^). 
 
 Property, Property in ships may be acquired in four ways : by con- 
 
 • . J struction, by purchase, by operation of law, or by capture and 
 condemnation. "Where a ship which is being built for a pur- 
 chaser is paid for in instalments at diiferent stages of the con- 
 struction, the property in the portions completed, "the growing 
 chattel," to borrow Lord Campbell's phrase, will vest in the 
 purchaser as they are paid for C*). The law on this subject 
 was summed up in a case decided by the House of Lords in 
 1886, as follows: — 
 
 " Where it appears to be the intention, or in other words the 
 agreement, of the parties to a contract for building a ship, that 
 at a particular stage of its construction, the vessel, so far as 
 then finished, shall be appropriated to the contract of sale, the 
 property of the vessel as soon as it has reached the stage of 
 completion will pass to the purchaser, and subsequent additions 
 made to the chattel thus vested in the purchaser will, accessione 
 become his property " ('). 
 
 Sale of A ship may be sold like any other chattel, either by private 
 
 contract or public auction. But in addition to the contract it 
 is provided by the 85th section of the Merchant Shipping Act, 
 1854, that a registered ship or any share therein shall be trans- 
 
 Q) 17 & 18 Vict. 0. 104, s. 37. 942 ; Wood v. Bell, 6 E. & B. 772. 
 
 C) 43 & 44 Vict. 0. 18, s. 2. (') Seath v. Moore, 11 App. Gas. 
 
 (0 17 & 18 Vict. 0. 104, s. 37. 350 ; Semble, the principles applicable 
 
 C) 17 & 18 Vict. c. 104, s. 103. tothe sale of partsof a shipareequally 
 
 (>) Tlie Annandale, 2 P. D. 179, applicable to the sale of parts of any 
 
 218. corpus manufactum in course of oon- 
 
 (") See Woods v. Russell, 5 B. & E. stiuctiou. 
 
Chap. IL] SHIPS. 251 
 
 ferred by bill of sale, which must be in the form provided, 
 containing a description of the ship sufficient for identification, 
 and which must be entered in the register book at the ship's 
 port of registry (i), the transferee having first made the declara- 
 tion required by the Act. Bills of sale are entered in the Bills of 
 register book in the order of their production to the registrar (^). **'°- 
 
 Where the property in any ship or share in a ship becomes 
 transmitted by operation of law, such as death or bankruptcy, 
 the registrar will, upon receipt of a declaration in the form 
 provided, and containing the requisite facts and particulars 
 made by the person or persons entitled, register such person or 
 persons as owners (^). But if any person in whom any property 
 in a ship or share in a ship becomes thus vested is not qualified 
 to own a British ship, the Court has power to order a sale 
 of the property so transmitted (^). 
 
 A registered ship, or any share in one, may be made a security 
 for a loan or other valuable consideration, but the instrument 
 of hypothecation must be in the form and comply with the 
 conditions required by the Act (*), and must be duly registered. 
 
 Mortgages are registered in the order of time in which they Mortgages. 
 are produced to the registrar, and are entitled to priority 
 according to the date of registration, and not of the instruments 
 themselves, so that in the case of ships " tacking " (ante, p. 109), 
 does not exist (^). 
 
 A ship which ought to be registered, if unregistered, cannot 
 be recognised as a British ship. She is thereby excluded from 
 the statutory provisions limiting the responsibility of her owners 
 (2>ost, p. 1057) ; she is stripped of the protection of the British 
 flag ; and if she uses that flag on board, and assumes the British 
 national character, she is exposed to forfeiture (f). 
 
 Prior to the Merchant Shipping Act, 1862, equitable right Equitable 
 could not be enforced against ships. rights. 
 
 " Under the Merchant Shipping Act of 1854," said Chief Baron 
 Pollock, in delivering judgment in a well-known case ('), " much 
 hardship arose, because a man might buy a vessel and pay for 
 it, and yet if he was in any way prevented from registering it 
 the former owner had the vessel as well as the money, and for 
 this very reason the sect. 3 of Act of 1862 was passed, expressly 
 giving force to equitable rights." This section provides "that, 
 
 (') 17 & 18 Vict. c. 104, B. 57. ship, CoUman v. CJiamherlain, 25 
 
 (2) 17 & 18 Viot. c. 104, ss. 58, 59, Q. B. D. 328. 
 
 60. C) 17 & 18 Viot. 0. 104, s. 69. 
 
 (3) 17 & 18 Vict. c. 104, 8. 62. («) Maolanhlan on Shipping, p. 76. 
 (^) 17 & 18 Vict. c. 104. s. 66 ; see (') Stapleton v. Waymen, 12 W. K. 
 
 as to what passes by mortgage of a 318. 
 
252 PERSONAL PROPERTY. [Book II. 
 
 without prejudice to the powers of disposition, and of giving 
 receipts conferred by the Merchant Shipping Act, 1854, on 
 registered owners and mortgagees, and without prejudice to the 
 exclusion of unqualified persons from the ownership of British 
 ships, equities may be enforced against owners and mortgagees 
 of ships in respect of their interest therein in the same manner 
 as equities may be enforced against them in respect of other 
 personal property." 
 
 An interesting question with regard to nationality arose in a 
 case in which a ship had been built in this country in order to 
 be sold to a Turkish company and to be delivered to their 
 representatives at the Golden Horn. The Court decided that 
 this ship was not a British ship within the meaning of the 
 Merchant Shipping Act, 1854, and that accordingly the pro- 
 visions as to assignment and registration of that statute did not 
 apply to her. The statute the Court said was intended to apply 
 to ships intended to be the property of a British owner. That 
 was not the case here. As soon as the vessel crossed the sea she 
 was intended to be transferred to a foreign owner, and never 
 intended from that hour to be a British ship (^). 
 
 The theory of the register fixes the maximum fraction of pro- 
 perty and the maximum number of several owners that can 
 appear on the register, the object being that the title may be 
 so simple and obvious as to be a " matter of eyesight." As how- 
 ever the record of title is local, and it might be desirable to 
 sell or mortgage the property at a distance, certificates of sale 
 and mortgage were devised by means of which the authentic 
 register with all its contents and authority may be submitted 
 to the eyes of the distant purchaser or mortgagee without with- 
 drawing it from those who desire to consult it at the home 
 port (2). 
 
 In this chapter we have dealt with ships solely in connection 
 with the subject of property (^). A great variety of interesting 
 questions which arise with regard to them will be more appro- 
 priately considered in other portions of this work, and chiefly 
 in that which deals with the subject of Admiralty {post, 
 p. 1048). 
 
 (') Vnion Batik of London v. (') See, as to exemption from stamp 
 
 Lenanton, L. E. 3 C. P. D. 24H. duty, Stamp Act, 1870, schedule 
 
 O Slaclachlan on Shipping, p. 75. (general exemptions). 
 
( 253 ) 
 
 CHAPTER III. 
 
 Horses. 
 
 The sale of horses was made the subject of special legis- Statutes 
 lation more than three centuries ago : the reason assigned by ^J *° ^^'^ 
 Blackstone being " because a horse is so fleet an animal that the 
 stealers of them may flee far off in a short space, and be out of 
 the reach of the most industrious owner." 
 
 A purchaser gains no property in a stolen horse unless he 
 buys in a fair or market, in compliance with the provisions of 
 the statutes of Philip and Mary and Elizabeth, to which we have 
 alluded (^). These statutes provide that the horse which is for 
 sale shall be openly exposed in the time of such fair or market, for 
 one whole hour, between ten in the morning and sunset, in the 
 public place used for such sales, and not in any private yard or 
 stable ; and afterwards brought by both the vendor and vendee 
 to the book-keeper of such fair or market ; that toll be paid, if 
 any be due, and if not, one penny to the book-keeper, who shall 
 enter down the price, colour, and marks of the horse. The 
 statute of Elizabeth enacts that the toll-keeper or book-keeper 
 shall take upon himself " perfect knowledge " of the vendor, and 
 " of his true Christian name, surname, and place of dwelling or 
 residence "; or that the vendor shall bring to the keeper one 
 sufficient and credible person that can testify that he knows the 
 vendor, and in such case the name and residence of the person 
 so testifying, as well as those of the vendor, are to be recorded 
 in the book, and the " very true price or value " given for the 
 horse; and in case of failure to comply with these provisions, 
 the sale is to be void. 
 
 Even if the horse be sold pursuant to these statutes, the 
 pioperty of the owner is not taken away, if within six months 
 after the horse is stolen he puts in his claim before some magis- 
 trate where the horse shall be found, and within forty days 
 more proves it to be his property by the oath of two witnesses, 
 and tenders to the person in possession such price as he bond 
 fide paid for him in market overt. 
 
 C) 2 & 3 Ph. & M. 0. 7, and 31 Eliz. c. 12. 
 
254 
 
 PERSONAL PROPERTY. 
 
 [Book II. 
 
 Effect of 
 statutes. 
 
 The effect of these statutes was considered by Lord Blackburn, 
 then Mr. Justice Blackburn, in the year 1873. The mare in 
 question in the action had been turned out by the defendant in 
 a public park, was found out of the park, and was then sold at 
 public auction by the " pinner " of the park, who was unable to 
 find the owner. After an intermediate sale she was sold in 
 market overt to the plaintiff, and was subsequently claimed 
 and taken possession of by the defendant. There was no proof 
 that the formalities which the statute of Elizabeth requires 
 upon the sale of horses at fairs and markets had been observed. 
 The Court delivering judgment said : — 
 
 The onus of shewing that the formalities required by the 
 31 Eliz. c. 12, s. 2, have been observed at the sale of this mare 
 lies upon the plaintiff. I shall not draw the inference that 
 those formalities have been observed, it would be most unusual 
 if the fact were so, and the effect of the statute is, that unless 
 those formalities have been observed the sale confers no more 
 title on the plaintiff against the defendant, the true owner, than 
 if the sale had taken place out of market overt (^). 
 
 Where the requisites of the statutes have not been dxily 
 observed the owner may retake his horse at any time wherever 
 he fi.nds him, or bring an action if he chooses (^). 
 
 As many questions arise with regard to unsoundness in horses, 
 the reader's attention may be well directed to the law as to 
 unsoundness as settled by decisions. 
 Warranty. A man who buys a horse warranted sound, must be taken as 
 buying him for immediate use, and has a right to expect one 
 capable of that use, and of being immediately put to any fair 
 work the owner chooses. The rule as to unsoundness is that if 
 at the time of sale the horse has any disease, which either 
 actually does diminish the natural usefulness of the animal, so 
 as to make him less capable of work of any description; or 
 which, in its ordinary progi-ess, will diminish the natural useful- 
 ness of the animal ; or if the horse has, either from disease 
 (whether such disease be congenital or arises subsequently to 
 its birth), or from accident, undergone any alteration of structure, 
 that either actually does at the time or in its ordinary effects 
 
 (•) Mora-n v. Pitt, 42 L. J. Q. B. 47. 
 
 (2) 2 & .S Ph. & M. c. 7 (1555) ; and 
 31 Eliz. c. 12 (1589). The statutes 
 generally extend to horsps wrongfully 
 taken, though not stolen. Chitty's 
 Statutes, Tol. iv. p. 305, et seq. 
 Benjamin on Sale, pp. 13, 14, where 
 it is pointed out that the provisions 
 
 have been found so effective in put- 
 ting an end to the mischief which 
 they even intended to prevent, that 
 there are very few modem cases on 
 the subject. See Joseph v. Adkins, 
 2 Stark. 76 ; Lee v. Bayea, 18 C. B. 
 599. 
 
Chap. HI.] H0BSE8. 255 
 
 will diminish the natural usefulness of the horse, such a horse 
 is unsound Q). 
 
 Ilaving thus sketched the law as to living horses, it remains 
 to briefly notice the effect of very recent legislation with regard 
 to the flesh of horses which are dead. 
 
 An Act which came into operation on the 29th of September, Sale of 
 1889, and which is to be cited as the " Sale of Horseflesh, &o., E°gu^yo*'„ 
 Eegulation Act " (2), provides that no person shall sell, offer. Act. 
 expose, or keep for sale any horse-flesh for human food, elsewhere 
 than in a shop, stall, or place over or upon which there shall be 
 at all times painted, posted, or placed in legible characters of 
 not less than four inches in length, and in a conspicuous position, 
 and so as to be visible throughout the whole time, whether by 
 night or day, during which such horse-flesh is being offered or 
 exposed for sale, words indicating that horse-flesh is sold there. 
 
 The next section provides that no person shall supply horse- 
 flesh for human food to any purchaser who has asked to be 
 supplied with some meat other than horse-flesh, or with some 
 compound article of food which is not ordinarily made of horse- 
 flesh. 
 
 The word " horse-flesh " is somewhat curiously defined by Definition 
 the Act to include the flesh of asses and mules, and shall mean '^ "/\°'-'^'!" 
 horse-flesh, cooked or uncooked, alone, accompanied by or mixed 
 with any other substance ; and its provisions are enforced by 
 stringent provisions by which the offender can be summarily 
 brought to justice. 
 
 (') KiddeUy. Burnand,9'M..& W. horse waa a "defect" in the condi- 
 
 670 ; Coates v. Stephens, 2 M. & Rob. tion of such plant, within the mean- 
 
 137 ; and see Oliphant on Horses, ing of s. 1 of the Employers' Liability 
 
 pp. 71, et seq., and passim ; and see Act, 1880. See as to question of nou- 
 
 in the same treatise an enumeration return of a horse being under the 
 
 under nearly all the letters of the circumstances no bar to an action in 
 
 alphabet, and conaideration of the the warranty, Chapman v. Withers, 
 
 various diseases to which horse-flesh 20 Q. B. D. 824; and as to sale of 
 
 is heir. In Yarmouth v. France, 19 a horse under Order L., E. S. C, 1883 
 
 Q. B. D. 647, it was held that a (post, p. 792), Bartholomew v. Free- 
 
 horse which injured the plaintiff was man, 3 0. P. D. 316. 
 
 " plant " used in the business of the (^) 52 & 53 Vict. c. 11. 
 defendant, and that the vice in the 
 
( 256 ) 
 
 Bilh of 
 Exchange 
 Act, 1882. 
 
 General 
 rule of law. 
 
 Negotia- 
 able in- 
 struments. 
 
 CHAPTEE IV. 
 
 Negotiable Instruments. 
 
 The law with regard to negotiable instruments has been to a 
 very large extent practically codified by the Bills of Exchange 
 Act, 1882 (45 & 46 Vict. c. 61), which came into operation on 
 the 18th of August, 1832, and extends to Ireland and Scotland 
 as well as to England (^). 
 
 The general rule of the law of England is that no man can 
 acquire a title to a chattel personal from any one who has him- 
 self no title to it, except only by sale in market overt, but the 
 great exception to this rule is the negotiable instrument " being 
 clearly transferable by any person holding it, so as by delivery 
 thereof to give a good title to any person honestly acquiring it." 
 
 The next question is, what instruments may with propriety 
 be termed negotiable. And to this it may be answered that 
 whenever an instrument is such that the legal right to the pro- 
 perty secured thereby passes from one man to another by the 
 delivery thereof, it is, properly speaking, a negotiable instru- 
 ment, and the title to it will vest in any person taking it hond 
 fide, and for value, whatever may be the defects in the title of 
 the person transferring it to him. An instrument is called 
 negotiable when the legal right to the property secured by it 
 passes by its delivery (^). 
 
 " The general rule of law,'' said Mr. Justice Willes in an oft- 
 quoted case, " is undoubted, that no one can transfer a better title 
 than he himself possesses : Nemo dat quod non hahet. To this 
 there are some exceptions, one of which arises out of the rule of 
 the law merchant as to negotiable instruments. These being 
 part of the currency are subject to the same rule as money ; 
 and if such an instrument be transferred in good faith for value 
 before it is overdue, it becomes available in the hands of the 
 holder, notwithstanding fraud, which would have rendered it 
 unavailable in the hands of a previous holder (^). " If a negotiable 
 
 20 Q. B. D. 232, 238, citing with 
 approval the statement of the law 
 given above from Miller v. Bace, 
 Smith's Leading Cases, vol. i. 9th ed. 
 p. 491. 
 
 C) Whittler v. Forsler, 14 0. B. 
 (N.S.) 218. 
 
 (') The present Act deals only with 
 bills, notes and cheques. It does not 
 affect the law as to the issue of bank 
 notes — see " savings " sect. 97 — nor 
 does it deal with other negotiable 
 instruments. 
 
 (^) Landau and County Banldng 
 Co. V. London and Biver Plate Bank, 
 
Chap. IV.] 
 
 NEGOTIABLE INSTRUMENTS. 
 
 257 
 
 instrument remains current, even though it has been paid, there 
 IS nothing to prevent a person to whom it has been indorsed for 
 value without knowledge that it has been paid from suing " (i). 
 
 The object of the law merchant, said Byles, J., as to bills and 
 notes made or become payable to bearer, is to secure their circu- 
 lation as money; therefore honest acquisition conveys title. 
 To this despotic but necessary principle the ordinaiy rules of 
 the common law are made to bend. Negligence in the maker 
 of an instrument payable to bearer makes no difference in his 
 liability to an honest holder for value ; the instrument may be 
 lost by the maker or stolen from him, still he must pay. The 
 negligence of the holder, on the other hand, makes no difference 
 in his title. However gross the holder's negligence, if it stop 
 short of fraud he has a title (^). 
 
 A bill of exchange is defined by the Act as " an unconditional 
 order in writing, addressed by one person to another, signed by 
 the person giving it, requiring the person to whom it is ad- 
 dressed to pay on demand or at a fixed or determinable future 
 time a certain sum in money to or to the order of a specified 
 person, or to bearer " (^), and an instrument which does not 
 comply with these conditions is not a bill of exchange. 
 
 An inland bill is a bill which is, or on the face of it purports 
 to be, both drawn and payable within the British Islands, or 
 drawn within the British Islands upon some person resident 
 therein. Any other bill is a foreign bill; but unless the 
 contrary appear on the face of the bill the holder may treat it as 
 an inland bill (*). 
 
 No particular form of words is necessary to render a Bill of 
 Exchange valid. The following is an ordinary form : — 
 
 London, 
 
 January 1, 1888. 
 £100 Os. Qd. 
 
 Three months after date pay to my order the sum of one 
 hundred pounds. Value received. 
 
 William Smith. 
 
 To Messrs. Thompson & Son. 
 
 (1) Per Lord Esher, Glasscocle v. 
 Balls, 24 Q. B. D. 13, 15, see post, p 266 
 
 (2) Swan V. North Bnttsh Co., 2 
 H & C 184; but see Earl of Slieffield 
 T 'joint Stodc Co., 13 App. Cas. 383, 
 followed Simmons v. Londxm Joint 
 Stock Bank, W. N. (1890) 70, 221. 
 
 C) Sect. 3 (1) (2). Au order to pay 
 out of a particular fund is not uncon- 
 ditional within the meaning of the 
 
 VOL. I. 
 
 section ; but an unqualified order to 
 pay, coupled with (a) an indication 
 of a particular fund out of whioli the 
 drawee is to re-imburse himself or a 
 particular account to be debited with 
 the amount, or (6) a statement of the 
 transaction which gives rise to the 
 bill, is unconditional. 
 
 (0 Bills of Exchange Act, 1882, 
 sect. 4. 
 
 Reason of 
 the law. 
 
 Definition 
 of bill of 
 exchaDge. 
 
 Inland bill. 
 
 Foreign 
 bill. 
 
 Form of 
 bill of 
 exchange. 
 
258 PERSONAL PBOPERTT. [Book II. 
 
 Bill of The date, consideration and place, where drawn, or where 
 
 exchange, payable are generally inserted, but none of them are essential (^). 
 
 The original parties to a bill of exchange are the drawer, the 
 drawee, and the paj'ee. 
 
 The person giving the order or direction to pay is the drawer. 
 
 The drawee is the person on or to whom the order or direction 
 is given. On his acceptance of the biU (as hereafter described) 
 he becomes the acceptor. The law then presumes that he is 
 the principal debtor on the bill. 
 
 The drawee must be named or otherwise indicated in a bill 
 with reasonable certainty. 
 
 A bill may be addressed to two or more drawees, whether 
 they are partners or not, but an order addressed to two drawees 
 in the alternative, or to two or more drawees in succession, is 
 not a bill of exchange (^). 
 
 If a bill is not payable to bearer the payee must be named or 
 otherwise indicated therein with reasonable certainty. 
 
 A bill may be made payable to two or more payees jointly, 
 or it may be made payable in the alternative to one or two or 
 one or some of several payees, and may be made payable to the 
 holder of an office for the time being. 
 
 Where the payee is a fictitious or non-existing person the bill 
 may be treated as payable to bearer (^). 
 
 A very interesting question arose with regard to the liabilities 
 of a banker in a case which has been very recently decided by the 
 House of Lords (^). In this case, the plaintiff, who traded under 
 the name of V agliano Brothers, claimed that it might be declared 
 that he was entitled to be credited by the defendants, the Bank 
 of England, with the amount of £71,500, alleged by him to 
 have been wrongfully and without his authority debited to his 
 account. 
 
 It appeared that Vucina & Co., who were foreign correspond- 
 ents of the plaintiffs, were in the habit of drawing upon them, 
 sometimes making the bills payable to the order of C. Petridi 
 & Co., another foreign firm. A clerk in the plaintiff's employ- 
 ment forged the signature of Vucina & Co. to bills purporting 
 to be drawn on the plaintiffs by Vucina & Co. to the order of 
 C. Fetridi & Co., and resembling those which Vucina & Co. 
 
 (1) Sect. 3 (4). If dated, the date is Q) Sect. 7. 
 
 presumed to be the true date. A (*) Vagliano Brothers v. Governors 
 
 bUl may be ante-dated or post-dated, of Bank of England, 22 Q. B. D. 103 
 
 and under the present law dated on affirmed 23 Q. B. D. 248, reversed by 
 
 a Sunday. the majority of the House of Lords, 
 
 C^) Bills of Exchange Act, 1882, March 5, 1891. 
 B. 6. 
 
Chap. IV.] NEGOTIABLE INSTRUMENTS. 259 
 
 were in the habit of drawing on the plaintiffs, and placed Bill of 
 among the plaintiffs' correspondence counterfeit letters of exchange, 
 advice with respect to these bills resembling those ordinarily- 
 received from Vuoina & Co. By these means, the clerk pro- 
 cured the genuine acceptances of the plaintiffs to the bills 
 which he had forged. He then forged upon the bills indorse- 
 ments purporting to be those of the payees named therein ; and 
 was paid by the cashiers of the defendants across the counter 
 the amounts for which the bills were drawn. The majority of 
 the Court of Appeal decided that the defendants were not pro- 
 tected by the provision in the Bills of Exchange Act, that when 
 the payee is a fictitious or non-existing person, the bill may be 
 treated as payable to bearer, that " fictitious " means fictitious to 
 the knowledge of the party sought to be charged upon a bill, 
 and that the defendants were not entitled to debit the plaintiffs 
 with the amount of the forged bills. 
 
 This decision was reversed by the majority of the House of 
 Lords. The ground on which their decision was based was 
 stated by Lord Selborne as follows : " I cannot however agree 
 with the opinion that in the cases which do fall within the 
 third sub-sect, of sect. 7, knowledge on the part of the acceptor 
 that the payee is a fictitious or non-existing person is still 
 necessary. Such a qualification of the express words of the 
 statute cannot properly, in my judgment, be implied from the 
 earlier authorities which treated knowledge as necessary. Those 
 authorities were no doubt within the view of the legislature ; 
 and all reference to the necessity of knowledge being here 
 omitted, I think the omission must be taken to have been deli- 
 berate and intentional, and that there is no sound principle on 
 which what is so omitted can be supplied by construction. I 
 think it right to add that in point of principle it seems to me 
 neither unjust nor unreasonable that the rights and liabilities of 
 third parties should in such a case depend upon the facts rather 
 than upon an inquiry into the acceptor's state of mind." Some 
 of the other members of the House of Lords based their deci- 
 sion chiefly on the ground that the mode in which the plaintiffs 
 had conducted their business had facilitated the perpetration of 
 the frauds by means of which the clerk had obtained payments 
 from the bank. 
 
 A bill may be accepted — 
 
 (1) Before it has been signed by the drawer, or while otherwise Accept- 
 
 1 , ance. 
 
 incomplete. 
 
 (2) When it is overdue, or after it has been dishonoured by 
 a previous refusal to accept or by non-payment. 
 
 s 2 
 
260 PERSONAL PBOPEBTT. [Book H. 
 
 Accept- The acceptance of a bill is defined by the Act to be the 
 
 anc«. signification of the drawee of his assent to the order of the 
 
 drawer ; the acceptance must be written on the bill and signed 
 by the drawee. The drawee then becomes " the acceptor " (}). 
 
 (1) An acceptance is either (a) general, or (6) qualified (2). 
 
 (2) A general acceptance assents without qualification to the 
 order of the drawer. A qualified acceptance is one which, in 
 express terras, varies the effect of the bill as drawn. 
 
 A qualified acceptance may be : — 
 
 (a) Conditional, i.e. an acceptance only payable on a certain 
 
 event, e.g. the delivery of certain goods. 
 (h) Partial, i.e. to pay part only of the amount of the 
 
 bill. 
 
 (c) Local, i.e. to pay only at a particular specified place ; 
 
 but an acceptance to pay at a particular place is a 
 general acceptance, unless it expressly states that the 
 bill is to be paid there only, and not elsewhere. 
 
 (d) Qualified as to time. 
 
 • (e) The acceptance of some one or more of the drawees, but 
 
 not of all. 
 
 Indorse- Now suppose that William Smith signs his name on the back 
 
 ment. p£ ^^ l^j^^ pf exchange, and hands it to James Thompson, 
 
 William Smith is the indorser, and James Thompson is the 
 
 indorsee, and the signature itself is called " an indorsement." 
 
 An indorsement in order to operate as a negotiation must 
 comply with certain conditions : — • 
 
 (1) It must be written on the bill itself and be signed by the 
 indorser. The simple signature is sufficient (^). 
 
 (2) It must be an indorsement of the entire bill and not a 
 partial indorsement, e.g. an indorsement dealing only with a 
 part of the amount payable (^). 
 
 An indorsement may be, (1) in blank, (2) special, and (3) re- 
 strictive. When an indorsement is made conditionally the 
 condition may be disregarded. 
 
 (') Sect. 7 (1), and see as to time (*) Where a bill is payable to the 
 
 for acceptance, sect. 18. order of two or more payees, or in- 
 
 (^) See Becroix, Verley et die v. dorsees who are not partners, all must 
 
 Meyer & Co., 25 Q. B. D. S43. indorse, unless the one indorsing has 
 
 Q) An indorsement written on an authority to indorse for the others, 
 
 allonge, i.e. a paper annexed to the Where, in a bill payable to order, the 
 
 bill when there are a series of in- payee or indorsee is wrongly deslg- 
 
 dorsements, or on a " copy " of a nated, or his name is mis-spelt, he 
 
 bill issued or negotiated in a counti-y may indorse the bill as therein de- 
 
 where " copies " are recognised, is scribed, adding, if he think fit, his 
 
 deemed to be written on the bill proper signature, 
 itself. 
 
ment. 
 
 indorse- 
 ment. 
 
 Chap. IV.] BEQOTIABLE INSTRUMENTS. 261 
 
 An indorsement in tlank specifies no indorsee, and the bUl is Indorse- 
 then payable to bearer. ™^'''- 
 
 A special indorsement specifies the person to whom, or to Special 
 whose order, the bill is to be payable. indorse- 
 
 Any holder of a bill may convert a blank indorsement into a 
 special indorsement by writing above the indorser's signature a 
 direction to pay the bill to, or to the order of, himself or some 
 other person. 
 
 If a bUl be indorsed in snch form as " Pay D. for the account Restrictive 
 of X.," or "Pay D. or order for collection," the indorsement is 
 restrictive. 
 
 Every contract on a bill, whether it be the drawer's, the 
 acceptor's, or an indorser's, is incomplete and revocable, until 
 delivery of the instrument in order to give effect thereto (^) ; 
 delivery is defined to mean transfer of possession, actual or con- 
 constructive, from one person to another (2), and when a bill is 
 transferred from one person to another in such a manner as to 
 constitute the transferee the holder of the bill it is said to be 
 " negotiated." 
 
 The Act expressly provides that capacity to incur liability Liability 
 as a party to a bill is co-extensive with capacity to contract, *"^ '''^'■ 
 and that the fact that a bill is drawn or indorsed by one who 
 has no capacity or power to incur liability on a bill, e.g. an 
 infant, minor, or corporation, is not to affect the liability of 
 any other party to the bill (3). Thus if I receive a bill to 
 which a company, which is not authorised so to contract, or an 
 iflfant is a party, and this bill is indorsed to me by John 
 Smith, who is under no such incapacity, John Smith is liable, 
 though the company, or infant, as the case may be, is not. 
 
 The law presumes that consideration for a bill of exchange or Considera- 
 promissory note has been given, that any party whose signature ''""^ P''^' 
 appears on the bill is a party for value, and that any holder is 
 a holder in due course. Fraud, duress, or force and fear or 
 illegality, shift the burden of proof and oblige the holder to 
 prove that value in good faith has been given for the bill. The 
 consideration may be any consideration sufficient to support 
 a simple contract or an antecedent debt or liability (*). 
 
 Three days called days of grace are in every case, where the Days of 
 
 (') 45 & 46 Vict. c. 61, s. 21. is proved tlie burden of proof is on 
 
 (2) Ibid. sect. 2. tlie liolder to prove botli that value 
 
 (^) Ibid. sect. 22. has been given and that it has been 
 
 C) Ibid. sect. 30, the phrase given in good faith without notice 
 
 " holder in due course " explained in of the fraud : Tatam v. Haslar, 23 
 
 sect. 29 (1) is now substituted for land Q. B. D. 345. 
 
 fide holder for value. When fraud 
 
262 
 
 PERSONAL PEOPERTT. 
 
 [Book II. 
 
 Acceptance 
 per proc. 
 
 Overdue 
 bill. 
 
 Dis- 
 honoured 
 bill. 
 
 bill is not payable on demand or does not otherwise provide, 
 added to the time of payment as fixed by the bill, and the bill 
 is due and payable on the last day of grace (}). 
 
 A person may accept or sign a biU by procuration or per proc. 
 as it is generally called, i.e. as agent for another. A signature 
 by procuration operates as notice that the agent has but a 
 limited authority to sign, and the principal is only bound by 
 such signature if the agent in so signing was acting within the 
 actual limits of his authority (^). 
 
 A party taking a bill which is overdue takes it, as was said 
 in a well-known case, " with a blot on it " (^). 
 
 Where an overdue bill is negotiated, it can only be negotiated 
 subject to any defect of title affecting it at its maturity, and 
 thenceforward no person who takes it can acquire or give a better 
 title than that which the person from whom he took it had (^). 
 
 A bill is dishonoured in two cases : (1), when it is not paid 
 after due presentment, and (2), when presentment is excused 
 and the biU is overdue and unpaid. The effect of dishonour 
 by non-payment is that the holder has then, subject to the provi- 
 sions of the Acts as to notice, an immediate right of recourse 
 against the drawers and indorsers. Notice of dishonour must 
 be given to the drawer and each indorser, and if such notice is 
 not given, the party to whom the notice is not given is dis- 
 charged. When a bill is dishonoured by non-acceptance and 
 due notice thereof is given, it is unnecessary to give notice of 
 subsequent dishonour by non-payment unless the bill has been 
 accepted in the meantime. The notice may be either written or 
 oral (5). 
 
 (') Sect. 14, which see as to cases 
 where the last day of grace falls on 
 Sunday, Christmas Day, &c., or a 
 Bank Holiday, and as to computation 
 of time generally. 
 
 And note that days of grace are 
 hot under the present law allowed in 
 respect of bills or notes payable at 
 sight, and these are included in bills 
 and notes payable on demand. 
 
 (^) Sects. 25 and 26, an agent or 
 person in a representative capacity 
 ought always expressly to state that 
 he signs for or on behalf of a prin- 
 cipal, or in a representative character, 
 e.g., 
 
 "for Johns & Co., A. B," 
 as otherwise he may be personally 
 liable. 
 
 C) A bill payable on demand is 
 deemed to be overdue within the 
 
 meaning and for the purposes of this 
 section, when it appears on the face 
 of it to have been in circulation for 
 an unreasonable length of time. What 
 is an unreasonable length of time for 
 this purpose is a question of fact: 
 sect. 3, 8ub-s. 3. 
 
 C) Sect. 36, sub-sect. 2. 
 
 (') See sect. 47, et seq., and see as 
 to dishonour, Notice of Dishonour, 
 Byles on Bills, 14th ed. p. 218, et seq. 
 and p. 293. The failure of the holder 
 of a bill of exchange, after the exercise 
 of reasonable diligence, when the bill 
 is dishonoured, to find the drawer at 
 the address which he has given, will 
 not dispense with notice of dishonour 
 if the holder discovers the drawer's 
 address before the commencement of 
 the action : Studdy v. Beesty, 60 L. T. 
 647. 
 
Chap. IV] NEGOTIABLE INSTRUMENTS. 263 
 
 The Customs and Inland Eevenue Act, 1890, provides that 
 " no stamp duty shall be chargeable upon a bill of exchange 
 drawn in the United Kingdom for the sole purpose of remitting 
 money to be placed to any account of public revenue " Q). 
 
 Cheques.— A cheque is defined by the Act to be a bill of Cheque, 
 exchange drawn on a banker payable on demand. 
 
 If a cheque is not presented within a reasonable time from 
 the drawing thereof, and the drawer had the right at the time 
 of such presentment, as between him and the banker, to have 
 the cheque paid, and suffers actual damage through the delay, 
 he is discharged to the extent of such damage, that is to say, to 
 the extent to which such drawer is a creditor of such banker to 
 a larger amount than he would have been had such cheque 
 been paid. 
 
 In determining what is a reasonable time, regard shall be 
 had to the nature of the instrument, the usage of trade and of 
 bankers, and the facts of the particular case, and the holder of 
 such cheque as to which such drawer is discharged shall be a 
 creditor in lieu of such drawer of such banker to the extent of 
 such discharge and entitled to recover the amount from him (^). 
 
 With regard to what is a reasonable time, the rule established 
 by the decisions is, that when the person taking the cheque 
 of the banker on whom it is drawn lives in the same place, 
 the person taking the cheque has the whole of the banking 
 hours of the next business day within which to present the 
 cheque (3). 
 
 When, however, the person taking the cheque, and the 
 banker on whom it is drawn, do not live in the same place, 
 the rule is that the person taking it ought to send it to his 
 banker or agent by the next business day's post, and he should 
 present it the next business day in order to charge the drawee 
 if the bank fails (*). 
 
 The authority of a banker to pay a cheque drawn on him by 
 his customer ceases upon — 
 
 (1) Countermand of payment. 
 
 (2) Notice of the customer's death (^). 
 
 A cheque may be crossed either specially or generally. 
 
 (>) 53 Vict. 0. 8, s. 21. 7 M. & G. 1061. 
 
 (2) 45 & 46 Vict. c. 61, s. 74. A (') Riekford v. Bidge,2 Camp. 537; 
 
 post-dated cheque bearing a penny Hare v. Henty, 10 0. B. (N.S.) 65 ; 
 
 stamp is valid and negotiable : Hitch- Bailey v. Bodenham, 16 C. B. (N.S.) 
 
 cock V. Edwards, 60 L. T. (N.S.) 636. 288 ; Heywood v. Pickering, L. E. 9 
 
 (=) Boddington v. Sohlentur, 4 B. & Q. B. 428. 
 
 Ad. at p. 759 ; Rdbson v. Bennett, 2 (=) Sect. 75. 
 Taunt. 388 ; Alexander v. Birchfield, 
 
264 PERSONAL PROFERTT. [Book H. 
 
 Crossing A cheque is crossed generally when the words " and Corn- 
 
 cheque, pany," or any abbreviation thereof, between two parallel trans- 
 verse lines, either with or without the words " not negotiable," 
 or when the transverse lines simply, with or without the words 
 " not negotiable," are inserted on its face. 
 
 A cheque is crossed specially by writing across its face the 
 name of a banker either with or without the words " not 
 negotiable.'' 
 
 If a cheque is uncrossed, the holder may cross it generally or 
 specially, and if it is crossed generally he may cross it specially. 
 And whether crossed generally or specially the holder may add 
 the words " not negotiable." 
 
 If a cheque is crossed specially the banker to whom it is 
 crossed may cross it again specially to another banker for 
 collection, and in cases where a cheque is crossed generally, 
 or where a cheque is crossed specially to more than one banker, 
 except when crossed to an agent for collection, being a banker, 
 the banker on whom it is drawn must refuse payment thereof. 
 
 If a banker pays a cheque crossed generally otherwise than 
 to a banker, or if crossed specially otherwise than to the 
 banker named thereon, he is liable to the true owner of the 
 cheque for any loss he may sustain owing to the cheque having 
 been so paid. But if the cheque at the time of presentment 
 appears not to have been crossed, or to have a crossing which 
 has been obliterated, then the banker, if he pays the cheque in 
 good faith and without negligence, is under no liability what- 
 ever (1). 
 
 If a banker on whom a crossed cheque is drawn, in good 
 faith and without negligence, pays it, if crossed generally to 
 a banker, and if crossed specially to the banker to whom it is 
 crossed, or his agent for collection, being a banker, the banker 
 paying the cheque, and, if the cheque has come into the hands 
 of the payee, the drawer shall respectively be entitled to the 
 same rights and are placed by the Act in the same position as 
 if payment of the cheque had been made to the true owner 
 thereof (^). 
 
 If a banker receives, in good faith and without negligence, 
 payment for a customer of a cheque crossed generally or 
 specially to himself, and the customer has no title or a defective 
 title thereto, the banker does not incur any liability to the true 
 owner by reason only of having received such payment (f). 
 
 (') 45 & 46 Vict. u. 61, s. 79. (3) Sect. 82: 
 
 {j') Sect. 80. 
 
Chap. IV.] NEGOTIABLE INSTRUMENTS. 265 
 
 It has been settled by a celebrated case in the House of Position of 
 Lords (1), that the relation between a banker and his customer banker. 
 18 merely one of debtor and creditor. There is no fiduciary 
 relation between them. The banker simply receives money 
 from his customer on condition of paying it back when asked 
 or when drawn upon by the customer. 
 
 The banker is bound by his contract to honour the customer's 
 cheque provided that he has sufficient funds in hand (2), and 
 if the banker dishonours a customer's cheque without due cause 
 he is liable to an action (3). 
 
 Promissory Notes. — A promissory note is defined by the Act Promissory 
 to be " an unconditional promise, in writing, made by one °'''*^" 
 person to another, signed by the maker engaging t© pay, on 
 demand or at a fixed or determinable future time, a sum certain, 
 in money, to or to the order of a specified person or to 
 bearer " (*). 
 
 A promissory note is inchoate and incomplete until delivery 
 of it to the payee or bearer (^). 
 
 Two or more persons may make a promissory note, and their 
 liability is to be joint or several according to its tenor (^). 
 
 If a note payable on demand has been indorsed it must be 
 presented within a reasonable time of the indorsement, and if it 
 be not so presented the indorsee is discharged. 
 
 In determining what is a reasonable time in this case, as in 
 the case of a cheque, regard is to be had to the nature of the 
 instrument, the usage of trade, and the facts of the particular 
 case ('). 
 
 If in the body of the promissory note it is made payable at 
 a particular place, it must be presented at that place in order to 
 render the maker liable. Presentment for payment is also 
 necessary in order to render the indorser of a note liable Q). 
 
 In a case decided in 1889, the facts shortly stated were as 
 follows : The plaintiff who was the indorsee of a promissory 
 
 (') Foley V. Hill, 2 H. L. 0. 43. BrooTis v. MitclieU, 9 M. & W. 15. 
 
 (^) JSopkinson v. Forster, L. K. 19 (') Sect. 87. The section goes 
 
 Eq. 76. on to provide that where the note is in 
 
 (') Marzetti v. Williams, 1 B. & Ad. the body of it payable at a particular 
 
 414. place, presentment at that place is 
 
 (■*) 45 & 46 Vict. c. 61, s. 83. necessary in order to render an in- 
 
 Q) Sect. 84. dorser liable, but when a place of 
 
 (^) When a note runs " I promise payment is indicated by way of 
 
 to pay," and is signed by two or more memorandum only, presentment at 
 
 persons, it is deemed to be joint and that place is sufficient to render the 
 
 several. indorser liable, but a presentment to 
 
 (') Sect. 86. As to what is a the maker elsewhere, if sufficient in 
 
 reasonable time : see Chartered Banh other respects, shall also suffice. 
 V. Dickinson, L. B. 3 P. C. 574,; 
 
266 PERSONAL PROPERTY. [Book II. 
 
 note payable on demand sued tte maker thereof. The defen- 
 dant had given as further security for the debt a mortgage of 
 certain property. The mortgage had been transferred, and the 
 amount secured by the promissory note thus paid off. The 
 original payee of the note subsequently indorsed it to the 
 plaintiff for value without knowledge of the circumstances. 
 The Court decided that the note not having been paid or 
 returned to the maker was still current at the time of the 
 endorsement, and that the plaintiff as a hond fide indorsee for 
 value was entitled to recover upon it Q-). 
 
 When the holder of a bill at or after its maturity absolutely 
 and unconditionally renounces his rights against the acceptor, 
 the bill is discharged. The renunciation must be in writing 
 unless the bill is delivered up to the acceptor, and it has been 
 decided that the renunciation in writing required by the 
 statute must be in itself a record of the renunciation, not a 
 memorandum or note of the renunciation or of an intention or 
 desire to renounce (2). 
 
 The provisions of the Act with regard to bills of exchange 
 apply with the necessary modifications to promissory notes (^). 
 Assign- It will be convenient for us here to notice the important pro- 
 
 choses in visions of the Judicature Act with regard to the assignment of 
 action. choses in action. The 25th section of the Judicature Act, 1873 
 (sub-sect. 6), provides that any absolute assignment, by writing 
 under the hand of the assignor (not purporting to be by way of 
 charge only), of any debt or other legal chose in action, of which 
 express notice in writing shall have been given to the debtor, 
 trustee, or other person from whom the assignor would have 
 been entitled to receive or claim such debt or chose in action, 
 shall be, and be deemed to have been, effectual in law (subject 
 to all equities which would have been entitled to priority over 
 the right of the assignor if the Act had not been passed), to 
 pass and transfer the legal right to such debt or chose in action 
 from the date of such notice, and all legal and other remedies 
 for the same, and the power to give a good discharge for the 
 same, without the concurrence of the assignor. It is important 
 to observe that the assignment must be absolute, i.e., not by 
 
 (') Glasscock v. Balls, 24 Q. B. D. (1) Presentment for payment. 
 
 13. (2) Acceptance. 
 
 (^) In re George. Francis v. Bruce, (3) Acceptance supra protest. 
 
 44 Oh. D. 627. (4) Bills in a set. 
 
 (') Sect. 89. The following pro- Neither need a foreign note which 
 
 visions as to bills of exchange do is dishonoured be protested, 
 not apply to promissory notes : — 
 
Chap. IV.] 
 
 NEGOTIABLE INSTRUMENTS. 
 
 267 
 
 way of charge, and in writing under the hand of the assignor, Assign- 
 and that express notice thereof in writing must be given Q). ™*°' "^ 
 
 C/10S6S ifli 
 
 C) 36 & 37 Vict. c. 66, 8. 25, sub- 
 s. 6. The section goes on to make 
 provision that if the debtor, trustee, 
 or other person liable in respect of 
 such debt or chose in action shall 
 have had notice that such assign- 
 ment is disputed by the assignor or 
 any one claiming under him, or of 
 any other opposing or conflicting 
 claims to such debt or chose in action, 
 he shall be entitled, if he think fit, 
 to call upon the several persons 
 making claim thereto to interplead 
 
 concerning the same, or he may, if 
 he think fit, pay the same into the 
 High Court of Justice under and in 
 conformity with the provisions of the 
 Acts for the relief of trustees. Bur- 
 linson V. Sail, 12 Q. B. D. 347 ; Knill 
 V. Prowse, 33 "W. E. 163 ; Be Sutton, 
 12 Ch. D. 175 ; Beading v. School 
 Board for London, 16 Q. B. D. 686 ; 
 Harding v. Harding, 17 Q. B. D. 
 442 ; Bead v. Brown, 22 Q. B. D. 
 132. 
 
 action. 
 
268 
 
 PERSONAL PROPEBTT. 
 
 [Book II. 
 
 Insurance 
 and as- 
 surance. 
 
 Definition. 
 
 CHAPTEE V. 
 Policies of Insueance. 
 
 A very important description of personal property whicli we 
 shall now proceed to consider is that of policies of insurance, or, 
 as they may be more accurately denoted, policies of insurance 
 and assurance. The term " assurance " is, in strictness, applied 
 only to the contract of life insurance ; the term " insurance," is 
 properly reserved for the other forms of the contract, hut the 
 distinction is not very much observed, and is constantly 
 neglected, even in judicial expositions of the law. 
 
 The general idea of the contract of insurance may be conveyed 
 to the mind of the reader by a definition which has been com- 
 mended alike for its logic and its comprehensiveness. Insurance, 
 with the exceptions which we shall next notice, is a contract 
 whereby one for a consideration undertakes to compensate 
 another for a loss (i). A contract whereby one party, in con- 
 sideration of a stipulated sum, undertakes to indemnify the 
 other against certain perils or risks to which he is exposed, or 
 against the happening of some event. 
 
 The attention of the reader ought, however, at once to be 
 directed to the fact that a very important distinction exists 
 between the contract of life insurance on the one hand, and the 
 contracts of marine and fire insurance on the other. The con- 
 tracts of marine and fire insurance are essentially contracts of 
 indemnity, while it was conclusively settled in the year 1854, 
 by a case to which we shall presently refer, that the contract of 
 life insurance is a mere contract to pay a certain sum on the 
 death of a certain person, and has in its nature nothing whatever 
 to do with indemnity. 
 
 The contract of insurance against accident is also not in ihe 
 nature of indemnity (jpost, p. 278). 
 
 (') May on Insurances, citing the 
 definition of Koocus, " Asseouratio 
 est contractus, quo quia aliense rei 
 periculum in se suscepit, obligando 
 se sub certo pretio ad eum conipen- 
 eandum si ilia perierit." Marshall 
 
 on Marine Insurance. In Ex parte 
 Ibbetson, 8 Oh. D. 519, where the 
 question arose on the meaning of tho 
 Bankruptcy Act, 1869, s. 15, it was 
 decided tliat a policy of insurance is 
 a " thing in action." 
 
Chap. V.] 
 
 POLICIES OF INSUEANOK 
 
 269 
 
 The principle of indemnity implied in tlie contract of in- 
 surance leads to certain consequences, which may be shortly 
 stated as follows : — • 
 
 1. The amount which the insured can recover is limited to 
 his actual loss, which may he recovered either by payment or 
 reinstatement. No more than this can be commonlj' recovered, 
 and if more is recovered, the insurer, if he paid in ignorance, 
 may get the amount so paid back. 
 
 2. If the thing insured is only partially destroyed, or 
 deteriorated, the insured can only claim the value of the 
 injury actually done unless he surrenders the thing insured to 
 the insurer. This is the doctrine of abandonment, the prin- 
 ciple of which applies to all insurance of property, though 
 chieiiy to marine insurance (i). 
 
 3. The insured cannot " take with both hands." If he has 
 ways and means independent of the insurer to repair his loss, he 
 must either cede such ways and means to the insurer on being 
 paid in full the amount of his loss, or he must exercise such 
 ways and means for the benefit of the insurer. The principle 
 on which this is founded is called " subrogation " (2). This 
 doctrine has been judicially defined or described as follows : — 
 
 " The doctrine is well established, that where something is 
 insured against loss, either in a marine or in a fire policy, after 
 the assured has been paid by the insurers for his loss, the 
 insurers are put into the place of the assured with regard to 
 every right given him by the law respecting the subject-matter 
 insured, and which contract is affected by the loss or the safety 
 of the subject-matter insured by reason of the peril insured 
 against." 
 
 The contract of marine insurance has been defined as one 
 whereby one party for a stipulated sum undertakes to indem- 
 nify the other against loss arising from certain perils or sea 
 risks to which his ship, merchandise, or other interest may be 
 exposed during a certain voyage, or a certain period of time (^). 
 The insurers are called " underwriters," because they subscribe 
 the policy ; and if the ship or goods insured are wholly or 
 partially destroyed, perish, or are lost in whole or in part, 
 each underwriter has to contribute rateably to the loss. The 
 voynge must be a legal voyage. The losses which are usually 
 covered by a policy of marine insurance are perils of the 
 
 (') Porter on Insurance, pp. 4, 5 ; 
 Darrell v. TihUtts, 5 Q. B. D. 560 ; 
 Castellain v. Preston, 11 Q. B. D. 380. 
 
 C) Arnold on Marine Insurance, 
 
 Conse- 
 quence of 
 principle 
 of indem- 
 nity. 
 
 Subroga- 
 tion. 
 
 Marine 
 insurance. 
 
 15. See as to concealment of material 
 facts, post, p. il8. 
 
 (^) Smith's Mercantile Law, bk. 2, 
 oh. iv. 
 
270 
 
 PERSONAL PROPERTY. 
 
 [Book II. 
 
 Subjects 
 of marine 
 insurauce. 
 
 Marine 
 policies. 
 
 sea, fire, capture, arrest, restraints and detainments, pirates, 
 negligence of crew, barratry, and all other perils, losses and 
 misfortunes ('). 
 
 The result of the authorities bearing on the question what 
 may be the subject of marine insurance has been summed up 
 in a standard work (2) as follows :— " Ships, goods, or special 
 property therein, e.g. that of a carrier, or money expended by 
 a captain for the ship's use, his commission and privileges, 
 expected profits, bottomry, or respondentia interest, freight, 
 have all been held fit subjects of marine insurance. Under the 
 term ' freight ' may be insured the benefit an owner would 
 derive from carrying his own goods in his own vessel ; but in 
 order to recover under a policy upon freight, the assured must 
 prove that, but for the intervention of a peril insured against, 
 some freight would have been earned, by showing, either that 
 some goods were put on board, or that there was some contract 
 for so doing. In a word, any person who has an interest in the 
 subject-matter of insurance may be insured to the extent of 
 that interest ; and any person may be said to have an interest 
 who may be injured by the risks to which that subject-matter 
 is exposed, or would only, but for them, have a moral certainty 
 of advantage." 
 
 The contract of marine insurance, in order to be valid, must 
 be embodied in a policy, the essential parts of which are the 
 risk, the names of the subscribers or underwriters, and the 
 sums insured (f). 
 
 Marine policies are of two classes : " open " policies, i.e. where 
 the value of the thing insured is not inserted in the polioy, and 
 must consequently in the event of loss be proved at the trial ; 
 and " valued," i.e. where the value of the thing insured is 
 agreed by the parties and included in the policy (*). 
 
 Marine policies in blank are void. The law on this subject is 
 contained in a statute of Geo. 3 (^), which provides as foUows ; — 
 
 " It shall not be lawful for any person or persons to make 
 or effect, or cause to be made or effected, any policy or policies of 
 assurance upon any ship or ships, vessel or vessels, or upon any 
 goods, merchandises, effects, or other property whatsoever, 
 without first inserting, or causing to be inserted, in such policy 
 
 (') Newson's Law of Shipping and 
 Marine Insurauce, bk. 2, cli. .v 
 pp. 250-262. 
 
 (2) Smith's Mercantile Law, 10th 
 ed. pp. 401-403. 
 
 Q) No action can be maiutained 
 
 on "a slip." Fisher v. Liverpool 
 Marine Inmranee Co., L. K. 9 Q. B. 418. 
 
 (■■) Lidgelt v. Secretan, L. E. 6 
 C. P. 616; Burnand v. BodocanacM, 
 7 App. Cas. 333. 
 
 (0 28 Geo. 3, c. 56. 
 
Chap. V.] POLICIES OP INSURANCE. 271 
 
 or policies of assurance the name or names or the usual style Marine 
 and firm of dealing of one or more of the persons interested in insurance. 
 such assurance, or without, instead thereof, first inserting or 
 causing to he inserted in such policy or policies of assurance the 
 name or names or the usual style and firm of dealing of the 
 person or persons residing in Great Britain, who shall receive 
 the order for and effect such policy or policies of assurance, or 
 of the person or persons who shall give the order or direction to 
 the agent or agents immediately employed to negotiate or effect 
 such policy or policies of assurance." 
 
 In order that an assignment of a marine policy should he Assign- 
 valid there must he (a), an assignahle interest in the assign- ™ent of 
 ment; (6), the risk insured against must still be pending; P° "^y* 
 (c), there must he an insurable interest in the thing insured 
 transferred to the assignee Q). The assignee may sue in his 
 own name, but the defendant may set up any defence which 
 would have been valid in an action by the assignor (2). 
 
 And here it may be well to point out the distinction between 
 " particular " and " general average." 
 
 Particular average is the loss accidentally and proximately Particular 
 caused by the perils insured against, to the subject-matter of average, 
 the insurance ; which loss, instead of falling on all interested in 
 the voyage, falls solely on the owner of the property lost. 
 
 General average is a contribution by the owners of the ship, General 
 freight, and cargo, to compensate the owner of a particular part of average, 
 the ship or cargo whose property was sacrificed for their common 
 good, ex. gr., a jettison of cargo. The whole adventure must 
 have been in imminent danger of being lost for a right to 
 general average to exist ; for the sacrifice must have been for 
 the general good (^). 
 
 Simple or particular average, said Lord Stowell (*), is not a 
 
 (') Newaon's Law of Shipping and in fire policies is quite a different 
 
 Marine Insurance, p. 219; North of thing from average in marine policies. 
 
 England Oil Cake Go. v. Archangel "In the latter it means a rateable 
 
 Insurance Co., L. K. 10 Q. B. 255. contribution to the damage caused to 
 
 (2) 31 & 32 Vict. u. 86. part of the adventure by a common 
 
 (=) The law of general average is peril, i.e., the whole adventure is 
 derived from the Lex Bhodia, which dealt with in soUdo, and any loss is 
 provided " ut si levandse navis gratis, treated as lost by all, to be appor- 
 jaetus meroium factus sit omnium tioned among the co-adventurers or 
 contributione sarciatur quod pro their insurers, if any ; whereas the 
 omnibus datum est," on the principle conditions of average in fire assurance 
 that in the moment of jeopardy every aim at lessening the indemnity pay- 
 one would, as Lord T enterden said, able to the assured." Porter on 
 adopt the words of the Latin poet. Insurance, p. 249 ; see, as to Average, 
 " fundite quse mea sunt etiam pul- Price & Co., and Others v. The Al 
 cherrima." Ships' Small Damage Insurance As- 
 
 (*) The Copenhagen, 1 0. Rob. 293. sociation, Limited, 22 Q. B. D. 588 : 
 
 It has been pointed out that average a case decided in 1889 by the 
 
272 
 
 PERSONAL PROPERTY. 
 
 [Book II. 
 
 Particular 
 average. 
 
 Fire in- 
 surance. 
 
 very accurate expression ; for it means damage incurred by or 
 for one part of the concern, which that part must bear alone ; 
 so that in fact it is no average at all ; but still this expression 
 is sufficiently understood and received into familiar use. The 
 loss of an anchor or cable, the starting of a plank, are matters of 
 simple or particular average, for which the ship alone is liable. 
 Should a cargo of wine turn sour on the voyage, it would be a 
 matter of simple average, which the goods alone must bear. 
 
 Policies of fire insurance now usually contain certain conditions 
 declaring the terms on which the insurance is effected, limiting the 
 responsibility of the insurer, and imposing duties on the insured. 
 
 These conditions may relate : (1) to the making of the contract ; 
 (2) to the right of action ; (3) to the forfeiture of the contract ; 
 (4) to the settlement of disputes, and (5) to the time of making 
 the claim. 
 
 A usual proviso in fire policies is that, on happening of a loss, 
 a notice in writing must be given within fifteen days at latest, 
 with particulars, values, vouchers, and a statutory declaration 
 of the truth of the account. 
 
 The law with regard to this condition was stated in a recent 
 case by the House of Lords, as follows : 
 
 " It has long been the practice of companies insuring against 
 fire, for the purpose of their own security, to incorporate in 
 their policies by reference to their proposals various stipulations 
 for matters to be done by the assured making a claim before 
 the company is to pay him, and to make the fulfilment of those 
 conditions a condition precedent to their obligation to pay. 
 There was much controversy on the subject about a century ago, 
 but since the case of Worsley v. Wood it has been settled law that 
 this mode of protecting themselves which the companies have 
 adopted is effectual " Q). 
 
 Court of Appeal. In this case the 
 action was upon a policy of marine 
 insurance in which the insurance was 
 expressed to be against all losses 
 which could not be recovered under 
 an ordinary Lloyd's, or a similar 
 policy of insurance by reason of the 
 insertion therein of the clause, 
 "warranted free from average under 
 three pounds per cent., unless general 
 or the ship be stranded, sunk, or 
 burnt." The ship sustained parti- 
 cular average damage, and further 
 damage which constituted a general 
 average loss. The Court of Appeal 
 decided, that the general average 
 loss could not bo added to the parti- 
 
 cular average loss for the purpose of 
 ascertaining the percentage under 
 the memorandum, and the particular 
 average loss being under three per 
 cent., the plaintiffs could not recover 
 it under the ordinary Lloyd's poHoy, 
 and therefore were entitled to recover 
 under the policy effected with the 
 defendants. See also as to average, 
 Marine Insurance Co. v. China, &c., 
 Co., 11 App. Gas. 573. 
 
 (') London Guarantee Co. v. Feam- 
 ley, 5 App. Gas. 911, citing Worsley 
 V. Wood, 6 T. R. 710. See as to 
 arbitration clause, Viney v. Bignold, 
 20 Q. B. D. 172. 
 
Chap. V.] POLICIES OF IN8UBANCE. 273 
 
 Tho word " fire " in policies of insurance is to be construed in Fire in- 
 its ordinary sense. In order that the insurers should be liable, ^"'^°<^^- 
 there must be actual ignition, and the loss must be the efibct of 
 the ignition. Thus, when sugar was injured by heat, or the 
 value of treacle diminished by contraction arising from heat, it 
 was held that there was no loss by fire. Given, however, that 
 the loss has happened by fire, the origin of the fire is immaterial. 
 It matters not, as was forcibly stated in an American case, how 
 the flame was kindled, whether it be the result of accident or 
 design, whether the torch be applied by the honest magistrate 
 or the wicked incendiary ; whether the purpose was to save the 
 city, as in New York, or the country, as at Moscow. 
 
 The Trustee Act, 1888 (i), provides that it shall be lawful Trustee 
 for, but not obligatory upon, a trustee to insure against loss or ' 
 damage by fire any building or other insurable property, to 
 any amount (including the amount of any insurance already on 
 foot), not exceeding three equal fourth parts of the full value of 
 such building or property, and to pay the premiums for such 
 insurance out of the income thereof, or out of the income of any 
 other property subject to the same trusts, without obtaining the 
 consent of any person who may be entitled wholly or partly to 
 such income. It is however provided that the section shall not 
 apply to any building or property which a trustee is bound 
 forthwith to convey absolutely to &nj cestui que trust upon being 
 requested so to do. 
 
 The contract of life insurance has been judicially defined as Definitions 
 
 follows : " It is," said Baron Parke, in Dalby v. India and London ?* 
 
 ' "^ insm'iince. 
 
 Life Assurance Company (^j, " a mere contract to pay a certain 
 sum of money on the death of a person, in consideration of the 
 due payment of a certain annuity for life, the amount of the 
 annuity being calculated in the first instance according to the 
 probable duration of the life, and when once fixed it is constant 
 and invariable. The stipulated amount of the annuity is to be 
 uniformly payable on one side, and the sum to be payable, in 
 the event of death, is always (except where bonuses have been 
 given by prosperous offices) the same on the other." 
 
 The contract of insurance, said Sir George Jessel (3), is a 
 purchase of a reversionary sum in consideration of a present 
 
 (') 51 & 52 Vict. c. 59 ; and see aa tion takes no account of cases where 
 
 to insurance by mortgagee, sect. 23 of bonuses are applied in reduction of 
 
 the Conveyancing Act, 1881 : West- premiums. See aa to conclusion of 
 
 minster Fire Office v. Glasgow, &c., contract, Canning v. Farquhar, 16 
 
 Society, 13 App. Gas. 699. Q- B. D. 727. 
 
 (2) 15 C. B. 387. It may be pointed (') Fryer v. Morland, 3 Ch. D. 
 
 out that the latter part of this defini- 688. 
 
 VOL. I. T 
 
274 PERSONAL PBOPEBTT. [Book II. 
 
 payment of money, or, as is generally the case, on the payment 
 of an annuity during the life of the person insuring. 
 Insurable Wager policies, viz., policies effected by persons who have 
 
 interest. ^q interest in the subject-matter insured, are forbidden as to 
 ships and their cargoes by a statute of Geo. II. (i) A statute 
 passed in the subsequent reign (14 Geo. 3, c. 48), called the 
 Gambling Act, forbids insurances upon lives and other events 
 unless there be an insurable interest. The interest must be a 
 pecuniary one. A person is presumed to have an interest in his 
 own life. A parent has not, however, merely by virtue of the 
 parental relationship an interest in the life of his child. A 
 son has an insurable interest in the life of a father who supports 
 him, but not in the life of a father whom he supports. A 
 creditor, unless the debt be an illegal one, has an insurable 
 interest in the life of his debtor, and a surety in that of the 
 principal creditor (2). 
 
 The law with regard to the question whether the contract of 
 life insurance is a contract of indemnity has had a curious and 
 interesting history. In the well-known case of Oodsall v. 
 Boldero, decided in 1806, a creditor who had insured the life of 
 the celebrated William Pitt brought an action on his death on 
 the policy. The creditor had had an insurable interest in Mr. 
 Pitt's life at the time of the insurance in 1803, but subsequently, 
 when Mr. Pitt's debts were paid by the nation through his 
 executors, the question arose whether the creditor could recover 
 on the policy, and Lord Ellenborough decided that he could 
 not. This case was treated as law until 1864, when it was 
 overruled by the unanimous decision of six judges in Dalhy v. 
 Tlie India and London Life Assurance Go. (^). 
 Policies of With regard to the assignment of life policies and the 
 aT'Tsbt rights of assignees, the Policies of Assurance Act, 1867 (^), 
 ' ' provides that any person or corporation entitled, by assignment 
 or other derivative title, to a policy of life assurance, and 
 possessing at the time of action brought the right in equity 
 to receive, and the right to give an effectual discharge to the 
 assurance company liable under such policy for moneys thereby 
 assured, shall be at liberty to sue in the name of such person or 
 
 (■) 19 Geo. 2, c. 37. (0 15 0. B. 365 ; Smith's Leading 
 
 (^) See WortMngton v. Curtis, Oases, vol. ii. 
 1 Ch. D. 419, and cases collected in Q) 30 & 31 Vict. c. 144. See as 
 Crawley on Life Insnranoe, p. 24, to condition against assignment. He 
 et seq. ; and see as to insurances Turcan, 40 Oh. D. 5 ; and as to as- 
 under the Married Women's Property signment abroad void by foreign law, 
 Act, 1882, ante, p. 223. Lee v. Abdy, 17 Q. B. D. 309. 
 
Chap. V.] POLICIES OF INSUBANOE. 275 
 
 corporation to reco'Ver such moneys, but that any defence on 
 equitable grounds may be pleaded. 
 
 The same Act also provides that no assignment of a policy of Assign- 
 life assurance shall confer on the assignee therein named, his ™«"' "f 
 executors, administrators, or assigns, any right to sue for the ' ° ^'' "^^" 
 amount of such policy, or the moneys assured or secured thereby, 
 until a written notice of the date and purport of such assign- 
 ment shall have been given to the assurance company liable 
 under such policy at their principal place of business for the 
 time being, or in case they have two or more principal places 
 of business, then at some one of such principal places of 
 business, either in England, or Scotland, or Ireland, and the 
 date on which such notice shall be received shall regulate the 
 priority of all claims under any assignment; and a payment 
 bond fide made in respect of any assurance company before the 
 date on which such notice shall have been received shall be as 
 valid against the assignee giving such notice as if the Act had 
 not been passed. 
 
 The Act also provides that any such assignment may be 
 made either by indorsement on the policy or by a separate 
 instrument in the words or to the eifect set forth in the 
 schedule to the Act, such indorsement or separate instrument 
 being duly stamped. Notices of assignment are to be acknow- 
 ledged by the company on payment in each case of a fee not 
 exceeding five shillings. 
 
 A subsequent section provides that the date on which such 
 notice should be received should regulate the priority of all 
 claims under any assignment ; and that a payment bond fide 
 made in respect of any policy by any assurance company before 
 the date on which such notice should have been received should 
 be as valid against the assignee giving such notice as if the Act 
 had not been passed. 
 
 The effect of this statute was considered in a case which 
 came before the Court in 1885 (^), in which it was decided that 
 a first incumbrancer who had not given the statutory notice 
 was not to be postponed to a second incumbrancer who, having 
 had notice of the prior incumbrance, had then given the office 
 the statutory notice. The statute, the Court said, was not 
 intended to affect the rights of persons claiming interest in the 
 
 (') Newman v. Newman, 28 Ch. D. Crossley v. City of Glasgow Life 
 
 674. An agreement to execute a Assurance Co., 4 Ch. D. 421 ; Webster 
 
 valid mortgage of a policy which ia v. British Mutual Life Assurance Co., 
 
 deposited is not an assignment with- 15 Ch. D. 169 ; Curtiusv. Caledonian 
 
 in the meaning of the Act : Spencer Fire and Life Insurance Co., 19 
 
 V. Clarke, 9 Oh. D. 137. And see Oh. D. 534. 
 
 T 2 
 
276 
 
 PERSONAL PROPERTY. 
 
 [Book !!• 
 
 Life As- 
 surance 
 Companies 
 Acts. 
 
 money outside the insurance office. It was intended to give 
 a simpler remedy against an insurance office, and also to give 
 facilities to insurance offices in settling claims by enabling them 
 to recognise as the first claim the claim of the person who first 
 gave such notice as required by the statute. It was not intended 
 to enact that a person who had advanced money upon a second 
 charge with notice of the first, and made subject to it, shonld, 
 by giving statutory notice to the office, exclude the person who 
 had the prior incumbrance. 
 
 The law with regard to life assurance companies was mate- 
 rially altered by the Life Assurance Companies Acts, 1870, 
 1872 (jpost, p. 658). The only provision which may here be 
 noticed is that which is concerned with the subject of novation 
 Novation, by policy-holders. On this subject, the Act of 1872 provides 
 that no policy-holder of a company amalgamated with or trans- 
 ferred to another shall, by reason of payment or premium, or 
 any other act, be deemed to have abandoned any claim which 
 he would have had against his original company on due 
 payment of premiums to such company, or to have accepted 
 in lieu thereof the liability of the other company, unless such 
 abandonment and acceptance have been signified by some writing 
 signed by him or his agent lawfully authorized. 
 
 A usual clause in a life policy is that if the life assured die 
 by his own hands, the hands of justice, or by duelling, the policy 
 will be void ; but if any third party have acquired a hona fide 
 interest therein, by assignment or by legal or equitable lien for a 
 valuable consideration, or as security for money, the insurance 
 thereby effected shall nevertheless to the extent of such interest 
 be valid and of full effect. It has been decided that a person 
 taking the policy as personal representative of the deceased is 
 not within the benefit of this exception (i). 
 
 In a case (^) where an assurance company advanced money to 
 a man on a mortgage of real security, and on his effecting a 
 policy on his life in their office for the amount of the loan, which 
 was deposited with the company as collateral security, there was 
 a clause of this description, and the insured committed suicide. 
 The Court decided that the company and the assured stood in 
 the same position as if the poHcy had been mortgaged to any 
 third person ; that the company came within the exception in the 
 condition ; and, therefore, that the policy was valid to the extent 
 of the mortgage debt due to them at the death of the insured. 
 
 Suicide, &c. 
 
 (') Jaokson v. Fofster, 29 L. J. 
 Q. B. 8. 
 
 C) White V. British Empire Mutual 
 Life Assurance Co., L. B. 7 Bq. 394. 
 
Chap. V.] POLICIES OF IN8UBANCE. 277 
 
 A very important provision witli regard to the stamp duty stamp 
 on assignments of policies of life insurance is contained in the " 
 Customs and Inland Eevenue Act, 1888. It enacts that no 
 assignment of a policy of life assurance shall confer on the 
 assignee therein named, his executors, administrators, or assigns, 
 any right to sue for the money assured or secured thereby, 
 or to give a Valid discharge for it, or any part of it, unless the 
 assignment is duly stamped, and no payment shall be made to 
 any person claiming under any such assignment unless the same 
 is duly stamped. 
 
 The section further provides that if any payment shall be 
 made in contravention of this section, the stamp duty not paid 
 upon the assignment, together with the penalty payable on 
 stamping the same, shall be a debt due to Her Majesty from the 
 company or person by whom such payment is made, and shall be 
 recoverable as such accordingly Q-). 
 
 The Trustee Act, 1888, contains a special clause with regard Trustee 
 to policies of insurance. It enacts that (^) a trustee may appoint " ' 
 a banker or solicitor to be his agent " to receive and give a 
 discharge for any money payable to such trustee under or by 
 virtue of a policy of assurance by permitting such banker or 
 solicitor to have the custody of and to produce such policy of 
 assurance with a receipt signed by such trustee, and no trustee 
 shall be chargeable with a breach of trust by reason only of his 
 having made or concurred in making any such appointment." 
 It is, however, provided that nothing contained shall exempt a 
 trustee from any liability which he would have incurred if this 
 Act had not passed, in case he permits such money to remain in 
 the hands or under the control of the banker or solicitor appointed 
 as aforesaid for a period longer than is reasonably necessary to 
 enable such banker or solicitor to pay the same to the trustee. 
 
 A lien or charge is created upon the moneys secured by poli- Lien, 
 cies in favour of persons who pay premiums to keep the policies 
 on foot in four cases (^) : 
 
 1. Where the persons beneficially entitled to the policy are 
 under a contract to this effect. 
 
 2. Where trustees expend their own moneys in keeping up 
 policies of which they are trustees. 
 
 3. Where persons have, at the request of trustees, advanced 
 
 (') 51 Vict. 0. 8, s. 19 : see as to Leading Cases in Equity, p. 262 et 
 
 condition precluding stamp objec- seq. See also Falche v. Scottish 
 
 tions, ante, p. 95. Imperial Insurance Co., 31 Ch. D. 
 
 O 51 & 52 Vict. c. 59, s. 2, sub-s. 6. 234 ; Re Earl of Winchilsea's Policy 
 
 {') In re Leslie. Leslie v. French, Trusts, 39 Ch. D. 168 ; Strutt v. 
 
 23 Oh. Div. 552, and see Brett's Tippett, W. N. (1890) p. 23. 
 
278 
 
 PERSONAL PBOPERTT. 
 
 [Book II. 
 
 Conceal- 
 ment of 
 material 
 facts. 
 
 Accident 
 insurance. 
 
 money for such a purpose, and are consequently allowed to 
 succeed to the trustees' rights. 
 
 4. Where mortgagees have paid premiums, they are entitled 
 to add to this charge the moneys so expended. 
 
 The law with regard to concealment of material fact vitiating 
 the contract of insurance was carefully considered by Sir George 
 Jessel in a case decided in 1879. In that case the defendant 
 sent in a proposal to an assurance office for an assurance on his 
 life. The following questions were then put to him : — " Has a 
 proposal ever been made on your life at any other office or offices ? 
 If so, when ? Was it accepted at the ordinary premium, or at 
 an increased premium, or declined ?" The defendant's answer 
 was : " Insured now in two offices for £1600, at ordinary rates. 
 Policies effected last year " ; and the proposal was accepted. 
 The office, however, subsequently ascertained the defendant's 
 life had been declined by several offices, and they accordingly 
 commenced an action asking the Court to declare that the 
 contract for the insurance of the defendant's life was void. Sir 
 Oeorge Jessel, in delivering judgment in the plaintiflfe' favour, 
 expressed himself as follows : — " What is the principle on which 
 the Court acts in setting aside contracts of assurance? As 
 regards the general principle, I am not prepared to lay down 
 the law as making any difference in substance between one 
 contract of assurance and another. Whether it is life, or fire, or 
 marine assurance, I take it good faith is required in all cases, 
 and, though there may be certain circumstances from the 
 peculiar nature of marine insurance which require to be dis- 
 closed, and which do not apply to other contracts of insurance, 
 that is rather, in my opinion, an illustration of the application 
 of the principle than a distinction in principle " (^). 
 
 Another form of insurance which may be briefly noticed is 
 accident insurance. It has been defined as " a branch of life 
 insurance by which persons are enabled to provide against loss 
 to themselves or their families in case they are injured or 
 disabled for a time, or permanently, or killed by some one or 
 other cause operating on them from without " (^). 
 
 Q) London Assurance Go.y. Mansel, 
 11 Gh. D. 363, 367. See, however, the 
 observations of Lord Blackburn in 
 Thompson v. Welms, 9 App. Cas. 671. 
 
 (^) Porter's Laws of Insurance, 
 2ud ed. pp. 19, 45, et seq. ; and see 
 Stoneham v. The Ocean, &o., Acaiclent 
 Lisurance Co., 19 Q. B. D. 237. The 
 Customs and Inland Eevenue ' Act, 
 1890 (.53 & 5-1 Vict. 0. 8), s. 20, pro- 
 vides that " the stamp duty payable 
 upon a policy of insurance for any 
 
 payment or periodical payments 
 agreed to be made during the sick- 
 ness of any person or his incapacity 
 from personal injury shall be one 
 penny, and no further duty shall be 
 payable upon any policy of insurance 
 chargeable with duty under the 
 Stamp Act, 1870, by reason of the 
 same extending to any payment to 
 be made during sickness or such in- 
 capacity." 
 
Chap, vj POLICIES OF INSUBANOE. 279 
 
 The policy in its usual form is not a contract of indemnity. Accidental 
 It simply provides for the payment of a fixed sum per week in insurance, 
 case of injury, and a certain other fixed sum in case of death. 
 Bodily pain and sufiering do not admit of exact valuation, and, 
 as was stated by Baron Alderson, in an oft-quoted case, a person 
 cannot be indemnified for loss of life (or limb) as he can in the 
 case of a house or shop. 
 
 An interesting case on the subject of accident policies came 
 before the Court in 1889. A policy of insurance against acci- 
 dental death or injury excepted from the risks insured against 
 accidents happening " by exposure of the insured to obvious 
 risk of injury." The insured met his death through attempting 
 in broad daylight to cross the main line of a railway in front of 
 an approaching train, by which he was run over and killed. 
 There was no evidence that he was short-sighted or deaf. At 
 the place where the accident happened there was no station, or 
 proper crossing; and there was no obstruction to prevent a 
 person about to cross from seeing an approaching train. There 
 was no ground for imputing negligence to the servants of the 
 railway company. It was held, that the risk incurred by the 
 insured being one which either was obvious to him or would 
 have been obvious to him, if he had been paying reasonable 
 attention to what he was doing, the case came within the 
 exception in the policy Q"). 
 
 When the person insured is killed by accident, if an action 
 is brought under Lord Campbell's Act (^post, p. 497) the insur- 
 ance money is to be taken into account in calculating the 
 damages. The Eailway Passengers Act, however, expressly 
 provides that no contract of the company, nor any compensation 
 received or recoverable by virtue of any such contract, shall 
 prejudice or affect any right of action, &c., or demand, which 
 any person, or his executors or administrators, may have against 
 any other company, or any person under Lord Campbell's Act, 
 or otherwise, for the injury, whether fatal or otherwise, in 
 respect of which the compensation is received or recoverable. 
 
 (') Cornish v. Accident Insurance surance Co., 6 H, & N. 839 ; L. J. 
 
 Co., Limited, 23 Q. B. D. (C. A.) 453. (Ex.) 317 ; Winspear v. Accidental 
 
 Tbe following cases on the subject Insurance Co., 6 Q. B. D. 42 ; Law- 
 
 of accidental insurance may be use- rence v. Accidental Insurance Co.^ 
 
 fully consulted : Fitton v. Accidental 7 Q. B. D. 216. In this case the 
 
 Death Insurance Co., 17 C. B. (N.S.) Court proceeded on Lord Bacon's 
 
 122 ; 34 L. J. (C. P.) 28 ; Shilling maxim : " It were infinite for the law 
 
 y. Accidental Death Insurance Co., to consider the ca.uses of causes and 
 
 1 F. &F. 116; Theobald v. Railway their impulsions one of another; 
 
 Passengers' Assurance Co., 10 Exch. therefore it contenteth itself with the 
 
 45 ; Trew v. Railway Passengers' As- immediate cause." 
 
280 
 
 PERSONAL PBOPEBTT. 
 
 [Book II. 
 
 Guarantee 
 assurance. 
 
 Construc- 
 tion of 
 policies. 
 
 Another form of insurance policy is that which arises under 
 a guarantee insurance, wherehy companies, for a pecuniary 
 consideration, undertake, usually for a term of one or more 
 years, the risks of suretyship (^). The Statute of Frauds (see 
 post, p. 372) renders it necessary that the policy should be in 
 writing. 
 
 The ordinary rule of insurance law, that all material circum- 
 stances known to the assured must be disclosed, does not apply 
 in the case of guarantie policies {^). The concealment to avoid 
 the contract of guarantee must be fraudulent, for such policies 
 come within the law of suretyship, and not of insurance. 
 
 How are policies of insurance to be construed ? " In the con- 
 struction of policies," said Lord Mansfield, " the strictum jus or 
 a^ex juris is not to be laid hold of; but they are to be construed 
 largely for the benefit of trade and for the insured." 
 
 Policies are therefore to be construed liberally. The law on 
 this subject has been well stated as follows: — "In insuring 
 policies it is always to be borne in mind that the object of 
 insurance is indemnity from the risks attending some commercial 
 adventure or operation which the owner of the subject of 
 insurance is engaged upon. The assured, therefore, is not 
 intended to be bound to make his mode of carrying out the 
 adventure conform to the words of the policy, rigidly construed 
 and confined to what is absolutely necessary ; but the general 
 words of the policy are intended to be construed so as to conform 
 to the usual and ordinary method of pursuing the adventure " {"). 
 
 An important principle must also be borne in mind in constru- 
 ing policies, the greater part of the printed language of them, 
 being invariable and uniform, "has acquired from use and 
 practice a known and definite meaning, and the words super- 
 added in writing (subject, indeed, always to be governed in 
 point of construction by the language and terms with which 
 they are accompanied) are entitled, nevertheless, if there should 
 be any reasonable doubt upon the sense and meaning of the 
 whole, to have a greater effect attributed to them than to the 
 printed words, inasmuch as the written words are the immediate 
 language and terms selected by the parties themselves for the 
 expression of their meaning, and the printed words are a general 
 formula adapted equally to their case and that of all other 
 contracting parties upon similar occasions and subjects " (*). 
 
 (') Porter on Insurance, p. 465, 
 et seq. 
 
 (_') North British Insurance Co. v. 
 Lloyd, 10 Ex. 533; L. J. 24 Ex. 14. 
 
 (') Per Lord Penzance in Pearson 
 
 V. Commercial Union Assurance Co., 
 1 App. Gas. 507. 
 
 C) Robertson v. French, 4 East, 
 130, 135. 
 
Chap. V.] POLICIES OF INSURANCE. 281 
 
 The reader who desires further information on the diflScult 
 subject of insurance is referred to Porter's Laws of Insurance, 
 Fire, Life, Accident, and Guarantee; to Amould's Law of 
 Marine Insurance ; Lowndes' Law of Marine Insurance ; Craw- 
 ley's Law of Life Insurance ; Bunyon's Law of Life Assurance 
 and Law of Fire Assurance ; Brett's Leading Cases in Modern 
 Equity, notes to Leslie v. French, p. 262, et seq. ; and see pp. 264, 
 265, where the question whether an insurance company has the 
 option of paying money into Court in conformity with the pro- 
 visions of the Trustee Belief Act, even though there be no 
 trust, is discussed. See, as to the statistics, &c., of insurance, 
 &c. : Bournie's Insurance Directory. 
 
 The following table of recent cases decided in connection 
 with the law relating to insurance, which could not be appro- 
 priately noticed in the text, may be found convenient. 
 
 Marine Insurance. 
 
 Hamilton v. Thames and Mersey Marine Insurance Co., 12 
 App. Cas. 484 ; Carmicliael v. Liverpool, &c.. Indemnity Associa- 
 tion, 19 Q. B. D. 242 (questions as to damages insured against) ; 
 London Steamship, &c., Co. v. Grampian, &c., Co., 24 Q. B. D. 663 
 (construction of policy money " which insured shall be liable to 
 pay ") ; Pinlc v. Fleming, 25 Q. B. D. 396 (damages — proximate 
 cause of loss) ; Hunter v. Northern Marine Insurance Co., 13 
 App. Cas. 717 ("insurance in port,'' and see Colonial Insurance 
 Company of New Zealand v. Adelaide &c., Co., 12 App. Cas. 128) ; 
 Brooking v. Maudslay, Son, & Field, 38 Ch. D. 636 (question as to 
 cancellation of policy) ; Dufourcet v. Bishop, 18 Q. B. D. 373 
 (subrogation of insurers to rights of assured) ; United Kingdom 
 Mutual Steamship Association v. Nevill, 19 Q. B. D. 110 (question 
 of contribution in mutual association). 
 
 Fire Insurance. 
 
 KirhpatricJc v. South Australian Insurance Co., 11 App. Cas. 177 
 (appropriation of payments). 
 
 Life Insurance. 
 
 Board of Trade v. Block, 13 App. Cas. 570 (no jurisdiction to 
 compel bankrupt to submit to medical examination (see post, 
 p. 945), and see iJe Garneit, 16Q. B. D. 698); Grand Trunk Railway 
 Company of Canada v. Jennings, 13 App. Cas. 800 (question as to 
 
282 PERSONAL PROPERTY. pooK II. 
 
 taking policy into account with regard to damages under Lord 
 Campbell's Act (jpost, p. 497)); Mortgage Insurance Corporation 
 V. Commissioners of Inland Mevenue, 21 Q. B. D. 352 (question as 
 to stamp); Ee Argus Life Insurance Co., 39 Ch. D. 671 (transfer 
 of business) ; Colquhoun v. Heddon, 25 Q. B. D. 129 (income 
 tax payable by American insurance company). 
 
( 283 ) 
 
 CHAPTEE VI. 
 
 Debentures. 
 
 The next subject for our consideration is that of debentures, Definition 
 "a class of securities of a somewhat anomalous description, "^'1''^°'^" 
 
 tures. 
 
 brought chiefly into vogue through the formation of com- 
 panies " (}). 
 
 What is a debenture? This is a question which has occa- 
 sioned no slight trouble to the judges from time to time. 
 
 It was pointed out in a case (^), decided in 1887, that the 
 term " debenture " has never received a precise legal definition, 
 that it was, comparatively speaking, a new term. The term 
 " debenture " itself, the judge went on to say, imports a debt, an 
 acknowledgment of a debt ; and, speaking of the numerous and 
 various forms of instruments which have been called debentures 
 without any one being able to say the term is incorrectly used, 
 said, " I find that generally, if not always, the same instrument 
 imports an obligation or covenant to pay." Thus, a memorandum 
 of agreement between a company and several persons named in 
 the schedule, and called the lenders, in which the company 
 covenanted to pay the sum advanced with interest, and, as 
 security for the payment thereof, charged all its undertaking, 
 property, estate, and effects of every kind, was decided to be a 
 debenture in the ordinary acceptation of the term (^). 
 
 But in another case where the memorandum contained no > 
 acknowledgment of any specific debt, or any covenant to pay, 
 such memorandum was held not to be a debenture (^). A good 
 general definition of a debenture is " an instrument in writing, 
 generally under seal, creating a definite charge on a definite or 
 
 (') Ca/vanagli on Money Securities, And little would be left you, I'm 
 
 2nd ed. p. 358. afraid, 
 
 (^) Edmonds v. Blaina Furnaces If all your debts to Greece and 
 
 Co., 36 Ch. Div. 215. Rome were paid." 
 
 (^) The meaning of the word " de- — Cited in Edmonds v. Blaina Fur- 
 benture " is well illustrated by a naces Co., L. E. 36 Ch. Div. 215, 218. 
 passage from the writings of the cele- (*) Ashbury v. Biche, 7 H. L. 653 ^ 
 brated Dean Swift in speaking of the and see Small v. Smith, 10 App. Cas. 
 Mjiaoknowledged obligations of cer- 119; and. Baroness Wenloch y. River 
 tain writers to their literary pre- Dee Co., 10 App. Oas. 354. Debeu- 
 decessors. tures may be issued at a discount, 
 " Your modern wits should each though shares cannot be : Tie Com- 
 man bring his claim, pagnie Generale de Bellagarde, Camp- 
 Have desperate debentures on your bell's Case, i Ch. D. 470. 
 fame; 
 
284 
 
 FER80NAL PROPERTT. 
 
 [Book II. 
 
 Principal 
 kinds of 
 debentures. 
 
 Form of 
 debenture. 
 
 indefinite fund or subject of property, in favour of a given 
 person or of a given person and his order or bearer, and consti- 
 tuting a member in a series of similar instruments each 
 entitling the original holder thereof to similar rights." 
 
 Debentures made by a corporation must not exceed their 
 borrowing powers. 
 
 The Bills of Sale Act (1878) Amendment Act, 1882 {post, 
 p. 338), provides that nothing therein shall apply to any 
 debentures issued by any mortgage, loan or other incorporated 
 company, and secured upon the capital, stock, or goods, chattels, 
 and effects of such company (i). 
 
 The principal kinds of debentures which are in general use 
 are :• — (1) Debentures to registered holder ; (2) Debentures to 
 bearer ; (3) Debentures to bearer capable of registration ; 
 (4) Debentures to registered holder, but with interest coupons 
 to bearer. 
 
 And each of these kinds may be framed as — 
 
 (a) " Mortgage debentures," i.e., debentures secured by mort- 
 gage or charge contained in the debentures, or in a trust deed, 
 or in both ; 
 
 (6) " Naked debentures," i.e., debentures not secured by any 
 mortgage or charge (^). 
 
 The following form of mortgage debenture is taken from a 
 well-known case on the subject : — 
 
 "The Company, Limited. 
 
 " Mortgage Debenture. 
 " No. 404. £100 
 
 "By virtue of the powers contained in our articles of associa- 
 tion, we, the Company, Limited, in consideration of the 
 
 sum of £100 paid to us by A. B., of &c., are held and firmly 
 bound, and do hereby for ourselves, our successors and assigns, 
 charge the said undertaking, and all sums of money arising 
 therefrom, and all the estate, right, title, and interest of the 
 company therein, with the payment to the said A. B., his execu- 
 tors, administrators, or assigns, of the said sum of £100, together 
 with interest for the same at the rate of £6 per cent, by the 
 
 year, the principal sum to be repaid on the of 
 
 and the interest to be payable in the meantime half-yearly, on 
 
 C) 45 & 46 Vict. 0. 43, sect. 17, 
 Topham v. Greenside Glazed Fire 
 Briok Co., 37 Ch. Div. 281 ; see also 
 Levy V. Aheraorriss Slate and Slab 
 Co., .^7 Ch. D. 260; Boss v. Army 
 and Navy Hotel Co., 31 Ch. D. 432 ; 
 
 Bead v. Joannon, 25 Q. B. D. 300 ; 
 
 In re Standard Manufaoiuring Co., 
 W. N. (1891) 22. 
 
 C) Palmer's Company Precedent, 
 p. 465, 5th ed. 
 
Chap. VI.] 
 
 DEBENTURES. 
 
 285 
 
 the 
 
 and 
 
 in each year, until the repayment 
 
 thereof. 
 
 " Given under our common seal," &o. (i). 
 
 Debentures charged on a company's " undertaking " or 
 " estate and effects " constitute a floating charge only on the 
 assets for the time being, leaving the company free to deal with 
 the property in the ordinary course of business, as long as it 
 remains a going concern, but attaching in preference to its 
 general liabilities, so soon as the company is put an end to 
 either by the appointment of a receiver in a debenture-holder's 
 action, or by a winding-up order (2). 
 
 The important questions whether debentures payable to 
 bearer are negotiable instruments may here be briefly noticed. 
 In the mercantile world, says Mr. Chadwyck Healy, it is the 
 general practice to pass these instruments from hand to hand, 
 and to accept the holder for the time being as entitled to 
 receive payment of the debt, irrespective of any equities which 
 may be subsisting between the company and any prior holder. 
 " As to debentures executed since the Bills of Exchange Act, 
 1882," the same author goes on to say, " the doubt whether a 
 
 (') In re Panama, New Zealand, 
 and Australian Boyal Mail Packet 
 Co., L. R. 5 Oh. 318. 
 
 Debentures issued under the bor- 
 rowing powers of companies may be 
 divided into — 
 
 1. Tlrose issued by joint stock 
 companies, registered under tlie Com- 
 panies Acts, 1862 to 1886. 
 
 2. Those issued under tlie Mort- 
 gage Debentures Acts, 1865, 1870. 
 
 3. Those issued in pursuance of 
 the Companies Clauses Acts, 1845 
 and 1863. 
 
 4. Those issued in pursuance of 
 the Commissioners Clauses Act, 1847. 
 
 The following memorandum is 
 sometimes placed on a debenture : — 
 
 " This debenture is to be treated 
 as negotiable, and ail persons are 
 invited, as well by the company as 
 by the owner thereof, to act accord- 
 ingly, but the bearer may at any 
 time write his name and address 
 across the face of this debenture, and 
 thereupon it shall cease to be nego- 
 tiable, and shall be payable to the 
 person whose name is so inscribed." 
 — Palmer's Company Precedents, 5th 
 ed. p. 471. 
 
 C) Be Panama Mail Co., 5 Ch. 
 App. 318; Florence Land Co., 10 
 
 Ch. D. 530 ; WJwalley Sillcstone Coal 
 Co., 29 Ch. D. 715. A mortgagee of a 
 trading company is entitled to have 
 leave to continue an action to realise 
 his security, notwithstanding that 
 the company has been ordered to 
 be wound up either compulsorily or 
 under a supervision order, unless 
 there be special circumstances, or 
 unless the company can offer the 
 mortgagee all that he is entitled to, 
 by foreclosure or sale : Be David 
 Lloyd & Co., 6 Ch. D. 339. Under 
 the Eailway Companies Act, 1867 
 (30 & 31 Vict. c. 127), s. 4, a creditor, 
 after obtaining judgment, may obtain 
 the appointment of a receiver, and, if 
 necessary, a manager of the under- 
 taking. Be Manchester & Milford 
 Bailway Co., 14 Ch. D. 645; Be 
 Mersey Bailway Co., 37 Ch. D. 610; 
 and see Gardner v. London, Chatham, 
 and Dover Bailway Co., L. E. 2 Ch. 
 201 ; Attree v. Hawe, 9 Ch. D. 337. 
 See also, as to railway debentures : 
 Be Hull and Barnsley Bailway and 
 Dock Co., 40 Ch. D. 119 ; and as to 
 debentures generally : Thorn v. City 
 Bice Mills Co., 40 Ch. D. 359 ; Blake 
 y. Herts and Essex Waterworks Co., 
 41 Ch. D. 399. 
 
286 PEB80NAL PROPERTY. [Book II. 
 
 writing under seal can constitute a promissory note has been 
 removed, and if and so far as any given debenture could be 
 beld to be simply a promissory note, the incidents of negotiability 
 would of course attach to it. With regard, however, to deben- 
 tures not capable of being classed under the category of promis- 
 sory notes — and it is believed they are very numerous — it may 
 be doubted how far the practice to treat them as negotiable would 
 be recognised in a Court of justice as an addition to the law 
 merchant, and binding on all persons and for all purposes. . . . 
 Whether or not it be ultimatelj' decided that debentures 
 payable to bearer, not being promissory notes, have become 
 negotiable instruments by the custom of merchants, it is, at 
 all events, possible to frame such debentures in terms whereby 
 many of the incidents of negotiability will be secured to them. 
 Thus, there is no doubt that a company may so contract with 
 its debenture-holders as to render itself unable to enforce 
 equities subsisting between itself and any previous holder, and 
 may also give a holder a right to recover in his own name " (^). 
 
 (') Chadwyck Healy's Law and of dissentient debentures with regard 
 
 Practice of Joint Stock Companies, to the reconstruction of a company : 
 
 p. 151, et seq., where the authorities In re Empire Mining Co., 44 Oh. D. 
 
 are collected. See as to the position 402. 
 
( 287 ) 
 
 CHAPTER VIT. 
 
 Patents Q). 
 
 A patent for an invention is a grant from the Crown to the Definition, 
 author of a new and useful invention of the exclusive privilege 
 of making, using, and selling that invention for a limited 
 period. 
 
 Such grants are made by literse patentes, i.e., letters-patent, 
 from which the term patent is derived ; so-called, according to 
 Blackstone, because "they are not sealed up, but exposed to 
 open view, with the great seal pendent at the bottom, and are 
 usually directed and addressed by the King to all his subjects 
 at large." 
 
 A patent is, however, now sealed with the seal of the Patent 
 Office, instead of with the Grreat Seal as formerly, and the Act 
 of 1883 provides that a patent so sealed shall have the same 
 effect as if it were sealed with the Great Seal of the United 
 Kingdom, i.e., " the patent proves itself, and cannot be 
 denied " (2). 
 
 The right to grant such monopolies is an ancient prerogative Statute of 
 of the Crown, saved by a proviso in the Statute of Monopolies. Monopolies. 
 This statute, passed in the twenty-first year of the reign of 
 James I., declared that, subject to the all-important saving 
 clause which shall next be noticed, aU monopolies, grants, and 
 letters-patent for the sole buying, selling, making, working, or 
 using of anything whatsoever within the realm, were contrary 
 to the law and void (^). 
 
 (') For a full account of the law had, in addition to his undoubted 
 
 and practice and history of letters- right to grant special commercial 
 
 patent for invention : see Edmunds privileges to particular places, long 
 
 on Patents for Inventions. claimed a right to grant special com- 
 
 C) Patents, Designs,' and Trade mercial privileges to particular sooie- 
 
 Marks Act, 1883, s. 12. The present ties, and to particular individuals ; 
 
 form which is sealed with the seal of how our ancestors, as usual, did not 
 
 the Patent OflEice is given, Sched. I. think it worth their while to dispute 
 
 to the Patents, Designs and Trade this claim till it produced serious 
 
 Marks Act (46 & 47 "Vict. o. 57). inconvenience ; how at length, in the 
 
 Hindmarch on Patents, p. 37. reign of Queen Elizabeth, the power 
 
 C) See Macaulay's 'History of of creating monopolies began to be 
 
 England,' vol. ii. p. 346, who tells grossly abused, and as soon as it 
 
 us how the Sovereign of England began to be grossly abused, began 
 
288 PERSONAL PROPERTY. [Book H. 
 
 Statute of The saving clause in the Statute of Monopolies, on which the 
 Monopolies. ^^^^ ^^^ important superstructure of the modem law of patents 
 has been built up, partly by subsequent enactment, but chiefly 
 by judicial decision, provides that the declaration before men- 
 tioned shall not extend to any letters-patent and grants of 
 privilege, for the term of fourteen years or under, thereafter to be 
 made, of the sole worhing or making of any manner of new 
 manufactures within this realm to the true and first inventor and 
 inventors of such manufactures, which others, at the time of maldng 
 such letters-patent and grants, shall not use, so that they be not 
 contrary to the law or mischievous to the state, by raising 
 prices of commodities at home, or hurt of trade, or generally 
 inconvenient. " It is from the ancient power and prerogative 
 of the Crown so saved and preserved that every patentee 
 derives his monopoly " (}). 
 
 The present Act (sect. 17) also provides that the term limited 
 in every patent for the duration thereof shall be fourteen years. 
 
 But if the patentee fails to make the prescribed payments 
 within the prescribed time the patent ceases to exist. The day 
 of the date is reckoned inclusively, so that the patent expires at 
 midnight of the day before its fourteenth birthday (^). 
 
 The law on the subject of Patents : their grant and protec- 
 tion, and all other matters, is now regulated by the unrepealed 
 sections of the Statute of Monopolies, and by the Patents, 
 Designs, and Trade Marks Act, 1883 (which is mainly a consoli- 
 dating Act (^), and repeals all the statutes enumerated in its 
 3rd Schedule), by the general rules of the Board of Trade there- 
 under, and by the Amending Acts of 1885, 1886, and 1888 {^). 
 
 The Patent Office is now under the immediate control of an 
 ofiicer called the Comptroller-General of patents, designs, and 
 
 to be queetioned ; how the Queen are valid at common law : Coke, 3 
 
 wisely declined the conflict, and the Inst. e. 85, pp. 181 and 184, but see 
 
 jieople consequently did not require Webster P. 0. 
 
 from her any express renunciation of (2) Patents, Designs, and Trade 
 the disputed prerogative; how her Marks Act, 1883, s. 17. Russell v. 
 successor readily granted oppressive Ledsam, l4 M. & W. 574. The 
 patents of monopoly, and was at Comptroller has, however, a power 
 length, in 1624, forced by the House when he is satisfied that the non- 
 of Commons to give his assent to a payment was due to accident, mis- 
 law which declared monopolies estab- take, or inadvertence, to enlarge the 
 lished by royal authority to be null time. 
 
 and void. Q) 48 & 49 Vict. c. 63 ; 49 & 50 
 
 (1) Sect. 6, 21 Jac. 1, o. 8. Per Vict. c. 37 ; 51 & 52 Vict. c. 50. 
 
 James, L.J., Vm Eeyden \. Neusiadt, Sects. 10, 11 and 12 of the Statute 
 
 15 Oh. D. 230, 232. It is said that of Monopolies are repealed by the 
 
 this statute is simply declaratory of Patents, &c., Act, 1883 (46 &47 Vict, 
 
 the common law, and merely excepts c. 57). 
 from its prohibitions such patents as 
 
Chap. VII.] PATENTS. 289 
 
 trade-marks, w'lio acts under the superintendence and direction 
 of the Board of Trade Q). 
 
 The first question to be considered in connection with the What in- 
 subject of patents is, what inventions are patentable ? ^^ patent- 
 
 " The inventions for which valid patents have been granted," able ? 
 says Mr. Johnson (2), " may be roughly divided into the follow- 
 ing classes: — 
 
 " New contrivances applied to new objects or purposes (^) ; 
 new contrivances applied to old objects or purposes (f) ; new 
 combinations of old parts, the subject-matter consisting either 
 of material objects or mechanical processes (^) ; new methods 
 of applying an old thing (*) ; chemical processes usually but not 
 always in combination with mechanical contrivances " ('). 
 
 In point of law, as was said in Crane v. Price ('), the labour 
 
 of thought, or experiments, and the expenditure of money, are 
 
 not the essential grounds of consideration on which the question, 
 
 whether the invention is or is not the subject-matter of a 
 
 patent, ought to depend. For if the invention be new and 
 
 useful to the public, it is not material whether it be the result 
 
 of long experiments and profound research, or whether by some 
 
 sudden and lucky thought, or mere accidental discovery. 
 
 What is utility ? It is not mere commercial utility. " There What is 
 utility ? 
 
 (') Patents, Designs, and Trade regard to the payment of fees. The 
 
 Marks Act, 1883, o. 82, suh-s. 3. A following are some of the principal 
 
 very great change was introduced by fees now payable on and in connection 
 
 the rules imder the Patents, Designs with letters patent : — 
 and Trade Marks Act, 1883, with 
 
 Up to Sealing. 
 
 £ s. d, £ s. d. 
 On application for provisional protection . . .10 
 On filing complete specification . . . .300 
 
 4 
 
 or 
 On filing complete specification with first application . . 4 
 On appeal from Comptroller to law ofBcer. By appellant . . 3 
 On notice of opposition to grant of patent. By opponent . . 10 
 On hearing by Comptroller. By applicant and by opponent 
 respectively 100 
 
 Before the expiration of the fourth, fifth, sixth, and seventh years from the 
 date of the patent, £10 for each year. 
 
 Before the expiration of the eighth and ninth years, £15 for each year. 
 
 Before the expiration of the tenth, eleventh, twelfth, and thirteenth years, 
 £20 for each year. 
 
 C) Johnson's Patentee's Manual, 346; Crane v. Price, 1 W. P. 0. 
 5th ed. p. 18. 377. 
 
 C) Sail V. Jarvis, 1 W. P. C. («) Boulton v. BuU, 1 Carp. 149 ; 
 
 100. Bussell V. Cowley, 1 W. P. C. 459. 
 
 (<) Hill V. Thompson, 1 W. P. C. (') Muntz v. Forster, 2 W. P. C. 
 
 235. 103. 
 
 (0 Spencer v. Jack, 3 De G. J. & S. («) 1 Web. P. C. 393. 
 
 VOL. I. U 
 
290 PERSONAL PROPERTY. [Book II. 
 
 What is is," said the Lord Chancellor, in a case decided by the House of 
 utility? Lords in 1881, " certainly authority for saying that an invention 
 must be useful, although that word is not found in the statute. 
 Baron Alderson once said if it was any use to the public, a new 
 invention could not be said to be void for want of utility, and 
 an admitted contribution to the useful arts of a new product 
 can hardly be said to be of no use. I think what is so often 
 referred to in patent cases as a ' laboratory experiment,' and 
 as not admitting of the quality of utility, is intended to be 
 applied to cases where really there is no product at all. Such an 
 experiment proves the possibility of a product, but does not 
 really practically produce one in such quantities and under 
 such circumstances as reaUy to make it a product at all. The 
 element of commercial pecuniary success has, as it appears to 
 me, no relation to the question of utility in patent law gene- 
 rally, though of course where the question is of improvement 
 by reason of cheaper production, such a consideration is of tho 
 very essence of the patent itself, and the thing claimed has not 
 really been invented unless that condition is fulfilled " Q). 
 
 " There cannot," as was said in a well-known case by Lord 
 Abinger, " be a patent for applying a well-known thing which 
 might be applied to 50,000 difierent purposes, for applying it to 
 an operation which is exactly analogous to what was done 
 before. It would be a very extraordinary thing to say, that 
 because all mankind have been accustomed to eat soup with a 
 spoon, that a man could take out a patent because he saj's you 
 might eat peas with a spoon. Suppose a man invents a pair of 
 scissors to cut cloth with, if the scissors were never invented 
 before, he could take out a patent for it. If another man found 
 he could cut silk with them, why should he take out a patent 
 for that " ? (2) 
 
 O Badische Anilin und Soda " Eoughening," said Lord Justice 
 
 Fdbrik v. Levinstein, 12 App. Cas. Cotton, " is very old, and the rough- 
 
 710. ening of the stock of a gun is very 
 
 (^) Be Losh's Patent. Losh v. old, and the twine on the handle of 
 
 Hague, 1 W. P. C. 208. An interest- a cricket bat is of the same character, 
 
 ing case with regard to what is fit The knob at the end is very old, and 
 
 subject-matter for a patent was de- it is only putting on to the lawn- 
 
 cided by the Court of Appeal in May, tennis bat that which is frequently 
 
 1889— Slazenfier v. Feltham, Cutler's on other handles somethiog like a 
 
 Keporta of Patent Cases, vol. vi., walking-stick handle." " One's in- 
 
 No. 17, p. 232— where the question stinct," added another of the judges, 
 
 arose whether making grooves upon " rebels against the idea of extending 
 
 the handle of a lawn tennis bat and the patent law to such things as this, 
 
 the knob at the end to prevent the bearing in mind that the extension of 
 
 slipping of the hand could be made the patent law to such a thing as 
 
 the subject of a patent. The Court this, means that nobody can use such 
 
 of Appeal decided, reversing the de- a thing as this unless he buys it of 
 
 cision of North, J., that it could not. the patentee. There is a sort of 
 
Chap. VII.] PATENTS. 291 
 
 With regard to the question of what may be the subject of a What is 
 patent, it must be borne in mind that there cannot be a patent P^t«itable? 
 for a mere, or, as Lord Abinger expressed it, a " barren " 
 principle. It must be clothed with a form and have given it 
 body and substance in which the principle may live and produce 
 the benefit which -you claim to result from it (i). 
 
 The law with regard to " combinations " was very carefully Combina- 
 reviewed by the Court of Appeal in a case decided in 1887, *'°°^- 
 where it was pointed out that not only decided cases, but the 
 reason of the case draw a broad distinction between combina- 
 tions which are old as regards their elements, and old as regards 
 the object to be attained, and combinations, which though old as 
 regards the elements, are new as regards the mode of putting 
 them together and new as regards the object to be attained (^). 
 
 In this case it was pointed out that the object of the patent 
 was not " putting fuel upon a fire, an act as old as it could be ; 
 if not as old as Adam, as old as the time when Tubal Cain 
 wrought in metal, or when Prometheus introduced fire to man- 
 kind, but the automatic placing of coal on a fire by a peculiar 
 process, and that that object was new." 
 
 " With regard to combination, the question to be considered 
 is, has the combination in substance been taken? Has the 
 defendant, though not exactly taking the whole combination 
 which has been patented, taken, by slight variations or by 
 mechanical equivalents, the substance of it, so as to produce 
 the same result by practically the same means ? " 
 
 The rule of the Court on this subject, may be stated as 
 follows : — 
 
 " When the thing is wholly novel and one which has never 
 been achieved before, the Court looks very narrowly and 
 jealously on any other machine for effecting the same objects 
 to see whether they are not colourable contrivances for evading 
 that which has been done before. When the object itself is one 
 which is not new, but the means only are new, the Court looks 
 jealously at the claims of the inventor of the particular means 
 seeking to limit the rights of the public at large for effecting that 
 which has been commonly known to all the world long before " (f). 
 
 rebellious feeling which is aroused intend to do it." 
 
 by such a proposition. It is difiBcult (') Jupe v. Fratt, 1 W. P. 0. 145. 
 
 to put it in language, because it is a Q) Proctor \. Bennis, 36 Ch. D. 
 
 question of degree. It is an absurdity 740. Thomson y. Moore, 6 R. P.O. 
 
 to ti-y and make out that that is a 426. 
 
 thing which comes within the patent (^) Curtis v. Piatt, 3 Oh. D. 135, n. ; 
 
 law. My view is very strong upon Clarice v. Adie, 2 App. Gas. 315 ; 
 
 it although I feel a diflSculty in and see Lawson's Patent Act, 2nd ed. 
 
 drawing the line ; and I do not p. 172. 
 
 V 2 
 
292 
 
 PERSONAL PROPERTY. 
 
 [Book II. 
 
 Publica- 
 tion. 
 
 Prior pub- 
 lication. 
 
 It is not competent to a man to take a well-known existing 
 machine, and having made some small improvement to place 
 that before the public, and say, " I have made a better machine." 
 You must state clearly and distinctly what it is in which you 
 say you have made an improvement (^). 
 
 In a case decided in 1 889, in respect to a patent for improve- 
 ments in weighing-machines, the law was summed up as 
 follows by the Court of Appeal : — " A patentee is entitled to 
 say, ' You must not take my exact combination.' He is entitled 
 to say, ' You must not take a colourable imitation of my inven- 
 tion.' He is entitled to say, 'You must not effect the same 
 result by mechanical equivalents,' but he is not entitled to say, 
 ' You must not attain the same result by mechanism which is 
 practically different ' " (^). 
 
 The consideration, said Lord Blackburn, for a patent is the 
 communication to the public of a process that is new. If the 
 public once becomes possessed of an invention by any means 
 whatever, no subsequent patent for it can be granted, either to 
 the true or first inventor himself, or any other person ; for the 
 piiblic cannot be deprived of the right to use the invention, and 
 a patentee of the invention could not give any consideration to 
 the public for the grant, the public already possessing every- 
 thing that he could give (^). 
 
 The principle of the Court was well expressed by Grove, J., 
 as follows :— 
 
 " If the invention was in public use before, even by one 
 person, the patent is bad. Mere private use in the closet, 
 mere experimental working in a laboratory without publish- 
 ing the invention, but keeping it a secret with a view possibly 
 of a patent being taken out, would not invalidate it. But if 
 it is once publicly used or sold in a shop, or publicly used in 
 a carriage, or on the person, or in any such way, then the 
 public have a right to it and the patent is bad " (*). 
 
 The question of " prior publication " was very carefully con- 
 sidered in the case of Harris v. Moihwell (^), which came before 
 the Court of Appeal in 1887, and in which the prior authorities 
 on the subject are reviewed. The facts of that case were as 
 follows : " In December, 1878, and February, 1880, the speci- 
 
 (') Per Lord Hatherley, in Harri- 
 son V. Anderston Foundry Co., X 
 App. Caa. 583. 
 
 (^) Automatic Weighing Machine 
 Co. V. Knight, 6 R. P. 0. 297, 309. 
 
 (') Patterson v. Gas Light and 
 
 Colce Co., 8 App. Cas. 239, 244, 
 citing witii approval, Hindmaroh on 
 Patents, p. 33. 
 
 C) Young v. Rosenthal. 1 B. P. C. 
 29 32. 
 
 (») 35 Oh. Div. 416. 
 
Chap. VII.] PATENTS. 293 
 
 fications, in the Gorman language, with drawings, of two Publica- 
 patents taken out in Germany, were deposited and open for *''™" 
 public inspection at the library of the Patent Office in London, 
 and the journal published periodically by the Patent Commis- 
 sioners, amongst the list of patents granted in Germany, contained 
 entries of the particular patents, with a note in each case that 
 the specifications as well as the list of applications might be 
 consulted in the free public library of the office. The informa- 
 tion supplied by the two German specifications was sufficient to 
 enable a competent workman to put into practice the invention 
 therein described Q). 
 
 Under these circumstances the Court of Appeal in deciding 
 that the patent was void, summed up the law on the subject to 
 the following effect : — • 
 
 Prima facie a patentee is not the first inventor, if before the 
 date of his patent an intelligible description of his invention, 
 either in English or in any other language commonly known in 
 this country, was. known to exist in this country, either in the 
 Patent Office or in any other public library to which persons in 
 gearch of information on the subject would naturally go for 
 information. But if it be proved that the foreign publication, 
 although in a public library, was not in fact known to be there, 
 the existence of the publication in this country is not fatal to 
 the patent. 
 
 Persons who may apply for a Patent. 
 
 Any person, whether a British subject or not, may make Applica- 
 application for a patent ; and if two or more persons make a ° "'■' 
 joint application for a patent, a patent may be granted tathem 
 jointly (^). A married woman, an infant, or a foreigner, may 
 apply for and obtain the grant of a patent. The application 
 must contain " a declaration to the effect that the applicant is 
 in possession of an invention whereof he, or, in the case of a 
 joint application, one or more fif the applicants claims or claim, 
 to be the true and first inventor or inventors (^) ; and for which 
 he or they desires or desire to obtain a patent, and must be 
 accompanied by either a provisional or complete specification. 
 
 The Comptroller is to refer every application to an examiner, 
 who is to ascertain and report to him whether the nature of 
 the application has been fairly described, and whether the 
 
 (') Plimpton V. Malcolmson, 3 Trade Marks Act, 1883. 
 
 Oil D. 531 ; Otto v. Steel, 31 Ch. D. (') Sect. 5. Patents, Designs, and 
 
 241. Trade Marks Act, 1883. 
 
 (^) Sect. 4. Patents, Designs, and 
 
294 PERSONAL PBOPEBTT. [Book II. 
 
 application, specification, and drawings, are lodged in con- 
 formity with the Patent Acts and rules. The Comptroller has 
 power according to the report to refuse the application or 
 require amendment. An appeal lies from the decision of the 
 Comptroller to the Law Officer, i.e., the Attorney or Solicitor- 
 General for the time heing (i). 
 Who is a To determine who is, in any case, the " true and first 
 
 "true and inyentor," we must have recourse to the judicial decisions 
 ventor"? upon the meaning of these words in the proviso in favour of 
 patents for inventions in sect. 6 of the Statute of Monopolies. 
 These decisions were reviewed by the late Sir George Jessel, 
 in a celebrated judgment, in the course of which he said : (^) 
 " Shortly after the passing of the Statute of Monopolies, the 
 question arose whether a man could be called a first and 
 true inventor who, in the popular sense, had never invented 
 anything, but who having learned abroad (that is out of the 
 realm, in a foreign country, because it has been decided Scotland 
 is within the realm for this purpose) that somebody else had 
 invented something, quietly copied the invention and brought 
 it over to this country, and then took out a patent. In the 
 popular sense he had invented nothing. But it was decided, 
 and now therefore is the legal sense and meaning of the statute, 
 that he was a ' first and true inventor ' within the statute if 
 the invention, being in other respects novel and useful, was 
 not previously known in this country. ' Known ' being used 
 in that particular sense as being part of what had been called 
 the common or public knowledge of the country. That was 
 the first thing. Then there was a second thing. Suppose there 
 were two people, actual inventors, in this country who invented 
 the same thing simultaneously, could either be said to be the 
 true and first inventor ? It was decided that the man who first 
 took out the patent was the first and true inventor. Then 
 there was another point. If the man who took out the patent 
 was not, in popular language, the first and true inventor, 
 because somebody had invented it before but had not taken 
 out a patent for it, would he still in law be the true and first 
 inventor ? It was decided he would, provided the invention of 
 the first inventor had been kept secret, or without being actually 
 kept secret, had not been made known in such a way as to become 
 
 (') Patents, Designs, and Trade accounted for to his satisfaction, to 
 
 Marks Act, 1883, s. 7, sub-ss. 1, 2. cause a dnpUcate of it to be sealed. 
 
 Sect. 37. The comptroller has power Q) Plimpton v. Malcolmson, 3 Ch. 
 
 at any time, if a patent is lost or D. 531, 555. 
 destroyed, or its non-production is 
 
Chap. VIL] PATENTS. 295 
 
 a part of the common knowledge or of the public stock of infor- 
 mation. Therefore, in that case also, there was a person who 
 was legally the first and true inventor, although, in common 
 language, he was not, because one or more people had invented 
 it before him but had not sufficiently disclosed it." 
 
 Hence it appears that a " true and first inventor " within the 
 meaning of the statute 2 James, c. 3, is : — 
 
 (1) The actual inventor ; 
 
 (2) The importer from abroad of a new manufacture ; 
 
 Further a man may be a " true and first inventor," notwith- 
 standing that he is assisted by workmen or others in 
 his service in carrying his original conception into 
 effect. 
 
 Since the passing of the Patents, Designs, and Trade Marks Deceased 
 Act of 1883, the legal representative of a person possessed of an inventors, 
 invention who dies without making application for a patent, 
 may, if application be made in the prescribed manner, within 
 six months of the inventor's death, obtain a patent for his 
 invention (^). 
 
 The Specification. 
 
 Every application for a patent must be accompanied by either Provisional 
 a provisional or complete specification. specifica- 
 
 The office of the provisional specification is to describe gene- 
 rally and fairly the nature of the invention without entering 
 into minute details as to the manner in which the invention is 
 to be carried out. It must be accompanied by drawings if 
 required (^). When accepted it gives provisional protection to 
 an inventor, and enables him to improve or perfect by experi- 
 ments his invention with a view to the filing of his complete 
 specification so that he may be able to describe in the latter 
 instrument the best mode known to him of practising his 
 invention. A provisional specification, said Sir George Jessel, 
 " was not intended to contain a complete description of the 
 thing so as to enable any workman of ordinary skill to make 
 it, but only to disclose the invention, fairly no doubt, but in its 
 rough state, until the inventor could perfect its details" (f). 
 
 (') The legal representative must 1890, makes the use of the form of 
 
 declare in his application that he specification given in the 2nd Sche- 
 
 believes the person whom he repre- dule to the rules compulsory, 
 
 sents " to he the true and first in- Q) Perm v. Bibby, L. B. 2 Oh. 132 ; 
 
 veutor of the invention." Bloxam v. Stonor v. Todd, 4 Oh. D. 58 ; In re 
 
 EUee, 1 Web. P. 0. 132 ; Murter v. Newal and Elliot, i 0. B. (N. S.) 
 
 Wells, 1 Web. P. C. 127. 293, cited in Siddell v. Vickers, 5 
 
 (2) Rule 6 of tlie Patent Rules, P. R. C. at p. 99. 
 
296 PERSONAL PBOPSnTY. [Book II. 
 
 A complete specification must particularly describe and 
 
 ascertain the nature of the invention, and in what manner it 
 
 is to be performed, and must be accompanied by drawings 
 
 if required. The Act also declares that a specification, whether 
 
 provisional or complete, must commence with the title and 
 
 end with a distinct statement of the invention claimed (i). 
 
 Complete j£ ^.j^g applicant does not leave a complete specification with 
 
 specitica- *-^ . . , 
 
 tion. his application, he may leave it at any subsequent time within 
 
 nine months from the date of application, but unless a complete 
 specification is left within that time the application is to be 
 deemed to be abandoned. The time for hearing the complete 
 specification may be extended for one month by the Comp- 
 troller (2). 
 
 The law with regard to discrepancies between the provi- 
 sional and completed specification, has been well summed up as 
 follows : — 
 
 " If the complete specification sets out and claims an in- 
 vention independent of that which is in the provisional 
 specification, besides also describing that invention which is 
 in the provisional specification, then the complete specification 
 is bad. It would be equally bad if the invention described 
 in the complete specification were a wholly difierent inven- 
 tion from that described in the provisional specification, because, 
 as has been said, the patent is not given them for the inven- 
 tion which is described in the provisional specification. There- 
 fore (I must try and say it again) if there were only one 
 invention described in the provisional application, and only 
 one in the complete specification, but those two inventions 
 w^ere wholly and substantially diiferent, the patent would be 
 bad. So if an invention is described in the provisional speci- 
 fication, which invention is also desciibed in the complete 
 specification, but in the complete specification another and 
 distinct invention is described and claimed, then it is bad, 
 because with regard to the second invention so described and 
 claimed in the complete specification, there would be no pro- 
 visional specification to cover it " (^). 
 
 It was, however, decided in 1887 by the Court of Appeal (*) 
 
 (') Patents, Designs, and Trade could make his invention intelligible 
 
 Marks Act, 1883, s. 5, sub-ss. 4 and without them : Penn v. Bibby, L. K. 
 
 5. See form C. in the 2nd Schedule 2 Ch. 132. 
 
 of Patent Rules, 1890, for the form C) Patents Act, 1885, b. 3. 
 
 of complete specification to be em- (') Watling v. Stevens. K. Pat. 
 
 ployed. Before the passing of Cases, vol. iii. p. 151. 
 
 Patents, &e., Act, 1883, a patentee (*) Siddell v. Vickers, 39 Ch. D. 
 
 was not compelled to illustrate his 92. 
 Bpecification with drawings, if he 
 
Chap. VII.] PATEN18. 297 
 
 that the enactment that a complete specification must end with Complete 
 a distinct statement of the invention claimed, is " directory ^p^^^''^" 
 only, and that if letters patent have been granted, they will not 
 be invalid because it has not been complied with." It was held 
 also in the same case that the patent is not rendered invalid by 
 the fact that the complete specification describes something 
 different from anything specifically referred to in the pro- 
 visional specification, provided that what is so described comes 
 within the nature of the invention described in general terms 
 in the provisional specification. 
 
 " If," said Cotton, L. J., " both the modes described are really 
 within the same invention, described though not minutely but 
 in general terms in the provisional specification, then the 
 patent will not be bad, simply because a different mode of 
 carrying the same invention into operation is described in the 
 complete specification, and even although that may be an 
 improvement on what is described in his provisional specifica- 
 tion ; because a patentee putting in a provisional speoificati6n 
 shewing the nature of his invention is not bound to describe 
 the way in which that can be carried into effect and operation, 
 but if he does describe a way of doing it, and before he files 
 his complete specification, he either finds out improvements in 
 that way or a different way of carrying into effect that which 
 is deticribed as his invention in the provisional specification, he 
 is bound to give the public the benefit of what he has dis- 
 covered as regards the mode of carrying the invention, the 
 nature of which must be described in the provisional specifica- 
 tion, into effect, even although there may be improvement and 
 even invention which was not known to him at the time." 
 
 Very great care is required in the preparation of a complete 
 specification (^). The vagueness or generality of the provisional 
 specification affords no ground for avoiding the patent, but the 
 patent will be void unless the complete specification complies 
 with the following conditions : — 
 
 (a.) It must not only precisely describe and ascertain the 
 nature of the invention, but it must also describe the 
 mode in which the invention is to be practised (^) ; 
 (&.) The mode in which the invention is to be performed 
 must be so disclosed that a workman of ordinary 
 intelligence, possessed of knowledge in the particular 
 industry may, without invention, experiment, or addi- 
 
 (') See Edmunds on Patents, pp. 1055 ; Rex v Whseler, 2 Bar. & Aid. 
 83, et seq. 354. 
 
 C) Bailey v. Robertson, 3 App. Cas. 
 
298 
 
 PERSONAL PBOFEBTT. 
 
 [Book II. 
 
 Construc- 
 tion of 
 specifica- 
 tion. 
 
 " Benevo- 
 lent in- 
 terpreta- 
 tion." 
 
 tion, construct the machine or produce the manufacture 
 described in the specification Q) ; 
 (c.) The invention, and the mode of carrying it out, must be 
 so disclosed as to give the public the benefit of all the 
 information acquired by the patentee in connection 
 with his invention at the date of his complete 
 specification (2) ; 
 (d.") It must be free from ambiguity and equivocation, and 
 
 must not mislead the public (8) ; 
 (e.) It should distinguish what is new from what is old, and 
 
 claim only what is new (*) ; 
 (/.) The specification must end with a distinct statement of 
 the invention claimed (^). This is usually carried out 
 by short paragraphs called " claims " ; 
 (g.^ The claim must not cover more than, or something 
 different from, what is described in the specification, 
 or something that is not workable (^) ; 
 The construction of a specification is the province of the 
 Court, but evidence will be heard in explanation of technical 
 terms used in the arts, or phrases used in particular trades. 
 The rules of construction applicable to specifiations a;re those 
 applied to the interpretation of written instruments. The 
 Court will, however, lean towards supporting a really new and 
 useful invention ('). 
 
 In a well-known case, the late Sir George Jessel laid down the 
 principle on which the highest tribunals have repeatedly acted, 
 in applying what was called a benevolent interpretation to 
 specifications in certain cases : — 
 
 " When the judges are convinced that there is a genuine, 
 great, and important invention which, as in some cases, one 
 might almost say produces a revolution in a given art or manu- 
 facture, the judges are not to be astute to find defects in the 
 specification ; but on the contrary, if it is possible, consistently 
 with the ordinary rules of construction, to put such a construc- 
 tion on the patent as will support it. They are to prefer that 
 
 (') Neihon v. Harford, 8 M. & W. 
 806 ; Hex v. Wheeler, vbi supra ; 
 Badische Anilin v. Levinstein, 12 
 App. Gas. 710. 
 
 O Meg. V. Arlewriglit,! Web. P. C. 
 66 ; Lewis v. Marling, 10 B. & 0. 26. 
 
 C) Crompton v. Ibhotson, 1 Web. 
 P. 0. 83 ; Neihon v. Harford, ubi 
 supra. 
 
 (') Carpenter v. Smith, 1 Web. 
 P. C. 532 ; Foxwell v. Bostock, i Be 
 
 G. J. & S. 298; Clarh v. Adie, 
 2 App. Gas. 315. 
 
 C) Patents Act, 1883, sect. 5, sub- 
 sect. 5. 
 
 C) Jordan v. Moore, L. E. 
 624 ; Mushton v. Crawley, 
 10 Eq. 517 ; Bloxam v. Elsee, 6 
 169. 
 
 (') Harrison v. Anderson 
 Co., 1 App. Gas. 581. 
 
 IC. P. 
 L. K. 
 B.&O. 
 
Chap. VII.] PATENTS: 299 
 
 construction to another which might possibly commend itself to 
 their minds if the patent was of little worth and of very little 
 importance. There is, if I may say so, and I think there ought 
 to be, a bias, as between two different constructions in favour 
 of the real improvement and genuine invention to adopt that 
 construction which supports an invention. Beyond that the 
 rule ought not to go " (}). It must, however, be borne in mind 
 that the great governing principle on which the Court proceeds 
 IS simply to interpret the specification fairly. As was said by 
 Lord Blackburn : " Whether it is for the interest of one side or 
 the other, I apprehend the duty of the Court is fairly and 
 truly to construe the specification, neither favouring the one 
 side nor the other — neither putting an unfair gloss or con- 
 struction upon the specification for the purpose of saving a 
 patent if it is said that the patent is void, nor putting an 
 unfair gloss or construction upon it in order to extend the 
 patent and make it take in something which you may think 
 was an unhandsome taking of the fruits of his invention 
 from the patentee, if it is not really an infringement of the 
 patent " (=). 
 
 When the comptroller has received and accepted the complete Advertise- 
 specification, he is to advertise its acceptance in the Illustrated ™^°'- 
 Official Journal of Patents, and the application and specifica- 
 tion, or specifications, with the drawings, if any, is to be open 
 to public inspection (^). 
 
 Any person may at any time within two months from the Opposition, 
 date of the advertisement of the acceptance of a complete 
 sijecification, give notice at the patent office of opposition to the 
 grant of the patent on the following, but on no other, grounds : 
 (1) on the ground of the applicant having obtained the inven- 
 tion from him, or from a person of whom he is the legal repre- 
 sentative; or (2) on the ground that the invention has been 
 patented in this country on an application of prior date; or 
 (3) on the ground that the complete specification describes or 
 claims an invention other than that described in the provisional 
 specification, and that such other invention forms the subject 
 of an application made by the opponent in the interval between 
 the leaving of the provisional specification and the leaving of 
 the complete specification (^). 
 
 (') Otto V. Linford, 46 L. T. (N.S.) Marks Act, 1883, s. 11, amended by 
 
 35^ 39. s. 4, Patenta, Designs, and Trade 
 
 (2) Per Lord Blackburn in Dud- Marks Act, 1888. 
 aeon v. Thomson, 3 App. Oas. 34. C) 51 & 52 Vict. c. 50, s. 4. 
 
 (') Patents, Designs, and Trade 
 
300 
 
 PERSONAL PROPERTY. 
 
 [Book II. 
 
 ment of 
 patent. 
 
 LiceDCes, 
 
 Threats of 
 legal pro- 
 ceedings. 
 
 A patent is invariably made expressly assignable by being 
 granted to the patentee and his assigns. 
 
 Patents may be assigned either by operation of law, as by 
 death or bankruptcy, or by ordinary assignment. The assign- 
 ment, if inter vivos, must be by deed. 
 
 It bas been long established that upon a contract to assign a 
 patent there is, in the absence of fraud, no implied warranty 
 that the patentee was the first and true inventor (^). 
 
 A patentee may assign his patent for any place in or part of 
 the United Kingdom, or Isle of Man, as effectually as if the 
 patent were originally granted to extend to that place or part 
 only (2). 
 
 Licences differ from assignments, inasmuch as in the cases 
 of licences the patentee does not grant his whole interest, but 
 merely the right to use the patent for the whole or part of 
 the term, or for a district only, or indeed the licence maybe for 
 the use of one part of the invention only. 
 
 A new power, which however does not apply to patents 
 granted before January, 1884, is conferred upon the Board of 
 Trade of granting, on the petition of any person interested, 
 compulsory licences in cases when it is proved that by reason 
 of the default of a patentee to grant licences on reasonable 
 terms, and that — 
 
 (a) The patent is not being worked in the United Kingdom ; 
 or 
 
 (6) The reasonable requirements of the public with respect 
 to the invention cannot be supplied ; or 
 
 (c) Any person is prevented from working or using to the 
 best advantage an invention of which he is possessed (3). 
 
 A considerable change was made in 1883 in the law with regard 
 to threats of legal proceedings for infringements of patents. 
 The Act of 1883 provides that where any person claiming to 
 be the patentee of an invention, by circulars, advertisements, 
 or otherwise, threatens any other person with any legal pro- 
 ceedings or liability in respect of any alleged manufacture, 
 use, sale, or purchase of the invention, any person or persons 
 aggrieved thereby may bring an action against him, and may 
 obtain an injunction against the continuance of such threats, 
 and may recover such damage (if any) as may have been 
 
 C) Hall V. Conder, 2 C. B. (N.S.) 
 22 ; affirmed on appeal, 2 C. B. (N.8.) 
 67. 
 
 Q) Patents, Designs, and Trade 
 Marks Act, s. 36. 
 
 (') Patents, Designs, and Trade 
 Marks Act, 1883, s. 22. The order 
 may be enforced by mandamus. There 
 have been no compulsory licences 
 granted under this section. 
 
Chap. VII.] PATENTS. 301 
 
 sustained thereby, if the alleged manufacture, use, sale, or 
 purchase to which the threats related, was not, in fact, an 
 infringement of any legal rights of the person making such 
 threats : Provided that this section shall not apply if the 
 person making such threats with due diligence commences 
 and prosecutes an action for infringement of his patent (i). 
 
 A considerable change is also made by the Act of 1883 with Rights of 
 regard to the rights of the Crown in patents. It is now enacted ^^^ Crown. 
 that a patent shall have, to all intents, the like effect as 
 against her Majesty the Queen, her heirs and successors, as it 
 has against a subject. The officers or authorities administering 
 any department of the service of the Crown may, however, at 
 any time after the application, use the invention for the services 
 of the Crown on terms to be before or after the use thereof 
 agreed on, with the approval of the Treasury, between those 
 officers or authorities and the patentee, or, in default of such 
 agreement, on such terms as may be settled by the Treasurj' 
 after hearing all parties interested (^). 
 
 In an action for infringement of a patent, the Court or a Certificate. 
 
 judge may certify that the validity of the patent came in validity 
 
 question ; and if the Court or a judge so certifies, then, in 
 
 any subsequent action for infringement, the plaintiff in that 
 
 action, on obtaining a final order or judgment in his favour, 
 
 shall have his full costs, charges, and expenses as between 
 
 solicitor and client, unless the Court or judge trying the action 
 
 certifies that he ought not to have the same (^). A similar 
 
 protection is now given to proprietors of registered trade-marks 
 
 by the ISth section of the Act of 1888. 
 
 With regard to the extension of the term of a patent the Act Extension 
 
 of term, 
 
 (') Patents, Designs, and Trade fides," Mr. Lawson says, " will ap- 
 
 Marks Act, 1883, s. 32, and see as to parently henceforth be immaterial, 
 
 the previous law : Halsey v. Brother- and the sole question wiU be ' aye or 
 
 hood, 19 Ch. D. 386, affirming deci- no,' is there an infringement of any 
 
 sion of Jessel, M.E., 15 Ch. D. 514 legal rights of the person making the 
 
 (where the law as to slander of title, threats " : Lawson's Patent Acts, 
 
 post, p. 471, is discussed), and on 2nd ed. p. 255. 
 
 the present section : Sugg v. Bray, (^) Patents, Designs, and Trade 
 
 2 E. P. 0. 224; Kurtz v. Spence, Marks Act, 1883, ». 27. This does 
 
 5 K. P. C. 161 ; Ohallender v. Moyle, not apply to existing patents on 1st 
 36 Ch. D. 425 ; Combined Weighing January, 1884, or patents granted or 
 and Advertising Co. v. Automatic applications pending : sect. 45, sub- 
 Weighing Machine Co., 42 Ch. D. 665 ; sect. 2. See as to the previous law : 
 Burney v. United Telephone Co., 28 Feather v. The Queen, 6 B. & S. 257 ; 
 Ch. D. 94 ; Fusee Vesta Co. v. Bryant Dixon v. London Small Arms Co., 
 
 6 May, 4 K. P. C. 191 ; Colley v. 1 App. Gas. 632. 
 
 Sart, 44 Ch. D. 179. "If the (') Patents, Designs, and Trade 
 
 patentee who threatens, declines to Marks Act, 1883, s. 31. 
 bring an action, the question of bona 
 
302 
 
 PERSONAL PROPERTY. 
 
 [Book II. 
 
 Amend- 
 ment of 
 specifica- 
 tion. 
 
 provides that a patentee may, after due advertisement, present a 
 petition to lier Majesty in Council praying that his patent may 
 be extended for a further term ; such petition must be presented 
 at least six months before the time limited for the expiration oi 
 the patent. If the Judicial Committee of the Privy Council, 
 who examine the merits of this petition, report that, having 
 regard to all the circumstances, the patentee has been inade- 
 quately remunerated by his patent, an extension of the term of 
 the patent may be granted for a further time not exceeding 
 seven years, or, in exceptional cases, to fourteen years, or a new 
 patent may be granted for the term therein named, with such 
 conditions, restrictions, and provisions as the Judicial Committee 
 may think fit Q-'). 
 
 An applicant or a patentee may from time to time, on com- 
 plying with the prescribed conditions, obtain leave to amend 
 his specification, including drawings forming part of it, by way 
 of " disclaimer, correction, or explanation " (^). 
 
 The Court has also power in an action for infringement of a 
 patent, and in a proceeding for revocation of a patent, at any 
 time to order that the patentee shall, subject to terms as to 
 costs and otherwise, be at liberty to apply at the Patent Office 
 for leave to amend his specification by way of disclaimer, and 
 may meanwhile postpone the trial (^). 
 
 Petition for 
 revocation. 
 
 Eevocation. 
 
 The old action of scire facias for the revocation of patents 
 had fallen into disuse, and was abolished by the Patent Act 
 of 1883 (*). 
 
 Eevocation of a patent may now be obtained on petition to 
 the Court, and every ground on which a patent might at the 
 
 (') Patent Act, 1883, a. 25, buIj-ss. 
 1,5. 
 
 C^) Patent Act, 1883, s. 18 (1). 
 
 Q) Patent Act, 1883, s. 19. A re- 
 striction on the recovery of damages 
 is introduced by sect. 20 of the Act 
 of 1883, -which enacts that when an 
 amendment by way of disclaimer, 
 correction, or explanation, has been 
 allowed under the Act, no damages 
 shall be given in any action in 
 respect of the use of the invention 
 before the disclaimer, correction, or 
 explanation, unless the patentee 
 establishes to the satisfaction of the 
 Court that his original claim was 
 framed in good faith and with reason- 
 able skill and knowledge. 
 
 The exhibition, &c., of an invention 
 at an industrial or international ex- 
 hibition, either in or out of the 
 United Kingdom, certified as such 
 by the Board of Trade, if the con- 
 ditions prescribed by the Act are 
 complied with, does not prejudice 
 patent rights. (Patents, Designs, 
 and Trade Marks Act, 1883, s. 39, 
 amended by sect. 3 of the Act of 
 1886.) 
 
 (') Patents, Designs, and Ti-ade 
 Marks Act, 1883, s. 26. It was 
 decided in Morgan's Patent, 5 E. P. C. 
 186, that a petitioner being qualified 
 to present a petition was entitled to 
 impeach the patent on any lawful 
 ground. 
 
Chap. VIL] PATENTS. -303 
 
 commeTicement of the Act be repealed by scire facias, is still 
 
 available by way of defence to an action of infringement, and 
 
 is also a ground of revocation. 
 
 A petition for revocation of a patent may be presented by 
 (a) The Attorney-General in England or Ireland, or the Lord 
 
 Advocate in Scotland. 
 
 (6) Any person authorized by the Attorney-G-eneral in England 
 
 or Ireland, or the Lord Advocate in Scotland. 
 
 (c) Any person alleging that the patent was obtained in 
 fraud of his rights, or of the rights of any person under or 
 through whom he claims. 
 
 (d) Any person alleging that he or any person through whom 
 he claims was the true inventor of any invention included in 
 the claim of the patentee (^). 
 
 (e) Any person alleging that he or any person under or 
 through whom he claims an interest in any trade, business, or 
 manufacture, had publicly manufactured, used, or sold within 
 this realm, before the date of the patent, anything claimed by 
 the patentee as his invention. 
 
 The plaintiff must deliver with his petition particulars of the 
 objections on which he means to relj', and no evidence shall, 
 except by leave of the Court or a judge, be admitted in proof 
 of any objection of which particulars are not so delivered (^). 
 
 Where a patent has been revoked on the ground of fraud, the 
 comptroller may, on due application by the true inventor, grant 
 to him a patent in lieu of and bearing the same date as the date 
 of the revocation of the patent so revoked, but the patent so 
 granted shall cease on the expiration of the term for which the 
 revoked patent was granted (5). 
 
 A register of patent agents has been established, and it has Register of 
 been enacted that after 1st July, 1889, no person shall be P*'«"''*- 
 entitled to describe himself as a patent agent, whether by 
 advertisement, by description on his place of business, by any 
 document issued by him, or otherwise, unless he is registered 
 as a patent agent in pursuance of the Act (*). 
 
 (■) See as to practice where the thereto, 
 
 respondent is outside the jurisdiction : C) Patent, &o.. Act, 1888, s. 7. 
 
 Be Drummond's Patent, 43 Ch. D. 80. See as to actions in respect to patents, 
 
 P) Patent Act, 1883, s. 26, sub-s. 5. VanGelder,&c.Y.SowerbyBridge,&c., 
 
 (2) Patent Act, 1883, S.26, sub-s. 8. Society, 44 Ch. D. 374 (parties); 
 
 This is a new provision, the law prior Longbuttom v. Sliaw, 43 Oh. D, 46 ; 
 
 to 1883 gave povrer for the revocation Garrard v. Edge, 44 Ch. D. 224 (par- 
 
 of a patent obtained in fraud of the ticulars of objections) ; American 
 
 first and true inventor, but it did not Braided Wire Go. v. Thomson & Co., 
 
 prescribe any means of vesting the 44 Ch. D. 274 (as to measure of 
 
 patent rights in the person entitled " ^ 
 
( 304 ) 
 
 Statutes 
 and rules. 
 
 Definition. 
 
 Definition 
 of proprie- 
 tor. 
 
 CHAPTEE VIII. 
 
 Designs. 
 
 The law with regard to designs is now governed by the 
 Patents, Designs, and Trade Marks Act, 1883 Q) (which repeals 
 the earlier statutes (^) dealing with the subject), as amended by 
 the Acts of 1886 and 1888 (^), and the rules thereunder, and 
 these three Acts are to be collectively cited " as the Patents, 
 Designs, and Trade Marks Acts, 1883 to 1888." 
 
 By the sixtieth section of the Patents, Designs, and Trade 
 Marks Acts, 1883, a design is defined to mean any design appli- 
 cable to any article of manufactufe or to any substance artificial 
 or natural, whether the design is applicable for the pattern or 
 for the shape, or configuration, or for the ornament thereof, or 
 for any two or more of such purposes, and by whatever means it 
 is applicable, whether by printing, painting, embroidering, 
 engraving, staining, or any other means whatever, manual, 
 mechanical or chemical, separate or combined, not being a de- 
 sign for a sculpture or other thing within the protection of the 
 Sculpture Copyright Act of the year 1814 (54 Geo. 3, c. 66) (*). 
 
 This statutory definition requires to be somewhat supple- 
 mented by the decisions under the former law. From these we 
 learn that a design is that which imports among other things 
 variations in old forms in respect of size, configuration, colour 
 and other qualities ; but where size may introduce novelty in 
 some parts of a design it may not do so in others. Configuration 
 may constitute a new design, for where there is alteration of 
 proportions that may be a new design (^). 
 
 The term " proprietor " of a design is defined by the Act to 
 include four classes of persons (^). 
 
 (1) The author of a new and original design, unless he exe- 
 cutt d the work on behalf of another person for good or valuable 
 
 C) 46 & 47 Vict. c. 57. 
 
 (2) 5 & ft Viot. c. 100 ; 6 & 7 Vict. 
 c. 65 ; 21 & 22 Vict. o. 70 ; 24 & 25 
 Vict. c. 73 ; and 38 & 39 Vict. c. 93. 
 
 Q) 49 & 50 Vict. 0. 33; 51 & 52 
 Vict. 0. 50. 
 
 (*") This definition is nearly the 
 same as that of 5 & 6 Vict. c. 100. 
 
 (=) Barrison v. Taylor, 5 Jur. 
 (N. S.) 1219. 
 
 C) Sect. 61. 
 
Chap. VIII.] DESIGNS. 305 
 
 consideration, in which case (2) such other person shall be con- Proprietor, 
 sidered the proprietor ; (3) any person who acquires a new and 
 original design for a good or valuable consideration, and the 
 right to apply it either exclusively or otherwise, and (4) every 
 person on whom the property in such design or such right to the 
 application thereof shall devolve. Thus, in a case where a 
 foreign company authorized their agent to register certain 
 designs in his own name, but did not assign to him the designs 
 or the right to apply the same to the goods, the Court held that 
 the agent was not the proprietor, and that the registration being 
 wrongful must be expunged (i). 
 
 In order that a design should be entitled to be registered it Origin- 
 must be original. In a case which was heard soon after the ^ ' ^" 
 Act came into operation, and where the design was as to the 
 shape of collars, the Court of Appeal said ; " In order to justify 
 the registration of a design, especially with reference to such 
 matters as collars, and other articles of dress which are in con- 
 stant and daily use, there must, according to my view of the 
 case, be some clearly marked and defined difference between that 
 which is to be registered as a new design and that which has 
 gone before " (^). 
 
 It was also pointed out in the same case, that " it was not 
 every mere difference of cut, every change of outline, every 
 change of length or breadth or configuration, which constituted 
 novelty of design.'' It has been decided that where a design 
 has been registered in one or more of the classes of goods for a 
 particular article of a certain material, a similar design cannot 
 be registered by another person in another class for a similar 
 article made of a different material, as not being "new and 
 original " within the meaning of the Patents, Designs, and 
 Trade Marks Act, 1883 (3). 
 
 In a very recent case in the Scotch Courts the judge said that 
 the standard to which an inventor must attain in order to have 
 legal protection, is in no case a high one, and that there need 
 be no artistic merit. In this case it was decided that a mould- 
 ing for an oven door, the chief improvement of which was the 
 cutting of the comers, so that it fitted, as to the moulding or 
 the oven itself, was sufficiently novel and original to entitle the 
 proprietor to protection (^). 
 
 (') In re Guitaman's Registered Q) In re Read and Greswell's 
 
 Design, 55 L. J. Ch. 309. Design, 42 Ch. D. 260. 
 
 C) Le May v. Welch, 28 Ch. Div. C) Walker, Hunter & Co. v. Fal- 
 
 24, 33 ; Smith v. Hope, 6 K. P. C. kirk Iron Co., 4 E. F. Caa. 390 ; af- 
 
 200. firmed, 14 App. Cas. 550. 
 
 VOL. I. X 
 
306 FEB BON AL PROPERTY. [Book II. 
 
 A design also must not have been previously published, and 
 in a recent case where a man had shown a design to his agent, 
 and that agent had shown it to two customers, it was held that 
 there had been such a publication as to disentitle the plaintiffs 
 to registration (^). 
 
 The applicant must state, (a) the nature of the design ; (6) the 
 class or classes of goods (2) in which he desires the design to be 
 registered, and (c) he must also furnish a sketch or drawing, or 
 three exactly similiar drawings, photographs or tracings of the 
 design, or three specimens of the design to the comptroller, 
 and if such drawings, &c., are not delivered on the application, 
 they must be delivered before any sale of the article after 
 registration (f). 
 
 There are fourteen classes of goods in which designs may be 
 registered, and in case of doubt the comptroller is the judge of 
 the class to which they belong (*). 
 
 The comptroller, if he accepts the design, grants a certificate, 
 and when the design is registered, the proprietor of such design 
 has a copyright therein for five years f^). 
 
 The comptroller is on registration to enter on the register the 
 name, address and description of the registered proprietor, and 
 the date upon which the application was received, which day 
 is to be deemed to be the date of registration (^). 
 
 (') Slanlc V. Footman, Pretty & 12. Goods not included in other 
 
 Co., 39 Ch. D. 678 ; following Ham- classes. 
 
 jjAersowT./Sai/er, 4Eep. Pat. Gas. il3. 13. Printed or woven designs on 
 
 (^) The classes into which goods textile piece goods, 
 
 are divided for the purposes of regis- 14. Printed or woven designs on 
 
 tering designs are as follows : — handkerchiefs and shawls. Design 
 
 1. Articles composed wholly of Kules, Dec. 1883, Sehed. 3. 
 
 metal not included in Class 2. The comptroller may refuse to re- 
 
 2. Jewellery. gister any design presented to him, 
 
 3. Articles composed wholly or but must give the applicant ten 
 partly of wood, bone, ivory, papier days' notice of the time when he can 
 mache', or other solid substances, not be heard, and the applicant shall 
 included in other classes. then give five days' notice that he 
 
 i. Articles composed wholly or wishes to be heard, and the comp- 
 
 partlyof glass, earthenware, or poroe- troller must therefore give notice to 
 
 lain, bricks, tiles, or cement. the applicant of the day upon which 
 
 5. Articles composed wholly or he will hear him or his agent. The 
 partly of paper (except hangings). decision of the comptroller is subject 
 
 6. Articles composed wholly or to an appeal to the Board of Trade, a 
 partly of leather, including book- notice of which must be given within 
 binding of all materials. one month of the decision, aocom- 
 
 7. Paper hangings. panied by a statement of the grounds 
 
 8. Carpets and rugs in all ma- of appeal; and of the applicant's case 
 terials, floorcloths and oilcloths. in support thereof : 46 & 47 Vict. c. 
 
 9. Lace and hosiery. 57, s. 47 ; Design Eules, 13, et seq. 
 
 10. Millinery and wearing apparel, (0 Sect. 48 and Eule 9. Sect. 50. 
 including boots and shoes. ('') Sect. 47. 
 
 11. Ornamental needlework on (') Sects. 49 and 50. 
 muslin or other textile fabrics. (°) Eule 21. 
 
Chap. VIIL] DESIGNS. 307 
 
 No article to whioh a registered design has been applied is 
 to be sold or delivered on sale until such article has been stamped 
 under classes one to twelve inclusive, with the abbreviation E'', 
 and in the two remaining classes with Eegd (^). If this is 
 not done, the proprietor of the design loses all right thereto. 
 Every piece sold must be marked in some way or other with the 
 mark required, either by stamping the article itself, or as was 
 pointed out in a recent case (2), " by tying on a label, or, by 
 printing something on the packet in which the article is." 
 The proprietor, however, is not bound to mark anything but 
 that which he sells. 
 
 A book called, " The Eegister of Designs " is to be kept at Register, 
 the Patent Office, in which the comptroller must enter the names 
 and addresses of propiietors of registered designs, notifications 
 of assignments, and of transmission of registered designs and 
 other matters, and such register is to be prima facie evidence of 
 any matters directed or authorized by the Act to be entered 
 therein (3). The Act provides that any person who, without the 
 licence of the registered proprietor, shall apply or cause to be 
 applied (*), such design, or obvious imitation thereof, to any 
 article of manufacture shall be liable to a penalty for every 
 offence of a sum not exceeding £60, but that the total sum to be 
 recovered in respect of anyone design shall not exceed £100 (*). 
 The same penalty is also imposed upon any one for publishing 
 or selling the articles with the fraudulent design upon them, 
 but the person who sells must know that such design has 
 been fraudulently used, and therefore it is requisite to give 
 him notice (^). 
 
 Besides this remedy, the Act provides another by way of 
 damages, if the person whose design has been imitated elects to 
 bring an action for the recovery of any damages arising from 
 
 (') 46 & 47 Vict. c. 57, s. 51 and such information as may enable Mm 
 
 Kiile 32. to identify the design, and a pay- 
 
 (^) Blanh v. Footman, Pretty & ment of the prescribed fee, is to be 
 
 Co., 39 Ch. Div. 678. So long as informed whether the registration in 
 
 the copyright in a design exists, no such design still exists, and in what 
 
 one but the proprietor and any one class or classes of goods It is regis- 
 
 duly authorized by him, or some one tered, and who is the registered pro- 
 
 whose design has been refused re- prietor of such design : sect. 53 cf 
 
 gistratiou by the comptroller, on the Act of 1883. 
 
 ground of its similarity with a regis- (') Sect. 55 of Act of 1883. 
 
 tered design, shall be entitled to in- (•■) See on infringement : M'Grea 
 
 speot the design : sect. 52 of Act of v. Holdsworth, L. E. 6 Ch. App. 419. 
 
 1883, and sect. 6 of Amending Act, (*) Sect. 58 as amended by sect. 7 
 
 1888. of Act of 1888. 
 
 But any person who applies to the (') Halsey v. Brotherhood, 15 
 
 comptroller and furnishes him with Ch. Div. 414. 
 
 X 2 
 
308 PERSONAL PBOFERTY. [Book H. 
 
 the application of any such design, or of any fraudulent or 
 obvious imitation thereof for the purpose of sale, to any article 
 of manufacture or substance, or from the publication, sale, or 
 exposure for sale by any person of any article or substance to 
 which such design or any fraudulent or obvious imitation 
 thereof shall have been so applied, such person knowing that 
 the proprietor had not given his consent to such application (i). 
 
 (') Sect. 59. See as to registra- The following is the list of fees 
 tion after exhibition, sect. 58 of Act prescribed by 1st Schedule to the 
 of 1883, extended to exhibitions Rules : — 
 abroad by sect. 3 of Act of 1886. £ a. d. 
 
 1. On application to register one design to be applied to single 
 
 articles in each class, except Classes 13 and 14 . . . 10 
 
 2. On application to register one design to be applied to single 
 
 articles in Classes 13 and 14 . . . . .-.010 
 
 3. On application to register one design to be applied to a set of 
 
 articles for each class of registration . . . . .10 
 
 4. On notice of appeal to Board of Trade against refusal of comp- 
 
 troller to register . . . . . .■. .100 
 
 5. Copy of certificate of registration, each copy . . .010 
 
 6. On request for certificate of comptroller for legal proceedings 
 
 or other special purposes . . . . . . .050 
 
 7. On request to enter name of subsequent proprietor . j ^TSion^fre'^' 
 
 8. On notice to comptroller of intended exhibition of an unregis- 
 
 tered design 050 
 
 9. Inspection of design of which copyright has expired, for each 
 
 quarter of an hour . . . . . . . .010 
 
 10. Copy of one such design [Z^e^^' 
 
 11. On request to correct clerical error . . . . .050 
 12.5 On request for search under sect. 53 . . . . .050 
 
 13. On request to enter new address . . . . .050 
 
 14. For office copy every 100 words, but never less than Is. .004 
 
( 309 ) 
 
 CHAPTER IX. 
 
 Trade-marks and Trade Names. 
 
 The law with regard to trade-marks first received what may statutes 
 he called statutory recognition in the Trade Marks Act of 1876. and ru'«s- 
 This statute is now superseded by the Patents, Designs, and 
 Trade Marks Act, 1883, amended by the Act of 1885 and by the 
 Acts of 1886 and 1888 ; and it is by these Acts and the various 
 rules from time to time made pursuant to their provisions, the 
 last being the Trade Mark Eules, 1890, that the law of trade- 
 marks is now governed. The Acts may be cited collectively as 
 " the Patents, Designs, and Trade Marks Acts, 1883 to 1888." 
 
 The original foundation of the whole law with regard to the 
 trade-marks is as stated in the judgment of the House of Lords 
 in a celebrated case (}), based on the principle that when one 
 knowing that goods are not made by a particular trader sells 
 them as and for the goods of that trader, he does that which 
 injures that trader. At first it was put upon the ground that 
 he did so when he sold inferior goods as and for the traders, 
 but it is established alike at law and in equity that it is an 
 actionable injury to pass off goods known not to be the plaintiff's 
 as and for the plaintiff's even though not inferior. 
 
 " The modes in which goods may be passed off as and for the 
 plaintiff's vary. The most usual is where a particular mark on 
 the goods or on the packages in which they are sold has been 
 used to denote that they are made by a particular firm to such 
 an extent that it is understood in the market to bear that 
 meaning. The law as to those trade-marks is now regulated 
 by statutes, but before there was any legislation on the subject 
 it was well settled that when any one adopted a mark so closely 
 resembling the trade-mark of the plaintiff that it would be 
 likely to be mistaken for it, and put it on his goods and sold 
 them knowing that though the persons to whom he sold them 
 were well aware that they were not the plaintiff's make, yet 
 that they were meant to be sold to others who would see only 
 the trade- mark and were likely to be deceived by its resem- 
 
 (') Singer Manufacturing Co. v. Loog, 8 App. Cas. 15, 29. 
 
310 PEBSONAL PROPERTT. [Book II. 
 
 blan.ce to tliat of the plaintiff, lie might be properly fotmd to 
 have knowingly and fraudulently sold the goods as and for 
 the plaintiff's goods. And so far there was no differerfce 
 between law and equity. But at law it was necessary to prove 
 that an injury had been actually done. In equity it was 
 enough to show that the defendants threatened to do, and would, 
 if not prevented, do that injury " (i). 
 Principle The principle of the law is also admirably stated by Lord 
 
 of the law. Langdale in the well-known case of Croft v. Bay (^). No man has 
 a right to sell his own goods as the goods of another. Tou may 
 express the same principle in different forms, and say that no 
 man has a right to dress himself in colours or adopt and bear 
 symbols to which he has no peculiar or exclusive right, and 
 thereby personate another person for the purpose of inducing 
 the public to suppose that he is that other person, or that he is 
 connected with and selling the manufacture of such other person, 
 while he is really selling his own. It is perfectly manifest that 
 to do these things is to commit a fraud, and a very gross fraud. 
 In a very recent case before the Privy Council the common 
 law right of a man to have protection for his trade-mark was 
 raised. In Malta there is no statute regulating trade-marks, 
 and the mark sought to be protected was " Kaisar-i-Hind," 
 applied to a certain kind of cigarettes, and Lord Watson, in 
 delivering the judgment of the Privy Council, says : In Malta 
 there is no law or statute establishing the registration of trade- 
 marks, and no authority exists from whom an exclusive right 
 to a particular trade-mark can be obtained. The rights of the 
 parties to this cause are therefore dependent upon the general 
 principles of the commercial law. These principles have been 
 very fully illustrated and explained by several cases in the 
 House of Lords ('), all of which were cases which arose before 
 the passing of the first Trade Marks Eegistration Act in the 
 year 1875. In the first of these cases the interest which a 
 merchant or manufacturer has in the trade-mark which he uses 
 
 (') Singer Manufacturing Co. v. & Martin had been adopted for the 
 
 Loog, 8 App. Cas. 15, 29. purpose of representing and holding 
 
 (^) 7 Beav. 84. In this case the firm out to the public that it was the old 
 
 of Day & Martin, the blacking manu- firm of Day & Martin : Merchant 
 
 faeturers in Holborn — though there Banldng Co. of London v. Merchants 
 
 was no longer either a. Day or a Joint Stock Bank, 9 Ch. Div. 560 ; 
 
 Martin, as in the original firm, both Turton v. Turton, 42 Ch. Div. 128. 
 
 being long since dead — was held en- (^) Leather Cloth Co., Lim. v. 
 
 titled to restrain a rea? Day and a reaZ American Leather Cloth Co., Lim., 11 
 
 Martin from trading under the name H. L. C. 538 ; Wotherspoon v. Currie, 
 
 of Lay & Martin ; the reason for the 5 H. L. 508; Johnston & Co v. Orr 
 
 iniimction being that the name of Day Eicing & Co ,1 App. Cas. 219. 
 
of trade- 
 mark. 
 
 Chap. IX.] TBADE-MABK8 AND TRADE NAMES. 311 
 
 was thus defined by Lord Cranworth: "The right which a 
 manufacturer has in his trade-raark is the exclusive right to use 
 it for the purpose of indicating where, or by whom, or at what 
 manufactory the article to which it is affixed was manufactured." 
 As soon, therefore, as a trade-mark has been so employed in the 
 market as to indicate to purchasers that the goods to which it is 
 attached are the manufacture of a particular firm, it becomes, to 
 that extent, the exclusive property of the firm, and no one else 
 has a right to copy it, or even to appropriate any part of it, if 
 by such appropriation unwary purchasers may be induced to 
 believe that they are getting goods which were made by the 
 firm to whom the trade-mark belongs (i). 
 
 What is the statutory definition of a trade-mark ? It is now Definition 
 provided by sect. 10 of the Patents, Designs, and Trade Marks 
 Act of 1888, amending sect. 64 of the Act of 1883, that "a 
 trade-mark must, for the purposes of the Act, consist of or con- 
 tain at least one of the following essential particulars : — 
 
 " (a) A name of an individual or firm printed, impressed, or 
 woven in some particular and distinctive manner ; or 
 
 " (6) A written signature, or copy of a written signature, of 
 the individual or firm applying for registration thereof as a 
 trade-mark ; or 
 
 "(c) A distinctive device, mark, brand, heading, label, or 
 ticket; or 
 
 " (d) An invented word or invented words ; or 
 
 " (e) A word or words having no reference to the character or 
 quality of the goods, and not being a geographical name. 
 
 " (2.) There may be added to any one or more of the essential 
 particulars mentioned in this section any letters, words, or 
 figures, or combination of letters, words, or figures, or of any of 
 them, but the applicant for registration of any such additional 
 matter must state in his application the essential particulars of 
 the trade-mark, and must disclaim in his application any right 
 to the exclusive use of the added matter, and a copy of the 
 statement and disclaimer shall be entered on the register. 
 
 " (3.) Provided as follows : 
 
 " (i.) A person need not under this section disclaim his own 
 name, or the foreign equivalent thereof, or his 
 place of business, but no entry of any such name 
 shall affect the right of any owner of the same 
 name to use that name or the foreign equivalent 
 thereof ; 
 
 (') Someruilh v. Schembri, 12 App. Cas. 453, at pp. 156, 457. 
 
312 PERSONAL PROPEBTT. [Book II. 
 
 "(ii.) Any special and distinctiye word or woTds, letter, 
 
 figure, or combination of letters or figures, or of 
 
 letters and figures, used as a trade-mark before the 
 
 13th day of August, 1875, may be registered as a 
 
 trade-mark under this part of this Act." 
 
 Jeneial " The general object of the Trade Marks Acts is not to give 
 
 objects of new rights, but to place restrictions on the bringing of actions 
 
 ^'^^' for infringement of trade-marks, by requiring that a trade-mark 
 
 shall be registered before any action to prevent its infringement 
 
 can be brought " (^). 
 
 By the Act of 1883, " a fancy word or words " was entitled to 
 be registered for the first time. The question then arose what 
 word or words should be considered as " a fancy word or 
 words '' (2). In a leading case on the subject one of the judges 
 of the Court of Appeal said : " I think a word to be a fancy word 
 must be obviously meaningless as applied to the article in ques- 
 tion. I think it must be a word fanciful in its application to the 
 article to which it is applied, in the sense of being so obviously 
 and notoriously inappropriate as neither to be deceptive nor de- 
 scriptive, nor calculated to suggest deception or description ('). 
 The difficult expression, " fancy word or fancy words," has 
 now, however, been omitted from the Act of 1888, and the 
 words, " an invented word or invented words, a word or words 
 having no reference to the character or quality of the goods, 
 and not being a geographical name " have been inserted in their 
 stead. • 
 "Three Soon after the passing of the Act of 1875 it was found that 
 
 ^, u ^ many marks were used by two or more individuals, and this 
 
 gave rise to the promulgation of what is called the " Three 
 Marks" rule, which has now been embodied in the Patents, 
 Designs, and Trade Marks Act, 1883, sect. 74 (3) of which pro- 
 vides " that any device, mark, brand, heading, label, ticket, 
 letter, word, figure, or combination of letters, words, or figures 
 which was or were before the 13th day of August, 1875, publicly 
 
 (■) Edwards v. Dennis, 30 Ch. Div. and In re Leafs Trade-mark, 34 
 
 454, 470, decided on the Acta of 1875 Ch. Div. 623. 
 
 and 1876. It has been decided on (') Under the Act of 1883, the 
 
 B. 77 of the Act of 1883 (re-enacting word " gem " (7)i re Arbenz' Applica- 
 
 B. I of Act of 1875, as amended by Act Hon, 35 Ch. Div. 248), and tlie word 
 
 of 1876), that when a trade-iuark " reverai " (In re Waterman's Trade- 
 
 haa been registered an aaaigoee of mark, 39 Oh. Div. 29), were held to 
 
 the registered proprietor can bring be bad. The common name of an 
 
 an action to prevent the use of the article in a foreign European coun- 
 
 tvade-mark without having registered try is not a trade-mark in England : 
 
 the assignment : Ihlee v. Henshaw, Davis & Co. v. Stribolt & Co., 6 R. P. C. 
 
 31 Ch. D. 323. 207. 
 
 (^) III re Van Duzer's Trade-mark, 
 
Chap. IX.] TBADE-MABK8 AND TRADE NAMES. 313 
 
 used by raore than three persons on the same or a similar 
 description of goods shall, for the purposes of this section, be 
 deemed common to the trade in such goods." 
 
 Important restrictions are placed by the Patents, Designs, Eegistra- 
 and Trade Marks Acts on the registration of trade-marks. ^J"^". 
 The comptroller shall not register with respect to the same marks, 
 goods, or description of goods, a trade-mark having such 
 resemblance to a trade-mark already on the register with 
 respect to such goods, or description of goods, as to he calculated 
 to deceive, and as pointed out by Jessel, M.E., these words are 
 directed against that which is " deceptive in itself, something 
 representing the goods to be that which they are not, for the 
 purpose of deception " (i). 
 
 It is also enacted that it shall not be lawful to register as 
 part of, or in combination with, a trade-mark, any words the 
 use of which would, by reason of their being calculated to 
 deceive or otherwise, be deemed disentitled to protection in a 
 Court of justice, or any scandalous design (2). 
 
 In a case decided in 1890 (^), a question arose with regard to 
 the registration of " Fruit Salt " as part of a trade-mark. It 
 had been for many years used as a trade-mark for an effer- 
 vescing drink, and the point to be decided was whether it could 
 be registered as a trade-mark for a baking powder. 
 
 The House of Lords decided that, although the present trade- 
 mark was for a totally different article, it was yet calculated to 
 deceive, and that registration must be refused. " In register- 
 ing trade-marks," it was said, "the principle that the protection 
 of the Court ought not to be extended ought to be applied 
 without any qualification whatever. The comptroller, to whom 
 in the first instance is committed the ' discretionary power ' of 
 registering a trade-mark, ought to reject words which involve 
 a misleading allusion or suggestion of that which is not strictly 
 true, as well as words which contain a gross and palpable 
 falsehood." 
 
 Before the passing of the Trade Marks Act of 1875, letters 
 were regarded as good trade-marks, and the fraudulent use of 
 
 (') Patents, Designs, and Trade (') Eno v. Dunn, 15 App. Cas. 
 
 Marks Act, 1883, s. 72, sub-s. 2, as 252; anH seethe Australimi Wine Im- 
 
 amended by s. 14 of Act of 1888 ; Re porters, Limited, 41 Ch. D. 278, where 
 
 Horsburgh's Trade Mark, 53 L. J. Cbi. registration of " Golden FJeece " was 
 
 237. refused. It was laid down in this 
 
 C) Patents, Designs and Trade case that the Court has no jurisdic- 
 
 Marts Act, 1883, s. 73, as amended tion to order an unsuccessful appli- 
 
 by the Patents, Designs, and Trade cant to pay the costs incurred by the 
 
 Marks Act, 1888, s. 15, by the omis- opponent before the Comptroller, 
 sion of the word exclusive. 
 
tion, 
 
 314 PERSONAL PROPEBTY. [Book U. 
 
 them was restrained (i), tut since then, and now, by the defini- 
 tion given in the amending Act of 1888, letters do not and 
 cannot form part of a trade-mark, but may be added to it, and 
 registered with it (2). 
 Registra- It has been enacted that the registration of a person as 
 
 proprietor of a trade-mark is now prima facie evidence of his 
 right to exclusive use of the trade-mark, and after the expiration 
 of five years from the date of registration conclusive evidence 
 of his right to the exclusive use of the trade-mark, subject 
 however to the provisions of this Act Q). 
 
 This section is no bar to having the mark removed from the 
 register if it was a mark which ought never to have been put 
 on, although the mark may have been there for more than five 
 years. In Be Palmer's Trade MarJc (*), it was held that a mark 
 which is not authorized to be registered as a trade-mark, does 
 not acquire the character of a trade-mark by being on the 
 register for five years, and may be removed from the register 
 though that period has elapsed. 
 
 Is there property in a trade-mark? Lord Hardwicke, in 
 1742 (^), seems plainly to have considered that there was not, 
 but modern cases (*) have fully established that there is. In 
 a case decided in 1863 ('), Lord Westbury says, a trade-mark 
 consists in the exclusive right to the use of some name or 
 symbol — and such exclusive right is property, and in a case 
 decided in 1887 (^), it was held that libel in relation to a 
 trade-mark was an injury to property, for which an action 
 could be continued after the plaintiff's death. 
 
 It has been decided by the House of Lords, that in an action 
 for infringement of a trade-mark it is not necessary to prove 
 fraud on the part of the defendant. " I wish," said Lord 
 Cairns, "to state in the most distinct manner that in my 
 opinion fraud is not necessary to be proved in order to obtain 
 protection for a trade-mark. A man may take the trade-mark 
 of another ignorantly, not knowing it was the trade-mark of 
 the other; or he may take it in the belief, mistaken but 
 sincerely entertained, that in the manner in which he is taking 
 
 (') Millington v. Fox, 3 My. & Or. hert, 32 Ch. D. 247. 
 338 ; Kindhan v. Bolton, 15 Ir. Ch. C") Blanchard v. HUl, 2 Atk. 484 
 
 75 (L. L. Whiskey). («) Millington v. Fox, 3 My. & Cr. 
 
 C) Patents, Designs, and Trade 338. 
 Marks Act, 1888, =. 10. (') Ball v. Barrows, 4 De G. J. & 
 
 (^) Patents, &c.. Act, 1S83, s. 76. S. 150. 
 
 (*) Be Palmei^s Trade Marie, 21 («) Ilatelmrd v. Mege, 18 Q. B. D 
 
 P ;^P"-^'' • ^^ ^™S3'» ''™<''' ^<^^^'^ at PP- 776, 777, citing Wotlwrgpoon v. 
 
 29Ch.D. 551; In re Edward' s Trade Currie, L. E. 5 H. L. 508- and see 
 
 Marie, 30 Ch. D. 454 ; Wood v. Lam- Oakey v. Valfon, 35 Ch. D 700 
 
Chap. IX.] TBABE-MABKS AND TRADE NAMES. 315 
 
 it, he is within the law, and doing nothing which the law 
 forbids ; or he may take it knowing it is the trade-mark of his 
 neighbour, and intending and desiring to injure his neighbour 
 by so doing. The action of the Court must depend upon the 
 right of the plaintiff and the injury done to that right" Q'). 
 
 A trade-mark is assignable like any other property, but Assign- 
 since by its very nature it relates to special goods, so it can be '"<=°' "^ 
 assigned only in connection with the goodwill of the business mlik. 
 concerned in such goods. The assignment may be registered 
 and the assignee registered as the proprietor (^). 
 
 Under the old law, before a trade-mark could be sued upon, 
 it must have been used upon some goods which were vendible 
 articles in the market (^), but now, by the Act of 1888 (^), 
 application for registration of a trade-mark is to be deemed 
 equivalent to public use of the trade-mark, and the date of the 
 application shall, for the purposes of this Act, be deemed to be 
 as and from the 1st of January, 1876, to have been the date of 
 registration. 
 
 Sect. 77 of the Patents, Designs, and Trade Marks Act, enacts, 
 " a person shall not be entitled to institute any proceeding 
 to prevent or to recover damages for the infringement of a 
 trade-mark unless, in the case of a trade-mark capable of being 
 legistered under this Act, it has been registered in pursuance 
 of this Act, or of an enactment repealed by this Act, or, in the 
 case of any other trade-mark in use before the thirteenth of 
 August, one thousand eight hundred and seventy-five, registra- 
 tion thereof under this part of this Act, or of any enactment 
 repealed by this Act, has been refused." This section makes 
 a considerable alteration in the law. Eegistration as a pre- 
 liminary to suing is required in all cases of trade-marks capable 
 of being registered under this Act, while a certificate of refusal of 
 registration is sufficient only in cases of " any other trade-marh 
 in use before the 13th August, 1875" (^). 
 
 The Act provides with regard to " Sheffield marks," that the 
 Cutlers' Company is to establish and keep at Sheffield a register 
 of trade-marks, called the Sheffield Eegister, so as to enter all 
 trade-marks on metal goods granted to persons carrying on 
 
 (') Singer Manufacturing Co. v. (0 McAndrews v. Barret, 4 De G. 
 
 Wilson, S App. Cas. 3, 6. J. & S. 384. 
 
 (') Patents, Designs, and Trade ('') Sect. 17 of the Patents, Designs, 
 Marirs Act, 1883, ss. 70, 87, as and Trade Marks Act, 1888, repeal- 
 amended by sect. 21 of Act of 1888. ing sect. 75 of 1883 ; and see In re 
 Trade-marks registered as a series Hudson's Trade Mark, 32 Ch. D. 311, 
 can only be transmitted as a whole : decided on the previous law. 
 sect. 66 of Act of 1883. C) 46 & 47 Vict. c. 57, s. 77. 
 
316 PEBSONAL PBOPEBTY. [Book II. 
 
 business in Hallamshire, or witHn six miles thereof, and shall 
 also enter in the same Eegister all trade-marks which shall have 
 been assigned by the Cutlers' Company and actually used before 
 the 1st of January, 1884 (i). 
 
 Trade-marks have the same term of life prescribed for them 
 by the Legislature as patents, viz. fourteen years, but they 
 differ from patents in this respect, that while the life of a 
 patent, as we have previously seen, can only be prolonged on 
 special grounds, the Act provides that a trade-mark may be 
 renewed, as a matter of course, at the expiration of every 
 fourteen years. Certain fees, however, have to be paid at the 
 end of everj' fourteen years, and unless they are paid the comp- 
 troller may strike the mark off the register after having given 
 tlie notices required by the Act (2). The infringement of 
 trade-marks is protected by the Criminal Law (f). 
 
 Tbade Names. 
 
 There is also another class of cases in which, although the 
 words used may not be trade-marks, they yet in many respects 
 nearly resemble them, and any one infringing a trade-name 
 (which may be the name of the man himself, or some name by 
 which the manufacturer has become known), as " Glenfield 
 Starch," or "Castle Album," can be restrained by injunction 
 from so doing. 
 
 The law on this subject is well illustrated by the case of 
 Woiherspoon v. Gurrie, decided by the House of Lords (^). In 
 that case the plaintiffs' starch was well known as Glenfield Starch. 
 The defendant put upon his labels, " Gurrie & Go., Starch and 
 Corn Flour Manufacturers, Glerfield." The defendant was 
 actually manufacturing starch at Glenfield, having gone thither 
 for the purpose of enabling him to say that he was manufac- 
 turing it at Glenfield. The House of Lords said, the mere fact 
 
 (') Sect. 81 of the Act of 1883 as whether marks deceptive. Davis v. 
 
 amended by sect. 20 of the Aet of Stribolt, 59 L. T. 854, and In re 
 
 1888; LambeH's Trade Mark, 61 Jackson, 60 L. T. 93, as to fancy 
 
 ^•, J- l^^l ^. , , , ^, words. In re Galifornian Fig Syrup 
 
 (2) feect. 79, sub-sect. 1. The sub- Co., 40 Cli. D. 620 (Foreign Trade 
 
 seciuent portion of this section is Marks) ; In re Grossmith. 60 L. T 
 
 amended by the Act of 1888, s. 19. 612 (Abandonment) ; Hart y. CoUev. 
 
 See also on the subject of trade- 44 Ch. D. 193. 
 mfirks the following recent cases : C) Merchandise Marks Act (1887), 
 
 Jay V. Ladler, 40 Gh. D. 619 (In- 50 & 51 Vict. 0. 28 ; Starey v. Chil- 
 
 fringement) ; Thompson v. Mont- worth Gmpowder Co., 24 Q B D 
 
 gomery, 41 Ch. D. 35 (Infringement) ; 90 ; Wood v. Burgess 24 Q. B. D 162 
 MeMeyerstein's Trade Mark,i3Ch.'D. (') Wotherspoon v. Currie, L. E. 
 
 604, and In re Australian Wine Im- 5 H. L. 508,'considered in Schov'e y 
 
 porters Co., 41 Ch. D. 278, as to Schmincke, 33 Ch. D. 546. 
 
Chap. IX.] TRABE-MABKS AND TRADE NAMES. 317 
 
 that lie was really carrying on his mannfactnre at Glenfield, and 
 was not therefore telling a lie, did not exempt him from the 
 consequence of the fact that his proceedings were intended and 
 calculated to produce on the mind of the purchasers the helief 
 that his article was the article of the plaintiffs. 
 
 In order to constitute a ground for interference by the Court 
 to protect a manufacturer against the use by another person 
 of the particular name of his manufactured article, it is not 
 necessary there should be mala mens, viz., fraudulent intention 
 towards the first purchaser of the article thus imitatively 
 designated (^). The fault of the imitator is that the first 
 j)urchaser may be enabled by the unwarranted designation to 
 retail a simulated article at a lower price than would be 
 demanded for the original article, and so the original manu- 
 facturer may be injured. There is, as was recently stated in the 
 Court of Appeal, a kind of property in a name. In a cele- 
 brated case, in which a father sought to restrain his son from 
 carrying on and selling the same goods. Lord Justice Knight- 
 Bruce, in his judgment, epigrammatically said : "All the Queen's 
 subjects have a right, if they will, to manufacture and sell 
 pickles and sauces, and not the less that their fathers have 
 done so before them. All the Queen's subjects have a right to 
 sell these articles in their own name, and not the less so that they 
 bear the same name as their fathers." But in a case decided 
 by the Court of Appeal in 1880, it was pointed out by Lord 
 Justice James that the case of Burgess v. Burgess had been 
 very much misunderstood, if it had been understood to decide 
 that anybody can always use his own name as a description 
 of an article, whatever may be the motive for doing it, or 
 whatever may be the result of it, and that the law on the 
 subject was, " No man can have any right to represent his 
 goods as the goods of another person, but in applications of this 
 kind it must be made out that the defendant is selling his own 
 goods as the goods of another. Where a person is selling goods 
 under a particular name, and another person not having that 
 name is using it, it may be presumed that he so uses it to 
 
 (') Burgess v. Burgess, 3 De G. is plenty of authority founded on the 
 
 M. & G. t*96 ; Turton v. Turton, soundest sense to show that the 
 
 42 Ch. D. 128 ; and see Borthwiek v. Court would interfere as in a matter 
 
 The Evening Post, 37 Ch. D. 449, of property. There may be property 
 
 where Lord Chief Justice Coleridge in a name as well as in anything 
 
 said : " Where the name or a colour- else, and anything like an iiiterfer- 
 
 able imitation of the name has been ence with property in a name would 
 
 taken by the person against whom be immediately restrained by the 
 
 the application had been made, there Court." 
 
318 PERSONAL PEOPERTT. [Book II. 
 
 represent the goods sold by himself as the goods of the person 
 whose name he uses, but where the defendant sells goods under 
 his own name it does not follow that the defendant is selling 
 his goods as the goods of the plaintiff. It is a question of 
 evidence in each case whether there is false representation 
 or not "(1). 
 
 Q) Massamv.Thorley's Cattle Food turtng Co. v. Loog, ante, p. 301. 
 
 Co., 14 Ch. D. 748, at pp. 752, 753. See, as to the analogous law with 
 
 citing with approval the judgment of regard to companies : Sendrilcs v. 
 
 Lord Justice Turner in Burgess v. Montagu, 17 Ch. D. 638; Merchant 
 
 Burgess, 3 De 6. M. & G. 896, at Banking Co. of London v. Merchants' 
 
 p. 900 ; also see Singer Manufac- Joint Steele Bank, 9 Ch. D. 560. 
 
( 319 ) 
 
 CHAPTER X. 
 
 Copyright. 
 
 The interesting subject of copyright may be considered under 
 five heads : — 
 
 1. Copyright in literary works ; 
 
 2. Copyright in engravings, prints, and lithographs ; 
 
 3. Copyright in sculpture, models, casts, and busts ; 
 
 4. Copyright in musical and dramatic representations or 
 
 performances ; 
 
 5. Copyright in pictures, drawings, and photographs. 
 
 The statute on which the Copyright in literary works pub- Literary 
 lished in the United Kingdom depends, is the Act of 1842 '^'"''^^■ 
 (5 & 6 Vict. c. 45), and it defines " copyright " as the sole and 
 exclusive right to print or otherwise midtiply copies of an 
 original work or composition (^). In the celebrated case of 
 Jefferys v. Boosey (^) the Lord Chancellor (Lord Cranworth) said 
 copyright is not the right to publish, or abstain from publish- 
 ing, a work not yet published at all, but the exclusive right of 
 multiplying copies of a work already published. 
 
 Copyright may exist in any book published within the United 
 Kingdom so long as such book is of an innocent nature. If the 
 work be of an immoral nature the Courts will not restrain a 
 piracy. This, as pointed out by Mr. Shortt, is in accordance 
 with the fundamental principle of our common law, that no- 
 action can be maintained on any contract, express or implied, 
 parol or under seal, which is in direct violation of law — 
 whether statutory or unwritten — or which is of an immoral 
 tendency or contrary to sound policy (3). The work must also 
 be original. For a book to be original "there must be," as 
 Mr. Curtis tells us (*), " some important additions, some intel- 
 lectual skill shewn by the author, whether purely original 
 
 (') 5 & 6 Vict. c. 45, s. 2, and see ciation, ib., 425. 
 Warne & Co. v. Seebohm, 39 Ch. D. 73 ; Q) 4 H. L. G. 977. 
 
 bate V. Devon and Exeter Constitu- (') Shortt's Copyright, p. 3. 
 
 tional Newspaper Co., 40 Oh. D. 500, (■■) Curtis on Copyright, pp. 171, 
 
 and Trade Auxiliary Co. v. Middles- 172. 
 brough Tradesmen's Protection Asso- 
 
of book. 
 
 320 PERSONAL PROPERTY. [Book II. 
 
 tliouglit or principle unpTiblislied before, or a new combina- 
 tion of old thoughts and ideas and sentiments, or a new 
 application, or use of known and common materials, or a collec- 
 tion, the result of his industry and skill. In whatever way he 
 claims the exclusive privilege accorded by these laws, he must 
 show something which the laws can fix upon as the product of 
 his own, and not another's labour.'' 
 
 In Jefferys v. Boosey (^) the House of Lords decided that under 
 the Act of Anne a foreigner could have no copyright, although 
 his work was published in the United Kingdom. But the same 
 tribunal has since decided, and it is now settled law, that a 
 foreigner residing in the British possessions, although only for the 
 purpose of publication of the book, is entitled under the Act of 
 1842 to copyright in his work (2), and Lord Cairns expressed the 
 opinion that any foreigner, wherever resident, might have copy- 
 right if only his book were published within the United Kingdom. 
 Definition A book as defined by the Act includes " every volume, part or 
 division of a volume, pamphlet, sheet of letterpress, sheet of 
 music, map, chart, or plan separately published " (^). And it 
 has been decided that a catalogue containing representations of 
 furniture, with the price added, is a book within the statute (*). 
 In this case Sir George Jessel said, that although the definition 
 of the Act did not extend to prints or designs separately pub- 
 lished, but only to the prints or designs forming part of a book, 
 a book was not less a book because it contained prints or other 
 illustrations of the letterpress, and then proceeded : "It appears 
 to me that a book must include every print, design, or engraving 
 which forms part of the book as well as the letterpress therein." 
 In a very recent case, however, it was decided that an album 
 for holding photographs, which contained pictures of castles, 
 together with a list and a short description of them, was not a 
 book within the statute (5). " The plaintiff's album," it was 
 said, " is a book in form, but in form only. It is not a book 
 within the scope of the preamble of the statute, which speaks 
 of 'literary works,' nor a book within sect. 1, which contains 
 an interpretation of the term as used in the statute. The only 
 letterpress which it contains consists of the title ' Castle 
 Album,' a list of the castles represented by coloured drawings, 
 and a short description of the castles themselves, not covering 
 more than a portion of a page." 
 
 (') 4 H. L. C. 815. (*) Maple v. Junior Army and 
 
 (^) Boiitledge v. Low, L. R. 3 H. L. Navy Stores, 21 Ch. Div. 369. 
 
 100. C) Sehove v. Schmincke, 38 Ch. D. 
 
 (') 5 & 6 Vict. c. 45, s. 2. 546. 
 
Chap. X.] COPYRiaET. 321 
 
 The right to copyright in lectures orally delivered was first Lectures, 
 considered in Ahernethy v. Hutchinson Q), and Lord Eldon, while 
 declining to grant an injunction on the ground of the lecturer's 
 right of property in them after they were delivered, granted it 
 upon " an implied contract " hetween the lecturer and his 
 hearers. But hy an Act of 5 & 6 Will. 4, c. 66, a distinct right 
 of property is given to a lecturer in his lectures, who before 
 delivering the same has given to two justices, within fi.ve miles 
 of the place in which such lectures are to be delivered, two 
 clear days' notice of his intention so to do (^). But nothing in 
 the statute is to affect lectures delivered in any university or 
 public school or college, or on any foundation. And in a recent 
 case before the House of Lords it was decided that a professor 
 who orally delivers in his class-room lectures which are his own 
 literary composition does not communicate them to the whole 
 world so as to entitle any one to republish them without the 
 permission of the author (^). 
 
 The duration of the copyright in any literary work is limited Duration 
 by the Act of 1842 to the life of the author and seven years °f ^j^P^' 
 beyond that period, but if such further period of seven years 
 expires before the end of forty-two years, then such copyright 
 is to last until the end of forty-two years, and if a work is 
 published after the author's death such work is to have a 
 copyright for forty-two years from the date of publication (^). 
 
 It is not necessary to register in order to acquire copyright 
 in a book — copyright exists as soon as it is published ; but 
 before the proprietor of the copyright can sue, the book must 
 be registered at the Hall of the Stationers' Company (^). 
 
 Registration is effected by making entry in the registry Registra- 
 book of t'oi- 
 
 1. The title of the book ; 
 
 2. The time of first publication thereof; 
 
 3. The name and place of abode of the publisher ; 
 
 4. The name and place of abode of the proprietor of the 
 
 copyright, or of any portion of such copyright. 
 As soon as a book is registered the registration relates back 
 to the time when the book was first published, and damages 
 may be recovered for any infringement although it took place 
 before registration. But the requisites of registration must be 
 minutely complied with. It is not sufficient to enter the month 
 
 (') 3 L. J. (Ch.) 209 ; and see 326. 
 Nicoh V. Pitman, 26 Oh. D. 374. (*) 5 & 6 Vict. c. 45, s. 3. 
 
 (2) 5 & 6 Wm. 4, c. 65, s. 5. (=) 5 & 6 Vict. c. 45, ss. 11 and 24. 
 
 (') Caird v. 8ime, 12 App. Cas. 
 
 VOL. I. Y 
 
322 
 
 PERSONAL PROPERTY. 
 
 [Book II. 
 
 News- 
 papers, 
 encyclo- 
 paedias, &c. 
 
 Tests of 
 piracy. 
 
 in which the work was first published, the day of the month 
 must be stated (') ; nor will the date of the publication of a 
 subsequent edition, which is a mere reprint of an old one, be 
 sufficient (2). It is sufficient to enter the " publisher," by which 
 is meant the first publisher, of the book under the trade name 
 of the firm ; by the " proprietor of the copyright " is meant the 
 proprietor of the copyright at the time of registration (^). 
 
 Newspapers must also be registered under the Copyright Act, 
 1842, before the proprietor can sue in respect of a piracy. 
 
 The copyright in encyclopaedias, reviews, magazines, and other 
 periodicals is the same as in other literary works, except that 
 by sect. 18 it is provided that the copyright in any article 
 therein which has been paid for by the proprietor of the work 
 on such terms, shall for the first twenty-eight years belong to 
 him, but he shall not be at liberty, nor shall the author, to 
 publish the same in separate form, and after the twenty-eight 
 years have expired the copyright shall return to the author (f). 
 
 The registration of such encyclopssdias, reviews, magazines, 
 and periodical works is sufficient if the first part or number is 
 registered (f). 
 
 Infringement of copyright is the unauthorized multiplication 
 of copies. It is a piracy of the works of another which will 
 prevent him from reaping the due reward of his labours (^). 
 The following tests of piracy have been laid down by judicial 
 decisions : — 
 
 Was the one publication a legitimate use of the other in the 
 fair exercise of a mental operation deserving the character 
 of an original work ? (') 
 
 Had the vital part of the work been taken ? (^) 
 
 And Lord Jefi'reys, in the case of Alexander v. Mackenzie ('), 
 said, " Is there reasonable evidence that the two works are 
 identical, and that the last author did not mount upon the back, 
 
 (') Matheson v. Harrod, L. R. 
 7 Eq. 270. 
 
 C) Thomas v. Turner, 33 Oh. Div. 
 292. 
 
 C) Weldon v. Diclts, 10 Oh. D. 
 252 ; Coote v. Judd, 23 Ch. D. 727. 
 
 {') Walter v. Bowe, 17 Oh. D. 708 ; 
 Trade Auxiliary Co. v. Middles- 
 borough, &c., Association, 40 Oh. D. 
 425 ; and see as to the registration 
 of newspaper proprietors under the 
 Newspaper Libel and Registration 
 Act, 1881, post, p. 473. 
 
 The British Museum, the Bod- 
 leian Library at Oxford, the Public 
 Library at Cambridge, the Library 
 
 of the Faculty of Advocates at 
 Edinburgh and the Library of Trinity 
 Oollege, Dublin, are entitled to a 
 copy of every book published, the 
 British Museum without demand, 
 the others on demand : 5 & 6 Vict, 
 c. 45, ss. 6, 7, 8. 
 
 C) 5 & 6 Vict, c. 45, 8. 19, and see 
 Hogg V. Maxwdl, L. R. 2 Ch. 316. 
 
 (f) Bowolh V. Wilkes, 1 Camp. 98. 
 
 (') Lord Eldon in Wilkins v. Aikin, 
 17 Ves. 426. 
 
 (') Vice-Chancellor Kindersley in 
 Murray v. Bogue, 1 Drew. 369. 
 
 C) 9 Scotch Sess. Gas. 2nd Series, 
 758. 
 
Chap. X.] COPTRIQHT. 323 
 
 and walk on the crutches of his predecessor, but actually used his 
 own muscular exertions in traversing the field in which he 
 made his observations ? Did he, on the whole, do so fairly and 
 honestly for himself, although he may have occasionally followed 
 in the vestigia left by his predecessor ? Or is there evidence that 
 the second writer, not going over the ground for himself, is not 
 the very cause why he has arrived at almost identical conclusions 
 with his predecessor ? " 
 
 When there are common sources of knowledge it is the Author's 
 duty of the author to consult the authorities for himself, and '^^'y- 
 not take them secondhand from some other author ; an author 
 has no right to avail himself of the labours of a fellow- 
 author (1). Thus, it was held in Kelly v. Morris (^), that the 
 compiler of a directory or guide-book containing information 
 derived from sources common to all, which must of necessity be 
 identical in all oases if correctly given, is not entitled to spare 
 himself the trouble and expense of original inquiry by adopting 
 and republishing the information contained in previous works 
 on the same subject. He must obtain and work out the infor- 
 mation independently for himself, and the only legitimate use 
 which he can make of previous works is for the purpose of 
 verifying the correctness of his results. Lord Hatherley, then 
 Sir W. Page Wood, in his judgment, said : " In the case of dic- 
 tionary, map, guide-book, or directory, where there are certain 
 common objects of information which must, if described correctly, 
 be described in the same words, a subsequent compiler is bound 
 to set about doing for himself that which the first compiler has 
 done. In the case of a road-book he must count the milestones 
 for himself. In the case of a map of a newly-discovered island, 
 he must go through the w hole process of triangulation just as 
 if he had never seen any former map, and, generally, he is not 
 entitled to take one word of the information previously pub- 
 lished, without independently working out^the matter for himself, 
 so as to arrive at the same result from the same common sources 
 of information, and the only use that he can legitimately make 
 of a previous publication is to verify his own calculations and 
 results when obtained." 
 
 The common test of piracy in these cases is to see whether Mistakes 
 the mistakes are the same in both publications. " Many cases," 
 said Lord Eldon, " have established that you cannot have better 
 
 (') Jarrold v. Houlston, 3 K. & J. v. Peninsular and Oriental Steam 
 708. Navigation Co., 26 Ch. D. 637. 
 
 (2) L. E. 1 Eq, 697; see also Ager 
 
 Y 2 
 
324 
 
 PERSONAL PROPERTY. 
 
 [Book II. 
 
 Dramatisa- 
 tion of 
 novel. 
 
 Quotation. 
 
 evidence of such copying than the circumstance which occurs 
 in several of the passages here complained of, namely, the fact 
 of blunders in the original book being transferred into the book 
 which is accused of piracy " Q). 
 
 Any one may dramatize a novel after it has been published, 
 so long as he does not print or otherwise multiply copies of it, 
 and in a very recent case in which the authorities are dis- 
 cussed (2) the defendant was restrained from multiplying copies 
 of his play which contained many passages copied or colourably 
 altered from a novel by Mrs. Prances Hodgson Burnett called 
 ' Little Lord Pauntleroy,' which he had dramatized. In this 
 case the judge said : " The defendant has in fact dramatized 
 the novel, and caused his play to be performed on the stage ; 
 of this the plaintiffs do not complain; the alleged infringe- 
 ment consists in this, that for the purpose of producing the 
 play the defendant has made four copies of the play, either in 
 manuscript or by aid of a type-writer. It is in evidence, and I 
 have satisfied myself by actual comparison, that very consider- 
 able passages in the play have been extracted almost verbatim 
 from the novel. Some of the passages so extracted are promi- 
 nent and striking parts of the dialogue contained in the novel." 
 
 Copyright may be infringed by excessive quotation. Whether 
 the limits of fair quotation have been transgressed is a question 
 to be decided by the particular facts of each case. Lord 
 Eldon said in Mawman v. Tegg (3) : " Quotation is necessary for 
 the purpose of reviewing ; and quotation for such a purpose is 
 not to have the appellation of piracy affixed to it ; but quotation 
 for piracy may be carried to the extent of manifesting piratical 
 intention." And in a recent case before the House of Lords (f) 
 Lord Hatherley said : " Books are published with an expecta- 
 tion, if not a desire, that they will be criticised in reviews, and, 
 if deemed valuable, that parts of them will be used as afford- 
 ing illustrations by way of quotation, or the like ; and if the 
 quantity taken be neither substantial nor material, if, as it has 
 been expressed by some judges, a fair use only be made of the 
 publication, no wrong is done and no action can be brought.'' 
 
 It is an offence under the Act for any person other than the 
 
 Q) Mawman v. Tegg, 2 Buss. 394. 
 In Kelly v. Morris, L. E. 1 Bq. 697, 
 Sir W. Page Wood said: " From the 
 identity of the mistakes in the number 
 of houses and the names of their 
 occupants, and also in the breaks 
 and intersections of the streets, 1 
 hold it to be clearly established that 
 
 the defendant has taken his list of 
 streets from the plaintiff's directory." 
 
 C) Warne v. Seebohm, 39 Ch. D. 
 73. 
 
 (=) 2 Eussell, 385. 
 
 C) Chatterton v. Cave, 3 App. Cas. 
 492. 
 
Chap. X.] OOPYBiaET. 325 
 
 proprietor of the oopyright, or some person authorised by him 
 to import into the United Kingdom for sale or hire printed 
 copies of any hook piiblished in the United Kingdom wherein 
 there is copyright (^). 
 
 In any action for piracy or other offence under the Act, the 
 defendant is bound to give notice of the objections to the 
 plaintiff's title upon which he intends to rely (f). 
 
 The statute enacts that all copyright shall be deemed personal Nature of 
 property, and be transmissible by bequest, or in case of intes- '^opy'S"'- 
 tacy shall be subject to the same law of distribution as other 
 personal property (3). 
 
 The copyright in dramatic representations was first given by Dramatic 
 the Act of 3 & 4 Wm. 4, c. 15, and was extended by sect. 20 of y^''^""™*'" 
 5 & 6 Vict. c. 45 to musical compositions. The same Act also 
 extended the term of copyright therein to the same length as 
 that in literary works (see ante, p. 321). The penalty imposed 
 by the first mentioned Act for each unauthorised representation 
 of a dramatic piece is a fine of not less than forty shillings, or 
 the full amount of the benefit arising from such representation, 
 or the injury or loss sustained by the plaintiff therefrom. The 
 penalty to be awarded for each unauthorised performance of a 
 musical composition is now in the discretion of the judge (*). 
 Under 5 & 6 Vict. c. 45, s. 20, it is sufficient in the case of both 
 dramatic pieces and musical compositions in manuscript to 
 register only — 
 
 1. The title of the composition ; 
 
 2. The name and place of abode of the author or composer ; 
 
 3. The name and place of abode of the proprietor ; 
 
 4. The time and place of first representation or performance. 
 The assignment of the right of representation as distinguished 
 
 from the copyright of any book consisting of or containing a 
 dramatic piece or musical composition need not be registered. 
 The assignment of the right of representation and the consent 
 of the owner of the copyright to the representation must be in 
 writing. In a very recent case before the Court of Appeal, the 
 facts were as follows : The plaintiff was employed by the 
 defendant, the proprietor of a music-hall, as the conductor of 
 the orchestra at a weekly salary. He had been in the habit of 
 composing music for ballets performed there, and he had 
 
 (') 5 & 6 Vict. c. 45, s. 17. non-delivery of copies to British 
 
 (2) 5 & 6 Vict. 0. 45, o. 16. No Musenm. 
 
 action (s. 26) is to be brought after (^) 5 & 6 Vict. c. 45, s. 25. 
 
 twelve months from the date of the (*) 51 & 52 Vict. o. 17. 
 offence. '■ But this does not apply to 
 
326 PEB80NAL PROPERTY. [Book II. 
 
 received suras of varying amounts from the defendant in respect 
 of such compositions. Having composed the music for the then 
 Christmas ballet, he threw up his engagement during the time 
 the piece was running and took away the score, but it was after- 
 wards arranged that the plaintiff should give up the score on 
 payment of £20. The defendant then continued the perform- 
 ance with the music, and the plaintiff having brought an action 
 to recover penalties for such subsequent performances, the 
 Court decided that in the absence of any assignment or consent 
 to the representation of the composition in writing given by 
 the plaintiff, the performances were contrary to the right of the 
 author, and the action was maintainable (^). 
 Drawings, By the statute 25 & 26 Vict. c. 68, a copyright was given to 
 the author, being a British subject or resident within the 
 dominions of the Crown, of every original drawing, painting, 
 and photograph which shall have been made either in the British 
 dominions or elsewhere (^). The duration of the copyright 
 is the same as in literary works (ante, p. 321). On a sale by the 
 author of the picture, drawing, or negative of the photograph, 
 he does not retain the copyright unless it is expressly reserved 
 to him by an agreement in writing signed by the vendee. Nor 
 does the vendee obtain the copyright, unless it be expressly 
 assigned to him in writing signed by the person so selling or 
 disposing of the picture or by his agent. 
 
 All assignments of copyright under this statute are to be made 
 by some note or memorandum signed by the proprietor or by his 
 agent appointed for that purpose in writing (^). 
 
 Penalties for offences under the Act are imposed by sect. 6, 
 and the proprietor is also expressly permitted to recover 
 damages by action (in addition to the penalties) under sect. 11. 
 In an action to recover penalties and damages for infringement 
 of the plaintiff's copyright which came recently beiore the 
 Court of Appeal, it was decided that no penalties under the Act 
 could be recovered for any infringement which had taken place 
 before the date of registration, but that for all unauthorised copies 
 sold after registration damages might be recovered, although 
 such copies had been made before the date of registration (*). 
 
 (') Eaton V. Lake, 20 Q. B. D. 378. of the copyright, and of every suhse- 
 
 (^) Kenrieh & Co. v. Lawrence & quent asBignment, is entered, showiDg 
 
 Co., 25 Q. B. D. 99. the name and place of abode of tho 
 
 Q) A book called the Kegister of person in whom such copyright is 
 
 Proprietors of Copyright in paint- vested and giving a short description 
 
 iiigs, drawings and photographs, is of the work. 
 
 kept at the hall of Ihe Stationers' (•) Tuck v. Priester, 19 Q. B. D. 
 
 Company, in which a memorandum 18, 629. 
 
Chap. X.] OOPYHIGET. 327 
 
 Sect. 7 enacts that no person shall do any of the following 
 acts under pain of forfeiting to the person aggrieved a sum not 
 exceeding £10, or double the full price of the work, and all 
 such works shall he forfeited : 
 
 First, no person shall fraudulently sign, or otherwise affix or Paintings, 
 fraudulently cause to be signed, or otherwise affixed, to or upon Drawings, 
 any painting, drawing, or photograph, or the negative thereof, 
 any name, initials, or monogram. 
 
 Secondly, no person shall fraudulently sell, publish, exhibit, 
 or dispose of, or offer for sale, exhibition, or distribution, any 
 painting, drawing, or photograph, or negative of a photograph, 
 having thereon the name, initials, or monogram of a person who 
 did not execute or make such work. 
 
 Thirdly, no person shall fraudulently utter or dispose, or put 
 off, or cause to be uttered or disposed of, any copy or colourable 
 imitation of any painting, drawing, or photograph, or negative 
 of a photograph, whether there shall be subsisting copyright 
 therein or not, as having been made or executed by the author 
 or maker of the original work from which such copy or imita- 
 tion shall have been taken. 
 
 Fourthly, where the author or maker of any painting, drawing, 
 or photograph, or negative of a photograph, shall have sold or 
 otherwise parted with the possession of such work, if any 
 alteration shall afterwards be made therein by any other 
 person by addition or otherwise, no person shall be at liberty 
 during the life of the author or maker of such work, without 
 his consent to make or knowingly to sell, or publish, or offer for 
 sale such work, or any copies of such work so altered as afore- 
 said, or of any part thereof as or for the unaltered work of 
 such author or maker. 
 
 The copyright in engravings and prints is secured by Engravings 
 three statutes— 8 Geo. 2, c. 13 ; 7 Geo. 3, c. 38 ; and 17 Geo. 3, ^""^ P""^*^' 
 c. 67 — to the author or his assigns for a period of twenty-eight 
 years. The benefit of these statutes was extended to lithographs 
 by 15 & 16 Vict. c. 12, s. 14. 
 
 There is also a copyright in sculptures, models, casts, and Sculptures, 
 busts for a like period under 54 Geo. 3, c. 56, by which it was °' 
 enacted that the assignment must be by deed, signed and attested 
 by two credible witnesses. 
 
 The law with regard to unpublished works may be considered 
 as clearly settled. The ideas of an author, as was said in an 
 old case on the subject, are like " birds in a cage, which none 
 but the owner can have a right to let fly, for till he thinks 
 proper to emancipate them they are under his own dominion." 
 
328 PERSONAL PROPERTY. [Book II: 
 
 Every man has a right, so long as his ideas are unpublished 
 to publish them or not as he thinks fit, and to hinder their 
 publication, either wholly or partially, by any one else. This 
 principle received a striking illustration in a well-known leading 
 case (1) on the subject, in which the late Prince Consort obtained 
 an injunction to restrain the publication of copies of certain 
 unpublished etchings, and also of a descriptive catalogue of 
 them. The Lord Chancellor, in delivering judgment, said : " It 
 being admitted that the defendant could not publish a copy — 
 that is, an impression — of the etchings, how in principle does a 
 catalogue, list, or description differ ? A copy or impression of 
 the etching would only be a means of communicating know- 
 ledge and information of the original, and does not a list and 
 description do the same? The means are different, but the 
 object and effect are similar ; for in both the object and effect is 
 to make known to the public more or less of the unpublished 
 work and composition of the author, which he is entitled to 
 keep wholly for his private use and pleasure, and to withhold 
 altogether, or so far as he may please, from the knowledge of 
 others." 
 Eights of The Crown has prerogative copyright in the following 
 the Crown. ]books :— The English translation of the Bible, the Book of 
 Common Prayer, the Statutes, Orders of the Privy Council, 
 State Proclamations, and other State documents. It formerly 
 claimed the sole right of printing Almanacs, Lilly's Latin 
 Grammar, the Year Books and Eeports of Judicial Proceed- 
 ings, but these claims have long since been exploded or 
 abandoned. The Crown's exclusive right of printing and pub- 
 lishing Acts of Parliament is rested by Blackstone on grounds 
 of public policy. The right to print, publish, and sell the 
 Bible, the New Testament, and the Book of Common Prayer 
 was granted to the Universities of Oxford and Cambridge, con- 
 currently with the Queen's printer, by letters patent of 13 Eliz. 
 The English and Scotch Universities, the colleges of Eton, 
 Westminster, and Winchester, and Trinity College, Dublin, also 
 possess the exclusive right of printing and reprinting books 
 bequeathed or otherwise given to them by their respective 
 authors. 
 
 (') Prince Albert v. Strange, 2 De G. & S. 652 ; 1 Mao. & G. 25. 
 
( 329 ) 
 
 CHAPTEE XI. 
 
 Bills of Sale. 
 
 In commencing tlie consideration of the diiScult and intri- Principle 
 cate snbject of bills of sale, it may be desirable first to point out "^ to Mul 
 the leading principle upon which the law with regard to this of sale. 
 peculiar class of instruments is founded. The possession of 
 goods and chattels raises a presumption which does not exist 
 with regard to the possession of real estate. A person in 
 possession of real estate is, as all the world knows, oftener a 
 tenant than an owner of the property. The possessor of chattels, 
 on the other hand, is generally assumed to be the proprietor. 
 If the chattels are not his, he may obtain a fictitious credit on 
 the strength of them, and creditors have therefore a right to be 
 protected against the frauds which arise from their secret 
 alienation. This principle had been to a considerable extent 
 recognized law before it was embodied in any enactment, but 
 it was not until 1864 that an Act was passed (subsequently 
 amended by another passed in 1866) which, after reciting that 
 "frauds were frequently committed upon creditors by secret 
 bills of sale of personal chattels, whereby persons are enabled 
 to keep up the appearance of being in good circumstances," 
 provided that all bills of sale, as therein defined, should be void 
 against execution creditors, and tbe trustees in bankruptcy of 
 the grantor, unless registered. 
 
 The Acts of 1864 (17 & 18 Vict. c. 36) and 1866 (29 & 30 Present 
 Vict. c. 96) are repealed, with the usual saving clauses as to ' 
 instruments executed under their provisions, and the present 
 state of the law is that bills of sale executed between the 1st of 
 January, 1879, and the 1st of November, 1882, are governed by 
 the Act of 1878 (41 & 42 Vict. c. 31), and those executed on and 
 after the 1st of November, 1882, by the joint operation of the 
 Acts of 1878 and 1882 (i). 
 
 What is a bill of sale ? In attempting to answer this question, Wliat is a 
 we shall first consider the general definition of this species of '"!'■ "f 
 
 (') 41 & 42 Vict. c. 31 ; 45 & 46 of the Act of 1882, by the Bills of 
 Vict. c. 43. Certain instruments are Sale Act, 1890 (53 & 54 Vict. c. 53). 
 excepted from the provisions of scot. 9 See post, p. 334. 
 
330 
 
 PERSONAL PROPERTY. 
 
 [Book II. 
 
 Definition. 
 
 Statutory 
 definition 
 of bills of 
 
 instrument, and subsequently tlie statutory definition with 
 such light as has been thrown upon the many obscurities and 
 difficulties of the subject by judicial decisions. A deed or other 
 instrument transferring the property in personal chattels Q), is 
 usually called a bill of sale. Bills of sale are either absolute (f), 
 entitling the grantee to immediate possession ; or conditional, 
 entitling him to take possession on the performance or non- 
 performance of some condition, e.g. a mortgage, where the 
 mortgagor is entitled to retain possession until default. It is 
 needless to point out that bills of sale of the latter class, i.e. 
 conditional bills of sale given as security for money, are infi- 
 nitely more important and numerous than those of the former 
 class. Bills of sale given by way of security for the repayment 
 of money are subject both to the Act of 1878 and the Act of 
 1882, the provisions of which we shall presently consider, and 
 must be in accordance with the form prescribed by the Act of 
 1882. Bills of sale which are not given by way of security 
 may be in any form, and are in nowise subject to the Act of 
 1882. 
 
 Sect. 4 of the BUls of Sale Act of 1878 defines biUs of sale to 
 include : 
 
 (1) Bills of sale, assignments, transfers, declarations of trust 
 without transfer, inventories of goods with receipt thereto 
 attached, or receipts for purchase-moneys of goods, and other 
 assurances of personal chattels. 
 
 (2) Powers of attorney, authorities, or licences to take pos- 
 session of personal chattels as security for any debt. 
 
 (3) Any agreement, whether intended or not to be followed 
 by the execution of any other instrument, by which a right in 
 equity to any personal chattels, or to any charge or security 
 thereon shall be conferred. And sect. 6 also makes subject to the 
 Act, every attornment, instrument, or agreement, not being a 
 mining lease, whereby a power of distress is given or agreed to 
 be given by any person to any other person by way of security 
 for any present, future, or contingent debt or advance, and 
 whereby any rent is reserved or made payable as a mode of pro- 
 viding for the payment of interest on such debt or advance, or 
 otherwise for the purpose of such security only. But this is 
 not to extend to a mortgage of real estate, which a mortgagee in 
 
 (') See as to gift of chattels, 
 Cochrane v. Moore, 25 Q. B. D. 57, 
 where the authorities are elaborately 
 reviewed. 
 
 C) An absolute bill of sale com- 
 
 prehends any written or printed dis- 
 position tmier vivos of corporeal per- 
 sonalty, other than a transfer by way 
 of security : Cavanagh's Law of 
 Money Securities, 2nd ed. p. 224. 
 
Chap. XL] BILL8 OF SALE. 331 
 
 possession has leased to the mortgagor at a fair and reasonable 
 rent (i). 
 
 Only bills of sale of " personal chattels " need be registered 
 under the Acts. Personal chattels are defined to be goods, 
 furniture, and other articles capable of complete transfer by 
 delivery, and (when separately assigned or charged) fixtures 
 and growing crops (^). 
 
 Chattels personal also include for the purposes of the Act Trade 
 trade machinery, and any mode of disposition of trade machinery ™*'^''i'>«'"y- 
 by the owner thereof, which would be a bill of sale as to any 
 other personal chattels, is to be deemed a bill of sale within 
 the meaning of the Act. Tor the purposes of the Act " trade 
 machinery " means the machinery used in or attached to any 
 factory or workshop, exclusiye of the fixed motive powers, such 
 as the water-wheels, and steam-engines, and the steam-boilers, 
 donkey-engines, and other fixed appurtenances of the said motive 
 powers, and exclusive of the fixed power machinery, such as 
 shafts, wheels, drums, and their fixed appurtenances, which 
 transmit the action of the motive powers, and exclusive of the 
 pipes for steam, gas, and water in the factory or workshop. 
 The machinery so excluded is not to be deemed personal chattels 
 within the meaning of the Act (3). 
 
 Every bill of sale, given as security for money, must have Bill of sale 
 annexed to it, or written on it, a schedule containing an inven- °, ^^^, „ 
 tory of the personal chattels comprised in the bill of sale ; and property, 
 such bill of sale, save as thereinafter mentioned, shall have 
 eifect only in respect of the personal chattels specifically 
 described in the said schedule ; and shall be void, except as 
 against the grantor, in respect of any personal chattels not so 
 specifically described. The question in each case is whether, 
 considering the nature of the goods and the circumstances of the 
 
 (') 41 & 42 Vict. c. 31, s. 6. See any govercment, or in the capital or 
 
 as to the attornment clause : Re property of incorporated or joint 
 
 Willis, 21 Q. B. D. 384 ; Mumford v. stock companies, choses in action, any 
 
 Collier, 25 Q. B. D. 279 (ante, p. stock or produce upon any farm or 
 
 102). lands, which by virtue of any cove- 
 
 {') The following are not personal nant or agreement, or of the custom 
 
 chattels within the Acts :— of the country, ought not to be 
 
 Chattel interests in real estate, removed from any farm : Bills of Sale 
 
 fixtures (except trade machinery) Act, 1878, s. 4. 
 
 when assigned together with a free- {') Bills of Sale Act, 1878, s. 5, 
 
 hold or leasehold interest in any J?e Yafes, 38 Ch. D. 112, where it was 
 
 land or building to which they are held that a mortgage of freeholds, 
 
 afBxed, growing crops when assigned with fixtures which were not speoifl- 
 
 with any interest in the land on cally mentioned, did not operate as a 
 
 which they grow, shares or interests bill of sale, and therefore did not 
 
 in the stock, funds, or securities of require registration. 
 
332 PERSONAL FROPERTT. [Book II. 
 
 case, the specific goods are sufficiently described. There must 
 be a business description (}). 
 Attestation Every bill of sale must be duly attested and registered under 
 tratioif' ^" ^^^ principal Act within seven clear days after its execution, or 
 if it is executed in any place out of England then within seven 
 clear days after the time at which it would in the ordinary 
 course of post arrive in England, if posted immediately after the 
 execution thereof. It has been decided that a bill of sale which 
 does not contain both the address and the description of the 
 witness attesting it, is not made in accordance with the form in 
 the schedule (^). The bill of sale must also truly set forth the 
 consideration for which it was given ; otherwise it shall be void in 
 respect of the personal chattels comprised in it (^). 
 Exceptions A great change was made by the Bills of Sale Act, 1882, with 
 specified regard to after-acquired property by providing that with the 
 exceptions specified in the Act, a bill of sale shall be void, 
 except as against the grantor, in respect of any personal 
 chattels specifically described in the schedule thereto of which 
 the grantor was not the true owner at the time of the execution 
 of the bill of sale. 
 
 It has been decided in the House of Lords that the section 
 must be read in connection with sect. 9 Qpost, p. 333), and that a 
 bill of sale is bad in toto as being contrary to the statutory form, 
 if the goods be not specifically described, notwithstanding this 
 section, and therefore that a bill of sale was bad, which pro- 
 fessed to assign future chattels not specifically described in the 
 inventory. 
 
 In this case, Lord Halsbury said : An essential condition of 
 the deed appears to me to be a present assignment of goods 
 capable of specific description and present assignment. It is 
 obvious that a bill of sale which purports to assign after-acquired 
 property, whether in the form of a covenant (its true legal 
 effect) or as stated specifically in words, as part of the security, 
 is not in accordance with the form, and therefore void (f). 
 
 The exceptions from the Act, i.e. the " after-acquired pro- 
 perty " which may be assigned by bills of sale are as follows : — 
 (1) Any growing crops separately assigned or charged where 
 
 (') 45 & 46 Vict. c. 43, s. 4 ; Witt Q) 41 & 42 Vict. o. 31, ss. 8, 10 ; 
 
 V. Banner, 20 Q. B. D. 114; and see 45 & 46 Vict. c. 43, s. 8; and see 
 
 Carpenter v. Deen, 23 Q. B. D. 566 ; Tuck v. Southern Counties Deposit 
 
 Eickley v. Greenwood, 25 Q. B. D. Bank, 42 Ch. D. 471. 
 
 277. (n Thomas v. Kelly, 13 App. Cas. 
 
 C) Parsons v. Brand. Coulson v. 506. 
 Dickson, 25 Q. B. D. 110. 
 
Chap. XI.] BILLS OF SALE. 333 
 
 such crops were actually growing at the time when 
 the bill of sale was executed. 
 
 (2) Any fixtures separately assigned or charged, and any 
 plant, or trade machinery where such fixtures, plant, 
 or trade machinery are used in, attached to, or brought 
 upon any land, farm, factory, workshop, shop, house, 
 warehouse, or other place in substitution for any of the 
 like fixtures, plant, or trade machinery specifically de- 
 scribed in the schedule to such bill of sale. 
 
 The following is the form of bill of sale given in the schedule 
 to the Act : — 
 
 This indenture, made the day of between A. B., 
 
 of of the one part, and G. D., of of the other part, 
 
 witnesseth that in consideration of the sum of £ now paid 
 
 to A. B. by O. D., the receipt of which the said A. B. hereby 
 acknowledges \or whatever else the consideration may he~\, he, the 
 said A. B., doth hereby assign unto C. D., his executors, admi- 
 nistrators, and assigns, all and singular the several chattels and 
 things specifically described in the schedule hereto annexed, by 
 way of security for the payment of the sum of £ and 
 
 interest thereon at the rate of per cent, per annum [or 
 
 whatever else may he the rate\ And the said A. B. doth further 
 agree and declare that he will duly pay to the said 0. D. the 
 principal sum aforesaid, together with the interest then due by 
 equal payments of £ on the day of [or 
 
 whatever else may he the stipulated time or times of payment]. And 
 the said A. B. doth also agree with the said C. D. that he will 
 [here insert terms as to insurance, payment of rent or otherwise, which 
 the parties may agree to for the maintenance or defeasance of the 
 security']. 
 
 Provided always that the chattels hereby assigned shall not 
 be liable to seizure or to be taken possession of by the said 
 C. D. for any cause other than those specified in sect. 7 of the 
 Bills of Sale Act (1878) Amendment Act, 1882. 
 
 In witness, &c. 
 Signed and sealed by the said A. B. in the presence 
 of me, E. F. [add witness's name, address, and 
 description]. 
 
 Sect. 9 of the Bills of Sale Act, 1882, provides, with reference Form of 
 to the form of a bill of sale, that a bill of sale made or given by '^"^ °^ *'''^- 
 way of security for the payment of money by the grantor 
 thereof is to be void unless made in accordance with the form 
 in the schedule annexed to the Act. 
 
334 PERSONAL PBOPERTT. [Book II. 
 
 It is, however, provided by the Bills of Sale Act, 1890 Q), 
 that an instrument given or executed at any time prior to such 
 deposit, reshipment, or delivery as thereinafter mentioned, 
 hypothecating or declaring trusts of imported goods during the 
 interval between the discharge of the goods from the ship in 
 which they are imported and their deposit in a warehouse, 
 factory, or store, or their being reshipped for export or delivered 
 to a purchaser not being the purchaser giving or executing 
 such instrument, shall not be deemed a bill of sale within the 
 meaning of sect. 9 of the Bills of Sale Act, 1882. 
 
 In a leading case upon the form of a bill of sale the Court 
 said : A bill of sale is surely in accordance with the prescribed 
 form if it is substantially in accordance with it, if it does not 
 depart from the prescribed form in any material respect. But 
 a divergence only becomes substantial or material when it is 
 calculated to give the bill of sale a legal consequence or effect, 
 either greater or smaller than that which would attach to it 
 if drawn in the form which has been sanctioned, or if it departs 
 from the form in a manner calculated to mislead those whom it 
 is the object of the statute to protect. 
 
 In this case a test was established which, as stated by the 
 Court of Appeal, " contains no element of uncertainty, is one 
 which every lawyer throughout the kingdom is corapetent to 
 apply, and is based upon a method of interpretation familiar to 
 our Courts,'' Whatever form the bill of sale takes the form 
 adopted by it in order to be valid must produce, not merely the 
 like effect, but the same effect, that is to say, the legal effect, 
 the whole legal effect, and nothing but the legal effect which it 
 would produce if cast in the exact mould of the schedule. 
 Form of " We must take the form, interpreted by the light of the Act, 
 
 bill of sale, on the one hand, the instrument to be discussed on the other ; 
 and we must then consider whether, but for the avoidance 
 inflicted by sect. 9 of the statute, the instrument as drawn will, 
 in virtue either of addition or omission, have any legal effect 
 which either goes beyond or falls short of that which would 
 result from the statutory form, or whether the instrument in 
 respect of such would be calculated reasonably to deceive those 
 for whose benefit the statutory form is provided. If so, the 
 variance is material, and the bill of sale is not in substantial 
 accordance with the statutory precedent " (^). 
 
 " So, purely," said Lord Macnaghten, " is it a question of form 
 
 (') 53 & 54 Vict. c. 53. 17 Q. B. D. 259, 270, 271. 
 
 (') Ex parte Stanford. In re Barber, 
 
Chap. XI.] BILLS OF SALE. 335 
 
 that I should be inclined to doubt whether a bill of sale would 
 not be void which omitted the proviso referring to sect. 7, 
 though I cannot see that the omission would alter the legal 
 effect of the document in the slightest degree, or mislead any- 
 body. It has been held, and I think rightly, that sect. 9 does 
 not require a bill of sale to be a verbal and literal transcript of 
 the statutory form. The words of the Act are ' in accordance 
 with the form,' not ' in the form.' But then comes the question, 
 when is an instrument which purports to be a bill of sale not in 
 accordance with the statutory form ? Possibly when it departs 
 from the statutory form in anything which is not merely a 
 matter of verbal difference. Certainly, I should say, when it 
 departs from the statutory form in anything which is plainly a 
 characteristic of that form. Now it seems to me that if there 
 is any one thing which is plainly a characteristic of the statu- 
 tory form it is this : that in the body of the instrument there 
 is no substantive description of the things intended to be 
 assigned. roUowing the directions contained in sect. 4 the 
 statutory form relegates to a schedule the description of the 
 personal chattels intended to be comprised in the bill of 
 sale " (1). 
 
 " It seems to me clear that the Act of 1882 does require that 
 the schedule to a bill of sale shall contain, and that the body of 
 the bill of sale shall not contain the description of the personal 
 chattels intended to be comprised therein " (2). 
 
 A bill of sale drawn mainly in the statutory form but which 
 contained a clause including all the tenant-right, valuation, 
 goodwill, tillages, and interest of the mortgagor in a certain 
 farm was decided to be void (^). 
 
 Bills of sale have been held to be void in a great number of Void bills 
 cases, among which we mention the following, viz. : — °^ ^^'"^^ 
 
 An agreement to perform the covenants and stipulations in a 
 recited indenture (*), where the covenants and stipulations did 
 not appear in the bill of sale. 
 
 The use of the words " beneficial owners " as introducing the 
 covenants implied by the Conveyancing Act (^). 
 
 A lump sum as bonus and interest being stated instead of the 
 rate of interest (^). 
 
 (') Thomas v. Kelly, 13 App. Cas. (') Cochrane'V.Entwistle,25Q,.B.T). 
 
 619. 116. 
 
 (^) Bills of Sale Amendment Act, C) Lee v. Barnes, 17 Q. B. D. 77. 
 
 1882,3.8; smd see MobertsY. Roberts, (*) Ex parte Stanford. In re 
 
 13 Q. B. D. 794 ; Hughes v. Little, Barber, 17 Q. B. D. 259. 
 
 18 Q. B. D. 32 ; Hichardson v, (°) Myers v. ElUot, 16 Q. B. D. 
 
 Harris, 22 Q. B. D. 268. 526. 
 
336 PERSONAL PROPERTY. [Book n. 
 
 A declaration that the grantees, who were auctioneers, should 
 have power on seizure and sale of the chattels to charge com- 
 mission as if they were selling for the grantor Q^). 
 
 A covenant for payment of rent, rates, taxes, and outgoings 
 of the premises, with power to the grantee to pay them if not 
 paid within seven days after due and to add any such payment 
 to his security (f). 
 
 A provision that upon default of payment of an instalment 
 and sale, a purchaser shall not be bound to inquire whether any 
 such default was made (f). 
 
 A declaration that the mortgagee on a sale should first apply 
 the proceeds to arise from such sale, to pay the expenses 
 attending such sale or otherwise incurred in relation to the 
 security (*). 
 
 A bill of sale containing an assignment of after-acquired 
 chattels (^). 
 
 To attempt to comment on all the subtle points which have 
 been decided with reference to bills of sale would be simply 
 impossible within our present limits. Attention may, however, 
 be directed to the following decisions. The following provisions, 
 being " for the maintenance or defeasance of the security," may 
 be inserted in a bill of sale : — 
 
 Stipulations by grantor to insure, to pay and produce receipts 
 for premiums, and that on default grantee may do so, and that 
 sums so paid shall be repayable by the grantor on demand, 
 and that until repayment such sums shall be a charge on pro- 
 perty («). 
 
 Covenant to pay principal in one entire sum at a specified 
 time and interest after default ('). 
 
 Express power to seize for any of the causes specified in sect. 7 
 of Bill of Sale Act, 1882, but for no other cause, and for that 
 purpose to break open windows and doors, &c. (*). 
 Considera- Other important changes made by the Bills of Sale Act of 
 1882 are that the personal chattels assigned under a bill of sale 
 cannot be seized by the grantee for any cause except for the five 
 
 tion. 
 
 O Furher v. Cdbh, 18 Q. B. D. («) MxpaHe Stanford, VI Q,.'B.'D. 
 
 494. 259. 
 
 (2) Bianchi v. Oford, 17 Q. B. D. (') Re Morritt, 18 Q. B. D. 222 ; 
 
 484. and see as to payment by instalments, 
 
 (') Slaiberg v. Parsons, 17 Q. B. D. Easlewood v. Consolidated Credit Co., 
 
 336; Blaibergy.Beehett, 18 Q. B. D. 25 Q. B. D. 555. 
 
 96. C) Watkins v. Mvans, 18 Q. B. D. 
 
 (*) Calvert v. Tlwmas, 19 Q. B. D. 386; and see remarks of Lord Esher 
 
 204. on this case, Calvert v. Tliomas, 19 
 
 Q) Tliomas v. Kelly, 13 App. Cas. Q. B. D. 204. 
 506. 
 
Chap. XI.] 
 
 BILLS OF SALE. 
 
 337 
 
 causes specified in the Act ('), and that a bill of sale must be 
 made or given for a consideration of not less than £30 (2). 
 
 Upon registration the bill of sale must be accompanied by an Registra- 
 affidavit stating the time of such bill of sale being made or 
 given, and of its due execution and attestation and a descrip- 
 tion of the residence and occupation of the persons making or 
 giving the same, and of every attesting witness to such bill of 
 sale (3). 
 
 The registration of a bill of sale must be renewed every five 
 years, and the omission to renew it renders the bill of sale 
 wholly void (*). 
 
 When a bill of sale is given subject to any defeasance or con- Defea- 
 dition or declaration of trust not contained in the body thereof, ^'""'^> '^^ 
 such defeasance, condition, or declaration is deemed to be part 
 of the bill, and must be written on the same paper or parchment 
 before registration (^). 
 
 (') The causes specified in the Act 
 for which personal chattels may be 
 seized or taken possession of, are as 
 follows : — 
 
 Personal chattels assigned under a 
 bill of sale shall not be liable to be 
 seized or taken possession of by the 
 grantee for any otiier than tlie follow- 
 ing causes : — ■ 
 (1.) If the grantor shall make de- 
 fault in payment of the sum or 
 sums of money thereby secured 
 at the time therein provided for 
 payment, or in the performance 
 of any covenant or agreement 
 contained in the bill of sale and 
 necebsary for maintaining the 
 security ; 
 (2.) If the grantor shall become a 
 bankrupt, or suffer the said goods 
 or any of them to be distrained 
 for rent, rates, or taxes ; 
 (3.) If the grantor shall fraudu- 
 lently either remove or suffer the 
 said goods, or any of them, to 
 be removed from the premises; 
 (4.) If the grantor shall not, with- 
 out reasonable excuse, upon de- 
 mand in wi'iting by the grantee, 
 produce to him his last receipts 
 for rent, rates and taxes ; 
 (5.) If execution shall have been 
 levied against the goods of the 
 grantor under any judgment at 
 law: 
 Provided that the grantor may 
 within five days from the seizure or 
 
 VOL. I. 
 
 taking possession of any chattels on 
 account of any of the above-mentioned 
 causes apply to the High Court, or 
 to a judge thereof in chambers, and 
 such Court or judge, if satisfied that 
 by payment of money or otherwise 
 the said cause of seizure no longer 
 exists, may restrain the grantee from 
 removing or selling the said chattels, 
 or mav malie such other order as may 
 seem just. (Bdls of Sale Act, 1S82, 
 s. 7.) 
 
 (2) Davis V. UsTier, 12 Q. B. D. 
 492 
 
 C) Bills of Sale Act, 1878, s. 10. 
 See as to what is sufficient descrip- 
 tion. Reed on Bills of Sale, 7th ed. 
 p. 150, et seq, ; see also Greenham v. 
 Child, 24 Q. B. D. 29 ; Central Bank 
 of London v. JBawlcins, 62 L. J. 901, 
 where a bill given in an assumed 
 name, by which the grantor was 
 known and recognised, was held to 
 be duly registered. 
 
 C) Fenton v. Bhjthe, 25 Q. B. D. 
 417. The renewal of the registration 
 is effected by filing with the regis- 
 trar an affiilavit stating the date of 
 the bill of sale, and of the last regis- 
 tration thereof, and the nami s, resi- 
 dences and occupations of the parties 
 thereto as stated therein, and that 
 the bill of sale is still a subsisting 
 security: Bills of Sale Act, 1878, 
 s. 11. 
 
 C) Bills of Sale Act, 1878, s. 10. 
 
338 PERSONAL PROPERTY. [Book H. 
 
 The transfer or aBsignment of a registered bill of sale need 
 not be registered (^). 
 Assign- As book debts are not personal chattels within the principal 
 
 fiiture' ^^^ future book debts may be assigned in a bill of sale, and 
 book such assignment will he good against creditors. In the very 
 
 debts. important case of Tailby v. Official Receiver Q), the House of 
 
 Lords decided that an assignment of all future book debts in a 
 bill of sale was good. Lord Macnaghten pointed out that it 
 had long been settled that future property, possibilities and 
 expectances are assignable in equity for value. " The mode or 
 form of assignment is immaterial, provided the intention of the 
 parties is clear. To effectuate the intention an assignment for 
 value, in terms present and immediate, has always been regarded 
 in equity as a contract binding on the conscience of the assignor, 
 and so binding the subject-nlatter of the contract when it comes 
 into existence, if it is of such a nature and so described as to be 
 capable of being ascertained and identified. The origin of the 
 doctrine that an assignment of future,book debts is not limited to 
 any specified business, inodern though it be, is lost in obscurity. 
 It was admitted by the learned counsel for the respondent that 
 a trader may assign his future book debts in a specified business. 
 Why should the line be drawn there ? Between men of full 
 age and competent understanding ought there to be any limit 
 to the contract of purchase but that imposed by positive law or 
 dictated by considerations of morality or public policy? The 
 limit proposed is purely arbitrary, and I think meaningless 
 and unreasonable. The rule laid down by the Court of Appeal 
 would not help to identify or ascertain the subject-matter of the 
 contract in any CHse. It might have the opposite effect. It 
 would be no benefit to the assignor's general creditors. It might 
 prevent a man from raising money on the credit of his expecta- 
 tions in his existing business on that which is admitted to be 
 capable of assignment — in consequence of the obvious risk that 
 some alteration in the character of the business might impair or 
 defeat the security." 
 
 The Act does not apply to " any debentures issued by any 
 mortgage, loan, or other incorporated company, and secured 
 upon the capital stock or goods, chattels, and effects of such 
 company." (^) 
 
 (') When two bills of sale are (*) See ijead v. Jbannon, 25 Q. B. D. 
 
 given on the same chattels, either 300, ante, p. 284. In a recent case 
 
 wholly or in part, the one first regis- before the House of Lords, Lord Mac- 
 
 tered has priority : Bills of Sale Act, nagliten said : " To say that the Bills 
 
 1878, s. 10. of Sale Act (1878) Amendment Act 
 
 (2) 13 App. Gas. 523, 543. (1882) is well drawn, or that its mean- 
 
 Deben- 
 tures. 
 
Chap. XI.] 
 
 BILLS OF SALE. 
 
 339 
 
 Hiring agreements, i.e., if there be a bond fide sale and re- Hiring 
 letting on hire, are not bills of sale within the Acts, and there- '^l^l 
 foro do not require registration, neither need they be in 
 accordance with the statutory form. The true nature, how- 
 ever, and not the form of the transaction must be regarded, 
 and if the real object be merely to create a security for money, 
 the document is a bill of sale and must be registered {}). 
 
 Neither does an absolute bill of sale together with a hiring 
 agreement, if they form separate transactions, come within the 
 Acts (^). It has also been decided that the assignment of a 
 hiring agreement is not a bill of sale within the Acts (^). In a 
 recent case before the House of Lords, it was decided that an 
 agreement by which a colliery company had sold their waggons 
 to the respondents and then taken them upon hire was not a 
 bill of sale within the Acts (*). The test which was applied in 
 this case was, was there a right to redeem ? and this question 
 being answered in the negative, it was held that the Bills of 
 Sale Act had no •application. 
 
 Bills of sale are to be attested by one or more credible witness Attcsta- 
 or witnesses not being a party or parties thereto (f). And a 
 bill of sale not being by way of security must be attested by a 
 solicitor of the Supreme Court, and the attestation must state 
 that before the execution of the bill of sale the effect had been 
 explained to the grantor by the attesting witness (^). 
 
 The object of the earlier Bills of Sale Acts, said Lord 
 Herschell, was entirely different from that of 1882. The former 
 enactments were designed for the protection of creditors and 
 to prevent their rights being affected by secret assurances of 
 chattels, which were permitted to remain in the ostensible pos- 
 session of a person who had parted with his property in them. 
 The bills of sale were therefore void only as against creditors 
 
 tion. 
 
 Object of 
 
 former 
 
 Acts. 
 
 ing la reasonably clear, would be to 
 affirm a proposition to which I think 
 few lawyers would subscribe, and 
 which seems to be contradicted by 
 the mass of litigation which the Act 
 has produced, and is producing every 
 day. For my own part, the more I 
 have occasion to study the Act, the 
 more convinced I am that it is beset 
 with difficulties which can only bo 
 removed by legislation " : Thomas v. 
 Kelly, 13 App. Cas. 5()6. 
 
 (') Ex parte Emerson. Be SawMns, 
 41 L. J. (Bankoy.) 20 ; In re Watson. 
 Ex parte Official Receiver in Bank- 
 ruptcy, 25 Q. B. D. 27. 
 
 (^) Ex parte Shane. He McGinity, 
 29 Sol. Jo. 70. 
 
 {') In re Davis & Co., Ex parte 
 Bawlings, 22 Q. B. D. 193. 
 
 (*) M., S. and L. Railway Co. v. 
 North Central Wagon Co., 13 App. 
 Cas. 554 ; and see French v. Bonibe- 
 nard, 60 L. T. 49. 
 
 (') Bills of Sale Amendment Act, 
 1882, s. 10 ; and see Blankenstein v. 
 Bohertson, 24 Q. B. D. 543. 
 
 C) Bills of Sale Act, 1878, s. 10. 
 The Bills of Sale Amendment Act, 
 1882, s. 10, repeals this, but it would 
 seem only ao far as regards bills of 
 sale given by way of security. 
 
 Z 2 
 
340 PERSONAL PB0PEET7. [Book H. 
 
 Object of or their representatives. As between the parties to them they 
 1882. were perfectly valid. The purpose of the Act of 1882 was 
 
 essentially distinct. It was to prevent needy persons being 
 entrapped into signing complicated documents which they might 
 often be unable to comprehend, and 'so being subjected by their 
 creditors to the enforcement of harsh and unreasonable provi- 
 sions. A form was accordingly provided to which bills of sale 
 were to conform, and the result of non-compliance with the 
 statute was to render the bill of sale void even as between the 
 parties to it. But, this being the object, the enactment is 
 limited to bills of sale given " by way of security for the pay- 
 ment of money by the grantor thereof" (}). 
 
 (') M; S. and L. Railway Co. v. considered that there having been 
 
 North Central Wagon Co., 13 App. an absolute or hand fide transfer of 
 
 Oas. 554, 560. the property, a bill of sale which had 
 
 The policy of the Bills of Sale been given was spent and satisfied, 
 
 Act is also considered in Coolcson v. and that none of the Bills of Sale 
 
 Swire, 9 App. Cas. 653, where it was Acts had any application. 
 
( 341 ) 
 
 CHAPTER XII. 
 
 Intestacy. 
 
 Before taking leave of the subject of personal property, it Effect of 
 will be necessary for us to consider the rules which govern its f)i\"ibu-° 
 descent in case of intestacy. The effect of the Statutes of tion. 
 Distribution Q-), and of the Intestates' Estates Act, 1890 Q), 
 by which this subject is regulated, may be briefly stated as 
 follows : — 
 
 The Intestates' Estates Act, 1890, introduced the following 
 important changes : — 
 
 Sect. 1 provides that the real and personal estate of every Estate not 
 man who shall die intestate after the 1st day of September, 1890, ^^g™Q '^^ 
 leaving a widow but no issue shall, in all cases where the net belonging 
 value of such real and personal estates shall not exceed £500, ^° widow. 
 belong to his widow absolutely and exclusively. 
 
 Sect. 2 provides that " where the net value of the real and Estate ex- 
 personal estates in the preceding section mentioned shall exceed £500 
 the sum of £500, the widow of such intestate shall be entitled widow to 
 to £600 part thereof absolutely and exclusively, and shall have J^l^^ f^^ 
 a charge upon the whole of such real and personal estates for £500. 
 such £500, with interest thereon from the date of the death of 
 the intestate at 4 per cent, per annum until payment." 
 
 Sect. 3 provides that " as between the real and personal How 
 representatives of such intestate, such charge shall be borne ^g^^orne" 
 and paid in proportion to the values of the real and personal as between 
 
 estates respectively." ......... 7^^X. 
 
 Sect. 4 provides that " the provision tor the vndow intended . , 
 to be made by this Act shall be in addition and without pre- vision to be 
 judice to her interest and share in the residue of the real and '" addition 
 personal estates of such intestate remaining after payment of residue. 
 the sum of £500, in the same way as if such residue had been 
 the whole of such intestate's real and personal estates, and this 
 Act had not been passed " (^). 
 
 (') 22 & 23 Oar. 2, u. 10 ; 1 Jao. 2, valuation of the real and personal 
 
 c. X7. estate as follows : — 
 
 ' O 53 & 54 Vict. c. 29. " 5. Tiie net value of such real 
 
 {') Sects. 5 and 6 of the Intestates' estate as aforesaid shall for the pur- 
 Estates Act, 1890, provide for the poses of the Act be estimated in the 
 
342 PERSONAL PROPERTY. [Book II. 
 
 Tke peTsonal estate of an intestate, domiciled in this country 
 at tke time of his death, is distributable, if lie leaves a widow 
 and family, as follows : one-third to his widow and the remaining 
 two-thirds to his children and the representatives, i.e., descend- 
 ants, of any of his children who are then dead. The children 
 of deceased children take per stirpes, i.e. they take by represen- 
 tation the share which their parent would have taken if he or 
 she had survived. In a case which came before the Court in 
 1888, it was decided that the division of personal estate among 
 descendants of an intestate is always to be per stirpes (^). 
 
 If there were no children, nor any descendants of them, then, 
 according to the law prior to the Intestates' Estates Act, 1890, 
 one moiety of the estate went to the widow. The other moiety 
 was distributable equally between the next of kin of the intes- 
 tate who were in the same degree, or their descendants. If 
 there were no next of kin it went to the Crown. The law as to 
 the interest which the widow took in her deceased husband's 
 real property has been previously considered. (See ante, 
 p. 30.) 
 
 If there is no widow, aU the estate is distributable amongst 
 the children equally, and if there is no child, then amongst the 
 next of kindred, in equal degree, of the intestate or their 
 descendants. No representation is admitted among collaterals 
 after brothers' and sisters' children. The general effect of the 
 provisions of the statute when the intestate leaves no widow 
 has been well summed up by a learned judge (the late Sir John 
 Wickens), as follows : — " The general effect of the provisions is, 
 that (supposing there to be no wife) the estate, in case there 
 are descendants, shall go between the children and their repre- 
 sentatives ; and in case there are no descendants, shall go 
 
 case of a fee simple upon the basis of tained by deducting from the gross 
 
 twenty years' purchase of the annual value thereof all debts, funeral and 
 
 value by the year at the date of the testamentary expenses of the intes- 
 
 death of the intestate as determined tate, and all other lawful liabilities 
 
 by law for the purposes of property and charges to which the said per- 
 
 tax, less the gross amount of any sonal estate shall be subject." 
 mortgage or other principal sum (') Ee Natt. Walker \. Gammage, 
 
 charged thereun, and less the value 37 Ch. D. 517, where it was also held 
 
 of any annuity or other periodical that the term " next of kindred " in 
 
 payment chargeable thereon, to be sect. 7 of 22 & 23 Car. 2, c. 10, does 
 
 valued according to the tables and not include the issue of children of 
 
 rules in the schedule annexed to the the Intestate ; but children and their 
 
 statute 16 & 17 Vict. c. 51 (the Sue- descendants are all included under 
 
 cession Duties Act, 1853), and in the the term " children," which means 
 
 ease of an estate for a life or lives children living at the death of the 
 
 according to the said tables and rules. intestate, either themselves or in 
 
 " 6. The net value of such personal their descendants, 
 estate as al'oresaid shall be ascer- 
 
Chap. XII.] INTESTACY. 343 
 
 amongst the next of kin or their representatives ; and that the 
 division is j)er capita where all the takers claim in their own 
 right ; and per stirpes where they, or some of them, claim as 
 representatives of another person. It has been long settled 
 that the word ' representatives ' in this Act includes only 
 ' descendants.' It has been further settled that where all the 
 persons entitled to claim are collaterals equally near of kin, 
 for instance, second cousins twice removed, they take per capita, 
 because they all take in their own right ; but that where there 
 are no ancestors or descendants, and the nearest of kin are 
 brothers and sisters, but there are also children of dead brothers 
 and sisters, the latter, though not of the next of kin, may claim 
 as representatives of the brother or sister from whom they 
 spring, and may stand in the place of that brother or sister for 
 the purpose of distribution ; so that the distribution is per stirpes. 
 This privilege is expressly limited by the statute, and does not 
 extend to any more remote descendants of brothers or sisters 
 than their children, and does not apply at all to any case where 
 the next of kin are all more remote than brothers and sisters. 
 There are therefore two cases provided for by the statute, viz. 
 (1), where there are children, or the representatives — i.e., the 
 descendants — of children; (2), where there are no descend- 
 ants " (1). 
 
 All children who have been advanced by the parent in his Hotchpot, 
 lifetime must bring the portion so advanced into " hotchpot," (2) 
 as it is called, so as to make the final division equal. The 
 heir-at-law is not, however, obliged to bring any estate in 
 land, which he has acquired by descent or otherwise from the 
 intestate, into hotchpot in this way (3). 
 
 The principle of hotchpot is well illustrated by a case which 
 was decided in 1878 (*). A husband had covenanted under 
 a separation deed to pay an annuity of £200 to each of his 
 daughters during their respective lives. The annuities were, 
 however, to cease if the husband and wife lived together again, 
 
 (') In re Boss's Trusts, 13 Eq. 292. case to put the lands given in frank- 
 er) The origin of the term " ijotch- marriage with the other lands in 
 pot," which corresponds to some ex- hotchpot, if the husband and wife 
 tent, though with essential differ- wiU have any part in the other lands." 
 ences, to the oollatio bonorum of the The principle on which hotchpot is 
 Eoman law, is thus given by Little- based is that " equality is equity," 
 ton : " And it seemeth that this and that for that purpose the property 
 word 'hotchpot' is in English a must be thrown together and divided, 
 pudding ; for in this pudding is not (^) 22 & 23 Car. 2, c. 10, s. 5. 
 commonly put one thing alone, but (') Hatfield v. Minet, 8 Oh. D. 
 one thing with other things together. 136, li3, 145. 
 And therefore it behoveth iu this 
 
344 
 
 PERSONAL PROPEBTT. 
 
 [Book II. 
 
 Hotchpot. 
 
 Husband 
 and wife. 
 
 ■whioli event never happened. The hushand survived his wife 
 and died intestate, and the Court of Appeal decided that so 
 nmoh of the annuities as had been paid during the father's life 
 was not to he treated as advancements, but that the value of 
 each annuity at the time of his death was to be estimated and 
 that amount brought into hotchpot. " Having regard," said 
 the Court, " to the principle of the rule of hotchpot, and the 
 words of the Act of Parliament, it is the duty of the Court to 
 divide the money as nearly as it can do, having regard to all 
 the circumstances of the case, and to have regard to all those 
 circumstances for the purpose of ascertaining what really is an 
 equal division of the estate of an intestate between his children 
 at his death so as to do equal justice between them." 
 
 The legal representatives of children to the remotest degree 
 are admitted, but they must, as we have seen above, be 
 descendants, strictly speaking. Thus it has been decided that 
 if a son of the intestate has predeceased him, leaving a widow 
 and child, the child will take the whole of his father's 
 share (^). 
 
 A husband surviving his wife is entitled to all her undisposed- 
 of personal property in possession, including her leaseholds, and 
 he is also entitled to all her undisposed-of chases in action, as her 
 administrator. It has been decided (2) that the Married 
 Women's Property Act, 1882, has not altered the devolution of 
 
 (') Price V. Strange, 6 Madd. 161, 
 162. 
 
 (^) Be Lambert's Estate. Stanton 
 V. Lambert, 39 Ch. D. 626. Neither 
 husband nor wife is entitled as next 
 of kin of the other : Milne v. Gilbert, 
 2DeG.M.&G. 715; 5DeG.M.&G. 
 510. " In this case," said Lord Jus- 
 tice Knight-Bruce, "the letter is 
 against the husband, and the spirit is 
 not with him." See further Williams 
 on Executors, 8th ed. pp. 701, 702, 
 878, et seq., 1124, 1494. 
 
 The alterations introduced into 
 the law by the two cases : Be Boss's 
 Trusts and Be Natt, to which we 
 have referred (ante, pp. 342, 343), and 
 by the Intestates' Estates Act, 1890, 
 have been summed up in some verses 
 which appeared in the ' Law Journal,' 
 October 18th, 1890, and which we 
 here reproduce, by permission, with a 
 slight verbal alteration. The original 
 verses, which are too lengthy to be 
 here given, appeared in the 'Law 
 Journal,' January 5th, 1872. 
 
 After Stanza 2, which states that in default of issue the widow will take 
 one-half of the personalty, the writer proposes to add — 
 
 This used to be so, 
 
 But now you must know. 
 
 To five hundred she'll first have a claim; 
 And if of the store 
 There remains any more, 
 
 She'll of that get her half all the same. 
 
 But if the deceased 
 ■Was of realty possessed,'' 
 The law has considered it fair, 
 
Chap. XIL] INTESTACY. 345 
 
 the tiiidisposed-of separate personalty of a married woman. 
 Accordingly, on the death of a married woman without dispos- 
 ing of her separate personalty, the quality of separate property 
 ceases, and the right of the husband to such undisposed-of 
 personalty accrues as if the separate use had never existed. 
 
 That the claim should not all 
 On the moveables fall, 
 But the laud must contribute its share. 
 
 53 & 54 Vict. c. 29. 
 
 After the eighth stanza, to the effect that the issue if all in equal degi'ee 
 will take per capita, the writer proposes to add — 
 
 When grandchildren and great- 
 Divide the estate. 
 
 The division per stirpes is made 
 The great- and the grand- 
 Eespeotively stand 
 
 In the place of their parents who're dead. 
 Me Boss's Trusts, Law Bep. 13 Eq. 292 ; 41 L. J. (Oh.) 130. 
 
 But to end all debate, 
 In the year '88, 
 
 The Court very gravely decided. 
 Though the issue should be 
 All in equal degree, 
 
 The estate is per stirpes divided. 
 
 Be Natt, 37 Oh. D. 517; 57 L. J. (Oh.) 797. 
 
( 346 ) 
 
 BUSINESS OF THE COURTS. 
 
 Inteoductoey. 
 
 And now, having considered to some extent the leading prin- 
 ciples of the law with regard to property, we pass on to another 
 main division of onr subject, that which is more intimately 
 connected with the administration of justice by the Courts. 
 Hitherto our task has been to consider that portion of the law 
 which is chiefly concerned with what is technically termed 
 non-contentious business. For the future our attention will be 
 to a great extent occupied with that which is concerned with 
 contentious biisiness. 
 
 Before, however, proceeding to consider the present state of 
 the law and practice administered by the Courts in this country 
 it will be desirable to notice very briefly the condition of things 
 which existed at a comparatively recent period. 
 
 Prior to the 2nd November, 1876 (i) (the date when the Judi- 
 cature Acts came into operation), a person who came before a 
 judicial tribunal to seek relief against another was obliged to 
 employ different forms of procedure in different Courts. Thus, 
 in the Court of Chancery, proceedings were commenced by 
 filing a Bill or Information ; 
 
 In a Court of Common Law by serving a writ, to be followed 
 by a declaration ; 
 
 In the Court of Admiralty by a cause ; 
 
 In the Court of Probate by citation. 
 
 Now the Judicature Acts and Eules have, to a very large 
 extent, introduced uniformity in this respect into the practice of 
 the different divisions of the Court. They provide that all these 
 processes shall be instituted in the High Court of Justice by an 
 " action " (^), and that every action shall be commenced by a 
 writ of summons, which shall be indorsed with a statement 
 of the nature of the claim or the relief required in the action, 
 so that the defendant may have notice of what the plaintiff 
 
 (') 38 & 39 "Vict. c. 77, s. 2. Order ii. r. 1. See post, pp. 701, 
 
 O E. S. C. 1883, Order i. r. 1; 703, et seq. 
 
INTSODUOTOBT. 347 
 
 demands, and consider the advisability of acceding to his claim 
 ■without a contest. 
 
 Again, the principles upon which the Common Law Courts Parties. 
 formerly proceeded in determining who were necessary 
 " parties " (i) to an action were widely different from those 
 which governed the Equity Courts. The rules now provide 
 that all persons may be joined as plaintiffs in whom the right 
 to any relief claimed is alleged to exist whether jointly, sever- 
 ally, or in the alternative, and similarly that all persons may be 
 joined as defendants against whom the right to any relief is 
 alleged to exist whether jointly, severally, or in the alter- 
 native (2). The right to obtain discovery from an adversary Discovery, 
 during the progress of an action is another instance where the 
 practice was previously widely different, and where under the 
 present system a large, though by no means complete measure 
 of assimilation has taken place of the practice of the various 
 Courts. This point shall be considered hereafter when we come 
 to speak of the practice of the Courts ('). 
 
 The difficulties and complications that were produced in the The Courts 
 administration of justice by the absence of anything like ™^'™^'^^y 
 uniformity in the proceedings of the different Courts were, by different 
 however, comparatively unimportant, when contrasted with principles, 
 the numberless evils that arose from the fact that these various 
 Courts in many cases proceeded upon wholly different prin- 
 ciples in determining the questions that came before them 
 for decision. Eights and equities which were wholly un- 
 recognised in one Court were all-powerful in another. The 
 result was that a plaintiff who had a perfectly good case 
 according to the doctrines administered by a Common Law 
 Court might yet find himself stopped in his career by an 
 injunction granted by the Court of Chancery. 
 
 The late Lord Westbury on one occasion lamented how 
 much of the litigation in this country and how much of the 
 difficulty in the administration of justice was due to the fact 
 that the jurisdiction was at that time divided between different 
 Courts, and conducted upon different principles. " The justice 
 of a Court of law," he said, with reference to the case before 
 him, " is one thing, the justice of a Court of Equity is another, 
 the justice of the Court of Bankruptcy is a third ; and from 
 
 (') See further as to parties, post, which he compared to a game of whist, 
 
 p. 706. in which the player has no right to 
 
 (') E. S. C. 1883, Order xvn., r. 1. see his adversary's hand, with the rule 
 
 (') See post, p. 741, et seq. Mr. Jus- in Equity with respect to " searching 
 
 tice Cave on one occasion contrasted the conscience of the opposite party." 
 
 the former practice at common law, 
 
348 
 
 BUSINESS OF THE COURTS. 
 
 Legal 
 system 
 .before the 
 Judicature 
 Act. 
 
 Equity and 
 
 Common 
 
 Law. 
 
 Common 
 Law. 
 
 that confusion tbis very simple case has become complicated." 
 On another occasion the same judge pointed out how unreason- 
 able it was that one Court should be bound to commit injustice, 
 and that another Court should be instituted, the function of 
 which should be to watch the proceedings of the first Court, to 
 run after it and to stop its course. 
 
 Under the old system, as Mr. Haynes tells us, a man, in 
 assertion of his legal right, sued in the Common Law Court. 
 His opponent came to the Court of Equity, and said " Although 
 the strict legal right is on the other side, there are equitable 
 circumstances in this case which ought to deprive my assailant 
 of the right of suing me." And the Equity Court, if it agreed 
 with this view, simply ordered the plaintiff at law not to sue, 
 and put him in prison if he persisted. A man, to quote the 
 words of another writer, might be sure of succeeding, nay, might 
 actually have succeeded, in a court of common law, but might 
 be forbidden by the Court of Chancery, on pain of imprison- 
 ment, to go on with his action or to reap the fruits of it (i). 
 
 The reason of this complication arose from the fact that in 
 the vast system of English law there existed, in addition to 
 statute law, two wholly distinct elements, the rules of the com- 
 mon law on the one hand, and the rules of equity on the other. 
 
 The custom of the realm or the common law, the lex non- 
 scripta, or unwritten law as distinguished from the statute law 
 on the one hand, and the rules of equity on the other, consists, 
 Mr. Beeves tells us, of those rules and maxims concerning the 
 persons and property of men that have by immemorial use and 
 practice obtained the same force as Acts of the Legislature. 
 These rules and maxims have, according to a fundamental 
 theory of English law, always, from the earliest time, existed 
 in the breasts of the judges, and have by them been applied to 
 successive cases as they arose for their decision (^). 
 
 In a remarkable case of peculiar interest to the legal profes- 
 
 (1) Haynes' Equity, 5th ed. 25 ; 
 Wilson's Modern English Law, p. 3. 
 
 (_') Eeeves' History of English Law, 
 p. 1, et seq. The common law, the 
 same authority tells us, like our 
 language, is of a various and motley 
 origin, as various as the nations that 
 have peopled this country in different 
 parts and at different periods. See 
 also Maitland's Justice and Police, 
 p. 31, et seq., where it is pointed out 
 that the original meaning of the 
 phrase common law seems to be law 
 common to the whole land, law for 
 
 England, and not for this county or 
 that borough, as opposed to statute 
 law and the equity law administered 
 by the Court of Chancery. The 
 names common law and equity, the 
 same author tells us (p. 41), are com- 
 pendious phrases which are likely to 
 live yet a while, but already modem 
 statutes, eg., the Married Women's 
 Property Act, 1882, "have been 
 taking from them their point, and in 
 course of time the contrast may be 
 forgotten," 
 
INTRODUCTORT. 349 
 
 sion which came before the Court in 1883 ('), and to which we Origin of: 
 shall have occasion hereafter to refer, it had been contended ^''™""'" 
 that as a person defamed has ■prima facie a cause of action, the 
 person defaming must produce either some statute or some 
 previous decision directly in point which will justify his con- 
 duct. Lord Esher, in expressing his emphatic dissent from this 
 proposition, described the process by which the common law 
 was gradually formulated in the following manner : — 
 
 " The common law does not consist of particular cases decided 
 upon particular facts ; it consists of a number of principles, 
 which are recognised as having existed during the whole time 
 and course of the common law. The judges cannot make new 
 law by new decisions, they do not assume a power of that kind, 
 they only endeavour to declare what the common law is and 
 has been from the time when it first existed. But inasmuch as 
 new circumstances, and new complications of fact, and even 
 new facts, are constantly arising, the judges are obliged to 
 apply to them what they consider to have been the common 
 law during the whole course of its existence, and therefore they 
 seem to be laying down a new law, whereas they are merely 
 applying old principles to a new state of facts." 
 
 Side by side with the common law system was the system Equity. 
 of law administered by the Court of Chancery. " The cause," 
 said Lord Ellesmere, in the old leading case of the Earl of 
 Oxford (^), speaking of the system which prevailed in his day, 
 " why there is a Chancery is, for that men's actions are so divers 
 and infinite, that it is impossible to make any general law 
 which may aptly meet with every particular act, and not fail 
 in some circumstances. The office of the Chancellor is to 
 correct men's consciences for frauds, breach of trusts, wrongs, 
 and oppressions, of what nature soever they may be, and to 
 soften and mollify the extremity of the law, which is called 
 summum jus. And for the judgment, &c., law and equity are 
 distinct, both in their courts, their judges, and the rules of 
 justice, and yet they both aim at one and the same end, which 
 is to do right." 
 
 The reader who desires further information as to the origin 
 and development of the jurisdiction may be referred to the 
 authorities mentioned in the note (5), where he will read the 
 interesting story of the establishment of what Lord Campbell 
 
 Q) Manster v. Larrib, 11 Q. B. D. out that a new era commenced with 
 
 599, per Brett, M.R. See post, p. 832. Lord Nottiiigliam, the futher of mo- 
 
 (2) 1 Ch. Eep. 1. dern Equity) ; Spence's Equitable 
 
 (^) Story's Equity Jurisprudence Jurisdiction of the Court of Chan- 
 
 (and see p. 19, where it is pointed eery. 
 
350 
 
 BUSINESS OF THE COURTS. 
 
 Consolida- 
 tion of the 
 Courts, 
 
 Supreme 
 Court. 
 
 High 
 
 Court. 
 
 Court of 
 Appeal. 
 
 Judicature 
 Act, 1873, 
 =,. 24. 
 
 has termed " the extraordinary interference of the Chancellor 
 -without common law process, or regard to the common law 
 rules of proceedings, upon the petition of a party grieved who 
 was without adequate remedy in a Court of Common Law." 
 For our present purpose it will suffice to say that the function 
 of the Chancery Courts, as developed in modern times, was to 
 supplement, and to some extent to correct, the common law, 
 not at the arbitrary discretion of the judges, but according to 
 fixed principles established by decided oases. 
 
 The consolidation of the various Courts was effected as 
 follows : — 
 
 The superior Courts of Common Law at Westminster, the 
 High Court of Chancery, the Admiralty, Probate, Divorce, 
 and Matrimonial Courts, the Court of Common Pleas at Lan- 
 caster, and at Durham, and all Assize Courts, and last though 
 by no means least, the Bankruptcy Court, are all consolidated 
 into one Supreme Court of Judicature (J-). 
 
 The Supreme Court thus constituted " consists of two per- 
 manent divisions, one of which, under the name of Her 
 Majesty's High Court of Justice, has and exercises original 
 jurisdiction, and the other of which, under the name of Her 
 Majesty's Court of Appeal, has and exercises appellate jurisdic- 
 tion with such original jurisdiction as may be incident to the 
 determination of any appeal." 
 
 The High Court now consists of three divisions, viz., the 
 Chancery Division, the Queen's Bench Division (with which 
 the former Exchequer Division and the Common Pleas Division 
 are now consolidated), and the Probate, Divorce, and Admiralty 
 Division. The judges are the Lord Chancellor, who is presi- 
 dent, five judges of the Chancery Division, the Lord Chief 
 Justice of England president of the Queen's Bench Division, 
 and fourteen justices of the Queen's Bench Division. The 
 judges of the Probate, Divorce, and Admiralty Division are the 
 president and one justice. 
 
 The Court of Appeal consists of nine judges. Four of these 
 are ex officio judges, viz., the Lord Chancellor (President) ; the 
 Lord Chief Justice of England; the Master of the Eolls; the 
 President of the Probate, Divorce, and Admiralty Division. 
 The five ordinary judges are styled Lords Justices of Appeal. 
 
 Section 24 of the Judicature Act, 1873, which has been justly 
 characterised as the main section of the Act, as to the combined 
 jurisdiction of the various divisions of the High Court Q), pro- 
 
 (') Judic. Act, 1873, ». 16 Bank- 
 ruptcy A.'t, 1883, s. 93. 
 
 C) Annual Practice, note to sec- 
 tion. 
 
INTBOD UGTOB T. 351 
 
 vides that in any civil cause or matter commenced in the High 
 Court of Justice law and equity shall he administered by the High 
 Court of Justice and the Court of Appeal respectively, according 
 to certain rules therein specified. The principal provisions of 
 this section are as follows. Sub-sect. 1 provides that if any Equitable 
 plaintiff or petitioner claims to be entitled to any equitable j.j^htr'&c 
 estate or right, or to relief upon any equitable ground against 
 any deed, instrument, or contract, or against any right, title, 
 or claim whatsoever asserted by any defendant or respondent 
 in such cause or matter, or to any relief founded upon a legal 
 right, which heretofore could only have been given by a Court 
 of Equity, the said Courts respectively, and every judge thereof, 
 shall give to such plaintiff or petitioner such and the same 
 relief as ought to have been given by the Court of Chancery. 
 The succeeding sub-sections contain similar provisions for the 
 benefit of defendants claiming equitable rights, and of another 
 class of parties first brought into legal existence by the Judi- 
 cature Act and Eules, and of whom we shall have occasion to 
 speak particularly hereafter, viz., " third parties." It is also 
 provided that all equitable estates, titles, rights, duties and 
 liabilities appearing incidentally in any cause or matter are to 
 be recognized. 
 
 The concluding sub-section of this section (24) provides that 
 the High Court of Justice and the Court of Appeal respectively, 
 in the exercise of the jurisdiction vested in them by this Act in 
 every cause or matter pending before them respectively, shall 
 have power to grant, and shall grant, either absolutely or on 
 such reasonable terms and conditions as to them shall seem just, 
 all such remedies whatsoever as any of the parties thereto may 
 appear to be entitled to in respect of any and every legal or 
 equitable claim properly brought forward by them respectively 
 in such cause or matter ; so that, as far as possible, all matters 
 so in controversy between the said parties respectively may be 
 completely and finally determined, and all multiplicity of legal 
 proceedings concerning any of such matters avoided (^). 
 
 The next section of the Judicature Act, after stating, or as it Judicature 
 is technically termed reciting, that it is expedient to take ^ "ijg ' 
 occasion of the union of the several courts whose jurisdiction is 
 thereby transferred to the High Court of Justice to amend and 
 declare the law to be thereafter administered in England on 
 certain specified matters, proceeds to state the law on a variety 
 of important points (^). 
 
 (') See as to iDJunotion, post, (^) The 91st section of the Judica- 
 
 pp. 354, 588, note. ture Act, 1873, enacts that these new 
 
352 BUSINESS OF THE COURTS. 
 
 Judicature The law SO stated has been already, or will be hereafter 
 
 Act 1873 . . 
 
 5 25 ' noticed in the appropriate portions of this book, but its effect 
 may be shortly summed up as follows : — 
 
 (1) The rules of bankruptcy are, on certain points {post, 
 p. 548), introduced into the administration of the estates of 
 persons dying insolvent, and the winding-up of insolvent 
 companies. 
 
 (2) The next sub-section, which has already been noticed 
 (ante, p. 207), provides that no claim of a cestui que trust against 
 his trustee for any property held on an express trust, or in 
 respect of any breach of such trust, shall be held to be barred 
 by any Statute of Limitations (^). 
 
 The 3rd section enacts that an estate for life without impeach- 
 ment 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 " (ante, p. 29), unless 
 an intention to confer such right shall expressly appear by the 
 instrument creating such estate. 
 
 The 4th sub-section declares that there shall not, after the 
 commencement of the Act, be any merger by operation of law 
 only of any estate the beneficial interest in which would not 
 be deemed to be mer^^ed or extinguished in equity (ante, p. 46). 
 
 Sub-sect. 5 deals with the position of the mortgagor. It 
 provides that a mortgagor entitled for the time being to tlie 
 possession or receipt of the rents and profits of any land as to 
 which no notice of his intention to take possession or to enter 
 into the receipt of the rents and profits thereof shall have been 
 given by the mortgagee, may sue for such possession, or for the 
 recovery of such rents or profits, or to prevent or recover 
 damages in respect of any trespass or other wrong relative 
 thereto, in his own name only, unless the cause of action arises 
 upon a lease or other contract made by him jointly with any 
 other person (^). 
 
 Sub-sect. 6, which has been already noticed (ante, p. ,266), 
 deals with absolute assignments of any debt or other legal 
 chose in action, and renders them under tlie specified circum- 
 stances effectual to pass and transfer legal rights. 
 
 Sub-sect. 7 (considered hereafter, p. £83) provides that stipu- 
 
 rules are to apply to all Courts what- Minors, 7 Q. B. D. 329. 
 
 soever in England, "so far as the (') See as to the present lawwit.h 
 
 matters to which such rules relate reference to trustees, ante, p. 207, 
 
 shall be respectively cognizable by et seq. 
 
 such Courts ": see King v. Eawhes- (") Fatrclough v. Marshall, i Ex. D. 
 
 worth, i Q. B. D. 371 (as to Liverpool 37 ; Yorkshire Banldng Go. v. Mullan, 
 
 Court of Passage), but see Foyser v. 35 Ch. U. 12.5. 
 
lisTTB OD UGTOR Y. 353 
 
 lations in contracts, as to time or otherwise, which, would not Judicature 
 before the passing of this Act have heen deemed to be or to ^'^25^^^''' 
 have become of the essence of such contracts in a Court bf 
 Equity, shall receive in all Courts the same construction and 
 effect as they would have heretofore received in .Equity. 
 
 Sub-sect. 8 provides 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 ; and 
 any such order may be made either unconditionally or up6n 
 such terms and conditions as the Court shall think just." 
 
 Sub-sect. 9 deals with damages by collision at sea (see pdst, 
 p. 1059). 
 
 Sub-seet. 10 provides that in questions relating to the custody 
 and education of infants, the rules of equity shall prevail (jpost, 
 p. 604, et seq.) 
 
 Sub-sect. 11 contains a sweeping provision that generally in 
 all matters not thereinbefore particularly mentioned, in which 
 there is any conflict or variance between the rules of equity and 
 the rules of the common law with leference to the same matter, 
 the rules of equity shall prevail (see, however, as to practice, 
 post, p. 702.) 
 
 The aim of the Legislature in passing the Judicature Act, 
 and the mode which it provided for caiTying its purpose into 
 effect, have been well stated by a great judge as follows : — 
 
 " The main object of the Judicature Act," said Sir George 
 Jessel, " was to assimilate the transaction of Equity business and 
 Common Law business by different Courts of judicature. It 
 has been sometimes inaccurately called ' the fusion of Law and 
 Equity ;' but it was not any fusion, or anything of the kind : 
 it was the vesting in one tribunal the administration of Law and 
 Equity in every cause, action, or dispute which should come 
 before that tribunal. That was the meaning of the Act. Then, 
 as to that very small number of cases in which there is an actual 
 conflict, it was decided that in all cases where the rules of 
 Equity and Law were in conflict, the rules of Equity should 
 prevail. That was to be the mode of administering the com- 
 bined jurisdiction, and that was the meaning of the Act. To 
 carry that out, the legislature did not create a new jurisdiction, 
 but simply transferred the old jurisdictions of the Courts of Law 
 and Equity to the new tribunal, and then gave directions to 
 the new tribunal as to the mode in which it should administer 
 the combined jurisdictions " Q). 
 
 ( ') Salt V. Cooper, 16 Ch. D. 544, 549. 
 VOL. I. 2 a 
 
354 BUSINESS OF TEE COURTS. 
 
 " It appears to me," said Sir James Hannen, in a remartatle 
 case to wMoh reference shall hereafter be made, " that a very 
 great change has been worked now by the fusion of all the 
 Courts into one. There is no difference between the law to be 
 administered in this Division and elsewhere ; but each Court is 
 to ascertain what the law is, whether legal or equitable, and I 
 think, therefore, it is open to me to establish a different basis to 
 that which existed in the Probate Court " (}'). 
 
 " The object of the Judicature Acts," said one of the judges 
 of the Court of Appeal, " was not to give new jurisdiction ; 
 but the jurisdiction previously exercised by certain of the Courts 
 was transferred to the High Court constituted by the Acts, and 
 the object was to enable the High Court to deal not only with 
 questions of one branch of law, but with all questions — so as to 
 administer both Common Law and Equity — and not to render it 
 necessary to send suitors from one tribujaal to another, or compel 
 defendants to seek the aid of Chancery when a Common Law 
 right was being insisted upon contrary to Equity " (^). 
 
 The 24th section, sub-sect. 6, of the Judicature Act, 1873, 
 provides 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." 
 
 The change, which was thus made by the Judicature Act, of 
 vesting all the jurisdiction in one tribunal, has put a stop to the 
 scandal of going from one Court to another, and repeating in 
 one Court an appli(;ation which had been refused on the same 
 materials, by other Courts of co-ordinate jurisdiction (^). 
 Judicature The business assigned by the Judicature Act to the Chancery 
 Ac^^i873, Division of the High Court, in addition to 
 
 (1) All causes and matters pending in the Court of Chancery 
 at the commencement of the Act; and, (2) All causes and 
 matters to be commenced after the commencement of the Act 
 under any Act of Parliament by which exclusive jurisdiction, 
 in respect to such causes or matters, has been given to the Court 
 of Chancery or to any judges or judge thereof respectively, except 
 appeals from County Courts, 
 
 comprises all causes and matters for any of the following 
 purposes : — 
 
 1. The administration of the estates of deceased persons ; 
 
 s. 34. 
 
 (') He Gurm, 9 P. D. 242. (3) " You cannot restrain a pending 
 
 (f) In re M-UFs Estate. Ex parte motion, but you can restrain a person 
 
 Commissioners of Worlts and Piiblio from instituting proo edinga." Per 
 
 Tlidliixgs, 34 Cli. D. 33, per Cotton, Jessel, M.R., Besant v. Wood, 12 
 
 L J. Ch. D. 6uo, 630. 
 
INTRODUGTORT. 355 
 
 2. The dissolution of partnerships or the taking of partner- 
 ship or other accounts ; 
 
 3. The redemption or foreclosure of mortgages ; 
 
 4. The raising of portions, or other charges on land ; 
 
 5. The sale and distribution of the proceeds of property sub- 
 ject to any lien or charge ; 
 
 6. The execution of trusts, charitable or private ; 
 
 7. The rectification, or setting aside, or cancellation of deeds 
 or other written instruments ; 
 
 8. The specific performance of contracts between vendors and 
 purchasers of real estates, including contracts for leases ; 
 
 9. The partition or sale of real estates ; 
 
 10. The wardship of infants and the care of infants' estates. 
 The causes and matters comprised under this second heading, 
 
 viz., those Acts of Parliament by which certain exclusive juris- 
 diction has been given to the Court of Chancery are considered 
 hereafter (p. 690, et seqi) and the various other causes and matters 
 specially assigned to the Chancery Division are considered in 
 the book which treats of Equity and other subjects which seem 
 to fall most appropriately under that head. 
 
 Although as we shall presently see the rectification and 
 setting aside of deeds and other instruments are matters assigned 
 to the Chancery Division, it has been decided that when the 
 defendant in an action in one of the divisions of the High Court 
 of Justice other than the Chancery Division relies on an Equity 
 to have a deed set aside as part of his defence, the Division in 
 which the action is may give eflfect to the Equity so far as is 
 incidental to the purposes of the defence Q). 
 
 The business of the Queen's Bench Division in addition to Business 
 the actions arising from the two great main sources. Contracts orpin's 
 and Torts, to the consideration of each of which a separate book Bench 
 is devoted (jpost, p. 360, et seq., and p. 439, et seq.) comprises a division, 
 variety of other special matters, of which the following may 
 be mentioned : — 
 
 (1) Eevenue and Crown Cases. 
 
 (2) Appeals from County Courts (^). 
 
 (3) Prerogative "Writ of Mandamus (^) and Quo Warranto 
 (post, p. 807, et seq.). 
 
 (4) Writs of Certiorari and Prohibition {post, p. 808). 
 
 (') Mostyn v. West Mostyn Coal and tive writ of mandamus miisi be »ado 
 
 Iron Co., Limited, 1 0. P. D. (C.A.) to the Queen'a Bench Divioion. See, 
 
 145. as to the prerogative writ of manda- 
 
 C) See as to appeal from County jnus, and the action of mandamus : 
 
 Courts, post, p. 824. The Queen v. Lambom~a VctUey Mail- 
 
 (^) An application for the preroga- way Co., 22 Q. B. I>. 463^ et se(/. 
 
 2 A 2 
 
356 
 
 SUSINESS OF THE COURTS. 
 
 and Ad- 
 miralty 
 Division. 
 
 (5) Appeals from Eevising Barristers. 
 Business By the 34th section of the Act, were assigned to the Probate, 
 
 assigned to Dj^orce, and Admiralty Division, all causes and matters which 
 
 Probate, ' •' . . c a.t. r\ i. s; 
 
 Divorce, would have heen withm the exclusive cognizance ot tne Oourt ot 
 Prohate, or the Court for Divorce and Matrimonial Causes, 
 or of the High Court of Admiralty, if that Act had not passed. , 
 
 The granting or revoking of the probate of a will is within 
 the exclusive jurisdiction of the Probate Division, and a claim 
 for such a purpose cannot be made in the Chancery Division (}). 
 
 In a case decided in the year 1890 (^) a lady who had no separate 
 property, and no testamentary capacity by assent of her husband 
 or otherwise, made a will of which she appointed executors and 
 gave her property away from the husband. She was entitled 
 to certain choses in action, and the will having been proved in 
 the ordinary form by one of the executors the husband brought 
 an action against him in the Chancery Division claiming 
 the choses in action. The Court of Appeal decided that the 
 grant of general probate of the will without any limitation in 
 the foi-m now adopted in the Probate Division, simply enabled 
 the executor to collect aU the assets of the married woman, 
 whether she had power to dispose of them by will or not, but 
 that this was only a change of machinery and did not affect the 
 beneficial interest of the husband, in whose favour judgment 
 was accordingly pronounced. 
 
 Crown Office Kulea, 1886, rr. 60. " A 
 ■writ of mandamus, as everybody 
 knows, is a high prerogative writ, 
 invented for the purpose of supply- 
 ing defects of justice. By Magna 
 Oharta the Crown is bound neither 
 to deny justice to anybody, nor to 
 delay anybody in obtaining justice. 
 If, therefore, there is no other means 
 of obtaining justice, the writ of man- 
 damus is granted to enable justice to 
 be done. The proceeding, however, 
 by mandamus, is most cumbrous and 
 moat expensive ; and from time im- 
 memorial accordingly the Courts 
 have never granted a writ of man- 
 damus where there was another more 
 convenient or feasible remedy within 
 the reach of the subject." Per Bowen, 
 L.J., In re Nathan, 12 Q. B. D. 461. 
 See as to quo warranto, Shortt on In- 
 formations, Mandamus and Prohibi- 
 tion. It is provided by 47 & 48 
 Vict. c. 61, s. 15, that " proceedings 
 in gw) warranto shall be deemed 
 to be civil proceedings whether for 
 purposes of appeal or otherwise." 
 
 With regard to prohibition, Mr. 
 Sliortt tells us : " The broad govern- 
 ing principle is that a prohibition 
 lies where a subordinate tribunal 
 has no jurisdiction at all to deal 
 with the cause or matter before 
 it; or where in the progress of a 
 cause within its jurisdiction, some 
 point arises for decision which the 
 inferior Court is incompetent to de- 
 termine. But a prohibition will not 
 lie where the inferior Court has juris- 
 diction to deal with the cause and 
 with all matters necessarily arising 
 therein, however erroneous its deci- 
 sion may be upon any point." The 
 granting of a writ of prohibition to 
 an inferior Court is discretionary. 
 In the matter of a prohibition in the 
 Mayor's Court of London, Broad v. 
 Perkins and Another, 21 Q. B. D. 533. 
 
 (') Priestman v. Thomas, 9 P. D. 
 70, 210, see, however, Pinney v. Hunt, 
 6 Ch. D. 98; Bradford v. Toung, 
 26 Ch. D. 26. 
 
 (2) Smart v. Tranter, 43 Ch. D. 
 587, reversing 40 Ch. D. 165. 
 
INTRODUCTORY. 357 
 
 Changes effected by the Judicature Act, 1873. 
 
 The great change which was effected by the provisionB of Changes 
 the Judicature Act, which enabled every Division of the High J^^^^^ 
 Court to give all such remedies as any parties may be entitled Judicature 
 to in respect of every legal or equitable claim properly brought ■*-'^'- 
 before the Court, is well illustrated by a case which came before 
 the Court of Appeal in 1879. Certain goods had been taken in 
 execution, and the trustee of a married lady's settlement claimed 
 them as separate estate belonging to the lady. After certain 
 proceedings in the Common Pleas Division the sheriff advertised 
 the goods for sale, and an application was made to the Chancery 
 Division asking, among other things, for an injunction to restrain 
 the sheriff from selling the goods or remaining in possession of 
 them. This order was granted by the judge of first instance, 
 but when the case came before the Court of Appeal it was 
 decided that an injunction restraining pending proceedings in a 
 Common Law Court, was inconsistent with the provisions of the 
 Judicature Act, 1873, s. 24, sub-s. 5, and could not stand. Lord 
 Justice James, in delivering judgment, said : 
 
 " I am of opinion that if we were to sustain the order of the 
 Vice-Chancellor, we should in fact nullify one of the most 
 salutary provisions of the Judicature Act, and interfere with 
 the cardinal principle of that Act, which was that there should 
 never be conflicting proceedings going on at the same time in 
 
 two branches of the Court These words are absolute, 
 
 and are not qualified by anything that follows To make 
 
 it quite certain that no harm would be done by the abolition of 
 such injunctions, sub-sect. 7 gives to every division of the High 
 Court power tO give all such remedies as any parties may be 
 entitled to in respect of every legal or equitable claim properly 
 brought before the Court. Any cestui que trust who has an 
 equitable claim to bring forward must bring it forward in the 
 division which is seised of the subject-matter, and third parties 
 are not to be embarrassed in their proceedings because parties 
 choose to create trusts " Q). 
 
 Again, in a case which came before the Court of Appeal in 
 1888, the question arose whether a judge of the Queen's Bench 
 Division could make an order charging cash which stood to the 
 credit of the debtor in the Chancery Division in the name of 
 the Paymaster-General. Before the Judicature Act matters 
 
 (') Per James, L.J., in Wright v. Redgrave, 11 Ch. D. (C.A.) 24. 
 
358 
 
 BUSINESS OF THE COURTS. 
 
 Changes 
 effected 
 by the 
 Judicature 
 Act. 
 
 Substan- 
 tive and 
 adjective 
 law. 
 
 stood in a singular position. A Court of Equity could assist 
 the process of a Common Law Court; but a Common Law 
 Court could not make an order charging cash in the hands of 
 the Court of Chancery. The Court of Appeal decided the broad 
 principle that any judge of the High Court has power, at the 
 instance of a judgment creditor, to make an effectual order 
 charging the judgment debt upon a sum of money standing to 
 the credit of the judgment debtor in the name of the Paymaster- 
 General in an action in the Chancery Division. All the judges 
 of the High Court are placed by the Judicature Act in the 
 same position. A judge of the Chancery Division can now 
 make an order charging a judgment debt upon stock or shares 
 belonging to the judgment debtor, and a judge of the Queen's 
 Bench Division can charge cash under the control of the 
 Chancery Division Q). 
 
 We pass on n*w to another portion of our subject. Law, 
 according to the celebrated division of Bentham, falls under the 
 two great heads of substantive and adjective law. Substantive 
 law defines the rights, duties, and obligations of parties. Adjec- 
 tive law deals with procedure, the mode of proof and the means 
 of securing redress. Substantive law comprises the law which 
 the Courts are established to administer. Adjective law 
 embraces the rules according to which the substantive law is 
 administered (^). 
 
 TLe substantive law administered by the High Court having 
 been considered, so far as the limits of our space will allow, in 
 the books devoted to Contracts, Torts, and Equity, we shall 
 proceed to consider adjective law in the books which deal with 
 Practice and Evidence. The remainder of Volume II. is devoted 
 to the consideration of Bankruptcy, of the business assigned to 
 the Probate, Divorce, and Admiralty Division, of Ecclesiastical 
 Law, and, last of all, of Criminal Law. 
 
 As it will be necessary for us in the progress of this work 
 before we come to that portion of it which is specially devoted 
 to the prautice of the Courts, to refer to the terms which aie 
 employed in the course of an action, it will be desirable here to 
 state the ordinary steps which are employed during its course. 
 The first step in the action, the delivery of the plaintiffs writ, 
 is commonly followed by the delivery of a statement of claim 
 
 (•) Breretony. Edwards,'2,\Ci.'B.Ti. 
 488. 
 
 (^) See Austin's Jurisprudence, 
 vo). li. i^p. 611 and 791, el seq., wjiere 
 
 this division and that implied in the 
 phrase actio non est jus sed medium 
 jus persequendi are criticised. 
 
INTRODUCTORY. 359 
 
 in which he sets forth the material facts on which he relies, and 
 specifies the particular relief which he claims. The next step 
 in the action is the delivery of the defence of the defendant, 
 which may in some cases be accompanied by a counter-claim. 
 To this the plaintiff may deliver a reply, and occasionally, 
 though rarely, other pleadings are delivered (see post, p. 733). 
 
 It may be pointed out that the old practice in divorce is 
 specially preserved by the Judicature Eules, and that proceed- 
 ings are there commenced by petition, (jpost, p. 1040). Pro- 
 ceedings in bankruptcy are also commenced by petition (^ost, 
 p. 895). 
 
( 360 ) 
 
 BOOK III. 
 CONTRACTS. 
 
 Definition 
 of con- 
 tracts. 
 
 Judgment. 
 
 Recogni- 
 zances. 
 
 CHAPTEE I. 
 
 Different Classes of Contracts. 
 
 Contracts. — A contract is defined by Blackstone to' be an 
 " agreement upon sufiicient consideration to do or not to do a 
 particular thing." It has also been well defined by Sir W. Anson 
 as "an agreement enforceable at law, made between two or 
 more persons, by which rights are acquired by one or more to 
 acts or forbearances on the part of the other or others." 
 
 All contracts are divided by the law of England into : (1) Con- 
 tracts of Eecord ; (2) Specialty Contracts, or Contracts under 
 Seal ; and, (3) Simple Contracts Q). 
 
 Contracts of Eecoed. 
 
 Contracts of record which have been characterized by Black- 
 stone as contracts of the highest nature, being established by 
 the sentence of a Court of Judicature, are judgment and re- 
 cognizance (^). 
 
 " A judgment," says Sir W. Anson, " awarding a sum of money 
 to one of two litigants, either by way of damages or for costs, 
 lays an obligation upon the other to pay the sum awarded. This 
 obligation may come into existence as the final result of litiga- 
 tion when the Court pronounces judgment, or it may be created 
 by agreement between the parties before litigation has com- 
 menced, or during its continuance. In the latter case, certain 
 formalities are required by the law, viz. either a warrant of 
 attorney, by which one party gives authority to the other ta 
 enter judgment upon terms settled, or a cognovit actionem, by which 
 the one party acknowledges the right of the other in respect of 
 the pending dispute, and then gives a similar authority." 
 
 Eecognizances are contracts made with the Crown in its 
 
 (') Rann v. Suglies, 7 T. E. 350. 
 
 (_') The phrase " oontracta of re- 
 cord," says Sir W. Anson, is un- 
 fortunate, because it suggests that 
 the obligation springs from agree- 
 naent, whereas it is really imposed 
 upon the parties ab extra. Statutes 
 
 Merchant and Staple and recog- 
 nizances, in the nature of statute 
 staple, which are usually enumerated 
 under the head of Contracts of Ee- 
 cord, are now completely obsolete. 
 Smith on Contracts, p. 3, last edition. 
 
Chap. I.] DIFFERENT CLASSES OF CONTRACTS. 361 
 
 judicial capacity, by which the party binds himself to the 
 Queen in a certain sum conditioned for the performance of a 
 duty imposed upon him. Eecognizances, where they become 
 due are estreated. 
 
 The peculiar characteristic of contracts of record are : (1) that Contracts 
 they prove themselves, i.e. their bare production suffices as ° ^'^'^°^ ' 
 evidence ; (2) they operate by way of merger, i.e. all previously 
 existing rights with which the judgment deals are extinguished 
 "7 it ; (3) they may be discharged by a release or instrument 
 under seal; (4) they work by estoppel, i.e. they conclusively 
 bind those persons against whom they are producible (see post, 
 p. 862). 
 
 The doctrine of " merger " may be illustrated by a recent 
 case where it was held that an unsatisfied judgment against 
 one joint contractor on a bill of exchange given by him alone 
 for the joint debt, was a bar to an action against the other 
 joint contractor on the original contract. 
 
 " The principle of the maxim, ' Nemo debet his vexari,' " said 
 Field, J., "applies not only to the case of one individual being 
 sued twice for the same cause of action, but also the case of a 
 person suing twice on the same contract. Here the plaintiffs 
 have converted the liability on the joint contract into a liability 
 on a judgment, so that they had a security of a higher nature 
 than the mere right to recover on the contract, and, therefore, 
 the maxim ' Transit in rem judieatam ' applies. The contract is 
 merged in the judgment, and therefore the plaintiffs must 
 fail " (1). In a subsequent case, however, it was held that this 
 principle had no application to actions against husbands for 
 their wives' ante-nuptial debts (^). 
 
 Contracts undee Seal. 
 
 A contract under seal is sometimes called a deed, and some- Contracts' 
 times a specialty. With regard to specialty contracts we will "™<''' *''*'• 
 consider : (1) how they are made ; (2) what are their charac- 
 teristics ; (3) what contracts must be made by deed. 
 
 I. How Specialty Conteacts aee made. 
 A deed is an instrument written or printed on paper or 
 parchment, sealed by the party bound thereby, and delivered by 
 him to or for the benefit of the person to whom the liability is 
 
 (■) Camhefort & Co. v. Chapman, oases on this subject. See also 
 
 19 Q. B. D. 229 ; King v. Eoare, 13 Arhuthnot v. BuUiloll, 62 L. T. 234. 
 
 M. & W. 494 ; and Kendall v. Eamil- C) Beck v. Pierce, 23,Q. B. D. 316. 
 ton, 4 App. Gas. 504, are leading 
 
362 CONTBAOTS. [Book III. 
 
 thereby incurred. If the writing were on linen, wood, or other 
 substance, it would not be a deed ('). 
 
 C ontracts There cannot be a deed without writing, sealing, and delivery. 
 
 under seal. At Common Law, however, the signature of the party bound is 
 not essential to the validity of a deed (^). The seal is an in- 
 dispensable part of every deed, and so except in the deed of a 
 corporation is the delivery. 
 
 A deed is said to be executed or made conclusive as between 
 the parties when it is " signed, sealed and delivered." 
 
 In the execution of a deed, the seals are usually af&xed before- 
 hand, and the party executing the deed signs his name, places 
 his finger upon the seal intended for him, and utters the words, 
 " I deliver this as my act and deed." 
 
 There may be a sufficient delivery without words (f), or by 
 words oiily without any act of delivery (*), the only question 
 being whether the sealing of the deed was accompanied by any 
 acts or words sufficient to show that the party then intended to 
 execute the deed as his deed, presently binding upon him (*). 
 A deed takes effect from the delivery and not from the date. 
 
 II. Characteristics of Specialty Contracts, 
 The characteristics of specialty contracts are — 
 
 1. Estoppel. — Generally speaking, a person executing a deed 
 is not permitted to contravene or disprove what he has thereiu 
 asserted (see, as to estoppel, post, p. 863). 
 
 2. Merger. — ^Where two parties have made a simple contract 
 for any purpose, and afterwards have entered into the same 
 engagement by deed, the simple contract is merged or extin- 
 guished in that under seal. 
 
 3. Limitation of action. — A right of action arising out of a 
 contract under seal is barred, if not exercised within twenty 
 years from the time the cause of action, arises : 3 & 4 Wm. 4, 
 c. 42, s. 3. 
 
 4. Consideration. — A gratuitous promise is binding if made 
 under seal. 
 
 5. Discharge. — ^The obligation arising out of a contract made 
 by deed cannot be got rid of at Common Law except by a deed. 
 
 (') Shepp. Touch, ?>i. This rule (^) Cherry v. Hemming, 4 Ex. 631. 
 
 contained in the old books is, Sir F. (") Co. Litt. 36a. 
 
 Pollock tells us, "not due as a (*) Ibid., and Tupper v. Foidhes, 
 
 modern reader migbt think to mere 9 C. B. (N.S.) 797. 
 
 exuberance of fancy or abundance (') Xenot v. WicTiham, L. E. 2 
 
 of caution." Ho suggests that the H. L. 296. See as to deeds exe- 
 
 explanation is to be found in the cuted on the same day, Gartside v. 
 
 common use of wooden tallies in the Silkstone and Bodsworth Coal and 
 
 Middle Ages as records of contracts. Iron Co., 21 Oh. D. 762. 
 
Chap. I.] DIFFERENT CLASSES OF CONTRACTS. 363 
 
 According to the well-known rule of law, Niliil tarn conveniens est 
 naturali eequitati quam unumquodque ligamen dissolvi eodem modo 
 quo et ligatum est (see this maxim commented on : Broom's 
 Legal Maxims). The reason of this rule was stated by Lord 
 Coke in the Countess of Butland's Case (^) in these words : " It 
 would be inconvenient that matters in writing made by advice 
 and on consideration and which finally import the certain truth 
 of the agreement of the parties should be controlled by aver- 
 ment of the parties, to be proved by the uncertain testimony of 
 slippery memory. And it would be dangerous to purchasers 
 and all others in such case, if such nude averments against 
 matter in writing should be admitted." In the case of West v. 
 Blakeway (2), it was held to be no defence to an action for 
 breach of covenant, that the tenant had his landlord's permission 
 to commit the particular breach in question, that permission 
 not having been given under seal. 
 
 III. What Contracts must be made by Deed. 
 
 (1) No incorporeal right or hereditament can be expressly 
 created or transferred otherwise than by deed. Thus a right of 
 common, a. profit a prendre — a right of way, a right in nature of 
 an easement, cannot be granted or conveyed without a deed. This 
 may be illustrated by the celebrated case of Wood v. Leadhitter, 
 where it was decided that a right to come and remain for a 
 certain time on the land of another can be granted only by 
 deed ; and that a parol licence to do so, though money be paid 
 for it, is revocable at any time, and without paying back the 
 money. In this case the plaintiff had paid a guinea for a 
 ticket of admission to the grand stand at Doncaster races. The 
 defendant, as the servant of one of the stewards, requested him 
 to leave, and on his refusing to do so, after a reasonable time 
 had elapsed, put him out, using no unnecessary violence, but 
 without returning the guinea. It was held that the plaintiff 
 was remediless (^). 
 
 (2) An authority to an agent to execute a deed for his prin- 
 cipal must itself be under seal. 
 
 (3) A corporation cannot, unless in exceptional cases (post, 
 p. 392), contract without a deed. 
 
 (4) The Eeal Property Amendment Act (*) renders a deed 
 
 (') 5 Co. Eep. 25. (') Wood v. Leadbitter, 13 M. & W. 
 
 C) 2 M. & Gr. 729 ; see Woodfall's 838. 
 
 Landlord and Tenant, 14tli edit., (*) 8 & 9 Vict. c. 106, s. 3. 
 177. • 
 
364 
 
 CONTRACTS. 
 
 [Book III-' 
 
 necessary for a feoffment (unless made under a custom by an 
 infant), a partition, exchange, lease (ia certain cases, see ante, 
 p. 113), and also for an assignment and surrender of a chattel 
 interest in tenements and hereditaments not being copyhold. 
 
 (5) Under the Merchant Shipping Act, 1854, the transfer of 
 any British ship, or of any share in a British ship, is to be 
 effected by an instrument under seal (i). 
 
 (6) Agreements for the sale of the copyright of sculpture 
 must be by deed (^). 
 
 (7) By the Companies Clauses Act, 8 & 9 Vict. c. 16, a 
 deed is necessary for the transfer of shares in companies 
 governed by that Act (^). 
 
 (8) By the Public Health Act, 1875 : " Every contract made 
 by an urban authority whereof the value or amount exceeds 
 £60, shall be in -w;riting and sealed with the common seal of 
 such authority " (f). 
 
 (9) A gift of a chattel inter vivos, if not perfected by delivery, 
 must be evidenced by deed (*). 
 
 Definition. 
 
 Simple 
 contracts. 
 
 Simple Contracts. 
 
 The next subject for our consideration is simple contracts. 
 
 A simple contract may be defined to be an engagement entered 
 into between two or more persons, whereby, in consideration of 
 something done or to be done by the party or parties on one 
 side, the party or parties on the other side promises or 
 promise to do or omit to do some act (^). 
 
 It must be borne in mind that as was said in an oft-quoted 
 case ('), all contracts (except the contracts of record which we 
 have previously mentioned) are distinguished by the law into 
 agreements by specialty and agreements by parol ; nor is there 
 any such third class as contracts in writing ; if they are merely 
 written and not specialties they are parol. Contracts in writing, 
 in fact, are not recognised by the common law as a distinct form 
 of contract. In certain cases, however, to which we shall presently 
 refer, the law requires that simple contracts should be in writing. 
 
 Parol, or simple contracts, then, are either (1) contracts put into 
 
 (») 17 & 18 Vict. c. 104, s. 55. 
 
 C") 54 Geo. III. c. 56. 
 
 C) 8 & 9 Vict. 0. 16. 
 
 (*) 38 & 39 Vict. c. 55, s. 174. Thia 
 section is imperative and not directory 
 only : Hunt v. Looal Board of Wim- 
 Uedon, 4 0. P. T>. 48, 
 
 C) Irons V. Smallpiece, 2 B. & Aid. 
 551, upheld in Cochrane v. Moore, 
 25 Q. B. D. 57. 
 
 (") Chitty on ContniotB, 12tli ed. 
 p. 9, citing Oomyn. Dig. 
 
 (') Rann v. Hughes, 7 T. E. 350. 
 
of contract. 
 
 Chap. I.] DIFFERENT CLASSES OF CONTRACTS. 865 
 
 ■writing, but not sealed and delivered ; or (2) contracts made by- 
 word of moTith ; or (3) implied contracts, i.e., contracts implied 
 from tlie silent language of men's conduct and actions, which 
 are as forcible and binding as those that are made by express 
 words, or through the medium of written memorials (^). 
 
 The essential ingredients of simple contracts are (1) the 
 Reciprocal or mutual assent of two or more persons; (2) a good 
 and valid consideration ; and (3) something to be, done or 
 omitted, which is the object of the contract (^). 
 
 In order that a simple contract should be binding there must Essentials 
 be a definite promise or offer by one party, definitely and ex- 
 pressly accepted by the other. A mere proposal may be revoked 
 at any time before acceptance, except where made by deed (f), 
 or where there is consideration for keeping it open. Thus at 
 an auction a bidding may be retracted until the hammer falls. 
 
 The law on this subject is well illustrated by the case of 
 Dickinson v. Dodds (*), which came before the Court of Appeal 
 in 1876. In this case the defendant Dodds signed and delivered 
 to the plaintiff Dickinson a memorandum, of which the material 
 part was as follows : " I hereby agree to sell to Mr. George 
 Dickinson the whole of the dwelling-houses, garden ground, 
 stabling, and outbuildings thereto belonging, situate at Croft, 
 belonging to me, for the sum of £800. As witness my hand 
 this tenth day of June, 1874. 
 
 (Signed) " John Dodds." 
 
 " P.S. — This offer to be left over until Fiiday, 9 o'clock, a.m. 
 
 " J. D. 
 "(the twelfth) 12th June, 1874. 
 
 (Signed) " John Dodds." 
 
 The Court of Appeal decided that this document only 
 amounted to an offer which might be withdrawn at any time 
 before acceptance. Lord Justice James in delivering judgment 
 in this case, summed up the law as follows : " It must, to con- 
 stitute a contract, appear that the two minds were one at the 
 same moment of time, that is, that there was an offer continuing 
 up to the moment of acceptance. If there was not such a 
 continuing offer, then the acceptance comes to nothing." 
 
 And in the same case. Lord Justice Mellish in delivering judg- 
 ment, said : " It is not necessary that both parties should be 
 bound by the Statute of Frauds, for, if one party makes an offer 
 
 (•) Addison on Contracts, 8th ed. (') Xenos v. Wieltliam, L. B. 2 
 
 pp. 22 and 1026. H L. 296. 
 
 (2) Ohitty on Contracts, 12th ed. (^ 2 Ch. Div. 463. 
 p. 9. 
 
366 
 
 CONTRACTS. 
 
 [Book I [I. 
 
 " Mere 
 mental 
 assent.' 
 
 in writing, and the other accepts it verbally, that will lie suffi- 
 cient to bind the person who has signed the written document. 
 But, if there he no agreement, either verbally or in writing, 
 then, until acceptance, it is in point of law an offer onljj 
 although worded as if it were an agreement." 
 
 " It is clear settled law, that an offer while unaccepted, being 
 given without consideration, is a mere nudum pactum, and does 
 not bind the person making the offer. But the case is quite 
 different if there be a consideration. If, for instance, A. makes 
 such an offer to B., and in consideration of £10 paid by B. to A., 
 agrees that the offer shall be open for a week, it would not b* 
 competent to A. to withdraw the offer before the week had 
 expired" (i). 
 
 It has been laid down by the House of Lords that a "mere 
 mental assent " to the terms of a proposal is not binding. In 
 this case the law was stated by Lord Blackburn as follows : — 
 " When an offer is made to another party, and in that offer 
 there is a request express or implied that he must signify his 
 acceptance by doing some particular thing, then as soon as he 
 does that thing he is bound. If a man sent an offer abroad 
 saying, ' I wish to know whether you will supply me with 
 goods at such and such a price, and if you agree to that you 
 must ship the first cargo as soon as you get this letter,' there 
 can be no doubt that as soon as the cargo was shipped the contract 
 would be complete, and if the cargo went to the bottom of the sea, 
 it would go to the bottom of the sea at the risk of the orderer." 
 Telegraph. With regard to CDmmunications by telegraph, the law pro- 
 ceeds upon the principle that the Post OflSce authorities are 
 agents for the sender of the message, and are only agents to 
 transmit messages on the terms in which the senders deliver 
 them. Accordingly, in a case when a telegraphic message was 
 sent ordering three rifles, and the message delivered ordered 
 the rifles which, read in the light of previous negotiations, was 
 interpreted to be fifty rifles, it was decided that the sender of 
 the message was not liable (^). 
 
 The English law proceeds upon the piinoiple that a promise 
 which is not under seal is not of any legal efficacy unless there 
 be a consideration for it — a rule as we are told on high autho- 
 rity wisely established by the law for the purpose of protecting 
 
 Considera- 
 tion. 
 
 (') Per North, J., in Beichel v. 
 Sislwp of Oxford, 35 Ch. D. 48. 
 
 (^') Hmlcel V. Pape, L. R. 6 Ex. 7 ; 
 Playford v. United Kingdom Tele- 
 
 graph Co., L. R. 4 Q. B. 706 ; Dick- 
 son V. Beuter's Telegraph Co., L. R. 
 2 C. P. D. 62. 
 
Chap. I.] DIFFERENT CLASSES OF CONTRACTS. 367 
 
 weak and thouglitless persons from tlie consequences of rash, 
 improvident and inconsiderate engagements. 
 
 A gratuitous promise, or a promise made witliout any con- 
 sideration, resting in agreement only, is void of legal effect (^). 
 
 A consideration may be either — 
 
 (1) Executed. 
 
 (2) Executory. 
 
 (3) Concurrent, where there are mutual promises — a promise 
 for a promise. 
 
 (4) Continuing. 
 
 An executed consideration is some act performed or some Executed 
 value given at the time of making the promise, and in return considera- 
 for the promise then made, as where goods are delivered or 
 property transferred, or services rendered upon credit, or where 
 money is paid in advance for a promise given (2). 
 
 An executed consideration will sustain only such a promise 
 as the law will imply. This may be illustrated by the case of 
 Boscorla v. Thomas (^), where, in consideration that the plaintiff 
 had bought a horse of the defendant, the defendant promised 
 that it did not exceed four years of age, was sound and free 
 from vice, and the Court held that there was no consideration 
 for such a promise as the only promise which would be implied 
 by the law from such a consideration would be a promise to 
 deliver the horse upon request. 
 
 The point was at one time much discussed whether a moral 
 obligation is a sufficient consideration to support a cimtract, but 
 this question may now be regarded as definitely answered in 
 the negative. The law may now be taken to be that an express 
 promise can only revive a precedent good consideration which 
 might have been enforced at law through the medium of an 
 implied promise, had it not been suspended by some positive 
 rule of law, but can give no original cause of action, if the 
 obligation on which it is founded never could have been enforced 
 at law, though not barred by any legal maxim or statutory pro- 
 vision. It is on this principle that a promise to pay a statute- 
 baired debt is treated by the law as binding (*). 
 
 Where the consideration is past it will not support a promise Past con- 
 unless it be moved by a previous request. This principle was '*"i«'''»'"'"- 
 established by the case of LampleigTi v. Bratliwait, decided in the 
 year 1615. In that case the defendant had committed a murder. 
 
 (') Leake on Contracts, 17, citing (*) Beaumont v. Reeve, 8 Q. B. 
 
 Plow. 483; Eastwood V. Keni/on, 11 A. & E. 
 
 C) Leake on Contracts, p. 18. 438 ; and see Oliitty on Contracts 
 
 (=) 3 Q. B. 231. 12tli ed. p. 37. 
 
368 
 
 CONTRACTS. 
 
 [Book III. 
 
 Request 
 
 where 
 
 implied. 
 
 Executory 
 considera- 
 tion. 
 
 and he requested the plaintiff to " labour and do his endeavour " 
 to obtain his pardon from the King. Thereupon the plaintiff 
 rode and journeyed to obtain the pardon, and afterwards the 
 defendant promised to give him one hundred pounds, the 
 defence was that the consideration was past, and that nothing 
 was done. The Court decided that labour though unsuccessful 
 is a good consideration, and that although a mere voluntary 
 courtesy will not uphold a promise, yet a courtesy moved by a 
 previous request will. 
 
 The case of Lampleigh v. Brathwait was commented on in the 
 leading case on the position of counsel, Kennedy v. Broun, to 
 which we shall subsequently refer, where Erie, O.J., in his 
 " memorable judgment " said, " Probably at the present day, such 
 service on such a request would have raised a promise by im- 
 plication to pay what it was worth ; and the subsequent promise 
 of a sum certain would have been evidence for the juiy to fix 
 the amount." 
 
 The request will be implied in the following circumstances : — 
 
 1. Where the consideration consists in the plaintiff having 
 been compelled to do that to which the defendant was legally 
 compellable. 
 
 2. Where the defendant has adopted and enjoyed the benefit 
 of the consideration, for here his subsequent assent amounts to 
 a ratification ; and in that case the maxim omnis ratihabitio retro- 
 trahitur et mandato priori cequiparatur, viz., every ratification hath 
 a retrospective effect, and is considered equivalent to a prior 
 command, is held applicable. 
 
 3. Where the plaintiff voluntarily does that to which the 
 defendant was legally compellable, and the defendant afterwards, 
 in consideration thereof, expressly promises. 
 
 4. In some cases where the plaintiff ^olunta^ily does that 
 wliich the defendant is morally though not legally compellable 
 to do, and the defendant in consideration thereof expressly 
 promises Q-). 
 
 An executory consideration is a promise to do or give 
 something in return for the promise then made, e.g. where there 
 is an interchange of promises, and each material promise forms 
 the consideration for the other. 
 
 Whenever the consideration of a promi&e is executory, there 
 must necessarily have been a request on the part of the person 
 promising. Thus, if A. promise to remunerate B. in considera- 
 
 (') See Chitty en Contracts, 12th Brathwait, 
 ed. p. 47, and notes to Lampleigh v. Cases. 
 
 1 Smilli's Leading 
 
Chap. L] DIFFERENT CLASSES OF OONTBAOTS. 369 
 
 tion that B. will perform something specified, that amounts to a 
 request to B. to perform the act for which he is to be remu- 
 nerated. This is well illustrated by the case of Shadwell v. 
 Shadwell Q-), where an uncle wrote to his nephew who had 
 promised to marry " E. N. " in the following terms : — " I am 
 glad to hear of your intended marriage with ' E. N.,' and as I 
 promised to help you at starting, I am happy to tell you that I 
 will pay to you £150 yearly during my life, and until your 
 annual income derived from your profession of a Chancery 
 barrister shall amount to 600 guineas." 
 
 The nephew married " E. N.," and the question whether this 
 letter amounted to a request subsequently arose in an action 
 brought by the nephew against his uncle's executors for arrears 
 of the annuity. The majority of the Court decided in the 
 plaintiff's favour (^). 
 
 Where one of the parties to an executory agreement breaks Executory 
 the agreement before the time of executing it, either by disabling "S""^^™^'''- 
 himself from fulfilling it or by repudiating the contract, the 
 other party to the contract is at once discharged and may sue 
 immediately for breach of the contract. One of the leading 
 cases on this subject is Hochster v. Delatour (s). In that case 
 the defendant engaged the plaintiff to enter into his service as 
 a courier commencing from a certain time. Some time before 
 the day for the commencement of the employment, the defendant 
 wrote to the plaintiff and refused to perform the contract. The 
 Court laid down the principle that where there is a contract to 
 do an act on a future day, there is a relation constituted between 
 the parties in the meantime by the contract, and they impliedly 
 promise that in the meantime neither will do anything to the 
 prejudice of the other inconsistent with that relation. 
 
 The principle in this ca,se was followed in a well-known case Promise 
 where a gentleman promised to marry a lady as soon as his *° """""ry. 
 father died, and subsequently renounced the contract while his 
 father was still alive (*). In this case the law on the subject was 
 summed up by the late Chief Justice Cockburn as follows : — 
 " The law with reference to a contract to be performed at a 
 future time, where the party bound to performance announces 
 prior to the time his intention not to perform it, as established 
 by the cases is as follows : The promisee, if he pleases, may 
 treat the notice of intention as inoperative, and await the time 
 
 (') Smith's Leading Cases, 9tli ed. (*) Frost v. Knight, L. E. 7 Ex. 
 
 p. 157. 114, where the oases on the subject 
 
 C) 9 C. B. (N.S.) 159. are reviewed. 
 
 C) 2 E. & B. 678. 
 VOL. I. 2 B 
 
870 
 
 OONTSAOTS. 
 
 [Book III. 
 
 Concurrent 
 considera- 
 tion. 
 
 Continuing 
 considera- 
 tion. 
 
 Quantum 
 of con- 
 sideration. 
 
 when the contract is to be executed, and then hold the other 
 party responsible for all the consequences of non-performance : 
 but in that case he keeps the contract alive for the benefit of 
 the other party as well as his own ; he remains subject to all 
 the obligations and liabilities under it, and enables the other 
 party not only to complete the contract, if so advised, notwith- 
 standing his previous repudiation of it, but also to take advantage 
 of any supervening circumstances which would justify him in 
 declining to complete it ; on the other hand the promisee may, 
 if he thinks proper, treat the repudiation of the other party as 
 a wrongful putting an end to the contract, and may at once 
 bring his action as on a breach of it ; and in such action he will 
 be entitled to such damages as would have arisen from non-per- 
 formance of the contract at the appointed time, subject, howevei-, 
 to abatement in respect of any circumstances which may have 
 afforded him the means of mitigating his loss " (^). It must be 
 borne in mind that if the renunciation be not accepted the 
 contract remains in full force. 
 
 A concurrent consideration arises in the case of muttial 
 promises, a promise for a promise being, as we have seen, a 
 good consideration. In the case of concurrent consideration, 
 the plaintiff's promise is executed, but the thing to be per- 
 formed by him is executory. Hence, although the acts to he 
 done by the plaintiff are not conditions precedent, but concurrent 
 with those to be done by the defendant, yet he cannot, maintain 
 an action without showing performance of, or an offer to perform 
 his part. It is sufficient, however, for the plaintiff in such a 
 case to aver readiness and willingness to perform (^). 
 
 A continuing consideration being in part executed, but which 
 still continues, is also in many cases sufficient to support a 
 promise, e.g. in consideration that the defendant had become 
 and was the plaintiff's tenant, he undertook to manage the 
 farm in a husbandliice manner, or in consideration that the 
 lessee then in possession had occupied the land and paid his 
 rent to saA'e him harmless against all persons during the period 
 of his occupation "because his occupation and prompt payment 
 of the rent is a continuing consideration " (2). 
 
 With regard to the quantum of the consideration, it is a long- 
 established principle that any benefit to the person making the 
 promise, or any damage or any suspension, or forbearance of his 
 
 (') See also Johnstone v. Mdling, 
 16 Q. B. D. 460. 
 
 (2) Giles V. Giles, 9 Q. B. D. 164- 
 ] 7'1 ; Waterhouee v. Skinner, 2 B. & P. 
 
 447. 
 
 (') Marsh v. Rainsford, 2 Leon. 
 Ill; Swenhamy.Warlituiton,2Lemi. 
 224. 
 
Chap. I.] DIFFERENT 0LA8SE8 OF G0NTBA0T8. 371 
 
 right, or any loss, or possibility of a loss to the person to whom 
 it is made is a sufficient consideration for such promise. 
 
 The mere entrusting a person with property, or a promise by 
 him that he will faithfully discharge his duty with reference to 
 it, is of itself a consideration. Thus, in the celebrated case of 
 Goggs V. Bernard, where the defendant undertook to take up 
 hogsheads of brandy then in a certain cellar in D. and to lay 
 them down again in a certain other cellar in Water Lane, and 
 did his work so negligently that one of the casks was stoved, 
 and a large quantity of the brandy was spilt, it was held that 
 he was responsible for the damage done, though he was not a 
 common carrier, and his service was gratuitous ('). 
 
 Again, a promise to forbear from suing absolutely or for a Forbear- 
 certain time, or for a reasonable time (and this is implied by the ^^"^ ''^"^' 
 law if no time be mentioned) or actual forbearance at the 
 request,, express or implied, of the other party, is a good 
 consideration (^). 
 
 Other instances of consideration which have been sufficient to Considera- 
 support a simple contract, are the assignment of a debt, the '™^' 
 release of an equitable claim, the settlement of a doubtful claim, 
 or reciprocal promises between the parties (^). 
 
 In a case which came before the House of Lords in 1887, 
 there was an agreement between a judgment debtor and a 
 judgment creditor that, in consideration of the debtor paying 
 down part of the judgment debt and costs and on condition 
 of his paying to the creditor or his nominee the residue by 
 instalments, the creditor would not take any proceedings on the 
 judgment. It was held that here there was no consideration, 
 that it was a mere nvdum pactum, and that the creditor after 
 payment of the debt and costs was not prevented from pro- 
 ceeding to enforce payment of the interest upon the judg- 
 ment (*). 
 
 Q) Smith's Leading Cases, vol. i. (■*) Foakes v. Seer, 9 App. Cas. 
 
 9th ed. 199. 605, following the old case of Cumber 
 
 (') Orears v. Hunter, 19 Q. B. D. v. Wane, and see Bidder v. Bridges, 
 
 (C. A.) 341. 37 Ch. D. 406, where this case was 
 
 (2) Chitty on Contracts, 12th ed. distinguished, 
 p. 32, et seq. 
 
 2 B 2 
 
( 372 ) 
 
 CHAPTEE II. 
 
 SmPLE CONTEACTS EEQ0IR1D TO BE IN WeITING. 
 
 Let us now consider what simple contracts are required by 
 the law to be in writing. The chief cases in which writing is 
 required by the law are those which are prescribed by the 4th 
 and 17th sections of the Statute of Frauds, which shall be pre- 
 sently considered ; but in addition to these cases, writing is also 
 required by the law in certain cases of which the following may 
 be mentioned : — 
 
 (1) Bills of exchange, cheques, and promissory notes, must 
 under the Bills of Exchange Act, 1 882, be in writing Q). 
 
 (2) Assignments of copyright must be in writing. 
 
 (3) An acknowledgment of a statute barred debt must be in 
 writing signed by the debtor (2) or by his duly authorised 
 agent ('). 
 
 Statute of The 4th section of the Statute of Frauds provides as follows : — 
 Frauds, That no action shall be brought — 
 
 ss. 4 17. 
 
 ' ' First, " whereby to charge any executor or administrator 
 
 upon any special promise to answer damages out of bis own 
 estate;" or, 
 
 Secondly, " whereby to charge the defendant upon any special 
 promise to answer for the debt, default, or miscarriage of 
 another person ;" or. 
 
 Thirdly, " to charge any person upon any agreement made 
 upon consideration of marriage ;" or, 
 
 Fourthly, " upon any contract or sale of lands, tenements, or 
 hereditaments, or any interest in or concerning them ;" or, 
 
 Fifthly, " 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 to be charged therewith, or some other person 
 thereunto by him lawfully authorised." 
 
 The 17th section of the Statute of Frauds provides that " no 
 contract for the sale of any goods, wares, or merchandises for 
 the price of £10 sterling or upwards, shall be allowed to be 
 
 r') 45 & 46 Vict. 0. 61, ss. 3, 7,3, 83. Tentei-den'a Act). 
 
 C) 9 Geo. 4, c. 14, s. 1 (Lord (') 19 & 20 Vict. c. 97, s. 13. 
 
Chap. II.] SIMPLE CONTRACTS. 373 
 
 good, except the buyer shall first accept part of the goods so 
 sold, and actually receive the same; or, secondly, shall give 
 something in earnest to bind the bargain, or in part of pay- 
 ment ; or, thirdly, unless some memorandum or note in writing 
 of the said bargain be made, and signed by the parties to be 
 charged with such contract, or their agents thereunto lawfully 
 authorized " (^). Price is now extended to value by Lord 
 Tenterden's Act {jpost, p. 378). 
 
 It will be observed that the form required by these two sec- 
 tions is the same. There must be a note or memorandum in 
 writing signed by the party to be charged under the contract, 
 or by his agent thereunto lawfully authorized. 
 
 The cases which have been decided upon the interpretation Decisions 
 of these sections are extremely numerous, and it is altogether °^l^^^^'^^ 
 impossible for us to attempt to do more than to refer to some of tions of the 
 the leading principles which they decide. The following Statute of 
 points have been decided upon the construction of both sections. 
 
 1. The note or memorandum may consist of several docu- 
 ments, but they must be sufficiently connected together, and 
 contain all the terms of a contract. This may be illustrated by 
 the celebrated case of Boydell v. Brummond (^). 
 
 In that case a printed prospectus of a magnificent edition of 
 Shakespeare to come out in numbers lay in the plaintiff's shop, 
 " one number at least to be published annually," and the 
 proprietors were " confident that they should be able to produce 
 two numbers in the course of every year." The plaintiif also 
 kept a book which had for its title ' Shakespeare Subscribers, 
 their Signatures.' The Subscribers' Book, however, did not 
 refer to the prospectus. The defendant signed the Subscribers' 
 Book, and the question arose whether he was liable. The 
 Court decided that as the agreement was not to be performed 
 within the space of a year from the making thereof, it fell 
 within the 4th section of the Statute of Frauds and required a 
 signed memorandum, that the connection between the prospectus 
 and memorandum must appear on the face of the documents 
 themselves, but could not be proved by parol evidence. 
 
 2. The memorandum must shew who are the parties to the 
 contract (^). 
 
 (') It has been deemed advisable added, probably witb at least equal 
 to give the ipsissima verba of these truth, that every line of it had cost a 
 celebiutedsections, on account of their subsidy in respect of judicial inter- 
 extreme importance. Every line of pretation. 
 the 4th section of the Statute of f ) 11 East, 142. 
 Frauds, it was said by an enthuaiast, (^) Williams v. Lalce, 2 E. & E. 
 is worth a subsidy ; to which it was 349. 
 
374 
 
 aONTBAOTS. 
 
 [Book IH. 
 
 Decisions 
 on Statute 
 of Frauds. 
 
 Mercantile 
 Law 
 Amend- 
 ment Act, 
 1856. 
 
 Statute of 
 Frauds, 
 s. 4. 
 
 But a description of one of the parties will let iu parol evi- 
 dence to identify Mm (}). 
 
 3. The memorandum must be signed by the party to be 
 charged, or his duly authorised agent. 
 
 Both parties need not sign the document, but the party who 
 has not signed may have the option of enforcing the contract 
 against the other (^). 
 
 The signature, so long as it was intended to be a signature 
 governing the whole contract, need not be the party's autograph, 
 but may be a mark (^), and may occur in any part of the 
 document, whether at the beginning, in the middle, or at the 
 end (*). 
 
 It is sufScient if there be written evidence of the contract 
 before the action is brought upon it, though none existed at the 
 time of the contract itself. A memorandum after the action 
 has been commenced is not sufficient (^). 
 
 4. It was laid down in the leading case of Wain v. Warlters (^) 
 that, in contracts within the fourth section of the Statute of 
 Frauds the consideration as well as the promise must appear in 
 writing. It was held in that case that the word agreement in 
 the statute, included the consideration for the promise as well 
 as the promise itself. 
 
 This rule was found inconvenient as regards guarantees, and 
 accordingly it is provided by the Mercantile Law Amendment 
 Act, 1856 (19 & 20 Vict. c. 97, s. 3), that a promise to answer 
 for the debt, default, or miscarriage of another shall not he 
 " deemed invalid to support an action, or other proceeding to 
 charge the person by whom such promise shall have been made 
 by reason only that the consideration for such promise does not 
 appear in writing, or by necessary inference from a written 
 document." 
 
 It will be desirable to notice briefly some of the more 
 important principles settled by the very numerous cases which 
 have been decided on the fourth section of the Statute of 
 Frauds. 
 
 With regard to the first sub- section of the fourth section, 
 
 (') Trueman v. Loder, ] 1 A. & B. 
 595. 
 
 O See Laythoarp v. Bryant, 2 
 Bing. N. C. 744 ; Caton v Caton, 
 L. E. 2 H. L. 127; Benjamin on 
 Sale, 4tli ed. 230. 
 
 (0 Baker v. Dening, 8 A. & E. 94. 
 
 (*) Dmrell v. Evans, 1 H. & C. 
 174 ; Johnson v. DodQson, 2 M. & W. 
 
 653. 
 
 (») Bill V. Bament, 9 M. & W. 36; 
 Gibson v. Holland, L. E. 1 0. P. 9. 
 By E. S. C, 1883, Order xix., rr. 15, 
 20, tlie Statute of Frauds must now 
 be specially pleaded. 
 
 C) 6 Bast, 10 ; see notes thereto, 
 1 Smith's Leading Cases. 
 
Chap. II.] SIMPLE C0NTBACT8. 375 
 
 witli reference to tlie authentication required by tlie statute of Promise by 
 the promise by an executor or administrator, it must be borne ^^^'="*''.'' . ^ 
 in mind that, even though the promise be in writing, the trator. 
 executor will not be bound unless it be by deed or there be 
 some valid consideration for the promise. A mere promise 
 without consideration will leave the executor liable only as 
 executor, and to the extent of the assets in his hands. If a 
 creditor at the executor's request forbears to sue him, that is 
 sufficient consideration, whether the executor has assets or not 
 at tlie time of the promise ('). 
 
 It has been decided that if an executor promises to pay at a 
 future time a debt immediately due from his testator, this 
 renders him personally liable. This principle was applied to a 
 case in which two executors gave a promissory note in the 
 following form : " As executors to the late A. B., we severally 
 and jointly promise to pay to C. D. the sum of £300, with 
 lawful interest for the same." The Court decided that, as 
 interest was to be added, the promise necessarily imputed a 
 future payment, and that therefore the executors were person- 
 ally liable (2). 
 
 The 2nd sub-section of the 4th section of the Statute of Guarantee. 
 Frauds deals with the subject of guarantees. 
 
 A guarantee may be defined as a collateral promise in 
 writing, which one who is called the surety enters into, to 
 answer for the debt, default, or miscarriage of another who 
 remains primarily liable for such debt, default, or miscarriage, 
 and is called the principal debtor. It was established by the 
 leading case of Birlcmyr v. Darnell (^), that a promise to answer 
 for the debt, default, or miscarriage, for which that other 
 remains liable, requires to be in writing, in order to satisfy the 
 statute, but that if the other does not remain liable, no writing 
 is required. 
 
 If two came to a shop, said the Court in that case, and one 
 buys, and the other, to gain him credit, promises the seller, " If 
 he does not pay you, I will," this is a collateral promise, and 
 requires writing. But if he says, " Let him have the goods ; I 
 will be your paymaster ; " or " I will see you paid ; " this is an 
 undertaking for himself, and no writing is required. 
 
 The question to which of the two credit is given is generally 
 one for the jury, who take into account all the circumstances. 
 A strong but not conclusive circumstance that a person is only 
 
 (') Williams on Executors, 8th ed. 460 ; 5 Moore, 281. 
 p. 1784. (') 1 Smith's Leading Cases and 
 
 (2) Childs V. Morris, 2 B. & B. see notes thereto. 
 
376 
 
 CONTRACTS. 
 
 [Book HI. 
 
 Promise in 
 considera- 
 tion of 
 marriage. 
 
 Contracts 
 for Jands, 
 tenements, 
 &c. 
 
 a surety is that he is not originally debited in the tradesman's 
 books (1). 
 
 The effect of this provision of the Statute of Frauds was 
 evaded by bringing the action in another form. To remedy this 
 it viras provided by Lord Tenterden's Act (9 Geo. 4, c. 14), s. 6, 
 that no action shall be brought to charge any person by reason 
 of any representation or assurance made or given concerning or 
 relating to the conduct, credit, ability, trade or dealings of any 
 other person, to the intent or purpose that such other person 
 may obtain credit, money, or goods upon, unless such representa- 
 tion or assurance be made in writing signed by the party to be 
 charged therewith (f). 
 
 The third sub-section enacts that any agreement made in 
 consideration of marriage must be in writing. It has, however, 
 been long decided that an agreement consisting of mutual 
 promises to marry need not be in writing (^). But an agree- 
 ment as to collateral matters, e.g. a promise in consideration of 
 marriage to make a settlement or will, or pay money, must be 
 in writing (f) ; and marriage is a good consideration in such a 
 promise. 
 
 The fourth sub-section renders writing necessary in contracts 
 for lands, tenements, and hereditaments, and any interest in or 
 concerning them. It has been decided that a contract to give 
 or take a lease or tenancy of a house or land, or to assign or 
 surrender a tenancy to the landlord in favour of another; a 
 contract for the sale of a business, as a milk-walk, or a brick- 
 yard, accompanied with possession of the premises where it is 
 carried on ; a contract to procure a lease or interest in land for 
 another, although the contractor himself have no interest, and 
 act merely as broker or agent in the matter (5) ; a contract for 
 a right to shoot over land, and take away the game (^), are 
 within the statute. Contracts for shares in railway, canal, 
 water, and gas companies, are not within the statute ('). 
 
 What is an interest in land within the meaning of the fourth 
 sub-section of the fourth section of the Statute of Frauds ? 
 
 The law on this subject has been well summed up as follows : 
 " Growing crops, ii fructus industriales, are chattels, and an agree- 
 ment for the sale of them, whether mature or immature, whether 
 
 (') See notes to Birlemyr v. Darnell, 
 1 Smith's Leading Cases. 
 
 O See Smith's Leading Cases, 
 9th ed. p. 195 et seq. ; Lyde v. Bar- 
 nard, 1 M. & W. 101 ; Swift V. Jews- 
 bury, L. E. 9 Q. B. 301. 
 
 (^) Cork V. Baker, 1 Str. 34; 
 
 Harrison v. Cage, 1 Eaym. 386. 
 
 (*) Caton V. Caton, L. E. 1 Ch. 
 137 ; 2 H, L. 127. 
 
 (') Leake on Contracts, p. 249. 
 
 C) Webber v. Lee, 9 Q. B. D. 315. 
 
 (') Bradley V. Holdsworth, 3 M. & W. 
 422 ; Bligh v. Brent, 2 Y. & C. 208. 
 
Chap. II.] SIMPLE CONTRACTS. Sll 
 
 the property in ttem is transferred before or after severance, is 
 not an agreement for the sale of any interest in land, and is not 
 governed by the fourth section of the Statute of Frauds. Grow- 
 ing crops, ii fructus naturales, are part of the soil hefore severance, 
 and an agreement therefore vesting an interest in them in the 
 purchaser before severance, is governed by the fourth section ; 
 but if the interest is not to be vested till they are converted 
 into chattels by severance, then the agreement is an executory 
 agreement for the sale of goods, wares, and merchandise, 
 governed by the seventeenth, and not by the fourth section of 
 the statute " (i). 
 
 It has been decided that agreements for the sale of growing 
 crops of potatoes, turnips, wheat, or barley are not within the 
 statute, and it is immaterial whether the crops are to be gathered 
 by the vendor or the purchaser. Standing timber, fruit on a 
 tree, and grass, are within the statute. 
 
 lu one of the la.st cases in this sub-section, decided in the year 
 1888, it was held that a contract for the sale of the building 
 materials, with a condition that all the materials were to be 
 taken down and cleared oflf the ground in two months, was 
 within the statute, and required to be in writing (^). 
 
 With regard to the fifth sub-section of the 4th section, it was Peter t. 
 decided in the leading case oi Peter y. Gompton(f) that an agree- Cb^npiore. 
 merit to fill within the words of the statute, " an agreement 
 that is not to be performed within one year from the making 
 thereof," must be one which appears from its terms to be in- 
 capable of performance within the year. In this case the 
 defendant promised for one guinea to give the plaintiff so many 
 at the day of his marriage, and it was held that the agreement 
 need not be in writing, for the contingency might arise within a 
 year. It has been held that an agreement to hire a carriage for 
 five years — though by the custom of the trade such an agree- 
 ment might be determined by payment of hire for one year (*) 
 — a contract for payment of an annuity which might be deter- 
 mined within a year (^), and a contract that Mr. W. B. should 
 be solicitor to a company and should not be removed from his 
 oiEce except for misconduct (^), all require to be in writing. It 
 
 (') Benjamin on Sale, Ith ed. 508. 
 
 p. 121 ; see also BUickbura on Sales, (') Skinner, 353 ; see Smith's 
 
 p. 11 et seq. ; Marshall v. Green, Leading Oases, vol. i. p. 359, and 
 
 1 C. P. D. 35, where the authorities notes thereto. 
 
 are considered. See as to what is C) JBirch v. Earl of Liverpool, 
 
 sufficient memorandum : Oliver v. 9 B. & 0. 392. 
 
 Hunting, 44 Ch. D. 205; Stokell v. (=) Sweet v. Lee, 4 M. & Gr. 452. 
 
 Niven 61 L. T. 18. (") Eley v. Positive Assurance Co., 
 
 (^) Lavery v. Pursell, 89 Ch. D. 1 Ex. D. 20. 
 
378 
 
 CONTRACTS. 
 
 [Book HI. 
 
 Agreement 
 not to be 
 performed 
 within a 
 year. 
 
 Statute of 
 Frauds, 
 s. 17. 
 
 is sufficient, however, if the agreement is to be performed by 
 either party within the year, however many years may have 
 to elapse before the agreement is performed by the other 
 party Q). 
 
 In a case decided in 1888 (^), where a husband and wife 
 having instituted proceedings against each other for assault, 
 had subsequently agreed to settle their differences in a more 
 amicable manner, and entered into an oral agreement with each 
 other to withdraw the summonses and to live apart on certain 
 terms, the Court of Appeal decided that the agreement was Tiot, 
 " nut to be performed within one year," within the Statute of 
 Frauds, and that writing was unnecessary. 
 
 " The Statute of Frauds," said one of the judges, " speaks of 
 any agreement that is not to be performed within the space of 
 one year from the making thereof, pointing to contracts the 
 complete performance of which is of necessity extended beyond 
 the space of a year. That appears clearly from the case of 
 Boydell v. Brummond, the rule to be extracted from which is, 
 that, where the agreement distinctly shows upon the face of it, 
 that the parties contemplated its performance to extend over a 
 greater space of time than one year, the case is within the 
 statute; but that where the contract is such that the whole may 
 be performed within a year, and there is no express stipulation 
 to the contrary, the statute does not apply " (^). 
 
 Let us now proceed to consider the 17th section of the 
 Statute of Fiauds, but before doing so we may point out that 
 the provisions of the 17th section of the Statute of Frauds, 
 have been extended by Lord Tenterden's Act (^) to all executory 
 contracts, i.e. all contracts for the sale of goods of the value of 
 £10 and upwards, notwithstanding the goods may be intended 
 to be delivered at some future time, or may not at the time of 
 such contract be actually made, procured or provided, or iit or 
 ready for delivery, or some act may be requisite for the making 
 or completing thereof, or rendering the same fit for delivery. 
 
 An important distinciion between the language employed by 
 the legislature in the 4th and 17th sections of the Statute of 
 Fiauds must also be noticed. The 4th says merely "no action 
 shall be brought," while the 17th declares that no contract 
 within it shall be " allowed to be good." It has been decided 
 
 (') Bonellan v. Read, 3 B. & Ad. 
 899 ; Miles v. New Zealand Alford 
 Estate Co., 32 Ch. D. 266. 
 . in McGi-egar y. McGregor, 21 
 Q. B. D. 124. 
 
 C) Per Lord E.sher, M.E., in 
 McGregor v. McGregor, 21 Q. B. D. 
 429 
 
 C) 9 Geo. 4, c. 14, s. 7 
 
Chap. II.] SIMPLE CONTRACTS. 379 
 
 that the 4th section only applies to the procedure, and does not 
 affect the intrinsic validity of the contract Q-). 
 
 Except under particular circumstances the parties to an Agreement 
 agreement concerning the sale of specified chattels are taken to ^"^ ^'^^'^ °^ 
 intend an immediate transfer of the right of property from the 
 vendor to the purchaser, and the law fulfils their intention, 
 and transfers the right of property accordingly. But there is 
 nothing to prevent the parties from coming to an agreement 
 that the property shall be transferred when and not till certain 
 conditions have been performed ; when the agreement is of that 
 nature the law fulfils the intention of the parties. 
 
 The property is not transferred before the performance of the 
 conditions ; if nothing has occurred in the meantime to prevent it, 
 the property is transferred as soon as the conditions are performed. 
 
 Where an agreement is for the sale of goods and the perform- 
 ance of other things, it becomes important to ascertain whether 
 the perlbrmance of any of those things is meant to precede the 
 vesting of the property or not. This is a question of the 
 construction of the agreement, and the Courts have adopted 
 two rules for this purpose, viz. : — 
 
 (1) That where, by the agreement, the vendor is to do any- 
 thing to the goods for the purpose of putting them into that 
 state in which the purchaser is bound to accept them, the 
 performance of those things shall (in the absence of circum- 
 stances indicating a contrary intention) be taken to be a 
 condition precedent to the vesting of the property. 
 
 (2) That where anything remains to be done to the goods 
 for the purpose of ascertaining the price, as by weighing, 
 measuring, or testing of the goods where the price is to depend 
 on the quantity or quality of the goods, the performance of 
 those things also shall be a condition precedent to the transfer 
 of the property, although the individual goods be ascertained, 
 and they are in a state in which they ought to be accepted. 
 
 These rules cannot be better illustrated than by the case of 
 Bugg V. Minett (2), in which they were both applied. The 
 
 (') Leroux v. Brown, 12 C. B. 807. 17th sections, is not to render the 
 
 In Williams v. Wlieeler, 3 C. B. (N.S.) contracts within them void, still less 
 
 316, Willes, J., while professing him- illegal, but is to render the kind of 
 
 self not satisfied with this decision, evidence required indispensable when 
 
 declared' that it must be acted on it is sought to enforce the contract." 
 
 until overruled by a superior Court. See as to variation of written contract, 
 
 In Maddison v. AldersoUf 8 App. Gas. Ooss v. Lord Nugent, 5 B. & Ad. 58 ; 
 
 488, Lord Blackburn, however, said : Ohitty on Contracts, 12th ed. p. 161, 
 
 "I tliink it is now finally settled et seq. 
 
 that the true construction of the (^) 11 East, 210. 
 Statute of Frauds, both the 4th and 
 
380 
 
 CONTRACTS. 
 
 [Book III. 
 
 Agreement 
 for sale. 
 
 Definition 
 of war- 
 ranty. 
 
 material facts of that case were these : Eugg bought twenty- 
 four lots of turpentine out of twenty-seven, which were sold by 
 auction. By the terms of the sale, twenty-five out of the 
 twenty-seven lots were to be filled up by the sellers from the 
 other two, and so made to contain a specified quantity, and the 
 two lots were then to be measured and paid for according to 
 their contents. Kugg's purchase included these two lots of 
 uncertain quantities. The three lots which were not purchased 
 by Eugg were filled up and removed, so that Eugg was clearly 
 entitled to have the whole of what remained, and no difficulty 
 could arise from the subject matter of the sale being ascertained. 
 Eugg paid about £2000 on account of the turpentine; the 
 greater part of the lots were filled up, and the others were 
 being filled up, when by an accidental fire the whole was 
 consumed, no part having been delivered. Eugg brought an 
 action in the King's Bench to recover the £2000 he had paid on 
 account, and the Court held that all those lots which were filled 
 up before their destruction were the property of the purchaser ; 
 and that the sellers were entitled to retain their price, but that 
 the others remained the property of the seller, who must there- 
 fore refund the price received on account of them. The test, 
 according to Lord EUenborough, was whether " everything had 
 been done by the sellers which lay upon them to perform, in 
 order to put the goods in a deliverable state " ;. and Bayley, J., 
 said that " if the sellers meant to relieve themselves from all 
 further responsibility, they should have done what remained 
 for them to do, until that was done the property remained in 
 them." 
 
 A warranty has been judicially defined to be an express or 
 implied statement of something which the party undertakes 
 shall be part of a contract, and, though part of the contract, yet 
 collateral to the express object of it (^). The distinction 
 between a warranty, a representation, and a condition were 
 discussed in a well-known case (^) as follows : " Properly 
 speaking, a representation is a statement or assertion, made by 
 one party to the other before or at the time of the contract, of 
 
 (>) Per Lord Abinger, C.B., 
 Chanter v. HapMns, 4 M. & W. 404, 
 adopted by Martin, B., in Azemar v. 
 Casella, L. R. 2 C. P. (J77, 679. 
 
 (2) Behn v. Burness, 3 B. & S. 751. 
 Sir W. Anson, while expressing an 
 opinion that the judgment in this 
 case is the fullest judicial analysis of 
 the terms of a contract, draws atten- 
 
 tion to the fact that it also affords a 
 good ilhiatration of " the provoking 
 confusion of the terminology of this 
 part of the subject." See further on 
 this subject, Anson on Contracts, 
 p. 142, and note p. 309, where some 
 of the many various senses in which 
 the term " warranty " has been used 
 are enumerated. 
 
Chap. II.] SIMPLE CONTRACTS. 381 
 
 some matter or circumstance relating to it. Though it is some- Warranty 
 times contained in the written instrument, it is not an integral '"'"'^ lepre- 
 
 . ° sentations. 
 
 part of the contract ; and, consequently, the contract is not 
 broken though the representation proves to be untrue (i) ; nor is 
 such untruth any cause of action, nor has it any efficacy what- 
 ever, unless the representation was made fraudulently either 
 by reason of its being made with a knowledge of its untruth, 
 or by reason of its being made dishonestly, with a reckless 
 ignorance whether it was true or untrue . . . Though repre- 
 sentations are not usually contained in the written instrument 
 of contract, yet they sometimes are. But it is plain that their 
 insertion therein cannot alter their nature. A question, how- 
 ever, may arise whether a descriptive statement in the written 
 instrument is a mere representation, or whether it is a substan- 
 tive part of the contract. This is a question of construction 
 which the Court and not the jury must determine. If the 
 Court should come to the conclusion that such a statement by 
 one party was intended to be a substantive part of his con- 
 tract, and not a mere representation, the often-discussed ques- 
 tion may, of course, be raised, whether this part of the contract 
 is a condition precedent, or only an independent agreement, a 
 breach of which will not justify a repudiation of the contract, 
 but will only be a cause of action for a compensation in 
 damages." 
 
 " But with respect to statements in a contract descriptive of 
 the subject-matter of it, or of some material incident thereof, 
 the true doctrine, established by principle as well as authority, 
 appears to be, generally speaking, that if such descriptive 
 statement was intended to he a substantive part of the contract, 
 it is to be regarded as a warranty, that is to say, a condition on 
 the failure or non-performance of which the other party may, if 
 he is so minded, repudiate the contract in toto, and so be 
 relieved from performing his part of it, provided it has not 
 been partially executed in his favour. If, indeed, he has 
 received the whole or any substantial part of the consideration 
 for the promise on his part, the warranty loses the character of 
 a condition, or, to speak perhaps more properly, ceases to be 
 available as a condition, and becomes a warranty in the narrower 
 sense of the word, viz. a stipulation by way of agreement for 
 the breach of which a compensation must be sought in 
 damages." 
 
 (i) Policies of insiirance are, as rally speaking, an exception (see 
 pointed out in the judgment, gene- ante, p. 278). 
 
382 CONTRACTS. [Book HI. 
 
 Warranty. The law witli regard to warranty in respect of mamifactnres 
 was considered by the House of Lords in a case which came 
 before them in 1887 Q-). In that case certain cloth merchants 
 ordered of cloth manufacturers at Bradford mixed worsted 
 coatings which were to be in quality and weight equal to certain 
 numbered samples which had been previously furnished by the 
 manufacturers to the merchants. The goods were well known 
 in the trade as " corkscrew twills." The object of the merchant 
 was to sell the coatings to clothiers or tailors in the United 
 States. The goods supplied corresponded in every particular 
 with the samples, but owing to a certain defect which was 
 latent, and not discoverable by due diligence upon such inspec- 
 tion MS was ordinary on sales of cloth of that class, the goods 
 turned out to be unmerchantable, and were returned upon the 
 merchants' hands. The House of Lords held that upon such a 
 contract there was an implied warranty of the fitness of the 
 goods, and that the merchants were entitled to recover. 
 
 The following propositions of law on the subject of warranty, 
 which had been laid down in previous cases, received the 
 approval of the House of Lords in the present case : — 
 
 1. Where goods are ordered of a manufacturer for a particu- 
 lar purpose, he impliedly warrants that they are fit for that 
 purpose. 
 
 2. Upon a sale of goods of a specified description, which the 
 purchaser has no opportunity of examining before the sale, the 
 goods must not only answer that specific description, but must 
 be merchantable under that description. 
 
 3. The implied warranty that the goods supplied are mer- 
 chantable is not absolutely excluded by the fact that the goods 
 are sold by sample, and that the bulk precisely corresponded 
 with it, but is only excluded as regards those matters which 
 the purchaser ought, by due diligence in the use of all ordinary 
 and usu&,l means, have ascertained from an examination of the 
 sample. 
 
 A warranty must be given at the time of the sale ; if given 
 after the sale, or when the contract is performed, it is invalid 
 for want of consideration (J). A warranty must be in writing if 
 the contract in respect of which it is made is in writing, but no 
 particular form of words is requisite to constitute it. 
 
 The law on this subject has been summed up by Lord Black - 
 
 (') Drummond v. Van Ingen, 12 Just, L. E. 3 Q. B. 197 (1868); 
 App. Gas. 284, and see Randall v. Parkinson v. Lee, 2 East, 314. 
 Newson, 2 Q. B. D. 102; Jones v. O iJoscoi-Za v. ITiomas, 3 Q. B. 234. 
 
Chap. II.] SIMPLE CONTRACTS. 383 
 
 bum as follows : " It is now well settled that in the sale of Warranty, 
 goods, specific at the time of the sale, that is ear-marked or 
 identified as the subject-matter of the sale, the vendee cannot 
 put the breach of a warranty on the same footing as an unper- 
 formed condition precedent. He cannot decline to accept ear- 
 marked goods, on the ground that they are not as good as those 
 contracted for. Where goods were ear-marked at the time of 
 the contract, the stipulation as to quality is not a condition 
 precedent uncomiDlied with, and as such entitling the vendee to 
 reject the goods, but a warranty merely, for the breach of 
 vk'hich the vendee may obtain damages " (^). 
 
 What is acceptance within the meaning of the 17th section What is 
 of the Statute of Frauds ? " ^"'=?P'- 
 
 ance. 
 
 This question may now be considered as definitely settled by 
 the decision of the Court of Appeal in Page v. Morgan (2). It 
 was there pointed out that there must be under the statute 
 both an acceptance and actual receipt, but such acceptance 
 need not be an absolute acceptance ; all that is necessary is 
 an acceptance which could not have been made except upon 
 admission that there was a contract, and that the goods were 
 sent to fulfil that contract. 
 
 Accordingly in this case, where there was a sale of wheat by 
 sample, and the purchaser, having received a number of sacks 
 of wheat delivered under the contract into his premises, opened 
 the sacks and examined their contents to see if they were equal 
 to sample, but immediately after so doing gave notice to the 
 seller that he refused the wheat as not being equal to sample, 
 the Court of Appeal decided that there was evidence of 
 acceptance within the meaning of the Statute of Frauds. 
 
 (') Blackburn on the Contract of Sale, p. 501. 
 O 15 Q. B. D. 228. 
 
( 384 ) 
 
 Aliens. 
 
 Foreign 
 states. 
 
 Ambassa- 
 dors. 
 
 CHAPTEE III. 
 
 Capacity of Parties. 
 
 The capacity of persons to form a valid contract may be 
 affected by their political, professional, or social status, and by 
 certain personal conditions, such as infancy, marriage, insanity. 
 Again, artificial persons, as corporations, contract subject to 
 certain restrictions and limitations, in some cases arising from 
 their nature, and in other cases defined by the law of their 
 creation Q). 
 
 Under the head of Political Status we shall briefly notice the 
 positions of aliens, foreign states, and ambassadors. 
 
 In modern times no incapacity attaches to the status of an 
 alien, except that he cannot acquire property in a British 
 ship (2). 
 
 An alien enemy cannot, without licence from the Crown, 
 enforce an existing contract, or make a new contract during 
 the continuance of the war. His remedies, however, are only 
 suspended, and at the conclusion of peace he resumes all the 
 rights which existed to him at the commencement of the war 
 which have not been seized by the Crown. Thus an alien 
 enemy was admitted to prove a debt under a bankruptcy, the 
 payment of the dividend being reserved (^). 
 
 During war an alien enemy cannot acquire any new rights 
 by contract. He cannot draw bills upon this country, an 
 acceptance of them during war would be void, and an indorse- 
 ment, with notice, would give no claim upon the acceptor (*). 
 
 Foreign states, and sovereigns, as such, are exempt from 
 being sued in the Courts of this country unless they volun- 
 tarily submit to the jurisdiction. 
 
 The ambassadors and representatives of foreign states duly 
 accredited are also privileged from being sued in civil actions, 
 
 Q) Anson on Contracts, 5th ed. 
 p. 104, et seq., where the incapacity of 
 corporations is spoken of as arising 
 from artificiality of construction ; 
 " being given a, personalty by law, 
 they take it vipon such terms as the 
 law imposes." 
 
 O The Naturalization Act, 1870 
 (33 Vict. c. 14), s. 2. 
 
 C) Ex parte Soussmaher, 13 Ves. 
 71. 
 
 (*) WilUson V. Patteson, 7 Taunt. 
 439. 
 
Chap. III.] CAPACITT OF PASTIES. 385 
 
 and accordingly contracts cannot be enforced against them in 
 our Courts unless they voluntarily submit to or appeal to their 
 jurisdiction Q-). 
 
 The English law, like the Eoman law, regards the fees of Bnrristei- 
 a barrister as an honorarium, and accordingly no action for 
 them can be maintained. " The relation of counsel and 
 client renders the parties mutually incapable of making any 
 legal contract of hiring and service concerning advocacy in 
 litigation" (2). 
 
 The law on this subject was considered by the Privy Council 
 in 1884 with reference to the law of Quebec, which permits a 
 member of the Bar to sue for professional services and to 
 contract for any rate of remuneration which is not contra bonos 
 mores ov in violation of the rules of the Bar. In this case the 
 law of the English Bar was stated as follows : — " A member 
 of the Bar of England, in accordance with the law of that 
 country and the rules of the profession to which he belongs, 
 renders, and professes to render, services of a purely honorary 
 character. If, in his professional capacity as an English 
 barrister, he accepted a retainer, to appear and plead before 
 commissioners or arbitrators in a foreign country, by whose 
 law counsel practising in its regular courts were permitted to 
 have suit for their fees, that would not give him a right of 
 action for his honoraria. His client would have a conclusive 
 defence to such an action, on the ground that he was employed 
 as a member of the English Bar, and, bj' necessary implication, 
 upon the same terms as to remuneration upon which members 
 of that Bar are understood to practise " {^). 
 
 Formerly, the fee of a physician was like that of a barrister, 
 regarded as a mere honorarium; though it differed in this 
 respect, that the physician was regarded as not under any 
 legal incapacity in the matter, and might enter into an express 
 contract rendering the patient liable. 
 
 The Medical Act of 1886 (*) now provides that a registered 
 medical practitioner shall be entitled to recover in due course 
 of law, in respect of his practice, any expenses, charges 
 in respect of medicaments or other appliances, or any fees to 
 
 (') Leake on Contracts, pp. 540, 14 Cox C. C. 469. 
 
 541, referring to Magdalena Steam (') Per Lord Watson, in The Queen 
 
 Navigation Co. v. Martin, 2 E. & E. v. Doutre, 9 App. Cas. 745. 
 
 94 ; 28 L. J. Q. B. 310, and autho- (*) See aa to the law independent 
 
 rities tliere cited. of the statute, notes to Lampleigh v. 
 
 (2) Kennedy v. Sroun, 13 C. B. Braithwaite, Smith's Leading Cases, 
 
 (N.S.) 677 ; Mnstyn v. Mostyn, 5 9th ed. vol. i. p. 164. 
 Ch! D. 457 : Robertson v. MacDonagh, 
 
 VOL. I. 2 C 
 
386 
 
 CONTRACTS. 
 
 [Book ITI. 
 
 Infants. 
 
 Necessa- 
 ries. 
 
 ■which he may he entitled, unless he be a fellow of a college of 
 physicians, the fellows of which are prohibited by bye-law from 
 recovering at law their expenses, charges, or fees ; in which 
 case such prohibitory bye-law, so long as it is in force, may be 
 pleaded in bar of any legal proceeding instituted by such fellow 
 for the recovery of expenses, charges, or fees. Q-') 
 
 The law as to infants' contracts may be next considered. The 
 general law on this subject was stated in the case of Barnes v. 
 Tcye, to which we shall presently again refer, as follows: — 
 " The law is that up to the age of twenty-one an infant is not 
 permitted to bind himself by contract, except for necessaries. 
 From the earliest times, as was stated in a recent and important 
 case upon the subject, an infant could bind himself to pay for 
 his meat, drink, lodging, and other matters necessary for his 
 sustenance, and in more modern times the rule is expressed 
 generally that an infant may contract for the supply of neces- 
 saries suitable to his station in life " (f). 
 
 In this case the Court decided (dissenting from a well-known 
 decision in this branch of the law) that where an infant is 
 sued for the price of goods supplied to him on credit, he may, 
 for the purpose of showing that they were not necessaries, give 
 evidence that, when the order was given, he was already 
 sufficiently supplied with goods of a similar description, and 
 that it is immaterial whether the plaintiff did or did not know 
 of the existing supply (f). 
 
 The term "necessaries," in its legal signification, as settled 
 by decisions, is not confined to such articles as are necessary to 
 the support of life, but extends to articles fit to maintain the 
 
 . (!) 49 & 50 Vict. c. 48, ». 6. 
 
 , Q) Barnes & Co. v. Toye, 13 Q. B. 
 i)iv. 412. The law on this sub- 
 ject is summarized in Addison on 
 Contracts as follows: — Deeds, cove- 
 nants, &c., and other writings not 
 under seal, made by infants, are as a 
 general rule (subject to some few 
 exceptions) not binding. An infant 
 cannot be sued on a bill of exchange 
 accepted by him even for necessaries, 
 nor on » contract of suretyship, nor 
 on a breach of warranty for sale of 
 a horse. The law, however, while it 
 protects the imbecility and indiscre- 
 tion of infants from injury, enables 
 them to do certain binding acts for 
 their own benefit, treating their privi- 
 lege as a shield and not as a sword 
 to be turned into an offensive weapon 
 of fraud and injustice. Thus an 
 infant may grant a lease if it is 
 
 clearly for his advantage, may con- 
 tract for necessary repairs to his 
 dwelling-house, and may by the cus- 
 tom of gavelkind sell at the age of 
 fifteen. See, as to apprenticeship 
 deed, De Francesco v. Barnum, 43 
 Ch. D. 165. 
 
 (') Barnes & Co. v. Toye, 13 
 Q. B. Div. 410; Ryder y. WombweU, 
 L. E. 3 Ex. 90, dissented from. It 
 has been decided that a servant's 
 livery, a volunteer uniform, a guard's 
 uniform, and decent burial are neces- 
 saries. On the other hand, a valu- 
 able chronometer, cigars and tobacco 
 are not necessaries. For an infant 
 young lady of high rank, silk, furs, 
 and vel vets are necessaries. A mar- 
 riage settlement is also a necessary 
 for an infant lady about to be 
 married : Selps v. Clayton, 17 0. B. 
 (N.S.) 553. 
 
Chap. III.] CAPACITY OF PARTIES. 387 
 
 particular person in the state, station, and degree of life in Neoessa- 
 which he is. The word " necessaries," therefore, is not to be ''"'^■ 
 taken in its unqualified sense, but with the qualification above 
 pointed out. 
 
 . . . . " The true rule," said Baron Parke Q'), " I take to be 
 this, that all such articles as are purely ornamental are not 
 ' necessaries,' and are to be rejected, because they cannot be 
 requisite for any one ; and for such matters, therefore, an 
 infant cannot be held responsible. But, if they are not strictly 
 of this description, then the question arises, whether they were' 
 bought for the necessaiy use of the party in order to support 
 himself properly in the degree, state, and station of life in 
 which he moved. If they were for such articles, the infant 
 may be made responsible. 
 
 In Barnes v. Toye, decided in 1884, the law upon the subject 
 was summed up as follows : — " A contract by an infant for the 
 supply of goods to him cannot be enforced unless the articles 
 be necessaries, the policy of the law being directed to the 
 protection of infants. In point of fact, a tradesman dealing 
 on credit with an infant does so at his peril, and must lose his 
 money (that is if the infant does not voluntarily pay him), 
 unless he can prove that the goods supplied were necessaries 
 for the infant according to his station in life. That being the 
 law, we come to the question what are necessaries ? To deter- 
 mine this, we must take into account what the infant had at the 
 time of giving the order. For example, a watch may be primd 
 facie in some cases a necessary, but if it turned out that the 
 infant was already supplied with a watch or watches the one 
 ordered would not be necessary. It is said, however, that even 
 if regard must be had to the supply which the infant has at the 
 time of the order, where it is in the tradesman's knowledge 
 that the infant is amply supplied, yet this is not so if the trades- 
 man is ignorant of the fact. If this contention were correct, the 
 protection given to the infant would depend entirely on what 
 might be the state of knowledge of the tradesman, and one 
 effect would be to deprive the infant of the protection intended 
 to be extended to him by the law. In my view it is immaterial 
 whether the plaintiffs did or did not know of the existing 
 supply, just as it is immaterial whether they did or did not know 
 that the defendant was a minor " (2). 
 
 " It lies upon the plaintiff," it was said in a subsequent case, 
 decided in 1887, " to prove, not that the goods supplied belong to 
 
 C) Peters v. Fleming, 6 M. & W. O Per Lopes, J., Bwrnes v. Toye, 
 
 42. 13 Q. B. D. 410, 413. 
 
 2 c 2 
 
388 O0NTRAGT8. [Book III. 
 
 Infants. the class of necessaries as distinguislied from luxuries, but that 
 the goods supplied were necessaries to the infant. If an infant 
 can be made liable for articles which may be necessaries without 
 proof that they are necessaries, there is an end to the protection 
 which the law gives him. If he has enough of such articles, 
 more cannot possibly be necessary to him " Q-). 
 
 Sect. 1 of the Infants' Belief Act, 1874, provides that, " all 
 contracts, whether by specialty or by simple contract, hence- 
 forth entered into by infants for the repayment of money lent 
 or to be lent, or for goods supplied or to be supplied (other than 
 contracts for necessaries), and all accounts stated with infants 
 shall be absolutely void." This is followed by a proviso that, 
 " this enactment shall not invalidate any contract into which 
 an infant may by any existing or future statute or by the rules 
 of common law or equity enter except such as now by law are 
 voidable" (2). 
 
 Sect. 2 provides that no action shall be brought whereby to 
 charge any person upon any promise made after full age to pay 
 any debt contracted during infancy, or upon any ratification 
 made after full age of any promise or contract made during 
 infancy, whether there shall or shall not be any new consideration 
 for such promise or ratification after full age (^). 
 
 An interesting case on the law with regard to infants was 
 recently decided. 
 
 An infant, who was a journeyman butcher, received money 
 from customers of his master, but did not account for the sums 
 so received. Not long before the infant attained his majority he 
 was accused of this offence, which he admitted, and an account 
 was then made out against him by his master's wife of the sums 
 which he had received and for which he had not accounted. 
 
 Shortly afterwards, the infant came of age and became 
 entitled to a considerable sum of money. He then signed a 
 memorandum in which he acknowledged that he owed his 
 master the amount stated and a sum for costs, and promised to 
 pay the sum within a week, and charged the sum due to him 
 under the will, and authorized the trustees to pay the sum of 
 money owing to his master. 
 
 O JdhmUme v. Marlca, 19 Q. B. D. t. JDmghty, i C. P. D. 385 ; Ditcham 
 
 511. V. Worral. 5 C. P. D. 410, and dis- 
 
 O 37&38 Vict. 0.62. See FdJen- tinguish from Ooxhead v. Mullie, 3 
 
 tini V. Canali, 24 Q. B. D. 166 ; C. P. D. 439. The question whether 
 
 Duncan v. Dixon, 44 Oh. D. 211. there is a ratification or a new pro- 
 
 (') A fresli promise made after an mise is one for the jury : Holmes v. 
 
 infant has attained his majority is Brierley, W. N., 1888, 158. 
 not within the statute : see Northcote 
 
Chap. III.] CAPACITY OF PARTIES. 889 
 
 The Court decided that, on the one hand, there was no ratifi- Infants' 
 cation of a contract made during infancy, and that the Infants' ^^-^^ " ' 
 Eelief Act, 1874, did not apply to the case, and that on the other 
 hand the infant was liable to an action of tort ; and that, as he 
 had given the charge to avoid being sued in tort, there was 
 good consideration for his contract to pay (^). 
 
 In another case, an infant bought land from the trustees of a 
 building society of which he was a member. He continued to 
 pay instalments of purchase-money after he had come of age. 
 The Court decided that the infant had ratified the contract (^). 
 
 The position of married women in respect of capacity to sue Married 
 and liability to be sued has already been considered (ante, p. 214, ™'""'=°- 
 et seq.). The most important portions of the law affecting the 
 contracts of married women are contained in the provisions 
 of the Married Women's Property Act, 1882 (^), providing 
 that — • 
 
 (1) A married woman shall be capable of entering into and 
 rendering herself liable in respect of and to the extent of her 
 separate property on any contract, and of suing and being sued, 
 either in contract or in tort, or otherwise, in all respects as if 
 she were a feme sole, and her husband need not be joined with 
 her as plaintiff or 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. 
 
 (2) Every contract entered into by a married woman shall 
 be deemed to be a contract entered into by her with respect 
 to and to bind her separate property, unless the contrary be 
 shown. 
 
 (3) Every contract entered into by a married woman with 
 respect to and to bind her separate property shall bind not only 
 the separate property which she is possessed of or entitled to at 
 the date of the contract, but also all separate property which 
 she may thereafter acquire. 
 
 Attention may also be directed in this place to the extremely 
 important case of Dehenham v. Mellon (*), decided by the' House 
 
 (') Re Seager. Seeley v. Briggs, (') 45 & 46 Vict. c. 75, s. 1, sub- 
 
 60 L. T. (N.S.), 665. ss. 2, 3, 4. 
 
 (2) Whittingham v. Murdiy, 60 {') 6 App. Oas. 24. 
 L. T. 956. 
 
390 
 
 CONTRACTS. 
 
 [Book III. 
 
 Husband 
 
 and wife. 
 
 Lunatics, 
 
 of Lords in 1880, where it was laid down in accordance with 
 the celehrated decision in Jolly v. Mees in 1864, that the mere 
 fact of cohabitation does not raise a presumption of agency, nor 
 require a proof of notice not to trust the wife, and that when a 
 husband neither does, nor assents to, any act to show that he 
 has held out his wife as his agent, to pledge his credit for goods 
 supplied on her order, the question whether she bears that 
 character is one of fact, and must be decided upon the circum- 
 stances of the particular case In question. 
 
 What are the liabilities of a husband when living apart from 
 his wife, if the wife pledges his credit ? The law on this subject 
 may be summed up in the following propositions : — 
 
 1, Where husband and wife separate by mutual consent, the 
 wife making her own terms as to her income, and that income 
 proves insufficient for her support, the wife has no authority to 
 pledge her husband's credit. 
 
 2, If the wife leaves her husband without cause and without 
 consent, she carries no implied authority with her, to maintain 
 herself at his expense. 
 
 3, If the husband wrongfully compels his wife to leave his 
 home, he is bound to maintain her elsewhere, and if he makes 
 no adequate provision for this purpose she becomes an agent of 
 necessity to supply her wants upon his credit. In such a case, 
 inasmuch as she is entitled to a provision suitable to her 
 husband's means and position, the sufficiency of any allowance 
 which he makes under these circumstances is necessarily a 
 question for the jury. Where, however, the parties separate 
 by mutual consent, they may make their own terms ; and so 
 long as they continue the separation these terms are bindiug 
 on both (1). 
 
 With regard to contracts with lunatics, the law has been 
 settled as follows : — Where a party was at the time when he 
 entered into a contract, lunatic, or of unsound mind, and any 
 imposition appears to have been practised upon him, the 
 contract is void (2). On the other hand, when a person appa- 
 rently of sound mind, and not known to be otherwise, enters 
 into a contract which is fair and hona fide, and which is executed 
 and completed in whole or in part, and the property, the 
 subject-matter of the contract, cannot be restored so as to put 
 the parties in statu quo, the contract cannot afterwards be set 
 
 (') Eastland v. Burckell, 3 Q. B. D. p. 148 ; Molton v. Camroux, 2 Kx, 
 432. 489 ; 4 Ex. 17. 
 
 (^) Addison on Contracts, 8th ed. 
 
Chap. III.] CAPACITY OF PARTIES. 391 
 
 aside or avoided either by the lunatic or by those who come Lunatics, 
 after him. 
 
 It has been decided that the mere existence of a delusion in 
 the mind of a person making a disposition or contract is not 
 sufficient to avoid it, even though the delusion is connected 
 with the subject-matter of such disposition or contract, and 
 that is a question for the jury whether the delusion affected the 
 disposition or contract Q-^ 
 
 It must, however, be borne in mind, as pointed out by Mr. 
 Pope, as the result of the authorities, that every person dealing 
 with a lunatic, knowing his incapacity, is presumed to perpe- 
 trate a meditated fraud upon him and his rights, and fraud is 
 a good ground for avoiding the contract ; and that every person 
 dealing with a lunatic, even though no notice of the lunacy can 
 be brought home to him, must, in order that the transaction 
 may be supported, show that it was fair and bona fide (^). 
 
 Drunken Persons. 
 
 A contract made by a person who is drunk cannot be Drunken 
 enforced against him, if it can be shown that at the time of P^i^^ou^. 
 making the contract he was absolutely incapable of under- 
 standing what he was doing, and that the other party to the 
 contract knew that that was his condition (3). 
 
 Such a contract, however, is voidable, and not void. This 
 proposition is very well illustrated by the case of Mathews v. 
 Baxter (*), where the defendant at an auction, while drunk, 
 made a purchase. Afterwards, when sober, he ratified the 
 contract, and then changed his mind, and, when sued for 
 breach of contract in not completing his purchase, he pleaded 
 that when he entered into the alleged contract he was so 
 drunk as to be incapable of transacting business, as the plaintiff' 
 well knew. The Court held unanimously that the defendant 
 was bound by his ratification of the contract. " A drunken 
 man," said Baron Martin, " when he recovers his senses, might 
 insist upon the fulfilment of his bargain, and therefore he 
 can ratify it so as to bind himself to a performance of it " It 
 
 (■) Banks v. Goodfellow, L. E. 5 the equitable interests of lunatics, 
 
 Q. B. 549 ; Jenkins v. Morris, 14 not so found by inquisition, when it 
 
 oil. L). 674. appears for their benefit. See also 
 
 r) See this subject analysed and Be Mhodes, 44 Cli. D. 95. 
 
 commented on ; Pope on Lunacy, C) Molton v. Camroux, 2 Ex. 489 ; 
 
 2nd edit. p. 242, et seq. In White 4 Ex. 17. 
 
 V. Pigott, 22 Ch. D. 264, it was held C) L. E. 8 Ex. 132. 
 tliat the Court has jurisdiction to bind 
 
392 
 
 CONTRACTS, 
 
 [Book IH. 
 
 Drunken 
 
 persons. 
 
 Corpora- 
 tioDs. 
 
 has been said that a drunken pprson would he liahle on a 
 contract for actual necessRries or for goods supplied to him 
 when drunk and kept when sober (^). 
 
 We pass on now to the law with regard to contracts entered 
 into by corporations. The general principle of such cases was 
 well stated by Baron Parke as follows : " Corporations which 
 are creatures of law, are, when their seal is properly affixed, 
 bound just as individuals are by their own contracts, and as 
 EQUch as all the members of a partnership would be by a con- 
 tract in which all concurred." But where a corporation is 
 created by an Act of Parliament for particular purposes, with 
 special powers, then another question arises : their deed, though 
 under their corporate seal, and that regularly affixed, does not 
 bind them, if it appear by the express provisions of the statute 
 creating the corporation, or by reasonable inference from its 
 enactments, that the deed was ultra vires — that is, that the 
 legislature meant that such a deed should not be made (2). 
 
 The cases on this subject establish that a company when 
 incorporated by Act of Parliament for a particular purpose has 
 no existence except for that purpose, and cannot devote its 
 funds to any purpose not authorized by the terms of its incor- 
 poration. 
 
 The course of existence of a company, as is well said by 
 Mr. Brice (^), is marked out from its birth. It has been called 
 into being for certain special purposes. It has therefore all 
 the powers and capacities, and only those, which are expressly 
 given it, or are absolutely requisite for the due carrying out 
 of those purposes ; and all the obligations it affects to assume 
 which do not arise from or out of the pursuit of such purposes 
 are null and void. 
 
 The next question to be considered is. How can a company 
 contract? Here, again, the question is answered by judicial 
 authority. 
 
 The law with regard to the contracts of corporations was 
 much considered by the House of Lords in 1883 (^), where the 
 following statement of the law made in 1838, and approved in 
 1840, was cited : — 
 
 " The general rule of law is that a corporation contracts 
 under its common seal ; as a general rule, it is only in that 
 
 (') Gore v. Gibeon, 13 M. & W. 
 623. 
 
 (^) South Yorkshire RaUway Co. v. 
 Great Northern Railway Co., 9 Ex. 
 55, 89; National Marine Co. v. 
 Donald, 28 L. J. (Ex.) 185 ; Eastern 
 
 Counties Railway Co. v. Bawlceg, 5 
 H. L. 0. 48. 
 
 (^) Brice on Ultra Vires, p. 46. 
 
 (*) Young & Co. v. Mayor and 
 Corporation of Leamirigton, 8 App. 
 Gas. 517. 
 
Chap. III.] CAPACITY OF PASTIES. 393 
 
 way that a corporation can express its will or do any act. That Corpora- 
 general rule, however, has, from the earliest traceable periods, *"'°^' 
 been subject to exceptions, the decisions as to which furnish 
 the principle on which they have been established, and are 
 instances illustrating its application, but are not to be taken as 
 so prescribing in terms the exact limit that a merely circum- 
 stantial difference is to exclude from the exception. This prin- 
 ciple appears to be convenience amounting almost to necessity. 
 Wherever to hold the rule applicable would occasion very great 
 inconvenience, or tend to defeat the very object for which the 
 corporation was created, the exception has prevailed." Hence 
 the retainer by parol of an inferior servant, the doing of acts 
 very frequently recurring or too insignificant to be worth the 
 trouble of affixing the common seal are established exceptions ; 
 on the same principle stands the form of accepting bills of 
 exchange and issuing promissory notes by companies incor- 
 porated for the purposes of trade, with the rights and liabilities 
 consequent thereon " Q). 
 
 In the case before the House of Lords the cases on this subject 
 governed by the common law were characterized as " doubtful 
 and conflicting," but modern decisions establish the proposition 
 that, instead of convenience amounting almost to necessity, we 
 must now read as the law of the present day, that a corporation 
 may contract without seal, (1) with regard to all matters inci- 
 dental to the purposes for which it exists, and (2) that in the 
 case of a trading corporation this includes all contracts made in 
 the ordinary course of its business, or for the purposes connected 
 therewith (2). 
 
 The law on this subject was considered in a case where a 
 company incorporated under the Companies Act, 1862, for the 
 working of collieries, contracted, but not under seal, with an 
 engineer for the erection of a pumping-engine and machinery 
 for use in the colliery, and paid him part of the price. In an 
 action by the company against the engineer for breach of 
 contract in refusing to deliver the engine and machinery, it 
 was held, affirming the judgment of the Court of Common 
 Pleas, that the action was maintainable, though the contract 
 was not under seal. 
 
 " We are asked," said the Court, " to overrule a long series 
 of decisions in all the Courts, which, in accordance with 
 
 (') Church V. Imperial Oas Co., are reviewed, and see also Leake on 
 
 6 A. & E. 846. Contracts, p. 588, et seq. ; and see 
 
 C) Pollock on Contracts, 5th ed. Stevens v. Hounslow Burial Board, 
 
 p. 145, et seq., where the authorities 61 L. T. 839. 
 
394 CONTBAGTS. [Book IIL 
 
 Corpora- sound sense, have held that the old rule as to corporations con- 
 ""^' tracting only under seal does not apply to corporations or 
 
 companies constituted for the purpose of trading, and we are 
 invited to re-introduce a relic of barbarous antiquity. We are 
 all of opinion that the judgment of the Court of Common Pleas 
 ought to be affirmed." (i) 
 
 It has been decided that if a contract is sent by a corporation 
 to another person, who signs it, and the corporation afterwards 
 makes an alteration in the terms of the contract, which altera- 
 tion is consented to by the other party, after which the seal of 
 the corporation is affixed, the contract is valid. C*) 
 Master and The law which governs the relations between master and 
 servant may now be briefly noticed. Contracts between them 
 are, as stated in Chitty on Contracts, the subject of much statu- 
 tory regulation (f). The Truck Acts prohibit the payment of 
 wages in goods or otherwise than in the current coin of the 
 realm. Payment of wages at public houses is prohibited. The 
 law implies a promise by a servant to obey the orders of his 
 master, if lawful and reasonable and within the scope of his 
 employment, but when a servant contracts to serve his master 
 the law does not imply a contract by the master to retain him 
 in his service. In the absence of agreement to the contrary, 
 the hiring of domestic or menial servants is for a year, to be 
 determined by a month's notice, given by either side, or pay- 
 ment by the employer of a month's wages. The question, who 
 are menial servants, has given rise to a good deal of litigation. 
 A head gardener and a huntsman are within the rule. A 
 governess is not (*). A servant may be discharged without 
 notice, for wilful disobedience, gross moral misconduct (e. g., if 
 being a confidential servant of a merchant he speculates largely 
 and perpetually in differences on the Stock Exchange (^)) 
 habitual neglect of business, or incompetence. He has a right 
 to wages accrued due, but not to wages accruing (^). 
 Appren- A branch of law which is to some extent connected with the 
 
 tices. ja^-^ relating to master and servant is that which concerns 
 
 apprentices. The contract of apprenticeship has been defined 
 as one " whereby in consideration of the premium, or for no 
 
 (') South of Ireland Colliery Co. v. and Servant, p. 169, where the autho- 
 
 Waddle, L. E. i C. P. 617. rities are collected ; Ohitty on Oon- 
 
 (^) Dartford Guardians v. Trickett, tracts, 12th ed., p. 640. 
 
 59 L. T. 754. (») Pearce v. Foeter, 17 Q. B. D. 
 
 C) Chitty on Contracts, 12th ed. 587. 
 
 p. 638, where the statutes are col- (^) See Chitty on Contracts, 12th 
 
 looted. ed. p. 642. 
 
 (*) MacDonnell, Law of Master 
 
Chap, m.] CAPACITY OF PASTIES. 395 
 
 consideration at all, one person becomes bound to teach another 
 a certain profession or trade, and the latter is bound to learn it 
 and to serve the master as an apprentice." The contract of 
 apprenticeship may be determined— (i.) by effluxion of time or 
 by apprentice coming of age ; (ii.) by bankruptcy of the master, 
 see post, p. 933 ; (iii.) by death of master or apprentice ; (iv.) by 
 consent; (v.) by misconduct, where the contract specifically 
 provides for such a mode of determination ; but it must be borne 
 in mind that at common law the master has no right to dismiss 
 for misconduct, (i). 
 
 (') Austin on Apprentices, pp. 16, 38, et seq. 68. 
 
( 396 ) 
 
 CHAPTER IV. 
 
 Illesal Contracts. 
 
 Void con- Every contract, however made, which stipulates for the 
 
 tracts. performance of an illegal act is void, the law recognising in 
 
 this respect no distinction between contracts hy deed which 
 
 require no consideration to support them, and parol contracts 
 
 which do require a consideration for their support. 
 
 " It would indeed be inconsistent with reason and principle," 
 said Tindal, C.J., "to hold that by the mere ceremony of 
 putting a seal to an instrument, that is by the voluntary act 
 of the parties themselves, a contract which was void in itself 
 on the ground of its being in violation of the law of the land, 
 should be deemed valid, and an action be maintainable thereon 
 in a Court of justice" (i). 
 
 It must also be remembered that the general rule as to the 
 inadmissibility of parol evidence to contradict the terms of a 
 written contract, or to add to its provisions, cannot be taken 
 advantage of to prevent the defence of illegality from being 
 set up where the illegality does not appear on the face of the 
 instrument (^). 
 Collins V. A leading case on the subject of illegality in a contract is 
 
 Collins V. Blantern, decided in the year 1767. In that case an 
 action was brought on a bond for £700. The defence was, that 
 the bond had been given as an indemnity for a promissory note 
 which had been entered into by the obligee of the bond in 
 order to stifle a prosecution for wilful and corrupt perjury. It 
 was urged in support of the bond in question, that as the bond 
 appeared on the face of it to be good and lawful, no argument 
 should be admitted to shew that it had been given upon an 
 illegal consideration. 
 
 " It hath been insisted for the plaintiff," said the Lord Chief 
 Justice Wilmot, "that he was not privy to the bargain and 
 agreement, so as to him there appears to be nothing illegal 
 
 (') The OasligM and Coke Co. v. v. Vint, 59 L. J. Ch. 738 ; and as to 
 
 Turner, 5 Bing. (N.C.) 666. to non-recovery of money paid under 
 
 (_') Collins V. Blantern, 2 Wile. 347. illegal contract where there has been 
 
 Smith's Leading Cases, vol. 1. ; and substantial part performance, Searfoy 
 
 see Windhill Local Board of Health v. Thompson, 24 Q. B. D. 472. 
 
 Blantern. 
 
Chap. IV.] ILLEGAL CONTRACTS. 397 
 
 done \)j him. But we are all clearly of opinion that the Collins v. 
 whole of the transaction is to be considered as one entire 
 agreement : for the bond and note are dated upon the same day 
 for payment of the same sum of money on the same day ; the 
 manner of the transaction was to gild over and conceal the 
 truth, and whenever courts of law see such attempts they will 
 brush away the cobweb varnish and show the transactions in 
 their true light." 
 
 " This is a contract to tempt a man to transgress the law, to 
 do that which is injurious to the community; it is void by the 
 common law, and the reason why the common law says such 
 contracts are void is for the public good. You shall not 
 stipulate for iniquity. All writers upon our law agree in 
 this, no polluted hand shall touch the pure fountains of justice. 
 Whoever is a party to an unlawful contract, if he hath once 
 paid the money stipulated to be paid in pursuance thereof, he 
 shall not have the help of a Court to fetch it back again ; you 
 shall not have a right of action when you come into a Court 
 of justice in this unclean manner to recover it back. — Procul, 
 o procul, este profani." 
 
 And in a subsequent passage : " This is an agreement to stifle 
 a prosecution for wilful and corrupt perjury, a crime most 
 detrimental to the commonwealth, for it is the duty of every 
 man to prosecute, appear against, and bring offenders of this 
 sort to justice. Many felonies are not so enormous offences as 
 perjury, and therefore to stifle a prosecution for perjury seems 
 to be a greater offence than compounding some felonies. The 
 promissory note was certainly void ; what right then hath the 
 plaintiff to recover upon this bond which was given to indemnify 
 him from a note that was void? They are both bad, the 
 consideration for giving them being wicked and unlawful." 
 
 Illegal contracts are usually divided into two classes, viz. 
 (1) those illegal by the common law, (2) those illegal by 
 statute (1). 
 
 A contract is illegal at common law on one of three grounds. 
 
 (') It is pointed out in Benjamin construing the statute to ascertain 
 on Sale, 4ih ed. p. 523, that where a whether the legislature had in view 
 contract is prohibited by statute it is solely the security and collection of 
 immaterial to inquire whether the the revenue, or had in view in whole 
 statute was passed for revenue pur- or in part, the protection of the public 
 poses only, or for any other object. from fraud in contracts, or the pro- 
 It is enough that Parliament has motionof some object of public policy, 
 prohibited it, and it is therefore In the former case the inference "is 
 void. When, however, the question that the statute was not intended to 
 is whether a contract has been pro- prohibit contracts ; in the latter that 
 hibited by statute, it is material, in it was. 
 
398 CONTRACTS. [Book HI. 
 
 either because it is (1) immoral, (2) contrary to public policy, 
 or (3) fraudulent (}). 
 Public " Public policy," said Sir George Jessel, " requires that a con- 
 
 pohcy. tract to commit a crime or to give a reward to another to commit 
 a crime is necessarily void. The decisions have gone further, 
 and contracts to commit an immoral offence or to give money or 
 reward to another to commit an immoral offence or to induce 
 another to do something against the rules of morality, though 
 far more indefinite than the previous class, have always been 
 held to be void." 
 
 The following may serve as illustrations of the descriptions 
 of contracts which have been held void as violating the prin- 
 ciples of morality : — In one case (^), a printseller failed to 
 recover the price of libellous publications which he had sold 
 and delivered. In Poplett v. Stochdale (^), the plaintiff, the 
 printer of an immoral and libellous work, failed in an action 
 against his employer, the publisher. " I have no hesitation," 
 said Chief Justice Best, in that case, "in declaring that no 
 person who has contributed his assistance to the publication of 
 such a work can recover in a Court of justice any compensation 
 for the labour bestowed. The person who lends himself to the 
 violation of public morals and the laws of the country, shall 
 not have the assistance of those laws to carry into execution 
 such a purpose.'' 
 
 In another case the plaintiff, a printer, having contracted to 
 print for the defendant a work which was to include a dedica- 
 tion to be subsequently sent to him, printed the work and also 
 the dedication, but when the latter was returned to him after 
 revision, he discovered, for the first time, that it contained 
 libellous matter, whereupon he refused to continue the printing 
 of it. The defendant refused to accept or pay for the work 
 without the dedication. It was decided that the dedication 
 being libellous, the plaintiff was justified in refusing to publish 
 it, and was entitled to recover the expense of printing the 
 body of the work (*). 
 Void con- A deed made in consideration of a future separation between 
 tracts. husband and wiie is void (^). So is an agreement not to enforce 
 
 a bond in consideration of the obligor forbearing to make public 
 the fact of the obligee's adultery with his wife (^). Covenants 
 in a separation deed that the husband shall part with the control 
 
 Q) Printing Registering Co. v. (') Clay v. Yates, 1 H. & N. 73. 
 
 Sampson, L. K. 19 Eq. 465. (") Bindl&y v. Marquis of West- 
 
 (^) Fores v. Johnes, 4 Esp. 97. meath, 6 B. & 0. 200. 
 
 C) R. & M. 337. («) Brown v. Brine, 1 Ex. D. 5. 
 
Chap. IV.] ILLEGAL CONTRACTS. 399 
 
 over his children (i) ; a covenant to many no one tut the V'oid con- 
 covenantee (^) ; and bonds given for an immoral consideration, '^''"^'^■ 
 e.g. to induce the obligee to live with the obligor in a state of 
 fornication (^), are all bad. 
 
 This doctrine of the law may also be illustrated by the well- 
 known case of Pearce v. Brooks, decided in 1866. In that case 
 a coach-builder had supplied a new miniature brougham to a 
 prostitute on hire, with option of purchase by instalments. 
 There was no evidence that the coach-builder looked expressly 
 to the proceeds of the plaintiif's prostitution for payment, but 
 the finding of the jury was that the carriage was used by the 
 defendant as part of her display to attract men, and that the 
 plaintiff knew that it was supplied for that purpose. The 
 Court decided that the plaintiff could not recover (f). 
 
 Chief Baron Pollock, in delivering judgment, said : — " I have 
 always considered it as settled law, that any person who con- 
 tiibutes to the performance of an illegal act by supplying a 
 thing with the knowledge that it is going to be used for that 
 purpose, cannot recover the price of the thing so supplied. If, 
 to create that incapacity, it was ever considered necessary that 
 the price should be bargained, or expected to be paid out of 
 the fruits of the illegal act (which I do not stop to examine), 
 that proposition has been overruled by the cases I have 
 referred to, and has now ceased to be law. Nor can any 
 distinction be made between an illegal and an immoral purpose; 
 the rule which is applicable to the matter is. Ex turpi causa non 
 oritur actio, and whether it is an immoral or an illegal purpose 
 in which the plaintiff has participated, it comes equally within 
 the terms of that maxim, and the effect is the same ; no cause 
 of action can arise out of either the one or the other." 
 
 Among contracts which have been held void as against the 
 policy of the law may be mentioned : — 
 
 (1) Those which tend to injure the public service, e.g. the 
 
 (') Vansittari v. Vansittart, i Kay illustration : — " If a man were to ask 
 
 & J. 62; Walrond v. Walrond, 1 for duelling pistols, and say, 'I think 
 
 Johns. 18. I shall fight a duel tomorrow,' might 
 
 (^) Lowe V. Peers, 4 Burr. 2225. not the seller answer, ' I do not want 
 
 (') Walker v. Perkins, 3 Burr. to know your purpose; I have no- 
 
 1568. thing to do with it; that is your 
 
 (") Pearce v. Brooks, Law Rep. 1 business ; mine is to sell the pistols, 
 
 Ex. 213, following ; Cannan ■v. Price, and Hook only to the profits of trade.' 
 
 3 B. & A. 179 ; and see Benjamin on No doubt this act would be criminal, 
 
 Sale, 4:th ed. p. 495, et seq. In the but I have felt a doubt whether it 
 
 case of Pearce v. Brooks, Baron would be illegal." Thecaseof iZo?/(Z 
 
 Bramwell said that he would have v. Johnson, 1 B. & P. 340, seems 
 
 felt doubt had it not been for these scarcely reconcilable on strictly 
 
 authorities, and put the following logical principles with this decision. 
 
400 
 
 CONTBAGTS. 
 
 [Book III. 
 
 Void con- 
 tracts. 
 
 Mainten- 
 ance and 
 cham- 
 perty. 
 
 assignment of a pension not granted ■wholly as a compensation 
 for past services (^). 
 
 (2) Those which encourage litigation, e.g. contracts of cham- 
 perty, and maintenance of which we shall speak presently. 
 
 (3) Contracts in general restraint of trade (^). 
 
 (4) And contracts restraining the freedom of marriage, 
 marriage brocage contracts, as they are called. 
 
 The only classes of these illegal contracts of which we need 
 here speak at any length are — 
 
 " Maintenance " and " champerty,'' which are always treated 
 together by the writers on the subject, both ancient and 
 modern. Maintenance is called the genus of an offence of 
 which champerty is a species. Champerty has been defined 
 as a species of maintenance, being a bargain with a plaintiff or 
 defendant campum partiri, 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. 
 " It is the unlawful maintenance of a suit in consideration of 
 some bargain to have part of the thing in dispute, or some 
 profit out of it " (3). 
 
 Both maintenance and champerty are founded on the same 
 principle or policy of law, to wit, a tendency of the transac- 
 tions to prevent the course of justice. It has been decided, 
 however (*), that it is a good defence to an action for main- 
 tenance to show that the defendant assisted the third person 
 from charitable motives believing that he was a poor man 
 oppressed by a lich man. 
 
 In this case. Fry, L. J., in delivering judgment, said :— " To 
 say that charity is not charity unless it be discreet appears to 
 us without foundation in law. Of this limitation on the word 
 ' charity ' no trace can be found in any of the authorities which 
 have been cited, and, furthermore, on the other exceptions to 
 the law of maintenance, such as those arising from the relations 
 between lord and tenant, master and servant, neighbour and 
 neighbour, there appears, as far as we can learn, to be no case 
 or dictum in the books in which the duty of making inquiry or 
 of acting only on reasonable and probable grounds has been 
 recognised as a limitation of the right of giving assistance." 
 
 (') Wells V. Forster, 8 M. <& W. 
 149; Willcoch v. Terrell, 3 Ex. D. 
 323. 
 
 (2) See the cases on this subject, 
 post, p. 595. 
 
 (3) Per Chitty, J., Guy v. ChvrchiU, 
 
 40 Ch. D. 451, and see cases there 
 referred to, and as to maintenance, 
 Bradlaugh v. Newdegate,U Q. B. D. 1. 
 C) Harris v. Brisco, 17 Q. B. D. 
 504. 
 
Chap. IV.] ILLEGAL CONTRACTS. 401 
 
 Witt regard to contracts made abroad whicli it is sought to Contracts 
 enforce here, the Courts of this country proceed on the principle "^''^ 
 " that where they are called on to enforce a contract entered 
 into in another country the question is not only whether or not 
 the contract is valid according to the law of the country in 
 which it is entered into, but whether or not it is consistent with 
 the law and policy of the country in which it is to be enforced, 
 and if it is opposed to those laws and that policy the Court can- 
 not be called on to enforce it" Q-). 
 
 The law presumes in favour of the legality of a contract. Presump- 
 " When a contract is capable of two constructions, the one .''°° "/^ 
 making it valid and the other void, it is clear law the iirst 
 ought to be adopted " (^). 
 
 The law proceeds on the principle that in pari delicto melior est 
 conditio possidentis, and it will therefore, if both the parties be 
 in the eye of the law in pari delicto, decline to interfere with 
 them. The true test for determining whether or not the 
 plaintiff and the defendant are in pari delicto is by considering 
 whether the plaintiff could make out his case otherwise than 
 thiough the medium, and by the aid of the illegal transaction 
 to which he was himself a party. 
 
 " The objection that a contract is immoral or illegal," said 
 Lord Mansfield, "as between plaintiff and defendant, sounds at 
 all times very ill in the mouth of the defendant. It is not for 
 his sake, however, that the objection is ever allowed, but it is 
 founded in general principles of policy, which the defendant 
 has the advantage of contrary to the real justice as between him 
 and the plaintiff, by accident, if I may say so. The principle 
 of public policy is this : ex dolo malo non oritur actio. No Court 
 will lend its aid to a man who founds his cause of action upon 
 an immoral or an illegal act. If from the plaintiff's own stating 
 or otherwise the cause of action appears to arise ex turpi causa, 
 or the transgression of a positive law of this country, there the 
 Court says he has no right to be assisted. It is upon that 
 ground the Court goes ; not for the sake of the defendant, but 
 because they will not lend their aid to such a plaintiff. So if 
 the plaintiff and defendant were to change sides, and the defen- 
 dant was to bring his action against the plaintiff, the latter 
 would then have the advantage of it: for where both are 
 equally in fault, potior est conditio defendentis " Q'). 
 
 (') Per Turner, L. J., Hope v. Hope, 397. 
 8 De Q. M. & Gt. 731. (') Bolman v. Johnson, Oowper, 
 
 (*) Per Erie, J., Mayor of Norwich 341. 
 V. Norfolk Railway do., 4 E. & B. 
 
 VOL. I. 2d 
 
402 CONTRACTS. [Book III. 
 
 Illegal Jx must be borne in mind that if a contract be made on several 
 
 tion " considerations, one of which is illegal either at common or statute 
 law, the whole contract is void. Where, however, the consideia- 
 tion is not tainted by illegality and some of the promises only are 
 illegal, and those are separable from the rest, the legal promises 
 may be enforced, as illegality " does not communicate itself to, 
 or taint the others, except when, owing to some peculiarity in 
 the contract, its parts are inseparable " Q^). 
 
 Illegality is created by statute either by express prohibition 
 or by penalty. As examples of statutes which render contracts 
 void when contravening their provisions, may be mentioned 
 those of 6 & 6 Edw. 6, c. 16, ss. 2, 3, 4, and 49 Geo. 3, c. 126, 
 s. 4, against the sale of certain offices (^). The statutes of 
 31 Eliz. c. 6, and 12 Anne, stat. 2, c. 12, against simony (f), 
 a mortgage of pew-rents (*). 
 
 Another class of contracts prohibited by statute, which require 
 a somewhat more detailed examination, consists of wagering 
 contracts. 
 
 Wage us. 
 
 At common law wagers, unless they were of a mischievous or 
 immoral tendency or contrary to the policy of the law, were not 
 void. The judges, however, treated them somewhat contemp- 
 tuously as being too frivolous and beneath the dignity of judicial 
 attention, and they accordingly were in the habit of postponing 
 their consideration unless they had nothing better to do. 
 Certain wagers, however, were regarded as illegal at common 
 law, e.g. wagers on the sex of a third party, and as to whether 
 a man charged with forgery would be convicted or acquitted (^). 
 Wagers. The statute passed in the reign of William IV. (') enacts that 
 
 securities for money won at gaming or betting or for money 
 lent or advanced for gaming or betting are to be treated as 
 
 (') Chitty on Contracts, 12tli ed. 168) where the wager was as to the 
 
 p. 673, citing Price v. Gre.en, IS age of one of the parties to the bet, 
 
 M. & W. 695; 16 M. & W. 346; and therefore not open to the objw- 
 
 McAllen v. ClmrcMll, 11 Moore, 488 ; tion which would have existed had it 
 
 and see Lound v. Orimwade, 39 Ch. D. been as to age of a thii-d party, viz. 
 
 605. that of exposing the person in ques- 
 
 (^) Layng v. Paine, Willes, 571 ; tion to annoyance, tbe Court admitted 
 
 Godolphin v. Tudor, Salk. 468 parol evidence to explain the mean- 
 
 (3) Qreen v. Wroughton, 11 Exch. ing of "a rump" and "a dozen," and 
 
 146 ; Eyre v. Forbes, 12 C. B. (N.S.) decided that there being nothing 
 
 191. immoral in sitting down to a good 
 
 (*) Ex parte Arrowsmith, 8 Oh. D. dinner, the plaintiff was entitled to 
 
 96. recover. 
 
 (') In a case tried before Lord (°) 5 & 6 Wm. 4, u. 41. 
 Mansfield {Hussey v. Crichett, 3 Camp. 
 
Chap. IV.] ILLEGAL CONTRACTS. 403 
 
 given for an illegal consideration ; but it has been decided that Wagers 
 this statute does not apply to a case where money was lent to 
 enable the borrower to pay a bet already lost. Jessel, M.E., in 
 delivering judgment, said : " If a number of men are round a 
 gaming table, and one of them asks another to lend him money 
 to game with, and he lends the money, that is money ' lent for 
 gaming ' within the meaning of the Act. And so also, if 
 money is lent to a man to enable him to make a bet, that is 
 money ' lent for betting.' The object of the Act was to prevent 
 gaming or betting from taking place, to deter people from com- 
 mitting the illegal act. But in the present case the mischief 
 had been completed, the illegal act had been carried out, before 
 the money was lent " (i). 
 
 A statute passed in the year 1845 (to amend the law concern- 8 & 9 Vict, 
 ing games and wagei's) enacts "that all contracts or agreements ''• ^'^^• 
 whether by parol or in writing, by way of gaming or wagering, 
 shall be null or void ; and that no suit shall be brought or main- 
 tained in any Court of law or equity for recovering any sum of 
 money or valuable thing alleged to be won upon any wager, or 
 which shall have been deposited in the hands of any person to 
 abide the event on which any wager shall have been made : 
 provided always that this enactment shall not be deemed to 
 apply to any subscription or contribution, or agreement to sub- 
 scribe or contribute, for or toward any plate, prize, or sum of 
 money to be awarded to the winner or winners of any lawful 
 game, sport, pastime, or exercise" (2). 
 
 Either party may repudiate the wager and countermand the 
 stakeholder's authority either before or after the event on which 
 the wager was made has come off and recover his deposit. The 
 well-known case of Sampden v. Walsh (f) is a leading authority 
 on this subject. In that case the plaintiff had issued a challenge 
 to deposit £50 to £500 " on reciprocal terms," and defies all tlie 
 philosophers, divines, and scientific professors in the United 
 Kingdom to prove the rotundity and revolution of the world, 
 from Sciipture, from reason, or from fact, and he professed his 
 willingness to acknowledge that he had forfeited his deposit if 
 his opponent could oxhibit to the satisfaction of any intelligent 
 referee a convex railway, canal or lake. The challenge was 
 accepted by a Mr. Wallace, and £500 was deposited \>j both 
 parties with Mr. Walsh who ultimately decided in Mr. Wallace's 
 favour. I'he plaintiff objected to the decision, and before the' 
 
 (>) Per Jessel, M.K., in Ex parte (') 8 & 9 Viot. c. 109. 
 
 Fyke. In re Lister, 8 Ch. D. 75i. (,') 1 Q. B. D. 189. 
 
 2 D 2 
 
■404 CONTRACTS. [Book III. 
 
 Wagers.- money was paid over to Mr. Wallace, demanded back the £500 
 lie had deposited. Mr. Walsh paid both sums of £600 to 
 Mr. Wallace, and the plaintiff then brought an action for the 
 return of his deposit, and it was decided that he was entitled to 
 recover. 
 
 " As the law now stands," said Chief Justice Cockburn, " since 
 the passing of 8 & 9 Vict. c. 109, there is no longer, as regards 
 actions, any distinction between one class of wagers and another, 
 all wagers being made null and void at law by that statute." 
 
 " But though," continued the Chief Justice, " where a wager 
 was illegal no action could be brought either against the loser or 
 stakeholder by the winner, a party who had deposited his money 
 with the stakeholder was not in the same predicament. If, 
 indeed, the event on which the wager depended had come off, 
 and the money had been paid over, the authority to pay it not 
 having been revoked, the depositor could no longer claim to 
 have it back. If, however, before the money was paid over 
 the party depositing repudiated the wager, and demanded his 
 tfloney back, he was entitled to recover, to have it restored, even 
 when notice was given after the event came off." 
 
 " The agreement made in the present case has all the essential 
 characteristics of a wager. Each party stakes his money on an 
 event to be ascertained, and he in whose favour the event turns 
 out is to take the whole. The object of the plaintiff in offering 
 the challenge he gave was not to ascertain a scientific fact, but 
 to establish his own view in a marked and triumphant manner, 
 to Use a common phrase, his object was to back his own opinion. 
 iJo part of the money staked was to go to the party by whom 
 the experiment was to be made " (}). 
 
 In a very recent case the plaintiff employed the defendant for 
 a commission to make bets for him on horses. The defendant 
 accordingly made such bets, and he received the winnings from 
 the persons with whom he had so betted. The plaintiff brought 
 an action for the amount so received, and the Court of Appeal 
 decided that 8 & 9 Vict. c. 109, s. 18, which makes null and 
 void all contracts by way of wagering, did not apply to the 
 contract between the parties and defendant, and that, therefore, 
 the plaintiff was entitled to recover (2). 
 
 In another case (^) the plaintiff had employed the defendant 
 to bet on commission, and the defendant having failed to make 
 certain bets pursuant to the plaintiff's instructions, the plaintiff 
 
 (I) Per Cookbum, C.J., in JUamp- (O.A.) 363. 
 ckn V. WaUh, 1 Q. B. D. 189. (») Colien v. Kittdl, 22 Q. B. D. 
 
 (») Bridger v. Savage, 15 Q. B. D. 680. 
 
Chap. IV.] ILLLEGAL CONTRACTS. 405 
 
 sued Mm for iDreacli of contract as his agent, claiming as Wagers. 
 damages the excess of gains over losses which should have 
 been received by the defendant, had the bets in question been 
 made, after deducting the amount of his commission. The 
 Court decided that, as by the statute 8 & 9 Vict. c. 109, the 
 bets would not have been recoverable at law, the plaintiff 
 could not maintain the action. 
 
 It is to be observed that the original contract of betting is 
 not an illegal one, but only one which is void. If the person 
 who has betted pays his bet, he does nothing wrong ; he only 
 waives a benefit which the statute has given to him, and confers 
 a good title to the money on the peison to whom he pays it. 
 Therefore when the bet is paid the transaction is completed, and 
 when it is paid to an agent it cannot be contended that it is not 
 a good payment for his principal (i). 
 
 In connection with the subject of illegality as vitiating a Fraud, 
 contract, the effect of fraud upon contracts must be noticed and 
 distinguished. A contract obtained by fraud is good if the 
 party upon whom the fraud is practised thinks iit to ratify it. 
 The contract in fact, as Lord Campbell said, is not void, but only 
 voidable at the election (2) of the party defrauded. The party 
 defrauded has an option to disafiirm the contract, but until he 
 disaffirms it it remains good. 
 
 (') Per Bowen, L.J., in Bridger v. 2Dd ed. p. 28, et seq., where the cases 
 
 Savage, 15 Q. B. D. (C.A.) 363 ; and are reviewed. 
 
 gee Diggle v. Higgs, 2 Ex. D. 422 ; (^) The Deposit and General Life 
 
 Read t. Anderson, 10 Q. B. D. 100 ; Insurance Co. v. Ayscough, 8 E. & B. 
 
 13 Q. B. D. 779 ; and cases collected 761. 
 in Stutfield on the Law of Betting, 
 
( 406 ) 
 
 bailments. 
 
 CHAPTEK V. 
 
 Bailments. 
 
 A bailment is a delivery of a thing in trust for some special 
 purpose ; the person who delivers it being called the bailor, and 
 the person to whom it is delivered, the bailee. 
 Division of Bailments were divided by Lord Holt, in Coggs v. Bernard Q), 
 which has been characterized by a high authority as one of the 
 most celebrated cases ever decided in Westminster Hall, into — 
 
 (1) Depositum, or a " naked " bailment of goods, without 
 reward, to be kept for the use of the bailor. 
 
 (2) Commodatum. Where goods or chattels that are useful, 
 are lent to the bailee gratis, to be used by him. 
 
 (3) Locatio rei. Where goods are lent to the bailee, to be 
 used by him for hire. 
 
 (4) Vadium. Pawn. 
 
 (5) Locatio operis faciendi. Where goods are delivered to be 
 carried, or something is to be done about them for a reward to 
 be paid to the bailee. 
 
 (6) Mandatum. A delivery of goods to somebody, who is to 
 carry them, or do something about them gratis. 
 
 W ith regard to these different classes of bailments it will be 
 sufficient to observe — 
 
 (1) The bailee in the case of a deposit has no right to use 
 the thing entrusted fo him, and he is liable if he is guilty of 
 gross negligence, but not for any ordinary negligence. Thus, 
 in a case where a customer deposited his strong box containing 
 securities with his bankers (who received nothing for their 
 services), he himself retaining the key, and certain debentures 
 were abstracted by the cashier, it was held by the Privy 
 Council that as there was no proof of gross negligence the bank 
 was not liable (^). 
 
 (') Eaym. 3, 240 ; Smith's Lead- is the correct one. See, as to bailee 
 
 ing Oases, vol. i. See also Chitty on being estopped from denying the 
 
 Contracts, 12th ed. p. 512, vrheie a bailor's title, iJogers <{; Co. v. iamiert 
 
 different classification of Bailments & Co., 24 Q. B. I). 573. 
 by Sir William Jnnes is given, but it (^) Giblin v.M'Mullen, L. K. 2 P. C. 
 
 is submitted in the last edition of 317 ; 38 L. J. P. C. 25 ; Deerman v. 
 
 Smith s Leading Cases, 9th ed. vol. i. Jenkins, 2 A. & E. 256. 
 p. 22G, that Lord Holt's classification 
 
Chap. V.] BAILMENTS. 407 
 
 (2) The bailee in the case of a gratuitous loan, as the Different 
 transaction is one for his advantage solely, is bound to use '''^sses of 
 greater diligence in taking caie of it than in the case of " ™™ *' 
 deposit (1). The borrower, said Baron Parke, may justly be 
 regarded as representing himself to the bailor to be a person 
 
 of competent skill to take care of the tldng lent. He will 
 therefore be responsible even for slight negligence, and will be 
 held strictly to the conditions of the loan. Thus, where a horse 
 was lent to the defendant to ride, he was held not entitled 
 to allow his servant to ride him. At Roman law, he who 
 borrowed a horse for ordinary purposes, and then rode him 
 into battle, was regarded as guilty of theft (^). 
 
 (3) In the case of hiring, the bailee is bound to use such 
 diligence as a prudent man would exercise towards his own 
 property, and, accordingly, when a man hired a horse, and 
 when the animal was in bad health prescribed for it himself 
 instead of calling in the assistance of a veterinary surgeon, he 
 was held liable for the loss (3). 
 
 (4) In the case of pawn, the pledgee is only bound to use 
 ordinary diligence in guarding the thing pledged. The law 
 as to pawnbrokers is now governed by a special Act of 
 Parliament (f). 
 
 (6) Where goods are delivered to be kept, carried, or to 
 have work done upon them for payment, as when a watch is 
 delivered to a watchmaker, the bailee is bound only to oidinary 
 diligence, except in the cases of an innkeeper or a common 
 cari-ier (^post, p. 408). 
 
 (6) Where the delivery of goods i>s to a person to carry them, 
 or do something to them without reward, the mandatory is like 
 the depository, onlj' bound to use ordinaiy diligence, but even 
 in this case he is bound to use such skill as might be expected 
 from a person of his class under such circumstances. This 
 may be illustrated by the celebrated case of Wilson v. Brett (^), 
 where it was held that a person pi-oveil to be " conversant 
 with horses,'' who rode a horse gratuitously at the owner's 
 request for the purpose of showing him, was in Baron Parke's 
 words, " bound to use such skill as a person conversant with 
 horses might reasonably be expected to use, and if he did not, 
 he was guilty of negligence." 
 
 Q) Bringloe v. Morrioe, 1 Mod. Manufacturing Co. v. Clarlc, 5 Ex. D. 
 
 210. 37, where the law on the subject of 
 
 (2) Justinian, lib. iv. ; Tit. 1, 6. pawn is considered. 
 
 (3) Dean v. Keate, 3 Camp. 4. (') 11 M. & W. 113. 
 (*) b5 & 30 Vict. c. 93. See Singer 
 
408 CONTRACTS. [Book III. 
 
 There are two classes of bailees, who from their peculiar 
 position are regarded by the law in an exceptional light, and 
 their liabilities are accordingly extended, beyond the limits 
 above pointed out. These bailees are innkeepers and common 
 carriers. 
 Inn- The law as to the liability of innkeepers demands special 
 
 keepers. consideration in connection with the subject of bailments. An 
 inn was defined in the old leading case upon the subject more 
 than 300 years ago as " a place instituted for passengers and 
 wayfaring men " Q-). It was subsequently defined many yeais 
 afterwards as a house where the travellei' is furnished with 
 everything which he has occasion for on his way — a house the 
 owner of which holds out that he will receive all travellers and 
 sojourners who are willing to pay a price adequate to the sort 
 of accommodation provided, and who come in a situation in 
 which tliey are fit to be received (^). An innkeeper is bound to 
 supply shelter and accommodation to all who apply and tender, 
 or are able and ready to pay the customary charges, if they be 
 not drunk, or disorderly, or labouring under contagious and 
 infectious diseases (f). 
 
 A mere coffee-house (*), a boarding-house (^), and a refresh- 
 ment bar (") attached to an hotel, but entered from the street 
 by a separate door, have been held not to be within the legal 
 meaning of the term inn. 
 
 The liabilities of innkeepers have been diminished by a 
 statute passed in 1863, to amend the law "respecting the liabi- 
 lities of innkeepers, and to prevent certain frauds upon them." 
 This Act exempts innkeepers from liability to make good to any 
 guests of theirs, " any loss of or injury to goods or property 
 brought to their inns, not being a horse or otiier live animal, or 
 any gear appertaining thereto, or any carriage, to a greater 
 amount than £30, except : (1) where such goods or property 
 shall have been stolen, lost, or injured through the wilful act, 
 default, or neglect of such innkeeper, or any servant in his 
 employ; (2) where such goods or property shall have been 
 deposited expressly for safe custody with such innkeeper ; pro- 
 viding that in such a case of such deposit they may require as a 
 condition of their liability that the property shall be deposited 
 
 (') CaZi/e's Case, 8 Co. 32; 1 Smitli's 0) Boe v. Laming, 4 Camp. 77, 
 
 Leading Cases, 9th ed. p. 132. where the question arose as to a fire 
 
 Q) Thompson v. Lacy, 3 B. & Aid. policy. 
 
 283, 286, 287. (') Damey v. Richardson, 3 E. & B. 
 
 (') Addison on Contracts, 8th ed. 144. 
 
 p. 298; Fell v. Knight, 8 M. & W. (») Reg. v. Rymer, 2 Q. B. D. 136. 
 269. 
 
Chap. V.] BAILMENTS. 409 
 
 in a box or other receptacle, fastened and sealed by the person 
 depositing it (i). 
 
 Sect. 2 provides that innkeepers are not to have the benefit lan- 
 of the Act in respect to property vrhich they refuse to receive ^'^^''^-.^oL 
 for safe custody, or which by their default the guest is unable 
 to deposit with them. The next requires innkeepers to cause 
 at least one copy of sect. 1, printed in plain type, to be exhibited 
 in a conspicuous part of the hall or entrance to the inn, and 
 gives them the benefit of the Act only in respect of goods 
 brought to the inn while the copy is so exhibited. 
 
 The lequiiements of the Act must be strictly observed, and 
 accordingly in a well-known case where the copy of the first 
 section which the innkeeper posted up utiintentiunally omitted 
 the word " act " after " wilful," and goods of a guest of over 
 £100 value were stolen, the Court held that he was not 
 entitled to the protection of the statute, the omission being in 
 the opinion of Cookburn, C.J., " far beyond a mere clerical 
 error," viz. an omission of a material and really sub.--tantial 
 part of the notice required by statute which rendered the copy 
 insufficient to satisfy the requirements of the Act (f). 
 
 Tlie " vulgar error that an innkeeper might detain the person Inn- 
 of his guest until payment of the bill " was exploded many years j^^.^^P^'" ^ 
 ago (3), but an innkeeper has a lien fur his charges on gooils 
 brought to " the inn by his gue&t, and that though they belong 
 to another.'' The " passive " lien on goods previously possessed 
 was extended to an " active right " to sell them by an Act passed 
 in 1878 " for the further relief of innkeepers," which confers 
 upon landlords, &o., in addition to their oidinary lien, power to 
 dispose by public auction of any goods, chattels, horses, &c., left 
 with them after six weeks. 
 
 This power, however, is guarded by a number of stringent 
 provisoes, the most important of which is that at least one 
 month before the sale advertisements must be inserted in one 
 London paper and one country paper circulating in the district 
 where such goods, chattels, &c., or some of them, have been de- 
 posited or left, notifying the intended sale and giving shortly 
 a description of the goods and chattels intended to be sold, with 
 the name of the owner or person who left them where known. 
 This Act was considered in 1883 when it was decided that an 
 
 (') 26 & 27 Vict. c. 41. gooda, the separate property of a 
 
 (^) Spice V. Bacon, 2 Ex. D. 463. wife staying with her husliand at an 
 
 {") Smith's Leading Cases, 9th ed. hotel, Gordon v. Silher, 25 Q. B. D. 
 
 p. 143, oiling Sanbolf v. Alford, 3 491. 
 
 M. & W. 248 ,■ and see, as to lien on 
 
410 CONTRACTS. [Book III. 
 
 Ian- innkeeper who accepts security from his guest for the payment 
 
 keeper s ^^ hotel charges, does not thereby waive his common law lien 
 
 upon the guest's goods unless there is something in the nature 
 
 of the security or in the facts of the case inconsistent with the 
 
 existence or continuance of the lien and destructive of it Q-'). 
 
 " As I understand the law," said Kay, J., " it is not the mere 
 taking of a security which destroys the lien, but there must be 
 something in the facts of the nase, or in the nature of the secu- 
 rity taken, which is inconsistent with the existence of the lien, 
 and which is destructive of it. In this case the lien is within 
 the provisions of 41 & 42 Vict. c. 38, by virtue of which the 
 innkeeper not only has a passive lien, but also the active right to 
 sell the goods, upon giving the notice required by the Act. Is 
 it probable that he would have given up this active lien ? 
 There was nothing in the case inconsistent with the continuance 
 of the lien which the plaintiff undoubtedly had before the 
 security was given." The decision of the Court was accordingly 
 in favour of the innkeeper. 
 Common The liability as bailees of common carriers niay be next con- 
 
 carriers, sidered. A common carrier is a person who undertakes for hire 
 to transport from place to place, either by land or water, the 
 goods of such persons as think fit to employ him. Thus owners of 
 waggons, barges, lighters, merchant ships, are common carriers. 
 A carman who conveys passengers only is not a commdu 
 carrier, nor is a carman who undertakes casual jobs and does not 
 ply from one fixed terminus to another. The public nature of the 
 employment of the common carrier which, as pointed out by 
 Mr. Smith in his leading case, renders his good conduct of the 
 utmost importance to the whole community, was the cause of 
 the imposition upon him at common law of a great variety of 
 onerous liabilities which have been to some extent rescinded by 
 statute. He is bound to convey the goods of any person offering 
 to pay his hire unless his carriage be already full or the lisk 
 sought to be imposed upon him extraordinary, or unless the 
 goods be of a sort he cannot convey, or is not in the habit of 
 conveying, and does not profess to convey. The hire charged 
 must be no more than a reasonable remuneration to the carrier. 
 
 (') Angus v. McLachlan, 23 Ch. D. the report, which on this point is 
 
 830,336. In this case, Kay, J., is re- obviously not complete, is inaccurate 
 
 ported to have held that an innkeeper in attributing to the learned judge a 
 
 was not bound to be more careful in view which is clearly inconsistent 
 
 keeping the goods of his guest than witli tiie authorities which are cited 
 
 he was as to his own. The learned in their note 8 to Calye's Case, p. 
 
 editors of Smith's Leading Oases, 8th 141. 
 cd., however, express an opinion that 
 
Chap. V.] BAILMENTS. 411 
 
 While the goods are in the carrier's custody he is bound to take Common 
 the utmost care of them, and unlike other bailees of the same '''''""'"■^• 
 class he is at common law responsible for every injury sustained 
 by them occasioned by any means whatever, except only by the 
 act of God or the king's enemies (i), subject however to the 
 further qualification that he is not responsible for damages arising 
 from the natural deterioration or inherent vice of the thing 
 carried. In such cases his position and immunities are those of 
 an insurer who is not liable, as was pointed out by Willes, J., in 
 Slower V. Great Western Railway Co. (^) for accidents happening 
 through the inherent vice of the thing insured. The defendants 
 in that, case were held not to be responsible for the loss of a horse 
 which happened without any negligence on their part through the 
 inherent vice of the animal itself. 
 
 The law with regard to the liability of common carriers was 
 much considered in the case oi Nugent v. Smith decided in the year 
 1876 (^). In this case the defendant, a common carrier by sea 
 from London to Aberdeen, received from the plaintiff a valuable 
 mare to be carried to Aberdeen for hire. In the course of the 
 voyage the ship encountered rough weather, and the mare re- 
 ceived such injuries that she died. The jury found that the 
 injuries were caused partly by more than ordinarily bad weather 
 and partly by the conduct of the mare herself by reason of 
 fright and consequent struggling, without any negligence of 
 the defendant's servants. 
 
 The Court of Appeal decided that the defendant was not 
 liable, and laid down the following principles — 
 
 The carrier does not insure against the iiresistible act of 
 Nature, nor against defects in the thing carried itself; and if 
 he can shew that either the act of Nature or the defect of the 
 thing itself, or both taken together, formed the sole direct 
 and irresistible cause of the loss, he is discharged. In order 
 to shew that the cause of the loss was irresistible it is not 
 necessary to prove that it was absolutely impossible for the 
 carrier to prevent it, but it is sufBoient to prove that by no 
 reasonable precaution under the circumstances could it have 
 been prevented. 
 
 (') Oakly V. Portsmouth, &o., Co., and on appeal, re¥ersing the decision 
 
 11 Exch. 618 ; Buddon v. Great of the Court below, 1 0. P. D. 423. 
 
 Northern By. Co., 28 L. J. Exch. 51. The findings of tlie jury are stated 
 
 Q) Bloioer v. Great Western By. at p. 21, and the law on the subject, 
 
 Co., L. E. 7 C. P. 662 ; see also ancient and modern, Is carefully con- 
 
 KenduU v. London and South Western sidered in the judgments at p. 23, et 
 
 By. Co., L. E. 7 Exoli. 373. seq., and p. 425, et seq. 
 
 C) Nugent v. Smith, 1 0. P. D. 19, 
 
412 
 
 CONTRACTS. 
 
 [Book III. 
 
 The 
 
 Carriers 
 
 Act. 
 
 Railway 
 and Canal 
 Traffic Act. 
 
 Prior to tlie statute next referred to, passed in the year 1830, 
 carriers with a view to limit their liability adopted the practice 
 of posting and distributing written and printed notices to the 
 effect that they would not be responsible for property of more 
 than a specified value unless the owner had insured and paid 
 an additional premium for it. This practice led to much litiga- 
 tion, and accordingly the legislature interfered and passed the 
 Carriers Act (11 Geo. 4, and 1 Wm. 4, c. 68) Q-). 
 
 This Act protects the carrier by land (and it has been decided 
 that it applies when the carriage is partly by land and partly 
 by sea (^)) from liability for loss or injury in respect of the 
 articles enumerated in its first section, generally described in the 
 preamble as of great value in small compass (^). The principal 
 of these are gold or silver coin, or gold or silver manufactured 
 or unmanufactured, precious stones, jewellery, watches, elects, 
 bills, notes, or securities for money, stamps, maps, writings, 
 title-deeds, engravings, pictures, plate, glass, china, silk, furs, 
 or lace (other than machine-made lace, 28 & 29 Vict. c. 94) con- 
 tained in any parcel where the value exceeds £10, unless at the 
 time of the delivery to the carrier their value and nature be 
 declared, and the agreement made to pay the extra charge for 
 them to be stated by notice conspicuously exhibited. The 
 statute however does not protect the carrier from any loss 
 arising from the felonious act of any servant in his employ, 
 and it is provided that no public notice or declaration shall 
 for the future restrict the common law liability of carriers in 
 case not within the Act (*). 
 
 With regard to the carriage of horses, cattle, and other 
 animals by railway and canal companies, the Railway and Canal 
 Traffic Act (17 & 18 Vict. c. 31), s. 7, enacts that no greater 
 damages shall be recovered for the loss of, or for any injury 
 done to any of such animals, beyond the sums following (that is 
 to say), for any horse, £50 ; for any neat cattle, per head, £15 ; 
 fur any sheep or pigs, per head, £2, unless the person sending or 
 delivering the same to the company shall, at the time of 
 
 (') Smith's Leading Cases, 9th ed. 
 vol. i. p. 244, where the old law is 
 considered, and the cases in the pre- 
 sent Act collected ; Ohitty on Con- 
 tracts, 12th ed. p. 541. 
 
 Q) Le Conteur v. London and 
 South Western Railway Co., L. R. 
 1 Q. B. 54. 
 
 (') It has been decided that the 
 Act applies to the articles enumer- 
 ated, even though they do not fall 
 
 within this description, if their aggre- 
 gate value, when delivered, exceeds 
 £10 : Owen v. Burnett, 2 Or. & N. 
 353. 
 
 (') See the cases on this Act col- 
 lected in Chitty on Contracts, 12th 
 ed. p. 543, et seq. ; Smith's Leading 
 Cases, 9th ed. p. 243, and the im- 
 portant case of Stephens v. London 
 and South Western By. Co., 18 Q. B. 
 Div. 121. 
 
Chap. V.] BAILMENTS. 413 
 
 deliver)', have declared them to be respectively of higher value, 
 in which case the company may demand and receive by way of 
 compensation for the increased risk and care a reasonable per- 
 centage upon the excess of the value so declared (i). 
 
 (') 17 & 18 Vict. u. 31, B. 7, and partly by eea, protecting tliem- 
 
 extended to railway companies, and selves by public notice, the Railways 
 
 steamboats by 26 & 27 Vict. c. 92; Regulation Act, 31 & 32 Vict. c. 119. 
 and see as to carriers partly by land 
 
( 414 ) 
 
 Definition. 
 
 Different 
 kinds of 
 agencies. 
 
 OHAPTEE VI. 
 
 Peincipal and Agest, 
 
 An agent may be defined as a person duly autliorized to act 
 on behalf of another, or one "whose unauthorized act has been 
 duly ratified. The common element, says Mr. Evans, in every 
 definition of an agent, is the recognition of the derivative 
 authority of the agent. The maxim of law on this subject is 
 qui facit per alium facit per se. 
 
 Agency may be either universal, general, or special. A 
 special agency arises v^here there is an express limited autho- 
 rity given to the agent to do some particular act, or to make 
 some particular contract. A general agency exists when the 
 authority is to make all contracts, or to do all acts connected 
 with a particular trade, business, or employment (^). 
 
 If a particular agent exceeds his authority, his principal is 
 not bound by what is done. If, on the other hand, a general 
 agent exceeds his authority, his principal is bound, if what he 
 does is within the usual scope of the business which he is 
 deputed to transact. 
 
 On this principle it has been laid down that if the servant or 
 agent of a private individual entrusted on one occasion to sell a 
 horse, without authority from his master, takes upon himself to 
 warrant the soundness of the animal, the master is not bound. 
 But if the servant of a horse-dealer, or even one who only 
 occasionally assists him in his business, being employed to sell 
 gives a warranty, the principal is bound, even though the agent 
 or servant was expressly forbidden to warrant (2). 
 
 In another case it was decided that when the station-master 
 of a railway company had, without any express authority, 
 entered into a contract for surgical attendance on an injured 
 passenger, the company was not liable. 
 
 " Could it," asked the Court, " be maintained that a coach- 
 man from whose carriage a passenger had fallen and broken his 
 arm, or by which another person had been run over — could 
 
 (') Broom's Common Law, Sth ed. 
 p. 572. 
 (2) Brady v. Todd, 9 C. B. (N.S.) 
 
 592; Howard v. Sheward, L. E. 2 
 0. P. 148 ; Baldry v. Bates, 52 L. T. 
 620. 
 
Chap. VI.] PRINCIPAL AND AGENT. -115 
 
 Isind his master by a contract with a surgeon to cure the 
 injured person, and oblige his master to pay the bill? "We are 
 of opinion that he could not " (^). 
 
 Agents may also be divided into the following classes : — Classes of 
 
 1. In respect of the nature of the agency, into mercantile ^S'^°<^'<'^- 
 and non-mercantile agents. 
 
 2. In respect of their liability in selling, into del credere 
 agents, and such as are not del credere. 
 
 A del credere agent is one who, for a higher reward than is 
 usually given, becomes responsible to his principal for the 
 solvency of the vendee; or, in other words, he guarantees, in 
 eveiy case of sale, the due payment of the price of the goods 
 sold. 
 
 3. In respect of the extent of their duties, and of the amount 
 of skill required of them, into gratuitous and paid agents, proies- 
 sional and unprofessional agents. 
 
 The duties of an agent are (^) : — Duties of 
 
 (1) To perform the duties undertaken ; "" "g^-if- 
 
 (2) To act in the name of his principal ; 
 
 (3) To act in person ; 
 
 (4) To obey instructions and observe the terms of the autho- 
 rity ; 
 
 (5) In the absence of instructions to conform to usage or 
 recognized mode of dealing ; 
 
 (6) To act in good faith ; 
 
 (7) To use reasonable skill and ordinary diligence ; 
 
 (8) To make a full disclosure where he has an adverse 
 interest ; 
 
 (9) To render full accounts of receipts and disbursements ; 
 
 (10) To keep the goods and money of the principal separate 
 from his own. • 
 
 In performing his duties the agent is in the absence of some 
 express limitations of his powers entitled to employ not only 
 the powers expressly contained in his authoi ity, but also all the 
 necessary and usual means of executing his authority, and all 
 the means justified by the usual course of trade or business (^). 
 
 The general principle of the English law, however, as of the 
 civil law, is that an agent cannot appoint a deputy : Belegata 
 
 (>) Cox V. Midland Railway Co., furtlier authorities on the subject are 
 
 3 Ex. 268. The general manager of cited. 
 
 a railway has such an implied autho- C) Evans on Agency, 2nd ed. 
 
 liiv: Walh&r v. Great Western Rail- p. 25% etseq. „j , 
 
 way Co L K. 2 Ex. 228 : Broom's (0 Evans on Agency, 2ud ed. 
 
 Commoii La*, p. 569, et seq., where p. 124. 
 
416 O0NTBAOT8. [Book III. 
 
 potestas non potest delegari. To this, howerer, there are certain 
 exceptions, which have been summed up as follows : An agent 
 Delegation, may, prima facie, appoint a deputy, and delegate authority to 
 him : — 
 
 (1) Whenever he is allowed to do so by a lawful custom or 
 usage ; 
 
 (2) Where the act is purely ministerial ; 
 
 (3) Where the object of the agency cannot lawfully be 
 attained otherwise ; 
 
 (4) Where the principal is aware that his agent will appoint 
 a deputy ('). 
 
 Katifica- With regard to ratification by one person of that which 
 
 *'""• another has done, the rule of law is : Omnia ratihdbitio retrotrahitur 
 
 et mandato priori sequiparatur. In other words, a ratification 
 
 hath a retrospective effect, and is equivalent to a preceding 
 
 command. 
 
 The essentials of ratification, or, in other words, the circum- 
 stances which must exist in order that a ratification should be 
 binding, may be summed up as follows : — 
 
 (1) The act to be ratified must be voidable and not void ; 
 
 (2) It must be performed by one professing to act for another ; 
 
 (3) The pergon in whose behalf the act is done must be in 
 existence at the time of its performance, but as it shall be pre- 
 sently seen that peculiar legal person — a joint stock company — ■ 
 may be liable for a contract entered into before the date of its 
 incorporation ; not, however, because the contract is ratified, but 
 because an equitable liability is created ; 
 
 (4) The person who undertakes to ratify must do so with a 
 knowledge of all material circumstances, or with an intent to 
 take all liability without such knowledge ; 
 
 (6) He must also be capable ,of ratifying the act ; 
 
 (6) When formalities are necessary they must be observed (^). 
 
 The question whether a company is bound by a contract 
 made by its " promoters " (post, p. 636) before its formation, e.g. 
 by an agreement by the promoters to pay solicitors a sum of 
 money for their costs and charges in registering the company, 
 has given rise to some difSculty, but it must now be considered 
 as settled law that a company cannot ratify a contract made on 
 its behalf before it came into existence — cannot ratify a nullity. 
 The only thing that results from what is called ratification or 
 adoption of such a contract is not the ratification or adoption of 
 
 (') Evans on Principal and Agent, 2nd ed. p. 74 ; and see Bolton v. 
 2nd ed. p. 53. Lanibert, 41 Ch. U. 295 ; Lyell v. 
 
 (') Evans on Principal and Agent, Kennedy, 14 App. Gas. 437. 
 
Chap. VI.] PBINCIPAL AND AGENT. 417 
 
 a contract qua contract, but the creation of an equitable liability- 
 depending upon equitable grounds Q). 
 
 A leading case upon the relation between principal and agent 
 is that of Cornfoot v. Fowlce (^), decided nearly half a century Comfoot v. 
 ago. The facts in that case were as follows : The plaintiff, who -™""^- 
 was the owner of a ready-furnished house, had employed an 
 agent to let it for him. The adjoining house was used as a 
 brothel, and this detrimental circumstance was known to the 
 plaintiff, but not to his agent. The agent let the house to the 
 defendant. Before the defendant signed the agreement he had 
 asked the agent whether there was any objection to the house, 
 and he had answered that there was not. An action was then 
 brought against the defendant for the njon-performance of his 
 agreement to take the house, and he pleaded that he had been 
 induced to enter into the contract by means of the fraud, 
 " covin, and misrepresentation " of the plaintiff and others. 
 The majority of the Court (Lord Abinger dis&enting) were in the 
 plaintiff's favour. " I think it impossible," said Baron Alderson, 
 " to sustain a charge of fraud when neither principal nor agent 
 has committed any : the principal, because though he knew the 
 fact, he was not cognizant of the misrepresentation being made, 
 nor even directed the agent to make it; and the agent, because 
 though he made a misrepresentation, yet he did not know it to 
 be one at the time he made it, but gave his answer bond fide." 
 
 The principle laid down in this case has since been made the 
 subject of much discussion. In a case which came before the 
 Court of Appeal in 1881 the following observations of Lord St. 
 Leonards on the decision in Cornfoot v. FowJce were cited with 
 approval by Lord Selborne (^) : " If in that case fraud had not 
 been alleged, but it had been put upon misrepresentation, and 
 the facts were that a man, knowing that there is so serious a 
 nuisance affecting a house as to diminish its value in such a way 
 that no man of respectability could live in it, takes care himself 
 not to make the contract, but leaves it to an agent whom he has 
 no reason to suppose to be aware of the fact ; and if, in the 
 course of the treaty for the contract, the agent being asked if 
 such a fact existed, states positively ' no,' and the contract is 
 executed in silence upon the point, because the purchaser's or 
 the tenant's vigilance has been lulled to sleep upon it, and he 
 believes the representations made to him by the agent. ... I 
 
 (') Me Tlie Empress Engineering pp. 95. 99. 
 
 Co., 16 Oil. D. 125, where the previous (^) Ludgater v. Love, 44 L. T. 
 
 authorities are collected. 694; see, as to liability for agent's 
 
 (2) In 1810, 6 M. & VV. 358 ; 2 mistake, Tomlin v. Luce, 43 Ch. D. 
 
 Smith's Leading Cases, 9th ed. 191. 
 
 VOL. I. ^ ^ 
 
case. 
 
 418 CON TB ACTS. [Book III. 
 
 should feel no hesitation, if I had myself to decide that case, in 
 saying that though the representation was not fraudulent, — the 
 agent not knowing that it was false — yet that as it in fact was 
 false, and false to the knowledge of the principal, although the 
 agent did not know it, it ought to vitiate the contract.'' 
 Insurance An important question with respect to the relation of prin- 
 
 cipal and agent came before the House of Lords in 1887. In 
 this case a certain ship had left New York on the 1 1th of April 
 bound for Glasgow, where she was due about the 24th or 25th 
 of April. The plaintiffs, who were underwriters and insurance 
 brokers, were liable on a policy to the extent of £1500, and were 
 naturally anxious to insure the vessel. They accordingly in- 
 structed their broker to effect a reinsurance. The broker whilst 
 acting for them became aware of certain facts which were 
 material to the risk, but never communicated to the plain- 
 tiffs. The plaintiffs effected a reinsurance through the broker's 
 London agents for £800, and afterwards effected another insur- 
 ance for £700, lost or not lost, through another broker. As a 
 matter of fact the ship had been lost several days before the 
 plaintiffs tried to reinsure, but it was admitted that the plain- 
 tifls and the broker who had effected the £700 insurance had 
 acted in good faith throughout. The House of Lords decided 
 that the knowledge of the first broker was not the knowledge 
 of the plaintiffs, and that they were entitled to recover on the 
 £700 policy. 
 
 " Where the employment of the agent is such that in respect 
 of the particular matter in question he really does represent the 
 principal, the formula that the knowledge of the agent is his 
 knowledge is I think correct, but it is obvious that that formula 
 can only be applied when the words ' agent ' and ' principal ' are 
 limited in their application. To lay down as an abstract pro- 
 position of law that every agent, no matter how limited the 
 scope of his agency, would bind every principal even by his 
 acts, is obviously and upon the face of it absurd ; and yet it is 
 by the fallacious use of the word ' agent ' that plausibility is 
 given to reasoning which requires the assumption of some such 
 proposition. 
 
 " What then is the position of the broker in this case, whose 
 knowledge, though not communicated, is held to be that of the 
 principal ? He certainly is not employed to acquire such knowr 
 ledge, nor can any insurer suppose that he has knowledge in 
 the ordinary course of employment like the captain of a ship, 
 or the owner himself, as to the condition or history of the ship. 
 In this particular case the knowledge was acquired, not because 
 
Chap. VI.] PRINCIPAL AND AGENT. 419 
 
 he was tlie agent of the assured, hut from the accident that he was 
 general agent for another person. The reason why, if he had 
 effected the insurance, his knowledge, unless he communicated 
 it, would have been fatal to the policy, is because his agency 
 was to effect an insurance, and the authority to make the con- 
 tract drew with it all the necessary powers and responsibilities 
 which are involved in such an employment ; but he had no 
 general agency — he had no other authority than the authority 
 to make the particular contract, and his authority ended before 
 the contract sued on was made. When it was made no relation 
 between him and the shipowner existed which made or continued 
 him an agent for whose knowledge his former principal was 
 responsible. There was no material fact known to any agent 
 which was not disclosed at the point of time at which the con- 
 tract was made ; there was no one possessed of knowledge whose 
 duty it was to communicate such knowledge " (i). 
 
 It should be borne in mind that as the principal has employed 
 and accredited the agent he cannot be heard to impugn his own 
 act, or rely on the personal incapacity of the agent as a defence 
 should an action be brought against him by one who has entered 
 into a contract with the agent. On this ground the contract of 
 an infant agent is binding on the principal. 
 
 A curious point in reference to an agent's position, in 
 respect of business of a somewhat unpleasant character, arose in 
 a case which came before the Court. A contract made between 
 a company carrying on business in England and a foreign in- 
 corporated company which had no place of business in England 
 contained a clause which provided among other things that the 
 foreign corporation were to submit themselves to the juris- 
 diction of the English Courts, and by the same clause the 
 foreign corporation appointed E. in the city of London as their 
 agent, on whom any writ or other legal process arising out of 
 the contract might be served, and such appointment was not to 
 be revocable, unless and until some other agent was appointed, 
 and service of any writ or other process upon such agent was to 
 be deemed good service on the foreign corporation {^). 
 
 No other agent was ever appointed, and the question subse- 
 quently arose whether service of a writ on or at his office in the 
 City was good service. Field, J., in delivering judgment said : 
 
 (') Per Halsbury, L.C., in Black- tiifs could not recover. 
 lurn. Low & Go. v. Vigors, 12 App. (^) The Tlmrsis Sulphm and Copper 
 Cas. 531 but see Blackburn, Low & Co. v. The Societe' Industrielle et Corn- 
 Co ' V. Haslam 21 Q. B. D. 144, merciale Les Metaux, 60 L. T. 924 ; 
 where' there being only one set of and see authorities tliere cited, 
 negotiations, it was held the plain- 
 
 2 E 2 
 
420 
 
 CONTRACTS. 
 
 fBooK III. 
 
 Personal 
 liability of 
 agent. 
 
 Liability of 
 undisclosed 
 principal. 
 
 Determina- 
 tion of 
 agent's 
 authority. 
 
 Lunacy of 
 principal. 
 
 " It is quite clear, on principle that a person may for considera- 
 tion appoint another as agent to accept service, and may con- 
 tract with some one else that that person shall be the person, 
 Tintil revocation to accept service. And not only on principle is 
 that so, but there is also an authority to that effect." 
 
 An agent is personally liable on contracts entered into for his 
 principal: (1) Where he pledges his own petsonal credit; or 
 (2) Conceals his principal ; or (3) Where he contracts as agent, 
 yet in such terms as to bind himself; or (4) Where he know- 
 ingly exceeds his authority ; or (5) Where he fraudulently 
 misrepresents the extent of his authority. 
 
 The law as to the liability of an undisclosed principal is dis- 
 cussed in the leading cases of Addison v. Gandasequi ; Paterson 
 V. Oandasequi, and Thompson v. Davenport, in the second volume 
 of Smith's Leading Cases. In the last-mentioned case the law 
 on the subject was summed up by Lord Tenterden as follows : — 
 " I take it to be a general rule, that if a person sells goods 
 (supposing at the time of the contract he is dealing with a 
 principal), Isut afterwards discovers that the person with whom 
 he was dealing is not the principal in the transaction, but agent 
 for a third person, though he may in the meantime have debited 
 the agent with it, he may afterwards recover the amount from 
 the real principal ; subject, however, to this qualification, that 
 the state of the account between the principal and the agent is 
 not altered to the prejudice of the principal. On the other 
 hand, if at the time of the sale the seller knows, not only that 
 the person who is nominally dealing with him is not principal 
 but agent, and also knows who the principal really is, and not- 
 withstanding all that knowledge, chooses to make the agent his 
 debtor, dealing with him and him alone ; then the seller cannot 
 afterwards, on the failure of the agent, turn round and charge 
 the principal, having once made his election at the time when he 
 had the power of choosing between the one and the other " (^). 
 
 An agent's authority is determined either — 
 
 1st. By express revocation by the principal, or by renuncia- 
 tion by the agent ; 
 
 2nd. By the death or bankruptcy of the principal or agent ; 
 
 3rd. By expiration of the time specified for the continued 
 agency ; 
 
 4th. By the execution by the agent of his commission, when 
 he becomes, as it is said, functus officio. 
 
 The question what is the effect of the lunacy of the principal 
 upon contracts made by an agent whom the principal had ap- 
 
 (') Evans on Agency, 2nd ed. p. 2. 
 
Chap. VI.] PRINCIPAL AND AGENT. 421 
 
 pointed while sane was much discussed in an interesting case 
 before the Court of Appeal Q) which definitely establishes two 
 propositions : — 
 
 1. That the lunacy of the principal in certain cases puts an 
 end to the agent's authority, though the Court of Appeal did 
 not by any means agree in answering the question what these 
 oases w^ere. 
 
 2. That where a principal holds out an agent as having 
 authority to contract for him, and afterwards becomes lunatic 
 or insane, he is liable on contracts made by the agent, after the 
 lunacy or insanity, with a person to whom the authority has been 
 so held out, and who had no notice of the lunacy or insanity. 
 
 The attention of the reader has already been directed {ante, 
 p. 243, et seq.) to some of the provisions of the Factors Act, 
 1889. The 12th section of that Act provides as follows : — 
 
 (1) Nothing in this Act shall authorize an agent to exceed or 
 depart from his authority as between himself and his principal, 
 or exempt him from any liability, civil or criminal, for so doing. 
 
 (2) Nothing in this Act shall prevent the owner of goods 
 from recovering the goods from an agent or his trustte in 
 bankruptcy at any time before the sale or pledge thereof, or 
 shall prevent the owner of goods pledged by an agent from 
 having the right to redeem the goods at any time before the 
 sale thereof, on satisfying the claim for which the goods were 
 pledged, and paying to the agent, if by him required, any 
 money in respect of which the agent would by law be entitled 
 to retain the goods or the documents of title thereto, or any 
 of them by way of lien as against the owner, or from recovering 
 from any person with whom the goods have been pledged any 
 balance of money remaining in his hands as the produce of the 
 sale of the goods after deducting the amount of his lien. 
 
 (3) Nothing in this Act shall prevent the owner of goods 
 sold by an agent from recovering from the buyer the price 
 agreed to be paid for the same, or any part of that price, subject 
 to any right of set-oflF on the part of the buyer against the 
 agent (^). 
 
 (') Brew V. Nunn, 4 Q. B. D. 661. apples from a tree, and an agreement 
 
 C) See, on this Act, Smith's Mer- to give a commission of 10 per cent. 
 
 cantile Law, 10th ed. p. 45, et seq. on all apples sold. See, as to remedy 
 
 A variety of difficult questions of principal where excess price is 
 
 arise when an agent is paid by com- obtained through bribery of agent, 
 
 mission, as to which, see Evans on Salford (Mayor of) v. Lever, 25 
 
 Principal and Agent, p. 395, et seq., Q. B. D. 363 ; and as to case where 
 
 and Ex parte Maclure, L. E. 5 Ch. theie had been investment by agent 
 
 737, where it is pointed out that of money obtained by secret commis- 
 
 there is an essential diifeicncc sion. Lister & Co. v. Stiibbs, 45 
 
 between a contract to sell all the Ch. D. 1. 
 
C 422 ) 
 
 CHAPTEE VII. 
 
 Measure of Damages. 
 
 We shall now briefly consider the subject of tlie " measure of 
 damages " as it is technically called in actions of contract, ia 
 other words (to borrow Mr. Broom's phrase) " the scale or 
 rule by reference to which damages in any given case to be 
 
 General 
 principle. 
 
 Hadley v. 
 BaxendaU. 
 
 The rule of the Common Law, said Baron Parke, is that where 
 a party sustains a loss by reason of a breach of contract, he is, so 
 far as money can do it, to be placed in the same situation with 
 respect to damages as if the contract had been performed (^). 
 
 The generality of this rule has, however, been considerably 
 limited by the principle laid down in the leading case of 
 Hadley v. Baxendale ('), and applied in many subsequent cases. 
 These cases establish the following principle as regulating the 
 measure of damages in actions of contract. 
 
 Where two parties have made a contract which one of them 
 has broken, the damages which the other party ought to receive 
 in respect of such breach of contract should be such as may 
 fairly and reasonably be considered as either arising naturally, 
 i.e. according to the usual course of things from such breach of 
 contract itself, or such as may reasonably be supposed to have 
 been in the contemplation of both parties at the time they 
 made the contract as the probable result of the breach of it. 
 
 This principle is well illustrated by a case which was recently 
 decided by the Court of Appeal (*). 
 
 In this case the plaintiffs bought from the defendant " steam 
 coal," which was to be coal suitable for use on steamers. At 
 
 (') Drew V. Nunn, 4 Q. B. D. 661. 
 
 C) Eohmson v. Sarman, 1 Ex. 855. 
 
 (") Sadley v. Baxendale, 9 Ex. 
 3il. 
 
 O Hammond & Co. v. Bussey, 20 
 Q. B. Div. 86. Among other oases 
 which may be usefully consulted on 
 the subject of measure of damages 
 are Some v. Midland Railway Co., 
 L. E. 7 C. P. 683 ; Simpson v. London 
 and North Western Hailway Co., 1 
 
 Q. B. p. 274; Sldnnw v. City of 
 London Marine Insurance Corpora- 
 tion, 14 Q. B. D. 882 ; Whitham v. 
 Kershaw, 16 Q. B. D. 613; Kiddle 
 V. Lovell, 16 Q. B. D. 605; Lombard 
 V. Kennedy, 23 L. K. Ir. 1 (as to 
 breach of contract to keep premises 
 in repair) Grand Trunh Railway Go 
 of Canada v. Jenninqe, 18 App. Cas. 
 800. 
 
Chap. VIL] MEA8UBE OF DAMAGES. 423 
 
 the time when the defendant sold the coal he knew that the 
 plain tiifs were buying the coal in order to sell it again to the 
 owners of steamers calling at Dover to be used as steam coal 
 on such steamers ; and he therefore knew that the plaintiffs 
 would enter into contracts with others similar to the contract 
 he himself had made with the plaintiffs, that is to say, into 
 contracts for the sale of " steam coal," which would amount to 
 a warranty that the coal was reasonably fit to be used for 
 purposes of steam coal on board steamers. 
 
 The coal delivered by the defendant to the plaintiffs under 
 the contract and by them delivered in terms to " their sub- 
 vendees " did not answer such description, but this could not be 
 ascertained by inspection of the coal, and only became apparent 
 upon its use by the sub-vendees. The sub-vendees thereupon 
 brought an action for breach of contract against the plaintiffs. 
 The plaintiffs gave notice of the action to the defendant, who, 
 however repudiated all liability, insisting that the coal was 
 according to contract. 
 
 The plaintiffs defended the action against them, but at the 
 trial the verdict was that the coal was not according to contract 
 and the sub-vendees accordingly recovered damages from the 
 plaintiffs. The plaintiffs thereupon sued the defendant for 
 breach of contract, claiming as damages the amount of damages 
 recovered from them in the action by their sub-vendees, and the 
 costs which had been incurred in such action. 
 
 It was held, that the defence of the previous action being, 
 under the circumstances reasonable, the costs incurred by the 
 plaintiffs as defendants in such action were recoverable under the 
 rule in Hadley v. Baxendale. 
 
 The Judges of the Court of Appeal pointed out that the first 
 part of the rule which has been stated deals with cases where 
 there are no special circumstances and the latter with cases 
 where there are special circumstances, and that this latter 
 part was illustrated or exemplified in Hadley v. Baxendale in the 
 following proposition : 
 
 " If the special circumstances under which the contract was 
 actually made were communicated by the plaintiffs to the defen- 
 dants, and thus known to both parties, the damages resulting 
 from the breach of such a contract, which they would reasonably 
 contemplate, would be the amount of injury which would ordi- 
 narily follow from a breach of contract under these special 
 circumstances so known and communicated " (J). 
 
 (') Per Lord Esher, M.R., iu Hammond & Go. v. Bwssey, 20 Q. B. D. 79, 
 
424 CONTRACTS. [Book III, 
 
 Applying tliis principle then to the case before them, the Court 
 " considered that the defendants must have contemplated, if 
 there was a breach of- the contract, that the plaintiffs' sub- 
 vendees would make a claim and bring an action against the 
 plaintiffs to enforce such claim ; and further, that the plaintiffs 
 would on such an action being brought behave as reasonable 
 men, and would pay without contest if it was unreasonable to 
 defend the action, but would defend the action if it was reason- 
 able to do so. All these matters may be reasonably supposed to 
 have been within the contemplation of the parties. That being 
 so, it follows that the costs of a reasonable defence would be in 
 the contemplation of the parties, and it also followed that the 
 costs of a reasonable defence would be in the contemplation of 
 the parties, if they had worked out the question what the 
 damages were which would reasonably be payable upon a breach 
 of contract " (}). 
 Interest. The general rule of the law is that interest on a debt is not 
 
 recoverable unless there is a contract express or implied to 
 pay it. 
 
 Where no loss accrues from a breach of contract a plaintiff is 
 nevertheless entitled to a verdict, but for nominal damages only, 
 nominal damages meaning " a sum of money that may be spoken 
 of, but that has no existence in point of quantity " (^); accordingly 
 in an action for the non-payment of a debt, where the debtor 
 gave no promise to pay interest, nothing beyond the principal 
 , sum due can be recovered for any loss sustained by the creditor 
 from being kept out of his money, which is not allowed to be taken 
 into account by a jury in assessing damages, unless compensa- 
 tion for such loss was expressly stated to be within the con- 
 templation of the parties at the time the debt was incurred. 
 
 To this rule, bills of exchange, promissory notes and overdue 
 bonds are generally said to be exceptions ; but, in a case decided 
 by the Court of Appeal in 1887, the law was stated to be that 
 interest could not be claimed on a bill of exchange or a promis- 
 sory note as part of the contract, unless there was an express 
 agreement to pay interest, and that interest could only be given 
 by way of damages ; that in an action on the bill, the jury 
 could give interest as damages, but they were at liberty to 
 refuse to do so, as the interest was no part of the debt, and 
 that now that actions could be tried without a jury, the judge 
 could give or refuse to give interest (^). 
 
 (1) Per Fry, L.J., in Eammmd & Greatliead, 2 C. B. 494. 
 Co. V. Busse,/i20 Q. B. D. 79, 100. (») Per Lord Esher, M.E., in M 
 
 (^) Per MkuIp, J., in Beaumont v. parte Charman, In re Clagett, W. N. 
 
Chap. VI I.] 
 
 MEASURE OF DAMAGES. 
 
 425 
 
 Interest is recoverable where there is an express agreement Interest. 
 to pay it (^), and where, from the course of dealing between 
 the parties a contract to pay interest may be implied (^). 
 
 It is also provided by statute Q} that upon all debts or sums 
 certain, payable at a certain time or otherwise, the jury may, 
 if they shall think fit, allow interest to the creditor at a rate 
 not exceeding the current rate of interest, if such debts or sums 
 be payable by virtue of some written instrument at a certain 
 time ; or, if payable otherwise, then from the time when 
 demand of payment was made in writing with notice to the 
 debtor that interest would be claimed from the date of the 
 demand (*). 
 
 (1887) p. 184. See In re Roberts. 
 Goodehap v. Roberts, 14 Ch. D. 49 ; 
 Ward V. Eyre, 15 Oh. U. 130; Ex 
 parte Furber. Re King, 17 Ch. D. 
 191. In the former of these cases, 
 Jessel, M.R., said, " In an action at 
 law for the non-payment of money on 
 a day certain, wliere it is an interest- 
 bearing debt, the rule has always 
 been to recommend the jury to give 
 5 per cent., because that is the usual 
 commercial value of money. If there 
 ever should come a time when it 
 fell very much, juries might give 
 less, or if it rose very much, they 
 might give more ; but that is the 
 reason of the rule. The fact of the 
 parties having bargained for a higher 
 or lower rate of interest for a time 
 certain is always to be taken into 
 consideration as shewing the value 
 of money, but it does not decide tbe 
 question." 
 
 It always, we are told in Daniell'a 
 Chancery Practice, was the practice 
 in equity to allow interest to be com- 
 puted upon bills of exchange and 
 promissory notes, and upon all other 
 sums payable on demand, or on a 
 day certain, upon which interest 
 might, according to the practice of 
 the Court of law, be calculated either 
 from the time of the demand made, 
 or from the fixed period of payment. 
 The practice seems now to be, to 
 
 allow interest at 5 per cent, on bills 
 of exchange and promissory notes, 
 and at 4 per cent, in other cases, in 
 the absence of any contrary arrange- 
 ment between the parties. 
 
 O FosUr v. Weston, 6 Bing. 714. 
 
 (^) Nichol V. Thompson, 1 Camp. 
 52 ; Fetre v. Duncombe, 20 L. J. Q. B. 
 242. 
 
 (=) 3 & 4 Will. 4, 0. 42, s. 28. 
 
 (■*) Mowatt V. Lord Londesborough, 
 3 B. & B. 307, 336, and 4 Id. I.; 
 Harper v. Williams, 4 Q. B. 219 ; 
 Atwood v. Taylor, 1 M. & Gr. 279, 
 332 ; Edwards v. Great Western Rail- 
 way Co., 11 C. B. 588, 650. See also 
 Cook V. Fowler, 7 H. L. 27. If a 
 party not entitled to interest makes 
 a claim for it to gain an improper 
 advantage, the Court may set aside 
 the judgment and compel the solicitor 
 making such indorsement to pay the 
 costs : Rodway v. Lucas, 24 L. J. Ex. 
 Hil. Term, 1858, p. 155, where, how- 
 ever, the Court refused to set aside 
 the judgment, as the defendant was 
 considered to have admitted the con- 
 tract by failing to appear. See cases 
 collected, Seton on Decrees, vol. ii., 
 p. 798; Chitty on Contracts, 12th ed. 
 p. 658, et seq ; see also Phillips v. 
 Hom/ray, 44 Ch. D. 694; Rhymney 
 Railway Co v. Rhymney Iron Co., 25 
 Q. B. I). 146 ; and articles in Law 
 Journal for Oct. 18 and 25, 1890. 
 
( 426 ) 
 
 CHAPTEE VIII. 
 
 DiSCHAEGE OF CoNTEACTS. 
 
 Having now considered the nature, mode of formation, and 
 results of the contractual obligation, we proceed to explain the 
 principal modes by which this obligation may be got rid of, or 
 as it is technically expressed, " discharged." These are : — 
 
 (1) By mutual consent, i.e. the parties may, subject to the 
 
 rules hereinafter mentioned, agree that the contract 
 between them shall be waived. 
 
 (2) By performance. 
 
 (3) By breach. 
 
 (4) By impossibility of performance. 
 
 (5) By operation of law. 
 
 (6) By novation. 
 
 Discharge 1. Contracts of records and specialties, as before stated, must 
 y consen . -j^^ released by an instrument under seal, but a parol or simple 
 contract may be discharged by writing or word of mouth, whether 
 or no the original contract be in writing, as the writing is not 
 the contract, but the evidence of it. The rule is different where 
 a contract is required by statute to be in writing. If the dis- 
 charge is only such as would be implied from the making of a 
 new contract inconsistent with the old one, then there must be 
 writing such as would satisfy the statutory requirement in 
 respect to the original contract Q). 
 
 An agreement entered into to discharge a pre-existing con- 
 tract is subject to the rule governing all simple contracts with 
 respect to consideration. The rule that a simple contract may 
 before breach be w^aived or discharged without a deed and 
 without consideration refers only to an executory contract where 
 no further consideration is needed for an agreement to rescind 
 than the discharge of each party by the other from his liabilities. 
 The rule is otherwise in respect to an executed contract. 
 
 Baron Parke in Foster v. Bawber (2) states the law in reference 
 to the discharge of executory and executed contracts in the 
 
 (') Noble V. Ward, L. E. 2 Ex. 135 ; p. 162 ; but see also Fry on Specific 
 Guss V. Lord Nugent, 5 B. & Ad. 65. Performance, 2n(l od. p. 445. 
 See Chitty on Contracts, 12th ed. C) 6 Ex. 83y. 
 
•Chap. VIIL] BISCEARGE OF CONTRACTS. 427 
 
 following words : " It is competent for both parties to an execu- 
 tory contract by mutual agreement without any satisfaction to 
 discharge the obligation of that contract. But an executed 
 contract cannot be discharged except by a release under seal 
 or by performance of the obligation, as by payment, where the 
 obligation is to be performed by payment. But a promissory 
 note or a bill of exchange appears to stand on a different footing 
 to simple contracts, and the words before breach when taken 
 with reference to that instrument are either idle or absurd." 
 
 The law with regard to discharge by " accord and satisfaction " 
 has been summed up in a standard work as follows :■ — " If before 
 action the defendant delivers to the plaintiff, and the plaintiff 
 accepts from the defendant, either money or chattels, or securi- 
 ties for money, in satisfaction and discharge of the debt or 
 cause of action, that is a good answer to an action for a debt or 
 for damages for a breach of contract, whether the contract be 
 under seal, or whether it be a simple contract, and whether the 
 action be founded on a deed, or on a parol agreement (^). 
 
 The law with regard to " accord and satisfaction " was much 
 considered in two cases which came before the Court in 1889. 
 In the first of these cases (^) an action was brought by two 
 obligees of a money bond, and the defence which the defendant 
 put in was that he had handed over and transferred to one of 
 the plaintiffs certain stock and goods which he had accepted in 
 full satisfaction and discharge of the bond. The Court decided 
 that if payment to one of the plaintiffs would have been an 
 answer to the action, the delivery to him and acceptance by him 
 of the debt would be equally an answer. Wills, J., in delivering 
 judgment on this point, said that the rule that at law accord 
 and satisfaction of a debt due upon a bond was no bar to the 
 action, was the result of a technicality absolutely devoid of any 
 particle of merit or justice, viz. that a contract under seal could 
 not be got rid of except by performance or by a contract also 
 under seal. This defect, however, had been remedied by the 
 decision of a court of equity, that when the plaintiff had 
 accepted money's worth in place of money in discharge of the 
 bond, the debt in equity was gone, and there was an end of it. 
 The decision of the Court on the second point was, however, 
 against the defendant. Here it was pointed out that the pre- 
 
 (■) Addison on Contracts, 7tli ed. v. Turley, 6 H. & N. 239: 30 L. J. 
 
 p. 278, citing TetUy v. Wanless, 36 Ex. 49. 
 
 L. J. Ex. 153; L. E. 2 Ex. 275; (^ Steeds v. Steeds, 22 Q. B. D. 
 
 Blake's Case, 6 Co. 43 b, 44 a ; An- 537. 
 drew V. Boughey, Dyer, 75 b ; Lavery 
 
428 
 
 OONTBACTS. 
 
 [Book HI. 
 
 Accord and sumption of equity was that the money was advanced to the 
 tfon '"'' ohligees as tenants in common (ante, p. 69), and the judge, 
 proceeding on the principle laid down in a leading case, that 
 where two persons lend money to a third (^), though they take 
 a security, each means to lend his own money and to take hack 
 his own, decided that there was no defence to the action either 
 at law or in equity. 
 
 In the second case on the subject which came hefore the 
 Court of Appeal (2), the facts were as follows : The plaintiffs had 
 made a claim against the defendants for a sum of money as 
 damages for breach of contract ; the defendants sent a cheque 
 for a less amount, stating that it was in full of all demands. 
 The plaintiffs kept the cheque, stating that they did so on 
 account, and brought an action for the balance of their claim. 
 The Court decided that the mere fact of keeping the cheque 
 was not conclusive that there was an accord and satisfaction, 
 but that the question had to be considered on what terms it 
 ■was kept. Lord Justice Bowen in delivering judgment ex- 
 pressed himself as follows : " It seems to me, as a matter of 
 principle as well as of authority, that the question whether 
 there is an accord and satisfaction must be one of fact. If a 
 person sends a sum of money on the terms that it is to be taken, 
 if at all, in satisfaction of a larger claim, and if the money is 
 kept, it is a question of fact as to the terms upon which it is so 
 kept. Accord and satisfaction imply an agreement to take the 
 money in satisfaction of the claim in respect of which it is sent. 
 If accord is a question of agreement, there must be either two 
 minds agreeing, or one of the two persons acting in such a way 
 as to induce the other to think that the money is taken in 
 satisfaction of the claim, and to cause him to act upon that 
 view. In either case it is a question of fact." 
 
 2. A contract may also be discharged when due by an exact 
 performance of the terms ; or by a tender of such performance 
 in case the other party refuse to accept it. 
 
 "With regard to performance, the law on the subject has been 
 ■well summed up in Mr. Leake's learned work on Contracts, as 
 follows : — 
 
 " Performance to operate as a discharge of a contract must be 
 in strict accordance with the terms of the contract. Thus, upon 
 a contract for the sale and delivery of goods, the seller must 
 deliver the goods in the quantity and of the quality contracted 
 for. Performance must be completed at or within the time 
 
 Perform- 
 ance. 
 
 (') MorUy v. Bird, 3 Ves. 631. 
 
 C) Day V. McLea, 22 Q. B. D. 610. 
 
Chap. VIH.] DISCHARGE OF O ON TRACTS. 429 
 
 stipulated by the contract, e.g., the payment of a bond, bill, or Peiform- 
 note, must be made, or at least tendered, on the day fixed, and 
 if the debtor is in default the payment made and accepted after 
 the appointed day operates not as a performance of the contract, 
 but in satisfaction of the breach." 
 
 An important rule must, however, be borne in mind in con- 
 nection with the question as to whether a contract is discharged 
 by delivery of certain goods. If a purchaser rely on the 
 tradesman's skill and judgment when he gives his order, he 
 has only himself to blame if they do not suit his purpose, and 
 the tradesman is exonerated. If, on the other hand, the trades- 
 man be told at the time that the goods are wanted for a particular 
 purpose, and the supply is left to the judgment of the tradesman, 
 there is a warranty implied by the law that the goods shall be 
 reasonably fit to supply the purchaser's wants. When a well- 
 known and specific chattel is ordered, all that the tradesman 
 has to do is to send that article, and he has nothing to do with 
 the question whether it suits the purchaser or not. 
 
 This principle is extremely well illustrated by an important 
 case which came before the Court of Appeal in 1877. 
 
 The plaintifif ordered and bought of the defendant, a coach- 
 builder, a pole for a phaeton for two horses. The pole broke in 
 use, and the horses became frightened and were injured. An 
 action for damages was then brought, and the jury found that 
 the pole was not reasonably fit for the carriage, but that the 
 defendant had not been guilty of any negligence (i). 
 
 The Court decided that the plaintiff was entitled to recover 
 the value of the pole, and also the damage to the horses, if the 
 jury on a second trial (which the Court thought right to grant) 
 should be of opinion that the injury to the horses was the 
 natural consequence of the defect in the pole. The law on the 
 subject was summed up in the judgment as follows : — 
 
 " In some contracts the undertaking of the seller is said to 
 be only that the article shall be merchantable ; in others, that 
 it shall be reasonably fit for the purpose to which it is to be 
 applied. In all, it seems to us, it is either assumed or expressly 
 stated, that the fundamental undertaking is, that the article 
 offered or delivered shall answer the description of it contained in the 
 contract. That rule comprises all the others; they are adapta- 
 tions of it to particular kinds of contracts of purchase and sale. 
 You must, therefore, first determine from the words used, or 
 the circumstances, what, in or according to the contract, is the 
 
 C) Randall v. Newson, 2 Q. B.D. 102, 109. 
 
430 CONTRACTS. [Book III ■ 
 
 real mercantile or business description of the thing which is 
 the subject-matter of the bargain of purchase or sale, or, in 
 other words, the contract. If that subject-matter be merely 
 the commercial article or commodity, the undertaking is, that 
 the thing offered or delivered shall answer that description, 
 that is to say, shall be that article or commodity ; saleable or 
 merchantable. If the subject-matter be an article or commodity 
 to be used for a particular purpose, the thing offered or delivered 
 must answer that description, that is to say, it must be that 
 article or commodity, and reasonably fit for the particular 
 purpose. The governing principle, therefore, is that the thing 
 offered and delivered under a contract of purchase and sale must 
 answer the description of it which is contained in words in the 
 contract, or which would be so contained if the contract were 
 
 accurately drawn out." "If the article or commodity 
 
 offered or delivered does not in fact answer the description of it 
 
 in the contract, it does not do so more or less because the defect 
 
 in it is patent, or latent, or discoverable." 
 
 Time for Where a certain day is fixed for performance, the law appoints 
 
 perform- ^j^g j^^g^ convenient time of the day for both to attend. The 
 
 ance. . . ^ -.-^^ 
 
 person liable may protect himself from default by being then 
 present at the place, and ready and willing to pay his debt or 
 perform his contract, but it is also sufficient for him to tender 
 payment or performance at the place if the promissee should 
 happen to be there at any time upon the day appointed (^). 
 
 Where no time for the performance of the contract is fixed by 
 the parties, it is implied by the law that it shall be performed 
 within a reasonable time, having regard to the nature and circum- 
 stances of the performance. Thus, in a contract for the sale of 
 goods where no time for delivery is fixed, the law implies that 
 the delivery shall be within a reasonable time, having regard to 
 the place where and conditions in which the goods are. 
 Contract to A contract to marry, no time being fixed for the performance 
 marry. ^f ^Jjq contract, is in contemplation of law a contract to marry 
 
 within a reasonable time (^). 
 Perform- It may also be pointed out with reference to the subject of 
 
 performance that, provided there be a real and hand fide perform- 
 ance of the contract, the party is at liberty to perform it in the 
 manner most convenient and least burdensome to himself. In 
 some cases the performance by one party of a certain thing may 
 be a condition precedent to his right to demand performance by 
 
 (') Leake on Contracts, citing Co. (^) Cherry v. Thommon, L. K. 
 
 Litt. 202 a ; Wade's Case, 5 Co. Litt. 7 Q. B. 57i. 
 114 a. 
 
 ance. 
 
Chap. VIII.] DISCHABGE OF CONTRACTS. 481 
 
 the other Q). In a case which came before the Court in 1889 (2), 
 the law with regard to the time and place of payment of money 
 when the contract is to be performed in that way was much 
 considered, and it was laid down that, where there is a condition 
 for payment of a sum at a time and place certain, the condition 
 is not broken by non-payment at the time, unless the demand 
 for payment is made at the specified place. The following 
 passage in Sheppard's Touchstone was cited as summing up the 
 law :■ — " In cases where a place is set down for the doing of the 
 thing contained in the condition, there it must always be done 
 at that place, unless, by some agreement made between the 
 parties afterwards, another place be appointed; otherwise the 
 condition is not performed, and the parties are not bound to 
 attend in any other place. But in cases where there is no place 
 set down for the doing of the thing contained in the condition, 
 if the thing to be done be a corporal service, as to pay money, 
 or any such like thing, the party that is to do it must, at his 
 peril, seek out the person to whom it is to be done, if he be 
 infra regnum Anglise ; but, if he be not within the kingdom, he 
 is not bound to seek him, and yet the condition is not broken. 
 And if the thing to be done be either local, i.e. such a thing as 
 must be done in or at a place certain, as the making of a feoff- 
 ment of land, payment of rent, or the like, in this case the 
 thing must be done at that very place, and a tender of doing it 
 in that place is a sufficient performance of the condition." It 
 was also pointed out in the present case that, where there are 
 two places named, it is for the person to whom payment is to 
 be made to fix the place at which he will be paid, and until he 
 has selected th.e place at which he will be paid there can be no 
 default. 
 
 " Without acceptance," said Baron Eolfe, " on the part of him Tender. 
 who is to receive, the act of him who is to deliver or pay can 
 amount only to a tender. But the law considers a party who 
 has entered into a contract to deliver goods or pay money to 
 another as having substantially performed it, if he has tendered 
 the goods or money to the party to whom the delivery or pay- 
 ment was to be made " (^). 
 
 A tender must be made strictly according to the contract as 
 regards the act to be performed as well as the place and time of 
 its performance (*). 
 
 C) Addison on Contracts, 8th ed. (') Sartup v. Macdonald, 6 M. & G. 
 
 p. 1189, et sea. 610. 
 
 m Thorn V. City Bice Mills, 40 (*) See as to defence of tender: 
 
 Ch D 357 R- S. C, 1883, Order xxii., .. 3. 
 
432 
 
 CONTRACTS. 
 
 [Book III. 
 
 Tender. 
 
 Appropria- 
 tion of 
 payments. 
 
 The tender of a money debt must be in the current coin of the 
 realm, or that wbich the law regards as equivalent to it. Gold 
 is good to any amount ; but wlver is not beyond 40«., nor copper 
 beyond a shilling. A Bank of England note, payable to bearer, 
 is a legal tender for all sums above £6 (^). 
 
 In order that the tender should be good, there must be actual 
 production of the money, or the creditor must dispense with it. 
 This may be done either expressly or it may be implied from 
 conduct. Thus in a case where a man called on his creditor, 
 and said he had eight guineas in his pocket, which he had 
 brought for the purpose of satisfying his demand, and the 
 creditor told him that he need not trouble himself to offer it, as 
 he would not take it, the matter being in the hands of his at- 
 torney, the Court considered that there was a sufficient tender (f), 
 A tender to be valid must be unconditional, and accordingly, 
 where an offer was made to pay a sum of money if the other 
 party would give a stamped receipt, it was held to be bad (f). A 
 tender made under protest is likewise bad. A tender must be 
 of the whole amount due ; but, if the alleged debt consists of a 
 variety of items, there may be a good tender as to one or some 
 of them, if the item for which the tender is made be clearly 
 indicated. 
 
 The exact sum must be tendered. The person to whom the 
 money is payable must not be required to give any change (*). 
 
 The important rule of law with regard to appropriation of 
 payments vaarsf here be noticed. The principle is that, when 
 money is paid, it is to be applied according to the expressed 
 will of the payer, not of the receiver (solutio accipitur in modo 
 solveniis). A debtor who owes several debts, and makes a pay- 
 ment, has accordingly a right to appropriate that payment to 
 finy debt he pleases. If, however, at the time of payment the 
 debtor does not expressly or impliedly appropriate the payment 
 to any debt, the creditor may appropriate it to any debt he 
 pleases, even though it be a statute-barred debt, though here it 
 has not the effect of reviving the debt. Where neither debtor 
 nor creditor apprupriates the payment, the law appropriates in 
 order of time (^). 
 
 (') 3 & 4 Will. 4, 0. 98, s. 6; 
 33 Viot. c. 10. 
 
 (2) Douglas \. Patrick, 3 T. R. 688. 
 
 (=) Cole V. Blake, Peake, 238; 
 Laing v. Meader, 1 C. & P. 257, but 
 see Richardson v. Jaolcson, 8 M. & W. 
 928. 
 
 (') See tlie very nunaeroue cases on 
 tender collected : Chitty on Con- 
 
 tracts, 12th ed. p. 787, et seq. 
 
 O See as to appropriation of pay- 
 ments: Clayton's Case, 1 Mer. 605 j 
 Mills V. Fowkes, 5 Bing. (N.C.) 455 ; 
 Nash V. Hodgson, Kay, 650 ; Thomp- 
 son V. Hudson, L. E. 6 Ch. 328 ; Be 
 Hallett's Estate, 13 Ch. D. 512 ; The 
 London and County Banking Co., 
 Limited v. Ratclijfe, 6 App. Cas. 722 ; 
 
Chap. VIII.] BISOEABQE OF CONTRACTS. 433 
 
 3. A contract is also said to be discharged by breact or default Breach. 
 of performance, that is, the contract itself is converted into a 
 claim for damages or a claim to have the contract performed 
 
 " vfith such equitable qualification as may be necessitated by 
 the default " (}). 
 
 The claim or right of action so arising can then no longer be 
 satisfied or discharged by performance or tender unless the 
 aggrieved party consents to accept satisfaction in this way. 
 
 4. Impossibility of performance is in general no answer to an Impossi- 
 action for damages for non-performance. If the thing to be '>'"*^y- 
 done is notoriously physically impossible, and was known to be 
 
 so by both parties, at the time of making the contract, the con- 
 tract is void, unless the promissor has taken it upon himself to 
 warrant that it is possible. If the thing to be done was possible 
 at the time of making the contract, but has become impossible 
 since, the promissor is liable to an action for damages for non- 
 performance if he has expressly or impliedly undertaken and 
 without any qualification to do it (^). 
 
 5. The acceptance of a security that in the eye of the law is By opera- 
 higher, instead of a lower, merges or extinguishes the lower, tiono^'aw- 
 Thus, as we have already seen, a judgment recovered in an 
 
 action extinguishes the right on which the action was grounded. 
 
 Again, if two parties to a simple contract enter into a contract 
 under seal in reference to the same subject-matter, the simple 
 contract is discharged. " The general principle is clear,'' said 
 Baron Eolfe in Middleditch v. Ellis (^) " that where a debt is 
 secured by a bond, covenant, or other specialty, there the obli- 
 gation by simple contract is gone. The lesser security is merged 
 in the greater." The policy of the law, said Mr. Justice Maule, 
 is, that there shall not be two subsisting remedies, one upon the 
 covenant and another upon the simple contract by the same 
 person against the same person for the same demand. 
 
 The conditions necessary to merge a lower in a higher secu- 
 rity are that the two securities should be coextensive, i.e. that 
 they should be for the same identical debt, and between the 
 same parties, e.g. a joint bond given by a principal and surety 
 will not merge the original debt of the principal (*). 
 
 In re Sherry, 25 Ch. D. 692 ; Kirk- et seq. 
 
 Patrick V. South Australian Insurance (') 2 Exch. 626. 
 
 Co 11 App. Gas. 177; Hancock v. C) Leake on Contracts ; and see, as 
 
 Smith, 41 C]]. D. 456. to giving bill of exchange for debt 
 
 (>) Leake on Contracts, p. 787. suspending or destroying right of 
 
 (') See the law as to impossibility action, Ohitty on Contracts, 12th ed. 
 
 summed up in a series of propositions : p. 762, et seq. 
 
 Chltty on Contracts, 12th ed. p. 726, 
 VOL. I 
 
 2 F 
 
434 CONTRACTS. [Book HI. 
 
 6. A contract is also discharged by the operation of the 
 Statutes of Limitation. Actions in respect of specialties must 
 be brought within twenty years from the accruing of the cause 
 of action (i). Actions in respect of simple contract debts 
 within six years (2). The rights of persons under disability, 
 infants, lunatics, are saved until the disability is removed, and 
 when the debtor is beyond seas the creditor has six years after 
 his return. A debt may be taken out of the statute by acknow- 
 ledgment, which must be in writing and signed by the party 
 himself or by his agent lawfully authorized (^). 
 NoTation. 7. Again, a contract is discharged by "novation." The term 
 
 " novation " is derived from the civil law, and its meaning was 
 defined in the House of Lords as follows : " There being a con- 
 tract in existence, some new contract is substituted for it, either 
 between the same parties, or between different parties ; the con- 
 sideration mutually being the discharge of the old contract " (*). 
 
 The common instance of novation is in the case of dissolutioa 
 of a partnership {post, p. 623), where a creditor agrees to accept 
 the liability of the new firm in lieu of that of the old. 
 
 Contracts, with the exception of those in which personal skill 
 or taste is req[uired, are not discharged by death Q'). 
 
 The discharge of the contract of suretyship will be considered 
 hereafter {post, p. 682). 
 
 In a case which came before the Court in 1890 it was decided 
 that (^) a party to a contract made and to be performed in 
 England is not discharged from his liability in respect of such 
 a contract by a discharge in bankruptcy or liquidation under 
 the law of a foreign country in which he his domiciled. 
 
 Q) See as to money charged on Jardine, 7 App. Oas. 345. See as to 
 
 land, &c., and mortgage debts, ante, novation in respect of the contract of 
 
 pp. 205, 206. inauraaoe(a»<e,p. 276) ; and see, as to 
 
 C) See, as to condition precedent the Roman law in respect to novation, 
 
 of cause of action, Atkinson v. The Justin. Inst, Lit. III. Tit. xxix. 3. 
 
 Bradford Third Equitable Benefit (') Chitty on Contracts, 12th ed., 
 
 Building Society, 25 Q. B. D. 377. p. 150. 
 
 (') Chitty on Contracts, 12th ed. C') Antony Gibbs & Sons v. La 
 
 p. 759, et seq. SociH^ Industrielle et Commerciale 
 
 C) Per Lord Selborne in Scarf v. dea Metaux, 25 Q. B. D. 399. 
 
( 435 ) 
 
 CHAPTEE IX. 
 
 Stoppage in Transitu and Lien. 
 
 It is obvious that there are many cases in which it -would, be Stoppage 
 greatly to the disadvantage of a person who has sold goods, but ««'*™»«'«- 
 has not been paid for them, to allow them to pass into the 
 possession of an insolvent purchaser and then have recourse to 
 an action for damages. In such a case the law mercantile has 
 conferred upon the vendor a right, as it is called, of stoppage 
 in transitu, which may be defined as the right of the unpaid 
 vendor when the purchaser has become insolvent to stop the 
 goods while in transitu, although the property in such goods 
 might have passed to the purchaser. When the goods have not 
 been delivered to the purchaser or to any agent of his to hold 
 for him, otherwise than as a carrier, but are still in the hands 
 of the carrier as such and for the purpose of the transit, then, 
 although such carrier is the purchaser's agent to accept deli- 
 very so as to pass the property, nevertheless the goods are 
 in transitu, and may be stopped. The doctrine of stoppage in 
 transitu has always been construed favourably to the unpaid 
 vendor (^). 
 
 The great leading case on the doctrine of stoppage in transitu 
 is LicJcbarrow v. Mason {f), decided nearly a century ago, which 
 established two most important propositions : 1st, the right of 
 the unpaid vendor, in case of the purchaser's insolvency, to stop 
 the goods sold while yet in transitu; 2nd, that this right of 
 stoppage in transitu may be defeated by negotiating the bill of 
 lading with a bond fide indorsee. 
 
 The reason on which the rule is based is well stated in 
 Smith's Leading Cases. The right of a vendor to stop in 
 transitu is bestowed upon him in order to prevent the injustice 
 which would take place, if, in consequence of the vendee's 
 insolvency, while the price of the goods was yet unpaid, they 
 were to be seized upon in satisfaction of his liabilities, and so 
 
 (1) Bethell v. Clark, 20 Q. B. D. 357; 6 East, 21; and see Smith's 
 617 620 Leading Cases, 9th ed. vol. i. p. 737, 
 
 (h Reported 2 T. E. 63 ; 1 H. Bl. et seq. 
 
 2 F 2 
 
in transitu. 
 
 436 CONTRACTS. [Book HI. 
 
 the property of one man were to be disposed of in payment of 
 the debts of another. 
 
 Stoppage The power to defeat the right of stoppage in transitu has 
 
 been extended by the Factors Act, 1889, which provides that 
 where a document of title to goods has been lawfully transferred 
 to a person as a buyer or owner of the goods, and that person 
 transfers the document to a person who takes the document 
 in good faith and for valuable consideration, the last-mentioned 
 transfer shall have the same effect for defeating any vendor's 
 lien or right of stoppage in transitu as a transfer of a bill of 
 lading has for defeating the right of stoppage in transitu Q-'). 
 
 The doctrine of stoppage in transitu was much considered in 
 a case which came before the Court of Appeal in 1888, to which 
 we have previously alluded (f). Goods had been purchased by 
 merchants in London of manufacturers in Wolverhampton. 
 The order for the goods did not specify any place to which 
 they were to be sent, but subsequently the purchasers wrote to 
 the vendors asking them to consign the goods by the Barling 
 Downs to Melbourne, loading in the East India Docks. The 
 goods were delivered by the vendors to a railway company to 
 be forwarded to the ship. The vendors were afterwards 
 informed of the purchasers' insolvency, and gave notice to the 
 railway company to stop the goods, but too late to prevent their 
 shipment on board the Barling Bowns. The ship then sailed 
 for Melbourne with the goods on board ; but, before she arrived 
 tliere, the vendors wrote to the shipowners claiming the goods 
 as their property. The Court of Appeal decided, affirming the 
 judgment of the Queen's Bench Division, that the transitus was 
 not at an end, and therefore that the vendors' right to stop 
 them in transitu continued. 
 
 When does The principles on which the Court proceeded were stated as 
 
 the transit follows : — " If the goods have so far reached the end of their 
 cnda 
 
 journey that they wait for new orders from the purchasers to 
 
 put them again in motion, to communicate to them another 
 
 substantive destination, and that without such orders they 
 
 would remain stationary, the transitus is at an end. But where 
 
 a place is fixed by the directions given by the buyer to the 
 
 seller as the ultimate destination of the goods, and a fortiori if 
 
 there is an express stipulation as to their destination in the 
 
 contract of sale, the transit is not at an end until the goods 
 
 reach that place." 
 
 (') 52 & 53 Vict. c. 45, s. 10, repeal- (=) Bethell v. Clarh, 20 Q. B. D. 
 
 ing, but to a great extent re-enaeting, 617, 620, citing with approval Dixon 
 pa,rt of 40 & 41 Vict. c. 39. v. Baldwen, 5 East, 175. 
 
Chap. IX.] STOPPAGE IN TBAN8ITU AND LIEN. 437 
 
 Another right which the law confers in certain cases upon Lien, 
 persons who have unsatisfied claims against others is Lien, 
 which may be defined as the right to retain the property of 
 another until some pecuniary demand upon, or in respect of, it 
 has been satisfied by the owner. Liens are of two kinds, par- 
 ticular and general. 
 
 A particular lien consists in the right to retain goods in 
 respect of labour or money expended upon them. Particular 
 liens are favoured by the law. 
 
 General lien is the right of a manufacturer, workman, factor, 
 &c., to retain goods that have been placed in his hands in the 
 ordinary course of business until the general balance of account 
 independent of the particular goods in question has been dis- 
 charged. General liens, unlike particular liens, are not favoured 
 by the law. 
 
 Among instances of lien may be mentioned : — 
 
 An auctioneer has a lien on goods in his possession, or on the 
 proceeds arising from their sale, for his commission and expenses. 
 
 Bankers have a general lien upon all notes, bills, and other 
 securities deposited with them by their customers, for the 
 balance due to them upon the general account (^). 
 
 A horse trainer has a lien on a horse which is sent by him to 
 be trained (^). The owner of a stallion, when a mare is sent to 
 him to be covered, has a lien on the mare for his charges (^), 
 but a livery stable keeper who only feeds and keeps the animal 
 has no lien (*). A solicitor has a lien for his costs on documents, 
 &o., in his hands (and see further on this important subject, 
 fost, p. 810). An auctioneer has a lien on the proceeds. A 
 packer, as was decided in a modern case, is entitled to a 
 general lien on the goods of his customer which are in his 
 hands. 
 
 In the case in which this point was decided (f) Lord Justice 
 James said : " I think it is too late now to attempt to set aside 
 that which has been considered law for so many years, and I mast 
 say I do not see the injustice of it. It seems to me to be very 
 good sense and justice. A man has goods in his possession which 
 he has received in the ordinary course of trading, and he is 
 asked to deliver them up, and at the same time he has a claim 
 
 (>) Branddo v. Bamett, .3 0. B. (*) Judson v. Etheridge. 1 0. & M. 
 
 519 ■ 12 C & F 787 ; London Char- 743 ; Orehard v. Sackstraw, 9 0. ti. 
 
 tered Bank of Australia v. White, i 698. See further on the subject of 
 
 App Cas 413 liei : Chitty on Contracts, 12fh ed. 
 
 C) Forth Y.' Simpson, 13 Q. B. 680. p. 627, ei serj 
 
 C) Scarfe v. Morgan, 4 M. & W. C) In re Wdt, 2 Ch. D. 489. 
 
 270, 283. 
 
4i38 CONTRACTS. [Book III. 
 
 against the person wM asks him to deliver him up. I think 
 he has a perfect right to keep them." 
 
 It deserves to be borne in mind that, though the remedy by 
 action in respect of a debt is barred by the Statute of Limita- 
 tions, the right of lien is not destroyed, the principle being -that 
 the Statute does not extinguish the debt but only bars the 
 remedy in respect of it (^), 
 
 (>) Ohitty on Contracts, 12th ed. 3 Esp. 81,82; see, as to payment into 
 p. 796, citing Biggins v. Scott, 2 Court when lien is c\a,\meA,Gebmder 
 B. & Ad. 413, il4 ; Speara v. EaHUy, Naf v. PloUm, 25 Q. B. D. 13. 
 
( 439 ) 
 
 BOOK IV. 
 TORTS. 
 
 CHAPTEE I. 
 
 Inteoductory. 
 
 A tort has been defined to be " a breach of duty fixed by law, 
 and redressible through an action for damages " (i). 
 
 This definition of a tort distinguishes it from a breach of con- 
 tract, in which the duty to be performed is fixed expressly or 
 impliedly by the parties themselves. The breach, again, is 
 redressible through an action for damages, and so is distin- 
 guished from a crime, which is redressible through a prosecution 
 on behalf of the public for the punishment of the offender by 
 imprisonment, fine or forfeiture (^). 
 
 To constitute a tort two things must concur — actual or legal 
 damage and a wrongful act committed by the defendant. 
 
 Actual perceptible damage is not indispensable as the found- 
 ation of an action ; it is sufficient to show the violation of a 
 right, in which case the law will presume damage (^). In legal 
 phraseology, injuria sine damno is actionable. This proposition 
 
 (') Bigelow on Torts, 3rd ed. p. 1. 
 The usual deflaition of a tort taken 
 from the Common Law Procedure 
 Act, 1852, is " a wrong independent of 
 contract;" see, for other definitions, 
 Blackatone, 111. c. 1, p. 2 ; Broom's 
 Commentaries, 6th ed. p. 653 ; Pig- 
 gott on Torts, p. 7 ; Pollock on Torts, 
 p. 19. 
 
 The distinction between contracts 
 and torts has, now that forms of 
 actions have been abolished, lost a 
 considerable portion of its former im- 
 portance. It is still however material, 
 with reference to costs, in determining 
 whether an action sbould be brought 
 in the County Court or in the Hi^h 
 Court. Sect. 62 of the County Courts 
 Act, 1888, provides that in actions of 
 contract where the plaintifl' claims a 
 sum exceeding £20, and of tort where 
 the plaijitiff cUdms a sum /exceeding 
 
 £10, the defendant may give notice 
 that he objects to the action being 
 tried in the County Court, and give 
 security for the amount claimed and 
 costs, and thereupon, upon the certi- 
 ficate of the judge that in his opinion 
 some important question of law is 
 likely to arise in the action, such 
 action shall be stayed. This section, 
 however, dons not apply to actions 
 under the Employers' Liability Act 
 The Queen v. The Judges of the Citt, 
 of London Court and Another, 14 
 Q. B. D. 595. The distinction may 
 also be of importance on the question 
 of service out of the j urisdiction ; as to 
 wliich, see Annual i'rautioe, 1891, 
 p. 250, and see R. S. C, 1883, 
 Order Lxv., r. 12. 
 
 O Bex V. Commissioners of Fag- 
 ham, 8 B. & C. 355. 
 
 (=) Finbrey. v. Owen, 6 Kx. 3.53. 
 
 Definition 
 
 Distin- 
 guished 
 from 
 contract. 
 
 How con- 
 stituted. 
 
 Injuria sine 
 damno. 
 
440 TOBTS. [Book IV. 
 
 is admirably illustrated \>j the celebrated case of Ashhy v. 
 White (1). 
 Injuria sine In that Case an action was brought against a returning officer 
 damno. fgj. maliciously refusing to admit the plaintiffs vote at a Par- 
 liamentary election, and Chief Justice Holt decided, and his 
 judgment was ultimately upheld by the House of Lords, that 
 there was a right of action, although no mischief was done by 
 the refusal of the vote as the candidates on behalf of whom it 
 was tendered had been elected without it. 
 
 Lord Holt, in the course of his judgment in that case, said : 
 " Surely every injury imports a damage, though it does not cost 
 the party one farthing, and it is impossible to prove the con- 
 trary, for a damage is not merely pecuniary, but an injury 
 imports a damage when a man is thereby hindered of his 
 right ... If a man gives another a cuff on the ear, though it 
 cost him nothing, no, not so much as a little diachylon, yet he 
 shall have his action, for it is a personal injury. So a man 
 shall have an action against another for riding over his ground, 
 though it do him no damage ; for it is an invasion of his pro- 
 perty, and the other has no right to come there." 
 
 On the other hand, in a case where a plaintiff brought an 
 action against the returning officer of a borough for refusing to 
 count his vote, and it turned out that according to the then 
 existing state of the law he had lost his right to vote by non- 
 residence, the Court decided that the action was not maintain- 
 able, as no legal right had been violated (^). 
 
 Again, it has been held that, if a banker dishonours his 
 customer's cheque when he has sufficient funds in his hands to 
 meet it, he is liable to an action, though no loss is inflicted upon 
 the customer (^), 
 Damnum On the other hand, where there is simply a damnum sine 
 
 sine injuria, injuria — damage unaccompanied by legal wrong — no action can 
 be brought. Thus no actions will lie for any injury inflicted by 
 fair competition in trade or business. 
 
 Thus the loss inflicted on a schoolmaster by the establishment 
 of a rival school adjacent to his own does not confer any right 
 of action. Again, if a millowner be seriously damaged or even 
 ruined by the erection of a mill contiguous to his own, and the 
 conseqaent loss of custom, or by an interruption of the current 
 of air to his mill, the law does not recognise his right to any 
 damages from the rival millowners (*). 
 
 (■) 2 Lord Bavmond, OSS, 415. 
 
 C) Pryce v. Belcher, i C. B. 866. (■•) Webb v. Bird, 13 C. B. (N.S.) 
 
 I'j Marzetti v. Williams, 1 B. & Ad. 841 ; but see, as to right of passage 
 
Chap. I.] INTRODUCTOBT. 441 
 
 The principle of the law on this subject, as well expressed in Principle 
 an old case, is as follows : " When a violent or malicious act is "^ ^^'^" 
 done to a man's occupation, profession, or way of getting a 
 livelihood, there an action lies in all cases. But if a man does 
 another damage by using the same employment, and thus 
 spoiling the custom, no action will lie. . . , One schoolmaster 
 sets up a new school to the damage of an ancient school, and 
 thereby the scholars are allured from the old school to come to 
 his new. The action there does not lie. But suppose the rival 
 schoolmaster should lie in the way with his guns and frighten 
 the boys from going to school, and their parents would not let 
 them go thither, surely that schoolmaster might have an action 
 for the loss of his scholars " (i). 
 
 In order that an action should be maintainable in this 
 country in respect of a tort committed abroad, it is necessary 
 that the act complained of should be one which would have 
 been actionable in the country where it is committed, and also 
 that it should be a tort according to English law (^). 
 
 of air through defined channel, Bass where the subject is discussed, and 
 
 V. Gregory, 25 Q. B. D. 481. the following among other authorities 
 
 (') Keeble y. Hickeringill, 11 East, cited: Tlie Halley, L. E. 2 P. 0. 193 ; 
 
 p. 576, n. Tlie M. Moxliam, 1 P. D. 43, 107. 
 
 O Eingwood on Torts, pp. 23, 24, 
 
( 442 ) 
 
 CHAPTEE II. 
 
 Tort rEAsoRs. 
 
 Tort The general principles of the law with, regard to persons who 
 
 teasors. commit torts, " tort feasors," as they are usually styled, may be 
 considered under three heads, viz. : — 
 
 (1) The liability attaching to certain persons for their own 
 
 acts. 
 
 (2) The liability attaching to certain persons for the acts of 
 
 others. 
 
 (3) The liability attaching to the ownership of mischief- 
 
 causing property (^). 
 
 In general there is no limit to personal capacity, either in 
 becoming liable for civil injuries or in obtaining redress for 
 Buch. 
 
 The law does not shield infants, lunatics, and drunkards in 
 respect of their torts as it does in respect of their contracts. 
 
 A few words must, however, be said with regard to certain 
 classes of persons who are in an exceptional position in this 
 respect. In the case of convicts and alien enemies, there are 
 partial exceptions to the general rule as to capacity to obtain 
 redress for a tort. A convicted felon whose sentence is in force 
 and unexpired, and who is " not lawfully at large, under any 
 licence," cannot sue " for the recovery of any property, debt, or 
 damage whatsoever." An alien enemy, i.e. a subject of a foreign 
 state with whom this country is at war at the time, cannot sue 
 in his own right in any English Court. 
 Married The position of married women in respect of torts at the 
 
 present day requires to be considered with special reference to 
 the provisions of the Married Women's Property Act, 1882 (^). 
 
 By the common law a husband was liable for his wife's torts, 
 whether ante-nuptial or committed during coverture, but it 
 was necessary that the action should be brought against them 
 both, in order that the husband might have an opportunity of 
 defending himself (^). 
 
 That Act provides that a married woman shall be capable of 
 
 women. 
 
 C) Piggott on Torts, p. 41. (') Bacon's Abridgement, Tit. L. 
 
 O 45 & 46 Vict. c. 75. Baron and Feme. 
 
Chap. II.] TORT FEASORS. 443 
 
 entering into and rendering herself liable in respect of and to Married 
 tlie extent of her separate property on any contract, and of women. 
 suing and being sued, either in contract or in tort, or otherwise, 
 in all respects as if she were a feme sole, and her husband need 
 not be joined with her as plaintiff or 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 (i). 
 
 The provisions of this section were considered in a case which 
 came before the Court in 1886, where an action for a tort was 
 brought against a married woman. In that case the judges 
 said: "The words of the section are 'need not be joined,' but 
 they do not discharge the husband from his old liability ; they 
 are intended to give to a plaintiff the option of suing husband 
 and wife together or suing the wife alone. The Act contains 
 two very remarkable sections, the 14th and 15th, in relief of 
 the husband, but it has no section relieving him from liability 
 for wrongs done by his wife after her marriage. This clearly 
 shows that it is an Act in favour of the wife, and does not affect 
 the liability of the husband, except in those instances where 
 there is a specific limitation in his favour. Judgment may be 
 entered against the wife, and execution issued against her 
 separate property, if she has any ; but, where she has none, the 
 plaintiff is entitled to add the husband as a co-defendant " (2). 
 
 A married woman may also, for the protection and security of 
 her separate property, bring an action against her husband (^). 
 
 Infants. 
 
 Infancy, as was stated above, constitutes no defence to an Infants. 
 action of tort. " If an infant commit an assault or utter slander, 
 God forbid," said Lord Kenyon, C.J. (*), " that he should not 
 be answerable for it in a Court of justice." 
 
 Difficulty, however, not unfrequently arises in determining 
 whether the cause of action is really in tort (ex delicto), or only 
 in contract {ex contractu), for the Courts will not allow a plain- 
 tiff by suing in tort to evade the plea of infancy which would 
 be a good defence had he sued in contract. 
 
 (>) 45 & 46 Vict. c. 75, s. 1, subs. 2, Q. B. D. p. 177. 
 and see as to ante-nuptial torts, as. 13, (=) 45 & 46 Vict. c. 75, s. 12. 
 
 M, and 15, also ante, p. 216, et seq. (*) Jeiminfis v. Rundall, 8 T. E. 
 
 O Seroha v. Kattenburg, 17 335. 
 
444 TORTS. [Book IV. i 
 
 Infaata. Where, accordingly, an infant has induced a person to enter 
 
 into a contract with him by representing himself as of full age, 
 an action for deceit or fraudulent representation will not lie {}). 
 It is otherwise where an infant commits a wrong of which a 
 contract, or the obtaining of something under a contract, is 
 merely the occasion where the tort in fact is " outside the object 
 and purpose of the contract," and is treated by the law as inde- 
 pendent of it. In the celebrated case of Burnard v. Haggis (2), the 
 defendant, an infant undergraduate, hired a horse for riding, on 
 the express condition that it was not to be used for jumping. , 
 He went out with a friend to whom he lent this horse, and 
 making across country they jumped various hedges and ditches, 
 and the horse staked itself on a fence and was fatally injured.' 
 Having thus caused the horse to be used in a way wholly 
 unauthorised by its owner, the defendant was held to have 
 committed a mere trespass or "independent tort," for which he 
 was liable to the owner, apart from any question from contract, 
 just as if he had mounted and ridden the horse without hiring 
 or lease. 
 
 Mastee and Servant. — Peincipal and Agent. 
 
 Master and The maxim, " qui facit per alium facit per se," expresses the 
 serTant. principle which regulates the liability of any one other than 
 the party actually guilty of any wrongful act. In explanation 
 of this maxim it has been judicially observed that " the party 
 employing has the selection of the party employed, and it is 
 reasonable that he who has made choice of an unskilful or care- 
 less person to execute his orders should be responsible for any 
 injury resulting from the want of skill or want of care of the 
 person employed." 
 
 Although the master is responsible for the acts of his servant 
 when they are within the scope of the servant's employment, 
 and done in the execution of the service for which he was 
 engaged, he is not liable if the act is done to effect a purpose of 
 the servant's own, and not to further his master's interest (^). 
 
 In Edwards v. London and North-Western Bailway Go. (*) a 
 foreman porter in charge of a station gave a person into custody 
 on suspicion of stealing the company's goods. It was held that 
 
 (') 5artte«v. TFeZJs, IB. &S.836; 8 Q. B. 36; Walker v. SmOi- 
 
 1 Sid. 258 ; and 8 Ex. 146. Eastern Bailway Co., L. E. 5 C. P. 
 
 C) 14 0. B. (N.S.) 45 ; see as to 640 ; Poulton v. Londm, and South- 
 
 misrepresentation by infant : Lem- Western Bailway Co., L E 2 O B. 
 
 priere v. Lange, 12 Ch. D. 675. 534. 
 
 (') See Limpus v. London General (') 5 0. P. 445 ; and see Barry v. 
 
 Omnibus Co., 32 L. J. Ex. 34 ; Mom-e Dublin United Tramways Co., 26 
 
 V. Metropolitan Bailway Co., L. E. L. K. Ir, 150. 
 
Chap. II.] TOBT FEASORS. 445 
 
 in so doing he acted outside his ordinary business, on his own 
 sense of what was his duty, and not for the benefit of the com- 
 pany, and that, therefore, the company could not be made liable 
 for his wrongful act. 
 
 The important principle must be borne in mind that though Principal 
 a principal is responsible for the tortious act of his agent when '"^'^ agent. 
 acting within the scope of his employment, yet where the 
 person who does the injury is exercising an independent 
 employment the employer is not answerable. The illustrations 
 usually cited of this rule of law are the well-known cases of 
 Milligan v. Wedge (}^, Bapson v. Cuhitt (2). In the former of Indepen- 
 these cases, a butcher had employed a licensed drover, who, in ?" ""'. 
 turn, employed a boy to drive a bullock ; the Court decided 
 that the butcher was not liable for damage done by the bullock 
 owing to the negligence of the boy. 
 
 In the second case, a builder, who had entered into a contract Indepen-i 
 to make alterations in a club-house, employed a gasfitter to do ^"'^^ , 
 a portion of the work. It was held that the builder was not 
 liable for the consequences of an explosion caused by the 
 negligence of the gasfitter or his servants. 
 
 To this principle, however, several exceptions have been 
 established by the cases, the principal of which are as follows : — 
 
 (1) Where the act for which the contractor was employed is 
 illegal. 
 
 (2) Where the work was done in an imperfect or improper 
 manner. 
 
 (3) Where a duty is cast upon the employed from the nature 
 of the thing done, because it would be reasonable under the 
 circumstances to expect some injury to follow. 
 
 (4) When the original employer has interfered with or con- 
 trolled the particular work which caused the damage (s). 
 
 As regards the effect of ratification with respect to the 
 relative rights' of the agent on the one hand, and the principal 
 on the other, a most important distinction must be drawn 
 between the law as to contracts and that as to torts. 
 The law is summed up by Mr. Evans as follows (*) :— 
 When the contract of an agent is duly ratified, credit having Eatifica- 
 been given to the principal, his rights and liabilities arising *'™- 
 from that contract are wholly transferred to the party ratifying, 
 
 (') 12 A. & E. 735. 1 Q- B. D. 321, 326, and comments 
 (') 9 M ■& W 710. thereon; Suglies v. Percival, 8 App. 
 (=) Picicard v. Smith, 10 0. B. Caa. 443, 446. 
 CN S ) 470 • Eingwood on Torts, (') Evans on Principal and Agent, 
 p. 52, et se'q., where the authorities 2nd ed., p. 86, citing Buron v. lien- 
 are collected ; and see Bower v. Peate, man, 2 Ex. 167. 
 
446 TORTS. [Book. IT. 
 
 Ratifica- and the agent occupies a position identical with that of one 
 ■ invested with full authority to do the act ratified. He can 
 
 neither sue in his own right nor be rendered personally liahle. 
 When on the other hand an individual duly ratifies a tort com- 
 mitted by another on his behalf, the ratification has not the 
 same wide effect. . . . For whilst on the one hand it avails to shield 
 the agent from any liability to the principal from the conduct 
 so ratified, it does not take away his liability to third parties 
 who have suffered a tort at his hands. This distinction applies 
 universally, except in cases of ratification by the Crown " (i). 
 
 COEPORATIONS. 
 
 Corpora- Lord EUenborough, C.J., in Tarhorough and Others v. The 
 
 tions. Governor and Company of the Bank of England (^), stated the rule 
 
 of law in reference to the torts of corporations to be that 
 " Wherever they can competently do or order any act to be done 
 on their behalf, which, as by their common seal they may do, 
 they are liable for the consequences of such acts if it be of a 
 tortious nature and to the prejudice of others." 
 
 Can a corporation be liable in an action for malicious pro- 
 secution ? Years ago Baron Alderson (3) intimated his opinion 
 that such an action would not lie, because, " in order to support 
 the action, it must be shewn that the defendant was actuated 
 by a motive in his mind, and a corporation has no mind." This 
 opinion, however, was dissented from in subsequent cases. In 
 a case, however, which came before the House of Lords in 1886, 
 Lord Bramwell expressed in the strongest terms his opinion 
 that such an action would not lie. "I think," he said, "the 
 reasoning is demonstrative. To maintain an action for mali- 
 cious prosecution, it must be shewn that there was an absence 
 of reasonable and probable cause, and that there was malice 
 or some indirect and illegitimate motive in the prosecutor. A 
 corporation is incapable of malice or of motive" (*). And Lord 
 Bramwell went on to say that even if the whole body of share- 
 holders were to meet and direct, or the directors were, by order 
 under the common seal of the company, to order an avowedly 
 malicious prosecution, no action would lie against the corpora- 
 
 (') Buron v. Denman, 2 Ex. 167. 0. B. (N.S.) 290, and Edwards v. 
 
 (2) 16 East, 6. Midland Railway Co., 6 Q. B. D. 287. 
 
 I') Stevens v. Midland Bailway Co., C) Abrath v. North-Eastern Bail- 
 
 10 Ex. 352, disapproved of iu Green way Co., 11 App. Cas. 247. 
 V. London General Omnibus Co., 7 
 
Fletcher. 
 
 Chap. II.] TORT FEA80BS. 447 
 
 tion. The general current of authority is, notwithstanding, in 
 favour of the proposition that such an action would lie (i). 
 See as to the action for malicious prosecution, post, p. 459. 
 
 Property Causing Mischief. 
 
 Every one is bound to so use his own property as not to 
 injure his neighbour's according to the maxim, " Sic utere tuo 
 ut alienum non laedas." The celebrated case of Bylands v. EylandsY. 
 Fletcher Q), decided by the House of Lords in the year 1868, 
 affords an excellent illustration of the principle above enunciated. 
 The material facts of this case were these : — The defendant 
 Eylands was a millowner, whose mill stood on land adjoining 
 that under which mines had been worked by the plaintiff 
 Fletcher, the lessee of the mines. A reservoir was constructed 
 for the defendant by competent persons upon land underneath 
 which there were disused vertical mining shafts. These latter 
 had been apparently filled up with mud and earth of the 
 surrounding land, and the reservoir was completed without 
 observing them. Fletcher in the course of working his mine 
 came upon the old disused shafts underneath Eylands' land. 
 When water was let into the reservoir it forced its way down 
 the vertical shaft, and through the disused workings into 
 Fletcher's mine which it flooded, thereby causing damage. 
 The House of Lords held that Fletcher was entitled to recover 
 damages for the injury done, and their decision establishes the 
 two following important principles : — 
 
 (i.) That the owner or occupier of land may lawfully use it 
 " for any purpose for which in the ordinary course of the enjoy- 
 ment of land it might be used," and that a neighbouring 
 occupier or owner has no cause of action for any ill conse- 
 quences that may arise from the natural user of the land. 
 
 (ii.) If an owner or occupier not stopping at the natural use 
 of his land uses it in a non-natural way, then if in consequence 
 of his doing so damage occurs he will be answerable for it. 
 This second principle was admirably stated in the judgment of 
 Blackburn, J., in the Court below, and quoted with approval by 
 the Lord Chancellor (Cairns). 
 
 " We think that the true law is, that the person who for his 
 own purposes brings on his lands, and collects and keeps there, 
 anything likely to do mischief if it escapes, must keep it at his 
 peril, and, if he does not do so is prima facie answerable for all 
 the damage which is the natural consequence of its escape. 
 
 (>) Ringwood on Torta. p. 89. Q) L. K. 3 H. L. 330. 
 
448 TOBTS. [Book IV, 
 
 Eylands v. He can excuse himself by showing that the escape was owing 
 Fktcher. ^^ ^-^^ plaintiff's default ; or perhaps that the escape was the 
 consequence of vis major, or the act of God ; but as nothing of 
 this sort exists here, it is unnecessary to inquire what excuse 
 would be sufficient. The general rule, as above stated, seems 
 on principle just. The person whose grass or corn is eaten 
 down by the escaping cattle of his neighbour, or whose mine is 
 flooded by the water from his neighbour's reservoir, or whose 
 cellar is invaded by the filth of his neighbour's privy, or whose 
 habitation is made unhealthy by the fumes and noisome vapours 
 of his neighbour's alkali works, is damnified without any fault 
 of his own ; and it seems but reasonable and just that the 
 neighbour who has brought something on his own property 
 which was not naturally there, harmless to others so long as it 
 is confined to his own property, but which he knows to be 
 mischievous if it gets on his neighbour's, should be obliged to 
 make good the damage which ensues if he does not succeed in 
 confining it to his own property. But for his act in bringing 
 it there no mischief could have accrued, and it seems but just 
 that he should at his peril keep it there so that no mischief 
 may accrue, or answer for the natural and anticipated conse- 
 quences. And upon authority, this we think is established to 
 be the law, whether the things so brought be beast, or water, or 
 filth, or stenches." (^) 
 
 The principles here laid down were much considered in a 
 case which came before the Court in 1887, where Mylands v. 
 Fletcher was justly characterized as of extreme interest to 
 lawyers and also to the public, and all the more so because it 
 went to the House of Lords, where its doctrine was established 
 by that paramount authority (2). The law was there summarized 
 as follows : — " Generally speaking, every man may use his own 
 property as pleaseth him best — but this use must be such as 
 not to cause injury to his neighbour — that is, harm or loss of 
 that kind which is regarded by English law as the subject of 
 civil action. If, therefore, he chooses to bring on to his own 
 land, water, stench, or filth, he must keep it there at his own 
 peril. If it escapes, he is liable for the injury caused, and it is 
 no answer to say, ' I could not help it, I took the best advice, I 
 employed the best workmen, and I have done everything that 
 
 (') See also Niclwls v. Marsland, cases in -which Uylands v. Fletcher 
 
 2 Ex. D. 1. had been commented upon and dis- 
 
 (^) Evans v. Manchester, Sheffield, tinguishedhadin the slightest degree 
 
 and Lincolnshire Railway Co., 36 impugned the principle there laid 
 
 Ch. D. 626, 631 ; where it was also down, 
 said tliat not one of the numberless 
 
Chap. II.] TORT FEASORS. 449 
 
 modern science could suggest ; but the circumstances Lave been 
 too much for me, and the injury has been caused against my 
 will and against my best endeavours.' " 
 
 With regard to damage caused by animals the law dis- Animals 
 tmguishes between animals ferse naturm, i.e., those which are f'^^^ 
 ordinarily vicious, e.g., bears and lions, and those that are 
 mansuetae naturae, i.e., naturally tame animals, when it is sought 
 to make their owner liable for damages done by them, but this 
 distinction vanishes when the owner of an animal belonging to 
 the class mansuetse naturee is aware of its vicious nature. 
 
 Every person has an undoubted right to keep an animal 
 which in ferae naturae, and nobody has a right to interfere with 
 him in doing so until some mischief happens, but as soon as an 
 animal has done an injury to any person then the act of keep- 
 ing it becomes as regards that person an act for which the 
 owner is responsible Q-~). May v. Burdett Q) is a leading case 
 on this subject. In this case action was brought against the 
 owner of a monkey which was known to bite people, and did 
 bite the female plaintiff. The Court in delivering judgment 
 stated the rule of law as derived from the early authority to be 
 that, whosoever keeps an animal accustomed to attack and bite 
 mankind, with knowledge that it is so accustomed, is prima/aae 
 liable in an action on the case at the suit of any person attacked 
 and injured by the animal, without any averment of negligence 
 or default in the securing or taking care of it. The gist of 
 the action is the keeping the animal after knowledge of its 
 mischievous propensities. The cause of action is the propensity 
 of the animal, the knowledge of the defendant, and the injury 
 to the plaintiff. The conclusion is, therefore, that a person 
 keeping a mischievous animal, with knowledge of its pro- 
 pensities, is bound to secure it at his peril, and that if it does 
 mischief, negligence is presumed without express averment. 
 
 The rule of law in respect to animals mansuetae naturae is, that Animals 
 the owner can only be made liable when he has had notice of munsuetss 
 the mischievous nature of the beast {^). This principle is usually '^ "''^' 
 expressed in the technical language that the scienter, i.e., the 
 fact that the owner knowingly kept a mischievous animal is the 
 gist of the action. A good illustration of this rule is afforded 
 by the case of Earthy v. Balliwell (*). The action was brought 
 
 C) Jackson v. Smithson, 15 M. & W. C) Worth v. Gilling, L. K. 2 C. P. 1. 
 
 5gJ5_ Owners of doge are liable for injuries 
 
 C) 9 Q. B. 101 ; and see Filburny. to cattle or sheep -without proof of 
 
 People's Palace and Aquarium Co., 25 previous mischievous propensities, 
 
 Q. B. D. 258, where it was held that 28 & 29 Vict. c. 60. 
 
 the owner of an elephant was liable. C) 1 Stark. 212. 
 
 VOL. I. 
 
 2 a 
 
450 
 
 TORTS. 
 
 [Book IV. 
 
 Multiplica- 
 tion of 
 coneys. 
 
 against the owner of a dog for killing sheep, the allegation 
 being that the defendant knew that the dog was accustomed to 
 kill sheep, but the proof in support of this allegation was that 
 the dog had previously attacked a man. This was held to be 
 insufficient, unless it was also proved that every dog which 
 jumped at a man would also bite sheep. 
 
 In another case (i) where the plaintiff who wore a red 
 handkerchief was gored by a bull in a public street, the Court 
 held the defendant liable, it being satisfied that he knew that his 
 bull would run at anything red. " As the circumstance of per- 
 sons carrying red handkerchiefs," observed Pollock, C.B., "is 
 not uncommon, and it is reasonable to expect that in every public 
 street persons so dressed may be met with, we think it was the 
 duty of the defendant not to suffer such an animal to be driven 
 in the public streets, possessing as he did, the knowledge that, if 
 it met a person with a red garment, it was likely to run at and 
 injure him." On the other hand, in a case (2) where a horse 
 was straying on the high road and kicked a child, and there 
 was no proof that the horse was of a vicious nature, the Court 
 decided that the action did not lie. 
 
 In Bouktori's Case in Lord Coke's Eeports, it was laid down 
 as a proposition of law that if a man encourages the multiplica- 
 tion of coneys by making coney-boroughs on his own land, so 
 that they increase to such a number as to destroy his neigh- 
 bour's land next adjoining, his neighbour cannot have an 
 action on the case against him who made the coney-boroughs, 
 but as soon as the coneys come on his neighbour's land he may 
 kill them (^). Being animals ferse natures a man has no more 
 property in them than in the fowls of the air which may breed 
 in one man's land and destroy the crops of another. The same 
 is the law in respect of pigeons, " if they come upon my land I 
 may kill them," but I have no remedy against any one for 
 breeding them (*). Where, however, land is let to a tenant 
 reserving the right of shooting over the land, the tenant may 
 maintain an action against the persons entitled to the right of 
 shooting for overstocking the land with game, so as to cause 
 damage to the tenant's crops (^). 
 
 In the case (decided in ,1885) in which this principle was 
 applied, the judges said that the rule Sic utere tuo ut alienum non 
 laedas, did not solve the question before the Court. It is not 
 
 (') Hudson V. Boherts, 6 Excli. 
 699. 
 
 C) Cox V. BiirUdge, 13 0. B. 
 (N.S.) 430, 
 
 C) 5 Co. 104a. 
 
 (■") Dewell V. Sandars, Oro. Jac. 
 490 ; Hannam v. Mockett, 2 B. & 0. 
 939. 
 
 O Farrer v. Nelson and Another, 
 15 Q. B. D. 258. 
 
Chap. IL] TORTFEASORS. 451 
 
 merely the case of a man collecting noxious animals upon his land Injury 
 so as to injure his neighbour, but the case of a man entitled to ''*"^'"* ^^ 
 keep game upon the land, and the tenant complaining of injury ^''™''' 
 to his crops from this game being unduly multiplied. The la-w- 
 on this subject -was here stated to be that so long as the lessee 
 of the right of shooting -was exercising the ordinary rights 
 -which the landlord who had reserved the rights might have 
 exercised, he was acting -w-ithin his rights, but the moment he 
 brings on game to an unrt-asonable amount, or causes it to 
 increase to an unreasonable extent, he -was doing that -which -was 
 unla-wful, and an action might be maintained by his neighbour 
 for the dumage -which he had sustained (}). 
 
 Joint Tort Feasors. 
 
 It is evident that a -wrong may be committed by several Joint tort 
 persons acting in concert. In such circumstances those -who *^^^^°''^- 
 participated in committing the -wrong are called "joint tort 
 feasors." Their liabilitj' is joint and several, i.e., each is liable 
 for the aggregate damage done by all, and the plaintiff is 
 entitled to recover the full amount of damages by -way of com- 
 pensation fur the injury he has sustained from any one or from 
 all without any regard to the degree in which the various 
 parties have participated in the wrong committed (^). The 
 case of Hume v. Oldacre (^) affords a good instance of this prin- 
 ciple of the law. In that case an action for trespass was brought 
 against the huntsman of the Berkeley Hunt for following the 
 hounds over the plaintiff's land, which he had done accom- 
 panied by a large concourse of persons on foot and on horse- 
 back. The trespass committed was adjudged to be joint, and 
 the huntsman was held liable for the whole " aggregate amount 
 of mischief done by him and his co-trespassers and the horses." 
 An important con.-equence of this rule of law is that one joint 
 tort feasor cannot recover contribution against another (*). If 
 one alone is sued be has no action for indemnity over against 
 his co-tort feasors, and if all are sued and the damages levied 
 against one, this one has no right of action for contribution from 
 the others (^). 
 
 The principle on which the law proceeds, as pointed out in 
 
 (') Per Polloclt, B., in Farrer f. Q) 1 Stark. 351. 
 
 Nehon, 15 Q. B. D. 258. (') Memjweather v. Nixan, 8 T. E. 
 
 (2) Mitchell V. Tarlmtt, 5 T. E. 186 ; 2 Smith's Leading Cases. 
 
 619 ; Brown v. Allen it OUiver, C) Fanbivther v. Ansley, 1 Camp, 
 
 4 Esp. IDS; Clarl: v Newsam, 1 Ex. 311. 
 131. 
 
 2 G 2 
 
452 TOUTS. [Book IV. 
 
 Merryweather v. Nixan, the leading case on tlie subject is the same 
 as that which prevents a man from recovering money paid in 
 pursuance of an illegal contract. If contributions could be 
 claimed by one tort feasor from another, the community of wrong 
 between the plaintiff and defendant would be the very founda- 
 tion of the action ; and it is as contrary to policy to allow a 
 man to recover that which he has paid in consequence of his 
 illegal act, as to allow him to recover that which he has paid 
 in consequence of his illegal contract. 
 
 It must, however, be borne in mind that this rule is subject 
 to an important qualification. 
 
 Every man who employs another to do an act which the 
 employer appears to have a right to authorise him to do, under- 
 takes to indemnify him for all such acts as would be lawful if 
 the employer had the authority he pretends to have. In short, 
 the proposition that there is no contribution between wrong- 
 doers must be understood to affect only those who are wrong- 
 doers in the common sense of the word as well as in law. 
 
 " The law," as was stated in a case on the subject, " will not 
 imply an indemnity between wrong-doers. But the case is 
 altered where the matter is indifferent in itself, and when it 
 turns upon circumstances whether the act be wrong or not " (^). 
 
 On the other hand, if action is brought against one of several 
 joint tort feasors and judgment recovered, this will be a bar to 
 an action against the others, even though the judgment remains 
 unsatisfied Q). Again, the release of one joint feasor releases 
 all (3). 
 Excep- An extremely important principle has now to be considered, 
 
 tional cases rp^g^g ^^^ certain classes of cases which would fall within the 
 
 wnere acts 
 
 justified or category of torts and would render the doer liable to an action 
 excused. fpr damages were it not that they are treated by the law as 
 
 exceptional cases in which the act done is regarded as justified 
 
 or excused. 7 
 
 The following are some of the chief classes of cases to which 
 
 this principle applies. 
 Acts of 1. An action is not maintainable in respect of what have 
 
 State. hBen called " acts of State." An act of State may be defined in 
 
 this connection as "an act injurious to the person or to the 
 
 property of some person who is not at the time of that act 
 
 (') BetU V. Gibbons, 2 A. & E. 57 ; 73 ; King v. Hoare, 13 M. & W. 504 ; 
 
 Dugdale v. Lovering, L. E. 10 C P. Brinsmead v. Harrison, L. B. 7 C. P. 
 
 196; Vixon v. Fawens, 30 L. J. 547. 
 
 (Q.B.) 137. C) Cooke v. Jener, 15 C. B. 115. 
 
 (^) Brown v, Wooton, Cro. Jac. 
 
Chap. II.] TORT FEASORS. 453 
 
 a subject of Her Majesty : which act is done by any represen- 
 tative of Her Majesty's authority, civil or military, and is 
 either previously sanctioned or subsequently ratified by Her 
 Majesty" (1). 
 
 The exception with regard to acts of State is well illustrated Acts of 
 by the celebrated case of Buron v. Benman (2), where an action ^'^*'^- 
 was brought against the defendant, a captain in the navy, for 
 burning certain barracoons belonging to the plaintiff, a Spanish 
 subject, and releasing the slaves contained in them. The 
 defendant's action was approved by the British Government. 
 It was held that the action was not maintainable. 
 
 In this case Baron Parke pointed out the essential distinction 
 between ratification by a private individual and ratification by 
 the Crown, where, he said, an individual ratifies an act done on 
 his behalf, the nature of the act remains unchanged, and the 
 party injured may sue either party. Where, on the other hand, 
 the Crown ratifies an act the character of the act becomes 
 altered, and the effect of the ratification is to leave a remedy, 
 such as it is, against the Crown only, and actually to exempt 
 from all liability the person who commits the trespass. 
 Whether the remedy against the Crown is to be pursued by 
 petition of right, or whether the injury is an act of State 
 without remedy, except by appeal to the justice of the State 
 which inflicts it, or by application of the individual suffering 
 to the government of his country, to insist upon compensation 
 from the government of this — in either view, the wrong is no 
 longer actionable (f). 
 
 2. Judicial acts form another exception, the rule being that Judicial 
 " no action will lie against a judge for any acts done, or words ^'^*^' 
 spoken, in his judicial capacity in a court of justice" (^). 
 
 In a well-known case in which the action was against a 
 county court judge in respect of words spoken by him in his 
 capacity as judge whilst sitting in the court, in which he had 
 said of the person who was then before him as defendant, but 
 who subsequently became plaintiff in the action against the 
 judge, " You are a harpy preying upon the vitals of the poor." 
 The law on this subject and the reasons for it were admirably 
 summed up as follows : " A series of decisions uniformly to the 
 same effect, extending from the time of Lord Coke to the present 
 time, establish the general proposition that no action will lie 
 
 (') Stephens Hist. Grim. Law, vol. 167. 
 
 jj_ p. 61. (■*) Doswell V. Impey, 1 B. & C. 
 
 C) 2 Ex. Eep. 167. 163, and see Clerk and Lindsell on 
 
 (') Buron v. Denman, 2 Exc. Eep. Torts, p. 576 et sec. 
 
454 TORTS. [Book IV. 
 
 Judges. against a judge for any acts done or words spoken in his judicial 
 capacity in a court of justice. This doctrine has been applied 
 not only to the superior courts, but to the court of a coroner 
 and to a court-martial, which is not a court of record. It is 
 essential in all courts that the judges who are appointed to 
 administer the law should be permitted to administer it under 
 the protection of the law independently and freely, without 
 favour and without fear. This provision of the law is not fur 
 the protection or benefit of a malicious or corrupt judge, but for 
 the benefit of the public, whose interest it is that the judges 
 should be at liberty to exercise their functions with independence 
 and without fear of consequences. How could a judge so exer- 
 cise his office if he were in daily and hourly fear of an action 
 being brought against him, and of having the question submitted 
 to a jury whether a matter on which he had commented judi- 
 cially was or was not relevant to the case before him? Again, 
 if a question arose as to the hona fides of the judge it would have, 
 if the analogy of similar cases is to be followed, to be submitted 
 to the jury. Thus, if we were to hold that an action is main- 
 tainable against a judge for words spoken by him in his judicial 
 capacity, under such circumstances as those appearing on these 
 pleadings, we should expose him to constant danger of having 
 questions such as that of good faith or relevancy raised against 
 him before a jury, and of having the mode in which he might 
 administer justice in his court submitted to their determination. 
 It is impossible to overestimate the inconvenience of such a 
 result. For these reasons I am most strongly of opinion that 
 no such action as this can, under any circumstances, be main- 
 tainable " (1). 
 
 The law, however, appears to draw a distinction between 
 judges of the superior and of the inferior Courts in this respect. 
 
 In the case of a judge of a superior Court it is presumed that 
 he has jurisdiction until the contrary is proved. 
 
 The judge of an inferior Court must, on the other hand, prove 
 that the alleged wrongful act complained of was within his 
 jurisdiction (^')i 
 
 3. Executive Acts. — Acts done by naval or military officers in 
 the execution of their duty form also an exception. An action 
 wiU. not lie against the serjeant-at-arms of the House of 
 Commons for excluding a member from the House in obedience 
 to a resolution of the House itself (^). 
 
 (') Per Kelly, C.B., in Scott v. 841. 
 Stamfield, L. E. 3 Ex 220. (') BradlangJi v. Gossett, 1 2 Q. 13. D. 
 
 Q) Houklen v. Smith, U Q. B. 271. 
 
Chap. II.] TOBT FEASOES. 455 
 
 4. Acts autliorized hy Statute. — " I take it," said Lord Black- 
 burn in the case of Geddis v. Proprietors of Bann Beservoir Q), 
 " without citing cases, that it is now thoroughly well established 
 that no action will lie for doing that which the legislature ha 
 authorized, if it be done without negligence, although it does 
 occasion damage to any one, but an action does lie for doing 
 that which the legislature has authorized if it be done 
 negligently." 
 
 On a somewhat similar principle the law confers the privilege 
 of immunity from actions upon private persons for quasi-judicial 
 acts. For instance, universities, club committees (2), parents, 
 and persons in loco parentis, are allowed by the law to exercise 
 disciplinary powers, subject, however, to the restriction that 
 they must be exercised honafide and in a reasonable manner. 
 
 (') 3 App. Cas. 435; 29 Ch. Div. 615 ; see further on tbis subject, 
 p. 108. Pollock on Torts, p. 92, et seq.; Frazer 
 
 (^) DawMns \. Antrdbus, 17 Ch. D. on Torts, p. 8. 
 
( 456 ) 
 
 CHAPTEE III. 
 
 Division of Toets. 
 
 Torts may conveniently be considered under the following 
 heads : — 
 
 Torts to the person and reputation ; 
 
 Torts to property, whether real or personal ; 
 
 Torts not directly affecting persons or property. 
 
 Personal Weongs. 
 
 Under this head are comprised assanlt, battery, and false 
 imprisonment. 
 
 Assault and Battery. 
 
 The wrong called assault is committed when any one puts 
 another in instant fear of unlawful force, though no force be 
 actually applied. 
 
 The following are examples of acts which would each be held 
 to amount to an assault. 
 
 Striking at a person with, or without a weapon, or present- 
 ing a gun at him at a distance to which the gun will carry, or 
 pointing a pitchfork at him standing within the reach of it, or 
 holding up one's fist at him, or drawing a sword and waving it 
 in a menacing manner. 
 
 There must be an act fitted to put a reasonable person in 
 present fear of violence in order to constitute an assault. Where 
 a man put his hand upon his sword and said, " If it were not 
 assize time I would not take such language from you," such 
 action was held not to be an assault as the words used showed 
 that there was no present intention of striking Q). In the 
 case of Stephens v. Myers (^), Tindal, O.J., in his charge to the 
 jury laid down very carefully the law on this subject. In that 
 case the plaintiff was the chairman of a parish meeting, and the 
 defendant a person whose conduct at the meeting was such that 
 a motion was made and carried by a large majority that he 
 
 (') Tuberville v. Savage, 1 Mod. 3. (2) 4 0. & P. 349. 
 
Chap. III.] DIVISION OF TORTS. 457 
 
 should be turned out. Thereupon the defendant said he would Assault. 
 rather pull the chairman out of the chair than be turned out, 
 and advanced with his fist clenched towards him. He was 
 stopped, however, by the churchwardens who sat near the 
 chairman, before he could have reached the latter. These being 
 the material facts, Tindal, C.J., in his summing-up to the jury, 
 said : " It is not every threat, when there is no actual personal 
 violence, that constitutes an assault ; there must in all cases be 
 the means of carrying the threat into effect. The question I 
 shall leave to you will be, whether the defendant was advancing 
 at the time in a threatening attitude to strike the chairman, so 
 that his blow would almost immediately have reached the 
 chairman if he had not been stopped. Thou, though he was 
 not near enough at the time to have struck him, yet if he was 
 advancing with that intent, I think it amounts to an assault in 
 law. If he was so advancing that, within a second or two of 
 time, he would have reached the plaintiff, it seems to me it is 
 an assault in law. If you think he was not advancing to strike 
 the plaintiff, then only can you find your verdict for the defen- 
 dant ; otherwise you must find it for the plaintiff, and give him 
 such damages as you think the nature of the case requires." 
 
 Any application of unlawful force to another constitutes the Battery, 
 wrong called battery. In an old case, Holt, L.C.J., laid it 
 down that " the least touching of another in anger is a battery, 
 for the law cannot draw the line between different degrees of 
 violence, and therefore totally prohibits the first and lowest 
 stage of it, every man's person being sacred, and no other 
 having a right to meddle with it in any the slightest manner." 
 
 False Impeisonment. 
 
 A false imprisonment is an unlawful interference with a Definition, 
 man's liberty of action or freedom to move at will from place 
 to place. 
 
 It is not necessary that the person should be locked up within 
 four walls. If he be constrained in his freedom of action by 
 another, that constitutes an act of imprisonment. Again, actual 
 contact is not necessary if a person manifests his intention to 
 arrest another (^). 
 
 On the other hand, there must be a complete and not a mere 
 partial restraint on the party's liberty of motion (2). 
 
 (!) Pigott on Torts, p. 297, et seq. ; C) See Berry v. Adamson, 6 B. & C. 
 
 Bingwood on Torts, p. 74, et seq. 528 ; Bird v. Jones, 7 Q. B. 742. 
 
458 T0ET8. [Book IV. 
 
 False " A prison," as was said in an oft-quoted case, " may have its 
 
 men™™' l^ouiidary large or narrow, visible and tangible, or, though real, 
 still in the conception only ; it may itself be movable or fixed ; 
 but a boundary it must have ; and that boundary the party 
 imprisoned must be prevented from passing ; he must be pre- 
 vented from leaving that place within the ambit of which the 
 party imprisoning w^ould confine him, except b}' prison-breach." 
 
 The governor of a prison is protected in obeying a warrant 
 which is on the face of it valid. 
 
 The law on this subject was considered by the Court of 
 Appeal in a case decided in 1888. The action was brought by 
 the j)laiiitiff against the Governor of Strangeways Gaol, Man- 
 chester, for having illegally kept him in imprisonment on 
 August 31, 1887. The plaintiff had been fined by a magistrate 
 on the 24th of August, or in default of payment of this fine he 
 was sentenced to seven days' imprisonment in Strangeways 
 Gaol, but he was not lodged in that house of detention until 
 the next day — the 25th. Under these circumstances the plain- 
 tiff contended that the imprisonment began on the 24th, the 
 date of the arrest, and that the defendant was liable to an 
 action. The defendant pleaded not guilty by statute (Prisons 
 Act, 1865 and 1877), and set out the warrant for the prisoner's 
 commitment. The judges of the Court of Appeal in delivering 
 judgment in the defendant's favour said : — 
 
 It is not denied that this warrant is justified by the Act of 
 Parliament, and is not a void warrant. It is not on its face . 
 issued by persons who have no jurisdiction, and its terms are 
 perfectly clear. It orders the governor of Strangeways Gaol to 
 receive the present plaintiff into his custody when he is brought 
 there, and to keep him in that gaol for seven days. That being 
 the warrant, it protects the governor, and no more need be said. 
 In the case of Olliet v. Bessey, decided about t wo hundred years 
 ago, it was so held, and from that day to this no action can be 
 found in the books to have been maintained against a gaoler 
 where he acted within the terms of the warrant. That is suffi- 
 cient to determine this case ("). " What," added another of the 
 judges, " is a governor of a gaol who receives such a warrant to 
 do except to obey it? It is perfectly valid and correct, and is 
 authorized by the Act of Parliament, and issued by persons 
 who have jurisdiction to issue it. It appears to me that the 
 governor by obeying that warrant has s-imply done his duty, 
 and the warrant protects him and is an answer to the action." 
 
 (') Per Lord Esher, M.R., in ffeji- .S62; and see Creagh v. Gamble, 24 
 derson v. Preston, L. R. 21 Q. B. D. L. E. Ir. 458, 
 
Chap. III.] DIVISION OF TORTS. 459 
 
 Next after the wrong of false imprisonment, the wrong of 
 malicious prosecution may be conveniently considered. 
 
 The English law proceeds upon the principle, as stated hy a Malicious 
 leading authority, that it is wrongful to put the criminal law in prosecu- 
 force without any reasonable or probable cause, and if by doing 
 so another is prejudiced in person or property, there is that 
 conjunction of injury and loss which is the foundation of an 
 action (}). 
 
 The law upon this subject was well summed up in a recent 
 case as follows : — • 
 
 " In an action for malicious prosecution, the plaintiff has to 
 prove, first, that he was innocent, and that his innocence was 
 pronounced by the tribunal before which the accusation was 
 made ; secondly, that there was a want of reasonable and pro- 
 bable cause for the prosecution, or, as it may be otherwise stated, 
 that the circumstances of the case were such as to be in the 
 eyes of the judge inconsistent with the existence of reasonable 
 and probable cause ; and, lastly, that the proceedings of which 
 he complains were initiated in a malicious spirit, that is, from 
 an indirect and improper motive, and not in furtherance of 
 justice. All these three propositions the plaintiff has to make 
 out, and if any step is necessary to make out any one of those 
 three propositions, the burden of making good that step rests 
 upon the plaintiif " (^). 
 
 Eeasonable and probable cause was deiined in a recent case Reason- 
 to be an honest belief in the guilt of the accused, based upon ''''''l''^'[' 
 a full conviction, founded upon reasonable grounds, of the cause, 
 existence of a state of circumstances, which, assuming them to 
 be true, would reasonably lead any ordinarily prudent and 
 cautious man, placed in tlie position of the accuser, to the 
 conclusion that the person charged was probably guilty of the 
 crime imputed: "There must be," said the judge, "first, an 
 honest belief of the accuser in the guilt of the accused; 
 secondly, such belief must be based on an honest conviction of 
 the existence of the circumstances which led the accuser to 
 that conclusion ; thirdly, such secondly-mentioned belief must 
 be based upon reasonable grounds, e.g. such grounds as would 
 
 (') .\rl(liion on Torts, 6th ed. p. 219. his favour, if from their nature they 
 
 Q) Abrcdh v. North- Eastern Rail- were capable of such termination; 
 
 way Co., 11 Q. B. Div. HU, 455; (2) the absence of reasonable and 
 
 afftrmed'u App. Cas. 247. probable cause (bee Hope v. Evered, 
 
 To enable a plaintiff to succeed 17 Q. B. D. 338 ; Lea v. Charrington, 
 
 in an action for malicious prosecution, 23 Q. B. D. 272) : and, (3) malice on 
 
 lie must be prepared to prove three the part of the defendant : Bingwood 
 
 things: (1) that the proceedings of on Torts, 81. 
 which he complains terminated in 
 
460 
 
 TORTS. 
 
 [Book IV. 
 
 Summary 
 of the law 
 as to mali- 
 cious pro- 
 secution. 
 
 lead any fairly cautious man in the defendant's situation, so 
 to believe; fourthly, the circumstances' so believed and relied 
 on by the accuser must be such as amount to reasonable ground 
 for belief in the guilt of the accused " (i). 
 
 The principle, however, is by no means limited to malicious 
 prosecution in the strictly technical sense of the term which 
 refers to criminal proceedings only, but extends to the abuse of 
 the process of the Court in other departments of the law (^). 
 
 The law upon this subject was much considered in a case 
 decided in 1883, when it was held that an action will lie for 
 falsely and maliciously and without reasonable or probable 
 cause presenting a petition under the Companies Acts to wind 
 up a trading company, even although no pecuniary loss or 
 special damage to the company can be proved, for the presenta- 
 tion of the petition is from its very nature calculated to injure 
 the credit of the company. In that case one of the judges of 
 the Court of Appeal summed up the law as follows : — 
 
 " When we look back to the decisions of the judges of earlier 
 times (which decisions are to my mind the best guides for 
 judges of the present day) we find it laid down by Holt, C. J., 
 in Savil v. Boherts (1 Ld. Eaym. 374), that there are three heads 
 of damage which will support an action for malicious prosecu- 
 tion. There is damage to a man's person, as when he is taken 
 into custody, whether that be, as in former times, upon mesne 
 process or upon final process, or whether it be upon a criminal 
 charge. To take away a man's liberty is damage, of which the 
 law will take notice. Secondly, to cause a man to be put to 
 expense is damage, of which the law will take notice. But 
 Holt, C.J., adds a third head of damage, and that is where a 
 man's fair fame and credit are injured. This is also a head of 
 damage of which the law will take notice " (^). 
 
 There must be a combination of malice with want of probable 
 cause in order that a man should be held responsible in an 
 action for malicious prosecution. A prosecution, though in the 
 outset not malicious, may nevertheless become malicious in any 
 of the stages through which it has to pass, if the prosecutor, 
 having acquired positive knowledge of the innocence of the 
 accused, perseveres malo animo in the prosecution, with the 
 intention of procuring per nefas a conviction (*). 
 
 0) Hides V. Faullcner, L. E. 
 8 Q. B. D. 171. 
 
 O AddisoQonTorts,6tlied.p.232, 
 et seq. 
 
 Q) Per Brett, M.E., in Quartz Hill 
 
 Gold Mining Co. v. Eyre, 11 Q. B. D. 
 674. 
 
 (') Per Cockburn, C.J.. FitzJohn 
 V. Mackinder, 9 0. B. (N.S.) 505. 
 
Chap. HI.] DIVISION OF TORTS. 461 
 
 A man cannot shelter his malice in bringing an unfounded Malicious 
 prosecution by showing that he obtained counsel's opinion before prosecu- 
 BO doing (1). *'"''• 
 
 Any motive other than that of simply instituting a prosecu- 
 tion for the purpose of bringing a person to justice is a malicious 
 motive on the part of the person who acts under the influence 
 of it. 
 
 On a similar principle it has been decided that an action will 
 lie against any person who without reasonable or probable cause 
 petitions for an adjudication in bankruptcy (^). 
 
 The distinction between false imprisonment and malicious ^nXse. 
 prosecution, said ihe late Mr. Justice Willes, is well illustrated imprison- 
 by the case where parties being before a magistrate, one makes ™'^" ' 
 a charge against another, whereupon the magistrate orders the 
 person charged to be taken into custody and detained until the 
 matter can be investigated. The party making the charge is 
 not liable to an action for false imprisonment, because he does 
 not set a ministerial officer in motion, but a judicial officer. The 
 opinion and judgment of a judicial officer are interposed between 
 the charge and the imprisonment. In such a case the defendant 
 might be liable in an action for malicious prosecution (^). 
 
 An action in respect of a tort which stands in an anomalous Action for 
 position is the action of seduction. In theory the action would s<>J"'='-'"°- 
 seem to be for injury to property (*), but practically it has been 
 long regarded as an action by which a parent can obtain ]-edress 
 for the injury done to him by the seduction of his child. 
 
 In the action for seduction the law proceeds upon the prin- 
 ciple that no damages ought to be awarded to a parent for the 
 mere seduction of his daughter, however wrongfully it may 
 have been accomplished. Nor is it sufficient to prove that the 
 daughter was poor, and rendered by the seduction unable to 
 support herself, and that the father had to maintain her and 
 pay her nurses and doctors {^). Very slight evidence of service 
 is sufficient. Thus it has been decided that milking cows, or 
 even making tea is a sufficient act of service (^). 
 
 Some loss of service, or possibility of service, must, however, 
 
 (') Hewlett V. CrucUy, 5 Taunt. Grinnell v. Wells, 7 M. & Gr. 1041 ; 
 
 277_ Vodd V. Norris, 3 Camp. 519 ; Elliott 
 
 C) See Johnson v. Emmerson, L. B. v. Nicklin, 5 Price, 641 ; and see as 
 
 6 Ex. 329, wliere under the circum- to pleading the recent case of Jip^W^ 
 
 stances the Court was ectually divided. v. Franklin, 17 Q. B. D. 93. 
 
 P) AustinY. Bowling, 'L.'B,. 5 C.V. (") Can v. Clarke, 2 Chit. 261; 
 
 g^Q Mann v. Barrett, 6 Esp. 32, and see 
 
 C) Piggott on Torts, p. 360. cases collected in Eoscoe on Evi- 
 
 Q) Addison on Torts, 6th ed . p. 585 ; dence, 15th ed. p. 834, et seq. 
 
462 TORTS. [Book IV. 
 
 Action for be shown as consequent on the seduction, since that is in theory 
 seduction, ^.j^g ground of the action. It has accordingly been held that 
 where the person seduced is of such tender years as to be in- 
 capable of any service, no damage can be recovered Q). "When, 
 bowever, loss of service, however trifling, is once proved, and 
 the foundation of the action thus laid, the damages that may be 
 awarded are by no means limited to an amount commensurate 
 with the actual loss of service proved or inferred, but may be 
 given to compensate the parent for distress of mind and 
 dishonour to the family. The jury are to take into considera- 
 tion the situation in life of the parties, and the plaintiff may 
 give evidence that the defendant was paying his addresses to 
 the daughter as an honourable suitor (2). 
 
 As was said in a modern case by Blackburn, J. (^) : " In form 
 the action is by the master having a right to the services by 
 reason of the wrongful act of the defendant, but though in form 
 this is the reason of the action, the damage by loss of service is 
 in reality merely nominal; and so long ago as Lord Ellen- 
 borough's time, as be says in Irwin v. Bearman (^), the practice 
 had become inveterate of giving to the parent or person stand- 
 ing in loci parentis damages beyond the mere loss of service in 
 respect of the loss aggravated by the injury to the person 
 seduced. In effect the damages are given to the plaintiff as 
 standing in the relation of parent, and the action has at present 
 no reference to the relation of master and servant beyond the 
 mere mechanical point on which the action is founded : for in 
 ninety-nine cases out of a hundred the natural guardian is the 
 master to whom the service is due at the time.'' 
 
 (') Hall V. Hollander, 4 B. & C. (=) Terry v. Hutchinson, L. E. 
 
 66J. 3 Q. B. 599. 
 
 (^) See authorities collected, Addi- (') 11 East, 24. 
 son on Torts, (jth ed. p. 589, et seq. 
 
( 4fi3 ) 
 
 CHAPTER IV. 
 
 Defamation. 
 
 It is a fundamental principle of the law that a man is entitled Principle 
 to its protection in respect of his good name and reputation as °^ ""* '''"'■ 
 much as he is entitled to be protected in respect of his person 
 and property (i). " Words,'" says Mr. Odgers, "which produce 
 any perceptible injury to the reputation of another are called 
 ' defamatory,' and, if false, are actionable " (^). 
 
 The wrong of defamation is either slander or libel. Libel is Slander 
 addressed to the eye, slander to the ear. False or defamatory 
 words when spoken are slander. The same words when written 
 and published constitute a libel. The writing may be on any 
 substance, and made with any instrumeut, and the libel may 
 be not only by writing, but also by print or signs. Thus it 
 has been held to include a caricature, a chalk mark on a wall, 
 a statue, &c., &c. The law has always recognised a great 
 difference between the two classes of offences. Libel is a 
 criminal offence as well as a wrong. Slander on a private 
 individual is a civil wrong only ('). 
 
 Libel, said the late Lord Justice Lush, on an individual is. Libel, 
 and has always been, regarded as both a civil injury and a 
 criminal offence. The person libelled may pursue his remedy 
 for damages, or prefer an indictment, or by leave of the .Court a 
 criminal information, or he may both sue for damages and 
 indict. It is ranked amongst criminal offences because of its 
 supposed tendency to arouse angry passion, provoke revenge. 
 
 (') The principle of the law as to But he, that filches from me my 
 
 defamation (though not aa to pro- good name, 
 
 perty) is beautifully expressed by Kobs me of ttiat, which not enriches 
 
 Shakespeare : — him, 
 
 " Good name, in man, and woman. And makes me poor indeed." 
 
 dear my lord, Othello, iii. 3. 
 Is the immediate jewel of their 
 
 gouls : O Odgers on Libel, 2nd ed. p. 1, 
 
 Who steals my purse, steals trash ; et seq. 
 
 'tis something, nothing; C) Odgers on Libel, 2ad ed. p. 7; 
 
 'Twas mine, 'tis his, and has been Fraser on Newspaper Libel. See 
 
 slave to thousands ; Arch. Crka. Prac, 20th ed. p. 954. 
 
464 
 
 TORTS. 
 
 [Book IV. 
 
 Slander 
 and libel. 
 
 Words 
 actionable 
 per se. 
 
 and thus endanger the public peace, but the libeller is not the 
 less bound to make compensation for the pecuniary or other loss 
 or injury which the libel might have occasioned to the person 
 libelled (1). 
 
 Another distinction between the case of slander and libel is 
 this, that in the case of libel the plaintiff may succeed in his 
 action without proving any damage, while in the case of 
 slander, with the exceptions pointed out hereafter (infra), 
 special damage must be shewn in order to entitle him to 
 succeed. The following, among other, reasons have from time 
 to time been judicially given for this distinction between libel 
 and slander : — 
 
 (1.) That a libel is permanent, and may circulate amongst 
 innumerable hands ; 
 
 (2.) That it shews greater malignity on the part of its author 
 than a slander ; 
 
 (3.) That it is more likely to lead to a breach of the 
 peace (^). 
 
 Spoken words are actionable per se, i.e., without proof of any 
 special damage resulting from them as a proximate consequence 
 in the following cases : — 
 
 (1.) Where the words impute a criminal offence (^), 
 
 (2.) Where they impute a contagious disease which would 
 cause the person having it to be excluded from society. 
 
 (3.) Where they convey a charge of unfitness, dishonesty, or 
 incompetence in an office, profession, or trade, tending to 
 prejudice a man in his calling. 
 
 (4.) It was held in an old case (*) that words tending to the 
 disherison of a person, e.g., the words " thou art a bastard " 
 were actionable, " for by reason of these words, the plaintiff 
 may be in disgrace with his father and uncle, and they, con- 
 ceiving a jealousy of him touching the same, may disinherit 
 him; and though they do not, yet the action lies for the 
 damages which may ensue." 
 
 It has been held actionable to say of a barrister "he is a 
 dunce, and will get little by the law." " Thou art no lawyer, 
 thou canst not make a lease; thou hast that degree without 
 desert ; they are fools that come to thee for law." " He hath as 
 much law as a jackanapes." " He has deceived his clients and 
 revealed the secrets of his cause." 
 
 It has been held actionable to say of an attorney that he is 
 
 (') B. V. Holbrook, i Q. B. D. 46. 
 
 C) Ringwood on Torts, 167. 
 
 0) Webb V. Beavan, 11 Q. B. V. 
 
 609 ; Eingwood on Torts, p. 164. 
 
 (*) Humphreys v. Stansfield, Cro. 
 Oar. 469. 
 
Chap. IV.] DEFAMATION. 465 
 
 a rogue, and doth maintain himself and his wife and children Slander. 
 by cheating, to say that he has been guilty of bribery or of 
 professional misconduct, and that he ought to be struck oif the 
 rolls. But it was held not actionable to say of an attorney, " he 
 has defrauded his creditors and has been horsewhipped oif the 
 course at Doncaster," as these words were not concerned with 
 matters within the scope of his professional duties (^). Mere 
 general abuse such as "cheat," "rogue," or "knave," is not 
 actionable, but to say " you cheat your clients,'' would be 
 actionable (^). 
 
 The law with regard to libel received an extremely careful tibel. 
 consideration in a well-known case which was decided by the 
 House of Lords, in 1882. In that case the facts were as follows : 
 A firm of brewers were in the habit of receiving in payment 
 from their customers cheques on various branches of a bank, 
 which the bank cashed for the brewers' convenience at a 
 particular branch. The brewers, having had a squabble with 
 the manager of that branch, sent a printed circular to a large 
 number of their customers, who knew nothiug of the squabble, 
 in the following terms : " H. & Sons hereby give notice that 
 they will not receive in payment cheques drawn on any of the 
 branches of the bank." 
 
 The circular became known to other persons ; there was a run 
 on the bank and loss inflicted. The bank then brought an action 
 against the brewers for libel, on the ground that the circular 
 imputed insolvency to them. The House of Lords decided, 
 affirming the decision of the Court of Appeal, that the action 
 was not maintainable (^). 
 
 An admirable statement of the law on the subject was given 
 in the judgment of Lord Blackburn, from which the following 
 points are extracted. 
 
 A libel for which an action will lie, is defined to be a written 
 statement published without lawful justification, or excuse, cal- 
 culated to convey to those to whom it is published an imputation 
 on the plaintiffs, injurious to their trade, or holding them up to 
 hatred, contempt, or ridicule. It must be shewn by evidence 
 that there was a writing, and that it was published. 
 
 (') Doyley v. Boberts, 3 Bing. Limited v. George Benty & Sons, 
 
 (•NC.)835; 5 Scott, 40; 3 Hodgee, 7 App. Cas. 741. The judgment of 
 
 jg^ Lord Blackburn in this case is pro- 
 
 r) Alleston v. Mo(yr; Hetl. 167 ; and nounced by Mr. Justice Stephen 
 
 see Bishop v. Latimer, 4 L. T. 775 ; ( Digest of Criminal Law, p. 208) to he 
 
 Odgers on Libel, 2nd ed. pp. 76, 77 ; tlie best modern statement ot the law 
 
 Eingwood on Torts, p. 165. of libel. 
 
 (2) 'Hie Capital and Counties Bank 
 
 VOL. I. ^ ^ 
 
466 TORTS. [Book IV. 
 
 Libel. In construing tlie words to see whether they are libel, the 
 
 Court is, where nothing is alleged to give them an extended 
 sense, to put that meaning on them which the words would be 
 understood by ordinary persons to bear, and say whether the 
 words so understood are calculated to convey an injurious impu- 
 tation. It is not whether the defendant intended to convey 
 that imputation ; for if he, without excuse or justification, did 
 what he knew or ought to have known was calculated to injure 
 the plaintiif, he must (at least civilly) be responsible for the con- 
 sequences, though his object might have been to injure another 
 person than the plaintiif, or though he may have written in 
 levity only. As was said in the opinion of the judges delivered 
 to the House of Lords during the discussion of Fox's Libel Bill 
 (1792), no one can cast about firebrands and death, and then 
 escape from being responsible by saying he was in sport (i). 
 
 Independently of all questions as to privilege, the manner of 
 the publication, and the things relative to which the words are 
 published, and which the person publishing knew, or ought to 
 have known, would influence those to whom it was published in 
 putting a meaning on the words, are all material in determining 
 whether the writing is calculated to convey a libellous impu- 
 tation. 
 
 There are no words so plain that they may not be published 
 with reference to such circumstances, and to such persons know- 
 ing these circumstances, as to convey a meaning very different 
 from that which would be understood from the same words used 
 under different circumstances. 
 
 " A publication calculated to convey an actionable imputation 
 is prima facie a libel ; the law, as it is technically said, implving 
 malice, or as I should prefer to say the law being that the 
 person who so publishes is responsible for the natural con- 
 sequences of his act. But if the occasion is such that there 
 was either a duty, though perhaps only of imperfect obligation 
 or a right to make the publication, it is said that the occasion 
 rebuts the presumption of malice, but that malice may be 
 proved, or I should prefer to say the defendant is not answer- 
 able for it so long as he is acting in compliance with that duty 
 or exercising that right, and the burden of proof is on those 
 who allege he is not so acting" (^). 
 
 (') The original of this phrase, casteth firebrands, arrows, and death, 
 which is derived from a much earlier so is the man that deceivetli his neigh- 
 source than last century, is to be hour, and saith. Am not I in sport " ? 
 found in the PrDYerbs xxvi. 18, 19, (2) Capital and Counties Bank v. 
 where it is applied to another descrip- Henty, 7 App. Cas. 7H7. 
 tion of tort : " As a mud man who 
 
Chap. IV.] DEFAMATION. 467 
 
 The first question to te left to a jury in an action for libel, as Libel, 
 was laid down in tte case to wHch we shall next refer, is, what 
 is the meaning of the alleged libel ? What, in the opinion of 
 the jury, would any reasonable man understand by it ? 
 
 The law on this subject is well illustrated by a newspaper 
 criticism which was carefully considered in the recent case of 
 Merivale v. Carson (i) with regard to an article which appeared 
 m a theatrical paper with reference to a play. It was not 
 suggested that the defendant had been actuated by the slightest 
 possible malice against the plaintiff, and the judge told the jury 
 that if the article complained of was "no more than fair, 
 honest, independent, even exaggerated criticism," their verdict 
 would be for the defendant, that : " It is for the plaintiffs to 
 make out their case, and they have to satisfy us that the article 
 is more than that, otherwise they cannot complain. If you are 
 satisfied upon the evidence that it is more than that, then you 
 will give your verdict for the plaintiffs." 
 
 " Nothing," said Lord Esher, citing from a judgment in a 
 celebrated case, " is more important than that fair and full 
 latitude of discussion should be allowed to writers upon any 
 public matter, whether it be the conduct of public men, or 
 proceedings in Courts of Justice, or in Parliament, or the 
 publication of a scheme, or a literary work. But it is always to 
 be left to a jury to say whether the publication has gone beyond 
 the limits of a fair comment on the subject-matter discussed." 
 
 Mere exaggeration, or even gross exaggeration, would not 
 make the comment unfair. 
 
 What is the standard for the jury of " fair criticism " ? 
 
 The criticism is to be " fair," that is, the expression of it is to 
 be fair. The only limitation is upon the mode of expression. 
 
 In this country a man has a right to hold any opinion he 
 pleases, and to express his opinion, provided that he does not go 
 beyond the limits which the law calls " fair." 
 
 Publication. 
 
 It is not the mere writing of libellous matter that constitutes 
 a libel, there must be also a publication of it. 
 
 To constitute a publication the writer must communicate the 
 matter complained of to at least one third person. When the 
 defamatory words are only communicated to the person defamed 
 there is no publication. And no action will lie for such words 
 as they cannot injure his reputation. 
 
 (') 20 Q. B. Piv. 275. 
 
 2 H '^ 
 
468 TORTS. [Book IV; 
 
 Publica- In the well-known case of Wenman v. Ask, it was held that 
 
 *''"'• addressing a letter to a wife containing reflections on her 
 
 husband is a publication (i). 
 
 Mr. Justice Maule, in the course of his judgment, said : " In 
 the eye of the law, no doubt, man and wife are for many pur- 
 poses one ; but that is a strong figurative expression, and 
 cannot be so dealt with as that all the consequences must 
 follow which would result from its being literally true. For 
 many purposes they are essentially distinct and different 
 persons, and amongst others for the purpose of having the 
 honour and the feelings of the husband assailed and injured by 
 acts done or communications made to the wife." 
 
 It will be observed that in Wenman v. Ash the statement 
 complained of was not made by the defendant to his own wife, 
 but was made by the defendant to the wife of the plaintiff. 
 
 In a case, however, decided in 1888, the principle was laid 
 down that in an action for libel, the fact that the defendant 
 has disclosed the libel to his own wife is not evidence of publica- 
 tion. " The maxim and principle acted on for centuries," said 
 Manisty, J., " is still in existence, viz., that as regards this case, 
 husband and wife are in point of law one person. What is the 
 real foundation of the law ? It is after all a question of public 
 policy, or, as it has been well called, social policy. No doubt 
 that principle has been interfered with by judge-made law. 
 Public opinion has altered in some circumstances, and no better 
 illustration of that can be given than the change of view as to 
 deeds of separation between husband and wife. But, if public 
 policy is considered, what is there to shew any change in 
 judicial opinion or public policy with respect to communications 
 between husband and wife hitherto held sacred " (f). 
 
 The onus lies on the plaintiff to prove publication by the 
 defendant, in fact such publication must have taken place at a 
 date prior to the issue of the writ. A libel is deemed to be 
 published as soon as it has passed out of the defendant's 
 possession, unless it comes directly and unread into the posses- 
 sion and control of the plaintiff (^). Thus, if a communication 
 of a defamatory character be sent by telegram or post-card, or 
 even if it is sent by letter addressed to the plaintiff when the de- 
 fendant knows that his clerk, in the ordinary course of business, 
 will be sure to open it, there is sufficient publication (*). 
 
 (■) Wenman v. Ash, 13 C. B. 836- Burdett, 4 B. & Aid. 143. 
 844. (■•) See cases collected : Odgers on 
 
 (^) Wennhak v. Morgan, 20 Q. B. T>. Libel, 2iid ed. p. 152 ; see, as to dis- 
 
 635. covery when publication admitted, 
 
 (=) Per Holrojd, J., iu R. v. Gibson v. Evans, 23 Q. B. D. 384. 
 
Chap. IV.] DEFAMATION. 469 
 
 Every repetition of defamatory words is a new publication, Repetition 
 and constitutes a distinct cause of action. "^ s\a.nier. 
 
 A person who is an unconscious instrument in circulating 
 libellous matter, not knowing or having reason to believe that 
 the document he circulates contains anj' such matter, is free 
 from liability if he proves his ignorance. Such is the case of a 
 newsvendor, as distinguished from the publishers, printers, and 
 owners of newspapers Q-). "A newspaper," said one of the 
 judges, " is not like a fire, a man may carry it about without 
 being bound to suppose that it is likely to do an injury." 
 
 An averment by the plaintiff that words not libellous in their Innuendo, 
 ordinary meaning, or without a special application, were used 
 with a specified libellous meaning or application, is called an 
 innuendo from the old form of pleading. 
 
 A plaintiff who sues on words not in themselves libellous, 
 and does not allege in his claim that they conveyed a libellous 
 meaning, and shew what that meaning was, has failed to shew 
 any cause of action (2). 
 
 The actionable or innocent character of words depends not 
 on the intention with which they were published, but on their 
 actual meaning and tendency when published. 
 
 When publication is proved it is open to the defendant to 
 shew either that the words complained of are true or that they 
 are not malicious. The two defences here indicated are known 
 as justification and privilege. The defence of justification, i.e., Justifica- 
 proving the truth of the statement in question is based upon the 
 principle that the plaintifi' is not entitled to recover damages in 
 respect of an injury to a character which he either does not or 
 ought not to possess (f). 
 
 It must be borne in mind however that in order that the 
 defence of justification should succeed, every material part of 
 the libel must be proved to be true. The justification " must be 
 as broad as the charge " (*). 
 
 It is also a good defence to an action of libel or slander to 
 prove that the circumstances under which the libel was written 
 or the slander spoken were such as to justify the defendant in 
 plainly and fully stating what he, hona fide, believed to be the 
 plaintiff's character. When defamatory words are written or Privilege, 
 uttered in such cases the occasion is said to be " privileged." 
 
 In order to establish, in cases of libel, that the communication 
 
 (') Emmena v. Pottle, 16 Q. B. Div. (') MePherson v. Daniels, 10 B. & C. 
 
 354, 358. 272. 
 
 («) 7 App. Gas, 748, 768, 782, 790, C) Odgers on Libel, 2nd ed. p. 170 ; 
 
 787. Clerk and Lindsell on Torts, p. 444. 
 
470 
 
 TORTS. 
 
 [Book IV, 
 
 Privilege. 
 
 Absolute 
 privilege. 
 
 Qualified 
 privilege. 
 
 is privileged, two elements must exist ; not only must tte 
 occasion create the privilege, but the occasion must be made use 
 of hrnia fide and without malice. If either of these elements is 
 absent, privilege does not attach. When a privilege is relied 
 upon in an action the defendant is bound to prove that the 
 occasion is privileged, and that he used the occasion in a 
 privileged way, i.e., bond fide and without malice Q). 
 
 Privilege is either (i.) absolute, or (ii.) qualified. 
 
 Instances of absolute privilege are restricted to those cases 
 where the public service or the due administration of justice 
 demand absolute immunity. Such are words spoken in Parlia- 
 ment ; reports of military or naval officers to their superiors in 
 the discharge of their several duties ; words spoken by a judge, 
 an advocate, or a witness, in the course of a judicial proceed- 
 ing (2). The privilege attaching to the occasion in all these 
 cases is an absolute bar to an action. 
 
 A member of Parliament however may be liable to an action 
 for subsequently publishing defamatory words spoken in his 
 place in the House even when tlie purpose of such publication 
 was only to correct a newspaper report of his words (^). 
 
 If a member of Parliament bond fide publishes a speech de- 
 livered in the House for the information of his constituents it 
 would be privileged (*). 
 
 Qualified privilege has been defined in a well-known case as 
 follows : — "In general an action lies for the malicious publican 
 tion of statements which are false, in fact, and injurious to the 
 character of another (within the well-known limits as to verbal 
 slander), and the law considers such publication as malicious, 
 unless it is fairly made by a person in the discharge of some 
 public or private duty, whether a legal or moral, or in the 
 conduct of his own affairs in matters where his interest is 
 concerned. In such cases the occasion prevents the inference of 
 malice which the law draws from unauthorized communications 
 and affords a qualified defence depending upon the absence of 
 actual malice. If fairly warranted by any reasonable occasion 
 or exigency and honestly made, such communications are pro- 
 tected for the common convenience and welfare of society ; and 
 the law has not restricted the right to make them within any 
 narrow limits " (^). 
 
 (') Stevens v. Sampson, 5 Ex. B. 
 63, 54. 
 
 (') Mumter v. Lamb, 11 Q. B. D. 
 588 ; Seaman v. Netherclift, 1 
 0. P. D. 540. 
 
 (.') Bex V. Creevey, 1 M. & S. 273. 
 
 C) WasonY.Walter,'L.'R.4:Q.'B.75. 
 
 (') Toogood V. Spyring, 1 0. M. & E. 
 193 ; and see Allbutt v. General 
 Coimcil of Medical Education, 23 
 Q. B. D. 400, where report held to be 
 privileged. 
 
CuAp. IV.] DEFAMATION. 471 
 
 An interesting case on this subject came before the Court in Privilege, 
 1883 (1). The defendant wrote certain defamatory statements 
 of the plaintiff to the chairman of the company under circum- 
 stances which made the publication privileged, but by mistake 
 he placed the letter in an envelope directed to another person 
 who received and read it. The Court decided that there being 
 no evidence of malice the publication was privileged. In this 
 case one of the judges said: "The law stands thus — If a man 
 writes and publishes of another that which is defamatory and 
 untrue the law will imply malice on his part, and the plaintiff 
 need furnish no evidence whatever of malice ; he need only 
 prove the defamatory and untrue character of the statements of 
 which he complains. But there are occasions on which the law 
 regards the defendant as so placed and having such an interest 
 with respect to the subject-matter of the libel that, upon 
 principle founded on common sense, the legal implication of 
 malice is removed. That is the doctrine of privilege." 
 
 In an action to recover damages for libel which came before 
 the Privy Council in 1886, the appellants had in their newspaper 
 fahely charged the resjpondent, a public officer, with specific 
 acts of misconduct in the execution of the duties of his office, 
 had vouched the truth of those charges, and, on the assumption 
 of their truth, commented on his proceedings in highly offensive 
 and injurious language. The Court decided that the appellants 
 were liable. " There' is no doubt,'' said Lord Herschell, "that 
 the public acts of a public man may lawfully be made the 
 subject of fair comment or criticism, not only by the press, but 
 by all members of the public. But the distinction cannot be 
 too clearly borne in mind between comment or criticism and 
 allegations of fact, such as that disgraceful acts have been 
 committed, or discreditable language used. It is one thing to 
 comment upon or criticise, even with severity, the acknowledged 
 or proved acts of a public man, and quite another to assert that 
 he has been guilty of particular acts of misconduct " (^). 
 
 The Judicature Rules provide that in actions for libel or Judicatnre 
 slander, in which the defendant does not by his defence assert R«l«s. 
 the truth of the statement complained of, the defendant shall 
 ,not be entitled on the trial to give evidence in chief, with a 
 view to mitigation of damages, as to the circumstances under 
 which the libel or slander was published, or as to the character 
 of the plaintiff, without the leave of the judge, unless seven 
 
 (') Tompson v. Dashwood, 11 C) Davis v. Shepstone, 11 L. B. 
 
 Q. B. D. 43. Ap. Cas. 187. 
 
472 TORTS. DBookIV. 
 
 days at least before tlie trial he furnishes particulars to the 
 
 plaintiff of the matters as to which he intends to give evidence. 
 
 General It has been decided that in an action for libel, general 
 
 bad repvi- evidence of the plaintiff's bad reputation can only be given in 
 
 tation. Teduction of damages, and not as an answer to the action Q^. 
 
 An instructive case on the law with regard to libel was 
 decided in 1889. The plaintiff was a hatter against whom a 
 judgment had been recovered in a county court. The judgment 
 remained unsatisfied pending an appeal, the plaintiff subse- 
 quently abandoned his appeal, and satisfied the judgment, but 
 omitted to obtain an entry of satisfaction upon the register. 
 The defendants who were publishers of a bi-monthly trade 
 newspaper, entitled theB"a<fer«' Gazette, published in their journal 
 a column headed " The Gazette," in which appeared a list of the 
 judgments entered on the county court register, in which the 
 name of the plaintiff, with the jiidgment against him, was 
 inserted. The plaintiff brought an action for libel, alleging as the 
 innuendo that the insertion of his name in that column implied 
 that the judgment remained unsatisfied, and that he was un- 
 worthy of credit. The defendants denied the innuendo. The 
 judge decided that the publication was capable of being de- 
 famatory, and the jury found a verdict for the plaintiff. It was 
 held that the meaning of the allegation was properly left for the 
 jury ; and that the jury having found such to be its meaning, 
 together with the fact that the statement was not true, the 
 statement as published was a libel (^). 
 
 In an action of libel the defendant, in his defence, admitted 
 the publication, but said that the words complained of, except 
 as thereinafter admitted, were fair comment on a matter of 
 public interest, and, to the extent of the facts thereinafter 
 stated, were true in substance and in fact. He then set out 
 certain facts, which he relied on as justification, but admitted 
 that the words were not wholly justified by those facts, and 
 could not be considered in every respect as fair comment, and 
 he brought into Court forty shillings. It was held that the 
 defence Avas contrary to the provisions of the rule, as to pay- 
 ment of money into Court by way of satisfaction alone or in that 
 way along with a denial of liability, and also embarrassing, 
 and, on those grounds, ought to be struck out (^). 
 
 An Act which is known as Lord Campbell's Act (6 & 7 Vict. 
 
 (■) R. S. C. 1883,0. S56 and 37; 134. 
 Wood V. Earl of Durham, 21 Q. B. D. (») Fleming v. Dollar, 23 Q. B. D. 
 
 .501. 388; Order xxu., r. 1. 
 (^) miliams V. Smith, 22 Q. B. D. 
 
Chap. IV.] DEFAMATION. 473 
 
 o. 96) passed in 1843, contains important enactments with I'ord 
 regard to the defence of apology for libel. It provides that in ^c™^''^'''^ 
 an action for libel contained in any public newspaper or other 
 periodical publication, it shall be competent to the defendant to 
 plead that such libel was inserted in such newspaper or other 
 periodical publication without actual malice, and without gross 
 negligence, and that, before the commencement of the action, 
 or at the earliest opportunity afterwards, he inserted in such 
 newspaper or other periodical publication a full apology for the 
 said libel ; or if the newspaper or periodical publication in 
 which the said libel appeared should be ordinarily published at 
 intervals exceeding one week, had offered to publish the said 
 apology in any newspaper or periodical publication to be selected 
 by the plaintiif in such action. The apology must, however, 
 be accompanied by a payment of money into Court at the time 
 the plea is put in. 
 
 The law of libel in its relation to the press has been con- The law 
 sideiably qualified by two Acts of Parliament passed in the relating to 
 years 1881 Q') and 1888 respectively ; the Newspaper Libel and the press. 
 Eegistration Act, 1881, and the Law of Libel Amendment Act, 
 1888. The first of these Acts has been judicially described (2) 
 as a sort of settlement between the public on the one hand and 
 newspaper proprietors on the other. Newspaper proprietors 
 must be registered on the one hand, but on the other hand they 
 now have obtained from the legislature protection against 
 improper or unnecessary prosecutions for libel. The following 
 are the principal provisions of the second Act : — 
 
 A fair and accurate report in any newspaper of proceedings 
 publicly heard before any Court exercising judicial authority 
 shall, if published contemporaneously with such proceedings, be 
 privileged : provided that nothing in this section shall authorise 
 the publication of any blasphemous indecent matter. 
 
 A fair and accurate report published in any newspaper of the 
 proceedings of a public meeting, or (except where neither the 
 public nor any newspaper reporter is admitted) of any meeting 
 of a vestry, town council, school board, board of guardians, 
 
 (1) 44 & 45 Vict. c. 60, and 51 & Judge in Chambers. 
 
 52 Vict. c. 64, repealing sects. 2 and 3 The application for such an order 
 
 of the Act of 1881, and providing by must be made on notice to the person 
 
 sect. 8 that no criminal prosecution accused, who shall have an oppor- 
 
 shall be commenced against any pro- tunity of being heard against such 
 
 prietor, publisher, editor, or any application. 
 
 person responsible for the publication Q) Per Pollock, B., JEk parte 
 
 ■of a newspaper, for any libel pub- Hubert & Co., 15 Cox C. 0. 166. 
 Jished therein without the order of a 
 
474 
 
 TOUTS. 
 
 [Book IV. 
 
 Law of 
 Libel 
 Amend* 
 ment Act, 
 1888. 
 
 Report of 
 proceed- 
 ings. 
 
 board or local authority formed or constituted under the provi- 
 sions of any Act of Parliament, or of any committee appointed 
 by any of the above-mentioned bodies, or of any meeting of any 
 commissioners authorised to act by letters patent. Act of Parlia- 
 ment, warrant under the Eoyal Sign Manual, or other lawful 
 warrant or authority, select committees of either House of 
 Parliament, justices of the peace in quarter sessions assembled 
 for administrative or deliberative purposes, and the publication 
 at the request of any Government ofiice or department, officer of 
 state, commissioner of police, or chief constable of any notice or 
 report issued by them for the information of the public, shall be 
 privileged, unless it fhall be proved ihat such report or publica- 
 tion was published or made maliciously : provided that nothing 
 in this section shall authorise the publication of any blasphemous 
 or indecent matter : provided also, that the protection intended 
 to be afforded by this section shall not be available as a defence 
 in any proceedings if it shall be proved that the defendant has 
 been requested to insert in the newspaper in which the report 
 or other publication complained of appeared a reasonable letter 
 or statement by way of contradiction or explanation of such 
 report or other publication, and has refused or neglected to 
 insert the same : provided further, that nothing in this section 
 contained shall be deemed or construed to limit or abridge any 
 privilege now by law existing, or to protect the publication of 
 any matter not of public concern, and the publication of which 
 is not for the public benefit. For the purpose of this section 
 " public meeting " shall mean any meeting bond fide and law- 
 fully held for a lawful purpose, and for the furtherance or dis- 
 cussion of any matter of public concern, whether the admission 
 thereto be general or restricted. 
 
 An interesting case with regard to the report of proceedings 
 in a Court of Justice came before the House of Lords in 1889. 
 The plaintiff brought a former action against the defendants in 
 the Chancery Division. The judge before whom the case was 
 tried expressed an opinion that it was not creditable to the 
 plaintiff. The Court of Appeal afterwards, while affirming the 
 decision, expressed their dissent from these unfavourable 
 comments. The judgment of the Court of First Instance was 
 then published with the disparaging remarks, and freely 
 circulated amongst the defendant's customers and patrons. 
 The result of the proceedings and the various appeals involved 
 in them were in the defendant's favour, but in the course of his 
 judgment in the House of Lords, the Lord Chancellor made the 
 following important observations : — " I am not prepared to 
 
Chap. IV.] 
 
 DEFAMATION, 
 
 475 
 
 admit that the judgment of a learned judge must necessarily 
 be privileged. It is obvious that a partial account of what 
 takes place in a Court of Justice may be the exact reverse of 
 putting the person to vrhom publication is made in the same 
 position as if he were present himself. If the evidence of a 
 witness containing matter defamatory to an individual were 
 published, and the cross-examination which showed the witness 
 to be a person unworthy of belief were suppressed, it would 
 obviously be a partial and inaccurate account of what took 
 place ; and if a learned judge's judgment or summing-up to a 
 jury did not, in fact, give reasonable opportuniiies to the reader 
 to form his own judgment as to what conclusion should be 
 drawn from the evidence given, I think the publication of 
 such partial, and in that respect inaccurate, representations of 
 the evidence might be the subject of an action for libel to which 
 the supposed privilege in what was said by a judge would be 
 no answer. Nor do I think there is any presumption one way 
 or the other as to whether a judge's judgment does or does not 
 give such a complete and substantially accurate account of the 
 matters upon which he is adjudicating as to bring it within 
 the privilege. If it be so, it must be proved to be so by evidence, 
 and certainly not inferred as a presumption of law " (i). 
 
 With regard to criminal proceedings in respect of libel the old 
 maxim of the law on this subject was the greater the truth the 
 greater the libel. The principle on which the law proceeded, 
 being that the truer a libel was the more likely it was to 
 provoke a breach of the peace (^). 
 
 The effect of the famous statute known as Pox's Libel Act, 
 32 Geo. 3, c. 60, was that the question of libel or no libel is 
 now a question for the jury, who may give a general verdict of 
 guilty or not guilty upon the whole matter put in issue upon 
 the indictment or information. The jury are in fact rendered 
 the sole judges of law and fact, and on them rests the whole 
 responsibility (^). 
 
 An Act passed in 1843, which is known as Lord Camp- 
 bell's Libel Act (6 & 7 Vict. c. 96), provides that on the trial 
 of any indictment or information for a defamatory libel, the 
 defendant may plead the truth of the matters charged, that 
 their publication was for the public benefit, and the facts 
 
 Report of 
 proceed- 
 ings. 
 
 Criminal 
 law. 
 
 Fox's Libel 
 Act. 
 
 Lord 
 
 Campbell's 
 
 Act. 
 
 (1) McDougall v. EnigJit, 14 App. 
 Oas. 194. 
 
 (^) See as to defamatory matter 
 likely to cause breach of the peace : 
 
 52, 
 
 .„. V. Adams, 22 Q. B. D. 66. 
 
 C) Eeg. V. Sullivan, 11 Oox C. O. 
 
476 TORTS. [Book IV. 
 
 ty reason of wHcli he alleges that such publication was for the 
 public benefit. This defence can only be made when all the 
 statutory conditions are complied with (i). 
 
 (') Per Cookbuni, J., The Queen v. be pleaded upon the preliminary in.. 
 Garden, 5 Q. B. D. 1, where it was quiry before a magistrate, 
 held that the truth of a libel" cannot 
 
( 477 ) 
 
 CHAPTEK V. 
 
 Torts to Peoperty. 
 
 Wrongs to property are — 
 
 (1) Trespass; (2) Nuisance; (3) Conversion; (4) Slander 
 of Title. 
 
 Trespass. 
 
 Trespass may be either trespass to person or personal pro- 
 perty, or to realty. Trespass to personalty has been judicially 
 defined as " a wrongful act done to goods with which the party Definition, 
 has no right to meddle "-C^). 
 
 Among instances of trespass to person or personal property 
 may be mentioned letting loose a dangerous animal, carrying 
 away goods, driving or striking cattle, abusing or destroying a 
 chattel found. Scratching the panel of a carriage was given as 
 an example of trespass to personalty by Baron Alderson, whose 
 definition we have just quoted. 
 
 The following are instances of trespass to realty : — 
 
 Throwing stones, rubbish, or materials of any kind on the 
 land of another, allowing cattle, poultry, or domestic animals 
 to go upon another man's land (unless the owner of the animals 
 can prove that his neighbour was bound, by contract or 
 prescription, to fence for his benefit), fixing a spout so as to 
 discharge water upon another man's land, sufiering filth to 
 ooze through a boundary wall and to run over another's close 
 or yard without his leave or permission, unless some right has 
 been gained to interfere in any such way with the land of one's 
 neighbour. In addition to all these particular instances, and 
 a great multitude which will be found in decided cases, the 
 general principle must be borne in mind that the right of the 
 owner of land being a right in rem is an exclusive right to the 
 quiet possession and enjoyment of it, and every entry thereon 
 without his leave, or by lawful authority, constitutes a trespass, 
 as has been said " if a man's land is not surrounded by any 
 
 (') Per Alderson, B., Fouldes v. Willoughby, 8 M. & W. 549. 
 
478 ' TOBTS. [Book IV. 
 
 actual fence, the law encircles it with an imaginary, to pass 
 which is to break and enter his close " (^). 
 
 Six Car- A famous case with regard to the law of trespass is the Six 
 
 penters Carpenters' Case which is to be found in Lord Coke's Eeports (^). 
 In that case the six carpenters had entered the plaintiff's house, 
 which was a common wine tavern with a common sign fixed at 
 the door. They were served with a quart of wine for which 
 they paid, and they were afterwards at their request served 
 with another quart of wine and a pennyworth of bread for 
 which they refused to pay. The plaintiff then brought his 
 action for trespass. The Court in deciding that an action for 
 trespass would not lie, laid down among other things the 
 following celebrated propositions : (1) Where a man abuses an 
 authority or licence given him by the law, he becomes a tres- 
 passer ah initio, i.e., he is considered to have entered with an 
 illegal intent. The wrongful act, as Blackstone says, is deemed 
 to affect and have relation back to his first entry, and to' 
 make the whole a trespass. (2) "Where a man abuses an 
 authority or licence given him by another party, he may be 
 punished for such abuse, but he is not a trespasser ah initio. 
 (3) A mere nonfeasance (i.e. an omission to do something) 
 cannot make a person who has had an authority or licence 
 given him by the law, a trespasser ah initio. 
 
 As it was found that this doctrine of trespass ah initio bore 
 extremely hard on landlords, the statute 11 Geo. 2, c. 19, s. 19, 
 was passed, which provided that where any distress shall be 
 made for any rent justly due, and any irregularity or unlawful 
 act shnll be afterwards done by the party distraining, or his 
 agent, the distress shall not be deemed unlawful, nor the 
 distrainer a trespasser ah initio; but the party grieved may 
 recover satisfaction for the damage, and no more (^). 
 
 Defences to Among the various defences which may be pleaded to an 
 
 action for action for trespass are : — 
 
 respass. ^ Leave and licence. But it must be borne in mind that 
 
 a mere licence (*), even under seal, is revocable, e.g. licence to 
 hunt in a park, which merely renders the act of hunting lawful 
 which otherwise would he unlawful, but if the licence be 
 connected with a grant, the party granting cannot generally 
 revoke it so as to defeat his grant. 
 
 2. Liherum tenementum, viz. that the land on which the 
 
 (') Addison on Torts, 6th ed. (^) 1 Smith's Leading Cases, 
 
 p. 360. 9th ed. p. 149. 
 
 (2) 8 Rep. 146 a ; Smith's Leading (M See Wood v. Leadbitter, 13 
 
 Cases, vol i. M. & W. 838, ante, p. 363. 
 
Chap. V.] TORTS TO PliOPEETT. 479 
 
 trespass was alleged to have been committed was at tin at time Defences to 
 the defendant's freehold. In this way the question of title to '"'*''°'' ^°' 
 land may be tried. lespass. 
 
 3. That the entry was to retake goods ; but here the defendant 
 must prove that the goods had been placed there by the plaintiff 
 or stolen. 
 
 4. That thfe entry was to demand or pay money to execute 
 the process of the law, or that the house was an inn or public- 
 house, because the mere fact of keeping such a house confers a 
 general right upon all to enter. 
 
 5. Necessity, as in cases where highways have become im- 
 passable, or where defendant has sought to escape some pressing 
 danger. 
 
 6. Abatement. That the entry was made to abate an existing 
 nuisance after due notice. 
 
 7. That the acts complained of were lawfully done under the 
 powers and provisions of an Act of Parliament Q). 
 
 Nuisance. 
 
 Nuisance (^) is constituted by the unlawful disturbance of a Definition, 
 man in the enjoyment of his property, or in the exercise of a 
 common right. 
 
 A nuisance may be either public or private. 
 
 A public nuisance affects the Queen's subjects at large, or a Public and 
 
 considerable portion of them, as the inhabitants of a particular P'''™'^ 
 
 . . , nuisance, 
 
 parish or town. 
 
 The person who commits a public nuisance is liable to a 
 criminal prosecution (^). 
 
 A private nuisance affects an individual or a determinate 
 group of individuals, and gives rise to civil action only. 
 
 The distinction between a public and a private nuisance was 
 explained in a very celebrated case (*) as follows : — " To con- 
 stitute a public nuisance, the thing must be such as in its 
 nature and consequences is a nuisance, an injury or damage to 
 all persons coming within the sphere of its operations, though 
 it mny be so in a greater degree to some than it is to others. 
 For example, take the case of the operations of a manufactory, 
 in the course of which operations volumes of smoke or of 
 noxious efBuvia are emitted. To all persons who are at all 
 
 (') Eingwoorl ou Torts, p 98, et seq. joyment of proprietary and personal 
 
 (2) The term nuisance is derived rights : Adriison on Torts. 
 
 from the French nuire, to do hurt or (=) Pollock on Torts, p. 32t. 
 
 to annoy, and is applied indiscri- (') 8oltauY.DeHeld,2 Sim. (i^, 8.) 
 
 miuately to infringements of the en- 142, 150. 
 
480 TORTS. [Book IV". 
 
 Nuisance, within tlie range of these operations it is more or less objection- 
 able, more or less a nuisance in the popular sense of the term. 
 It is true that to those who are nearer to it, it may be a greater 
 nuisance, or greater inconvenience, than it is to those who are 
 more remote from it ; but still to all who are within the reach of 
 it, it is more or less a nuisance or an inconvenience. Take 
 another ordinary case, the most ordinary case of a public 
 nuisance, the stopping of the king's highway, that is a 
 nuisance to all who may have occasion to travel that highway. 
 It may be a much greater nuisance to a person who has to 
 travel it every day of his life than it is to a person who has to 
 travel it once a year or once in five years ; but it is more or 
 less a nuisance to every one who has occasion to use it. If, 
 however, the thing complained of is such that it is a great 
 nuisance to those who are more immediately within the sphere 
 of its operations, but is no nuisance or inconvenience whatever, 
 or is even advantageous or pleasurable to those who are more 
 removed from it, it does not come within thfe scope of the term 
 public nuisance." The learned judge then illustrated his mean- 
 ing by the case before him when he considered that a peal of 
 bells, though an extreme nuisance to persons within a few feet 
 or yards of them, might be a positive pleasure to persons at a 
 distance from them, and by the case of a person building up a 
 wall and darkening ancient lights, which though a private 
 nuisance to each of half-a-dozen persons aggrieved by it, could 
 not be regarded as a public nuisance for which an indictment 
 would lie at the suit of the Crown, or for which the Attorney- 
 General might bring an action. 
 
 Instances of nuisances given in Addison on Torts, are, 
 erecting a building overhanging a house or land of one's 
 neighbour, affixing a spout or projection which causes, or has 
 a tendency to cause, an unnatural quantity of rain-water to 
 descend on a neighbour's house or land, unrepair or neglecting 
 to cleanse sewers, drains, and watercourses, creating offensive 
 smells, or carrying on noisome trades, &c. (*). 
 
 It is no answer to an action for nuisance to show that the 
 trade is very convenient for the defendant or very advantageous 
 to the public if it is offensive and injurious to the particular 
 individual who complains of it. It was said that in one case 
 " that a tan-house is necessary, for all men wear shoes," but a 
 
 (' ) Addison on Torts, 6th ed. p. to out tliiutles so as to prevent their 
 
 362, et seq. See Giles v. Wallcer, 24 seed from being blown upon the land 
 
 Q. B. D. 656, where it was decided of another, 
 that an occupier of land is not bound 
 
Chap. V.] TORTS TO PROPERTY. 481 
 
 tan-house may be pulled down if it causes a nuisance to others. Nuisance. 
 A marked distinction is however made by the law between 
 nuisances which cause material injury to property and nuisances 
 which only cause personal discomfort, for in the latter case 
 regard is had to the locality and other circumstances, and a man 
 must be prepared to submit to a greater degree of personal 
 discomfort in certain respects in a crowded locality than in a 
 secluded part of the country. With regard to property the 
 maxim. Sic utere tuo ut alienum. non Isedas, is strictly respected Q). 
 " If a man," said Lord Westbury, in a well-known case, 
 " lives in a town, it is necessary that he should subject himself 
 to the consequences of those operations of trade which may be 
 carried on in his immediate locality, which are actually neces- 
 sary for trade and commerce, and also for the enjoyment of 
 property, and for the benefit of the inhabitants of the town and 
 of the public at large. If a man lives in a street where there 
 are numerous shops, and a shop is opened next door to him 
 which is carried on in a fair and reasonable waj', he has no 
 ground for complaint because to himself individually there may 
 arise much discomfort from the trade carried on in that shop. 
 The law, however, is different where property is concerned. 
 Submission which is required from persons living in society to 
 that amount of discomfort which may be necessary for the 
 legitimate and free exeroi.-e of the trade of their neighbours, 
 would not apply to circumstances, the immediate result of 
 which is sensible injury to the value of the property." 
 
 CONVEESION". 
 
 An action for conversion lies where the defendant has wrong- 
 fully converted the plaintiff's goods to his use, or has wrongfully 
 deprived him of the use and possession of them. 
 
 The remedy for this wrong was formerly the action of trover. 
 
 " Any asportation of a chattel," said Baron Alderson, " for the 
 use of the defendant or a third person amounts to a conversion, 
 for this simple reason, that it is an act inconsistent with the 
 general right of dominion which the owner of the chattel has in 
 it, for he is entitled to the use of it at all times and in all places. 
 When, therefore, a man takes that chattel, either for the use of 
 himself or for another, it is a conversion; so if a man has pos- 
 session of my chattel, and refuses to deliver it up, this is an 
 assertion of a right inconsistent with my general dominion over 
 it and the use which at all times and in all places I am entitled 
 
 (') St Helen's Smdting Co. v. Tipping, 11 H. L. Cas. 642. 
 VOL. I. 2 I 
 
482 TORTS. [Book IV. 
 
 to make of it ; and consequently amounts to an act of conversion, 
 for its effect is to deprive me of it altogether " (^). 
 Conversion. The question what amounts to a conversion was much con- 
 sidered in the House of Lords in 1874 in the case of Boiling v. 
 Fowler (2), where the principle was laid down that any person 
 who, however innocently, obtains possession of the goods of 
 a person who lias been fraudulently deprived of them, and 
 disposes of them, whether for his own benefit or that of any 
 other person, is guilty of conversion. 
 
 "Where an action of conversion is brought against a mere 
 wrong-doer, the plaintiff need only show that he was in pos- 
 session. This important proposition was established by the 
 leading case of Armory v. Delamirie (^). In this case a chimney 
 sweeper's boy found a jewel, and carried it to the shop of the 
 defendant, who was a goldsmith, to know what it was, and 
 delivered it into the hands of the apprentice, who, under a 
 pretence of weighing it, t<iok out the stones, and called to the 
 master to let him know it came to three halfpence. The master 
 offered the boy the money. He refused to take it, and insisted 
 on having the thing back ; whereupon the apprentice (lelivered 
 him back the socket without the stones. It was decided in this 
 case that the plaintiff was entitled to succeed, that the defendant' 
 could not set up in his defence the right of the true owner, or 
 jus tertii as it is called, and further, that the law would presume 
 that the stones which the defendant had thus converted were of 
 the firist water. 
 
 Slander of Title. 
 
 An action for slander of title lies where a false and malicious 
 statement is made affecting title to property. It is immaterial 
 
 (') Fouldee v. Willouglihy, 8 JI. & question in this particular case. In 
 
 W . 540. form it is a fiction ; in substance a 
 
 (_') L. K. 7 H. L. 757, 765. In this remedy to recover the value ot per- 
 case Lord Blaxjkbum (then Mr. Justice sonal chattels wrongfully converted 
 Blackburn) owned that it was not by auotlierto his own use. Theform 
 alwaya easy to say what did and what supposes the defendant may have 
 dill not amount to a conversion, anil come lawfully by tlie possession of 
 expressed an opinion that many cases the goods. This action lies, and has 
 wliieh at first seemed difficult would been brought in many cases where in 
 be solved if tlje nature of the action truth the defendant has got the 
 were remembered, and he cited the possession lawfully. When the de- 
 words of Lord Mansfield in Cooper v. fendant takes tbem wrongfully, and 
 Chitty, 1 Buir. 24 : " 'i'lie bare de- by trespiias, the plaintiff, if he thinks 
 fining of this kind of action, and the fit to bring this action, waives tlie 
 grounds upon which a plaintiff is trespass, and admits tlie possession to 
 enlitled to recover in it, will go a have been lawfully gotten." 
 great way towards the uiiderttanding, (') 1 Strange, 509; Smith's Lead- 
 aud consequently the solution, of the ing Cases, 9th ed. vol. i. p. 385. 
 
Chap. V.] TORTS TO PROPERTY. 483 
 
 whether the words are written or spoken, but the law will not Slander of 
 presume damage, and accordingly evidence of damage must be *"'^^- 
 given (1). 
 
 Thus, to borrow Mr. Addison's illustration, if lands or chattels 
 are about to be sold by auction, and a man declares in the auction- 
 room or elsewhere, that the vendor's title is defective, that the 
 lands are mortgaged, or that the chattels are stolen property, and 
 so deters people from buying, or causes the property to be sold 
 for a less price than it would otherwise have realised, this is a 
 slander upon the title of the owner, for which damages can be 
 recovered, unless the slanderer can prove the truth of his 
 statement (2). 
 
 The present law on this subject was thus summed up by the 
 Lord Chief Justice in a case decided in 1881. " It seems to be 
 clear law that in an action in the High Court in the nature of 
 slander of title, where the defendant has property of his own, 
 in defence of which the supposed slander of the plaintiff's title 
 is uttered, it is not enough that the statement should be untrue, 
 but there must be some evidence, either from the nature of the 
 statement itself or otherwise, to satisfy the Court or the jury 
 that the statement was not only untrue, but was made mala fide 
 for the purpose of injuring the plaintiff, and not in the hona. 
 fi.de defence of the defendant's own property. It seems to be 
 clear that if a statement is made in defence of the defendant's 
 own property, although it injures and is untrue, it is still what 
 the law calls a privileged statement : it is a statement that the 
 defendant has a right to make, unless, besides its untruth and 
 besides its injury, express malice is proved, that is to say, want 
 of hona fides or the presence oi mala fides" (f). 
 
 (') Malachy v. Soper, 3 Bing. H. C. p. 258. 
 371. (=) Per Coleridge, L.O. J., in fliiZge]/ 
 
 (^) Addison on Torts, 6tli ed. v. Brotherhood, 19 Ch. D. 386. 
 
 2 I 2 
 
( 484 ) 
 
 CHAPTEE VI. 
 
 Negligence. 
 
 Defiaition. Negligeiice has been defined to be " tiie omission to do some- 
 tliing which a reasonable man, guided upon those considera- 
 tions which ordinarily regulate the conduct of human affairs, 
 would do, or doing something which a prudent and reasonable 
 man would not do " (}). 
 
 But this statement must be taken with the qualification 
 stated by one of the judges of the 0<jurt of Appeal in an 
 important case decided in 1883 (^). " But want of attention 
 amounting to want of ordinary care is not a good cause of 
 action, although injury ensue from such want, unless the 
 person charged with such want of ordinary care had a duty to 
 the person complaining to use ordinary care in respect of the 
 matter called in question. Actionable negligence consists in 
 the neglect of the use of ordinary care or skill towards a person 
 to whom the defendant owes the duty of observing ordinary 
 care and skill by which neglect the plaintiiF, without contribu- 
 tory negligence on his part, has suffered injury to his person or 
 property." Probably the best definition of negligence any- 
 where to be found, combining as it does brevity with accuracy 
 of statement, is that given by the late Mr. Justice VVilles. 
 " Negligence is the absence of care according to the circum- 
 stance." 
 
 Negligence is always relative to circumstances of time, place, 
 or person. " Gross negligence," it has been judicially stated, is 
 " only ordinary negligence with a vituperative epithet " (^). It 
 must, however, be borne in mind, as pointed out by Mr. 
 Beven (*), that in certain cases " the term ' gross negligence ' 
 refers not to the varying amount of negligence in a given case 
 
 (") Blyth V. Birmingham Water- (C.A.) 503. 
 works Co., 11 Ex. 781 ; Smith v. (») By Biiron Eolfe in Wilson v. 
 
 London and South Western Railway Brett, 11 M. & W. 113, but see 
 
 Co., L. R. 5 C. P. 98 ; Dagg v. Mid- Beven's Principles of the Law of 
 
 land Railway Co., 1 H. & N. 773, Negligence, p. 40, e( seg. 
 781. (■') Eu\en on Nigligenoe, p. 159. 
 
 C) Heaven <!. Pender, 11 Q. B. D. 
 
Chap. VI.] NEGLIGENCE. 485 
 
 where the proof of any amotiiit would import liahilitj'. but to 
 the defining of different degrees applicable to different subject- 
 matter." Thus in the case of a gratuitous bailee, a manifest 
 amount of negligence must be shewn before liability can arise ; 
 and in others, as in the case of hire, a much smaller amount affixes 
 liability. " The epithet gross, as applied to the greater or lesser 
 amount of negligence in the case of a deposit, is redundant ; but 
 it is a necessary term to discriminate the different amount of 
 legal duty between a case of deposit and a case of hire." It is 
 not negligent or wrong for a man to fire at a mark in his own 
 grounds at a distance from others, or to ride very rapidly in his 
 own park, though it is wrong so to fire near to and so to ride on 
 the public highway. 
 
 A plaintiff may have been guilty of negligence, and that Contribu- 
 negligeiice may in fact have contributed to the accident which *°i7 negli- 
 is the subject of the action, yet if the defendant could by the 
 exercise of ordinary care and diligence have avoided the mis- 
 chief which happened, the plaintiff's negligence will not excuse 
 him. The law on this subject was stated by Baron Parke as 
 follow^s : " That although there may have been negligence on 
 the part of the plaintiff, yet unless he might, by the exercise of 
 ordinary care, have avoided the consequences of the defendant's 
 negligence, he is entitled to recover; if by ordinary care he 
 might have avoided them, he is the author of his own wrong " (^). 
 Thus, in the great "donkey case," Davies v. Mann, a plaintiff 
 negligently left his donkey on the high road with its fore feet 
 tied together, and the defendant, who was driving negligently, 
 ran over and killed the donkey in broad daylight ; it was held 
 that the defendant was liable in an action brought by the owner 
 of the donkey. " Were this not so," said the Court, " a man may 
 justify the driving over goods left in a public highway, or even 
 over a man lying asleep there, or the purposely running against 
 a carriage going on the wrong side of the road " (^). 
 
 The law on the subject may be summed up in the following 
 propositions : — 
 
 (1) If A. without fault of his own is injured by the negli- 
 gence of B., then B. is liable to A. ; 
 
 (2) If A. by his own fault is injured by B. without fault on 
 B.'s part, then B. is not liable to A. ; 
 
 (3) Suppose now that A. is injured by B. by the fault more 
 or less of both parties combined. 
 
 (') Bridge v.' Great Junotion Bail- Tuff v. Warman, 2 C. B. (N.S.) 740 ; 
 way Co., 3 M. & W. 244. 5 C. B. (N.S.) 573. 
 
 C) 10 M. & W. 546, 549; see also 
 
486 TORTS. [Book IV, 
 
 In that case the law is as follows : — 
 
 (a.) If, notwithstanding B.'s negligence, A., with reasonable 
 care, might have avoided the injury, A. has no action against B. 
 
 (6.) If, notwithstanding A.'s negligence, B., with reasonable 
 care, could have avoided injuring A., A. has an action against 
 B.; 
 
 (c.) If there has been as much want of reasonable care on 
 A.'s part as on B.'s ; or, in other words, if the proximate cause 
 of the injury is the want of reasonable care on both sides, A. 
 has no right of action against B. (^). 
 torv nesli- '^^® question of contributory negligence was much considered 
 genoe. in a case before the House of Lords (2), in which it was held 
 
 that where there is conflicting evidence on a question of fact, 
 whatever may be the opinion of the judge who tries the cause 
 as to the value of that evidence, he must leave the consideration 
 of it for decision of the jury. 
 
 Negligence is a question of mixed law and fact. The Court 
 must be satisfied that the facts if proved are in law capable of 
 supporting the inference that the defendant has failed in what 
 the law requires at his hands. Where there is no contract 
 between the parties the burden of proof is on him who complains 
 of negligence. He must not only shew that he suffered harm 
 in such a manner that it might be caused by the defendant's 
 negligence, he must shew that it was so caused ; and to do this 
 he must prove facts inconsistent with due diligence on the part 
 of the defendant (f). " When the balance is even as to which 
 party is in fault the one who relies upon the negligence of the 
 othef is bound to turn the scale " (*). 
 
 One of the most important branches of the law with regard 
 
 (') Eingwood's ' Outlines of the tributed to the injury or death coin- 
 Law of Tnrta.' plained of; and, in the second place, 
 
 (^) Dublin, WioMow, and Wexford that there was no contributory negli- 
 
 Railway Co. v. Slattery, 3 App. Cas. gence on the part of the injured or 
 
 1155. deceased person. But it does not 
 
 (^) Cotton V. Wood, 8 C. B. (N.S.) necessarily follow that the whole 
 
 568. burden of proof is cast upon the 
 
 C) The law with regard to the plaintiff. Tliat it lies with the plain- 
 burden of proof in cases of contribu- tiff to prove the first of these propo- 
 tory negligence was much considered sitions does not admit of dispute, 
 in a case which came before the The onus of proving afSrmatively that 
 House of Lords in 1886, Wahelin v. there was contributory negligence on 
 London and South Western Bailway the part of the person injured rests, 
 Co., where it was stated as follows : — in the first instance, upon the defen- 
 " In all such cases the liability of the dants, and in the absence of evidence 
 defendant company must rest upon tending to that conclusion, the plain- 
 these facts — in the first place, that tiff is not bound to prove the negative 
 tliere was some negligent act or omis- in order to entitle her to a verdict in 
 siou on the part of the company or her favour : " 12 App. Cas. 41. 
 their servants which materially con- 
 
Chap. VI.] NEGLIGENCE. 487 
 
 to negligence, is that which is concerned with the liability of Master and 
 the master for damages done owing to the negligence of his servant, 
 servant. The principle upon which the law proceeds is based 
 on the maxim Qui facit per alium facii per se. The employer 
 has the right of selecting the servant employed, and it is only 
 reasonable that if he chooses an unskilful or careless person to 
 execute his orders, he should be responsible for any injury 
 resulting from the want of skill, or want of care, on the part of 
 his servant. 
 
 The general principle of the law on this point was well 
 expressed in the House of Lords as follows : " Where an injury is 
 occasioned to any one by the negligence of another, if the person 
 injured seeks to charge with its consequences any person other 
 than him who actually caused the damage, it lies on the person 
 injured to shew that the circumstances were such as to make 
 some other person responsible. In general, it is sufficient for 
 this purpose to shew that the person whose neglect caused the 
 injury was at the time when it was occasioned acting, not on 
 his own account, but in the course of his employment as a 
 servant in the business of a master, and that the damage resulted 
 from the servant so employed not having conducted his master's 
 business with due care. In such a case the maxim ' Eespondeat 
 superior ' prevails, and the master is responsible " Q-). 
 
 " Thus, if a servant driving his master's carriage along the 
 highway carelessly runs over a bystander, or if a gamekeeper 
 employed to kill game carelessly fires at a hare so as to shoot a 
 person passing on the ground, or if a workman employed by a 
 builder in building a house negligently throws a stone or brick 
 from a scaffold and so hurts a passer-by — in all these cases (and 
 instances might be multiplied indefinitely) the person injured 
 has a right to treat the wrongful or careless act as the act of 
 the master." 
 
 The great exception to this rule is the doctrine of " common Common 
 employment." Heie the principle of the law is that " a servant ^^j"^" 
 who engages for the performance of services for compensation 
 does, as an implied part of the contract, take upon himself, as 
 between himself and his master, the natural risks and perils 
 incident to the performance of such services ; the presumption 
 of law being that the compensation was adjusted accordingly, 
 or in other words, that these risks are considered in his 
 wages " (2). 
 
 It must be borne in mind, however, that the doctrine of 
 
 (') Bartonshill Coal Co. v. Beid, (^) Morgan v. Vale of Neath Bail- 
 
 3 Macq. 26(3. way Co., 5 B. & S. 578. 
 
488 TOETS. [Book IV. 
 
 Employer's common employment will not save the master from liability to 
 Ao^ ' ' ^ action if he lias himself been personally negligent, or if he has 
 employed incompetent workmen, through whose lack of skill 
 the injury happens, or if he has not supplied proper materials, 
 machinery, &c., and the accident has been thereby occasioned. 
 The great exception, however, to the common law rule which 
 renders a master not responsible to one servant for an accident 
 which happens owing to the negligence of a fellow servant in 
 a common employment, is that afforded by the Employer's 
 Liability Act, 1880 (i). The history of the previous law is 
 well summed up in a case -which came before the Court of 
 Appeal in 1887. 
 
 " For his own personal negligence a master was always 
 liable, and still is liable at common law, both to his own work- 
 m.en and to the general public who come upon his premises at 
 his invitation on business in which he is concerned. But in 
 the case of injuries arising out of another servant's negligence, 
 the workmen stood before recent legislation at a disadvantage 
 as compared with the world outside. For damage done by the 
 negligence of his servants acting within the scope of their 
 employment, the master, on the principle of respondent superior, 
 was responsible to strangers. But a workman injured by th6 
 negligence of a fellow workman had no such redress. By 
 entering into a contract of service the common law inferred 
 that he had taken on himself the ordinary risks incident to 
 such business as was lawfully carried on upon his master's 
 premises ; and the much-canvassed case of Priestley v. Fowler (^\ 
 and a series of decisions following in its train, had engrafted 
 on this doctrine the grave corollary that the negligence of a 
 fellow servant in the common employ of the master was one of 
 such ordinary risks. The corollary gave rise to much apparent 
 hardship and to much debate. In the year 1880 the legislature 
 passed the Employers' Liability Act" (^). The following are 
 the principal sections of that important enactment : — 
 
 Section 1 provides that where after the commencement of 
 that Act personal injury is caused to a workman — 
 
 (1) By reason of any defect in the condition of the ways, 
 
 works, machinery, or plant connected with or used in 
 the business of the employer ; or 
 
 (2) By reason of the negligence of any person in the service 
 
 (') 43 & 44 Vict. c. 42, continued O 3 M. & W. 1. 
 
 by Expiring Laws Continuance Act (=) Thomas v. Quartermaine, 18 
 
 (53 & 54 Vict. c. 49) until 31st Deo. Q. B. D. 685, 691. 
 1891. 
 
Chap. VI.] NEaLIGENCE. 489 
 
 of the employer who has any superintendence entrnsted Employer's 
 to him whilst in the exercise of such superintendence ; Liability 
 or 
 
 (3) By reason of the negligence of any person in the service 
 
 of the employer to whose orders or directions the 
 workman at the time of the injury was hound to 
 conform, and did conform, where such injury resulted 
 from his having so conformed ; or 
 
 (4) By reason of the act or omission of any person in the 
 
 service of the employer done or made in obedience to 
 the rules or bye-laws of the employer, or in obedience 
 to particular instructions given by any person delegated 
 with the authority of the employer in that behalf; or 
 
 (5) By reason of the negligence of any person in the service 
 
 of the employer who has the charge or control of any 
 signal, points, locomotive engine, or train upon a 
 railway : 
 the workman, or in case the injury results in death, the legal 
 personal representatives of the workman, and any persons 
 entitled in case of death, shall have the same right of com- 
 pensation and remedies against the employer, as if the workman 
 had not been a workman of nor in the service of the employer, 
 nor engaged in his vs^ork. 
 
 Sect. 2 provides that a vrorkman shall not be entitled under 
 this Act to any right of compensation or remedy against the 
 employer in any of the following cases ; that is to say : 
 
 (1.) Under sub-sect. 1 of sect. 1, unless the defect therein- 
 mentioned arose from or had not been discovered or 
 remedied owing to the negligence of the employer, or 
 of some person in the service of the employer and 
 intrusted by him with the duty of seeing that the 
 ways, works, machinery, or plant were in proper 
 condition. 
 (2.) Under sub-sect. 4 of sect. 1, unless the injury resulted 
 from some impropriety or defect in the rules, bye-laws, 
 or instructions therein-mentioned ; provided that where 
 a rule or bye-law has been approved or has been 
 accepted as a proper rule or bye-law by one of Her 
 Majesty's Principal Secretaries of State, or by the 
 Board of Trade, or any other Department of the 
 Government, under or by virtue of any Act of Par- 
 liament, it shall not be deemed for the purposes of this 
 Act to be an improper or defective rule or bye-law. 
 (3.) In any case where the workman knew of the defect or 
 
490 TORTS. [Book IV. 
 
 Employer's negligence which caused his injury, and failed within 
 
 ^'JJ.''''''^ a reasonable time to give, or cause to be given, infor- 
 
 mation thereof to the employer, or some person superior 
 to himself in the service of the employer, unless he was 
 aware that the employer or such superior already knew 
 of the said defect or negligence. 
 
 3. The amount of compensation recoverable under this Act 
 shall not exceed such sum as may be found to be equivalent to 
 the estimated earnings, during the three years preceding the 
 injury, of a person in the same grade employed during those 
 years in the like employment and in the district in which the 
 workman is employed at the time of the injury. 
 
 4. In order that an action for compensation for injury should 
 be maintainable under this Act, notice must be given within 
 six weeks, and the action must be commenced within six months 
 from the occurrence of the accident causing the injury, or in 
 case of death, within twelve months from the time of death. 
 There is, however, a proviso that in case of death the want of 
 such notice shall be no bar to the maintenance of such action if 
 the judge shall be of opinion that there was reasonable excuse 
 for such want of notice. 
 
 All actions must be brought in County Courts, subject to 
 power of removal Q"). 
 
 The law on the subject of common employment may be illus- 
 trated by a case which came before the Court of Appeal in 1889. 
 The action was brought to recover damages for an accident caused 
 by the negligence of one of the defendants' workmen in allowing 
 a bucket to fall on the plaintiff, who was a builders' workman. 
 The firm of builders, in whose employ the plaintiff was, had 
 contracted with a landowner to build certain houses, the contract 
 providing that the defendants, a firm of ironfounders (selected 
 by the landowner's architect), should lay a fireproof roofing on 
 the houses, for which the builders were to pay, and were also 
 to provide scaffolding and other assistance. The defendants 
 employed their own workmen. A majority of the judges of the 
 Court of Appeal held, that the action could not be maintained, 
 for the defendants were sub-contractors under the builders, and 
 that they and their workmen must be taken to have been in the 
 
 (1) 43 & 44 Vict. 0. 42, 8. 6 ; and maine, 18 Q. B. D. 685 ; Yarmouth v. 
 
 see, as to deduction of penalty from France, 19 Q. B. D. 647 ; and for a 
 
 amount of compensation, sect. 5. full consideration of the subject : see 
 
 See Morgan v. London General Om- Beven on Negligence, p. 414, et »eq. ; 
 
 nihus Co., 13 Q B. D. 832 ; Cook v. and see oases on the Act collected in 
 
 North Metropolitan Tramways Co., McCuUagh's County Court Practice. 
 18 Q. B. D. 683 ; Thmnas v. Quarter- 
 
Chap. VI.] NEGLIGENCE. 491 
 
 employment of the builders, and, consequently, the plaintiff and 
 the man -who caused the injury were under a common master 
 and engaged in a common employment ('). 
 
 The law as to liability in respect of contracts to do dangerous Dangerous 
 work was considered by the House of Lords in a case which ^"^ ' 
 came before them in 1889 (2). In this case the plaintiff was in 
 the emploj'ment of a contractor who had agreed with a railway 
 companj' that he should shunt their trucks upon their line, and 
 should supply horses and men for that purpose, the company to 
 provide boys to assist in the shunting when they had boys, and 
 when they had not the shunting to be done without boys. For 
 several years the plaintiff, as the servant of the contractor, 
 shunted trucks on the company's line, sometimes with and some- 
 times without boys. The operation of shunting is dangerous to 
 any man performing it without assistance. The plaintiff on 
 one occasion asked the company's foreman for a boy, but as the 
 company could not provide one proceeded to shunt trucks alone, 
 and without any negligence on his part was injured by a truck 
 running over him. The House of Lords decided that there was 
 no evidence of any negligence or breach of duty on the part of 
 the railway company, and that the plaintiff had therefore no 
 cause of action. 
 
 A subject which deserves to be considered in connection with 
 the law of negligence is the maxim or phrase res ipsa loquitur, 
 viz., that there is something in the facts of the case which 
 speaks for itself, and is sufficient or insufficient in a case in 
 question to raise the presumption of negligence. Thus, in a 
 well-known case (^) upon the subject, where a barrel of flour 
 fell from a warehouse over the defendant's shop and injured the 
 plaintiff, who was walking along the public road, the Court laid 
 down the principle " that it is the duty of persons who keep 
 barrels in a warehouse to take care that they do not roll out ; 
 and such a case would beyond all doubt afford prima facie 
 evidence of negligence." 
 
 The result of the cases is summed up in a well-known autho- 
 rity as follows : " It may, perhaps, be safely stated that where 
 a certain course of action has been pursued by any person with- 
 out injury to others, and he, upon changing that course, injures 
 another, .the thing (unexplained) speaks for itself that such 
 person has been negligent; or if something unusual happens 
 
 0) Johnson v. Lindsay, 23 Q. B. D. (') Byrne v. Boadle, 2 H. & C. 
 
 508. 722 ; 33 L. J. Ex. 13 ; 9 L. T. (N.S.) 
 
 C) Membery v. Great Western Bail- 450 ; 12 W. E. 279. 
 way Co,, 14 App. Cus. 179. 
 
492 TORTS. [Book IV. 
 
 with respect to tie defendant's property, or sometViing over 
 
 wliicli he has the control, which injures the plaintiff, and the 
 
 natural inference on the evidence is that the unusual occurrence 
 
 is owing to the defendant's act, the occurrence being unusual is 
 
 said (in the absence of explanation) to speak for itself, that such 
 
 act was negligent " (^). 
 
 Liability The law with regard to the liability of a person who supplies 
 
 drfective ^ defective article which causes injury to the person who uses 
 
 articles it, was much considered in a well-known case which came 
 
 supplied. before the Court of Appeal in 1883. In that case the law was 
 
 summed up as follows : — 
 
 " If a person contracts with another to use ordinary care or 
 skill towards him or his property the obligation need not be 
 considered in the light of a duty ; it is an obligation of contract. 
 It is undoubted, however, that there may be the obligation of 
 such a duty from one person to another, although there is no 
 contract between them with regard to such duty. Two drivers 
 meeting have no contract with each other, but under certain 
 circumstances they have a reciprocal duty towards each other. 
 So two ships navigating the sea. So a railway company which 
 has contracted with one person to carry another has no contract 
 with the person carried, but has a duty towards that person. 
 So the owner or occupier of house or land who permits a person 
 or persons to come to his house or land has no contract with 
 such person or persons, but has a duty towards him or 
 them " (2). 
 
 (') Smith on Negligence, 2nd ed. (^) Per Brett, M.E , in Heaven v. 
 
 p. 246. render, 11 Q. iJ. D. 503-507 
 
( 493 ) 
 
 Chadwick. 
 
 CHAPTER VII. / 
 
 Deceit. 
 
 The law with regard to the difficult and important subject of 
 actions for deceit has been very frequently made the subject of 
 consideration by the Courts, and may now be considered to a 
 very great extent settled by two recent decisions of the House 
 of Lords in the years 1884 and 1889 (i). 
 
 In the leading case of Smith v. Chadwich (2), in which the Smith v. 
 House of Lords affirmed the decision of the Court of Appeal, 
 the action was an action of deceit, brought on account of 
 fraudulent misrepresentation, by reason of which the plaintiff 
 alleged that he had been induced to take shares in a company. 
 The prospectus of the company contained the material statement, 
 by which the plaintiif alleged that he had been deceived, " that 
 the present value of the turnover or output of the entire works 
 is over £1,000,000 sterling per annum." The statement, if taken 
 to mean that the works had actually turned out produce of that 
 value, was untrue, but if meant in the sense that the works 
 -were capable of producing that amount, was true. The plaintiff 
 swore, in answer to interrogatories, that he understood the 
 meaning of the statement to be " that which the words obvi- 
 ously conveyed," but he w^as not asked either in examination or 
 cross-examination what interpretation he had put upon the words. 
 The plaintiff, in fact, said he had been deceived, but did not 
 " condescend to particulars," and did not tell in what respect 
 he had been deceived. The House of Lords decided, affirming 
 the decision of the Court of Appeal, that the plaintiff was not 
 entitled to succeed. " In an action of deceit," said the Lord 
 Chancellor, " it is the duty of the plaintiff to establish two 
 things: first, actual fraud, which is to be judged of by the 
 nature and character of the representations made, considered 
 with reference to the object for which they were made, the 
 
 (') See also on the subject of judgments in Derry v. Peek, 14 App. 
 
 deceit : Peek v. Ourney, L. B. 6 H. L. Cas. 387, et seq. 
 
 377 • Weir v. Hartiett, 3 Ex. D, 32 ; C') 9 App. Oas. 187 ; affirming 20 
 
 Cargill v. Bower, 10 Oh. D. 502 ; Ch. Div. 27. 
 and the cases referred to in the 
 
494 TOBTS. [Book IV. 
 
 knowledge or means of knowledge of the persons making them, 
 and the intention which the law justly imputes to every man to 
 produce those consequences which are the natural result of his 
 acts ; and secondly, he must establish that this fraud was an 
 inducing cause to the contract, for which purpose it must be 
 material, and it must have produced in his mind an erroneous 
 belief influencing his conduct. The plain tifi" has not satisfied the 
 burden of proof which under the circumstances was incumbent 
 upon him " (i). 
 
 In the important and interesting case of Berry v. Peek, the 
 facts were as follows : — • 
 Derry v. The private Act of Parliament incorporating a tramway cum- 
 
 ■^*^** pany provided that the carriages might be moved by animal 
 
 power, and with the consent of the Board of Trade, by steam- 
 power or any mechanical power. The directors, who expected 
 that they would without difficulty obtain the consent of the 
 Board of Trade, issued a prospectus, in whicli they stated that 
 •' one great feature of the undertaking " was that, by the special 
 Act of Parliament obtained, the company had a right to use 
 steam or mechanical motive-power instead of horses, and that it 
 was tully expected that by means of this a considerable saving 
 wonld result in the working expenses of the line. The plaintiff 
 took shares on the faith of this prospectus, and stated in his 
 evidence that he was induced to take them by the statement 
 that the company had the right to use steam-power, and also by 
 his knowledge of and interest in the locality, and his confidence 
 in the character of the directors. The Board of Trade, when 
 applied to, refused their sanction to the use of steam-power, 
 except over a smxll portion of the tramway, and the result 
 was that the company was unable to carry out its proposed un- 
 dertaking, and was wound up by the Court. The plaintiff, 
 thereupon, brought an action of deceit against the directors, 
 claiming damages on account of their fraudulent misrepresenta- 
 tion, whereby he was induced to take shares in the company. 
 This action was dismissed by the judge before whom the case 
 originally came in the Chancery Division, but his decision was 
 reversed by the Court of Appeal. The House of Lords unani- 
 mously reversed the judgment of the Court of Appeal and 
 restored the original decision. The Lord Chancellor in deliver- 
 ing judgment quoted the language now some centuries old that 
 
 (') Smith V. Cliadwiolc,9 App. Gas. tion should be the sole inilucenjent : 
 190. It would hiiwever not be ueces- Feeh v. Derry, 37 Ch. Div. 541; 
 Bary that the fraud or misrepreseuta- Arnison v. Smith, 41 Ch. Div. 369. 
 
Chap. VII.] DECEIT. 495 
 
 in dealing with actions of this character "fraud without 
 damage or damage without fraud" did not give rise to such 
 actions. One of the law lords added that the Court of Appeal 
 seemed to have proceeded on the principle that a man who made 
 a representation with a view of its being acted upon in the 
 honest belief that it was true committed a fraud in the eye of 
 the law if the Court or jury should be of opinion that he had 
 not reasonable grounds for his belief. " I have no hesitation," 
 said Lord Watson, " in rejecting that doctrine for which I can 
 find no warrant in the law of England." (^) 
 
 " This action," said Lord Herschell, " ' is one which is com- Summary 
 monly called an action of deceit, a mere common law action.' ?'^*J"'t'^ 
 This is the description of it given by Cotton, L.J., in delivering Herschell. 
 judgment. I think it important that it should be borne in 
 mind that such ai) action differs essentially from one brought to 
 obtain rescission of a contract on the ground of misrepresen- 
 tation of a material fact. The principles which govern the two 
 actions differ widely. Where rescission is claimed it is only 
 necessary to prove that there was misrepresentation ; then, 
 however honestly it may have been made, however free from 
 blame the person who made it, the contract having been obtained 
 by misrepresentation cannot stand. In an action of deceit, on 
 the contrary, it is not enough to establish misrepresentation 
 alone ; it is conceded on all hands that something more must be 
 proved to cast liability on the defendant, though it has been a 
 matter of controversy what additional elements are requisite." 
 
 With regard to the facts of the particular case before him. 
 Lord Herschell summed up his judgment as follows : " As I 
 have said, Stirling, J., gave credit to these witnesses, and I see 
 
 (') Lord Hersoliell in the course of the second and third as distinct cases, 
 his iud^ment said he thought that I think the third is but an instance 
 the authorities estal'lished the follow- of the second, for one who makes a 
 ing propositions, and that these pro- statement under such circumstances 
 positions embraced mU that could be can have no real belief in the truth 
 supported by decided cases from the of what he states. To prevent a false 
 time of Pasley v. Freeman (2 Smith's statement being fraudulent there 
 L. 0. 74) to Western Bank of Scotland must, I think, always be an honest 
 V jlcJdie (Law Kep. 1 H. L. Sc. 145). belief in its truth. And tliis pro- 
 First in order to sustain an action bably covers the whole ground, for 
 of deceit there must be proof of one who knowingly alleges that which 
 fraud and nothing short of that will is false has obviously no such honest 
 suffice. Secondly, fraud is proved belief. Thirdly, if fraud be proved, 
 when it is shewn that a false repre- the motive of the person guilty of it 
 sentation has been made, (1) know- is immaterial. It matters not that 
 ino-ly, or (2) without bilief in its truth, there was no intention to cheat or 
 
 " :^\ recklessly, careless whether injure the person to whom tlie state- 
 it be true or false. " Although," ment was made." 
 said Lord Herschell, " I have treated 
 
4»6 
 
 TORTS. 
 
 [Book IV. 
 
 Summary 
 of the law 
 by Lord 
 Herschell. 
 
 DO reason to differ from him. WHat conclusion ought to be 
 drawn from their evidence ? I think they were mistaken in 
 supposing that the consent of the Board of Trade would follow 
 as a matter of course because they had obtained their Act. It 
 was absolutely in the discretion of the Board whether such con- 
 sent should be given. The prospectus was therefore inaccurate. 
 But that is not the question. If they believed that the consent 
 of the Board of Trade was practically concluded by the passing 
 of the Act, has the plaintiff made out, which it was for him to 
 do, that they have been guilty of a fraudulent misrepresentation ? 
 I think not. I cannot hold it proved as to any one of them 
 that he knowingly made a false statement, or one which he did 
 not believe to be true, or was careless whether what he stated 
 was true or false. In short, I think they honestly believed 
 that what they asserted was true, and I am of opinion that the 
 charge of fraud made against them has not been established." 
 
 " I quite admit," continued Lord Herschell, " that the state- 
 ments of witnesses as to their belief are by no means to be 
 accepted blindfold. The probabilities must be considered. 
 Whenever it is necessary to arrive at a conclusion as to the state 
 of mind of another person, and to determine whether his belief 
 ainder given circumstances was such as he alleges, we can only 
 do so by applying the standard of conduct which our own ex- 
 perience of the ways of men has enabled us to form ; by asking 
 ourselves whether a reasonable man would be Jikelj' under 
 the circumstances so to believe. I have applied this test with 
 .tlie result that I have a strong conviction that a reasonable man, 
 situated as the defendants were, with their knowledge and 
 means of knowledge, might well believe what they state they 
 did believe, and consider that the representation made was sub- 
 stantially true." Q-) 
 
 It must be borne in mind, however, that the liability of 
 directors, promoters, and.others, in an action of deceit for false 
 statements in a prospectus has now been materially extended 
 by the Director's Liability Act, 1890 (post, p. 645). 
 
 The executor of the tort feasor is not liable in an action of 
 ideceit, which is of the nature of a personal action which dies 
 with the person, unless it is alleged and proved that his testator's 
 estate has received benefit from the misrepresentation Q). 
 
 (') Derry v. Peele, 14 App. Cas. 
 SAT. See further on this subject of 
 Deceit, notes to Cliandelor v. Lopus 
 (1 Smith's L. 0. 9th ed. p. 186) and 
 Fasley v. Freeman (2 Smith's L. C. 
 9th ed. p. 74); Beiijamiu on Sale, 
 
 4th ed. p. 445, et seq. 
 
 n Peek V. Gurney, L. E. 6 H. L. 
 377. See, as to measure of damages, 
 Twycross v. Grant, 2 C. P. D. 544, 
 Arhwrigkt v. Newbold, 17 Oh. D. 301, 
 Arnison v. Smith, 41 Ch. D. 348, 364. 
 
( 497 ) 
 
 cum 
 persona. 
 
 CHAPTEE VIII. 
 
 Discharge of Toets. 
 
 Let us now consider the various modes in whicli a tort may 
 be, as it is teclmically termed, " discharged." 
 
 1. Death. — At common law, the death of either the tort Death. 
 feasor or the injured party extinguishes the right of action for 
 a tort. The rule on this subject ia,. Actio personalis moritur cum 
 persona, i.e. a personal right of action dies with the person (i). 
 
 The three exceptions to this rule are : — Exceptions 
 
 (1.) Where an injury has been committed to the goods and *? maxim 
 chattels of a person who afterwards dies, the right of action personalis 
 survives to his executors and administrators (4 Edw. 3, c. 7 ™oWfar 
 (a.d. 1330) ; 25 Edw. 3, c. 6 (a.d. 1351)). 
 
 (2.) Where there has been an injury to the real estate of any 
 person, and such person dies, the right of action survives to his 
 executors or administrators, provided (3 & 4 Wm. 4, c. 42, s. 2), 
 (i,) the injury was committed within six months of the owner's 
 death ; and (ii,) the action is brought within one year after 
 death. 
 
 (8.) The third exception is the great statutory exception in- Lord 
 troduced by Lord Campbell's Act (9 & 10 Vict. c. 93), which Campbell'i 
 provides that " where a person's death is caused by the wrongful 
 act, neglect, or default of another, and the injured person, if he 
 had lived, could have maintained an action, and recovered 
 in respect thereof, the person who would have been liable in 
 such case shall be liable to an action for damages, notwith- 
 standing the death of the injured person, and although the 
 death shall have been caused under such circumstances as 
 amount in law to a felony " (2). 
 
 The statute requires that action shall be for the benefit of the 
 wife, husband, parent, and child of the person whose death 
 shall have been so caused, and shall be brought by and in 
 
 Act. 
 
 (') See Broome's Legal Maxims tracts, ante, p. 434. 
 under the maxim. Actio personalis (") See further, Pollock on Torts, 
 
 moritur crnn persona. See as to con- 56 ; Fraser on Torts, 122. 
 
 VOL. I. 2 K 
 
498 
 
 TOUTS. 
 
 [Book IV. 
 
 Exceptions 
 
 to maxim 
 
 Actio 
 
 personalts 
 
 -moritur 
 
 cum 
 
 persona. 
 
 the name of the executor or administrator of the person 
 deceased (y). 
 
 Where there is no executor or administrator, or if no action 
 is brought within six months by him, the action may be brought 
 in the name or names of all or any of the persons for whose 
 benefit the personal representatives would have sued (2). 
 
 Under this Act, the jury can only give compensation for 
 pecuniary loss, and they cannot add a solatium for account of 
 the grief which has been occasioned by the death. The reason- 
 able expectation of pecuniary benefit is however taken into 
 account, but funeral expenses cannot be recovered. The damages 
 are divided among the parties entitled according to the direction 
 of the jury. The action must be commenced within twelve 
 calendar months after the death, and only one action can be 
 brought for the same cause of complaint (3). 
 
 There is one peculiar class of cases in which the maxim, 
 actio personalis moritur cum persona does not bar the right of 
 action for a tort, viz. where there is a right to follow property 
 wrongfully taken or converted when appropriated by the de- 
 ceased tort feasor and added to his own estate or moneys. " In 
 such cases the action, though arising out of a wrongful act, does 
 not die with the person. The property or the proceeds or value 
 which in the lifetime of the wrongdoer could have been re- 
 covered from him, can be traced after his death to his assets, 
 and recaptured by the rightful owner there. But it is not 
 every wrongful act by which a wrongdoer indirectly benefits 
 that falls under this head, if the benefit does not consist in 
 the acquisition of property or its proceeds or value. Where 
 there is nothing among the assets of the deceased that in law or 
 in equity belongs to the plaintiff, and the damages which have 
 been done to him are unliquidated and uncertain, the executors 
 of a wrongdoer cannot be sued merely because it was worth the 
 wrongdoer's while to commit the act which is complained of, 
 and an indirect benefit may have been reaped thereby." One 
 illustration of this distinction, given in the judgment of the 
 Court of Appeal, from which the above quotation has been taken, 
 may here be cited. The produce, proceeds, or value of waste, 
 equitable or legal (ante, p. 27, et seq.), committed by. a tenant 
 for life can be followed into the hands of his executors, and so 
 
 (') By an extraordinary interpre- 
 tation clause the word "parent" is 
 to include " father and mother and 
 grandfather and grandmother, and 
 stepfather and stepmother; " and the 
 word child is to include " sou and 
 
 daugjiter and grandson and grand- 
 daughter, and stepson and step- 
 daughter." 
 
 C) 27 & 28 Vict. c. 95. 
 
 C) See Griffiths v. Earl of Dudley, 
 9 Q. B. D. 357. 
 
Chap. VIII.] DISOEABGE OF TORTS. 499 
 
 taken from them. If he has wrongly cut timber, the timber 
 or its proceeds or value can be followed, but no action for waste, 
 permissive or voluntary as such, lies against the executor of a 
 tenant for life (i). 
 
 Does the maxim actio •personalis moritur cum persona apply to Breach of 
 an action brought in respect of breach of promise of marriage ? P'^°™'"= "' 
 This was very carefully considered by the Court of Appeal in "^*'^"*^^" 
 a recent case in which a woman brought an action against exe- 
 cutors in respect of a breach of promise of marriage " committed 
 by their testator during his life." In this case three questions 
 or " formulas " (as they were termed by the Court of Appeal), 
 of great importance, were considered. First, whether the action 
 would lie without special damage ; secondly, whether it would 
 lie with special damage ; and, thirdly, whether, if special damage 
 be proved, the action would lie only for the special damage, or 
 lie for all the damages ordinarily given in actions for breach 
 of promise of marriage. The decision was that the action does 
 not survive where no special damage is alleged. 
 
 " The complaint," said Lord Esher, " in an action for breach of 
 promise of marriage is indeed a complaint of a breach of contract, 
 but the injury is treated as entirely personal, and not only are 
 damages always given in respect of the personal injury to the 
 plaintiff, but also damages arising from and occasioned by the 
 personal conduct of the defendant ; and evidence of the conduct 
 of both parties is allowed to be given in mitigation or aggrava- 
 tion. The ages of the respective parties may be taken into 
 account, as well as their whole behaviour; and the damages 
 may be much enlarged if the conduct of the defendant has been 
 an aggravation of the breach of his promise. A consideration 
 of these facts goes to shew that an action for breach of promise 
 of marriage is strictly personal, and that, although in form it 
 is an action for breach of contract, it is really an action for a 
 breach arising from the personal conduct of the defendant and 
 affecting the personality of the plaintiff" (^). 
 
 The special damage which would cause the right of action to 
 survive must be damage to the property, and not to the person, 
 of the promisee, and must be within the contemplation of both 
 parties at the date of the promise, and the action can be brought 
 against the executors for such special damage only, and not for 
 general damage. 
 
 A recent case (^) very well illustrates the distinction between 
 
 (■) Per Bowen, L.J., Phillips v. 49i. 
 Homfray, 24 Oil D. 454. (') Eatchard v. Mege and others, 
 
 (^) Finlay v. Chirney, 20 Q. B. D. 18 Q. B. D. 771. 
 
500 
 
 TORTS. 
 
 [Book IV. 
 
 Actio 
 
 personalis 
 
 moritur 
 
 cum 
 
 persond. 
 
 Statute of 
 Limita- 
 tions. 
 
 a personal tort and one whicli causes damages to the personal 
 estate of tte deceased plaintiff. In this case the plaintiff was a 
 "wine merchant, the registered proprietor of a trade-mark, and a 
 dealer in a brand of champagne known as " the Delmonico 
 champagne." The defendants published a statement to the 
 effect that wine advertised as Delmonico champagne could not 
 be the wine it was represented to be, as no champagne of that 
 description was genuine unless the name of Messrs. T). & Co. 
 was on the labels. The plaintiff brought an action for libel 
 and for damages to his trade or business occasioned by the 
 publication of such libel, and died after the commencement of 
 the action. The Court decided that so far as the action was fur 
 defamation of private character, or of a pirson in relation to his 
 trade, it came to an end on the death of the plaintiff, but that 
 so far as the action was for the pablioation of a false and mali- 
 cious statement causing damage to t lie plaintiff's personal estate, 
 i.e. to the trade-mark or brand under which the cliampagne was 
 sold, it could be continued by the personal representative of the 
 deceased plaintiff. 
 
 2. Statute of Limitations. — Torts are also practically discharged 
 by effluxion of time, for if the action is not brought within a 
 certain time, which, as we shall see, varies according to the 
 nature of the tort, the plea of the Statute of Limitations may be 
 set up in bar of the rights of action in the Courts of this country, 
 though the defendant may still be liable in a foreign Court. 
 
 The various periods within which actions of tort must be 
 brought are two, four, and six years respectively. 
 
 Action for slander, where the words are actionable per se 
 {ante, p. 464), must be brought within two years from the 
 speaking of the words (^). 
 
 Actions for assault, battery, wounding, or false imprisonment, 
 must be brought within four years after the cause of action 
 has arisen. 
 
 Actions for trespass to land or to goods, detinue, trover, 
 replevin, libel, and other actions on the case not otherwise dealt 
 with, must be brought within six years. 
 
 Where " actual damage is the gist of the action," e.g. in the 
 case of interference with the ordinary or natural right to ad- 
 jacent support which every owner of land possesses, iude- 
 pendently of grant or prescription, the time from which the 
 period prescribed by the Statute of Limitations begins to run is 
 the time of the happening of the damage, and not the time of 
 
 (') 21 Jac. 1, 0. 16. 
 
Chap. Vlll.] DI8CHAB&E OF TOUTS. 501 
 
 the commission of the wrongful act which produces that 
 damage (i). 
 
 3. " Accord and satisfaction," e.g. a person may agree to Accord and 
 accept any sum, though it be not one hundredth part of the tfon^*''~ 
 ■value of his loss, in full discharge of his claim in respect of the 
 
 tort, but in a case where a railway company paid a nominal sum 
 and obtained by Iraudulent representation a receipt in full for 
 damage sustained in an accident, the Court decided tliat the 
 plea of accord and satisfaction could not be set up {^). 
 
 4. A tort may also be discharged by waiver, i.e. in cases Waiver, 
 where there are circumstances under which the law would 
 imply a contract, the party injured may waive his right to sue 
 
 on tort and bring an action in contract. Thus, though a man 
 might sue on trespass where his property was occupied without 
 leave or licence, yet he may elect to sue for occupation rent only. 
 
 With regard to the position of bankrupt tort feasors, the Bank- 
 Bankruptcy Act, 1883 (3), provides that demands in the nature >''ip''^y- 
 of unliquidated damages arising otherwise than by reason of a 
 contract, promise, or breach of trust, shall not be provable in 
 bankruptcy. The effect of this is that the tort feasor will be 
 liable to an action after his discharge in bankruptcy. When, 
 however, judgment in the action for the tort is signed before 
 the adjudication in bankruptcy, proof in the bankruptcy (with 
 consequent release of liability for the tort by discharge) will 
 be allowed (*). 
 
 If the person injured by the tort becomes a bankrupt his 
 trustee may bring an action if the tort has caused damage to 
 the bankrupt's estate, but not for damage of a personal nature 
 such as that occasioned by slandfr or libel (^). 
 
 A tort may be " discharged " by the recovery of damages 
 in an action founded upon it, and here we may briefly notice 
 the subject of the " measure of damages " which we have already Measure 
 considered (p. 422, et seq.~) in relation to damages in contract. of damages. 
 
 An important distinction between contract and tort in 
 reference to damages, is that in the case of tort, damages are 
 awarded as a punishment to the party inflicting the injury. 
 As Sir F. Pollock puts it, where there is great injury, and it is 
 
 (') Baclchouse v. Bonomi, 9 H. L. C. 3 Ch. D. 94. Profits made by in- 
 
 503 ; Darley Main Colliery Co. v. Mit- fnngement of patents may be proved 
 
 cliell, 11 App. Gas. 127. for in bankruptcy : Watson v. Eolli- 
 
 (2) Stewart v. Great West. Mailway day, 20 Ch. D. 7«0. 
 
 Co. 2 De G. J. & S. 319 ; and see (*) Beckham v. Dralte, 8 M. & W. 
 
 Addison on Torts, tith ed. p. 52, et seq. 816 ; 11 M. & W. 315 ; 2 H. L. 0. 
 
 (2) 46 & 47 Vict. c. 52, s. 37. 579; Ex parts Vine. In re Wilson, 
 
 (*) In re Newman, Ex parte Broojce, 8 Ch. D. 364. 
 
502 TORTS. . [Book IV. 
 
 not possible to measure compensation by any numerical rule, 
 juries have not only " been allowed, but encouraged, to give 
 damages that express indignation at the defendant's wrong, 
 rather than as a value set upon the plaintiff's loss " (^). 
 General The general principle upon which the Court proceeds was 
 
 rule as to stated by the late Chief Justice Bovill in an oft-quoted case as 
 ■ follows : " The general rule is that a person who commits a 
 wrongful act is responsible for the ordinary consequences which 
 are likely to arise therefrom ; but, generally speaking, he is not 
 liable for damage which is not the natural or ordinary conse- 
 quence of such an act, unless it be shewn that he knows, or has 
 reasonable means of knowing, that consequences not usually 
 resulting from the act are, by reason of some existing cause, 
 likely to intervene so as to occasion damage to a third person. 
 Where there is no reason to expect it, and no knowledge in the 
 person doing the wrongful act that such a state of things exists 
 as to render the damage probable, if injury does result to a 
 third person, it is generally considered that the wrongful act is 
 not the proximate cause of the injury, so as to render the wrong- 
 doer liable to an action '' (^). 
 
 In the case in which this principle was laid down the facts 
 were as follows : The defendants' servant (in breach of a Police 
 Act) washed a van in a public street and allowed the waste 
 water to run down the gutter towards a grating leading to the 
 sewer, about twenty-five yards off. In consequence of the 
 extreme severity of the weather, the grating was obstructed by 
 ice, and the water flowed over a portion of the causeway, which 
 was ill-paved and uneven, and there froze. There was no evi- 
 dence that the defendant knew of the grating being obstructed. 
 The plaintiff's horse, while being led past the spot, slipped upon 
 the ice and broke its leg. The Court decided that the damage 
 w?is, as it was technically called, " too remote," and that the 
 plaintiff could not therefore recover. 
 
 A leading authority with regard to damages in actions of 
 tort is the old case of Scott v. Shepherd, decided more than a 
 hundred years ago. In that case the facts were as follows : 
 On the evening of the fair-day at Milborne Port, 28th October, 
 1770, Shepherd threw a lighted squib made of gunpowder, &c., 
 from the street into the market-house, which was a covered 
 
 (') Pollock on Tcii-ts, 162, where Bated at £300 damnges, and Merest v. 
 
 Muckle V. Money, 2 WUs. 205, a case Harvey, 5 Taunt. 442, iire cited, 
 
 ■where detention though accompanied (^) Sharp v. Powell, L. K. 7 C. P. 
 
 by an entertainment of beefsteaks and 258. 
 beer was considered fairly compen- 
 
Chap, VIII.] DTSOffABGE OF TOUTS. 503 
 
 building supported by arches and enclosed at one end, but open Scott v. 
 at the other and both the sides, where a large concourse of '^'^^J'''^'"''- 
 people were assembled, which lighted squib so thrown by the 
 defendant fell upon the standing of one Yates, who sold ginger- 
 bread, &c. : one Willis instantly, and to prevent injury to 
 himself and the said wares of the said Yates, took up the said 
 lighted squib from off the said standing, and then threw it 
 across the said market-place, when it fell upon another stand- 
 ing there of one Ej'al, who sold the same sort of wares, who 
 instantly, and to save his own goods from being injured, took 
 up the squib and threw it to another part of tho market-house, 
 and in so throwing it struck the plaintiff, Scott, then in the 
 said market-house, in the face therewith, and the combustible 
 matter then bursting, put out one of the plaintiff's eyes. 
 
 The Court considered that Scott was entitled to recover 
 damages for the injury done. Said one of the judges. Qui facit 
 per aliud facit per se, the defendant is the person who in the 
 present case gave the mischievous faculty to the squib. That 
 mischievous faculty remained in it till the explosion. No new 
 power of doing mischief was communicated to it by Willis or 
 Eyal. It is like the ease of a mad ox turned loose in a crowd. 
 " It has been urged," added another of the judges, " that the 
 intervention of a free agent will make a difference, but I do not 
 consider Willis and Eyal as free agents in the present case, but 
 acting under a compulsive necessity for their own safety and 
 self-preservation " (^). 
 
 The mode in which the general principles have been applied 
 by the Courts to cases which came before them may be illus- 
 trated by the following instances : — ■ 
 
 In a remarkable American case, where the defendant had 
 quarrelled in the street with a negro boy and pursued him with 
 a pickaxe, the boy ran into the plaintiff's store, where he was 
 employed, behind the counter, to save himself from the defen- 
 dant's attack, and in so doing knocked the faucet from a cask 
 of wine, and a quantity of the wine was lost, it was held that 
 the defendant was liable (^). 
 
 A herd of plaintiff's beasts was being driven at 11 p.m. along 
 an occupation road to some fields. The road crossed a siding of 
 the defendant's railway on a level, and while the cattle were 
 crossing the siding the defendant's servants negligently sent 
 some trucks down au incline into the siding, which separated 
 
 C) SooU V. Shepherd, 2 W. Bl. 892 ; C) Vandenburgh v. Trimx, 4 Denio, 
 
 1 Smith's Leading Cases, 480. 464. 
 
504 TORTS. [Book IV. 
 
 Damages, the cattle from the drovers and frightened them, and they 
 rushed away (^). 
 
 Lord Cairns, in delivering judgment, said : " It appears from 
 the facts as stated in the case, that the defendants' servants 
 ■were guilty of negligence in allovsring the trucks to move down 
 at a time when, if they had nr)t been guilty of negligence, they 
 would have seen the cattle were crossing. The result of this 
 negligence was twofold. First, they were frightened, and 
 became infuriated, and were driven to act as they would not 
 have acted in their natural state. Everything that occurred or 
 was done after that must be taken to have occurred or been done 
 continuously : the cattle rushed on in a state of fury, passed 
 along the occupation road, charged the fence of the garden, 
 and so got on to the railway, and were ultimately killed." 
 
 In a case where the plaintiff had a prescriptive right to have 
 certain fences maintained by the defendant, and the fences were 
 broken down and the plaintiff's cows got through a gap and fed 
 on the leaves of a yew tree and died in consequence, the Court 
 decided that the damage was not too remote (2). 
 
 Again, in a case where the plaintiff's cow died through 
 swallowing one of the pieces of the defendants' iron fence, 
 which had been allowed to remain until it decayed and fell to 
 the ground and lay hidden in the grass, the Court considered 
 that the falling of the wire was a natural result of its decay, 
 and the pieces being hidden in the grass were naturally liable 
 to be swallowed by the cattle grazing there, and the defendants 
 were therefore liable for the injury to the plaintiff's cow, which 
 was caused by the natural result of their acts (f). 
 
 In another case the Court decided that where the defendant 
 had unlawfully placed barriers armed with spikes, or, as they 
 are commonly called, chevaux de /rise, across a carriageway, he 
 was liable for an injury which was occasioned to the plaintiff 
 by their being removed by another person without his know- 
 ledge and placed on the footway (■*). 
 
 Suppose I wrongfully induce a man to break the law to the 
 injury of a third party, can that third party bring an action 
 against me in respect of the injury inflicted upon him? 
 
 This question was considered by the Court of Appeal in an 
 important case as follows : — 
 
 " Wherever a man does an act which in law and in fact is a 
 
 (') Sneesby v. Lancashire and York- (') Firth v. Bmding Iron Co., 3 
 
 thire Railway Co., 1 Q. B. D. 42. 0. P. D. 254-259. 
 
 Q) Lawrence v. Jenkins, L. B. 8 («) Clark v. Chambers, 3 Q. B. D. 
 
 Q. B. 274. 327. 
 
Chap. VIII.] DISCHARGE OF TOBTS. 505 
 
 wrongful act, and such an act as may, as a natural and probable Damages, 
 consequence of it produce injury to anotlier, and which, in the 
 particular case does produce such an injury, an action on the 
 case will lie. This is the proposition to be deduced from Asliby 
 V. White. If these conditions are satisfied the action does not 
 the less lie because the natural and probable consequence of the 
 act complained of is an act done by a third person, or because 
 such act so done by a third person is a breach of duty or con- 
 tract by him, or an act illegal on his part, or an act otherwise 
 imposing an actionable liability on him. It has been said that 
 the law implies that the act of the third party, being one which 
 he has free will and power to do or not to do, is his own wilful 
 act, and therefore is not the natural or probable result of the 
 defendant's act. In many cases that may be so, but if the law 
 is so to imply in every case, it will be an implication contrary 
 to manifest truth and fact. It has been said that if the act of 
 the third person is a breach of duty or contract by him, or is an 
 act which it is illegal for him to do, the law will not recognise 
 that it is a natural or probable consequence of the defendant's 
 act. Again, if that were so held in all cases, the law would in 
 some refuse to recognise what is manifestly true in fact " (^). 
 
 In a recent case where the question was whether the plaintiff 
 could recover damages in respect of an alleged slander, the 
 Court of Appeal, in deciding that the damage was not the 
 natural and probable consequence of the words spoken, summed 
 up the law as follows : — 
 
 " To make the words actionable, by reason of special damage, 
 the consequence must be such as, taking human nature as it is, 
 with its infirmities, and having regard to the relationship of 
 the parties concerned, might fairly and reasonably have been 
 anticipated and feared would follow from the speaking the 
 words, not what would reasonably follow, or we might think 
 ought to follow " (2). 
 
 The damages awarded to the party injured by a tort are gene- 
 rally considered under the following heads, viz. : (i.) nominal ; 
 (ii.) ordinary ; (iii.) vindictive or exemplary ; and (iv.) special. 
 
 " The term ' nominal damages,' means," as Mr. Justice Maule 
 said, " a sum of money that may be spoken of, but that has no 
 existence in point of quantity " (f). Such damages are given 
 in two classes of cases : (1) When the action has been brought 
 
 (1) Bowen. v. Batt, 6 Q. B. D. 337, 407, 414. 
 
 affirming Lumley v. Gye, 2 E. & B. 216. (') Per Maule, J., id Beaumont y . 
 
 Q) Chamberlain v. Boyd, 11 Q. B. D Greathead, 2 C. B. 494. 
 
 VOL. I. 2 ^ 
 
506 TORTS. [Book IV. 
 
 Damages, simply to establish a right, e.g., a right of way, no substantial 
 loss having been incurred.: (2) where, although some legal 
 wrong has been done to the plaintiff, the Court or jury think 
 slightly of the merits of his case. Thus, if a man brings an 
 action for defamation of character, and the jury consider that 
 his character stands so low in public estimation that even very 
 serious charges against him cannot have inflicted any injury on 
 that which was previously so worthless, a farthing damages is 
 usually given (^). 
 
 Ordinary damages are those which are awarded as compen- 
 sation for the injury inflicted upon the plaintiff; and here it 
 must be borne in mind that a jury ought in a proper case to 
 take into consideration not only the actual existing damages 
 but also the prospective damiiges which may be the result of 
 the injury (f). 
 
 There mu>t however be what is called " temporal damage ": 
 thus in a case where a plaintiff lost the advantage of again 
 becoming a candidate for a club with a chance of being elected, 
 the Court of Appeal pronounced the alleged damage to be un- 
 substantial and shadowy and incapable of being estimated in 
 money (f). It has been held however that the loss of the hospi- 
 tality of divers friends amounts to temporal damages (*). 
 
 Vindictive or exemplary damages may be awarded on the 
 principle that where there are aggravating circumstances, such 
 as insult, interference with personal freedom, outrageous and 
 violent conduct ; e g., for trespass and entry into the house or 
 lands of the plaintiff, a jury may consider not only the mere 
 pecuniary damage sustained by the plaintiff, but also the inten- 
 tion with which the fact has been done, whether for insult or 
 injury Q>). 
 
 The term special damage is employed in different senses ; 
 technically it means damages that can be particularised, and 
 here it must be borne in mind that special damages of this 
 
 (') See Piggott on Torts, p. 152, 407. 
 
 and Eingwood on Torts, p. 181. In C) Davies v. Solomon, L. B. 7 
 
 Odfrers on Libel. 2nd ed. p. 294, a Q. B. 112. 
 
 farthing or shilling is spoken of as C) Sears v. Lyons, 2 Stark. 317 ; 
 contemptuous damages, i.e., where and see Beeves v. Penrose, 26 L. B. 
 the jury think the action ought not Ir. 141. Beaders of Demosthenes 
 to be brought. The term nominal may remember his description of 
 damages is applied to cases where SPpis in the oration against Midias, 
 the plaintiff clears his character and and more especially the noble pass- 
 accepts forty shillings and costs. age beginning, 06 yhp r) irXriyit irape- 
 
 (') Darley Main Colliery Co. v. <rTii(re tjjk opyriv i,\\' ti art/ifa : " for 
 
 Mitchell, 14 Q. B. D. 125, 134; 11 it is not the blow which causes anger, 
 
 App. Cas. 127. but the disgrace." 
 
 C) Ckamherlainy. Boyd,UQ,.'B.'D. 
 
Chap. VIII.] 
 
 DISCHABOE OF TOBTS. 
 
 507 
 
 nature mtist be specifically alleged. The phrase special damages Special 
 is also applied to cases where there is no presumption of damage, ' ^"""S*^^ 
 but the plaintiff must shew that he has suffered some m aterial 
 injury or loss Q). 
 
 In a case decided in 1884, the plaintiff who had recovered 
 damages against the defendant in an action in a county court 
 for damage done to his cab, afteiwards brought an action in the 
 High Court against the same defendant claiming damages for a 
 personal injury sustained through the same negligence. The 
 majority of the Court of Appeal decided that the action in the 
 High Court was maintainable and was not ban-ed by the 
 previous proceedings in the county court. 
 
 The principle on which the Court proceeded was that damage 
 to goods and injury to the person, although they have been 
 occasioned by one and the same wrongful act, are infringements 
 of different rights, and give rise to distinct causes of action (^). 
 
 C) Piggott on Torts, p. 150; 
 Fraaer's Law of Libel, p. 6; Bruns- 
 den V. Humphrey, 14 Q. B. D. lil. 
 
 C) See as to remoteness of damage 
 1 Smith's Leading Cases, 9th ed. 
 p. 236. Notes to Vicars v. Wilcoclts, 2 
 Smith's Leading Cases, 9th ed. p. 577 ; 
 
 8 East 1 ; and see Victorian Railway 
 Commissioners V. Coultas,13 App. Cas. 
 222, where it was held that damages 
 for a nervous shock caused by fright 
 of an impending collision were too 
 remote. 
 
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